BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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5
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SB 1582 (Simitian) 2
As Amended March 25, 2008
Hearing date: April 8, 2008
Public Resources Code
SM:mc
OCEAN RANGERS
HISTORY
Source: Gershon Cohen, Earth Island Institute
Prior Legislation: None
Support: AFSCME; California Coastkeeper Alliance; Crime Victims
United; National Center for Victims of Crime;
National Organization of Parents of Murdered
Children, Inc.; California Statewide Law Enforcement
Association; 14 private citizens
Opposition:Cruise Lines International Association; Port of San
Francisco
KEY ISSUES
SHOULD OWNERS OR OPERATORS OF LARGE PASSENGER VESSELS OPERATING
IN CALIFORNIA BE REQUIRED TO HAVE AN "OCEAN RANGER" ON BOARD TO
MONITOR COMPLIANCE WITH SPECIFIED LAWS?
SHOULD OWNERS OR OPERATORS OF SUCH VESSELS BE REQUIRED TO
PROVIDE UPON REQUEST SPECIFIED RECORDS FOR INSPECTION?
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(CONTINUED)
SHOULD THE DUTIES OF SUCH "OCEAN RANGERS" BE TO MONITOR COMPLIANCE
WITH WASTEWATER DISCHARGE LAWS, REVIEW PROCEDURES INVOLVING ONBOARD
WASTEWATER TREATMENT, REVIEW SPECIFIED RECORDS, AND ASSIST
PASSENGERS AND CREW WITH REPORTING AND INVESTIGATING POTENTIAL
CRIMINAL ACTIVITIES OCCURRING ON BOARD WHILE IN THE MARINE WATERS OF
THE STATE?
SHOULD THE ATTORNEY GENERAL BE REQUIRED TO NEGOTIATE A MEMORANDUM OF
UNDERSTANDING WITH AUTHORITIES IN ALASKA, WASHINGTON, HAWAII,
CANADA, AND BAJA CALIFORNIA TO REQUIRE "OCEAN RANGERS" TO BOARD
LARGE PASSENGER VESSELS AT THE LAST PORT OF CALL BEFORE THE VESSEL
ENTERS THE MARINE WATERS OF THE STATE, AS SPECIFIED?
SHOULD THE DEPARTMENT OF JUSTICE BE REQUIRED TO MAKE ARRANGEMENTS
WITH OWNERS OR OPERATORS OF LARGE PASSENGER VESSELS EMBARKING FOR AN
INTERNATIONAL DESTINATION AND NOT RETURNING WITHIN SEVEN DAYS TO
ALLOW AN "OCEAN RANGER" TO DISEMBARK THE SHIP OR REMAIN IN THE FIRST
PORT OF CALL OUTSIDE CALIFORNIA, OR IN SAN DIEGO, AS SPECIFIED?
SHOULD THE OPERATOR OF THE VESSEL BE REQUIRED TO PROVIDE ROOM AND
BOARD FOR AN "OCEAN RANGER" EQUIVALENT TO THOSE PROVIDED FOR THE
SHIP'S OWN PRIVATE SECURITY PERSONNEL?
SHOULD THE DEPARTMENT OF JUSTICE BE AUTHORIZED TO ASSESS ON THE
OPERATOR OF THE VESSEL A FEE OF $1 PER PASSENGER FOR EACH DAY AN
"OCEAN RANGER" WILL BE ABOARD THE VESSEL?
PURPOSE
The purpose of this bill is to (1) require owners or operators
of large passenger vessels operating in California to have an
"ocean ranger" on board to monitor compliance with specified
laws; (2) require owners or operators of such vessels to provide
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upon request specified records for inspection; (3) specify that
"ocean rangers" shall monitor compliance with wastewater
discharge laws, review procedures involving onboard wastewater
treatment, review specified records, and assist passengers and
crew with reporting and investigating potential criminal
activities occurring on board while in the marine waters of the
state; (4) require the Attorney General to negotiate a
Memorandum of Understanding with authorities in Alaska,
Washington, Hawaii, Canada and Baja California to require "ocean
rangers" to board large passenger vessels at the last port of
call before the vessel enters the marine waters of the state, as
specified; (5) require that arrangements be made between the
Department of Justice and owners or operators of large passenger
vessels embarking for an international destination and not
returning within seven days to allow an "ocean ranger" to
disembark the ship or remain in the first port of call outside
California, or in San Diego, as specified; (6) require that the
operator of the vessel provide room and board for an "ocean
ranger" equivalent to those provided for the ship's own private
security personnel; and (7) authorize the Department of Justice
to assess on the operator of the vessel a fee of $1 per
passenger for each day an "ocean ranger" will be aboard the
vessel.
Existing federal law states that the special maritime and
territorial jurisdiction of the United States includes:
the high seas, any other waters within the admiralty and
maritime jurisdiction of the United States and out of the
jurisdiction of any particular State, and any vessel
belonging in whole or in part to the United States or any
citizen thereof, or to any corporation created by or under
the laws of the United States, or of any State, Territory,
District, or possession thereof, when such vessel is within
the admiralty and maritime jurisdiction of the United
States and out of the jurisdiction of any particular State;
any vessel registered, licensed, or enrolled under the
laws of the United States, and being on a voyage upon the
waters of any of the Great Lakes, or any of the waters
connecting them, or upon the Saint Lawrence River where the
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same constitutes the International Boundary Line;
any lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction
thereof, or any place purchased or otherwise acquired by
the United States by consent of the legislature of the
State in which the same shall be, for the erection of a
fort, magazine, arsenal, dockyard, or other needful
building;
any island, rock, or key containing deposits of guano,
which may, at the discretion of the President, be
considered as appertaining to the United States;
any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation
created by or under the laws of the United States, or any
State, Territory, district, or possession thereof, while
such aircraft is in flight over the high seas, or over any
other waters within the admiralty and maritime jurisdiction
of the United States and out of the jurisdiction of any
particular State;
any vehicle used or designed for flight or navigation in
space and on the registry of the United States pursuant to
the Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies and the Convention on
Registration of Objects Launched into Outer Space, while
that vehicle is in flight, which is from the moment when
all external doors are closed on Earth following
embarkation until the moment when one such door is opened
on Earth for disembarkation or in the case of a forced
landing, until the competent authorities take over the
responsibility for the vehicle and for persons and property
aboard;
any place outside the jurisdiction of any nation with
respect to an offense by or against a national of the
United States;
to the extent permitted by international law, any
foreign vessel during a voyage having a scheduled departure
from or arrival in the United States with respect to an
offense committed by or against a national of the United
States;
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with respect to offenses committed by or against a
national of the United States as that term is used in
section 101 of the Immigration and Nationality Act [8 USCS
1101]-
o the premises of United States diplomatic,
consular, military or other United States Government
missions or entities in foreign States, including the
buildings, parts of buildings, and land appurtenant or
ancillary thereto or used for purposes of those
missions or entities, irrespective of ownership; and
o residences in foreign States and the land
appurtenant or ancillary thereto, irrespective of
ownership, used for purposes of those missions or
entities or used by United States personnel assigned
to those missions or entities.
Nothing in this paragraph shall be deemed to supersede
any treaty or international agreement with which this
paragraph conflicts. This paragraph does not apply with
respect to an offense committed by certain members of the
Armed Forces and by persons employed by or accompanying the
Armed Forces outside the United States.
(18 USCS 7.)
Existing law requires the State Water Resources Control Board to
request the appropriate federal agencies, as determined by the
board, to prohibit the release of sewage sludge and oily bilge
water, except under the circumstances specified in Section
72441, by large passenger vessels and oceangoing ships, in all
of the waters that are in the Channel Islands National Marine
Sanctuary, Cordell Bank National Marine Sanctuary, Gulf of the
Farallones National Marine Sanctuary, and Monterey Bay National
Marine Sanctuary, that are not in the state waters. (Public
Resources Code 72440.)
Existing law provides that if the appropriate federal agencies
approve an application made pursuant to subdivision (a) of
Section 72440, or if the board determines that an application is
not required, an owner or operator of a large passenger vessel
or oceangoing ship may not release, or permit anyone to release,
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any sewage sludge from the vessel into the marine waters of the
state or a marine sanctuary. (Public Resources Code
72420(a).)
Existing law provides that if the Administrator of the United
States Environmental Protection Agency approves the application
for sewage release made pursuant to subdivision (a) of Section
72440, or if the board determines that an application is not
required, an owner or operator of an oceangoing ship with
sufficient holding tank capacity may not release, or permit
anyone to release, any sewage from the vessel into the marine
waters of the state. (Public Resources Code 72420(b).)
Existing law states that the Attorney General and special agents
and investigators of the Department of Justice are peace
officers, and those assistant chiefs, deputy chiefs, chiefs,
deputy directors, and division directors designated as peace
officers by the Attorney General are peace officers. The
authority of these peace officers extends to any place in the
state where a public offense has been committed or where there
is probable cause to believe one has been committed. (Penal
Code 830.1(b).)
This bill makes the following legislative findings:
More cruise ships are calling upon California ports of
call every year. The cruise ship fleet is increasing in
size and carrying capacity and producing increasing volumes
of solid and liquid waste.
Improperly treated wastes released into the environment
can significantly impact California's aquatic ecosystems
and the people and industries that depend upon them.
The cruise ship industry has a poor record on
self-policing environmental practices.
California's zero-discharge law for cruise ships does
not provide independent oversight of the industry or
verification of the zero-discharge requirement.
Millions of American citizens travel on cruise ships
every year and numerous documented cases exist of serious
crimes against passengers by other passengers and crew
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members.
The cruise ship industry has failed to adopt adequate
measures to protect passengers from theft, rape, assaults,
and suspected homicides, or to provide the necessary
assistance to United States public safety officers
investigating these crimes.
Every cruise ship provides thousands of foreign
citizens, both passengers and crew, with transport and
access to multiple ports of call in the state with
insufficient oversight from state and federal authorities.
It is the intent of the Legislature to place a licensed
marine engineer with peace officer status on all cruise
ships traveling through the marine waters of the state.
These employees of the state, to be known as ocean rangers,
would help protect the state's coastal resources,
investigate crimes against passengers, and provide support
to state and federal homeland security agencies.
This bill defines an "ocean ranger" as an investigator specified
in subdivision (b) of Section 830.1 of the Penal Code who is a
marine engineer licensed by the United States Coast Guard and
certified to perform environmental monitoring, and who has
successfully completed a specified training course.
This bill would require DOJ, in cooperation with the Commission
on Peace Officer Standards and Training (POST), to develop an
appropriate course of training for ocean rangers.
This bill would require that on and after July 1, 2009, an owner
or operator of a large passenger vessel entering and operating
in the marine waters of the state shall have an ocean ranger
onboard the vessel to act as a compliance observer for the
purposes of monitoring compliance with the requirements of
specified state and applicable federal laws and regulations
regarding discharge of waste while operating in the marine
waters of the state.
This bill would require the Attorney General to negotiate a
Memorandum of Understanding with appropriate state, national, or
provincial authorities from Alaska, Washington, Hawaii, and as
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applicable under international and federal law, Canada, and Baja
California. The memoranda shall establish terms and conditions
of access to, and egress from, large passenger vessels for the
ocean ranger from ports in those states or countries pursuant to
this chapter or for equivalent law enforcement and environmental
enforcement personnel from those foreign jurisdictions. The
memoranda shall require the ocean ranger or the specified
equivalent enforcement personnel to board the large passenger
vessel at the last port of call made by the vessel before the
vessel enters the marine waters of the state.
This bill would require that on and after July 1, 2009, a large
passenger vessel making a port of call in the state shall not
disembark passengers at a California port if the last port of
call is in Hawaii, Alaska, Washington, Canada, or Baja
California and an ocean ranger authorized by this chapter or
equivalent enforcement personnel, as specified, authorized by a
Memorandum of Understanding, as specified, has been denied
access to the vessel by the vessel operator.
This bill would require that, for a large passenger vessel
embarking for an international destination from a port in the
state, and not returning to the state within seven days, or
making a port of call in Hawaii or Alaska, arrangements shall be
made between the operator of the vessel and the Department of
Justice for the ocean ranger to disembark the ship or remain in
the first port of call outside the state. If the Memorandum of
Understanding cannot be reached with appropriate authorities in
Baja California for a vessel bound for Mexico, arrangements
shall be made for the ocean ranger to disembark the ship or
remain in San Diego.
This bill would require that the operator of the large passenger
vessel provide room and board for the ocean ranger or equivalent
personnel, as specified, that is equivalent to those provided to
private security personnel employed by the vessel operator.
This bill would require that an owner or operator of a large
passenger vessel entering and operating in the marine waters
shall provide, upon request, specified records kept for
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inspection by the ocean rangers.
This bill states that the duties of an ocean ranger would be the
following:
monitor a large passenger vessel's compliance with the
requirements of specified state and applicable federal laws
and regulations regarding discharge of wastewater while the
vessel is operating in the marine waters of the state;
observe maintenance and operational procedures for
onboard waste treatment systems and review specified
records;
assist the passengers and crew, as needed, with
reporting and investigating crimes occurring onboard while
in the marine waters of the state; and
evaluate and respond to risks related to homeland
security.
This bill authorizes DOJ to assess on the owner or operator of a
large passenger vessel a fee of one dollar ($1) per day per
passenger for each day the ocean ranger will be aboard the large
passenger vessel pursuant to this chapter.
This bill states that DOJ shall revise the fee from time to time
to ensure that the fee is sufficient to generate sufficient
revenues only to cover the costs of implementing this chapter,
plus a prudent reserve.
This bill states that the moneys collected pursuant to
subdivision (a) shall be deposited into the Ocean Ranger Program
Fund, which is hereby established in the State Treasury. The
moneys in the fund shall be available, upon appropriation by the
Legislature, for the training of ocean rangers and the
implementation of this chapter.
This bill states that DOJ shall implement this chapter in
conformity with all applicable requirements of international and
federal law.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity
remains nearly exhausted as prisons today continue to be
operated with a significant level of overcrowding.<1> A year
ago, the Legislative Analyst's office summarized the trajectory
of California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<2>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007); see
also, court orders, infra.
<2> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<3>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
The federal court has appointed a receiver to take over the
direct management and operation of the prison medical health
care delivery system from the state. The crisis has continued
---------------------------
<3> Analysis 2007-08 Budget Bill, supra, fn. 1.
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to escalate and, in July of last year, the federal court
established a three-judge panel to consider placing a cap on the
number of prisoners allowable in California prisons. It is
anticipated that the court will reach its decision this year.
In his order establishing the judicial panel, Judge Thelton
Henderson stated in part:
It is clear to the Court that the crowded conditions
of California's prisons, which are now packed well
beyond their intended capacity, are having - and in
the absence of any intervening remedial action, will
continue to have - a serious impact on the Receiver's
ability to complete the job for which he was
appointed: namely, to eliminate the unconstitutional
conditions surrounding delivery of inmate medical
health care.
. . . (T)his case is also somewhat unique in that even
Defendants acknowledge the seriousness of the
overcrowding problem, which led the Governor to declare
a state of emergency in California's prisons in October
2006. While there remains dispute over whether crowded
conditions are the primary cause of the constitutional
problems with the medical health care system in
California prisons, or whether any relief other than a
prisoner release order will remedy the constitutional
deprivations in this case, there can be no dispute that
overcrowding is at least part of the problem. . . .
The record is equally clear that the Receiver will be
unable to eliminate the constitutional deficiencies at
issue in this case in a reasonable amount of time
unless something is done to address the crowded
conditions in California's prisons. This Court
therefore believes that a three-judge court should
consider whether a prisoner release order is warranted
. . . . (Hon. Thelton Henderson, Order dated July 23,
2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351
TEH (citations omitted).)
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Similarly, Judge Lawrence Karlton stated:
There is no dispute that prisons in California are
seriously and dangerously overcrowded. () The
record suggests there will be no appreciable change
in the prison population in the next two years.
(Hon. Lawrence K. Karlton, Senior Judge, United
States District Court, Order dated July 23, 2007 in
Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520
LKK JFM P (citations omitted).)
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
There are numerous crimes that take place on cruise
ships. The only security personnel on board work for
the vessel operator. They are minimally trained and
their responsibility is to their employer first.
Numerous victims have complained that crimes they
report are not properly investigated both because the
cruise ships worry about public relations issues if
the crimes are reported and because of potential civil
liability issues. Furthermore, many of the crimes are
alleged against members of the crew placing company
security guards in a conflicted position.
As a result, evidence is not properly collected,
maintained, or reported. Airplanes with several
hundred passengers have air marshals on board, yet
cruise ships carrying thousands of passengers have no
public security presence.
In addition, California has passed numerous
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environmental laws regulating dumping of wastewater,
bilge water, sewage, and garbage within California
waters. In addition we have laws regulating trash
incineration. We have no way of knowing whether the
cruise ships are complying. The Ocean Rangers will
work both on public safety and environmental
compliance.
2. Crimes on the High Seas
The degree to which crimes committed on cruise ships constitute
a public safety concern is a hotly contested issue. The cruise
industry maintains that crime rates on cruise ships are lower
than in the average American community. Critics, however, say
this claim is deceptive because the cruise lines underreport
crimes on board and that, in some instances, they have actually
tried to cover-up crimes that were reported to them by
passengers including very serious crimes.
Laurie Dishman, a 36-year-old food service manager from
Sacramento, is one of many passengers who have come forward with
stories of horrifying experiences on cruise ships. Ms. Dishman
testified before Congress last year concerning a trip she took
aboard the Royal Caribbean ship Vision of the Seas on Feb. 21,
2006. Ms. Dishman alleges that a ship security guard forced his
way into her room and raped her. She stated that when she
reported the crime to the ship's crew she was handed a trash bag
and told to collect her own evidence, including giving herself a
"rape kit" examination. "The purser immediately said to me,
'Maybe you need to control your drinking,''' Dishman said. "They
wanted a written statement from me before I could see the doctor.
It was like being victimized again.'' (San Francisco Chronicle,
April 1, 2007,
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/04/01/MNG4DO
V80Q21.DTL&hw=cruise+rape&sn=001&sc=1000 .)
According to information provided by the US House of
Representatives, Committee on Transportation and Infrastructure,
there are approximately 200 ocean-going cruise ships world-wide,
each of which carries an average of 2,000 passengers and 950
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crew members. With the exception of two ships operating in
Hawaii, all of the cruise ships that call on U.S. ports are
registered in foreign countries. These foreign-flagged vessels
are subject to the laws of the countries in which they are
registered and international treaties, primarily the
International Convention on Safety of Life at Sea (SOLAS).
These foreign-flagged ships are subject to U.S. laws only when
they are within the 12-mile territorial waters of the U.S. or as
specific conditions are imposed on such vessels as a
prerequisite to their entry into a U.S. port.
Under the Code of Federal Regulations, cruise ship operators are
required to report crimes to U.S. authorities that occur within
the 12-mile limit (33 C.F.R. 120.220) but currently they are not
required to report crimes that occur outside the 12-mile limit.
The Coast Guard, however, is considering adopting regulations
that would require such reporting by cruise ships that enter or
depart a U.S. port.
On April 1, 2007, the Cruise Lines International Association
(CLIA), the Federal Bureau of Investigation (FBI), and the
United States Coast Guard entered into a voluntary agreement to
define the processes that will govern the reporting by cruise
lines to the FBI and the Coast Guard of crimes over which the
U.S. Special Maritime and Territorial Jurisdiction may apply.
In response to claims such as those of Laurie Dishman, Congress
has held hearings and legislation is forthcoming in Washington
to address the issue. On September 21, 2007, the Los Angeles
Times reported that, "[a] day after a congressional subcommittee
held a hearing to scrutinize safety on the high seas, Sen. John
Kerry (D-Mass.) announced plans Thursday to sponsor legislation
that would force cruise lines to report crimes and develop
better methods of collecting crime scene evidence. Rep. Doris
Matsui (D-Sacramento) will sponsor similar legislation in the
House. "We need clear rules for all cruise ships so that we can
improve security for the millions of Americans each year who
take cruises," Kerry said. "Voluntary steps are not enough."
( http://travel.latimes.com/articles/la-trw-bill-targets-cruise-li
nes-on-crime-issue21sep07 .) Representative Matsui's office has
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advised Committee staff that the Matsui bill and its counterpart
in the Senate, to be authored by Senator Kerry, will be
introduced shortly.
The cruise line industry responds by citing statistics that they
assert show the number of crimes committed on board their ships
is lower than your average American community. However, some
maritime law experts say there is more to the story. J Michael
Crye, president of the International Council of Cruise Lines, a
trade association for the cruise industry, testified before
Congress last year:
. . . Mr. Crye cited the following statistics: the
national rate of violent crimes is about 465.5 per
100,000 inhabitants, while the Federal Bureau of
Investigation reports an average of only 50 crimes a
year against U.S. citizens on cruises. According to
the Bureau of Justice, 1 in every 1,000 people is
raped or sexually assaulted on land each year; on
cruise ships, there is only one alleged incident of
sexual assault for every 100,000 passengers.
While legal experts don't necessarily dispute these
statistics, they say that a closer look at the numbers
suggests a deeper problem. For example, if a serious
crime is committed at sea against an American citizen,
the ship's security staff is supposed to report it to
the F.B.I. But there are at least two exemptions:
crimes against noncitizens are not included, and it is
largely left up to the ship's security officers as to
what constitutes a "serious" crime. Similarly, the
statistics on assault and rape may be artificially
low, according to legal experts. Many passengers are
unwilling to report an assault because of the
humiliating nature of the crime, and because they are
uncertain of their legal status at sea.
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"The cruise lines go out of their way to hide crime
statistics," said Alexander Anolik, a lawyer, based in
San Francisco, specializing in travel law. "They try
to minimize their statistics and minimize their
failures." Mr. Anolik says that in their efforts to
make cruises appear safer, ships try to "handle"
crimes internally. "But the reports that are taken by
a ship's security officers are not always reported to
the F.B.I.," he said. "So we don't have an accurate
idea of how safe a cruise is." (Mr. Crye of the
International Council of Cruise Lines denied that the
industry conceals crime statistics, saying it has
pledged "full reporting of any crime to the
appropriate authorities.")
(New York Times, February 26, 2006,
( http://travel2.nytimes.com/2006/02/26/travel/26crime.html?adxnnl
=1&pagewanted=print&adxnnlx=1206551180-e69VwVgQ7yZPGhxYKSdcGw )
When a crime is reported, the U.S. may assert criminal
jurisdiction for certain crimes against U.S. citizens, in
certain circumstances, under what is known as the Special
Maritime and Territorial Jurisdiction. (18 U.S.C. 7.) The
somewhat murky subject of jurisdiction over crimes committed at
sea is not, however, strictly at issue with respect to SB 1582,
however, because the bill does not attempt to assert such
jurisdiction. Rather, the approach taken by the bill is that
those ships doing business in California would be required to
enter into a Memorandum of Understanding with the California
Department of Justice whereby the cruise ship operators would
agree to allow a specially trained investigator of DOJ on board
each ship to oversee the operator's investigation of crimes on
board and compliance with environmental laws. With respect to
the duties of this "ocean ranger" in relation to crimes alleged
to have occurred on board ships, the bills simply states that
the ranger would "assist passengers and crew, as needed, with
reporting and investigating crimes occurring on board while in
the marine waters of the state."
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ARE CRIMES ABOARD CRUISE SHIPS BEING PROPERLY REPORTED?
WOULD THE PRESENCE OF A DOJ INVESTIGATOR ABOARD CRUISE SHIPS BE
AN EFFECTIVE RESPONSE TO CRIMES COMMITTED ON THESE SHIPS?
3. Unlawful Wastewater Disposal: The Cruise Line Industry's
Record
The following are a few examples of legal actions taken against
cruise line operators for illegal discharges of wastewater - the
list is not exhaustive: On November 16, 2006, the State of
Washington fined Celebrity Cruises, Inc., $100,000 for dumping
more than 500,000 gallons of untreated wastewater into Puget
Sound and the Strait of Juan de Fuca. (Seattle
Post-Intelligencer, November 17, 2006.) "The release of
pollution occurred despite a 2004 agreement banning the dumping
of waste in Washington waters unless it's been cleaned with a
special treatment system. . . . Celebrity Cruises told the
Ecology Department in December 2005 that it had not released any
untreated waste in Washington waters that year. But in a
September inspection of the ship, department investigators
reviewing the Mercury's wastewater discharge records discovered
that wasn't true. "Our old salts knew their stuff," said
Ecology spokesman Larry Altose. "That's what led to it. . . .
The 2004 voluntary agreement to not dump wastewater came after
the discharge of 40 tons of raw sewage by a Norwegian Cruise
Lines ship near Port Townsend in the Strait of Juan de Fuca.
Norwegian wasn't fined over that incident, but it led to the
pact between the Ecology Department, the NorthWest Cruise Ship
Association and the Port of Seattle."
( http://seattlepi.nwsource.com/local/292739_cruisefine17.html )
In relation to another incident of wastewater discharge in 2002,
cruise line company Holland America Line pled guilty to federal
criminal charges:
One of the largest tourism companies in Alaska has
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agreed to plead guilty to federal criminal charges
resulting from an illegal discharge of some 20,000
gallons of sewage in downtown Juneau by its cruise
ship Ryndam in August 2002.
The case against Holland America Line marks the first
time a cruise ship company has been prosecuted under a
2000 federal law that prohibits dumping of untreated
waste in Alaska waters by vessels with more than 500
passengers, said Assistant U.S. Attorney Kevin Feldis,
who handled the government's case. The law was
sponsored by then-U.S. Sen. Frank Murkowski, R-Alaska,
after a series of high-profile cruise ship pollution
incidents in Alaska in the 1990s drew national
attention to the lack of regulation of the burgeoning
industry.
Seattle-based Holland America will pay a fine of
$200,000 to the federal government and $65,000 to the
state, according to a plea agreement unveiled Tuesday.
The company will also contribute $500,000 to the
National Forest Foundation for environmental work in
Southeast and spend $1.3 million to develop an
environmental compliance plan.
The company will be on probation for three years.
When the 2002 discharge took place, Holland America
was still on probation for a 1994 felony dumping of
oily bilge water off Juneau in which the company paid
$2 million in fines and restitution.
(Anchorage Daily News, December 8, 2004,
http://dwb.adn.com/front/v-printer/story/5886893p-5799055c.html .)
In July of 1999, yet another major cruise line company, Royal
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Caribbean Cruises Ltd., pled guilty to federal charges related
to wastewater discharges:
Royal Caribbean Cruises Ltd., one of the world's
largest passenger cruise lines, has agreed to pay a
record $18 million criminal fine and has agreed to a
21 federal felony count plea agreement for dumping
waste oil and hazardous chemicals and lying to the
U.S. Coast Guard, the Justice Department announced.
In a plea agreement, filed in U.S. District Court in
six cities, Royal Caribbean admitted that it routinely
dumped waste oil from its fleet of cruise ships, such
as the environmentally sensitive Inside Passage of
Alaska. It also pleaded guilty to the unprecedented
charge that it deliberately dumped into U.S. harbors
and coastal areas many other types of pollutants,
including hazardous chemicals from photo processing
equipment, dry cleaning shops and printing presses.
The $18 million fine is the largest ever to be paid by
a cruise line in connection with polluting U.S.
waters.
The plea agreements are being filed in cities in areas
where Royal Caribbean violated federal environmental
laws: Miami; New York City; Los Angeles; Anchorage;
St. Thomas, U.S. Virgin Islands; and, San Juan, Puerto
Rico.
"Royal Caribbean used our nation's waters as its
dumping ground, even as it promoted itself as an
environmentally 'green' company," said Attorney
General Janet Reno. "This case will sound like a
foghorn throughout the entire maritime industry."
Under the terms of the plea agreement, the cruise ship
operator will also plead guilty to deliberately
storing waste from its ships at a Port of Miami pier
without a permit, violating federal hazardous waste
law. Some hazardous materials, including toxic
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solvents from dry cleaning operations, were illegally
placed in the garbage aboard the ships. The material
was then either incinerated on the ship or dumped in
U.S. or foreign ports mixed with ordinary garbage.
The 21 new charges follow a guilty plea by Royal
Caribbean in June 1998 for similar environmental
crimes in Miami and San Juan. The 1998 pleas -- which
resulted in a $9 million criminal fine -- involved
charges that the company engaged in a fleet-wide
conspiracy to dump oil into U.S. coastal waters and
lied to the U.S. Coast Guard to cover up the crime by
falsifying oil logs required by law. Two Royal
Caribbean engineers under federal indictment in San
Juan remain fugitives. If today's pleas are approved
by the six courts, the total amount of fines paid will
total $27 million.
(U.S. Environmental Protection Agency, July 21, 1999,
http://yosemite.epa.gov/opa/admpress.nsf/34cef4854b892b8b852
5645a004de9a4/d4cf84427956628e852567b50070ccaf!OpenDocument .
)
In addition to assisting passengers and crew with reporting
crimes, SB 1582 proposes that the "ocean ranger" would monitor
compliance with both state and federal wastewater disposal laws.
WOULD THE PRESENCE OF A SPECIALLY TRAINED DOJ INVESTIGATOR ON
BOARD AN OCEAN LINER HELP PREVENT UNLAWFUL WASTEWATER
DISCHARGES?
4. Some Practical Questions
What authority the DOJ investigator would have in relation to
the ship's own security personnel is unclear. Under the
provisions of SB 1582, the duties of the ocean ranger would
include, "assist[ing] the passengers and crew, as needed, with
reporting and investigating crimes occurring onboard while in
the marine waters of the state." One of the problems described
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by victims, such as Laurie Dishman, is preserving the evidence
of a crime. Would one DOJ investigator on a ship carrying
2,000-3,000 passengers and 950 crew members be able to preserve
a crime scene and collect and preserve evidence? Would
passengers be notified that the agent was on board? If so,
would the DOJ investigator become the defacto "go-to" person
regarding on-board disputes and would the passengers expect the
agent to investigate their claims involving petty thefts,
alcohol-related fights, underage drinking, or other relatively
minor crimes? The ocean ranger, as described by the bill, is
required to be a POST-certified peace officer as well as a
marine engineer licensed by the United States Coast Guard and
certified to perform environmental monitoring, and would be
required to complete a specific training course specially
developed by POST for this position. What is the availability
of such highly trained agents?
The overall cost of the ocean ranger program is unclear but
would include developing the POST training course, recruiting
and training officers as well as the costs of room and board on
the ship. Would the funding mechanism proposed by the bill, a
$1.00 per passenger per-day-on-board fee be sufficient to fund
the program? The bill states that DOJ is directed to "revise
the fee from time to time to ensure that the fee is sufficient
to generate sufficient revenues only to cover the costs of
implementing this chapter, plus a prudent reserve." Could the
cost of supporting this program at some point encourage cruise
ship operators to reduce the number of ships operating out of
California ports? If so, what effect might this have on the
economy in port cities?
ARE THERE PRACTICAL OBSTACLES TO IMPLEMENTATION OF THE OCEAN
RANGER PROGRAM?
5. Arguments in Support
The California Coastkeeper Alliance states:
More cruise ships are calling upon California ports of
call every year. The cruise ship fleet is increasing
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in size and carrying capacity, and producing
increasing volumes of solid and liquid waste.
Improperly treated wastes released into the
environment can significantly impact California's
aquatic ecosystems and the people and industries that
depend on them. The cruise industry has received
numerous felony convictions and fines for dumping
wastes into public waters and has a poor record of
self-policing environmental practices. Despite
increased public awareness, the industry has
demonstrated a continued willingness to circumvent
prudent environmental practices to increase profits.
California's existing zero-discharge law for cruise
ship discharges does not provide independent oversight
of the industry or verification of the zero-discharge
requirement.
The Ocean Rangers, as employees of the State of
California, will be able to monitor environmental
compliance related to discharge of all waste streams
from cruise ships in California waters, observe
maintenance and operational procedures for onboard
waste treatment systems, and review relevant logbooks
related to environmental compliance activities.
California's coastal waters deserve no less.
The National Center for the Victims of Crime states:
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This bill will offer the passengers on cruise ships
the enhanced security that currently is available to
passengers on airlines by having an independent public
safety officer from the State of California on any
cruise line coming into or out of the state. We will
do everything we can to support your efforts to reduce
crime against cruise ship passengers and provide them
with protection while at sea.
6. Argument in Opposition
The Cruise Lines International Association (CLIA) states:
CLIA has major concerns with many aspects of this bill.
1. The bill would require an on-board enforcement officer
to enforce California and federal laws that the
industry has been meeting - there is no evidence that
the cruise lines have been violating any of these laws
in California waters since current statutes have been
in place.
2. The bill would require enforcement of federal and
state criminal statutes when, according to the FBI,
the chance of a passenger facing a major crime is less
than .01%.
3. It is in conflict with existing Federal Homeland
Security requirements and jurisdiction - states are
specifically prohibited from requiring differing
Homeland Security requirements and an untrained
California Ocean Ranger would not be authorized to
evaluate and respond to risks related to Homeland
Security.
4. It would give a marine engineer peace officer status,
and allow the engineer to carry guns - a very
dangerous situation on a ship with thousands of
passengers.
5. It appears to allow the Ocean Ranger to enforce
federal criminal laws in conflict with the
jurisdiction of the federal government under federal
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special territorial and maritime jurisdiction as
defined in 18 U.S.C. 7. In addition, the U.S. Coast
Guard and Department of Homeland Security have already
promulgated crime reporting requirements that are set
forth in Title 33 of the Code of Federal Regulations
part 120, et seq., which the U.S. Department of
Justice has interpreted to apply to crimes committed
on all voyages to or from the U.S. Additional federal
legislation has been introduced that would expand the
types of incidents to be reported to the FBI and Coast
Guard. That legislation is expected to pass Congress
in the next few months. The federal reporting ensures
consistent criminal reporting and processes no matter
which state the ship is visiting.
6. The bill does not define "waters of the state" but we
assume it is the federal 3-mile definition. However,
we understand it is the intent of the bill to allow
the Ocean Ranger to remain onboard the ship up and
down the West Coast even if the ship remains outside
of California waters, and to prohibit the ship from
berthing at a California port if the ship does not
agree to such an arrangement - the State clearly does
not have the jurisdiction or authority to mandate such
an enforcement mechanism.
7. Most of the ships that visit California are in
California waters (three miles from shore) for one
hour, dock at 5 am, and leave 8-10 hours later - a
total of 10 to 12 hours, 2-4 times per year. The ship
is then off to Europe or Hawaii or Mexico or Canada.
These ships would be treated the same as a ship that
is based in California - a definite disincentive for
cruise ships to continue to include California ports
on their transitioning itineraries.
8. The bill is based on an Alaska Initiative that
requires the use of an Ocean Ranger to monitor
environmental compliance. However, Alaska has been
granted specific federal authority for this regulation
which California has not been granted. (font
revised.)
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