BILL ANALYSIS
SB 1582
Page 1
Date of Hearing: June 24, 2008
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
SB 1582 (Simitian) - As Amended: June 19, 2008
SUMMARY : Establishes an "ocean ranger" program, as defined,
until January 1, 2015, pursuant to which the owner or operator
of a large passenger vessel would permit specified law
enforcement officers, hired or contracted for by the Attorney
General (AG), to travel on cruise ships. Specifically, this
bill :
1)Provides that the ocean ranger would be authorized to, among
other things, assist passengers and crew in reporting and
investigating crimes onboard, when requested by a passenger or
crew member while in the marine waters of California and act
as a liaison with California and the Federal Department of
Homeland Security.
2)Provides that the ocean ranger would be responsible to observe
the maintenance and operational procedures for onboard waste
treatment facilities.
3)States that the ocean ranger would also be responsible to
report incidences of criminal activities to, and coordinate
law enforcement activities with, the state and the Department
of Homeland Security.
4)Requires the California AG to negotiate, with the consent of
the United States Congress, memoranda of understanding with
specified jurisdictions, establishing terms and conditions of
access to, and egress from, large passenger vessels for the
ocean rangers from ports in those jurisdictions.
5)Provides that if an owner or operator of a large passenger
vessel denies access to that vessel by an ocean ranger
authorized to be onboard, the owner or operator is liable for
treble damages for any violation of California's water quality
laws occurring during the period that access to the vessel has
been denied.
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6)Provides to a citizen or resident of California who is a
victim of a serious crime occurring onboard a large passenger
vessel and who has embarked or disembarked in a California
port a cause of action for treble damages, subject to the
limitations of federal law.
7)Requires the Department of Justice (DOJ), beginning March 1,
2009, and biennially thereafter, to publish on its Internet
Web site a statistical analysis of crimes committed,
investigated and resolved onboard a large passenger vessel
making port in California.
8)Further requires DOJ to assess on the owner or operator of a
large passenger vessel $1.50 per passenger who embarks on a
cruise, or who ends a cruise and disembarks, at a port of call
in California. Specifies that DOJ would be required,
beginning January 1, 2011, to revise annually the fee pursuant
to a specified procedure to ensure that sufficient revenues
only to cover the cost of implementing this act, plus a
prudent reserve.
9)Requires the Department of Finance to complete a commercial
impact report for any passenger fee increase that is greater
than the cost-of-living adjustment as determined by the United
States (US) Bureau of Labor Statistics annual index and to
make a necessity determination on the amount of increase
beyond the cost-of-living adjustment.
10)Requires the State Board of Equalization to collect and
deposit the fee into the Ocean Ranger Program Fund, which
would establish in the State Treasury, and, upon appropriation
by the Legislature, the collected fee would be used for
specified purposes.
11)States that if the owner or operator of a large passenger
vessel denies access to an ocean ranger, that owner or
operator shall be liable for treble damages for any violation
of state water quality laws occurring during the period that
access has been denied.
12)Provides that, subject to the limitations of federal law, if
the owner or operator denies access to an ocean ranger, a
citizen or resident of California who is a victim of a serious
crime occurring onboard and has embarked or disembarked at a
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California port, shall have a civil cause of action in the
venue where the passenger embarked or disembarked and the
remedy for any damages shall be trebled.
13)Requires DOJ, in cooperation with the Commission on Peace
Officer Standards and Training (POST) to develop an
appropriate course of training for ocean rangers. Further
requires that DOJ develop and periodically update specified
training for, and to contract with a qualified entity to
provide training for, an ocean ranger who would conduct
environmental compliance activities. Specifies that DOJ would
be required to contract with an entity to provide personnel
qualified as ocean rangers to conduct environmental compliance
activities.
14)States that this act would be implemented in conformity with
the requirements of international and state law.
15)Provides that the above requirements would be repealed on
January 1, 2015.
16)Specifically provides that California courts may exercise
jurisdiction over acts or omissions occurring onboard large
passenger vessels, as defined, under specified circumstances.
17)Creates a special maritime criminal jurisdiction of
California that extends to acts or omissions onboard a ship
outside of California under specified circumstances. Provides
that an act or omission against the person or property of
another that is punishable by law when committed within
California shall be punishable in the same manner when
committed within the special maritime jurisdiction of
California, as specified.
18)Requires the California AG to take all measures necessary to
ensure that California law enforcement officers and
prosecutors respect certain principles in applying the
provisions of the bill.
19)Adds a new section to the Code of Civil Procedure, which
creates jurisdiction over acts or omissions occurring outside
of California onboard a large passenger vessel under any of
numerous specified circumstances, including:
a) The act or omission has a significant impact on
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California.
b) The owner or operator of a large passenger vessel has
substantial contacts with California, including, but not
limited to, having offices in California; advertising for
passengers or employees or both; embarking or disembarking
passengers in California; disposing of solid and liquid
waste in California, generated outside California.
c) The victims of crime or witnesses to criminal or civil
violations on the large passenger vessel are residents or
citizens of California or a state that consents to the
jurisdiction of California.
d) The state in whose territory the act or omission
occurred requests the exercise of jurisdiction by
California.
e) The act or omission occurred during a voyage on which
over half of the fee-paying passengers originally embarked
and finally disembarked in California, without regard to
intermediate stopovers.
20)Adds a new section to the Penal Code regarding maritime
jurisdiction, including, but not limited to, the following
findings and declarations:
a) California is a major center for international travel
and trade by sea.
b) California has an interest in ensuring the protection of
persons traveling to or from California by sea.
c) California has an interest in cooperating with the
masters of ships and the governments of the United States
and other states in the maintenance of law and order
onboard ships.
d) The interests of California do not, in principle,
require a general assertion of primary jurisdiction over
acts or omissions at sea that would duplicate or conflict
with the execution of any law enforcement responsibility of
any other jurisdiction.
e) California should establish special maritime criminal
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jurisdiction extending to acts or omissions outside of the
state under the circumstances described in this section.
f) As used in this section, the following definitions
apply:
i) "Flag state" is defined as the state under whose
laws a ship is registered.
ii) "Ship" is defined as any watercraft or other
conveyance used, capable of being used, or intended to be
used as a means of transportation on water.
iii) "State" is defined as any foreign state, the US, or
any state, territory, possession or commonwealth thereof,
or the District of Columbia.
iv) The special maritime criminal jurisdiction extends
to acts or omissions onboard a ship outside of California
under any of the following circumstances:
(1) There is a suspect onboard who is a resident
of California or of a state that consents to the
jurisdiction of California;
(2) The master of the ship or an official of the
flag state commits a suspect onboard to the custody of
a law enforcement officer acting under the authority
of California;
(3) The state in whose territory the act or
omission occurred requests the exercise of
jurisdiction of California.
(4) The act or omission occurs during a voyage
where over one-half of the revenue passengers onboard
the ship originally embarked and plan to finally
embark in California, without regard to immediate
stopovers.
(5) The victim is a California law enforcement
officer onboard the ship performing his or her
official duties.
(6) The act or omission constitutes an attempt or
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conspiracy to cause a substantial effect in California
that is an element of the offense charged.
(7) The act or omission is one over which a state
may exercise jurisdiction under international law or
treaty.
g) States that the AG shall take all measures necessary to
ensure that California law enforcement officers and
prosecutors conform their actions to specified principles
in applying the provisions of this act, including, but not
limited to, the following:
i) This section is not intended to interfere with the
criminal jurisdiction by the United States, the flag
state, or the state in whose territory an act or omission
occurs.
ii) This section shall be administered in a manner
consistent with international law, with the primary
responsibility of the flag state for the maintenance of
order onboard ship, and with the responsibilities of the
Federal Government under the Constitution, treaties, and
laws of the United States.
iii) This section shall be applied with the cooperation
of the flag state and the master of the ship where
feasible.
h) States that this section does not, among other things,
constitute an assertion of jurisdiction over acts or
omissions of military or law enforcement officers
authorized by a state in accordance with international
laws.
21)Defines "ocean ranger" as either of the following:
a) An investigator serving as an ocean ranger, as
specified, or a peace officer of a public law enforcement
agency in California if DOJ has entered into a contract
with the public law enforcement agency for the provision of
this personnel; or,
b) An environmental marine ranger provided by an entity
pursuant to a contract with DOJ:
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i) States that the contract shall require the
contracting entity to reimburse the operator of a vessel
the room and board of an ocean ranger assigned to the
vessel;
ii) Provides that calculations for the ocean ranger's
room and board shall be based on providing a single,
inside room on the vessel at the lowest price category.
22)Specifies that for the training of the environmental marine
ocean ranger for work on a large vessel, DOJ shall contract
with a training facility that provides a course established
subsequent to 2006 and updated annually. Provides that the
training shall include at a minimum:
a) Applicable international, federal, state and local
environmental laws and regulations;
b) Records and sampling of all regulated waste streams and
discharges.
c) Reporting requirements.
d) Spill and environmental response plans.
e) Prohibited activities.
f) Shipboard security plans.
g) Any other subjects DOJ deems appropriate.
23)Requires the AG to negotiate a Memorandum of Understanding
(MOU), with the consent of the United States Congress, with
appropriate state, national, provincial authorities from
Alaska, Washington, Hawaii, and, as applicable under
international and federal law, Canada and Baja California.
States that the MOU shall require the ocean ranger or
equivalent law and marine enforcement personnel to board the
large passenger vessel at the last port of call made by the
vessel before the vessel enters into the marine waters of
California.
24)Provides that to the extent practicable, the AG shall pursue
the goal of having the ocean rangers cross-deputized with the
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US Coast Guard, the Federal Bureau of Investigation (FBI), and
International law enforcement agencies.
25)Provides that not later than January 1, 2010, the AG shall
place ocean ranger onboard large passenger vessels as soon as
practicable considering the requirements of this chapter.
26)Provides that if there is no MOU with the applicable
jurisdiction before January 1, 2010, an ocean ranger shall be
placed on the vessel three months after a MOU has been entered
into between the AG and the applicable jurisdiction, and
sufficient funds are available to place an ocean ranger
onboard.
27)Provides that all ocean rangers hired or contracted for by
the AG and all program costs shall be funded through the fees
raised pursuant to this chapter and shall not be taken from
existing funds utilized by police agencies. Further provides
that no existing law enforcement personnel shall be diverted
for the implementation of this chapter, except as specified.
28)Provides for a civil cause of action to a citizen or resident
of California who is a victim of a serious crime on a vessel
to which an ocean ranger has been denied access. Further
specifies that the remedy for any damages shall be trebled.
29)Specifies procedures for the disembarkment of an ocean ranger
on a vessel embarking from California and not returning to
this state for seven days.
30)Provides that DOJ shall have sole responsibility for
notifying large passenger vessel operators and the local
government entities that regulate California ports of the
vessel owner or operator's compliance or noncompliance with
this chapter and the status of the MOU.
EXISTING LAW :
1)Defines "special maritime and territorial jurisdiction of the
United States" as including the high seas and any other waters
within the admiralty and maritime jurisdiction of the US and
outside of the jurisdiction of any particular state, as
specified. [18 U.S.C. Section 7(1).]
2)Declares that the judicial power of the US extends to "all
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cases of admiralty and maritime jurisdiction." (US
Constitution Article III, Section 2.)
3)States that the President "shall have the Power, by and with
the Advice and Consent of the Senate, to make Treaties,
provided that two-thirds of the Senators present concur. (US
Constitution, Article II, section 2.) A treaty is a legally
binding agreement between one or more countries. In the US,
treaties are negotiated by the President but must be ratified
by the Senate. (Stephens and Scheb, American Constitutional
Law, Volume II, 4th Edition 2008.)
4)Provides under the Supremacy Clause of the US Constitution
that "this constitution, and the laws of the United States
which shall be made in pursuance thereof, and all Treaties
made, or which shall be made, under the authority of the US,
shall be the supreme law of the land." (US Constitution,
Article VI, Section 2.)
5)Federal case law has held that "it is indisputable that a
valid treaty overrides any conflicting state law, even on
matters otherwise within state control." [Tribe, American
Constitutional Law, Third Edition, Volume One, citing Ware v.
Hylton, 3 U.S. 199 (1796).]
6)Provides that "power over external affairs is not shared by
the States; it is vested in the national government only."
[U.S. v. Pink, 315 U.S. 203 233 (1942); Tribe, American
Constitutional Law, Third Edition, Volume One, page 656.]
7)States that no state shall enter into any treaty or, without
congressional consent, "lay any imposts or duties on imports
or exports" or "enter into any Agreement or compact with a
foreign power." These are just a few manifestations of a
general constitutional principle that, whatever the division
of foreign policy responsibility within the national
government, all such responsibility is ultimately reposed at
the national level rather than dispersed among the States and
localities. (US Constitution Article I, Section 10; Tribe,
American Constitutional Law, Third Edition, Volume One, p.
656.)
8)Provides that all state action, whether or not consistent with
current federal foreign policy, that distorts the allocation
of responsibility to the national government for the conduct
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of American diplomacy is void as an unconstitutional
infringement upon an exclusively federal sphere of
responsibility. (Tribe, American Constitutional Law, Third
Edition, Volume One, p. 656.)
9)Extends the federal judicial power to all cases of admiralty
and maritime jurisdiction to the federal courts; case law has
held that the grant of admiralty jurisdiction to the federal
courts is based on the need for uniformity. [The Genessee
Chief, 53 U.S. 12 (1852).]
10)States that all duties, imposts and excises shall be uniform
throughout the US; that Congress shall have the power to
regulate commerce with foreign nations; to define and punish
piracies and felonies committed on the high seas. (US
Constitution Article 1, Section 8.)
11)Provides in the Commerce Clause that Congress has the
exclusive authority to manage commerce between the states,
with foreign nations, and Indian tribes. (US Constitution
Article 1, Section 8, Clause 3.)
12)Provides in the Compact Clause of the US Constitution that no
state shall, without the consent of Congress, enter into any
Agreement or Compact with another state or with a foreign
power. (US Constitution Article 1, Section 10.)
13)Statutorily defines "special maritime and territorial
jurisdiction of the US" as including, but not limited to (18
U.S.C. Section 7):
a) The high seas, any other waters within the admiralty and
maritime jurisdiction of the US and out of the jurisdiction
of any particular state, and any vessel belonging in whole
or in part to the US or any citizen thereof, or to any
corporation created by or under the laws of the US or any
state when such vessel is within the admiralty and maritime
jurisdiction of the US and out of the jurisdiction of any
particular state.
b) Any place outside the jurisdiction of any nation with
respect to an offense by or against a national of the US.
c) To the extent permissible by international law, any
foreign vessel during a voyage having a scheduled departure
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from or arrival in the US with respect to an offense
committed by or against a national of the US.
14)Defines "long-arm jurisdiction" as a statutory grant of
jurisdiction to local courts over foreign defendants; the
authority of a court to exercise long arm jurisdiction is
based upon some action of the defendant which subjects him or
her to the jurisdiction of the court. In California, such
jurisdiction is authorized by the Code of Civil Procedure,
which states, "A court of this state may exercise jurisdiction
on any basis not inconsistent with the Constitution of this
state or of the United States." (Code of Civil Procedure
Section 410.10.) Case law has established that a court must
weigh the interstate judicial system's interest in obtaining
efficient resolution of controversies against the federal
interest in government's foreign relations policies. Courts
should be unwilling to impose the serious burdens on an alien
defendant outweighed by minimal interests of the plaintiff or
the forum state. [See F. Hoffman-LaRoche, Inc. v. Superior
Court, (2005) 130 Cal. App. 4th 782.]
15)Provides that "no taxes, tolls, operating charges, fees, or
any other impositions whatever shall be levied upon or
collected from any vessel or other water craft, or from its
passengers or crew, by any non-Federal interest, if the vessel
or water craft is operating on any navigable waters subject to
the authority of the United States, or under the right to
freedom of navigation on those waters, except for: reasonable
fees charged on a fair and equitable basis that are used
solely to pay the cost of a service to the vessel or water
craft; enhance the safety and efficiency of interstate and
foreign commerce; and, do not impose more than a small burden
on interstate or foreign commerce. [33 U.S.C. Section 5(b).]
16)Provides, in the US Constitution, that no state shall,
without the consent of Congress, lay any duty of tonnage.
(Article I, Section 10, Clause 3.) Case law has held that
such duties constitute a burden on interstate commerce that is
forbidden by the commerce clause. [Clyde Mallory Lines v.
Alabama, 296 U.S. 261 (1935).] Such fees are only permissible
if the tax or toll is based on some fair apportionment of use
or privilege for use and is neither discriminatory against
interstate commerce nor excessive in comparison with the
governmental benefit conferred. [Evansville-Vanderburgh
Airport Authority District v. Delta Airlines, 405 U.S. 707
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(1972).]
17)Provides that taxation of instrumentalities of foreign
commerce requires additional considerations: the enhanced
risk of multiple taxation and the potential for impairing
"federal uniformity in an area where federal uniformity is
essential." [Japan Line, Ltd v. County of Los Angeles, 441
U.S. 434 (1979).] The court stressed the need to act with a
single government and speak with one voice when foreign trade
is concerned.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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 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)Background : According to an article published in All Headline
News.com, "A senior official in the FBI tells Congress that
over 70 percent of crimes committed against Americans in
international waters occur aboard a cruise ship. Furthermore,
in those cases, 46 percent of the suspects are believed to be
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employees of the cruise liners themselves."
The article quoted Salvador Hernandez, Deputy Assistant Director
of the FBI, as stating "However, it is important to note that
when an incident occurs outside the territorial waters of the
U.S., there are numerous other factors that come into play in
determining the FBI's role and ability to investigate. In
addition to the laws of the U.S., the laws of other sovereign
nations, and international law will determine our legal
authority to respond to and/or investigate the crime. The FBI
has posted a number of senior-level agents in 60 Legal Attach?
offices and 13 sub-offices throughout the world. Through
established liaison with principal law enforcement services in
designated foreign countries, the FBI's offices are able to
pursue investigative activities where permissible."
()
3)Comment : This bill proposes a very complicated and stringent
law that poses many fundamental, constitutional, legal, and
practical problems. Placing California ocean rangers on
foreign-flagged ships operating on a limited basis in
California territorial waters, and primarily in international
waters is contraindicated by federal law, which preempts state
action where the Federal Government has indicated its intent
to occupy the field. This bill requires California state
government officials to negotiate agreements with foreign
nations, which is a power vested solely with the US President
under the US Constitution. In reviewing this bill, it is
necessary to pay particular attention and accord appropriate
deference to the US Constitution, to which all laws and
regulations are subject. The various constitutional issues
are discussed in detail below.
4)Security of Passenger Vessels : Federal law requires passenger
vessels to develop and maintain an appropriate Vessel Security
Plan that [33 C.F.R. Section 120.300(a)]:
a) Is unique to the vessel.
b) Articulates the program required by federal regulations,
as specified.
c) Includes an appendix for each port where the vessel
embarks or disembarks passengers, that contains
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port-specific security information.
d) Must establish security measures to take for specified
security levels to:
i) Deter unauthorized access to the vessel and its
restricted areas;
ii) Deter the introduction of prohibited weapons,
incendiaries, or explosives on the vessel;
iii) Encourage vigilance, as well as general awareness of
security aboard the vessel;
iv) Provide adequate training to members of the crew for
security aboard the vessel;
v) Coordinate responsibilities for security with the
operator of each terminal where the vessel embarks or
disembarks passengers; and,
vi) Provide information to members of the crew and to
law enforcement personnel, in case of an incident
affecting security.
e) The Vessel Security Plan must be amended to address any
known deficiencies.
f) Provides that the vessel security plan's distribution,
disclosure and availability of information must be
restricted to those persons with an operational need to
know.
5)Reporting of Unlawful Acts : Federal law provides that either
an affected passenger or the vessel security officer must
report each breach of security or specified unlawful act that
occurs in a place subject to the jurisdiction of the US.
Federal law states that if the vessel is a US flag vessel,
each incident that occurs outside the jurisdiction of the US
must be reported to the hotline of the Response Center of the
US Department of Transportation at a specified 1-800 number.
Federal law specifies that a written report must be filed on
each incident with the US Coast Guard at a stated address and
telephone number, and further specifies that the report may be
initially faxed to a specified fax number of the Coast Guard.
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[33 C.F.R. Section 120.220(a)(b).]
6)Definition of "Unlawful Act" : Federal law regulating cruise
ships defines an "unlawful act" as an act that is a felony
under US federal law, under the laws of the states where the
vessel is located, or under the laws of the country in which
the vessel is registered. (33 C.F.R. Section 120.110.)
7)Regulatory Responsibilities of the Vessel Security Officer :
Federal law and regulation require that each passenger vessel
have an appropriate security force onboard. The vessel
security officer must ensure that (33 C.F.R. 120.210):
a) An initial comprehensive security survey is conducted
and updated;
b) The Vessel Security Plan is implemented and maintained,
and amendments to correct its deficiencies and satisfy the
security requirements for the vessel are proposed;
c) Adequate training for members of the crew responsible
for security is provided;
d) Regular security inspections of the vessel are
conducted;
e) Vigilance is encouraged, as well as is general awareness
of security aboard the vessel;
f) All occurrences or suspected occurrences of unlawful
acts and related activities are reported, as specified;
and,
g) Coordination for implementation of the Vessel Security
Plan takes place with the terminal security officer at each
terminal where thee vessel embarks or disembarks
passengers.
8)Territorial Sea : Federal law states that " territorial sea " is
defined as the waters 12 nautical miles wide, adjacent to the
coast of the US and seaward of the territorial sea baseline
for specified legal matters and three nautical miles for all
matters not subject to the 12-mile regulation. The first
three items are subject to the 12-mile rule; subparagraph (d)
explains the three-mile rule. [33 C.F.R. Section 2.22(a).]
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a) Purposes of criminal jurisdiction pursuant to Title 18,
United States Code.
b) The special maritime and territorial jurisdiction as
defined in 18 U.S.C. Section 7.
c) Interpreting international law.
d) Provides that unless otherwise specified, territorial
sea means the waters, three nautical miles wide, adjacent
to the coast of the US and seaward of the territorial sea
baseline.
9)High Seas : Federal law provides that for purposes of the
special maritime and territorial jurisdiction of the US, as
defined in 18 U.S.C. Section 7, "high seas" is defined as all
waters seaward of the territorial sea baseline. [33 C.F.R.
Section 2.32(a).]
10)Cross-Designation of federal, state, and local law
enforcement officers : The U.S. Immigration and Customs
Enforcement (ICE) is the largest investigative agency within
the Department of Homeland Security, and is authorized to
cross-designate other federal, state and law enforcement
officers to investigate and enforce customs laws. (19 U.S.C.
Section 1401.) Customs cross-designation authority can also
be extended to foreign law enforcement partners for cases that
cross international boundaries. This authority enhances ICE's
ability to work more closely with these counterparts,
fostering secure relationships and cooperation between the US
and other countries.
Federal, state, local and foreign officers who wish to be
cross-designated must receive Title 19 customs officer
authority to supplement the ICE investigative mission and
participate on task forces throughout the US and abroad.
After receiving standardized ICE training, each
cross-designated customs officer has the authority to enforce
U.S. customs laws and to perform the duties of ICE special
agents as granted by the ICE special agent in charge.
Designation status is valid for two years, after which they
must receive recertification training. As of January 31,
2008, ICE had cross-designated 300 law enforcement officers
with Title 19 authority. (ICE Fact Sheet, Customs Cross
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Designation, January 31, 2008.)
ICE also conducts joint maritime operations with Canada under
its "Shiprider" initiative. The Shiprider initiative is
described as a cooperative, joint policing model that allows
the US and Canada to cross-designate law enforcement officers
so that they can operate together on the vessels of the other
country, closing an important jurisdictional gap in maritime
law enforcement in the Great Lakes. Several exercises have
reportedly already taken place and regulatory changes are
underway to allow the program to function on a full-time
basis.
A federal district court has held that Congress has empowered
the AG of the US to cross-designate the Border Patrol as Drug
Enforcement Authority (DEA) officers. This holding was issued
on reconsideration; the court had first held that no such
authority existed. On reconsideration, the court stated that
certain Border Patrol agents have been accorded limited Title
21 enforcement powers. In support of this holding, the court
cited 21 U.S.C. Section 871(a), in which Congress permits the
delegation of any of the AG's functions to any officer or
employee of DOJ. [U.S v. Perkins, 177 F. Supp.2d 570 (Western
Dist. Of Texas, 2001).] Note this is an approval of
cross-designation of employees who work for the same federal
agency.
This bill requires the California AG to pursue the goal of
having the ocean rangers cross-deputized with the US Coast
Guard; the FBI; and other state, federal and international law
enforcement agencies. This bill does not address the costs
associated with obtaining the training necessary for a
California peace officer to obtain cross-designation as, for
example, an FBI agent. FBI agents are trained in an intensive
on-site training course in Virginia that lasts several months.
The ICE cross-designation requires standardized ICE training
and re-certification every two years. Is it the intent of
this bill that the fee imposed on cruise ship passengers will
be sufficient to include the costs of this extensive training?
In addition to the costs, the time commitment required of local
law enforcement officers seeking cross-designation is an
additional factor that must be considered in determining the
likelihood that many local law enforcement officers will be
funded to take the requisite federal training. This bill does
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provide that all program costs resulting from the
implementation of the ocean ranger program shall be funded
through fees raised (through the surcharge levied on
passengers) and shall not be taken from existing funds
utilized by police agencies. This bill further specifies that
no existing law enforcement personnel shall be diverted absent
additional funding to pay the costs of the diversion.
11)MOU : This bill, as amended, also requires that the US
Congress approve all MOUs negotiated pursuant to this bill.
It is not clear what process would be utilized to obtain this
congressional approval of numerous MOUs. As indicated in the
discussion of the Shiprider initiative, regulatory changes on
the federal level were required to allow this program to
continue to function on a full-time basis. In reviewing other
MOUs reviewed and approved by the US Congress, it appears that
such approval is obtained through the introduction, policy
analyses, committee hearings and votes associated with any
House or Senate resolutions. This is a lengthy process that
will require a significant time commitment. Additionally, it
should be noted that Congress retains, and apparently
frequently exercises, the power to change the introduced
measure, sometimes in significant ways.
12)The Supremacy Clause : The Supremacy Clause states, "This
Constitution, and the laws of the United States which shall be
made in pursuance thereof; and all treaties made, or which
shall be made, under the authority of the United States, shall
be the supreme law of the land, and the Judges in every state
shall be bound thereby, any thing in the Constitution or laws
of any state to the contrary notwithstanding." (US
Constitution Article VI, clause 2.) "The United States
Supreme Court has observed that 'the States under our federal
system have the principal responsibility for defining and
prosecuting crimes,' citing Abbate v. United States, (1959)
359 U.S. 187. Nonetheless, if federal law has preempted state
law, either expressly or impliedly, the Supremacy Clause
requires state law to yield." [State of Florida v. Stepansky,
2000 Fla. LEXIS 769 (2000); cert. denied 2000 U.S. LEXIS 7081
(2000).]
"Federal courts have recognized that a criminal act having a
similar adverse effect on the United States will justify the
exercise of federal jurisdiction over crimes on cruise ships
that would otherwise go un-prosecuted. In (cited cases) the
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federal courts found a significant effect on the United States
because the cruise lines conducted substantial business in the
United States, the cruises began and ended in the United
States, and federal law enforcement agent were required to
become involved in the prosecution. Similarly in this case,
the Legislature has determined that the State of Florida is a
'major center for international travel and trade by sea and
that the state has an interest in ensuring the protection of
persons affected if crimes that occur on board cruise ships
where a majority of the fare-paying passengers embark and
disembark in Florida were to go un-prosecuted. We emphasize
that pursuant to this statute the State exercises limited
jurisdiction by operating only where the crime has not been
prosecuted by any other government entity, including the
federal government or the foreign country in which the ship is
registered." (Stepansky, supra, at p. 1036.)
The court concluded that because neither the United States nor
any other state, nor the flag state has attempted to prosecute
these crimes, Florida may prosecute Stepansky in accordance
with Florida's narrowly drawn statutory scheme. The statute
in question is of limited scope and takes effect only when
neither the flag state nor the United States government acts
in a particular case. (Id.) The Florida court emphasized the
limited nature of the Florida statute. The statute in
question states that the AG must take all precautions to
ensure that law enforcement and prosecutors do not assert
priority or otherwise interfere with the exercise of criminal
jurisdiction by the US, the flag state, or any state whose
territory an act occurred; the AG must recognize the priority
of international law, with the primary responsibility of the
flag state to maintain order on board, and of the US
government under federal law and international treaties.
The Florida statute also states that it does not authorize a
boarding, search or detention without the consent of the flag
state if the ship is outside Florida. The Florida statute,
unlike this bill, does not authorize a law enforcement officer
to travel with a foreign ship beyond Florida's waters and/or
assert primary criminal law enforcement jurisdiction and
travel on all ships in state waters before an incident even
arises. The Florida statute was upheld specifically because
of its limited reach designed to avoid encroachment on federal
powers and international affairs. The Florida statute was
designed to assure that the exercise of criminal jurisdiction
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by Florida does not interfere with federal jurisdiction.
Thus, Florida state courts have determined that Florida may
exercise concurrent jurisdiction in the limited instances in
which neither the Federal Government nor the flag ship nation
have taken action to prosecute the offense. Although
interesting, holdings of Florida state courts have little
precedential value in California, particularly when the facts
involved are so different.
Similarly, in cases of crimes committed by US citizens in
foreign waters, the US may define and punish such crimes where
the local sovereign has not asserted its jurisdiction. In the
absence of any controlling treaty provision, and any assertion
of jurisdiction by the territorial sovereign, it is the duty
of the courts of the US to apply to offenses committed by its
citizens on vessels flying its flag, its own statutes,
interpreted in the light of recognized principles of
international law." [U.S. v. Reagan, 453 F. 2d 165 (6th
Circuit 1971), citing U.S. v. Rodgers, 150 U.S. 249.] Note
this 9th Circuit case does not give individual states
jurisdiction, but addresses the conflict between the Federal
Government and the foreign nation under whose flag the ship is
sailing.
These cases make it clear that conflicts between the provisions
of this bill are likely to pose problems with other states,
the Federal Government, and the laws of the nations under
whose flags international ships sail.
13)The High Seas Clause of the US Constitution : The High Seas
Clause of the Constitution vests in Congress the power to
"define and punish Piracies and Felonies committed on the high
Seas, and Offenses against the Law of Nations." (US Const.
Art. I, Section 8, Cl. 10.) By its terms, the High Seas Clause
authorizes Congress to punish any felony committed on the high
seas, without limitation. There is no requirement that the
felony prohibited must have some demonstrated effect on the US
relations with foreign powers. This constitutional provision
makes it clear that Congress holds exclusively the right to
punish piracies and felonies committed on the high seas.
Congress has provided, in enacting the Special Maritime and
Territorial Jurisdiction of the United States (18 U.S.C.
Section 7), that jurisdiction on foreign vessels, whenever
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allowable by international law, is reserved to the US . The
statute specifically defines federal jurisdiction to include
"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."
14)The Treaty Clause of the US Constitution : This clause
states, "The President shall have power, by and with the
advice and consent of the Senate, to make Treaties, provided
two-thirds of the Senators present concur." [U.S.
Constitution Article II, Section 2, Clause 2.] This bill, in
mandating the California AG to negotiate MOUs with foreign
nations, is in direct conflict with the Treaty Clause.
15)The Compacts Clause of the US Constitution : This clause
states, among other things, that "No state, without the
consent of Congress shall ? enter into any Agreement or
Compact with another state, or with a foreign power."
(Article I, Section 10 of the US Constitution.) By requiring
the negotiation of agreements with other states and foreign
powers, this bill also violates the Compacts Clause of the US
Constitution.
16)The Commerce Clause of the US Constitution : Article I,
Section 8 of the US Constitution grants to Congress the power
to regulate commerce with foreign nations, and among the
several states and with Indian tribes, and to define and
punish piracies and felonies committed on the high seas, and
offenses against the law of nations. (US Constitution Article
I, Section 8.) The US Supreme Court has held that taxes
imposed on cruise ships by California are unconstitutional
under the commerce clause.
The US Supreme Court reversed a decision by the California
Supreme Court upholding fees and taxes imposed by California
on shipping companies. In Japan Line, Ltd. v. County of Los
Angeles, 441 U.S. 434 (1979), the US Supreme Court agreed with
the shipping companies that the taxes they paid to California
were unconstitutional under the commerce clause. The court
held that the Convention between the United States and Japan
for the Avoidance of Double Taxation, March 8, 1971 (1972, 23
U.S.T. 967, 1084-1085), applied to exempt the plaintiff from
taxation.
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The U.S. Supreme Court also reiterated the "exclusive and
absolute" power of Congress over foreign commerce, citing
Butterfield v. Stranahan, (1904), 192 U.S. 470. (Japan Line,
Ltd. supra.) The Court further held that "laws which concern
the exterior relations of the United States with other nations
and governments are general in their nature, and should
proceed exclusively from the legislative authority of the
nation." Finally, the Supreme Court held that California's
tax prevents the US from "speaking with one voice" in
regulating foreign trade. "The desirability of uniform
treatment of containers used exclusively in foreign commerce
is evidenced by the Customs Convention on Containers, which
the United States and Japan have signed . . . . If other
states follow California's example (Oregon has already done
so) foreign-owned containers will be subjected to various
degrees of multiple taxation, depending on which American
ports they enter. This result, obviously, would make
'speaking with one voice' impossible. California, by its
unilateral act, cannot be permitted to place these impediments
before this Nation's conduct of its foreign relations and its
foreign trade." (Japan Lines, supra, at p. 453.)
The foregoing discussion of the Commerce Clause highlights
several important concepts of international and admiralty law.
First, there are clearly numerous treaties, conventions, and
compacts between the United States and foreign countries, and
the contents of all of these treaties and compacts are highly
unlikely to be well known, or known at all, by California
ocean rangers even if they are able to achieve
cross-designated with federal law enforcement agencies. Thus,
to the extent this bill conditions numerous requirements on
their being consistent with federal law, it is unreasonable to
expect that any person other than a highly trained expert in
international law would know what actions are, and are not,
consistent with Federal laws, treaties, conventions, and
compacts.
Additionally, the Japan Lines Court emphasizes the importance of
the United States "speaking with one voice" in its relations
with other nations and governments. In fact, in pointing out
the problems that are inherent in state action, the Supreme
Court cited an example of Oregon having already followed the
example of California in enacting its own law, also violative
of the Commerce Clause. In considering this bill, the
question that should be considered is what if every state with
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access to international waters enacted different versions of
this bill? Passenger vessels docking in ports located in
several states would be subject to varying, and possibly
conflicting, laws on the requisite staffing of their vessels.
Such a scenario clearly indicates that the United States could
not possibly speak with one voice, as required by the Commerce
Clause, in such a situation.
17)Regulation of Vessel Manning Is An Area Occupied by Federal
(and International) Law : The US Supreme Court has held that
the regulation of vessel manning is one subject area that is
occupied by federal (and international) law, leaving no room
for individual state regulation. [U.S. v. Locke (Intertanko),
529 U.S. 89 (2000).] In this case, a unanimous Supreme Court
invalidated as unconstitutional, due to federal preemption, a
Washington state regulations of ship design, crew manning and
training, operation and reporting requirements. The Supreme
Court held that requirements for watch-keeping standards and
training of on-board personnel improperly interfered in an
area where the federal interest has been manifest since the
beginning of the Republic. The Court stated, "The authority
of Congress to regulate interstate navigation, without
embarrassment from intervention of the separate States and
resulting difficulties with foreign nations, was cited in the
Federalist Papers as one of the reasons for adopting the
Constitution." (Id. at p. 99.) The Court further held that
"the act of Congress or treaty is supreme, and the law of the
State . . . must yield to it." (Id. at p. 100.)
The Court further commented "the existence of the treaties and
agreements on standards of shipping give force to the
longstanding rule that the enactment of a uniform federal
scheme displaces state law, and the treaties indicate that
Congress will have demanded national uniformity regarding
maritime commerce, so that the nation could speak with one
voice on these matters." (Id. at p. 103.) The primary source
of for the manning obligation in international commerce is
derived from the directive of Regulation 14 of Chapter V of
the Convention on the Safety of Life At Sea (SOLAS). Pursuant
to SOLAS, a certificate of safe manning must be issued by the
ship's flag state. Additional manning directives are found in
the United Nations Convention on the Law of the Sea (Article
94(3)(b); the Convention on the High Seas, Article 10(1)(b);
and the International Convention on Standards of Training,
Certification and Watchkeeping for Seafarers, 1978 (SCTW).
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The US became a party to the latter convention in 1991. SCTW
parallels US regulations regarding the qualification and
training requirements for personnel found at 46 C.F.R. Parts
10, 12, and 15. 46 C.F.R. Section 15.105 specifically
incorporates sections of the SCTW.
Under the various treaties and conventions regulating the
matter, it is clear that the flag state of a ship has the sole
authority, as required by international law, to prescribe and
approve the manning of ships. This is not an area that is
subject to interference by local state governments.
Since the field of manning of large passenger vessels is an area
fully occupied by the Federal Government, the requirement that
the cruise ships add ocean rangers (or subject those that do
not with excessive damages) violates the Supremacy Clause of
the US Constitution, the preemption doctrine, the Presidential
Treaties Power and a number of federal statutes that form a
comprehensive policy for dealing with ships in international
or interstate commerce.
18)Would the Presence of an Ocean Ranger on Large Passenger
Vessels Constitute an Effective Response to Reportable Crimes
Committed on These Ships ? This bill requires ocean rangers
aboard cruise ships to assist passengers and crew, as
requested, with reporting and investigating crimes occurring
on board while in the marine waters of California. This
provision raises a number of questions.
The majority of time spent cruising does not occur within
California's territorial jurisdiction, as described above.
How many crimes actually occur within the marine waters of
California, as opposed to outside of California's jurisdiction
of 12 nautical miles for specified offenses and three nautical
miles for all others? Would one ocean ranger aboard a ship
with 2,000 to 3,000 passengers and a crew of up to 1,000
members be able to preserve potentially numerous crime scenes
and collect and preserve the evidence? Certainly these
activities by an ocean ranger would require the approval of
the ship's captain and active participation of the ship's
security personnel. For crimes occurring outside of the
territorial limits of the US, would evidence collected by an
ocean ranger be admissible in a US court or rejected due to a
lack of jurisdictional authority of the ocean ranger?
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If the crimes occur outside of California's jurisdiction, the
law defines reportable crimes as limited to specified serious
felonies. The evidence collection procedures may require
different actions by the ocean ranger than required for crimes
occurring within California's maritime jurisdiction. As
stated above, federal law, which is controlling in
international waters, requires only the reporting of specified
serious felonies, as defined in federal law. Is a local law
enforcement officer, primarily trained in California law,
properly prepared to know which crimes are reportable, and
adequately trained to report only those crimes required by 33
C.F.R. Section 120.110?
This bill as amended requires the ocean ranger to advise on law
enforcement procedures when requested by a passenger or crew
member. How is an ocean ranger expected to handle a situation
of multiple alleged crimes, some of which are reportable and
others which are not, if the alleged victim of the
non-reportable crimes requests the ocean ranger's assistance?
This bill requires nothing in terms of the experience required
by the ocean rangers. This bill provides only that the ocean
rangers have completed a general POST peace officer training
course. It is likely that persons interested in a limited law
enforcement job such as that of an ocean ranger would attend
the POST course and receive POST certification and then
undertake ocean ranger responsibilities as their first law
enforcement position.
This bill specifies no requirements for the length and breadth
of experience in law enforcement the ocean ranger must have
before being hired to serve on a cruise line. Is a law
enforcement officer only recently certified by POST, who has
no actual experience in the field, capable of rendering the
kind of advice and assistance suggested by this bill? Newly
certified ocean rangers may have never secured a crime scene,
collected evidence, or testified in court in a motion to
suppress illegally seized evidence. On a regular police
force, new officers work under the authority of an experienced
sergeant and are not charged with sole responsibility for the
crime scenes of serious crimes. Is the trained security force
on a cruise line likely to give credence to the suggestions or
directions of a newly certified officer who has no actual
previous law enforcement job experience?
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Would the presence of an ocean ranger encourage passengers to
request the reporting of petty criminal activity that is not
required under current law to be reported? If the ocean
ranger's presence encourages the reporting of non-reportable
alleged criminal activities, it would constitute misuse of the
resources of the FBI and United States Attorney. Would the
ocean ranger, in fact, find himself or herself in the role of
a dispute arbitrator regarding passenger claims of petty
theft, alcohol-related fights, underage drinking, or other
relatively minor crimes?
The ocean ranger is required by this bill to be a POST-certified
law enforcement officer pursuant to California law and also to
be trained pursuant to the federal laws enforced by those
agencies that agree to cross-designation. Would the funding
mechanism proposed by this bill, consisting of passenger fees
in a nominal amount, be sufficient to fund the program,
including the execution of the MOU following US congressional
approval? Could the costs of supporting this program at some
future date cause cruise ship operators to reduce the number
of ships operating out of California ports? Does the bill
create unintended economic consequences for the port cities
that currently benefit from the docking of cruise ships in
their ports?
19)Additional Problems Posed by the Insertion of Ocean Rangers
to Investigate Crimes on Cruise Ships: In order to
accurately determine whether a crime occurred in California's
territorial waters, in international waters, or on the high
seas, it is essential that whoever is charged with reporting
the crime be able to accurately and precisely state what time
the crime occurred. The time of the crime is relevant to
whether California has jurisdiction or whether the ship has
passed California's territorial limits and the jurisdiction
lies with the Federal Government. Through the knowledge of
the precise time the crime occurred and the use of a global
positioning system, state or federal prosecutors will be able
to determine which has jurisdiction.
If a criminal case is prosecuted in the wrong jurisdiction, it
is likely that it will be dismissed by the court. Since lack
of jurisdiction is an argument that can be raised by counsel
at any time, it is possible that lack of jurisdiction
arguments may be raised after jeopardy has attached, requiring
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dismissal of the charges against the defendant. Due to
constitutional prohibitions against double jeopardy, this
means that the defendant could not be charged again with the
crime. (US Constitution, Fifth Amendment.)
An inexperienced law enforcement officer may not consider the
importance of the territorial waters in which the crime
occurred or its critical effect on the final outcome of the
case. Federal agents specifically trained in maritime and
international law, on the other hand, would be fully aware of
the critical nature of this piece of information and the
importance of properly documenting it.
20)The FBI Testimony Before Congress in September 2007 :
Salvador Hernandez, Deputy Assistant Director of the FBI,
testified that the FBI, the US Coast Guard and the Cruise
Lines International Association (CLIA) reached an agreement on
voluntary, standardized protocols for CLIA member lines to
report allegations of serious violations of U.S. law committed
aboard cruise ships. These reporting procedures are in
addition to, but not in lieu of, the mandatory reporting
requirements, e.g., the requirements of 46 C.F.R. Part 4 or
the requirements of 33 C.F.R. Part 120. Further, this
reporting does not replace or override any agency
responsibilities and coordination mandated by the Maritime
Operational Threat Response Plan.
Mr. Hernandez further stated, "On April 1, 2007, the FBI began
collecting and tracking the incident reports submitted by CLIA
member lines. [T]hrough August 24, 2007, the FBI received 207
reports from CLIA members. Many of these matters did not
require criminal investigation and as such, should be viewed
as incident reports not 'crime reports.' For example, reports
were received of attempted suicides of passengers, as well as
matters with purely civil implications.
"16, or 8%, of all reports involved incidents that occurred
while a passenger was ashore outside of the United States and,
therefore, outside of the jurisdiction of the FBI and other
U.S. law enforcement. For example, a passenger reported that
he was robbed by two subjects in a vehicle while ashore in the
Bahamas. In matters such as these, the reporting agreement
holds that, although cruise lines may report incidents which
occurred outside of the United States jurisdiction to the FBI,
they are not required to do so.
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"Of the 207 incident reports received by the FBI, 39 incidents,
or 19%, were responded to and/or investigated by law
enforcement other than the FBI. These law enforcement
agencies included local police departments in the United
States, as well as foreign law enforcement agencies. 19
reported incidents occurred while the ship was docked. In the
United States, the jurisdiction over an event that occurs
aboard a vessel generally lies with the state inn whose waters
the vessels are moored. Accordingly, a theft of items
estimated at $30,000 which was stolen while a ship was docked
in Galveston, Texas, was investigated by the Galveston Police
Department.
"[T]he agreement with CLIA and the U.S. Coast Guard lists 8
categories of incidents which are to be telephonically
reported by CLIA members to the nearest FBI field office or
Legal Attach? office. These matters-homicide, suspicious
death, missing U.S. national, kidnapping, assault with serious
bodily injury, sexual assault, firing or tampering with
vessels, and theft greater than $10,000-involve potentially
serious violations of U.S. law and are to be called into the
FBI as soon as possible after the incident. After telephonic
contact, CLIA members are instructed to follow up with a
standardized written report. All other, less serious matters
are reported under a general 'other' category and are brought
to the FBI's attention by the submission of a written report.
"During the five months of reporting under the agreement, there
were no reports of homicide, suspicious death or kidnapping
aboard CLIA member ships. There were four reports of missing
U.S. nationals. Of these four reports, one involved a husband
and wife who took most of their belongings with them and chose
not to re-board after docking at a foreign port. The three
remaining reports involved passengers whose past histories and
behavior on board the ship strongly suggested they had taken
their own lives.
"CLIA members reported 13 assaults with serious bodily injury.
The FBI opened two investigative cases from these reports,
both of which are ongoing. Several matters submitted in the
'assault with serious bodily injury' category were in fact of
lesser seriousness.
"The FBI investigates sexual assaults as defined in 18 U.S.C.
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2241 through 2243 and 2244(a) and (c). Since April 1, the
cruise lines have reported 41 instances of sexual assault. Of
these 41 incidents, 19 represented allegations of sexual
activity generally categorized as rape, three of which
occurred on shore and thus, outside the jurisdiction of the
FBI. Based on the 41 reports, the FBI opened 13 investigative
cases. Five of these cases have been closed for reasons of
victim reluctance to pursue prosecution or prosecutive
declination from the United States Attorneys' office. 8
investigations are ongoing.
"During this period, there were 13 reported incidents of theft
of more than $10,000. Nine of these incidents involved
jewelry, two involved cash, one involved miscellaneous items
from onboard shops, and one involved food products. There was
one report of firing or tampering with vessels.
"The remaining 135 incident reports, or 65% of all reports,
involved less serious matters such as simple assault,
low-dollar loss theft, fraud, suspicious activity, bomb
threats, sexual contact or activity that was not criminal in
nature. Sexual contact, as defined in 18 U.S.C. 2244(b) is
essentially uninvited touching of a sexual nature, made up 28
reports. 36 of the 135 reports involved simple assault
matters to include punching, slapping, or pushing actions, and
41 reports related to theft of less than $10.000.
"Incidents on board ships when investigated by the FBI are
documented through investigative files under the 'Crimes on
the High Seas' classification. Of the 207 incident reports,
the FBI opened 18 investigative files. This number is
consistent with the number of crimes on the high seas cases
opened annually over the past 5 years.
" Based on my personal involvement in the matter of cruise ship
crime reporting over the past year, and the fact that many
reports we have received during the first five months of
reporting fall outside FBI jurisdiction, do not constitute
crimes under U.S. law, or are less serious than characterized
by the cruise lines, it is my belief that CLIA member cruise
lines are generally making a good faith effort to report all
crimes, or allegations of crime, set out under the agreement."
[Statement of FBI Deputy Assistant Director Salvador
Hernandez, before the U.S. House Committee on Transportation
and Infrastructure, Subcommittee on Coast Guard and Maritime
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Transportation, September 19, 2007.]
The above FBI testimony before Congress indicates that the
number of serious, reportable crimes occurring on cruise ships
is fairly small. From that testimony, it is clear that the
FBI is taking an active role in monitoring the voluntary
agreement between the FBI, the cruise lines and the U.S. Coast
Guard. The Deputy Assistant Director of the FBI made no
remarks before Congress on investigations that were mishandled
or cases that could not go forward due to poor evidence
collection procedures.
In view of the FBI testimony, it is questionable whether the
ocean rangers are a cost-effective measure or whether their
presence will merely confuse the delegated responsibilities
under the security plan of the cruise ships. Additionally,
state law enforcement officers may not fully understand the
limitations on the nature of reportable crimes occurring on
cruise ships and may, therefore, magnify the problem of
reporting lesser crimes that are outside of the federal laws
and regulations enforced by the FBI.
The proponents of this bill submitted a letter, dated April 4,
2008, from a section chief in the FBI's criminal investigative
unit which stated that Deputy Assistant Director Hernandez
testified before Congress on numbers voluntarily reported to
the FBI by CLIA. The section chief's letter stated, "The FBI
did not present an interpretation of this data to the
Subcommittee."
This statement appears contrary to the testimony of Deputy
Assistant Director Hernandez, who testified that " based on my
personal involvement in the matter of cruise ship crime
reporting over the past year, and the fact that many reports
we have received during the first five months of reporting
fall outside FBI jurisdiction, do not constitute crimes under
U.S. law, or are less serious than characterized by the cruise
lines, it is my belief that CLIA member cruise lines are
generally making a good faith effort to report all crimes, or
allegations of crime, set out under the agreement."
Mr. Hernandez began his testimony by stating "the FBI, the U.S.
Coast Guard and the Cruise Lines International Association
(CLIA) reached an agreement on voluntary, standardized
protocols for CLIA member lines to report serious violations
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of U.S. law committed aboard cruise ships." As a party to the
agreement, the FBI is certainly in a position to interpret the
data, as well as comment on the implementation of the
agreement. This testimony, in addition to his testimony of
his personal involvement with this process, and his discussion
interpreting the types of crimes reported that did, and did
not, merit federal prosecution, distinctly indicates Mr.
Hernandez's interpretation of the data he was discussing.
He concluded by providing his opinion that CLIA member cruise
lines are making a good-faith effort to report all crimes, or
allegations of crimes, set out under the agreement. Contrary
to the section chief's opinion, the entirety of Mr.
Hernandez's testimony before Congress clearly demonstrates an
interpretation by the Deputy Assistant Director of the types
of crimes reported and his personal opinion on the
implementation of the agreement between the FBI, the US Coast
Guard, and CLIA. He reported to Congress not only the numbers
and types of crimes, but also the follow-up action by the FBI
and the Office of the United States Attorney regarding the
opening of investigative files (FBI) and commencement of
criminal prosecution (US Attorney.)
21)The Legislative Counsel Opinion Dated June 17, 2008: This
opinion addresses three limited questions at the request of a
staff person in the author's office. The opinion does not
address the issues of constitutional law that are the essence
of the problems with this bill. The Legislative Counsel
opinion responds to specific questions about the admissibility
at trial of the evidence collected by the ocean ranger. The
opinion does state, without citation to any legal authority or
precedent, that the presence of a California peace officer
onboard a cruise ship outside the territorial waters of
California would not violate federal or international law.
Clearly, the mere presence of a local peace officer, without
more, is not a problem; peace officers have the same rights as
any other California resident to embark upon a cruise as a
leisure activity. However, federal constitutional law and
international/maritime law would be violated by law
enforcement actions taken by a state ocean ranger outside of
California's maritime jurisdiction.
The problem, not addressed by the Legislative Counsel Opinion,
is California's proposed enactment of laws that prevent the US
from "speaking with one voice" on matters of international
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commerce and the violations of the U.S. Constitution's compact
clause, the constitutional express delegation to the US
President only to negotiate treaties and compacts with foreign
nations, the Supremacy clause, and the exclusive vesting with
the federal judiciary of the jurisdiction over admiralty and
maritime matters. Moreover, even with the consent of Congress
as to the MOU, there is no authority for individual states to
negotiate agreements with foreign nations; that authority is
vested with the President, subject to the advice and consent
of the U.S. Senate.
22)Is This Bill Necessary? Does the Ocean Ranger Program
Survive a Cost-Benefit Analysis? As described above, federal
law and regulation already extensively regulate the reporting
of serious crimes occurring onboard a large passenger vessel.
Federal law and regulation also address extensively security
plans for these cruise ships, and the duties and regulatory
responsibilities of the ship's security officer. Assuming
appropriate implementation of federal law and regulation, it
is questionable what professional knowledge an ocean ranger
could bring to the problems of serious crimes in international
waters. If federal law is not being appropriately implemented
by the federal agencies charged with that responsibility,
there are procedures in place for reporting fraud and
mismanagement to investigative authorities of the US
government, such as the Inspector General for the agencies
with cruise ship oversight or to the Government Accountability
Office (GAO), which investigates and reports directly to
Congress.
As stated in the analysis completed by the Assembly Judiciary
Committee, "It is important to note, especially in light of
the jurisdictional issues raised by the opponents, that the
powers of the ocean rangers are in fact very limited. The
marine engineer is given the power to monitor while on board,
and the peace officer is only given the power to 'assist' with
criminal investigations while on board, and then only when
requested."
(It should be noted that this analysis does not focus on the
environmental monitoring responsibilities pursuant to the
California Civil Code that are imposed on a second ocean
ranger charged with monitoring compliance with environmental
laws. This bill was double referred to the Judiciary
Committee and the Public Safety Committee; this analysis
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focuses on Public Safety issues.)
Given the very limited duties of the criminal ocean ranger and
the wide range of constitutional problems raised by the
provisions of this bill related to that position, this bill
may not only be unnecessary but also a non-productive policy
implementation that will lead to years of expensive and
time-consuming litigation. Additionally, without the approval
of the ship's captain and the active involvement of the ship's
security staff, the ocean ranger's ability to contribute
anything to evidence collection and reporting of crimes will
be limited at best.
Additionally, the complex provisions related to the numerous MOU
to be negotiated, with the consent of the US Congress, will be
difficult if not impossible to fully implement. Even if
implemented, the MOUs discussed in this bill are to be
negotiated by California with foreign nations; this is a power
vested solely in the US President under US Constitution,
Article II, Section 2. Only the President has the authority
to negotiate treaties or agreements with foreign nations.
In addition to the constitutional problems created by this
bill's requirement that California negotiate agreements with
foreign nations, there is no established procedure for a state
to obtain congressional concurrence on agreements it has
negotiated with foreign nations in the absence of the
constitutional authority to do so. Obtaining congressional
approval of each treaty or MOU negotiated by California (and
therefore constitutionally suspect) would clearly be a very
time-consuming, staff-intensive and expensive process for
California's AG.
In the unlikely event Congress approved any of these agreements
with foreign nations, costly and lengthy litigation over the
constitutional problems inherent in a single state negotiating
international and maritime issues with foreign nations is
seemingly inevitable. Litigation of constitutional issues in
federal court, particularly those involving maritime and
admiralty law, is far more intricate and complex than
litigation occurring in state courts. The expense of
litigating complex issues in federal court is significant,
particularly when the issues involved require the hiring of
attorneys who are subject matters experts in the unusual area
of admiralty law.
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The cost involved in the MOU process is not justified by the
limited authority and potential benefits of ocean rangers
riding on cruise ships.
23)Arguments in Support :
a) The California Teamsters Public Affairs Council states,
"Unfortunately while millions of American citizens travel
on cruise ships every year, there are currently inadequate
protocols employed by the cruise industry to protect
passengers from theft, rape, assaults, and other crimes.
Further, there is no comprehensive set of rules regarding
coordination of effort and provision of assistance to
United States public safety officers investigating these
crimes. Establishing an ocean ranger program will better
ensure that cruise ship passengers are adequately
protected, and that when crimes do occur, that
investigations are appropriately coordinated with federal
public safety officers."
b) The American Maritime Officers state, "The delayed
implementation would allow funds to accumulate to cover
startup costs and give the State ample time to implement
the requirements set forth in the bill. The fees will
provide compensation for the Ocean Rangers, and a portion
of the proceeds will go to the passenger ship company to
offset the cost of room and board while the Rangers are
onboard."
c) The County of Los Angeles, Sheriff's Department states
that this bill "would do three very important things.
First and foremost, it would provide increased security to
the millions of passengers who travel on cruise ships off
the shores of California. After the tragic events of 9/11,
the federal government increased security for airline
passengers by creating the air marshal program. [This
bill] provides similar protections for securing the
passengers on cruise ships. As we have seen in recent
highly publicized tragic incidents on cruise ships in other
parts of the country, there is a real need for a law
enforcement presence on these large vessels. This bill
would be a big step forward. [I] would like to thank you
for enabling the Department of Justice to contract out for
the services of the Ocean Ranger to a local law enforcement
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agency which is equipped to offer a contract. Since these
ships use only the Ports of San Diego, Long Beach, Los
Angeles and Alameda as ports of call, there are only a
handful of agencies in the state that would be able to have
the specific training and expertise to serve as Ocean
Rangers."
d) The California Labor Federation, AFL-CIO , states, "Our
interest in this issue comes not only from our concern for
public safety, but the issue strikes home. The daughter of
a union member was murdered while on a cruise. It is
unlikely that the crime will ever be solved. The
installation of an ocean ranger who can investigate crimes
will enhance the security that cruise passengers expect
while traveling. The installation of an ocean ranger who
can investigate crimes will enhance the security that
cruise ship participants expect while traveling."
e) Crime Victims United of California states, "For years
cruise lines have indicated they are not responsible for
the investigation of crimes, much less for ensuring proper
handling of crime scene evidence. In many cases,
significant delays have resulted in tampering of evidence,
mistreatment of victims, and cases going cold. Cruise line
staff investigating on board crimes can present a conflict
of interest and be of particular concern when staff is
accused of crimes. In one case, a victim was assaulted,
drugged and raped by a crew member; however, the case has
never been prosecuted due to the mishandling of evidence
and significant delays in notifying authorities.
Furthermore, there have been numerous passengers/victims
who have gone missing on board cruise ships to never be
seen or heard from again."
f) Heal the Bay states, "As the number of cruise ships
entering ports of call increases so does the potential for
waste entering the ocean. Improperly treated wastes
released into the environment can significantly impact
California's aquatic ecosystems and the people and
industries that rely on them. SB 1582 would strengthen
existing law, [which provides for] the nation's first and
only zero-discharge law for large passenger vessels and
ocean-going ships by providing independent oversight or
verification of the zero-discharge requirements."
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g) The California Statewide Law Enforcement Association
(CSLEA) states, "SB 1582 would create the position of ocean
ranger within the Department of Justice to ensure the
safety of the environment, passengers and crew of cruise
ships. Many of these ships carry upwards of 3,500
passengers and up to 1,500 crew members. These ships,
carrying the population of a small city in passengers and
crew, once they leave port, allow drinking and gambling 24
hours a day with no public safety professionals to
investigate any of the crimes that may occur. CSLEA
believes that in order to protect the environment and the
safety of the passengers and crew of cruise ships, SB 1582
must be enacted."
24)Arguments in Opposition :
a) The Pacific Merchant Shipping Association states, "This
measure sets several unfortunate precedents that, while
likely extralegal in any event, are contrary to and
duplicative of federal and international laws, treaties,
and protocols, based on an unlawful and unwieldy taxation
scheme, and would only serve to encourage the State to seek
ways to assert its police powers and jurisdiction beyond
the State's own territorial limit of three miles. 'Ocean
Rangers' or other such law enforcement personnel such as
those proposed [by this bill] are not authorized to be
required by a state or local jurisdiction on any other
ocean-going vessels under current federal and international
rules. As such, this requirement cannot be forced on these
vessels simply because they are underway while carrying
passengers who may be citizens of California-regardless of
the disposition of state jurisdictional questions regarding
civil and criminal law."
b) The California Coalition of Travel Organizations states,
"We are concerned that thee bill would establish new
requirements; although passenger safety and environmental
compliance are already addressed today; would raise
important jurisdictional issues, would heighten passenger
anxiety, and would increase the costs borne by cruise ship
travelers.
"Ocean traveling cruise ships already implement effective
security measures. They have advanced access control
systems allowing only authorized persons aboard; screen all
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items coming onto ships; make extensive use of closed
circuit cameras and employ highly trained security
officers. Cruise ships are already required to report all
serious crimes and cooperate fully with the U.S. Coast
Guard and with FBI agents who investigate those infrequent
cases of felony shipboard crimes. Crimes on cruise ships
are quite rare. The chance of a passenger facing a major
crime is less than 0.01%. Such unfortunate experiences are
rare. Traveling on a cruise ship is among the safest and
most secure of vacation travel.
"A uniform body of international and federal law extensively
regulates cruise ship issues including manning, security,
environmental compliance, maritime security and criminal
law enforcement. Inserting ocean rangers into criminal and
security investigations could jeopardize existing efforts."
c) The Cruise Lines International Association (CLIA)
states, "Our chief concerns with the bill are that it (a)
imposes a new pre-tax on ship passengers for two years to
pay for ocean rangers and services that will not be
available to them; (b) requires ships, if the state can
negotiate agreements with other states and nations, to
allow access to ocean rangers outside of state waters,
beyond the state's jurisdiction, violating manning
requirements, federal and international preemption of
maritime security on oceangoing ships, the Fourth
Amendment, the Commerce Clause and the Compact Clause; (c)
jeopardizes any criminal cases in which the ocean ranger is
involved since he or she has no constitutional authority
and any activity with regard to a case would taint the
evidence; (d) imposes an estimated $6.7 million annual
cruise ship passenger "fee" that is actually a tax, since
only home-ported cruise ship passengers will be paying the
fee; the bill will require passengers on California
home-ported ships to pay for the full costs of ocean
rangers on ships they have never visited that are
home-ported in other states or countries."
The Cruise Lines International Association continues by
stating the bill "places existing and future cruise
business in San Diego, San Francisco, Catalina, Los
Angeles, and Long Beach at risk by requiring expensive and
burdensome requirements on cruise ships that other states
and countries do not require. It sets up a very expensive,
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open-ended new state and international program and millions
of dollars in ongoing passenger taxes to cover activities
already covered by other federal and international law.
[This bill] attempts to administer and enforce California
and federal law before a vessel enters California waters,
and usurps federal jurisdiction and violates constitutional
and international agreements governing the same activities.
It allows the state to treat passengers as a blank check
to fund the program with no caps on the cost of the
program-in fact, the passenger 'fee' in the bill started
out at $1 and has now grown to $6, evidence of the 'shot in
the dark' nature of the costs and expected escalation over
time.
"[This bill] fails to substantiate the need for such a
program; there has been only one discharge since the law
prohibiting discharges went into effect and that was
self-reported. The FBI handles current criminal
investigations and cruise ships are required to report to
the FBI with penalties for failure to report; and based on
Congressional hearings last year, there is an extremely
small chance of any passenger being impacted by crime on a
cruise ship. [The bill] fails to take into account the
extremely competent cruise line security directors, as well
as the agreements with the FBI on criminal procedures,
CLIA's ongoing meetings with passenger advocates and the
lines' extensive after care programs. [This bill] sets a
precedent to eventually require ocean rangers on all marine
vessels, clearly violating international law and
encouraging other states and nations to do the same. It
requires the ships to change itineraries to accommodate the
rangers.
d) The Peace Officers Research Association of California
(PORAC) states, "PORAC feels that SB 1582 is unreasonable
and unnecessary in its approach to reporting criminal
activity and environmental infractions on passenger
vessels. In its attempt to ensure crimes are reported and
investigated properly and in a timely manner, this bill
requires peace officers to take action in criminal matters
for which they would not have the appropriate authority of
jurisdiction, thereby possibly creating liability for the
officer and their agency as well as potentially
jeopardizing the investigation through their unauthorized
involvement. Specifically, SB 1582 states that the 'Ocean
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Ranger will assist the passengers and crew ? with reporting
alleged crimes occurring onboard and advising? on the
proper law enforcement procedures regarding the gathering
of evidence from alleged crime scenes and ensuring the
process concerning witness identification and interviews is
initiated.'
"Also, this bill calls for the Ocean Ranger to 'coordinate
law enforcement activities with the local or federal law
enforcement agency with jurisdiction.' This Ocean Ranger
would be coordinating law enforcement activities with those
agencies that have jurisdiction over the alleged crime,
even though the Ranger had no authority or jurisdiction
over the crime if it were committed outside the state's
three-mile jurisdiction. The paragraph goes on to state 'a
port district with jurisdiction over the port is not
responsible for the reporting of incidents of alleged
criminal activities to, and coordination of law enforcement
activities with, the local or federal law enforcement
agency.' Again, PORAC feels that having this officer who
has no authority or jurisdiction outside of the three-mile
state zone can potentially jeopardize the investigation
into the alleged crime. PORAC strongly feels that if a
local law enforcement agency is going to pursue the
criminal investigation, that it should be either the port
district law enforcement agency or the local law
enforcement agency that has jurisdiction over that port.
To state that the port district with jurisdiction over the
port is not responsible for reporting alleged criminal
activities directly removes an important piece in the
investigation of these crimes.
"[P]ORAC feels that SB 1582 could create a false expectation
that an officer on the ship could react as a peace officer
when in international waters, when in fact the most an
officer would be able to do is to make a citizen's arrest,
just as any other passenger, including a peace officer who
is simply vacationing on the same vessel could do at any
time."
e) The Association for Los Angeles Deputy Sheriffs state,
"Since federal jurisdictional authority already exists, we
believe SB 1582 inappropriately requires local peace
officers to investigate and report criminal activity on
passenger vessels, ostensibly to ensure crimes are reported
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and investigated properly. SB 1582 requires peace
officers, called 'Ocean Rangers' to take action in criminal
matters for which they do not have the appropriate
authority or jurisdiction. Since these officers would be
acting under color of authority, this may create liability
for the officer and his or her agency or the state.
"In addition to potential liability, having a local peace
officer on board who has no authority or jurisdiction
outside of the three-mile state zone may also potentially
interfere with an investigation into an alleged crime,
since ocean going vessels already have on-board
investigating teams who are under the jurisdictional
authority of the Federal Bureau of Investigation. Local
law enforcement does have a role in pursuing a criminal
investigation, but only where the local law enforcement
agency has appropriate jurisdiction; that is, when the ship
is in port or within territorial waters."
f) Princess Cruises states that the bill as amended
"imposes an estimated $6.7 million annual cruise ship
passenger "fee" that is actually a tax. The amendments
specify that beginning January 1, 2009, the Department of
Justice must assess a $3.00 fee on each passenger that
boards or disembarks a ship in a California port. That
initial 'fee' will be imposed two years before the ocean
rangers are hired. This is a tax, since the passengers
paying the fee will not receive any services from that fee.
The new amendments also specify that at a port of call,
where passengers do not begin or end a cruise, but are just
stopping before they reach their final destination outside
of California, no fee shall be assessed. However, the
ocean rangers will be required to be on board those ships
as well; in other words, the passengers on California
home-ported ships will be paying for the full costs of
ocean rangers on ships home-ported in other states or
countries. Again, this is clearly a tax.
"[T]here is nothing in this bill that is not already covered
by the FBI, the Coast Guard, international treaties and
laws. Passengers will be charged millions of dollars in
ongoing fees each year to cover enforcement of laws already
enforced by other agencies. Who will be in charge? There
is an extremely low rate on crime on cruise ships."
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g) The California Travel Industry Association (CalTIA)
states, "CalTIA has major concerns with many aspects of
this bill, including that it imposes an estimated $6.7
million annual cruises ship passenger 'fee' that is
actually a tax. It places existing and future cruise
business in San Diego, San Francisco, Catalina and Los
Angeles/Long Beach at risk by requiring expensive and
burdensome requirements on cruise ships that other states
and countries do not require. It conflicts with and
violates existing federal and international laws and
treaties and there is no need for this bill. It sets a
precedent to eventually require ocean rangers on all marine
vessels and encourages other states and countries to
require their own ocean rangers and burdensome
requirements.
"The cruise line industry is very significant for
California's tourism economy. Tourism is California's
fourth largest employer and fifth largest contributor to
the gross state product. The industry is responsible for a
significant portion of California's local and state sales
tax which leads to increased revenue, a stronger economy
and the creation of more jobs. Today the travel and
tourism industry brings in over $93.8 billion to the state
economy, employs over 928,720 Californians and generates
approximately $2.1 billion in local taxes and $3.5 billion
in state taxes.
"CalTIA believes that SB 1582 goes beyond state jurisdiction,
is overly burdensome and could interfere and conflict with
current federal processes and investigative practices that
are already in place."
h) James Alan Fox, Ph.D., Northeastern University , states,
"I am writing to identify and correct an erroneous
conclusion that was made concerning the relative rates of
sexual assault on land versus on-board cruise ships.
Specifically, the flawed finding, from Section 1(h) of SB
1582 is as follows: 'Independent crime statistics
presented before the United States Congress show that one
has a 50% greater chance of sexual assault on a large
passenger vessel as compared to the United States
generally. The rate of sexual assault in the United States
is 32 per 100,000 population. The rate of sexual assault
on large passenger vessels was 48 per 100,000 in 2007.
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That rate was 17.6 per 100,000 from 2003 to 2005,
inclusive. This is more than a 170% increase in the sexual
assault rate on large passenger vessels between 2005 and
2007.'
Dr. Fox continues to describe the difference between the FBI
statistics for the rate of forcible rape (30.9 per 100,000)
and the rate of sexual assault for cruises, which includes
forcible rape as well as sexual assaults not rising to the
level of rape (27.2 per 100,000.)
"There is another classification of offenses on cruise ships
called 'other' that includes a sub-category of 'other
sexual assault.' This appears to represent even less
severe acts (e.g., an unwanted kiss, a pinch, etc.) so as
not to be classified in the usual sexual assault category.
The rate of these other sexual assaults for the same time
period (April 1, 2007 to April 30, 2008) was 28.2 per
100,000. Combining the 'sexual assault' and 'Other-Sexual
Assault' yields a figure of 55.4, which is similar to the
48 figure in the quoted statement, though it is not clear
how that 48 was derived.
"Regardless, the rate for land (32.2 for 2003 - 2005 and 30.9
for 2006) includes only forcible rape. The figure for
cruise ships in the quoted statement is considerably
broader, including groping, touching, etc.
"As a statistician and criminologist, I submit that it is
misleading to compare the forcible rape rate on land with
the broadest of definitions at sea. Furthermore, it is
improper to compare the rate for cruises in 2003-2005 for
sexual assault with the combined rate in 2007 for sexual
assault and other sexual assault."
REGISTERED SUPPORT / OPPOSITION :
Support
American Association of Retired Persons
American Federation of State, County, and Municipal Employees
American Maritime Officers Union
California Church Impact
California Coastal Protection Network
California Coastkeeper Alliance
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California Labor Federation, AFL-CIO
California League of Conservation Voters
California State Sheriffs' Association
California Statewide Law Enforcement Association
California Teamsters Public Affairs Council
County of Los Angeles, Sheriff's Department
Crime Victims United of California
Earth Island Institute
Environment California
Environmental Defense
Environmental Defense Center
Heal the Bay
International Cruise Victims
International Cruise Victims Association
International Longshore and Warehouse Union
Marine Engineers Beneficial Association
Maritime Trades Department, AFL-CIO
National Center for Victims of Crime
National Organization of Parents of Murdered Children
Natural Resources Defense Council
Ocean Conservancy
Oceana
Planning and Conservation League
San Francisco Bay Area and Vicinity Port
Maritime Council
Sierra Club California
Surfrider Foundation
United Food and Commercial Workers Union
17 private individuals
Opposition
Association for Los Angeles Deputy Sheriffs
California Coalition of Travel Organizations
California Fraternal Order of Police
California Trade Coalition
California Travel Industry Association
Carnival Cruise Lines
Cruise Lines International Association
Holland American Line
James Alan Fox, Ph.D., Northeastern University
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Pacific Merchant Shipping Association
Pacific Merchant Shipping Association
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Peace Officers Research Association of California
Princess Cruises
Royal Caribbean Cruises, Inc.
Traveling Times Inc./Travel Center of Santa Clarita
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744