BILL ANALYSIS                                                                                                                                                                                                    ”



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          Date of Hearing:   May 3, 2011
          Counsel:        Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 1060 (Hernandez) - As Amended:  April 28, 2011
           
           
           SUMMARY  :   Creates a special maritime criminal jurisdiction to 
          extend the power of the state to prosecute crimes committed on 
          ships sailing outside California's territorial waters.  
          Specifically,  this bill  :  

          1)Declares that California is major center for international 
            travel and trade by sea, and therefore has an interest in 
            protecting people traveling to and from California by sea, as 
            well as an interest in cooperating with not only masters of 
            ships, but also other governments to maintain law and order on 
            board ships.

          2)Creates a special maritime criminal jurisdiction of California 
            providing that the courts of this state may exercise 
            jurisdiction over a crime occurring outside California onboard 
            a large passenger vessel, as defined.

          3)Provides the special maritime criminal jurisdiction applies 
            under any of the following circumstances:

             a)   When the criminal suspect on board the ship is either a 
               California resident or a resident of a state which consents 
               to the jurisdiction of California.

             b)   When either the master of the ship or a flag-state 
               official turns a suspect on board over to the custody of 
               state law enforcement.

             c)   When the state in whose territory the crime occurred 
               asks California to exercise jurisdiction.

             d)   When the crime occurs during a voyage where the majority 
               of the paying passengers embarked and intended to disembark 
               in California.









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             e)   When the crime victim is a state law enforcement officer 
               who is on board the ship in connection with his or her 
               official duties.

             f)   When a crime of violence, detention, or depredation is 
               committed against a California resident.

             g)   When the crime constitutes either an attempt or a 
               conspiracy to cause a substantial effect in California that 
               is an element of the charged offense.

             h)   When the crime committed is one with respect to which 
               all states could exercise criminal jurisdiction under 
               international law or treaty.

          4)Provides that if a crime is punishable under California law, 
            it shall be punishable in the same way when prosecuted under 
            the special criminal maritime jurisdiction.

          5)Creates an affirmative defense when an act or omission was 
            authorized by the ship's master or an officer of the flag 
            state in accordance with the laws of that state and 
            international law.

          6)Includes a double-jeopardy provision disallowing prosecution 
            if the suspect has been tried in good faith by another state 
            for substantially the same conduct.

          7)Requires state law enforcement officers and prosecuting 
            attorneys not to interfere with assertion of jurisdiction by 
            the federal government, the flag state, or a state in whose 
            territory the crime occurs; to consistently apply these 
            provisions with federal and international law, particularly 
            that of the flag state; and to cooperate with the flag state 
            and master of the ship, when feasible.

          8)Creates certain enforcement limitations on this jurisdiction, 
            including:  

             a)   Does not authorize a boarding, search or detention 
               without the consent of the flag state or ship master if the 
               ship is outside California; 

             b)   Does not constitute an assertion of jurisdiction over 
               military or law enforcement acting in accordance with 








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               international law; 

             c)   Does not restrict the application of other California 
               laws, or the duty of law enforcement to protect human life, 
               property, or the environment from imminent harm; and,

             d)   Does not prohibit otherwise-allowable gambling.  

          9)Encourages local law enforcement to enter into agreements or 
            memoranda of understanding with both the Coast Guard and 
            Federal Bureau of Investigation (FBI) in order to facilitate 
            the prosecution of crimes.

          10)Requires ship owners and operators to notify passengers that 
            passengers can contact California law enforcement to assist 
            them with the prosecution of a crime.

           EXISTING FEDERAL LAW  :  

          1)Grants Congress the power "›t]o define and punish Piracies and 
            Felonies committed on the high Seas, and Offences against the 
            Law of Nations."  (US Constitution Article I, Section 8, 
            cl.10.)

          2)Defines the "special maritime and territorial jurisdiction of 
            the United States" as including, 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.  ›18 U.S.C. Section 7 (8).]

          3)Provides the federal courts have exclusive jurisdiction over 
            crimes begun or committed upon the high seas, or elsewhere out 
            of the jurisdiction of any particular state, and specifically 
            in the district in which the offender is arrested or is first 
            brought; but if the offender is not arrested or brought into 
            any district, an indictment or information may be filed in the 
            district of the last known residence of the offender, or if no 
            such residence is known the indictment or information may be 
            filed in the District of Columbia.  ›18 U.S.C. Section 3238.]

          4)Reserves to the United States government, for purposes of 
            commerce, navigation, national defense, and international 
            affairs, all constitutional powers of regulation and control 
            over the areas within which the proprietary interests of the 








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            states are recognized. ›43 U.S.C. Section 1314(a).]

          5)Provides that all "powers not delegated to the United States 
            by the Constitution" are reversed to the states.  (US 
            Constitution, Tenth Amendment.)

          6)Provides, in the supremacy clause, that if federal law has 
            preempted state law, either expressly or implied, then state 
            law is required to yield.  (US Constitution, Article 6, Clause 
            2.)

          7)Confers to each state a seaward boundary of three geographical 
            miles immediately adjacent to the coast.  (43 U.S.C. Section 
            1312.)

          8)Requires cruise lines to implement security measures on ships, 
            provide security guides to passengers, maintain adequate 
            equipment to document crime, and make a record of and report 
            criminal incidents.  (The Cruise Vessel Security and Safety 
            Act of 2010, 46 U.S.C. Section 101 et seq.)

          9)Provides 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.)

          10)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.)

           EXISTING STATE LAW  states that the Attorney General and special 
          agents and investigators of the Department of Justice are peace 
          officers, and those assistant chiefs, deputy chiefs, chiefs, 
          deputy directors, and division directors designated as peace 
          officers by the Attorney General are peace officers.  The 
          authority of these peace officers extends to any place in the 
          state where a public offense has been committed or where there 
          is probable cause to believe one has been committed.  ›Penal 
          Code Section 830.1(b).]

           EXISTING INTERNATIONAL LAW  :

          1)Provides that "›s]hips shall sail under the flag of one State 
            only, and save in exceptional cases expressly provided for in 








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            international treaties or in ›the articles of the Geneva 
            Convention], shall be subject to its exclusive jurisdiction on 
            the high seas."  (1958 Geneva Convention on the High Seas, 
            Article 6, Section 1.)

          2)Defines the term "high seas" as "all parts of the sea that are 
            not included in the territorial seas or in the internal waters 
            of a State."  (1958 Geneva Convention on the High Seas, 
            Article 1.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "While we can't 
            stop crimes from happening, we can strengthen existing laws 
            and improve the coordination of our law enforcement efforts to 
            ensure public safety and justice for victims of crimes.  
            Currently, victims of crimes at sea are not getting justice 
            they deserve.  Only a startling few of the cases that are 
            reported are actually ever prosecuted mainly because these 
            crimes fall under the jurisdiction of the FBI, who gives 
            little priority to robberies and sex crimes on cruise ships. 
            In 2008 for example, the FBI released data that indicates that 
            there were only six sentences for any crime that was committed 
            at sea. 

          "Additionally, a prominent maritime attorney who has practiced 
            this area of law for 35 years indicated that he had only seen 
            one conviction for a sexual crime on a cruise ship during his 
            entire career."

           2)Jurisdiction Generally  :  Crime is usually territorial; it is a 
            matter of the law of the place where it occurs.  Therefore, it 
            is a basic prerequisite to prosecution that the court where 
            the offense is charged has jurisdiction.  In other words, the 
            general rule is that a state may not prosecute an individual 
            for a crime committed outside its boundaries.  ›Nielsen v. 
            Oregon (1909) 212 U.S. 315, 321.]

          Most cruise lines register their ships with foreign countries 
            and fly foreign flags.  A ship on the high seas is considered 
            a foreign territory, essentially, a floating island of the 
            country to which it belongs.  ›Thompson v. Lucas (1920) 252 
            U.S. 358.]  As such, the laws of the country of registry are 








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            generally applicable to crimes on cruise ships.  This is known 
            as the "flag-state rule."

          International law recognizes five exceptions to the flag-state 
            rule, under which a country is permitted to exercise 
            extraterritorial criminal jurisdiction:  (a) objective 
            territorial jurisdiction  based on the effects of the act; (b) 
            protective jurisdiction, based on the protection of the 
            nation's interest, security, and integrity; (c) universal 
            jurisdiction, which amounts to physical custody of the 
            offender; (d) nationality jurisdiction, based on the 
            nationality of the offender; and (e) passive personality 
            jurisdiction, based on the nationality of the victim.  ›See 
            United States v. Vasquez-Velasco (9th Cir. 1994) 15 F.3d 833, 
            840.]  In these circumstances, the Federal Government could 
            exercise jurisdiction.

          International conventions permit a territorial sea of up to 12 
            miles.  ›Argentine Republic v. Amerada Hess Shipping Corp. 
            (1989) 488 U.S. 428, 441, n.8.]  The territorial sea of the 
            United States was extended from 3 to 12 nautical miles by 
            Presidential Proclamation 5928 of December 27, 1988.  So, 
            beyond three miles, the Federal Government enjoys exclusive 
            criminal jurisdiction to prosecution crimes which occur on the 
            high seas outside the 3-mile limit, but within a 12-mile 
            limit.  "Unless Congress determines otherwise, the zone 
            between three and twelve miles would be under the exclusive 
            authority of the Federal Government."  (Restatement of the 
            Law, the Foreign Relations Law of the United States, Volume 2, 
            Section 512, p. 38.)   

          The seaward boundary of California is defined as three miles 
            from its Pacific Coast.  (See 43 U.S.C. Section 1312.)  
            California already has criminal jurisdiction to prosecute 
            crimes which occur within three miles of the California coast.

          Finally, federal law recognizes a very limited exception for a 
            state to exercise jurisdiction for a criminal act committed 
            outside its territory is under the "effects doctrine." A state 
            is justified in exercising jurisdiction when an act is 
            committed outside a jurisdiction, but is intended to produce, 
            and does produce detrimental effects within the state.  
            ›Strassheim v. Daily (1911) 221 U.S. 280, 285.]  However, the 
            effects doctrine is not so broad as to empower a state to 
            exercise jurisdiction where all the acts in furtherance of the 








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            crime, and all offense elements of the crime are committed 
            exclusively outside the borders of the state.  Such an 
            expansive interpretation of the doctrine would essentially 
            result in the exception swallowing the rule.  

           3)Federal Preemption Issues  :  The Federal Government has already 
            created its own special criminal maritime jurisdiction and 
            exercises that jurisdiction to prosecute crimes occurring on 
            the high seas and uses this special criminal jurisdiction to 
            prosecute crimes.  ›See e.g., United States v. Neil (9th Cir. 
            2002) 312 F.3d 419 (proper to prosecute a foreign national who 
            assaulted a California minor in Mexican waters on a cruise 
            ship that started and ended in California under the special 
            criminal maritime jurisdiction of the United States).]  Part 
            of the act creating federal special criminal maritime 
            jurisdiction specifically says that federal courts have 
            exclusive jurisdiction over crimes begun or committed upon the 
            high seas. ›18 U.S.C. Section 3238.]  If this bill were to be 
            enacted, it would appear to contradict that provision.

          Moreover, given the extensive statutory scheme relating to the 
            Federal Government's special criminal maritime jurisdiction, 
            it seems clear that the Federal Government has occupied the 
            field; this bill would be abrogated under the Supremacy 
            Clause.  
           
           4)Similarity with Florida Legislation  :  This bill appears to be 
            modeled, and is substantially similar, to Florida Statute 
            Section 910.006, which creates state special criminal maritime 
            jurisdiction for that state.

          In Florida v. Stepansky (2000) 761 So.2d 1027, the Florida 
            Supreme Court upheld the constitutionality of that state's 
            special criminal maritime statute.  The case involved an 
            attempted sexual battery and burglary on a foreign-registered 
            vessel approximately 100 miles off the Florida coast.  The 
            cruise ship originated in Florida and intended to return 
            there.  The defendant was a United States citizen, but 
            non-resident of Florida, as was the victim. 

          The court upheld the statute on the grounds that:  (a) Florida 
            could exercise jurisdiction concurrently with the Federal 
            Government without violating the Supremacy Clause; and (b) 
            jurisdiction in this case was consistent with the effects 
            doctrine.  








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          As to the Supremacy Clause argument, the court found it 
            important that the language of the Florida statute 
            specifically stated that it is not intended to exercise 
            priority over, or otherwise interfere with, the exercise of 
            criminal jurisdiction by the United States, the flag state, or 
            the state in whose territory the act or omission occurs.  
            Thus, the Florida Supreme Court 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.  (Stepansky, 
            supra, 761 So.2d at p. 1034.)  But, as a Massachusetts Court 
            of Appeal noted, "›t]hat the Federal government has not opened 
            a case ? does not ipso facto confer jurisdiction on the 
            Commonwealth."  ›Commonwealth vs. Armstrong (2008) 897 N.E.2d 
            105, 112.] 

          As to the effects doctrine argument, the Florida Supreme Court 
            concluded jurisdiction was proper on this basis because the 
            Florida Legislature had determined that Florida was a major 
            center for cruise ship travel and tourism was be affected if 
            crimes on cruise ships were not prosecuted.  (Stepansky, 
            supra, 761 So.2d at p. 1036.)  But, contrasting legal 
            authority on the effects doctrine with the analysis of the 
            Florida court, the "result" or "detriment effect" does not 
            permit a state to exercise jurisdiction whenever it suffers an 
            adverse consequence from conduct outside its borders.  Rather, 
            the adverse consequence must be part of the design of the 
            actor.  ›See Wayne R. LaFave et al., Criminal Procedure, 
            Section 16.4(c), at 838 & fn. 100 (3rd ed. 2007).]

          Finally, it should be noted that the holdings of Florida state 
            courts have no precedential value in California.

           5)Treaty Clause Implications  :  Article I, Section 10, Clause 1, 
            of the federal constitution prohibits states from entering 
            treaties.  In Florida v. Stepansky (2000) 761 So.2d 1027, the 
            court concluded that a state court conviction for the crimes 
            pursuant to the state's special criminal maritime jurisdiction 
            statute did not violate the general maritime preemption 
            doctrine.  (Id. at pp. 1033-1034.)

          The Florida Supreme Court left open the question of whether the 
            treaty clause would prevent Florida authorities from 
            prosecuting a foreign national under the state's special 








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            maritime jurisdictional statute because that situation was not 
            presented by the facts of the case since Mr. Stepansky was a 
            United States citizen.  (Florida v. Stepansky, supra, 761 
            So.2d at p. 1033.)  

            Since this bill's provisions mirror those of the Florida bill, 
            under the facts described above and left unresolved by the 
            Florida court, the law would be subject to an "as applied" 
            challenge.

           6)Unintended Consequences  ?  An offense on the high seas can also 
            occur on an aircraft while such an aircraft is in flight over 
            the high seas.  (18 U.S.C.A. Section 7, (5); see also 21 Am. 
            Jur. 2d Criminal Law, Section 448.)  Although the declared 
            legislative intent discusses travel on ships, the provisions 
            would also apply to air travel.  This raises the possibility 
            that all 50 states might choose to create special criminal 
            maritime jurisdiction even if the states do not have seaward 
            boundaries.  Surely, Congress never intended for a zone of 
            exclusive federal jurisdiction between 3 and 12 miles from the 
            United States coastline in which a state could not exercise 
            jurisdiction only to have the entire ocean open up to the 
            jurisdiction of every political subdivision of the United 
            States outside of national boundaries.

           7)Prior Legislation  :  SB 1582 (Simitian), of the 2007-2008 
            Legislative Session, would have required owners or operators 
            of large passenger vessels operating in California to have an 
            "ocean ranger" on board to monitor compliance with specified 
            laws.  SB 1582 failed passage in this Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Labor Federation
          Crime Victims United of California
          Five private individuals

           Opposition 
           
          None
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744 








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