BILL ANALYSIS Ó
AB 1060
Page 1
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.
AB 1060
Page 2
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
AB 1060
Page 3
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 "Ýt]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. Ý18 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. Ý18 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
AB 1060
Page 4
states are recognized. Ý43 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. ÝPenal
Code Section 830.1(b).]
EXISTING INTERNATIONAL LAW :
1)Provides that "Ýs]hips shall sail under the flag of one State
only, and save in exceptional cases expressly provided for in
AB 1060
Page 5
international treaties or in Ýthe 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. ÝNielsen 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. ÝThompson v. Lucas (1920) 252
U.S. 358.] As such, the laws of the country of registry are
AB 1060
Page 6
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. ÝSee
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. ÝArgentine 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.
ÝStrassheim 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
AB 1060
Page 7
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. ÝSee 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. Ý18 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.
AB 1060
Page 8
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, "Ýt]hat the Federal government has not opened
a case ? does not ipso facto confer jurisdiction on the
Commonwealth." ÝCommonwealth 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. ÝSee 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
AB 1060
Page 9
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
AB 1060
Page 10