Cruise Control at Sea
THE LIGATURE MARKS ON LAURIE DISHMAN’S NECK lasted about two weeks, but the psychological trauma lasted much longer. They were the result of an incident that occurred February 21, 2006, on board a Royal Caribbean cruise. Dishman charged that a security guard—who turned out to be a janitor filling in for the ship’s short-staffed security department—pushed his way into the then-35-year-old’s cabin and brutally raped her, leaving bruising in the form of his fingers around her neck and impacting her tampon. The FBI launched an investigation into the matter but decided not to prosecute the security guard because it was a “he said, she said” case.
Unhappy with the FBI’s lack of action, Dishman requested meeting after meeting with the Bureau and the U.S. Department of Justice (DOJ) to press for justice. During one of those meetings, the senior federal prosecutor for Los Angeles, Thomas O’Brien, told Dishman there wasn’t enough evidence to prosecute the crewmember, who had already been fired by Royal Caribbean and returned to Trinidad outside U.S. jurisdiction. Though he had originally denied everything, the accused later told the FBI that he and Dishman had consensual sex. Cruise lines have strict policies against fraternization between crew and passengers, and it was for this admission that he was fired.
Testifying before a House subcommittee in March 2007 about her interactions with the government agencies, Dishman said, “The nicest thing that I can say about the meeting is that Mr. O’Brien encouraged me to seek justice in a civil case and to pursue this with Congress. Here I am.”
Dishman’s tenacity led her congressional representative, Doris Matsui (DCA), to take up her cause and introduce a bill that was ultimately passed and signed into law as the Cruise Vessel Security and Safety Act (CVSSA) of 2010. The new law imposes safety and security requirements, the majority of which are now in effect, on cruise lines that do business in the United States.
But the initial elation that the law’s passage sparked in its advocates has gradually turned to disillusionment as the law’s details have been solidified during the regulatory process. While the cruise lines and their chief regulator, the U.S. Coast Guard (USCG), maintain that the industry is in compliance with the law, Dishman and other cruise victims’ advocates allege that some of the law’s requirements have been diluted during the implementation process to the point where they fail to achieve the original objectives.
A New Course
For years, critics of the cruise industry argued that safety and security standards were lacking for cruise ships, where the carnival atmosphere and ever-present alcoholic beverages can increase the likelihood
of accidents, like falling overboard, and assaults, both physical and sexual. The cruise industry has always asserted that the problems were overblown. “Quite simply, Americans are extremely safe at sea today,” Terry Dale, the then-president and CEO of the industry’s trade group, Cruise Lines International Association (CLIA), told a U.S. Senate subcommittee hearing in 2008.
Congress, however, sided with cruise victims, deciding regulation was necessary. “Congress came down with the conclusion, after listening to testimony over the course of five congressional hearings, that cruise ship crime in general, and sexual assaults in particular, were such a problem that the U.S. public needed to be warned,” says Miami-based maritime lawyer Jim Walker, who runs the blog, Cruise Law News, and who represented Dishman in her winning lawsuit against Royal Caribbean.
The legal landscape at the time was another factor weighed by the Congress. Before the CVSSA, Congress did not have any way to regulate cruise ships except when docked at U.S. ports or cruising U.S. internal and territorial waters. That’s because a cruise company can operate in the United States but register its vessel under the laws of another country, thereby limiting the extent to which U.S. law applies when in international waters. Almost all cruise ships are foreign-flagged and operate most of the time in international waters or other jurisdictions.
That’s despite the fact that U.S. residents overwhelmingly make up their customer base. In 2010, for example, of the almost 15 million total passengers who boarded cruise ships in 2010, about two-thirds were from the United States, according to CLIA, which represents more than 97 percent of the cruise capacity marketed in North America.
“I think any American is alarmed when they find out that if an American boards a cruise ship that goes into international waters, that they are not protected like they would be if they were on U.S. soil,” says Mara Lee, Matsui’s former deputy chief of staff and communications director who worked on the legislation with Dishman. “People think because it’s an American company, even though they’re flagged in the Bahamas or wherever, that the same rules and protections apply.”
One objective of the CVSSA was to make that assumption true. Now if a passenger vessel carries more than 250 passengers, has on-board sleeping facilities for each passenger, embarks or disembarks from the United States, and is not engaged in a coastwise voyage, it must comply with the law’s phased-in requirements to retrofit the ship with safety and security upgrades and implement new policies and procedures. To ease the burden on the cruise industry, Congress staggered compliance deadlines across three years: 2011, 2012, and 2013.
First phase. Among the most important of the provisions that went into effect the first year were requirements concerning how cruise ship staff must respond to a sexual assault. All regulated cruise ships now have to ensure that they have medication, including anti-retrovirals, on board their vessels to administer to rape victims to protect them against sexually transmitted diseases. They also have to maintain rape kits, and they must hire and have on board properly credentialed medical personnel to conduct forensic sexual assault examinations, the findings of which must be documented.
Ships also must give sexual assault victims free and immediate access to the FBI, the Coast Guard, local law enforcement, or the National Sexual Assault Hotline, via a private telephone or Internet connection, and keep all information regarding the victim’s sexual assault examination and support information private.
Another important provision that cruise ships had to immediately comply with was reporting missing persons and alleged crimes to the FBI if a U.S. person owned any part of the ship, the crime occurred in U.S. territorial waters, or either the victim or alleged perpetrator of the crime was a U.S. national, even if that person was outside U.S. jurisdiction when the crime occurred. Previously, the cruise lines reported serious crimes to the FBI and the Coast Guard under a memorandum of understanding signed in 2007. Now reporting is the law.
In addition, the law requires that quarterly reports of crimes that occurred on ships be made available to the public. To meet that requirement, the FBI compiles the data from the criminal allegations and missing person reports that are provided by the cruise lines; the FBI breaks the information down by crime type, cruise line, and whether the crime was allegedly committed by a crew member or passenger. The agency gives that information quarterly to the USCG for online posting. The objective behind this requirement was to give passengers reliable information about the nature and frequency of crime on cruise ships.
Another requirement of the law was that any cruise ship whose keel was laid—the initial step in boat construction—after the law’s signing had to equip each passenger stateroom and crew cabin with security latches to protect occupants from an assailant breaking in; it also had to install time-sensitive key technology to prevent unauthorized entry by a crew member.
Currently the Coast Guard is happy with the industry’s compliance on the first round of requirements. “Our assessment at this point is that for the most part, the cruise industry is in compliance with the requirements of CVSSA,” says Lieutenant Commander Latasha Pennant of the USCG’s Office of Design and Engineering Standards. “We’ve gone on board and done inspections and compared whether or not they have the provisions in place. The majority—about 90 plus percent—are in compliance with the act.”
Second phase. More expensive and time-consuming retrofitting requirements were left for the second round of deadlines, which went into effect on January 27, 2012. Among these requirements were the need to ensure that all ship rails were at least 42 inches above the cabin deck to prevent people from falling overboard and the need to install peepholes in the doors of each passenger stateroom and crew cabin so that passengers and crew could see who they were letting into their rooms.
Two other requirements originally set to take effect at the same time have been delayed. One of those was the mandate to install technology that could capture the image of or detect a person falling overboard, but the law provided that this would have to be done only if technology were available. The second provision concerned the installation of warning devices to alert occupants when the ship was entering a high-risk area.
In a June 2011 policy letter, Captain Eric P. Christensen, chief of the USCG’s Office of Vessel Activities, said that these requirements, along with the law’s video surveillance requirement, needed a phased implementation plan and ordered sector commanders not to enforce these requirements until either future regulations or updated policy guidance had been released.
That’s because the systems are not ready for prime time, according to Stan Deno, CLIA’s director of operations, who says the industry is currently testing some systems. “The systems are not quite ready but they are getting better as we conduct pilot tests,” he says.
Third phase. The final significant portion of the CVSSA is crime-scene-preservation training for crew members. This provision takes effect July 27, 2013, after which time at least one member of the crew must be trained and certified in handling a crime scene.
This requirement relates directly to the Dishman case where evidence of the crime was mishandled and her room (the crime scene) was left unsecured and was contaminated by security crew and cleaners, says Lee. By the time FBI agents boarded the ship to investigate Dishman’s rape, nearly five days had elapsed, and little, if any, evidence remained.
“There simply could not have been a more effective destruction of the crime scene by the [cruise ship] officers coming into the cabin, sitting on the bed,” says Walker. “And then, when they finally let Laurie go to the ship doctor, the ship doctor sent [Laurie and her friend] back into the crime scene to collect the evidence.” Dishman tells Security Management that her room was cleaned before the ship arrived in the United States and, thus, before the FBI was able to board the vessel.
Dishman’s case was by no means an anomaly. Laura Hains, CPP, chairwoman of the ASIS International Supply Chain and Transportation Security Council and a former Customs and Border Protection officer, says that crime scene contamination, if not outright destruction, was commonplace on cruise ships in the past.
“I’ve been on too many crime scenes that you can’t even breathe because [crew members] have disinfected the rooms,” she says. “The room was sterile. Anything that was there was wiped down. In one case, the mattress was removed from the room.”
The law is intended to change that. The mandated crime-scene-preservation training must meet the standards established by the USCG for the “prevention, detection, evidence preservation, and reporting of criminal activities in the international maritime environment.” A ship that fails to meet the training requirement could be fined up to $50,000, and denied entry to the United States. Denials of entry, however, will only occur “when all other means to promote compliance with the CVSSA have failed,” wrote Christensen in the July policy letter.
To ensure crime scene preservation in the period before the full certification regulation has been written, an interim training provision took effect last July, says John S. Sedlak, assistant chief of the USCG’s Foreign and Offshore Compliance Division. Under that provision, cruise ships must verify with the USCG that at least one crew member has been trained to the USCG standard.
According to the USCG, a vessel owner can prove to a Coast Guard inspector that a crew member has been adequately trained by handing a “letter or certificate signed by a representative of the company, such as the Company Security Officer, stating that the designated crewmember has been properly trained on the required subjects established by the CVSSA.” Since the interim requirement went into effect, the USCG has inspected 99 cruise ships and physically received compliance letters for the training requirements every time, says Sedlak.
Matsui’s office told Security Management that the congresswoman is satisfied with the law and its implementation so far. Others aren’t so sanguine.
Kendall Carver, the founder and chairman of International Cruise Victims (ICV) Association, initially called the law a “giant leap forward,” but he has soured on portions of it. Carver started the ICV in 2006 to push for safety and security regulations to protect passengers after his 40-year-old daughter went missing from a Royal Caribbean Celebrity Cruise to Alaska. He thought he had won his cause of bringing accountability and transparency to the American cruise industry, but as time passes, he has become a fierce critic of the CVSSA’s implementation.
Both Carver and Dishman, who now works for the ICV as a vice president, argue that the crime reporting and the crime-scene-preservation training requirements are not being implemented as intended by the law. Carver believes pressure from the cruise lines is the reason. “We’re just deadly concerned that the cruise lines are trying to defeat the bill through the regulatory process,” he says.
During the fall of 2011, the ICV sent letters to the FBI and the USCG expressing concerns with how the crime reporting requirement and the crime-scene-preservation training were implemented.
For example, according to the law’s language, the USCG online crime database must provide “a numerical accounting of the missing persons and alleged crimes recorded…that are no longer under investigation by the [FBI].”
The FBI has interpreted the law to mean that only alleged crimes that the FBI has opened a case on, investigated, and closed can be reported on the USCG Web site. ICV says that the way the FBI has interpreted this requirement violates the spirit of the law: namely to make “comprehensive, crime-related data readily available to the public.”
Jamie Barnett, president of ICV, cited the Cruise Line Incident Reporting Statistics for the third quarter of 2011 to argue her point in a letter to the FBI. “Shockingly,” she wrote, “the report tells us that there were absolutely no crimes committed on any cruise ship anywhere in the third quarter of 2011! Zero crimes. Are we truly to believe this?”
A Security Management review of the first four FBI reports posted on the USCG site shows incidents dropping from a total of 35 in 2010 to only 13 during the first three quarters of 2011, with the third quarter report showing no crimes reported. In her letter, Barnett notes that statistics for 2010 and 2011 are dramatically lower than reported crimes uncovered by a special investigation by South Florida’s Sun Sentinel, published in 2010.
Using a Freedom of Information Act (FOIA) request, the paper discovered that cruise lines had reported 363 crimes to the FBI between December 2007 and October 2008. Because experts don’t believe that crime has really dropped by 96 percent from that period to 2010, when the FBI began its reporting, Barnett says the disparity demonstrates how “misleading and misrepresentative” the statistics are.
Barnett then pointed out that the FBI’s methodology leads to underreporting of cruise-ship crime. “In effect, the FBI is not including all alleged crimes but only those that they open a file on minus those under investigation,” she wrote. Adding to the problem, “They only open a file on 10 percent to 20 percent of the alleged crimes,” she noted.
Supervisory Special Agent Kurt Schmidt of the FBI’s Violent Crimes Unit says that most alleged crimes on board cruise ships are not investigated because federal prosecutors either don’t have enough evidence or probable cause to support the allegations. He adds, “I don’t know if I’d say that was 90 percent of the reported incidents.”
He also tells Security Management that the FBI includes explanatory language on the statistical report informing readers of the FBI’s methodology. Schmidt did disclose that alleged crimes had been reported to the FBI in the third quarter, but he did not provide further detail. Responding to criticism of FBI criminal reports, he explains, “We are not in a position to comment on the wisdom of reporting just closed cases versus the number of incidents versus the number of open investigations,” Schmidt explains. “The FBI can’t interpret the law. The FBI has to comply with the law.”
CLIA also agrees that the FBI’s methodology follows the letter of the law. “We believe the FBI is reporting the statistics in accordance with the [law],” says Deno.
Walker, the maritime lawyer, strenuously disagrees. He says the FBI’s criminal reporting methodology undermines the purpose of the law, which was to provide American consumers with up-to-date crime information to base their vacation decisions on before booking a cruise.
“So the way these crime statistics are being gathered and publicized [is] doing just the opposite of what should be done,” he says. “The statistics are not only worthless, but they’re dangerous because they give a false sense that crimes…don’t occur.”
Dr. Ross Klein, a cruise line expert who also worries about underreporting and who has researched the issue, says that the FBI’s criminal reporting methodology for cruise ships diverges widely from its land-based methodology, which is tallied by complaints, not cases opened and subsequently closed.
“Laurie Dishman would not be included in the statistics on the FBI because they said it was a ‘he said/she said’ incident [that was never investigated], even though I understand that she got the largest cash settlement for any lawsuit against a cruise line involving sexual assault,” says Klein.
Reporting only closed investigations also means that statistical reporting can be delayed long after the alleged crime was reported, admits Schmidt. “We have to take into consideration not only a verdict and sentencing of the individual, but we also have to take into account potential appeals, so the case may remain open until all appeals are exhausted,” he says. That could take years.
Walker says that his network of Miami-based lawyers continues to trade stories of clients alleging they were sexually assaulted on board cruise ships. He says that unless FBI criminal reporting is reformed, passengers will continue to be misled into thinking that cruise ships pose no risk. “This collection of information is just so completely misleading that it’s disrespectful of the victims, and it does a real disservice, and it’s going to lead to the perpetuation of the problem,” he says.
The ICV is trying to address the lack of reporting on its own. In April of last year, the ICV submitted a FOIA request for all alleged crimes reported to the FBI in the first quarter of 2011. The organization would like to disclose to the American public all alleged crimes reported on cruise ships, regardless of whether the FBI opened a case file on them.
In December, the FBI complied with his FOIA request and sent seven heavily redacted pages of cruise line incident reports for the first quarter of 2011. According to the USCG Web site, a total of seven crimes were listed in that time span. The unredacted portions of the incident reports, which take up about two out of seven pages, show at least 23 alleged criminal incidents.
Matsui, who introduced the law, has not yet expressed a view on the implementation of the reporting provision, but she is looking into it. “[T]he Congresswoman and staff are talking with the FBI to ensure that we are all understanding the language of the law correctly and that it is being implemented accordingly,” spokeswoman Alana Juteau tells Security Management.
Training. Another concern for the ICV was the crime-scene-preservation training course developed by the USCG, the U.S. Merchant Marine Academy, and the FBI.
Carver asserts that it does not achieve what it claims to. “What they came up with is, frankly, a joke,” he says. “It’s an eight hour course with no guidelines,” and only three hours are devoted to crime-scene-preservation training. But what upset Carver most was that the USCG issued the training course as a policy letter, which meant there was no public comment requirement as there must be for regulations.
In an October letter addressed to Pennant at the USCG, ICV President Barnett complained “We consider it essential that ICV be able to comment on such documents and are deeply troubled by the fact that we [weren’t given that opportunity].” Pennant, however, defends the USCG’s training course to Security Management, explaining why the training was only eight hours long, with only three hours devoted to crime scene preservation. “One of the key things that was consistent throughout the development of the training was that we don’t want to train crew members to act as agents of the law,” says
Pennant. “I understand that there is concern that crew members need more training, but it’s not actually what the FBI is looking for. The curriculum provides us with what the FBI, once again based on past experience, needs crew members to know in order for them to successfully prosecute a case.”
According to the FBI’s Schmidt, “The training has to be sufficient to tell them what they should do and be aware of without giving the impression...that they then are qualified, certified evidence-collection technicians of the FBI or a law enforcement agency,” says Schmidt.
Walker remains unconvinced. “I don’t understand how a skimpy ‘training course’ of such a short duration can actually train anyone,” he says. “An untrained crew member is less likely to contaminate a crime scene? I don’t get it.”
What’s more worrisome, adds former CBP officer Hains, is that the cruise lines are effectively self-regulating when it comes to the interim training. Under the interim training guidelines, cruise lines determine whether a crew member is properly trained, not the USCG or an independent auditor. “If the cruise ships are allowed to continue to do their own training, this law is totally going to be ineffective,” she says.