Duty of Cruise Lines to Assist Persons In Distress: Moral, Legal & Practical Considerations On The High Seas
The Star Princess' refusal to assist the three young men aboard the disabled Fifty Cents fishing boat has captivated the world's attention. My first article on the troubling story - Two Dead Fishermen: Did Star Princess Cruise Ship Ignore Mariners In Distress? - elicited strong comments by the public. One comment on my blog from "Martin" about the captain of the Princess cruise ship summed up the essence of the problem:
"They have forgotten the human being."
There is a palpable sense of outrage that Princess abandoned three young men on the high seas.
Where does this sense of anger come from? What are the moral and civil obligations which arise from the tragic and entirely avoidable deaths of the young Panamanian men.
Moral and Biblical Duty to Assist Your Fellow Man
When I was a kid, my mother raised me with one fundamental governing principle in mind. She taught me that my purpose in life was to help others. Although I did not realize it at the time, she was paraphrasing the Bible, Matthew 7:12:
"Do to others whatever you would like them to do to you. This is the essence of all that is taught in the Law and the Prophets." (New Living Bible Translation)
The maritime obligation to assist people in distress at sea, in my view, is based firmly on the "Golden Rule" of helping others in the same way that you would want to be if you were in distress.
The same life guiding principle is found in other faiths. There is an equivalent passage in the Torah, which warns people "never to turn aside the stranger, for it is like turning aside the most high God." The Prophet Muhammad is reported to have said that "the highest expression of faith is to love for others what you love for yourself and to dislike for others what you dislike for yourself." In Buddhism, you will find "Act not on others in ways that you yourself would find hurtful."
The maritime duty of a mariner to assist less fortunate mariners in peril on the high seas can be traced back to the Medieval Sea Codes where unwritten maritime traditions from the times of Jesus were first reduced to parchment.
A mariner on a seaworthy vessel who sails away from seafarers in distress on a derelict vessel is, in essence, sailing away from himself and God Almighty in the process.
Modern Legal Considerations
The duty to assist at sea is a fundamental part of U.S. maritime law. In Caminiti v. Tomlinson Fleet Corp., 1981 MAC 201 (E.D. Ohio), passengers went overboard from their pleasure craft. Two ships passed by and didn't stop, with one of the ships even shining its spotlight on the men struggling in the water before callously proceeding on. The men drowned.
The shipping companies denied they had any obligation to assist the drowning men. The Court disagree, finding that the "law of the sea has always demanded a higher degree of care, vigilance and diligence." The duty to rescue "strangers in peril" exists even if the ships did not cause the peril in the first place. The Court stated that to accept the shipping companies' argument would create a situation "shocking to humanitarian considerations and the commonly accepted code of social conduct."
Currently, there are three international conventions which impose a duty on ships to assist individuals in distress at sea.
The first is the International Maritime Organizations (IMO) regulations found in the Safety of Life at Sea Convention (SOLAS). The second is the U.N. Convention of the Law of the Sea (UNCOLOS). The third is the International Convention of Salvage (1989) (“Salvage Convention”). All three conventions essentially state that a captain of a ship once notified of persons in distress shall proceed with all speed to their assistance.
Tulane Maritime Law Professor Martin Davies wrote an interesting law article which discusses the legal basis for these legal duties - Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea. Professor Davies refers to the Director for the Center for Seafarer Rights in New York who states in a footnote: "there is no doubt that watchkeepers on some vessels, at least, pointedly look the other way as they close on small craft far from the shore. Quiet words undoubtedly been spoken to masters about the inadvisability of being too zealously on hand and available . . ."
The conventions include criminal penalties; there is the potential for the captain to be imprisoned and he and his employer to be fined.
Generally, these obligations can be enforced in a criminal context only by the “flag state.” All cruise ships fly "flags of convenience" in order to avoid U.S. taxes and labor and safety laws. For example, Carnival flies the flag of Panama. Royal Caribbean flies the flags of Liberia and the Bahamas. And Princess Cruises, which operates the Star Princess, flies the flag of Bermuda.
These countries are generally considered to be hesitant to enforce these conventions. They do not want to upset their cruise line customers. Maritime Professor Davies writes: "many ocean-going commercial ships are registered under flags of convenience in countries notoriously unlikely to be zealous in enforcing the legal obligations imposed by the conventions."
Bermuda has a maritime law which applies, called the Merchant Shipping Act of 2002, which recognizes the duty to assist ships in distress. It states in part:
"The master of a ship, on receiving at sea a signal of distress or information from any source that a ship or aircraft is in distress, shall proceed with all speed to the assistance of the persons in distress unless he is unable, or in the special circumstances of the case considers it unreasonable or unnecessary . . ."
The Bermuda law includes criminal penalties, ". . . on conviction on indictment, to a fine of $50,000 or to imprisonment for a term of two years, or both."
Practical Considerations When Cruise Lines Violate International Conventions
The legal framework is in place for Bermuda, as the flag state responsible for enforcing the IMO regulations, to investigate and proceed with a criminal hearing against Princess Cruises and its captain. The question is whether Bermuda will act and, if so, will act in good faith and seriously attempt to put the Princess captain behind bars.
I was interviewed last week by the BBC Radio and I expressed my doubts whether Bermuda will zealously proceed against Princess Cruises. After all, Princess is Bermuda's customer. Bermuda enjoys a chummy relationship with the California-based cruise line which favored Bermuda with its business. You can hear the BBC interview, including comments by one of the U.S. passengers who spotted the disabled fishing boat, here (the radio segment starts at the 36:25 mark).
Bermuda states that it intends to conduct an investigation into the cruise ship’s failure to respond to the disabled fishing boats’ pleas for assistance. But Bermuda does not have an impressive record involving criminal cases involving Bermuda flagged cruise ships. We have handled maritime crime cases against Bermuda flagged cruise ships, including a case where a woman was raped on the Star Princess, where Bermuda never even opened a file.
If Bermuda white-washes the investigation and exonerates the captain, which I expect to be Bermuda's motivation for suddenly becoming interested in criminal conduct involving its ships, there is legal authority that other countries with an interest in the matter can to bring criminal action against the captain and the cruise line. Panama, whose citizens were killed by the captain's alleged dereliction of duty, can and should assert criminal jurisdiction if Bermuda fails to act or acts in bad faith.
This is a very significant issue because Princess cruise ships sail through the Panama Canal. If I were Princess Cruises, I would be very concerned that the Panamanian authorities will seize one of my cruise ships if it enters Panamanian waters.
Back to the Bible: An Eye For An Eye
In addition to the criminal issues, it is a certainty that the families of the survivor and the two dead young men will bring a civil action for compensation against the cruise line and the captain, either in the United States and/or Panama. It is also likely that they will file a notice of lien to seize a Princess cruise ship if one decides to sail through the Panama Canal.
The civil lawsuit against Princess will also include punitive damages against the cruise lines seeking to punish the cruise line for its alleged willful and wanton conduct. Like the obligation to assist others, the concept of punitive damages can be traced back to the Bible, Exodus 24:21: an "eye for eye, tooth for tooth, hand for hand, foot for foot."
Fifty Cents Sail Boat - Jeff Gilligan
Star Princess - Jim Walker
A quote to remember this story: "Treat People As You Would Like to be Treated - Karma Is A Bitch Only If You Are" (author unknown).