Leesfield & Partners
Miami, FL
In July of 2010, Congress enacted the Cruise Vessel Security and Safety Act (CVSSA), 46 U.S.C.A. §§ 3507, 3508. This Act applies to all passenger vessels that are authorized to carry at least 250 passengers, have onboard sleeping facilities for each passenger, is on a voyage that embarks or disembarks passengers in the United states and is not engaged in a coastwise voyage. 46 U.S.C.A §3507(k)(1). The Act was designed to improve vessel security and safety based upon findings by Congress that “passengers on cruise vessels have an inadequate appreciation of their potential vulnerability to crime while on ocean voyages, and . . . lack the information they need to understand their legal rights or to know whom to contact for help in the immediate aftermath of the crime.” See Congressional Findings, Pub.L. 111-207 §2, July 27, 2010, 124 Stat. 2243.
In implementing the Act, Congress set forth various vessel design, equipment, construction and retrofitting requirements. 46 U.S.C.A. §3507(a). The Act imposes guidelines for video recording, 46 U.S.C.A. §3507(b), requirements for making safety information available to passengers, 46 U.S.C.A. §3507(c), specific duties for dealing with sexual assaults including the availability of medical care and access to properly trained professionals, 46 U.S.C.A. §3507(d) and (e) restrictions governing crewmember access to passenger staterooms, 46 U.S.C.A. §3507(f). In order to assist in developing reliable crime related data and making the information available to the public, the Act also includes reporting guidelines and records maintenance requirements. See 46 U.S.C.A. §3507(g). The Act also establishes mandates for crime scene preservation training for passenger vessel cruise members. 46 U.S.C.A. §3508.
In order to implement these new requirements, the Act empowers the Secretary of Transportation to develop and issue any necessary “guidelines, training curricula, and inspection and certification procedures . . .” 46 U.S.C.A. §§ 3507(I), 3508(a).
The United States Coast Guard has since issued CG-543 Policy Letter 11-09 for the purpose of “provid[ing] guidance to the U.S. Coast Guard inspectors for compliance verification of CVSSA requirements by cruise vessels during the course of scheduled safety and security inspections.” While this Policy Letter is not a rule or a substitute for applicable legal requirements, it represents the Coast Guard’s current thinking on this topic and can assist the industry and the general public in applying statutory and regulatory requirements.
This Policy Letter states in detail states how a Port State Control Officer (PSCO) shall examine a vessel to ensure compliance. This includes spot check measurements to ensure proper railing heights and placement of peepholes. For example, it notes that peepholes in compliance should be constructed of metal housing, be made of glass and limited to a frame outside diameter of not more than 1 inch (25 mm). It also discusses other spot checks, such as to ensure that the vessel’s security guide is available to passengers in their staterooms and posted in areas readily accessible to the crew.
In addition to spot checks, the Policy Letter recommends that the PSCO also question shipboard medical personnel to ensure compliance with their credentialing, proper documentation of incidents and maintenance of adequate and in-date supply of medications. For example, it directs the PSCO to ask questions such as “Does the ship maintain an adequate and in-date supply of anti-retrovilal medications and other medications designed to prevent sexual transmitted diseases?” or “ Does the patient have free and immediate access to contact information for specified law enforcement authorities and national assault sexual hotlines?” (A complete copy of this Policy Letter can be obtained on the USCG website or at Leesfield.com.)
As required by the Act, in July of 2011 the USCG, U.S. Merchant Marine Academy and the FBI, have issued a Model Course CVSSA 11-01 entitled Crime Prevention, Detection, Evidence Preservation and Reporting. This provides a detailed course outline and teaching syllabus to be used in training personnel to obtain the certification as required under 46 USCA §3508. Within two years of the issuance of the standard, ship owners/operators are required to have at least 1 crewmember onboard who is certified as having successfully completed this training. (A complete copy of the Model Course can be obtained on the USCG website or at Leesfield.com )
The Act also requires the reporting of crime statistics. 46 U.S.C. 3507(g)(4)(A). As of January 1, 2010, crime statistics for the major cruise lines have been posted on the USCG website. (A complete copy of the crime statistics can be obtained on the USCG website or at http://www.Leesfield.com)
Interpreting the scope and mandates of the new requirements under Act will likely produce a wave of litigation as many questions have been raised. For example, will the new requirements change the duty of care owed by the cruise operator to their passengers?
One long standing principle under maritime law is that a ship owner cannot be held vicariously liable for the negligence of the ship’s medical doctor under the theory of respondeat superior. Barbetta v. S.S. Bermuda Star, 848 F.2d 1364 (5th Cir. 1988). This holding is based upon the rationale that cruise ship owners are not required to have doctors aboard their vessels. Now, however, the Act requires that ships under its auspices to carry a medical provider. Accordingly, the question now arises whether this statutory change will also remove the rationale for the existing rule of non-liability. This is only one of many questions that will likely arise in the future as a result of the changes in the law imposed by the new Act, which will have to be answered over time.