In the aviation sector, the general position is that a crime committed in the air will be dealt with wherever the plane lands. The position, however, is not as straightforward in the maritime sector. Take the following example. On a passenger ship, one of the crew is fatally injured by an intoxicated passenger. Which law applies? What are the Master’s powers in this scenario? Which investigative authority should the operator call upon to assist?
Taking a step back from the operational considerations onboard the ship in such circumstances, in broad terms, the applicable law would be that of the country in which the incident occurred. Generally, a territorial state has jurisdiction over merchant vessels in its waters and over crimes committed onboard such vessels. So, if the incident cited above occurred onboard a merchant vessel in port in the UK, or within UK territorial waters, the UK courts would have jurisdiction to deal with the matter, irrespective of the nationality of the offender, victim or vessel’s flag state. If the incident occurred when the vessel was in international waters, however, the state whose flag is flown by a ship can claim jurisdiction.
For the purposes of English law and jurisdiction, the Merchant Shipping Act 1995 (MSA) has territorial scope in respect of all vessels within UK territorial waters, UK flagged vessels in international waters and, in certain circumstances, British subjects onboard foreign vessels on the high seas. Additionally, certain other English criminal law offences have extra territorial effect including sexual offences against children, murder, manslaughter and terrorism offences, insofar as they are committed by British subjects.
Specific offences under the MSA include attempting to enter a ship after admission has been refused whilst being drunk and disorderly, molesting a passenger after having been warned by the Master or an officer, obstructing or damaging any part of the machinery or equipment of the ship and obstructing, impeding or molesting any of the crew in the execution of their duty on or about the ship. These offences are relatively minor in nature and carry relatively low penalties.
In terms of dealing with offences committed onboard ships at sea, at common law, the Master of a vessel has absolute control over the passengers, indeed they are bound to obey all of his reasonable orders, and in an emergency can even be ordered to work the ship or fight for it! Generally, the Master may use any reasonable means to enforce obedience to his lawful commands. Note, the key principle in this general power of arrest is “reasonableness”. Furthermore, under the MSA, the Master of any UK ship may cause any person onboard to be put under restraint if and for so long as it appears to him necessary or expedient in the interest of safety or for the preservation of good order or discipline on board the ship.
In English law, the test for what is reasonable and proportionate in the context of an arrest is relatively straightforward. The test simply requires that any force used must be "reasonable in the circumstances". As with most issues onboard, what constitutes a reasonable and proportionate response is a matter for real time determination by the Master at the time of the incident.
In any situation of this nature and in matters which might, ultimately, result in a claim against the operator, the preservation and gathering of evidence relating to the incident in question is of crucial importance. Not only can such evidence serve to protect the Master and crew, it can also assist the operator defending a claim. For example, if the Master is required to arrest a passenger, consideration should be given to what evidence exists to prove that the offence occurred, that the crew’s actions were reasonable and proportionate in the circumstances, and that the custody of the prisoner accorded with the operator’s duty of care towards that person.
In practical terms, the preservation and gathering of evidence can be facilitated by four principal considerations (in law enforcement phraseology this is referred to as “crime scene management”). The key considerations are Location, Offender, Victim, Evidence: Location (e.g. did the incident occur in a cabin, in the bar, on deck, etc? Does the scene need to be cordoned off for subsequent forensic investigation? Do we need to stop other passengers from entering the location of the incident?); Offender (e.g. Identity of the offender? Has he been detained? How are we documenting his custody? Does he pose a further risk to other passengers or crew? Do we need to seize the offender’s property?); Victim (e.g. Who is the victim? Do they need medical attention? Do we need to preserve the victim’s clothing? Can they provide a witness statement?); Evidence (e.g. Do we need to seize a weapon? Is there any CCTV footage? Do we need to retain damaged property? Who are the witnesses? etc).
There is no doubt that the jurisdictional issues surrounding passenger related incidents onboard merchant vessels are complicated. Whatever the location of the offence, we suggest that the prudent course of action for a Master is to ensure that his actions are “reasonable and proportionate” in the circumstances and that all available evidence relating to the incident is preserved.