KATINKA SVANBERG
H.9.1 Introduction
Jurisdiction refers to the ability of a country to make and to enforce its laws. There are two basic types of jurisdiction: prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction is the power to regulate people and situations regardless of their location. Enforcement jurisdiction is described as the ability of a country to legally arrest, try, convict and imprison an individual for a breach of its laws.[1]
When a crime is committed on board, the legal position is complicated and the rights of individual countries to prosecute will be different, not only ship by ship, but for every individual crime. This is because several factors determine/complicate jurisdiction over the crime. Factors to be considered to determine which countries may have jurisdiction over an incident include:[2]
- the location of the ship at the time of the incident,
- its previous and next port,
- its flag state,
- the citizenship of the accused and victim,
- what type of incident and sometimes, what type of ship is involved,
- the respective domestic laws of all countries involved to determine which countries may have jurisdiction over the crime.[3]
H.9.2 United Nations Convention on the Law of the Sea
International law governs various types of claims of jurisdiction over acts on board ships at sea. Jurisdiction is based on the Law of the Sea. In the UN Convention on the Law of the Sea, (UNCLOS),[4]distinction in jurisdiction is made between the high seas, a state’s economic exclusion zone (EEZ), and its territorial and inland waters. The rules set out on jurisdiction in UNCLOS are considered customary international law and hence ruling. Under UNCLOS, the most prominent head of jurisdiction is flag State jurisdiction, although it also entitles port States, with inland waters, and coastal States with territorial sea, to claim jurisdiction in certain circumstances.[5] Jurisdiction can also be found in the domestic legislation of a particular state, which is seeking to apply its laws to the crime on board, based on, for example, the citizenship of the victim or perpetrator, the nature of the crime, or the position of the ship. Thus, there is the possibility of many concurring jurisdictions!
UNCLOS also sets out the rule in its art.97 and art.94 (7):
‘Each state shall cause an inquiry into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment’.
In the case of collision or any incident of navigation on the high seas, UNCLOS gives jurisdiction to both the flag State and the state whose nationals are responsible, such as crew or Master.[6] The jurisdiction in case of collisions and incidents between ships on the high seas follows the following rule set out by the International Tribunal, the Permanent Court of Justice (PCIJ), in the famous S.S.Lotus case: that the ships on the high seas are deemed to be the same as the territory of their respective flag states, and if the illegal behavior of one ship affects any other ship, the affected ship’s flag state may exercise its jurisdiction.[7]
Further information on UNCLOS is available in Ch 3.4.
H.9.3 Flag State Jurisdiction
UNCLOS art.92 provides that on the high seas, the flag State has ‘exclusive jurisdiction’ over incidents on board. ‘Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.’ However, there can in some instances be concurring jurisdiction, meaning overlapping jurisdiction with another state on the high seas. This can be the case when ships are registered in open registries that lack sufficient resources to investigate and prosecute all crimes or investigate a death or other incident on board ships flying their flag. Thus, it is desirable to have a concurrent jurisdiction in another state with the will and resources to prosecute, but of course, that other state must be able to support its claim for jurisdiction.[8] Still, on the high seas or sea outside the jurisdiction of any other state, the main rule is flag State jurisdiction, because there is no international coastguard patrolling the high seas.
H.9.4 Port State Jurisdiction
In territorial and internal waters the coastal State and the port State can claim jurisdiction over incidents on board a foreign vessel but punishable by the coastal State’s (port State) domestic laws. In UNCLOS the territorial sea has a breath of nautical 12 miles. Here the coastal state’s coastguard and police have jurisdiction and can force a foreign ship to dock at its ports for investigation of a crime suspected to be committed on board. For example, if a dead body is cast overboard from the ship or an oil spill occurs.[9] It should be noted that the coastal State has criminal jurisdiction under Art.27 in UNCLOS if:
a) the consequences of the crime extend to the coastal State
b) the crime is of a kind to disturb the peace of the country or the good order of the territorial sea
c) the assistance of the local authorities has been requested by the Master of the ship or by the diplomatic agent or consular officer of the flag State, or
d) such measures are necessary for the suppression of illicit traffic in narcotic drugs of psychotropic substances.
Moreover, UNCLOS gives the right to the coastal State to take any steps authorised by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. An exception to coastal State jurisdiction is if the vessel is only passing through the territorial sea, with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters. Then the coastal State shall not arrest any person or to conduct any investigation on board, see UNCLOS art.27 (5).
If the coastal State assert jurisdiction, the vessel will be escorted by the coast guard to port for an investigation of the incident and management of the crime scene. The local authorities can claim a right to investigate and prosecute. They can also intercede where a ship has left a port but is within 12 nautical miles, if the intercession concerns a crime that occurred in internal waters or the territorial sea.[10] On the other hand, petty crimes committed on board, such as stealing a bottle of wine or cigarettes from crew or passenger, will be dealt with by the Master of the ship, the so called ‘internal economy’ of the ship.
A coastal State has very limited rights to assert jurisdiction over its contiguous zone, EEZ, that is, the belt of water between 12 nm and 24 nm beyond its baseline. UNCLOS provides that the coastal State has jurisdiction over its EEZ and Continental Shelf for purposes relating to economic exploitation and environmental protection, while international illegal fishing could be under its jurisdiction. Likewise, the coastal State may exercise control necessary to prevent or punish infringement of its customs, fiscal immigration or sanitary laws and regulations within its territory or territorial sea. However, if a coastal State will claim jurisdiction over criminal acts on board ships in the seas beyond the territorial sea, it needs to use international law beyond UNCLOS.
When an incident has occurred on board a ship on the high seas, it is common for the Master to report it to the authorities in the next port. International law recognises that the ‘next port’ may claim jurisdiction on the basis that the ‘effect’ of the incident will be need to be dealt with in that State. This is an example of the general principle of objective territory jurisdiction, namely where acts committed abroad give rise to an effect in the State claiming jurisdiction.[11] The State may claim jurisdiction to prosecute the case, subject to consultation with the flag State. Thus, the authorities at the next port have the right to deal with the evidentiary and investigative elements of the crime scene as well as the detention of the accused. On the other hand, they can also refuse to deal with the crime, and then the vessel needs to proceed on its journey.
H.9.5 Jurisdiction of Other States
Most likely, passengers and crew of a ship are not nationals of the flag State. It could be that the State whose nationals they are wants to assert jurisdiction over a crime committed against them on board. When a criminal act is committed against a citizen of the state, in some circumstances the victim’s State claims a right to prosecute. Today, such broad jurisdiction, called universal jurisdiction is not accepted under international law, except for certain grave international crimes accepted in conventions dealing with serious international crimes such as terrorism and hostage taking.[12] The United States has unusually broad jurisdiction, and asserts jurisdiction over stateless vessels and for crimes committed against US citizens. This is discussed further in Ch 9.6.
The type of ship, such as a cruise ship or a war ship, also is considered. For example, on a cruise ship flagged in an open registry, the crime against one of its passengers, could give rise to jurisdiction in a state that relies on passive personality principles to ground an assertion of jurisdiction over a particular crime, in circumstances where the flag state does not intend to prosecute. Then the crime can be prosecuted in the state where the passenger is a national.
H.9.6 Rights of Port State to Board and Inspect a Vessel
As has been highlighted above, the coastal State or the port State, can intercept or force a vessel to dock for investigation of a crime scene when a crime occurs in internal waters or its territorial sea and the crime is supposed to be of some dignity. In addition, the Master should report a crime committed on board to the next port of destination.
An enquiry or investigation by the vessel’s flag State or by the vessel’s owners is required and the Master, crew and contractors, are obliged to assist in the investigation and make formal written records if national law so requires. If a dead body is present, the next port State have a right to examine it, but does not need to accept it. Further information on death at sea is available in Ch. 9.6.
H.9.7 Examples of Criminal Acts and Jurisdiction in International Tribunals
As shown above, most criminal acts occurring on board are investigated and prosecuted under national jurisdiction in national courts. In addition, international extradition treaties may be in place between states, moving the perpetrator to another state for trial or imprisonment. Also, choice of law issues, are often decided in contractual shipping agreements, where usually jurisdiction is taken care of and the torts claims might be proceeded through international arbitration. In crimes occurring on the high seas, or a state’s EEZ, and when states cannot agree on jurisdiction, an international tribunal might settle the case, if the states that are party to the dispute accept the tribunal’s jurisdiction, by either treaty or acceptance in the individual case.
H.9.8 Cases
Fishers mistaken for being pirates
In a recent international case, two Italian vessel protection detachments (VPDs) killed two Indian fishermen when the VPD’s fired upon a fishing boat in India’s Economic Exclusion Zone, thinking it was a pirate ship. Subsequently, the Indian Navy intercepted the Italian vessel, and forced it to dock at an Indian port, where a forensic investigation was done. Then, the two VPDs were brought into custody and charged with murder in India. Subsequently, one was released after two years based on his physical health and cardiovascular disease.
The incident was brought to the Permanent Court of Arbitration, according to UNCLOS provisions, which found that Italy, as the flag state of the VPDs had jurisdiction, based on the fact that the crime occurred in India’s EEZ , that is outside India’s territorial waters. Also, the UNSC resolutions on maritime piracy made an exemption for piracy attacks committed in that area. However, Italy was required to compensate for the two deaths and for damages and society losses suffered in interfering with the navigation of the Indian fishing vessel in India’s EEZ.[13]
The M/V Saiga No. 2 Case
Another example is the M/V "Saiga" No.2 Case (Saint Vincent and The Grenadines v. Guinea in 1999. This judgement is from the International Tribunal for the Law of the Sea (ITLOS).[14] It concerns a supply vessel registered in Saint Vincent and the Grenadines that gave gas and oil to fishing vessels legally fishing in Guineas EEZ in 1997. The ship was fired at by Guinea patrol boats in Guineas EEZ, two persons onboard were wounded and the ship was arrested off the coast of Sierra Leone. The Master was prosecuted for customs violations and the crew detained. ITLOS found Guinea had no right to exercise its customs laws in the EEZ and held that Guinea did not satisfy the requirements of hot pursuit under Article 111 of UNCLOS. By firing ammunition from high caliber weapons at the oil tanker, Guinea used excessive force in its arrest. ITLOS particularly noted that warning shots and other non-lethal options should have been exhausted before lethal options were considered.
The M/V Seaman Guard Ohio Case
In 2013, the M/V Seaman Guard Ohio, a US-owned and Sierra Leone-flagged ship was arrested in by the Indian coast guard.[15] The ship, owned by a US-based maritime security firm was intercepted off the coast of Tamil Nadu and later escorted to Tuticorin, India. India’s coast guard detained 10 crew and 25 PCASPs for carrying 35 assault rifles and around 5,680 rounds of ammunition in Indian waters without valid permits, for alleged offences under the Essential Commodities Act 1955, as well as the Indian Arms Act 1959. The owner of Seaman Guard Ohio stated that the arms and ammunition on the ship were purchased legally and meant for use in counterpiracy operations, to safeguard vessels in piracy high-risk areas in the Indian Ocean. The case raised jurisdictional issues when the owner argued that the ship was outside India’s territorial waters when it was intercepted by the coast guard. According to a coast guard official, the ship was 15 nautical miles off the coast when it was intercepted, but outside the 12 nautical mile-limit for India’s territorial waters. The Indian government labelled the vessel a floating armory, the company’s spokesperson denied the categorization saying the ship serves as an escort vessel that was unable to dispose of its weapons prior to entering port due to the sudden nature of the detainment by the Indian coast guard. After detention and investigation, the Madras High Court set the multinational crews free, but their passports were taken due to an appeal by the Indian police. In 2016, the judge of Tuticorin District Principal Sessions Court sentenced all the 10 crew and 25 guards to undergo 5 years of imprisonment and a fine. However, the Madras High Court acquitted them in 2017, after 4 years of actual imprisonment. A key finding of the High Court supporting the acquittal was that anti-piracy operations were legitimate and the ship, even if it was in Indian coastal waters, was in ‘innocent passage’. According to UNCLOS ‘Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.’ However, under UNCLOS all ships carrying arms are not considered to be in innocent passage[16].
Piracy off the Nigerian coast
In Nigeria in 2020, a Greek owned ship flying a Liberian flag was ordered by the Nigerian Port authorities to anchor 1,5 km from the Nigerian Port where its cargo was to be delivered. At night, pirates entered the ship, kidnapped nine of its crew, and demanded a ransom. All crew were from the Philippines, and those kidnapped included the Master. The Port authorities refused to call the police or do any investigation, as they claimed the incident had not been reported. The pirates then contacted the ship owner and the insurance company to negotiate a ransom. The case was solved through these private negotiations, so that the Filipino crew and Master were released upon the payment of a huge ransom by the insurance company. Upon release, the hostages were medically reviewed and then then repatriated to the Philippines. The ship left Nigeria with a new crew, but with fines because they had to dock in Nigeria during the process. The pirates were never brought to justice.[17]
The Example of US Jurisdiction Claims
In the United States, its torts law opens the way for huge compensation claims for action at sea to be brought in US courts by US nationals but also by foreigners, as long as US law governs. However, jurisdiction is usually denied when all parties involved are aliens, as the flag state jurisdiction applies even if the incident happened in US territorial waters.[18] In Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster A/I7, the Fifth Circuit held that where none of the vessels are owned, operated, chartered, or otherwise controlled by any entity with a significant link to the United States, the matter may be dismissed pursuant to the doctrine of forum non conveniens.[19]. However, the Alien Torts Act, allows for pirate incidents and terrorism being tried in the US.[20]
When it comes to death at sea, that is usually an Admiralty case in the US. In 1920, the US Government enacted the Death on the High Seas Act (DOHSA) and in its territorial waters, the Jones Act applies, both to seafarers that are employees and also non US citizens.[21] In DOHSA, the death, or the incident causing a wrongful death, must have taken place at sea three miles out from the shore of any state, while the Jones Act provides for remedies for death of a seafarer inside the US territorial waters up to three miles from the shore.
In addition, legal remedies can be brought under general maritime law, that is customary rules and principles of domestic maritime law and international maritime law.[22] However, there is also a Statute of Limitation Act, available for vessel owners that limits a ship owner's liability in many cases, to the value of the ship and its freight after the accident.[23]
[1] Natalie Klein , Legal Limitations on Ensuring Australia’s Maritime Security, Melbourne Journal of International Law, 2006:7:.1-25.
[2]Kate Lewins, Jurisdiction over prosecution of criminal acts on cruise ships and regulation of the cruise ship industry, Background paper on behalf of MLAANZ, Perth Australia, 2013 Available from:file:///C:/Users/katin/Downloads/http___www.aphref.aph.gov.au_house_committee_spla_crimes%20at%20sea_subs_sub001.pdf.
[3]Kate Lewins, Jurisdiction over prosecution of criminal acts on cruise ships and regulation of the cruise ship industry, Background paper on behalf of MLAANZ,Perth Australia, 2013 [file:///C:/Users/katin/Downloads/http___www.aphref.aph.gov.au_house_committee_spla_crimes%20at%20sea_subs_sub001.pdf}.
[4] https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[5] Ibid., p.3.
[6]Changwoo Ha, Criminal jurisdiction for ship collision and marine pollution in high seas-Focused on the 2015 judgement on M/V Ernest Hemingway case, Journal of International Maritime Safety, Environmental Affairs, and Shipping, Vol. 4:1, 2020, pp. 8-15DOI: 10.1080/25725084.2020.1717304. UNCLOS art. 97(1):” 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.”
[7] S.S. Lotus Case, Permanent Court of Justice, France v. Turkey, Judgment, 7 Sep. 1927.
[8] Ibid. P.4.
[9] See for example the case, Mali v Keeper of the Common Jail 120 US 1 (1887), where the US Supreme court exercised jurisdiction over an on board murder of one crew by another, on a Belgian flagged ship, whilst the ship was at dock in a US port, on the basis it had disturbed the peace of the US.
[10] Lewins, supra, p.8.
[11] Ibid.
[12] See the Achille Lauro incident, supra. Since the 2002 Bali bombings, It is now an offence to kill or seriously hurt an Australian citizen or resident whilst out of Australian territory. The French have a similar provision in their Penal Code, as do the US.
[13] PCA Case No. 2015-28, An Arbitral Tribunal Constituted Under Annex VII to the 1982 UNCLOS, Italian Republic v. The Republic of India - concerning - The “ENRICA LEXIE” Incident, Award, 21 May 2020, para.6b).
[14] M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, p. 10,
[15] Srilatha Vallabu. Privately Contracted Armed Security Personnel in Indian Ocean Region. Patrick Chaumette, (ed) ESPACES MARINS: SURVEILLANCE ET PRÉVENTION DES TRAFICS ILLICITES EN MER, Gomylex, (2016), pp.265-279, p.270.
[16] UNCLOS Art.19:2(b)
[17] The grim realities of a ship hijacking in the Gulf of Guinea, IJMCS, 2021:2(1), to be published.
[18] Paul W. Glenn, Jones Act. Jurisdiction: Application to Alien Seamen and Shipowners, California Law Review, 1970:58(2): 491-510
[19]In a Collision occurred in Chinese waters between a Panamanian-owned container ship chartered by a Swiss corporation ( "MSC Shipping") and a dredge owned and chartered by Netherlands corporations ("Boskalis"). MSC Shipping filed suit with the Tianjin Admiralty Court, where the limitation fund was significantly less than MSC Shipping's loss, while Boskalis filed eight claims in US courts. The US case was dismissed as interested parties had no significant relationship to the United States, dismissal was appropriate pursuant to the doctrine of forum non conveniens, because none of the parties, nor applicable law (Chinese law) was American, Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster A/I7,. Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster A/I7,569 F3d 189 (4th Cir. 2009).
[20]Anthony J. Bellia Jr, Bradford R. Clark, The Alien Tort Statute and the Law of Nations, The University of Chicago Law Review, Spring 2011, Vol. 78: 2 , 2011, pp. 445-552
[21] The United States Death on the High Seas Act of 1920 (DOHSA) (46 U.S.C. app. §§ 761–768) is a United States admiralty law enacted by the United States Congress, See Robert J. Brown, Is the Death on the High Seas Act Jetsam or Flotsam:State nd Federal Wrongful Death Statutes Collide Over the High Seas, Tort & Insurance Law Journal: 1986:21(2): 296-320.
[22] Michael J. Daly, Louis R. Koerner Jr., Anne L. Kulesa, Joseph F. Kulesa, Laurie Sands, RecentDevelopments in Adminrality and Maritime Law Tort Trial & Insurance Practice Law Journal , 2010:45(2):119-147,130.
[23] Ibid., p.136