THE PERFECT CRIME: OUTLAWS ON THE HIGH SEAS

By Norma Wheeler Sunday, June 18, 2017
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The rickety raft made of empty oil drums and a wooden tabletop rolled and pitched with the waves while tied to the side of the Dona Liberta, a 370-foot cargo ship anchored far from land in the Atlantic Ocean off West Africa.

“Go down!” yelled a knife-wielding crew member, forcing two Tanzanian stowaways overboard and onto the raft. As angry clouds gathered on the horizon, he cut the line.

Gambling on a better life, the stowaways had run out of luck. They had already spent nine days at sea, most of the time hiding in the Dona Liberta’s engine room, crouched deep in oily water. But as they climbed down onto the slick raft, the men, neither of whom knew how to swim, nearly slid into the ocean before lashing themselves together to the raft with a rope.

As the Dona Liberta slowly disappeared, David George Mndolwa, one of the abandoned pair, recalled thinking: “This is the end.”

Few places on the planet are as lawless as the high seas, where egregious crimes are routinely committed with impunity.

The above excerpt from a New York Times article describes a 2011 incident and paints a picture of the plight faced all too often by stowaways. The article quotes a retired United States Coast Guard commander as describing the high seas as “Like the Wild West. Weak rules, few sheriffs, lots of outlaws.” (The high seas are the open ocean beyond a band or zone along the coastline over which coastal states exercise jurisdiction.) The commander’s comment does not seem unjustified in light of the responses received from the authorities asked about investigating the MV Dona Liberta incident. The New York Times reports,

Officials at the International Maritime Organization, a United Nations agency, said that the country whose flag the vessel flies is supposed to investigate any allegations. An official at the Bahamas flag registry program said that any inquiry by his office would be referred to the I.M.O.

Murders and assaults of stowaways are but two examples of the crimes committed at sea. Further examples of which the United Nations have taken cognisance include “piracy and armed robbery against ships, terrorism, smuggling of migrants, and illicit traffic in persons, narcotics drugs and small arms … illegal dumping… illegal fishing.” The list by no means ends there. The head of security of a major cruise line is quoted as saying, “Cruise ships are like floating cities, any problem you have in a town, you have on a ship”.

Allegations of rape on board cruise ships are not uncommon. The issue of rape committed on board cruise ships is particularly well documented in the United States, but is certainly a problem that is experienced in other countries.  On the 10th of February 2012, it was reported that “[A] Pinetown man accused of rape has been acquitted after a Durban magistrate ruled that the alleged attack during a cruise on MSC Sinfonia did not happen in South African waters.”

We know of another case during the late 1990’s when a foreign ship en route to Durban reported ahead to the ship’s agent that there were two stowaways on board. When the ship arrived in Durban, there was no sign of the stowaways. When asked by the agent, the Captain said they had sailed close to some islands and the stowaways must have jumped overboard and swum ashore. The story was so unlikely that the agent reported a case of murder to the South African police who promptly arrested the Captain. However, when he appeared before a magistrate the latter refused to hear the case because the Captain testified in a bail application that the stowaways had been discovered on the high seas and must have escaped there. The magistrate concluded that there was no way to show that any crime happened within South African waters and therefore ordered that the Captain should be set free.

There are many jurisdictional difficulties posed by crimes committed on the high seas. A vessel’s nationality (and accordingly the laws to which she is subject) is determined by her flag, that is, the flag of the state in which she is registered. The flag state of a vessel has exclusive jurisdiction over crimes committed on board the vessel on the high seas. In keeping with this principle, section 327 of the Merchant Shipping Act 57 of 1951 provides for South African courts to exercise jurisdiction over any person who commits a crime on board a South African ship.

This allows for significant risk of the miscarriage of justice, as South African victims of crime on the high seas on foreign flagged vessels may find that the relevant foreign authorities lack the political will or resources to investigate and prosecute criminals, especially where the alleged perpetrator and / or victim are not citizens of the flag state. This problem is exacerbated by the prevalence of flags of convenience, where vessel owners choose the state in which to register their vessels on the basis of convenience. One of the chief hallmarks of flags of convenience is the lack of regulation. Flag states have little incentive to effectively enforce regulatory control, given that convenience is part of their attraction. According to 2014 UNCTAD statistics, over 40% of the world’s merchant fleet, measured in dead weight tonnage, is registered in Panama, Liberia or the Marshall Islands and the vessel owners of 73 percent of the world’s fleet have chosen a state other than their own to flag their vessels.

Florida has an interesting approach in that Section 910.006(3), Florida Statutes (1995) permits the exercise of criminal jurisdiction in respect of crimes committed on board a ship outside of Florida in any of the following circumstances, where: the victim is resident of Florida; the suspect on board the ship is a resident or citizen of Florida; more than half the revenue passengers aboard the ship originally embarked and plan to finally disembark in a Florida port; or the crime causes a "substantial effect" within Florida.

South Africa should consider amending its laws in a similar vein to ensure that it can prosecute criminals who commit crimes against South Africans on the high seas, otherwise a loophole potentially allowing criminals to get away with the “perfect crime”.

This article first appeared in the Sunday Tribune.