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July 28, 2010

Winston & Strawn briefs on new cruise vessel safety law

President Obama has signed into law the Cruise Vessel Security and Safety Act of 2010. The new law aims to improve the safety and security of American citizens sailing as passengers to and from the United States on large cruise vessels. The law requires large cruise vessels carrying American citizens to adopt basic reporting, safety, and security measures akin to those American tourists have come to expect in the hotel industry in the United States.

Winston & Strawn LLP has provided a client briefing on the new law that you can access HERE.

Among highlights of the new law noted in the client briefing is a requirement that cruise lines develop policies to restrict crewmember access to passenger cabins.

The new law also mandates that cruise vessels be provided with several other basic security measures, including security peepholes on passenger cabin doors, security cameras, and (in new vessels) time sensitive locks and latches.

The new law also requires 42 inch high guard rails and says that each passenger must be provided with information about how to contact the proper authorities, and American consulates, everywhere the ship sails.

Cruise ships must report to the FBI and keep a record of all serious crimes and thefts of over $1,000 and then make this record available to the FBI, the Coast Guard, and other law enforcement officials. Serious crimes and thefts of over $10,000 must be reported immediately to the FBI if they involve an American national. The law mandates the FBI to prepare a statistical summary of the crime data, broken down by cruise line, and post it on the Internet. Additionally, each cruise line must include a link to this crime reporting web site on its own web site.

In response to testimony criticizing the treatment of sexual assault victims by cruise lines, the new law requires the on-board medical personnel on cruise vessels to meet enhanced qualifications and standards, undergo sexual assault response training, and carry the proper anti-retroviral medications. The medical staff must also be able to conduct a forensic medical examination of sexual assault victims and prepare documentation for the victim and the authorities. They also have an obligation to immediately provide victims with private telephone and Internet access to law enforcement authorities, counsel, and third-party services, e.g. the National Sexual Assault Hotline program.

Medical confidentiality provisions in the law forbid the master of the vessel to pass on confidential medical records from sexual assault victims to company officials - particularly the corporate legal department -without the consent of the patient. These confidentiality rules make it more difficult for cruise lines to use the trauma counseling records to improve the company's position in court.

The new law provides for civil and criminal penalties to be assessed against cruise vessels that violate its provisions, including denial of entry into American waters.

What's Next?

Winston & Strawn notes that the version of this new law first co-sponsored by Senator Kerry and Representative Matsui also included reform of the Death on the High Seas Act (DOSHA) which limits damage recovery to only pecuniary damages in the event of a wrongful death on the high seas. This limitation bars recovery for non-pecuniary damages routinely available under other wrongful death laws, including loss of society, consortium, or punitive damages. However, proponents of the new law agreed to forego the DOSHA reform provision to secure Senate passage of the new law.

The recent Deepwater Horizon casualty in the Gulf of Mexico has reopened congressional consideration of DOSHA reform. On June 9, 2010, survivors of the 11 rig workers lost in the casualty called for DOSHA reform in Washington, D.C. And on July 1, 2010, the House of Representatives passed the measure which has been referred to the Senate Commerce Committee for consideration.

Since House passage, the U.S. Chamber of Commerce and leading maritime industry trade groups, including CLIA, have objected to the proposed DOSHA reform. Instead, the maritime trade groups have indicated that they would not oppose reform limited only to hazardous deepwater drilling operations. Congressional consideration of the proposed changes to DOSHA will likely unfold in the coming weeks before the November election recess.

Additionally, proponents of the new law have indicated that it should provide a model for legislation in other countries to ensure that the protections afforded by the new law to American citizens on voyages from or to the United States are extended to American citizens on cruise vessels worldwide. Just as unilateral legislation in the United States has repeatedly led the world to reform maritime safety in the past, this new cruise vessel safety and security law may spark further reform abroad, especially since CLIA has publicly endorsed it, says the Winston & Strawn briefing.

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