The International Maritime Organization (IMO) has issued new guidelines instructing masters on how to preserve and collect evidence if a serious crime has occurred on board a ship, but attorneys familiar with maritime criminal law say mariners should be wary of getting too involved with a criminal investigation unless asked.
The guidelines were created by the IMO’s legal committee in April 2013 and a resolution adopting them was approved at the organization’s 28th Assembly this past December in London. According to the text of the guidelines, they are designed to assist masters in handling shipboard crimes until law enforcement can take over. Included are sample forms for taking witness statements and properly collecting and labeling evidence. One sample shows how a master would properly label a knife used by an alleged perpetrator in the crew mess.
The guidelines advise that while law enforcement should be contacted as quickly as possible, masters may, in general, want to try and seal off any possible crime scene area. If that’s not possible, there are also basic instructions on how to collect evidence, sometimes in rather gory detail. On a chart showing how to handle different types of evidence, the guidelines advise masters that “if an easily removable item, e.g., a knife, ashtray, bottle, etc.,” is bloodstained, “DO NOT accelerate drying.” It recommends masters make a note on the evidence form that the item was still wet when found. Other notations include how to properly handle bodily fluids, fibers and clothing so that gunpowder residue on it is not disturbed.
The guidelines are preceded by warnings that masters should not be considered professional crime scene investigators and remind them their primary responsibility is the safety of the crew and passengers. Additionally, the IMO guidelines suggest masters should always follow the instructions of flag state or port authorities and law enforcement. Several attorneys who spoke with Professional Mariner said that was sage advice that could not be emphasized enough.
Klaus Luhta, an attorney, former master and now chief of staff at the International Organization of Masters, Mates & Pilots, said that if masters try to collect evidence on their own, they might find themselves — and their ability to process a crime scene — a key focus of a criminal trial. Learning to collect criminal evidence in a way that would stand up at trial is asking too much, Luhta said.
“Historically that hasn’t been the captain’s role, and I can tell you that we don’t think it should be the captain’s role — the master of a vessel has enough to deal with without becoming a CSI,” he said. “I think it will muddy the waters. Any good (defense) attorney is going to decimate the master’s credibility on the stand.”
Gregory F. Linsin, a maritime attorney and partner at Blank Rome LLP and a former Department of Justice prosecutor, said a master’s error in evidence collection could be more than just a win for a defense attorney.
“The risk I see is that if a master only refers to these guidelines, there is some potential that his actions might later be viewed as complicating or frustrating a criminal investigation,” Linsin said.
Linsin and Luhta both said that flag state or port authorities should be consulted before anything is done.
“I think the master would only want to consider collecting evidence, or especially taking statements from witnesses, only if he has been expressly requested to do so by law enforcement authorities,” Linsin said. “I think the guidelines could be clearer on that.”
That said, neither attorney said they could really see many instances when masters of American ships might need to turn to these guidelines. The guidelines do have specific notations addressing how to handle a sexual assault — including pastoral care to victims — and missing persons. The cruise ship industry has come under fire from victim advocates who say onboard handling of those crimes isn’t effective.
