Right and Wrong

28 June 2011 By Benjamin Maltby

Usually, it’s obvious when a crime is a crime, but when yachts are involved matters become, as with so much else, a great deal more complicated.

What’s criminal on board a yacht within a country’s territorial waters is up to the laws of said country — the port state laws — regardless of the nationality of an accused individual or the vessel’s flag. This is a universally understood and applied concept. By contrast, the extent to which the flag state’s criminal laws apply varies.

Take the example of Red Ensign yachts; criminal actions on board while on the high seas — i.e. “where great ships could go,” including bays, channels, rivers and creeks, even many miles inland — are subject to flag state law and courts.

Surprisingly, and unbeknown to most, flag state criminal law applies to everyone on board, including guests, while working, having fun ashore, in port or on board another vessel. Even more remarkably, any offense committed by any captain or crewmember, or anyone who was a captain or crewmember in the preceding three months, no matter where in the world the offense took place, can be brought before the flag state courts and tried according to that law.

While superyachts exist for pleasure, one country’s perfectly legal indulgence is another country's arrestable offense. Whether a particular state’s law will allow or prohibit alcohol will be reasonably easy to ascertain, while less obvious are the minimum age limits that apply. Gambling also is commonly regulated, with harsh criminal sanctions for breaches. In some places, all gaming is outlawed; in others, only various types are illegal.

It’s often assumed that prostitution is illegal everywhere. This is far from the case. The legal status of prostitution varies from country to country. Most commonly, there is no specific law prohibiting the exchange of sex for money; however, soliciting or advertising are illegal. Even by making discreet arrangements, you probably will still be breaking a law or two. In a small number of countries, the world’s oldest profession is perfectly legal — and regulated.

It’s easy to be an unwitting drug smuggler, possessor and user. Medications available over-the-counter from pharmacies without a doctor’s prescription in some counties are considered illegal narcotics elsewhere.

Remember, as a captain or crewmember, if you come under pressure to undertake any act criminal act, you have the right to refuse. You’re only bound to do what your employment contract says or implies you must do. Whether you refuse may depend on other considerations, but if you’re caught it’s you that will be held in a foreign jail. If you decide for yourself to commit an offense, then whether you can be fired depends on the nature of the offense and whether the offense was committed on board or ashore. Many employment contracts contain provisions that the captain or crewmember “will not bring the vessel into disrepute, etc.,” a statement which provides broad grounds for dismissal.

Not only is it vital to be clear on the dos and don’ts of where you’re based and visiting, it’s also necessary to understand what your vessel’s home state considers as being acceptable. If in doubt, advice should be sought.

Benjamin Maltby is Principal Consultant at matrixLloyd™, the world’s leading superyacht consultancy. The firm provides advice and assistance on all aspects of the purchase and management of newbuild and existing superyachts.