Substandard shipping should be in the dock, not crew members
The risk of being treated as polluters and terrorists could lead to seafarers demanding legal protection as they face being charged with criminal acts.
The criminalisation of seafarers is not new. A long line of masters and senior officers have been prosecuted and jailed for pollution incidents. But the increasing emphasis on maritime security since September 2001 and new measures on pollution have added to the list of criminal sanctions.
Seafarers are easy targets in the wake of major incidents, unlike shipowners themselves, who often hide in a web of flags of convenience and brass plate companies. Arrests can be made for marine pollution, maritime security, safety of navigation, arms or people smuggling or assault of people on board.
When the Maltese-flagged crude oil tanker Tasman Spirit ran aground in July 2003 near the harbour mouth at Karachi port the crew could not have imagined that they would effectively be held hostage in Pakistan for nine months. And Capt Apostolos Mangouras, the master of the Prestige, could not have thought that he would be kept in Spain for two years, following the break-up of the Bahamas-flag vessel.
Both cases highlighted the risk of unnecessary and unjustified detentions, when seafarers can find themselves at the centre of political battles over compensation and the apportionment of blame. The economic losses involved in major pollution incidents and growing public concern have put governments under pressure to take action. At the same time, the failure of flag states to live up to their international obligations has added to the pressure. For example, it has been the prime motivator of port state control regimes that have been put in place by coastal states in an effort to eliminate “rust buckets” and to ensure that foreign ships visiting their ports meet international safety, social and environmental standards.
As in any other walk of life, there are those in the seafaring profession who are actively and intentionally engaged in criminal behaviour. However, this should not detract from the fact that seafarers are, by virtue of the fact that they live and work on board a ship, in a disadvantaged position when faced with a state intent on a criminal prosecution.
They are physically present at the scene and are easily accessible to law enforcement officials who can detain them while deciding how best to proceed.
Against the backdrop of an industry where substandard shipowners seek to evade responsibility, using shell companies and corporate veils to vanish without a trace, the odds are stacked against an innocent seafarer. The fact that beneficial ownership in shipping can be very opaque is seen as one of the reasons why masters and sometimes crew are held. Even if the shipowner can be found, the company is usually half way across the world and its directors are unlikely to have to endure incarceration.
What’s more, flags of convenience, which facilitate the evasion of liability by substandard operators, have a poor record of providing diplomatic protection to seafarers when they need it most. It is striking that the flag states in the Prestige and Tasman Spirit cases – Bahamas and Malta respectively – did not exercise their right under international law to institute legal proceedings through the International Tribunal on the Law of the Sea, requesting the immediate release of the seafarers involved. This application for release can only be made by or on behalf of the flag state of the vessel. Considering the number of ships flying flags of convenience, this is a major problem facing seafarers.
Another aspect of protection that seafarers are often denied in practice are the procedural rights that many of us take for granted. These are the safeguards that ensure proper procedures are followed prior to and during an arrest, humane treatment during any periods of detention, access to legal advice and representation, a fair trial and a proper process for extradition. Again, the flag state has a role to play, as do shipowners and insurers, particularly in addressing welfare and legal needs.
The distinction between intentional and non-intentional acts by seafarers has been long recognised. Criminal activities generally require both intention and knowledge of an offence.
But new provisions of the European Union’s proposed directive on maritime pollution, for example, require a much lower “civil law” burden of proof, such as serious negligence, which would then criminalise accidental pollution.
Where seafarers have knowingly and intentionally carried out crimes, they should expect to face prosecution. However, not all cases are clear-cut. Seafarers sometimes find themselves in circumstances where they are under immense pressure to break the law, or where they have a limited ability to stop the illegal activity. The choice is to break the law or lose their job. In such cases, those circumstances could be mitigating factors in decisions relating to prosecution or to sentencing.
There is a long tradition of seafarers openly cooperating with maritime casualty investigators from a variety of jurisdictions as they seek to explain serious incidents at sea. But under the current legal provisions, there is no guarantee that information gained under such investigations would not then be used later for a criminal prosecution, with the individual at risk of incriminating themselves.
Some ITF affiliates and legal experts are asking whether it is now time for seafarers to demand the provision, at no cost to themselves, of independent legal counsel as a condition for speaking to casualty investigators.
Although the issue of criminalisation is a complex one, governments and the industry could go some way to mitigate the problem if they paid more attention to fundamental issues such as eliminating substandard shipping.
Seafarers find themselves on the front line in the battle against terrorism, and in efforts to protect the marine environment. Yet they feel they are being treated as potential terrorists and polluters until proven otherwise.