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Edgar Gold[1]
In recent years all sectors of the maritime industry and many governments have become concerned about the criminal action that has been taken against seafarers in the aftermath of maritime accidents, especially those that involve marine pollution. Examples such as those involving the masters of vessels such as Erika, Tasman Spirit, and Prestige immediately come to mind. However, there are many other cases, both reported and unreported, that illustrate this increasing trend where seafarers appear to have become the ‘scapegoats’ for maritime accidents, regardless of whether they are directly or indirectly involved or responsible.
In a number of cases masters, chief-engineers, and other sea-going personnel, have been arrested, imprisoned or otherwise detained, under a variety of ‘criminal law’ and other proceedings for extensive periods. Often the most basic rights of such persons are not observed and access to legal advice is frequently neither provided nor even permitted. Furthermore, such persons are often not charged nor even provided with information regarding why they are being held. In many instances, such seafarers appear to be held as ‘material witnesses’ or for other ‘administrative and technical’ reasons. In other cases where seafarers are actually ‘charged’ with causing the relevant marine accident and/or causing marine pollution, this occurs despite the fact that there is no directly attributable responsibility for such accidents. In many cases such accidents may result from circumstances quite beyond the operational responsibility or competence of those so charged. Of special concern is the fact that these cases often occur in states that otherwise have an excellent reputation in terms of their criminal justice system and observance of the rights of individuals.
This report provides a brief update on the international developments in this area which has become of major concern throughout the maritime industry.
A number of states, international organisations and professional groups have expressed their concern about this growing problem to the International Maritime Organization (IMO), as well as the International Labour Organization (ILO) in recent years. In response to these concerns a ‘Joint IMO/ILO Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident’ was formed in 2004. This Working Group, drawn from China, Egypt, Greece, Nigeria, Panama, Philippines, Turkey and the USA, as well as four shipowner and four seafarer members, was requested to provide recommendations to the IMO Legal Committee and the ILO Governing Body, including draft guidelines on the fair treatment of seafarers in the event of a maritime accident. The Working Group’s Terms of Reference required that account should be taken of the relevant international instruments. In addition, it was decided that a ‘Correspondence Group’ composed of other maritime interests, including interested states, would be formed. This group was requested to assist the Joint Working Group in its deliberations through specific, expert input. In particular, the correspondence group would be comprised of a number of non-governmental organisations such as:
• Baltic and International Maritime Council (BIMCO)
• Comité Maritime International (CMI)
• International Association of Classification Societies (IACS)
• International Association of Independent Tanker Owners (INTERTANKO)
• International Chamber of Shipping (ICS)
• International Christian Maritime Association (ICMA)
• International Confederation of Free Trade Unions (ICTFTU)
• International Federation of Shipmasters’ Associations (IFSMA)
• International Group of P&I Associations
• International Shipping Federation (ISF)
During 2005 the IMO/ILO Correspondence Group received input and submissions from a number of these interests. At the 24th Assembly of the IMO a ‘Resolution on Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident’ was adopted. This Resolution was also adopted by the ILO Governing Body at its 292nd Session in March 2005. At the same time, the IMO/ILO Ad Hoc Expert Working Group also decided that its second session would be held in London in March 2006 and issued an invitation to IMO member states, UN and other specialised agencies, inter-governmental and non-governmental organisations to attend.
At this stage a number of specific responses to the ‘Guidelines’ were submitted to the IMO/ ILO Working Group by interested members of the ‘Correspondence Group’. This included a submission from the ISF, ICS and ICFTU, as well as working documents from the CMI and IFSMA. These were appended to a ‘Progress Report from the Correspondence Group’ tabled in January 2006. This resulted in a progress report on the IMO/ILO working group’s first and second sessions being submitted to the 91st session of the IMO Legal Committee in April 2006. During this session the IMO Secretariat introduced a set of agreed guidelines that were extensively discussed by the Legal Committee resulting in a number of changes and a resolution that contained a final set of approved guidelines. These were also submitted to the ILO Governing Body and approved in June 2006. As a result, the ‘Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident’ entered into force on 1 July 2006, but are, of course, subject to voluntary acceptance by states. Nevertheless, it was a positive step forward.
Research carried out by the CMI during this negotiating process revealed that although states have effective legislation that is designed to protect the legal rights of seafarers, such laws are frequently and regularly disregarded. That raises the question on whether states that disregard their own laws will implement guidelines that are voluntary. There may even be difficulties with the way states implement existing laws, especially in cases where criminal prosecution is involved. This has been illustrated in a recent case that involved the master of the container vessel Zim Mexico III, who was charged with manslaughter, held in jail pending trial, and then convicted in the US port of Mobile. The master spent four months in prison and was subsequently sentenced to time served and then deported. He had actually faced imprisonment for up to 15 years. Submissions on behalf of the master made to the court by many maritime organisations may have contributed to the ‘lenient’ sentence.
The charge and subsequent conviction resulted from the vessel striking a container crane while manoeuvring under the direction of a compulsory pilot. Regrettably, the accident resulted in the death of a technician who was working on the crane without permission. Nevertheless, the master was charged under an archaic US federal ‘Seaman’s Manslaughter Statute’ that dated back to 1838 and that required a higher standard of care from seafarers than from others. There has been widespread and unanimous condemnation from the marine industry of the case, the way it has been handled and, of course, the unfairness of the ‘double-standard’ law. There is no question that under most other national justice systems the likelihood of criminal charges against the master would be minimal. Efforts are still underway to persuade the US Government to repeal this unfair legislation.
The ‘IMO/ILO Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident’ recognise seafarers as a special category of worker. Given the global nature of the shipping industry and the many different jurisdictions with which they may be in contact, seafarers need special protection, especially in their relations with public authorities. As a result, the principal objective of the Guidelines is to ensure that seafarers are treated fairly following a maritime accident and during any subsequent investigation and detention by public authorities. They also stipulate that if detention is required, it should be for no longer than necessary.
The Guidelines provide advice on the necessary steps to be taken by the various interests that may be involved following a maritime accident. These are the:
• port or coastal state;
• flag state;
• seafarers’ state;
• shipowner; and
• seafarers themselves.
The overall emphasis is on cooperation and communication between the various parties involved and to ensure that no discriminatory or retaliatory measures are taken against seafarers because of their involvement or participation in investigations.
For example, the Guidelines set out 22 steps that port and coastal states are required to consider in ensuring that investigations are conducted with speed, civility and full regard to seafarers’ legal and human rights and their special position in the jurisdiction in which they find themselves. In this connection references are made to the rights of individuals and duties of governments under the Vienna Convention on Consular Relations, the International Convention for the Prevention of Pollution from Ships 1973/78 (MARPOL 73/78), and the ‘IMO Code for the Investigations of Marine Casualties and Incidents’.
It appears that even full compliance with the Guidelines might not have assisted the Zim Mexico III master in the case outlined above. The fact is that regardless of whether the US seaman’s manslaughter legislation is unfair or even discriminatory it is, nevertheless, a valid national law. On the other hand, it can be argued that prosecuting a master for an accident that arose from a mechanical failure while the vessel was under an experienced pilot’s direction, as well as denying him bail and detaining him in a very unpleasant jail for several months, is treatment that cannot be classified as ‘fair’.
The Guidelines also enumerate 12 considerations to be taken into account by flag states in relation to the fair treatment of seafarers. The main requirement for flag states, when not conducting their own investigations, is to assist other investigating states and to facilitate the fair treatment of seafarers serving on flag state vessels. Similarly, the Guidelines also provide the seafarer’s state with eight aspects to consider when investigations involving their citizens take place. Although such a state may not have a specific legal obligation to assist, the Guidelines suggest that there is a moral obligation. In many cases, where seafarers are employed under other flags, the seafarer’s state frequently has not bothered to become involved. The Guidelines attempt to rectify this problem.
The negotiations that produced the new Guidelines had particular difficulties in framing provisions that would be applicable to shipowners and the seafarers themselves. Shipowners were concerned about protecting their legal position as owners of property, obligations under carriage and insurance contracts, as well as exposure to costs of maintenance and welfare for seafarers detained in foreign ports. The Guidelines attempt to address these concerns in seven specific provisions for shipowners. In fact, in the Zim Mexico III case, the owners did everything possible to assist the master. This may, of course, be due to the fact that the owners were a well-established German shipping company. The situation might be quite different for masters of single-ship company vessels registered under flags of convenience.
Finally, during the discussions there was much concern that seafarers should be protected from exposure to criminal justice processes in circumstances where they need to make statements without legal advice or being familiar with the rights to silence and not to self-incriminate. This was addressed in the Guidelines in four specific provisions for seafarers.
A number of states and international organisations have already expressed concerns about the effectiveness of the new Guidelines, including at the IMO Legal Committee meeting in April 2006. For example, the US, which had unsuccessfully attempted to introduce major changes to the draft at a very late stage, was concerned that the new instrument had insufficient clarity on three substantive areas:
• incidents committed with criminal intent;
• the definition of ‘maritime accident’; and
• conformity with domestic law.
International organisations representing seafarers, such as IFSMA and the ICFTU, argue that the voluntary guidelines provide insufficient protection for seafarers. It was argued very forcefully that such protection could only occur if the guidelines became mandatory.
One of the principal concerns relates to the definition of ‘maritime accident’. This was amply illustrated in another recent case that occurred after the conclusion of the Guidelines. The reefer vessel Coral Sea was discharging 27,000 cases of Ecuadorian bananas in the Greek port of Aegion in July 2007. During a routine banana quality control inspection, one of the boxes was found to contain 51.6 kg of cocaine. As a result, the master, chief officer and bosun were arrested and held in a high security prison in Athens for over 10 months. There was apparently no evidence that the three seafarers were aware that the drugs were on board. Applications for bail were routinely rejected. According to legal sources in Greece it appears that Greek authorities routinely arrest and hold crew members of vessels that are found to have drugs on board, regardless of whether there is any evidence that such seafarers have had any involvement in the drugs.
Apart from the general lack of fairness in this type of case, it also seems that the new Guidelines may not cover this type of incident. The Guidelines in their title are applicable to ‘the fair treatment of seafarers in the event of a maritime accident.’ However, ‘accident’ is defined as:
any unforeseen occurrence or physical event connected to the navigation, operations, manoeuvring or handling of ships, or the machinery, equipment, material, or cargo on board… which may result in the detention of seafarers.
It could be argued that the illegal stowage of drugs on board may be an unforeseen event connected with the vessel’s cargo operations. However, it is doubtful whether it could be classed as an ‘accident’ within the true meaning of that word. If this is so, then the language in the Guidelines may be too narrow and would not assist seafarers involved in criminal cases that are not classed as accidental. This would mean that seafarers will continue to be treated unfairly in criminal cases, regardless of whether there is any evidence of their involvement in a crime. It also shows that there will continue to be a ‘double standard’ where seafarers’ rights appear to have far less protection than anyone else involved in a criminal matter. It is doubtful whether police anywhere would arrest and hold a hotel manager and hotel staff if drugs were found on the premises!
However, the IMO Legal Committee had already decided earlier that an ad hoc Working Group should be convened at its 92nd session in October 2006 and it should recommend any changes to the new Guidelines that may be necessary. A number of states and other interests wished to re-open the subject at that stage. However, during this session it became apparent that consensus in the ad hoc Working Group on accommodating the wishes of some states could not be achieved. As a result, the Legal Committee decided that the new Guidelines should stand as originally concluded, but that the subject should be retained on its agenda for is next session in 2007.
As a result, the subject was again discussed at the 93rd session of the IMO Legal Committee in Panama in October 2007. Although many states and a number of international maritime bodies expressed concerns about perceived problems with the Guidelines, no real further progress was achieved. Nevertheless, it was decided that the subject was to be kept as a high priority item on the Legal Committee’s work program.
There was one positive aspect arising out of the Panama discussions that may well result in better protection for seafarers, but via a different method. This was due to the fact that in October 2007 the IMO’s Maritime Safety Committee (MSC) at its 83rd session, decided to include a provision on the right of seafarers from whom evidence is sought in a casualty investigation to ‘be informed, and allowed access to legal advice’ regarding the risk of self-incrimination. This decision was taken in the context of the MSC’s approval of the ‘Draft Code of the International Standards and Recommended Practices for a Safety Investigation into Marine Casualty or Marine Incident’ as an amendment to International Convention on Safety of Life at Sea (SOLAS) for adoption at the MSC’s 84th session in May 2008. The Draft Code (which is to be finalised at the 84th session) includes a dedicated chapter setting out specific safeguards to protect seafarers including:
• the upholding of human rights at all times;
• return to vessel or repatriation at the earliest opportunity;
• information on potential self incrimination risks and the right to remain silent; and
• protection from marine safety investigation evidence being used in other criminal proceedings.
Although such SOLAS Code provisions will probably not alleviate some of the problems faced under the Fair Treatment Guidelines, nor make further development of the Guidelines redundant, they are a step in the right direction. It can be expected that the SOLAS Code will be opposed by some states and the final version is by no means certain at this stage.
It has to be remembered that one of the principal reasons why there was such excellent cooperation between the various sectors of the maritime industry in reaching these Guidelines was the awareness of the fact that this problem has a direct and very negative effect on attracting new personnel into the seagoing industry. This is exacerbated by the additional consideration that there is presently already a shortage of skilled senior navigating and engineer officers and a looming shortage in other areas in the near future. It is clearly in the interest of all sectors of the shipping industry, as well as coastal states, to ensure that every effort is made to implement these measures. It seems to have been realised throughout the maritime industry that using skilled maritime professionals as ‘scapegoats’ for accidents is of no advantage to anyone!
[1] Professor Edgar Gold, AM, CM, QC, PhD, DSc, FNI, is with Marine & Shipping Law Unit, T.C. Beirne School of Law, University of Queensland.
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