2010 Boulton Lecture

2010 Boulton Lecture

The Boulton Lecture, 2010, Fremantle, W.A.

Captain Richards A Coates FNI
Criminalisation or Fair Treatment of Seafarers

The current trend to criminalise seafarers involved in accidents has been with us for many years and, despitea good deal of pressure from within the industry on the relevant authorities, it is showing no signs of abating.
This presentation will cover:
- What we perceive to be the root causes of this trend
- High profile cases, the Institute's role and the industry's response generally
- The role of management specifically
- The contrasting attitude of the authorities to real crimes
- What more can be done

Root Causes
We perceive that criminalisation has come about for the following reasons:
- The industry's poor track record of casualties, particularly in the 1970s and 1980s
- A series of high profile incidents since then
- The proliferation of flag states without the means, or perhaps inclination, to assess the competence of their seafarers involved in accidents and impose sanctions on their Certificate of Competence where appropriate
- The seeming inability of some flag states to investigate casualties properly
- The irresponsible actions of the rogue element of shipowners before and after a casualty befalling their ship, including the invisibility of some (and their insurers)
- Increased environmental awareness of the public generally; and
- The litigious blame culture in most countries.

Cases
Doubtless there are many other factors involved in individual cases but these serve to set the scene before covering a number of high profile cases.

Erika
Country of Prosecution - France; Year of casualty - 1999
The Master was held after the successful abandonment of the ship in a Biscay storm without the loss of life or injury. Extensive oil pollution occurred as the ship broke up and sank after a port of refuge was denied.(The ship probably wouldn't have made it anyway). The Master was released on bail, fled the country and refused to return. This is understandable but occasioned a disservice to his profession and fellow seafarers as it reinforced the perception that seafarers must be held to stand trial.
There followed extensive political response in the European Union, (the three Erika packages) to eradicate old, single hulled tankers and sub-standard operators. The main perpetrators (being the owner, the charterer and Classification Society) were found guilty and fined, but the Master was exonerated in absentia and the flag state hid behind sovereignty, thus escaping criticism.
The Nautical Institute covered the situation in Seaways and engaged with IFSMA and other bodies to address seamanship and legal issues, which  eventually led to The Fair Treatment of Seafarers recommendations to the International Maritime Organisation.

Prestige
Country of Prosecution - Spain; Year of casualty - 2002
On this occasion, the Master was held after successful partial lift-off of the crew off northern Spain without the loss of life or injury. He and two senior officers remained on board to assist the salvors. Extensive oilpollution resulted as the ship broke up and sank after a request for a port of refuge was denied. In fact, theship was ordered to steam further away from the coast and a tug was sent to tow her away (into worsening weather) Meanwhile, the appointed Salvage Team were delayed by red tape at a Spanish airport. The Master was subsequently released on bail to a hotel after 80 days in a high security prison. He remained in Spain for some 3 years awaiting trial but was eventually allowed home to Greece on bail of Euro 3 million. The case still hasn't come
to full trial (as it takes at least 8 years in Spain). Other defendants are government officials, the owner, the charterer, and the Classification Society.
The Nautical Institute had direct dealings with the Spanish Embassy in London due to Captain Mangouras being nominated for the Shipmaster of the Year Award by many seafarers. We spoke out strongly at the Lloyds List Awards Dinner to a battery of TV and media cameras. This long running case has been continually covered in Seaways so that it isn't forgotten.

Zim Mexico III
Country of Prosecution - USA; Year of casualty - 2006
This ship lost the use of her bow thruster whilst turning in port under pilotage. She unfortunately hit a container gantry on which a technician was working. It collapsed and he was killed. The Master, Captain Schroder MNI, was prosecuted under the 1856 Seafarer's Manslaughter Act which only required 'negligence' to be proven, rather than the 'gross negligence' required for all other types of workers. The bow thruster had
had problems on a previous voyage which the prosecution contended should have been advised to the Pilot.
The Master was eventually found guilty of negligence, given the minimum sentence (which was already time served as he had been held in the US), and deported. He subsequently retired on ill health grounds.
The Nautical Institute engaged with other professional bodies to send submissions via the defence team regarding this unjust law and need to repeal the 1856 Act. The case was extensively covered in Seaways.

Coral Sea
Country of Prosecution - Greece; Year of incident - 2007
A Reefer container ship was found to have a consignment of drugs amongst the cargo of bananas in a container.The Master, Chief Officer and Bosun were arrested and tried. The Chief Officer and Bosun were found not guilty but the  Master was found guilty as he was ultimately responsible for all aspects of the ship (the identity of the ship basis). Eventually he was  freed on appeal but deported nevertheless. Commendably, the Shipmanager cancelled all calls of its fleet to Greek ports.
The NI highlighted the ludicrous actions of the State in Seaways and spoke out at conferences, praising the shipmanagers actions, and encouraging other owners /manages to do likewise in similar incidents to bring economic pressure to bear in reversing this trend of criminalisation.


Atlantic B
Country of Prosecution - Venezuela; Year of incident - 2007
A 'drugs pod' was found attached to the bottom of this ship, which was then detained and the Master arrested,even though it was he who had requested the divers to search the bottom due to his suspicions of underwater activity during the port stay. Details of the incident are sketchy but resulted in the long running detention of the ship and her Master.
The Nautical Institute was approached by a local lawyer to help, and some publicity was given to the case.

Ouzo and Pride of Bilbao
Country of Prosecution - UK; Year of incident - 2008
The 2nd Mate of this ferry was accused of running down or swamping a yacht in which three recreational sailors sadly drowned. The matter was thoroughly investigated by The Police and Marine Accident Investigation Branch.It came to trial and the 2nd Mate was cleared on the grounds of the case not being 'proven beyond reasonable
doubt'.
Interestingly, NI members acted as Expert Witnesses on both sides of the trial

Cosco Busan
Country of Prosecution - USA; Year of casualty - 2009
This containership, under pilotage in fog, collided with the San Francisco Bay Bridge, causing pollution.
The Pilot was prosecuted, (as it emerged he was under the influence of prescription drugs), and the management company was prosecuted for causing pollution and for falsifying records. This resulted in a US$10m criminal penalty. It was clear that the company had pressurised their Master and crew to create fictitious records after
the event.
The NI role on this occasion was to highlight the  case initially, and publicise that there is no place for intentional criminal actions (the falsification of evidence) in our industry.

Hebei Spirit
Country of Prosecution - South Korea; Year of casualty - 2007
This loaded VLCC was holed in a collision with a runaway crane barge whilst at anchor. The Master and Chief Officer were arrested, as were the masters of the tugs and crane barge. They were held in South Korea for almost two years. The 'Hebei Two' eventually were cleared on most charges (but not all) and Captain Chawla has appeared at our West of Scotland Branch seminar recently to discuss criminalisation.
There was a very high profile industry campaign led by the shipmanager, V Ships. Demonstrations were held in India and threatened in London,
NI members were encouraged to take part and to write letters of protest to their local Ambassador for South Korea - many did. Nautical Institute Headquarters staff, including the President, wrote to the Embassy in London. The NI were requested to contribute to the defence case on certain aspects of seamanship and did so, twice, with direct input from experienced VLCC masters in the membership.

Tosa
Country of Prosecution - Taiwan; Year of incident - 2009
This was a case of a VLCC being accused of running down or capsizing a fishing trawler in international waters off Taiwan. The Master, 2nd Mate and AB/ Helmsman were prosecuted. The Master was recently exonerated, but there is no news on the other two but court papers shows a strong case for the 2nd Mate to answer (similar to the Ouzo/Pride of Bilbao case, but without clearer evidence). The Flag State, Panama, belatedly tried to take over the case, to no avail. The Shipowner/manager, NYK, handled it very much quieter than V Ships handling of the Hebei Spirit but probably for
a good reason, given the evidence.
The NI role in this incident? - The CEO met with the Master's wife and 2nd Mate's Father and Uncles during the Indian sub-continent tour last autumn. He held meetings with the Secretary for Shipping in Bangladesh, which does not have diplomatic relations with Taiwan so it was difficult to intervene as a government, but we were assured they were trying to do so through other channels, - we offered NI assistance through members. The NI, via the Technical Committee, provided professional opinion on the Master's Standing and Night Orders (the main grounds for charging him) at the request of his wife which she delivered to the defence team.
Captain Aroza (who is now a Nautical Institute Member) has since been exonerated.

Neftegaz 67 and Yao Hai
Country of Prosecution - Hong Kong; Year of incident - 2009
This case concerned a collision between vessels, one of which was under pilotage. 18 lives were sadly lost.Both Masters, the Senior Pilot and the understudy Pilot were sentenced to jail terms. With the case being heard in a Criminal Court, the Judge sat with no Nautical Assessors to guide her and the subsequent conclusions concerning
the navigation area are highly confusing.
Our involvement in this matter arose due to the Ministry of Transport in the Ukraine  asking for our assistance in the appeal process, and this has been offered regarding matters of navigation and seamanship.
The Nautical Institute Hong Kong SAR Branch has published a letter in Seaways expressing deep concern about the investigation of the casualty and the conduct /outcome of the trial.

Generally
The NI has sought to raise and maintain an awareness that criminalisation is happening worldwide and in traditional maritime nations as well as less reputable or new maritime nations. It is, sadly, a fairly frequent theme of our Focus column in Seaways. We have cooperated with other international bodies, IFSMA and BIMCO in particular, to bring pressure to bear on the IMO and governments to address this issue of growing concern and we have published many articles pointing to the negative impact criminalisation has on recruitment and retention of seafarers. We and others in the industry have been outspoken about the need for the owners/managers to take responsibility when casualties or incidents occur and support their seafarers robustly.

Specifically
BIMCO, with the NI and other international bodies, researched current cases of criminalisation in about 2005/06 (amazingly, we identified some 44 cases if my memory serves) and submitted the report to the IMO as part of the industry's support for action on the 'Fair Treatment of Seafarers'.
In 2006, the IMO's Legal Committee adopted Guidelines on the Fair treatment of Seafarers in the event of a maritime accident after some 3 years of hard work by an IMO/ILO Joint Ad Hoc Expert Working Group. This was an industry cooperative proposal led by the Bahamas from the flag States and IFSMA and BIMCO from the NGOs.
The NI had worked with IFSMA in refining the proposed wording of the proposal and our members were part of IFSMA delegation helping to see it through. It is, of course, only Guidelines so has little power and is frequently ignored by flag and coastal States. The Guidelines, in summary, give advice on steps to be taken by all those who may be involved following an incident: the port or coastal State, flag State, the seafarer's State, the shipowner and the seafarers themselves. The emphasis is on cooperation and communication between those involved and in ensuring that no discriminatory or retaliatory measures are taken against seafarers because of their participation in investigations. The Guidelines say that all necessary measures should be taken to ensure fair treatment of seafarers.

The Role of Management
The ISM Code has done much to lay responsibility upon the company management operating the ship. It is increasingly difficult for the company to hide behind the tradition Brass Plate anonymity or the longstanding insurance defence of 'negligence of master and crew'. However, there are still many companies operating that
merely pay lip service to the ISM Code and remain largely invisible when accidents occur. These companies must be brought to face up to their responsibilities through effective auditing under the ISM Code, Port State Control, and ultimately the courts if or when accidents occur to their ships.
A true taking of responsibility and transparency of ownership within the shipping industry will do more to counter this trend of criminalisation than anything else. The seafarer is the easy option for the law to go after but if he/she is backed by the full might of the employer, the prosecuting authorities may well think twice before pursuing
a case against them.To do this effectively, companies need to set up, train and practice 'Crisis Management Teams' that can be assembled and be operative at short notice. This is not something that small or amateurish operators are likely to be able to do, so putting their ships into competent 3rd Party shipmanagement is essential.

The contrasting attitude of the authorities to real crimes
There are probably any number of examples that could illustrate this point but one will serve. Captain Mohan Naik, FNI writing in Sept 2006 Seaways put the case for a new Convention to cover onboard crimes. He gave the case of a Panama flag ship in 2002 on which the off-duty Japanese 2nd Mate had been murdered, allegedly two Filipino seamen. Initially, none of the 'interested' parties - Japan, Panama, or the Philippines -
were prepared to exercise criminal jurisdiction and the master had to anchor the ship at a Japanese port for nearly a month to convince the authorities to take some action through the intervention of the flag State.
The same situation frequently occurs in the case of stowaways, with the ship finding it nigh impossible to land them anywhere even when they are threatened with violence against the crew.
The impression given is that seafarers are a disenfranchised sector of society to whom the normal rules of fair treatment do not apply (even though the Guidelines referred to above specifically give them a special category status in this regard).

Damage the marine environment and the full weight of the law is mobilised immediately.
What more can be done? The international industry bodies, with the full backing of individual companies, must work together to ensure that abuses of the Fair Treatment Guidelines are highlighted at the IMO and in the media generally. Similarly, ill-informed political reaction (topical in Australia following recent maritime incidents) must be countered by informed industry commentators, both locally and internationally, and as soon after the incident as possible.The response must highlight the importance of a full and speedy casualty investigation, without hampering salvage efforts, from which lessons can and will be learnt.
The owner and insurer must face the media (and politicians) to reassure people that all the appropriate measures, physical and financial, will be taken quickly.
The position of the Master needs to be reassessed, in light of the ISM Code, and maritime law changed so that he/she is not automatically identified in all circumstances as and with the 'ship'. [This was essentially the thrust of that item in our 2006-2010 Strategic Plan but we haven't made as much progress on it as we would have liked].

Finally, make a clear distinction between deliberate criminal acts (e.g. intentional pollution) and bona fide accidents.
We strongly feel that raising the professional competence of seafarers so that they do not have so many avoidable accidents will further help. This is clearly a key role for the NI but also for employers by providing and encouraging Continuing Professional Development (CPD) after good basic training.
As can be seen from the matters highlighted earlier on in this paper, as would be expected there are numerous factors contributing to the increased number of seafarers facing criminalisation. Whilst the measures identified above will hopefully contribute to a reduction in the number of such injustices occurring world wide, it is recognised that in the dynamic and rapidly changing world of International shipping we must be prepared to face fresh challenges and develop appropriate measures in response.

The Nautical Institute will continue to highlight the cases of unjust criminalisation of Seafarers, and any and every available opportunity to work with other stakeholders and organisations in this matter.

Capt. Richard A. Coates, FNI.
President, The Nautical Institute.