The criminalisation of seafarers - From master mariner to "master criminal"

The trend towards criminalisation of seafarers, which has been prevalent in the US for many years, appears to have finally found its way to other countries. This article has a look at some disturbing recent developments.

United States
In 1989, when it was generally felt that the US would adopt the CLC,¹ the EXXON VALDEZ ran aground on Bligh reef in Prince William Sound in Alaska, spilling around 11 million gallons of crude oil into the pristine waters of the sound. A decisive reaction to what was perceived in the US to be a national outburst of rage was the speedy passing of the Federal Oil Pollution Act 1990 (OPA 90). This was the biggest oil spill in the United States and caused unprecedented reaction from the public, the government, environmentalists and the media. Until this time, criminal prosecution of seafarers, owners, operators or managers of a ship was extremely rare. This, however, changed very quickly, with the ensuing criminal prosecution of the EXXON VALDEZ’s master, Captain Hazelwood, and owners, Exxon. It is now common for accidents, especially those that result in pollution, to result in exposure not only to civil liability, but also to criminal investigation. Such investigation may eventually lead to criminal prosecution of the ship’s personnel, in many cases even when the incident has been caused by error in navigation or management of the vessel.²

The terrorist attacks of 11th September 2001 in the United States gave rise to high security concerns world-wide, but more so in the US. This led to increased scrutiny of vessels, crews and cargoes by the US Coast Guard. It was inconceivable until this stage to seafarers and those involved closely with the maritime industry that a ship would be perceived as being the vehicle that carried on board cargo akin to weapons of mass destruction and the crew themselves as terrorists. This trend has unfortunately resulted in some companies reviewing their manning policies to the detriment of seafarers of certain nationalities and religions, which, considered in the light of the fact that shipping is an international industry, gives rise to concern.

The increased scrutiny of vessels has resulted in the US Coast Guard discovering that many Oil Record Books were filled in wrongly in order to hide a deliberate discharge of oil in breach of MARPOL or other regulations by by-passing or flushing the oily water separator. As presentation of a false document is a crime under US law, action can be taken against the wrongdoers even in circumstances where the actual discharge has taken place in waters outside US jurisdiction. The US Coast Guard has established a task force, called the Oily Water Separation Systems Task Force (OWSSTF), essentially to investigate matters concerning by-passing of the oily water separator. Physical investigation is carried out by the investigative arm of the US Coast Guard. Such investigation may be triggered by the observation of false entries in the Oil Record Book or by the mere discovery of suspicious-looking equipment in the engine room, such as flexible hoses and flanges, or due to observation of tell-tale signs, such as a break in paint at flanges or recently-painted flanges, which may indicate the use of such suspicious equipment. US authorities have made no attempt to disguise the fact that they will jail masters and chief engineers of ships that commit pollution offences, even when they occur outside US waters. The US has successfully initiated a “whistle blowing” campaign, the “whistle blower” being entitled to 50 per cent of the fine imposed, which may run into millions of dollars.

There appears to be a trend of criminalisation of seafarers in many countries.

Although criminal investigation into maritime accidents or violations of MARPOL or other statutes will in the first instance focus on the crew, it will not necessarily stop there. This focus will move up the chain to include owners, managers and eventually the corporate officers of the organisations concerned. Fines and sentences for criminal offences are substantial. For obvious reasons, however, they are smaller for the crew members and larger for the corporations. This probably provides incentive for the investigators to implicate the owners and corporate officers when possible. US authorities are known to use “witness flipping” effectively to reach the top. This is a process which involves putting the screws on the lowest ranking crew member in an attempt to implicate his senior and so on, aiming to eventually get a bead on personnel at the highest level. Discovery of any attempt at witness-tampering and/or obstruction of justice will almost certainly result in extremely serious criminal consequences for those involved.

It must not be forgotten that, in addition to criminal liability, corporations will also be faced with civil liability under statutes such as OPA 90. As the issues that form the basis for civil liability are considered in criminal prosecutions, issues relating to negligence and wilful or reckless conduct will be determined by a court well before the civil case gets seriously moving. As the issues and parties involved are the same, determination of the issues during the course of criminal prosecution will serve as findings for the subsequent civil trial.

World-wide criminalisation of seafarers
The trend of criminalisation of the seafarer, which has been prevalent in the US for many years, appears to have finally found its way to other countries. The imprisonment of the masters of the ill-fated ships ERIKA and PRESTIGE in Europe and of the master and crew of the TASMAN SPIRIT in Pakistan provide sufficient evidence of this.³ The PRESTIGE and TASMAN SPIRIT are the two most recent incidents and still very much in the news.

The PRESTIGE
There appear to be strong arguments to suggest that the unwillingness of the Spanish authorities to consider the opinion of Captain Mangouras, the master of the PRESTIGE, who was a man of vast experience in his field and also of SMIT, who were contracted to salve the vessel, may have been the cause of excessive pollution of not only the Spanish coast, but also the French coast. It has been suggested that, were the Spanish authorities to have made a proper technical assessment of the situation and heeded the advice of the master and salvors to tow the vessel to a position of refuge rather than order her to proceed outwards under her own power, the pollution would have been restricted to not more than 2,000 tonnes. Considerable time was also lost due to the delay in getting a salvage team to the vessel, which was attributed to the non-availability of helicopters. During this period, the Spanish authorities demanded that the salvage master signed a letter to confirm that he would not bring the vessel within 120 miles of the Spanish coast.

There was some resistance from Captain Mangouras to the orders of the Spanish authorities to proceed to sea. This resulted in him being handcuffed and arrested on charges of disobedience and deliberate pollution as soon as he came ashore on 15th November 2002. The heroic efforts of the master, at the age of 67, to successfully stabilise the vessel, save the crew and vessel, are definitely actions to be applauded. However, the master was seen by the authorities to be a criminal rather than a hero. The master was interviewed at length in spite of lack of sleep and being exposed to extremely difficult and stressful conditions for the previous 48 hours, imprisoned at the local police station for two days and then transferred to a high-security prison, where he spent no less than 83 days. He was released from jail on bail of USD 3 million, but was required to stay in Spain, reporting daily to the local police station. This reporting requirement was reduced to weekly intervals only in April 2004. The criminal investigation is now nearing its end, with the master facing up to 10 years imprisonment if found guilty. This is the prospect faced by a man now aged 69, with an unblemished record during his numerous years at sea.

The TASMAN SPIRIT
In the case of the TASMAN SPIRIT, the vessel was ordered to enter a dredged channel some two hours after high tide. The indicated charted depth and height of tide when she entered the harbour should have allowed under-keel clearance of approximately 1.75 metres. However, the vessel ran aground in the dredged channel on 12th August 2003. Subsequent survey has revealed that the dredged channel was in some places up to 2.8 metres shallower than the charted depth.

The vessel was hard aground forward and local and self-assistance was not sufficient to re-float her. Owners entered into a LOF 2000 salvage contract with Tsavliris Russ. Even though it was apparent quite early that the vessel would have to be lightened considerably, permission to allow a large tanker to anchor in the approach channel for STS transfer was denied by the port authorities. Eventually smaller ships were found and the ship was lightened by approximately 36,000 tonnes using submersible pumps as the vessel’s own pumping and piping arrangements had sustained considerable damage from the grounding.

The master and the crew of the TASMAN SPIRIT did their utmost under the circumstances to minimise pollution and try and save the vessel, to the extent of jeopardising their health by working in the close proximity of the uncontained cargo. Unfortunately, despite their best efforts the vessel broke in two, causing the largest marine pollution incident in southwest Asia.

The master, six of the crew and the salvage master (who only arrived in Karachi four days after the vessel had broken in two as a replacement to the original salvage master who had been evacuated after being overcome by fumes) were detained in Karachi to assist the port authorities with their preliminary enquiries. On completion of the preliminary enquiries, the eight men (who came to be known as the “Karachi eight”) were put on notice of preliminary criminal charges against them. The preliminary report into the grounding issued by the Director General of Ports and Shipping made no criticism of the Karachi eight. As Pakistan is not party to the CLC, the intention behind the detention of the Karachi eight may have been to obtain security for compensation for damage caused by the pollution, initially indicated by the Pakistani authorities to be in the region of USD 1 billion.

The security demand of the Pakistani authorities was refused, and approximately nine months after being detained the Karachi eight were freed. It is suggested that the intervention of both Washington and the EU may have played a big part in securing the release.

EU proposal
As is obvious from the above, the criminalisation of seafarers is getting to be more the norm than the exception. A reaction from the PRESTIGE pollution resulted in the EU Commission proposing criminal sanctions for ship-source pollution.⁴ The proposed legislation, (currently being considered by the European Parliament in its second reading) which has been widely commented on by the press, is not in line with MARPOL in so far as:
– Criminal liability would attach in the case of accidental pollution as a result of gross negligence or serious negligence (the terms of culpability proposed respectively by the EU Commission and the Council of Ministers), even in the absence of deliberate or reckless conduct.
– There is no distinction between operational discharges and accidental spills.
– The proposal intrudes into areas within MARPOL jurisdiction.

A framework decision is under consideration, with a view to harmonising sanctions for ship-source pollution. The latest draft provides that member states shall ensure that infringements under the directive are treated as criminal offences punishable by penalties. Penalties include fines and imprisonment.

France
France has introduced harsh penalties for ship-source pollution.⁵ The “Perben 2” law,⁶ which came into force in March 2004, increased the potential fine for pollution resulting from the discharge of oil or oily residues from ships, whether voluntary or accidental (but unrelated to a marine casualty) to EUR 1 million, or the value of the vessel, or four times the value of cargo on board and freight. Foreign masters are liable to maximum 10 years imprisonment if caught within the 20 miles of the French territorial sea, as are French masters if caught on all French territorial waters. Unintentional pollution is punishable by seven years’ imprisonment and a EUR 700,000 fine or up to four times the value of the cargo carried on board.

Conclusion
It is widely accepted that any deliberate actions that result in pollution, injury to life, industry and the environment should be taken seriously. However, there is no such general acceptance of the EU-proposed directive or the Perben 2 law with respect to the criminal prosecution of seafarers for accidents caused due to negligence. The shipping community as a whole is lobbying for the EU-proposed directive and Perben 2 law to be kept in line with international law. Greece, Malta and Cyprus have publicly stated that they do not support the spirit and the level of punishment subscribed by the proposed EU directive.

Criminal prosecution is considered by those who advocate it to serve as a deterrent to others and as a punishment of the offender. In opposition to this, it is widely accepted that criminalisation of marine accidents is counter-productive. As criminalisation seeks to find fault and attach blame, investigations into the causes of accidents are hampered and lessons are not learned. This is definitely not what ISM sought to achieve. In these days, when there is an indication of acute shortage of quality seafarers, the trend to criminalise the seafarer can only act as a deterrent to those really interested in a sea-going career.

The shipping industry is one of the most highly regulated industries. Statistics prove that the amount of trade by sea, especially the carriage of oil, has gradually increased and that the number of accidents has actually decreased. However, the move towards criminalisation of seafarers and other players within the shipping industry indicates that those responsible for passing such legislation may not be aware of the facts.

Human error has often been claimed to be the reason for accidents. It is rather unfortunate though that in most cases it is implied that human error is restricted to the crew and that it does not extend beyond the ship’s personnel. Unlikely as it may seem, one can only hope to see a reversal of the present trend towards criminalisation of the seafarer, and that national laws will recognise and stay in line with international law, such as that set out in UNCLOS and MARPOL.

A welcome silver lining, however, was the decision on 15th November 2004 by the Spanish Court of Appeal to authorise a three month permit to the master of the PRESTIGE to reside in Greece subject to the requirement to report fortnightly to the local police station. This may be seen as a recognition by the courts, albeit belated, that seafarers should be treated in a humane manner.