Criminalization of Seafarers

By Capt. Pankaj Kapoor

Bachelor of Law (LLB), Bachelor of Science, Post Grad (Mar Law), Master Mariner, AFNI

SEAFARERS ARE HUMAN TOO !!

International Trade Federation (ITF) says “Criminalisation is one of the most serious problems facing the seafarers today. When there has been a Marine Accident, or a pollution infringement, seafarers have often been detained and denied access to normal rules of fair play and justice with which to defend themselves against criminal charges. ’This study elucidates the hardships and hostile environment faced by a seafarer in a foreign land and tries to provide insights into how coastal states must honour the rights of seafarers.

In one of the recent cases, a VLCC on a voyage from South Korea to Singapore was pursued by Taiwanese coast guard on the high seas for allegedly hitting a fishing boat resulting in death of two fishermen. Second Officer and duty AB were arrested. Master who at that time was asleep and off duty was arrested too and prohibited from leaving Taiwan for nearly two years. Master was charged with Manslaughter, one of the very serious crimes. Later investigations revealed that the VLCC was nearly one hour away from the capsized fishing trawler and there were no visible indications of any impact on ships hull. BUT the master by then had already lost two years of his life trying to defend himself in a foreign land from a crime which he had not committed.

In yet another case, a vessel bound from Europe to Nigeria, was instructed by her owners to briefly stop at Senegal to pick up surveyors, who thereafter completely changed the ullage reports. Bills of ladings were switched showing origin of cargo as Senegal. On arrival Nigeria, Master, Ch officer and Surveyors were not only manhandled by the authorities but also temporarily put behind bars. One wonders if obeying instructions from owners is also a CRIME.

Not very long ago, a Croatian Captain, Croatian Chief Mate, and a Filipino Bosun were arrested when 51 kg of cocaine were found in a cargo of fruit discharged in the port of Patras. They were charged with smuggling cocaine, despite no evidence being laid against them. The Master and Chief Officer were found guilty and initially sentenced to long periods of confinement. The Chief Officer was subsequently released after more than a year in prison. He suffered severe mental problems and committed suicide. The Master was released after more than 17 months in harsh confinement and acquitted, but he was deported from Greece which made it initially impossible to resume his career with a criminal conviction remaining on his record. Paradoxically he was later awarded as the ‘Man of the Sea’ Award in 2008 in Lloyd’s List Greek Shipping Awards.

Under law, a perfect crime consists of two ingredients “ACTUS REUS” and “MENS REA”. For a crime to be complete the person committing it must have the intention (Mens Rea) and subsequently also put that thought into action (Actus Reus). This means that one may meditate on committing a crime (Mens Rea) but if he does not put it into action (Actus Reus) he cannot be prosecuted for it.

ARE SEAFARERS CRIMINALS…. though we may be involved in an accident or incident where an unpleasant event has occurred BUT did we have the intention to commit that “so called criminal action”. The answer is a BIG NO. Then it cannot be under any law be treated as crime.

Then why should we be treated as a criminal!!!!!

Criminalization of seafarers is the expression used when a Master, officer or other maritime professional faces criminal charges as a result of an incident or accident involving their vessel or someone onboard. Often when charges are brought against Masters it is implied that there was the intent to commit an offence. The Code for International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (contained within SOLAS) sets out certain safeguards that should apply to seafarers when they are required to provide evidence. These are, that the evidence should be provided at the earliest opportunity, and that the seafarer should be allowed to return to their ship, or be repatriated, as soon as possible.

International Chamber of shipping in its recent report states “That over 80 per cent of global trade by volume is being carried on board ships and handled by seaports worldwide, the importance of maritime transport for trade and development cannot be overemphasized.”

World shipping acts as an engine for sustainable growth and development and performs a strategic function in the AGENDA 2030.

Paradoxically our shipping industry, a back bone of International trade, is also one of the most regulated and unfortunately also the most neglected one.

The famous quote “out of sight, out of mind” befits squarely on International Shipping. That which you can’t see, you can’t feel.

On questioning a landlubber to rattle out some of the famous ship names, all that he would recall is Titanic, Costa Concordia and the few who are more knowledgeable than some would just might also quote the name of the Captain of Costa Concordia.

Gone are the days when grateful passengers would club together and present an address of thanks, together with a gift to the master, who had delivered them safely to their destination after a long sea voyage. Presently maritime progress and the advancement of technology has brought with it a gradually increasing intolerance of any sort of accident, which in the new century has become quite extreme.

The master and the crew of an internationally trading ship find themselves exposed to the whole gamut of different legal regimes and codes as the ship moves around the world. A minor pollution incident in one country, which may even escape censure, will be treated as a heinous crime in another, with concerned officers marched ashore in manacles and subjected to extreme treatment. Even a commercial dispute over cargo short landed, which will be dealt with by a protest note in country ‘A’ might, in what passes for law in country ‘B’, see the ship and the master arrested, charged with theft and held in disgraceful conditions along with criminals, against the posting of a huge P&I club bond. A minor discrepancy in a customs declaration form, over, for instance, the number of painkillers in the dispensary, could see the master of the ship arrested by corrupt authorities seeking to be “bought off”. The difficult position of the master who is completely co-viewed with the conduct of the ship makes him or her into an easy punching bag for authorities.

 A master, because of what he is rather than what he has done, can find himself sanctioned because of matters over which he has little personal control.

One need not go too far back to realize the ill-treatment of ship’s crew by authorities, there are plenty instances like the ERIKA, PRESTIGE, KARACHI 8, HEIBI SPIRIT.

A worrying indictment of the plight of seafarers has been delivered by a far-reaching survey of the experiences of seafarers facing criminal charges with seafarers complaining of unfair treatment, intimidation and a lack of legal representation and interpretation services.  

Of the seafarers surveyed by SRI, 8% had faced criminal charges; 4% had been witnesses in criminal prosecutions, while 33% knew of colleagues who had faced criminal charges.

Almost 24% of masters in the survey had faced criminal charges.  

Questions in the survey specifically asked about the experiences of seafarers who had faced criminal charges. 44% of seafarers reported that they were bodily searched. 87% who faced charges relating to the discharge of their professional duties said that they did not have legal representation; 91% of seafarers who needed interpretation services said that they were not provided with such services; and 89% of seafarers who had faced criminal charges said that they did not have their rights explained to them.  

Overall, 81% of seafarers who faced criminal charges felt that they had not received fair treatment. 

 Another threat which casts its draconian shadow over our industry are the unscrupulous manning agents who take advantage of prospective seafarers from inland cities, where the gullible youth are tempted with attractive wages. It’s a known fact that these heartless monsters disappear after they have fleeced their innocent victim.

We are fortunate that to counter this disease DG shipping (INDIA)along with the MEA has brought in the e-migration system. This has in-fact brought a phenomenal reduction in such nefarious activities. Though however, a suggestion is that DG shipping should create a cell which should constantly monitor every manning agent and should continuously update the list of “bad apples”.

As its mandatory for every Indian seafarer to complete the STCW courses, this list should be displayed in each institute (conducting STCW courses) for every student to inspect. Also, it should be made obligatory for every institute to share this list with all students doing STCW course. This would bring awareness in the future seafarer and give him an adequate advance warning. A brief lecture of maybe one hour must be included in the STCW courses where the institutes must give adequate knowledge to students of existence of such rascals and educate them to check the antecedents of a company before joining it.

Maritime unions also must cooperate with the DG shipping to amend/update this list continuously.

Another suggestion is that DG shipping should reward “whistle blowers” who give information of such manning or recruiting agents.

Problems of a seafarer do not end by just checking the lineage of the company. As there have been various cases where the seafarer is stranded on board without wages and means of survival. Abandonment happens either because the shipowners have financial difficulties or because they can make more money by not paying the wages and the bills they owe. This may be more frequent on older ships at the end of their sea life. In some cases, the ship is worth less than the money owed to crew and other debtors.

ITF advises that before accepting a position on board a vessel, find out as much as you can about the company and the ship you will be joining.

Look for indications of problems on board. Use the ‘Look-up a ship’ section of the ITF website to check if the vessel is covered by an ITF agreement and the outcomes of any ITF inspections.

If you are recruited through a crewing agency, try to make sure that the agency is properly run and has a system for checking the stability of the companies for which they supply crew. Check maritime social media to see which companies are the subject of frequent complaints by seafarers.

Yet another threat which a seafarer is exposed to is abandonment.

What is abandonment……………

Abandonment occurs when the shipowner:

·      fails to cover the cost of the seafarer’s repatriation; or

·      has left the seafarer without the necessary maintenance and support; or

·      has otherwise unilaterally severed their ties with the seafarer including failure to pay contractual wages for a period of at least two months’

As regards abandonment, it’s important to know that the insurance will cover you for up to four months outstanding wages only and entitlements in line with your employment agreement or CBA – So don’t wait for long! If you wait six months to apply, you’ll only get four months backpay.

The insurance must also cover reasonable expenses such as repatriation, food, clothing where necessary, accommodation, drinking water, essential fuel for survival on board and any necessary medical care.

SUGGESTIONS FOR BETTERMENT OF SEAFARERS

1.Create a monitoring cell in the DG shipping which will on a regular basis update the list of suspicious manning agents.

2.Ensure that the list is displayed in every institute imparting STCW courses.

3. Make it obligatory for all institutes imparting STCW courses to conduct at least one session of one hour educating the students of the precautions to be observed prior joining any company.

4.Impose a restriction on PnI club which has failed to support the seafarer in cases of abandonment.

5. Form an impartial committee headed by DG shipping to manage SWF amount for providing relief to seafarers.

6.Create a system whereby every manning agent must submit a “midterm” report to DG shipping giving details of the wages paid to all the seafarer employed by him. DG shipping may kindly consider the contents and frequency of the report in order to ensure that manning agent is always on his toes. This would ensure that, if there is any lapse in payment of the crew, the situation is controlled at an early stage itself.

ADDITIONAL PROTECTION UNDER MLC 2006

Guideline B4.4.6 – Seafarers in a foreign port

1. For the protection of seafarers in foreign ports, measures should be taken to facilitate:

(a) access to consuls of their State of nationality or State of residence; and

 (b) effective cooperation between consuls and the local or national authorities.

2. Seafarers who are detained in a foreign port should be dealt with promptly under due process of law and with appropriate consular protection.

3. Whenever a seafarer is detained for any reason in the territory of a Member, the competent authority should, if the seafarer so requests, immediately inform the flag State and the State of nationality of the seafarer. The competent authority should promptly inform the seafarer of the right to make such a request. The State of nationality of the seafarer should promptly notify the seafarer’s next of kin. The competent authority should allow consular officers of these States immediate access to the seafarer and regular visits thereafter so long as the seafarer is detained.

4. Each Member should take measures, whenever necessary, to ensure the safety of seafarers from aggression and other unlawful acts while ships are in their territorial waters and especially in approaches to ports.

5. Every effort should be made by those responsible in port and on board a ship.

6. UNCLOS which is the predominantly accepted law governing a seafarer is very clear and specific under Art 218/220 and 230. These articles give precise guidelines that in the event of any incident a seafarer cannot be arrested as he/she is only under the jurisdiction of the vessels flag state, unless the incident is caused intentionally (MENS REA) by the seafarer.

In conclusion and due to the present pandemic, I request all governments to allow sign on/off of ships crew in order to ensure an unhindered continuation of world's supply chain.