The case for fairness
26 August 2008, Lloyds List
HE IS the driver, the progress chaser, the trouble-shooter, the fixer of intractable problems. His attitude and ability will affect the efficiency of the ship, and whether it is a happy place in which the crew can work. His decisions can mean the difference between life and death for all aboard, his skill, judgement and experience can change a commercial disaster into a success, or vice versa.
His legal responsibilities stretch back to the middle ages, even though his technical skills are those of the 21st century. He is the man on the receiving end of emails sent from charterer’s offices by spotty clerks whose manners are lacking and who have yet to learn about time-zones, demanding instant answers to damn-fool questions.
He is the person all the shoreside officials target as soon as the ship gets alongside, soliciting answers to their questions, large quantities of paper and — in some parts of the world — the odd carton of Lucky Strike, bottle of Black Label or wodge of dollar bills to oil the system, ensure co-operation, or stave off arrest.
He is the master and the man who carries the can, but in too many jurisdictions, he is the subject of criminal action after an incident.
In July 2006, after some very long discussions and in the wake of some notably nasty cases in which surviving shipmasters from wrecked ships were persecuted and prosecuted by the authorities in so-called civilised countries, there was some long hoped-for action.
The International Maritime Organization and the International Labour Organisation produced their Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident. They were only guidelines and were in no way mandatory, but they were better than nothing, and were designed to do something to intervene in the increasingly unpleasant judicial cases where seafarers (and mostly the master) were being routinely arrested and held for long periods after operational incidents and accidents.
There is nothing particularly new about masters being badly treated by the authorities. Whereas in some enlightened countries the master who lost a ship might be treated with humanity, or subjected only to professional sanctions, in others the full force of criminal law would descend upon his head.
In the event that lives were lost, many countries would almost automatically jail the master, regardless of fault, on the specious grounds that society demanded such a punishment. It sort of went with the job, like it or not. I never forget a much admired master telling me, with all seriousness as we drank our 8-12 mugs of cocoa one evening, that if he ever lost a ship, he would make sure he went down in her.
The IMO/ILO guidelines came after a rather long list of high-profile marine accidents that served to highlight the injustices which were often perpetrated on shipmasters, who really bore little responsibility for an accident, other than they were in charge of a ship that was involved.
Each individual case is unique. Sometimes masters had made mistakes, as in the case of those whose decisions led to collisions or grounding. Often they had pilots aboard, or were involved in accidents caused by the structural or mechanical failures of the ships they commanded. They were caught up in pollution incidents, where people aboard their ships had themselves made mistakes, or wilfully took short cuts, ‘marine accidents’ taking many forms.
Criminal sanctions are no longer confined to traditionally illiberal countries, but are spreading around the world as the demand for accountability and blame for unforeseen events is transmitted like a contagious virus.
Masters and other senior officers are given criminal sanctions, with long periods of confinement and tough jail sentences after trials, which demonstrates the zeal of the authorities for protecting the environment. And it might be a cynical observation, but because nine times out of 10 the prosecuted master is foreign, there will probably be no backlash in support of his case.
A further cause for concern is that the criminal case against the ships’ officers will, in many countries, double up as the only ‘inquiry’ into the incident. This is most unsatisfactory, cutting across the latest thinking contained in the Code of International Standards and Recommended Practices for Safety Investigation into a Marine Casualty or Marine Incident, which stresses that the prime requirement of any investigation is to discover the chain of events which led to the accident and, by promulgating this information, to prevent repetition.
It is the proliferation of criminal sanctions in the event of marine accidents which led to pressure from bodies such as the International Federation of Ship Masters’ Associations and a number of seafaring unions to produce the IMO/ILO guidelines on fair treatment. It came after lengthy detentions of shipmasters in cases such as the Nissos Amorgos incident, a grounding causing pollution in the Maracaibo Channel, where any professional with an ounce of common sense would have doubted the responsibility of the master.
There was the quasi-political case of the Tasman Spirit, which grounded and broke up in the approaches to the Port of Karachi, with the ship’s senior officers and a salvage master detained for months. A notably unfortunate affair involved the Russian officers of the tanker Virgo, which was alleged to have run down a US fishing boat, and who similarly were prevented from leaving Canada for many months.
There was the scandal of the Erika and her master, who was only released from a French prison after the intervention at the highest level of the Mission to Seafarers chaplain in Dunkirk. And there was the lengthy ordeal of Captain Mangouras of the Prestige, an elderly master whose attempts to save his ship were frustrated by the obduracy of the Spanish authorities.
There was also a strong sense of injustice about the way in which masters were being prosecuted and persecuted in the event of alleged pollution incidents. There was a rash of incidents off the French coast, for example, where the burden of proof that a ship was polluting seemed to depend entirely on dubious aerial photographs.
These cases, heard before magistrates whose expertise and judgement in marine matters were greatly limited, achieved considerable notoriety, with enormous fines levied and reputations ruined by virtue of the criminal records. It was as if the master had been wholly responsible for personally directing the pollution, which was outrageously unfair. Indeed, in one case, the company was able to demonstrate that the ship had been steaming through a wind-rode slick at right angles to the direction of travel. This had no effect upon the magistrates.
Is there any sense that the IMO/ILO guidelines are having any effect upon the incidence of downright unfair treatment of seafarers?
There are a number of recent and current cases that seem to suggest that the guidelines are not being employed to treat seafarers fairly.
The case of the master of the Zim Mexico III appeared notably harsh. He was detained in Mobile and subsequently convicted and sentenced, after his ship, with a pilot embarked, had knocked over a container crane upon which an engineer had been working without permission. But the master was charged under the ancient Seaman’s Manslaughter Act, which ought to be redundant, but which afforded him no protection.
There has been much written, in this newspaper and elsewhere, about the appalling plight of the master, chief officer and boatswain of the reefer Coral Sea, who languished in a Greek high-security prison after a consignment of drugs had been discovered in one of more than 100,000 boxes of bananas discharged at the port of Patras. The master was subsequently sentenced to 14 years’ imprisonment, while the chief officer (whose health is ruined) and the boatswain were acquitted.
And while Greek justice seems to deem it appropriate to arrest and detain the crew of a ship found carrying drugs, the trial of the 59-year-old master has been described as a disgrace, his position on board as “the man who carries the can” being the sole reason for his conviction, in the absence of any other meaningful evidence.
Judicial expert Edgar Gold, who has highlighted this particular case in his recent writings, has suggested that the IMO/ILO guidelines need to be broadened from their present definition of a ‘marine accident’ to take in the case of a master caught up in such a plight as has ruined the long and distinguished career of the Coral Sea master.
The case of the Cosco Busan, which has resulted in six of the containership’s crew being unable to leave the US for the past eight months, is a further illustration of the way in which the guidelines have been ignored.
Perhaps the most notorious of all is the thoroughly unjustified detention of the master and chief officer of the VLCC Hebei Spirit, found innocent of any blame after their anchored ship had been hit by a runaway crane barge, but unable to leave Korea and resume their careers, pending appeal and supreme court hearings which may take years.
It seems precisely this sort of case that the guidelines are designed to assist, but which are so evidently being ignored, despite international protests and diplomatic appeals.
Fear that the release of witnesses will mean that they will leave the jurisdiction and never return is usually cited in these cases as an excuse for the detention of witnesses. The fact that the expectation among foreign seamen of fair treatment is not exactly sky high, ought perhaps to be counted in their favour. They are not mistaken in their beliefs.
Nevertheless, if flag states can co-operate, arrangements can be made to repatriate seafarers pending the case coming to court. The present system, where seafarers are virtual hostages, cannot remain unchanged.
Is it possible to stiffen up the guidelines so that governments and judicial bodies take them seriously? It is important that there is some action here, because the unfairness of so many of these cases is having a corrosive effect throughout the shipping industry.
Seafarers believe that, at best, they will be in receipt of “second-class justice” should they become involved in any form of accident or incident. There is any amount of evidence to back up this supposition. They are not altogether isolated from life ashore, they know about these injustices and they have a declining confidence in any form of fair treatment.
Seafarers are treated as second-class citizens by officials in too many ports. They are denied the human rights which people ashore take for granted, outside the fortified areas which ports have become. They are, in short, treated with no respect at all, despite the utterly essential job they do.
Why on earth would anyone wish to be a shipmaster, to be treated like this? Why be a seafarer, a member of such a disrespected society? These are questions which society had better answer — and fast.