Presumed Guilty

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Maritime unions have their work cut out in preventing seafarers from being treated as potential polluters and terrorists, says Sharon James

In July 2003 the Maltese-flagged crude oil tanker Tasman Spirit ran aground near the harbour mouth at Karachi port. It then proceeded to leak oil. Despite the pollution, the crew could not have imagined at the time that they would effectively be held hostage in Pakistan for nine months, or that they would be dubbed the "Karachi Eight", their case becoming a cause celebre of the shipping world and beyond. For many the Tasman Spirit case provided a dramatic example of the risk of criminalisation facing seafarers.
In the course of highlighting the plight of the Karachi Eight the fate of those who came before, such as Captain Apostolos Mangouras, the master of the Prestige, who is still not allowed to leave Spain, and Captain Karun Sunder Mathur of the Erika, who was arrested and detained by the French authorities, received renewed attention.
The unnecessary and unjustified detention and criminalisation of seafarers shot up the political and media agenda and became a subject that major players in shipping, including ship owner organisations, insurers and the Secretary General of the International Maritime Organisation spoke out against. For the ITF it was time to refocus public attention on an important issue.
The case brought the shipping industry - both ship owners' and seafarers' representatives - and governments together to work towards a diplomatic solution to the crisis, eventually culminating in the release of the crew in April 2004. The ITF's efforts also brought a letter of thanks from the Greek salvage company, Tsavliris, whose master had been imprisoned.
Whether a Tasman Spirit-type case is likely to recur is difficult to tell. Was the adverse publicity and political pressure directed at Pakistan sufficient to deter other states from contemplating a similar course of action? Does the desire to secure a large compensation claim override those concerns? We will not know until and unless another case arises. What matters is that the criminalisation of seafarers is high on the agenda. Unions must respond and influence policy while the attention of the industry and governments is focussed on the subject.

Speaking out against unfair penalties

In August 2004 the International Confederation of Free Trade Unions (ICFTU) called on the United Nations to tackle the problem of false charges of terrorism on workers’ rights.

Anna Biondi, assistant director of the ICFTU’s Geneva office and secretary of the workers’ group at the International Labour Organisation, said: “One of the unresolved matters, post 9/11 security concerns, is the restrictions placed on the movement of seafarers.

“Innocent seafarers are being treated like terrorists. Policies such as denial of shore leave are not part of the legitimate security concerns of governments as they will only generate ill feeling amongst those who have such an important security role to play.The most acute problems have been in the US where, in addition to the frequent denial of shore leave for seafarers, some companies have also been required to pay for armed guards to prevent crew members from leaving the ship.

“The ICFTU recalls that workers’ rights, in particular those established through ILO standards, are human rights and believes that the message coming from the shipping industry – that enhanced security will be achieved by cooperation, not by confrontation – is valid for all workers and workplaces worldwide.”

On World Maritime Day on 30 September a worldwide coalition of seafarers’ trade union bodies, including the ITF, joined shipowners’ organisations to back fair maritime security measures and shore leave provision for seafarers.

Grey areas
When discussing criminalisation, it is important to distinguish between the arrests of seafarers who have broken the law in a particular jurisdiction, and the arrests of those who have done nothing wrong other than to go about their professional duties. To complicate matters, there are also cases that could arguably be said to fall between the two. Seafarers sometimes find themselves in circumstances where they are under immense pressure to break the law, or where they have a limited ability to stop the illegal activity. In such cases, those circumstances could be mitigating factors in decisions relating to prosecution or to sentencing.
Seafarers could be arrested for a range of offences at sea. These include violations relating to marine pollution; maritime security; safety of navigation; crimes against persons on the high seas such as assault or murder; and drugs, arms or people smuggling. When an accident occurs, it is often the master of a vessel who is prosecuted as he or she has traditionally been considered to be the direct link to the ship owner's management structure and the company's agent. However, other officers are sometimes prosecuted, for example engineers in waste dumping cases. Depending on the type and nature of the offence any member of the crew can face charges.
Where seafarers have knowingly and intentionally carried out crimes, they should expect to face prosecution. However, not all cases are clear-cut and there are trends developing that are worrying.

Criminal sanctions
There is little doubt that the prolonged detentions of Captain Mangouras and the Karachi Eight have drawn interest to the issues, but the criminalisation of seafarers is not a new phenomenon. For example, in 1997 the master of the Greek-flagged tanker Nissos Amorgos, was held in Venezuela as a result of the oil spill from the ship following its grounding in the Maracaibo Channel.
Nevertheless, it is probably fair to say there has been increased emphasis on criminal sanctions in recent years as evidenced by a number of new measures relating to maritime security and marine pollution. These include the revision of the International Maritime Organisation's Suppression of Unlawful Acts (SUA) Convention to address new terrorism concerns and the proposed European Commission Directive on ship-source pollution, making criminal sanctions applicable against anyone who is found to have caused or contributed to illegal pollution intentionally or by way of gross negligence.
There have also been national initiatives such as the new French legislation on marine pollution. Some legal commentators argue that the new-found aggressiveness of the EU rivals that of the US, which has been prosecuting maritime environment cases since the mid-1990s and continues to do so more aggressively than ever through the US Department of Justice Vessel Initiative.

Driving forces
The maritime world has seen significant changes following the events in the US on 11 September 2001. New security measures have been introduced, covering ports, containers and the movement of seafarers. The ISPS Code came into force on 1 July 2004, while the Suppression of Unlawful Acts Convention is in the process of being revised to include new offences, including some relating to non-proliferation, and wide-ranging powers for the boarding of ships.

Public disquiet over marine pollution has increased over the past years, particularly in Europe following oil spills that have caused significant damage to local wildlife and coastlines, and resulted in the loss of livelihoods among fishermen and others. Public awareness of environmental issues generally has also developed, helped by effective campaigning by green activists, and media attention lavished on high-profile events. At the UN World Summit on Sustainable Development in Johannesburg in 2002, for example, world leaders pledged sustainable development and environmental protection. The economic losses involved and growing public concern have put governments under pressure to act against marine pollution.
The failure of flag States to live up to their international obligations has forced other countries that could potentially be adversely affected by substandard shipping to act. For example, it has been the prime motivator of port state control regimes that have been put in place by coastal states in an effort to eliminate rust buckets and to ensure that foreign ships visiting their ports meet international safety, social and environmental standards. Similarly, one could argue that the proactive stance taken by many states on marine pollution has been driven by inadequate supervision by failing flag States.
Finally, the role of national, political and economic considerations cannot be ignored. Seafarers are sometimes used by governments to deflect difficult political questions at home, and in the hope of strengthening their hand when seeking compensation from insurers and other parties.

Caught in the middle
As in any other walk of life, there are those in the seafaring profession who are actively and intentionally engaged in criminal behaviour. However, this should not detract from the fact that seafarers are, by virtue of the fact that they live and work on board a ship, in a disadvantaged position when faced with a state intent on a criminal prosecution. They are physically present at the scene and are easily accessible to law enforcement officials who can detain them while deciding how best to proceed.
Against the backdrop of an industry where substandard ship owners seek to evade responsibility, using shell companies and corporate veils to vanish without a trace, the odds are stacked against an innocent seafarer from the start. The fact that beneficial ownership in shipping can be very opaque is seen as one of the reasons why masters and sometimes crew are held. Even if the ship owner can be found, the company is usually half way across the world and its directors are unlikely to have to endure incarceration.
What's more, flags of convenience, which facilitate the evasion of liability by substandard operators, have a poor record of providing diplomatic protection to seafarers when they need it most. It is striking that the flag states in the Prestige and Tasman Spirit cases - Bahamas and Malta respectively - did not exercise their right under international law to institute legal proceedings through the International Tribunal of the Law of the Sea requesting the immediate release of the seafarers involved. This application for release can only be made by or on behalf of the flag state of the vessel. Considering the number of ships flying flags of convenience, this is a major problem facing seafarers.
Another aspect of protection that seafarers are often denied in practice are the procedural rights that many of us take for granted. These are the safeguards that ensure proper procedures are followed prior to and during an arrest, humane treatment during any periods of detention, access to legal advice and representation, a fair trial and a proper process for extradition. Again, the flag state has a role to play, as do ship owners and insurers, particularly in addressing welfare and legal needs.

Getting at the real culprits
It is clearly the intention of governments to include seafarers among those who can be prosecuted in some of the new legislation we have seen. The proposed EU directive on ship-source pollution and the proposals made in the course of reviewing of the SUA Convention demonstrate this. The ability to prosecute seafarers who may be involved is no doubt considered an important recourse for cracking down on terrorism and illegal pollution. It may also be seen as a deterrent.
However, in order to tackle these problems effectively, it is necessary to get at those who are in control and who derive the greatest benefit from such acts. Unfortunately, the lack of transparency in shipping makes this particularly difficult. Unless and until governments are prepared to tackle the flags of convenience system and transparency in beneficial ownership, the real culprits will be able to cover their tracks.
The desire of states to address maritime security and marine pollution is not only understandable, but laudable. However, if care is not taken to balance human rights and seafarers' welfare alongside other considerations, these measures could have the unfortunate result of unnecessarily criminalising seafarers. Legislators need to recognise the realities and pressures of modern shipping. For example, it is unrealistic to expect a master or crew to know exactly what they are transporting in containers, since it is physically impossible to check every one. Also, many seafarers do not have sufficient responsibility or effective control over the goods being transported. It must therefore be unreasonable to hold them responsible for transporting goods that may be prohibited, but over which they have no control or knowledge.
Seafarers can also come under immense pressure from substandard operators to dump waste illegally at sea to save costs. Charter party clauses that require a ship to arrive at a loading port without slops or any previous cargo remaining on board add to the problem, as does the patchwork provision of port facilities for the discharge of contaminated waste. The choice for the seafarer can be stark Р break the law or lose your job. While this doesnХt exonerate them, such circumstances should be taken into account and treated as mitigating factors when authorities are deciding on whom to prosecute, and during sentencing.
Given that the liberty of individuals is at stake and the actual circumstances in which seafarers work, it is only reasonable that criminal offences for which they could be prosecuted contain a requirement of knowledge, intention and effective control.
Many governments and virtually every section of the shipping industry have expressed concern over the criminalisation of seafarers. However, there has been little interest in addressing the important roles that failing flag states, lack of transparency and substandard shipping play in aggravating the problem. In addition, measures taken to curb pollution and to promote security could have the adverse effect of unnecessarily criminalising seafarers, due to the failure to address these issues and to reflect the realities of modern shipping.
Although the issue of criminalisation is a complex one, governments and the industry could go some way to mitigate the problem if they paid more attention to the fundamental issues such as crowding out substandard shipping.
Seafarers find themselves on the front line in the battle against terrorism, and in efforts to protect the marine environment. Yet they feel they are being treated as potential terrorists and polluters until proven otherwise.

Sharon James is a senior section assistant in the ITF Seafarers Section in London.

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Issue 18 January 2005

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