Moves towards criminalisation "definitely getting worse"

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Contexto de página: Página principal > Revista 'Transporte Internacional' > Issue 34 - January 2009 > Moves towards criminalisation getting worse

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Seafarers are increasingly vulnerable, as recent cases show. Andrew Draper reports

Maritime unions argue that criminalisation of seafarers is definitely getting worse, more often than not because they are an easy target. And after an incident – and when somebody is needed to bear responsibility – the seafarer is always on the spot and usually isolated and perhaps even dealing in a language or legal system s/he does not understand well.

Seafarers are increasingly vulnerable as an easy target for the authorities, as regulation unfairly exposes them to penalties. Two recent cases illustrate the point. Two officers on the Hebei Spirit, captain Jasprit Chalwa and chief officer Syam Chetan, were found innocent of causing an oil spillage in December 2007, when their fully laden oil tanker was struck by a crane barge while at anchor.

The two tug captains were jailed and the crane operator fined in the same trial. Chalwa and Chetan have not been allowed to return home from Korea, following the local prosecutor’s surprise decision to appeal against the judgment.

Meanwhile, a Croatian captain was sentenced to 14 years in jail and fined EUR200,000 by a Greek court in July 2008, after the Greek coast-guard found 51kg of cocaine in boxes of bananas being discharged.

The ITF attacked the verdict in Greece against captain Kristo Laptalo of the Coral Sea as “unexpected and impossible to reconcile with all the evidence heard in court which pointed to his innocence”. ITF general secretary David Cockroft said then: “Despite the lack of any evidence linking the captain to the drugs discovered hidden on the Coral Sea he has been sentenced to 14 years for no better reason than conjecture and guilt by association.”

Stephen Cotton, ITF maritime coordinator, added: “This is about more than one master. It is about the maritime industry’s ability to defend the very people that ensure that maritime trade continues. If allowed to stand, [this] decision would be the end of the fast, efficient service on which the world depends, since it would require all captains to check every fruit pallet and every container.”

Fair treatment of seafarers

There are guidelines on “fair treatment of seafarers in the event of a maritime accident.” The guidelines are seen by many as a declaration of human rights for seafarers. They were

developed by a joint International Maritime Organization/International Labour Organization (IMO/ILO) working group, and with input from the ITF. They are supposed to provide proper safeguards for seafarers following a marine incident, wherever they are in the world.

The IMO says 13 responses to circular letter 2825 – requesting information on the ill treatment of seafarers involved in maritime accidents – had at the end of September been received (from the Bahamas, Bulgaria, Estonia, Finland, Germany, Honduras, Mauritius, Mexico, Morocco, Panama, Qatar, Samoa and Spain). Spokesman Lee Adamson says: “All 13 have stated that they had not received any reports of mistreatment.”

Two recent cases...

Hebei Spirit

WHO: Captain Jasprit Chalwa and chief officer Syam Chetan.

WHEN: 7 December 2007.

WHERE: Daesan Port, South Korea.

WHAT: Tried and found innocent of causing an oil spillage when their fully laden 260,000 dwt very large crude oil carrier, the Hebei Spirit, was struck by a passing crane barge, while at anchor. The hull was punctured and released cargo into the sea. The prosecution appealed and the men have been forbidden from leaving the country. At the time of going to press, the officers were still awaiting the results of the appeal to see if they could return home.

Coral Sea

WHO: Captain Kristo Laptalo and crew members Konstantin Metelev and Narciso García.

WHEN: July 2007.

WHERE: Greece.

WHAT: Laptalo, a Croatian national, was sentenced to 14 years in jail and fined EUR200,000 after the Greek coast-guard found 51kg of cocaine in boxes of bananas being discharged. The manner of the trial caused real concern among Greek legal observers. The three were repeatedly refused bail despite their complete denials of involvement and the lack of any proof of guilt. Capt Laptalo was finally found innocent on 27 November 2008, putting his 17-month ordeal to an end. Commenting on the case, ITF maritine coordinator Stephen Cotton said: “Authorities have to learn to stop reaching for the easy option and condemning the, usually foreign, ships’ officers as a gift to public opinion when things go wrong.”

The ITF has been vocal in its defence of criminalised seafarers. In July 2008, the ITF and fellow members of the Round Table of international shipping associations expressed “surprise, disappointment and great concern” at the news that Korea’s courts decided to continue to detain the ship’s officers, despite their acquittal, for possibly as long as a year pending further hearings. “Such measures appear to be unjustified, unreasonable and in contravention of the men’s rights. We strongly believe that they should be permitted to leave the country,” the group said in a statement.

The Baltic and International Maritime Council (Bimco), the international employers’ body, has raised the question of unfair treatment of seafarers with some national governments, including South Korea over the Hebei Spirit case, and has urged its members to do the same.

Michael Lund, Bimco’s chief international affairs officer, says it has urged its members to report any mistreatment to the IMO/ILO, but he doubts any member countries would report themselves for treating seafarers unfairly.

A recent seminar hosted by the International Tribunal of the Law of the Sea (Itlos) in Hamburg, Germany, explored ways of the court being used to expedite cases where seafarers are detained abroad, and where detaining states are uncooperative.

The seminar noted that it is unacceptable that anyone except seafarers seems to be allowed to be bailed by courts. Even the option of posting bonds or other security is not applied.

The Itlos tribunal is a permanent, neutral, independent judicial body whose function is to adjudicate disputes arising out of the interpretation and application of the United Nations Convention on the Law of the Sea. It comprises 21 independent judges who are recognised experts in maritime law.

The judges are elected by the states for a minimum of nine years, and a third of the members expire every three years. No two judges may be nationals of the same state and the tribunal as a whole represents the principal legal systems of the world, with a guaranteed equitable geographical distribution of judges.

Criminalisation and shore leave

Bjørn Haave, head of the maritime section of the Norwegian officers’ union NSF and a vice-president of the International Federation of Shipmasters’ Associations, shares the ITF concerns that things are getting worse for seafarers. He puts it down to the introduction of the International Ship and Port Facility Security Code (ISPS). Like many spoken to for this article, Haave names the US as a country that poses particular problems for seafarers.

“If you are a Norwegian seafarer, you will be refused entrance to the United States if you don’t have proper visas,” he says. “But if you come in as a tourist, you don’t need a visa. That’s how they feel.”

The NSF has raised this matter with the IMO and the Norwegian government, but has not even received a reply from its own government, says Haave. “We also had a case in Egypt about three or four months ago, where they suddenly stopped everyone going ashore. After we knew about this we spoke to the Egyptian delegation to the IMO and it was sorted in a few hours.”

Haave, who has worked for many years on the matter of criminalisation of seafarers, does not really know why things are getting worse. “In many cases, it looks like the administrations in countries look for a scapegoat. If they can’t find anyone (in the event of an accident), they blame the seafarer.”

Most cases, he says, are related to the ISPS and the US. “We just did a survey among our officers. We sent 1,600 emails. Something like 30 per cent replied and a lot of them were very displeased with the way they have been treated, especially by the US, though not all of them. We also had something like one fifth having been refused entry to shore leave in the past two years in the US.

“We had one case where a Norwegian master was signing off a ship. He was going to spend his holidays in the US. He went to Panama and came back as a tourist and everything was fine.”

Haave says the union conducted a similar poll in 2005 and with exactly the same results. “It’s not a very bright future for seafarers at all,” he says. Like the ITF and other employers’ organisations which have joined it in speaking out, Haave believes this will have a negative effect on the recruitment of seafarers.

For Cotton, the negative effect should not be understated. “We want more action to protect innocent seafarers. If we as an industry cannot get this situation under control, then the current crew shortage will turn into a famine.”

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Issue 34 - January 2009

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