Criminalization of Seafarers: Defining the Problem and Seeking Solutions Kim Jefferies, Senior Claim

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Criminalization of Seafarers Defining the
Problem and Seeking Solutions Kim
Jefferies, Senior Claims Executive, Legal Advisor
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Positive Steps Toward Fair Treatment
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Were all talking - but what do we really mean?

• Two related but separate phenomena
• Trend to treat marine accidents as crimes
• Disregard for fundamental rights of seamen

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When is an accident a crime?

• Prestige
• Erika
• Tasman Spirit
• Zim Mexico III
• Whenever it leads to death or serious pollution?

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Seamen bear the brunt

• Sailing is like being in jail but with the added
  opportunity of drowning. --Mark Twain
• Who will go to sea?
• How will we learn from mistakes?

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When is an accident a crime?

• Traditional dividing line
• Civil negligence / Criminal acts
• Negligence is the failure to use such care as a
  reasonable person would use in the circumstances.
• The aim of the civil law is to compensate those
  harmed.

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When is an accident a crime?

• Traditionally criminal law required intent
• Mens rea, literally, a guilty mind
• The aim of the criminal law is to punish the
  guilty and deter others

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The international regime recognizes the
traditional distinctions between civil and
criminal liability

• CLC provides compensation on a strict liability
  basis.
• Limits the owners and other individual liability
  
• unless the damage resulted from their personal
  act or omission committed with the intent to
  cause such damage and with knowledge that such
  damage would probably result.
• MARPOL uses same standard of intent or
  recklessness with knowledge that damage would
  probably result.
• MARPOL does not punish pollution due to
  casualties unless recklessness is shown.

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Erika and Prestige prompt political reaction

• ERIKA and PRESTIGE demonstrated - CLC means
  civil
• Signatory state free to use domestic criminal law
• EU Directive mandates criminal sanctions

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EU Directive

• EU Council aims to deter substandard shipping
• dissuasive effects can only be achieved through
  the introduction of sanctions applying to any
  person who causes or contributes to marine
  pollution.
• Shipowner, crew, cargo owner, classification
  society or any other person involved.
• EU directive requires member states to punish
• Intentional and seriously negligent ship-source
  pollution
• 3 year jail terms 5 years when serious
  environmental harm

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Industry reaction to the EU Directive

• The industry is not opposed to appropriate
  punishment of deliberate violations of
  environmental rules, but the principle of
  criminalising accidents is neither just nor
  reasonable given the hazards of the sea.
  --ICS/ISF
• Industry Objections to the Directive
• Punishing accidental pollution contravenes MARPOL
  and UNCLOS
• Serious Negligence undefined and subjective

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Industry Challenge to the Directive

• Intertanko, Intercargo, Greek Shipping
  Co-operation Committee, Lloyds Register and
  International Salvage Union
• Suit in London for referral to the European Court
  of Justice
• June 2006 High Court of Justice finds claimants
  arguments well founded and refers questions to
  the ECJ.
• ECJ will rule on validity after hearing, maybe
  next year.

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Addressing the Rights of Seafarers

• IMO/ILO Guidelines On the Fair Treatment of
  Seafarers in the Event of a Maritime Accident
• IMO/ILO Ad Hoc Working Group on the Fair
  Treatment of Seafarers
• China, Egypt, Greece, Nigeria, Panama,
  Philippines, Turkey and USA
• ICS/ISF, IFMA, Intertanko, BIMCO, IG and many
  others
• CMI Working Group - Chaired by Dr. Edgar Gold
• Guidelines approved and adopted in 2006 and
  reviewed in 2007 with no changes made

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IMO-ILO Guidelines Key features

• Seafarers are a special category of worker
  requiring protection to ensure their fair
  treatment and well-being following a maritime
  accident.
• Key Features
• Limitation of detention following an accident to
  no longer than necessary for port or coastal
  states to proceed with investigations
  expeditiously
• All available means should be used to preserve
  evidence to minimize the need for physical
  presence of the seafarer and due consideration
  given to non-custodial alternatives to pre-trial
  detention

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IMO-ILO Guidelines Key features

• Preservation of human and economic rights of the
  seafarer including lodging and sustenance, wages
  and other benefits
• Seamen are to be afforded due process rights,
  including advising them of the right against
  self-incrimination and the right to independent
  legal counsel and an interpreter
• The seafarer is to be advised of the basis for
  any detention
• Port and coastal states are to provide seafarers
  with the means to communicate in private to
  family, welfare organizations, the shipowner,
  trade unions, the embassy or consulate and legal
  representatives 

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IMO-ILO Guidelines Key features

• Guidelines are soft law
• Progress in combatting criminalization of the
  seafarer
• Internationally recognized
• Minimum standards
• Fair and humane treatment of seamen
• During deprivations of personal liberty
• Next step - industry and labour organizations
• must promote the guidelines!

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The Elephant in the Room
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Marpol Prosecutions in the USA

• Intentional pollution is a crime
• Punishment of criminal acts is an important duty
  of government
• PI Rules reflect the distinction between
  accidental and intentional pollution
• Should the US assert jurisdiction over acts that
  occur in international water subject to flag
  state control?

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MARPOL Prosecutions in the USA

• USCG dual role
• Harmful to historically cooperative relationship?
• Norwegian and British models
• Material witness detentions
• Voluntary agreements to detain
• Whistleblower rewards harm relationship between
  crew and management
• Investigations take time
• Damage is done to the innocent

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Successful Legal Challenges

• Abrogar decision Third Circuit Court of
  Appeals
• Sentencing case
• Discharges in international waters are not crimes
  under US law (they are crimes under law of the
  flag)
• No enhancement of penalty applies
• Athenian Sea Carriers Jury returns not guilty
  verdict
• Jury rejects whistleblower testimony
• Owners and Seamen increasingly look to the courts
  

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Conclusions and Observations

• Increased use of domestic criminal law evidences
  a lack of faith in the international approach in
  dealing with substandard ships and operators
• Industry must support initiatives to weed out
  sub-standard ships and to strengthen
  international regimes.
• All segments of the industry have parts to play
• We must continue to be united in our opposition
  to scapegoating of the Master and crewmen for
  innocent mistakes and accidents.
• MARPOL - We must regain the moral high ground
• Support appropriate punishment of deliberate
  violators
• Look for practical and legal solutions for the
  quality shipowner and crew

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Positive Steps Toward Fair Treatment