The year 2010 has been designated as the “Year of the Seafarer” by the International Maritime Organization and BIMCO is focusing on the importance of fair treatment of seafarers in a series of three articles. This second article focuses on the implications of unfair treatment of seafarers in maritime incidents, with the final article in the series dealing with the international legislative perspective and future outlook
Unfair treatment cases often have wide implications for the individual seafarers involved. The reasons for this can be found in the fact that such cases typically question the seafarers’ respect for the law and because they have serious consequences for the seafarers – regardless of whether the seafarers are convicted or not.
Consequences range from long periods of detention, as well as the severe psychological impact resulting therefrom to a variety of “side-effects” of a more practical nature, which nonetheless change the life of seafarers significantly. The IMO’s 2010 “Year of the Seafarer” campaign is aimed at paying tribute to the world’s seafarers and will constitute an important contribution to the efforts of ensuring fair treatment of seafarers, as well as complement the IMO’s “Go to Sea!” campaign to attract new entrants to the shipping industry; two initiatives fully supported by BIMCO.
Much is at stake
It has been seen in some incidents that seafarers, even after having been acquitted, have experienced difficulties obtaining a new job and, if they have managed to do so, have had difficulties obtaining visas for entry into foreign countries, thus in practice preventing them from carrying out their duties and, at worst, continuing their seafaring career. One example is the Hebei Spirit in South Korea in December 2007, where the Master and Chief Officer had their reputations tarnished by the guilty verdict of criminal negligence and have had to endure difficulties in relation to obtaining employment and visas in order to enter foreign countries. Another case is the Coral Sea in July 2007, where the Master, Chief Officer and Bosun were acquitted of charges of smuggling cocaine following detentions of 17 and 12 months respectively. These “side-effects” represent a regrettable trend which, apart from their practical implications for seafarers, goes against the very nature of the penal system. The Coral Sea case even led to the tragic suicide in January 2009 of the Chief Officer, who had suffered severe psychiatric problems following his detainment.
Another incident involves the container vessel Cosco Busan, which struck the Oakland Bay Bridge in San Francisco in November 2007 while navigating under direction of a pilot during thick fog resulting in approximately 167 tons of fuel spilt and significant damage to the vessel and the bridge. Clean-up costs were estimated to exceed $70 million. Although the operator of the ship pleaded guilty in federal court to criminal violation of the US Oil Pollution Act of 1990, obstruction of justice, and falsifying documents in connection with the collision, these circumstances do not change the fact that the seafarers on board the vessel were entitled to fair treatment.
Nevertheless, the entire crew was detained by the US authorities, and of these, six Chinese nationals including the ship’s Master were held as material witnesses for as long as a year after the incident. For the record, it is worth noting that the operator agreed to pay $10 million in fines and penalties, $2 million of which would be devoted to fund marine environment projects in San Francisco Bay, and that the pilot who was serving on the container ship when it collided with the bridge was sentenced to 10 months in prison, one year of supervised release and 200 hours of community service for his role in the collision, the discharge of oil and deaths of migratory birds. He had previously pleaded guilty to negligently causing the discharge of a harmful quantity of oil and to violation of the Migratory Bird Treaty Act.
Fair treatment is always warranted
It is important to remember that calls for fair treatment, even in cases where the seafarer has committed an illegal act, are not meant to support and approve of any wrongdoing committed by seafarers. As in all other sectors it cannot be ruled out that somebody will commit an illegal act and if this is the case, the liable person should take the responsibility. Shipowners and seafarers are of course themselves responsible for avoiding such unfortunate situations. The issue at stake here is rather that, even in such situations, the seafarer is entitled to fair treatment. This is sometimes misinterpreted as support for the crime committed, which is by no means the case.
A group of cases which could be mentioned in this respect concern so-called “magic pipe” offences, where seafarers for one reason or another have tampered with a vessel’s oily water separator and made false entries accordingly in the log book. Such crimes are considered especially gross inter alia in the US, where the Environmental Protection Agency enforces legislation in this area very stringently.
A case involving the bulk carrier Theotokos operated by a Greek ship management company clearly shows the gravity with which this is looked upon: here, the Master was sentenced to 6 months in prison followed by 4 months in community confinement, as well as a $4,000 fine for obstruction, environmental and ship safety violations in relation to a pollution incident which took place in September 2008. In addition, the Master was banned from entering the US, US ports, or being present upon a vessel that enters into the territorial waters of the US for a period of 3 years.
The company not only had to accept a $2.7 million fine, plus a USD 100,000 community service payment, but its entire fleet was barred from entering US waters for three years. Although the case is obviously an example of a severe consequence, it does not constitute unfair treatment as such, and the best way to proceed is to accept that this is a fact of life and shipowners and seafarers should simply acknowledge and abide by this. It should be noted in this respect that, in the US, the severe punishments for seafarers are most often related to maintaining false record books, making false statements to US officials in relation to port State controls and the like, i.e. provisions which apply more generally in the US penal system.
Spill over effects
It goes without saying that, as also highlighted in the previous article focusing on the general trends in relation to incidents of unfair treatment of seafarers, the implications for individual seafarers cannot be seen in isolation. Thus, the considerable number of high profile cases of unfair treatment is bound also to have consequences for the shipping sector in broader terms, its image, and the ability to recruit and retain a sufficient number of qualified seafarers to the sector. BIMCO considers that the trend which has been observed towards a stricter liability regime will further complicate this situation and is therefore committed to improving the situation for seafarers and the shipping industry as a whole.