TSC Triton no. 1 2012 - The Swedish Club

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THE SWEDISH CLUB TRITON 1-2012P&I | Criminalisation of Seafarers9continuedfrom page 9foreign seafarers, on the other. Article 230 effectively bars coastalstates from imprisoning foreign seafarers for any pollution offencebeyond their territorial waters, or for one within those waters, unlessinvolving a wilful and serious act of pollution. However, therehave been concerns expressed within the international maritimecommunity that these restrictions have not always assisted the defendant.MARPOL 1973/1978 (MARPOL)The principal international regulations to prevent pollution fromships are those set out in MARPOL. Importantly, MARPOLrecognises the importance of the distinction between operational(i.e. intentional) and accidental spills. Accordingly, intentional dischargesare prohibited except where certain stringent conditions aremet and MARPOL provides an exemption from liability in certaincircumstances. In the case of accidental spills this exemption mayavail a master or shipowner where the discharge resulted from damageto the ship or its equipment provided he did not act with intentor recklessness.Industry concern regarding the protection of SeafarersThere has been concern expressed - not only by shipping and seafaringbodies but also by human rights organisations, internationallegal bodies and governments - that the recognised rights of seafarerswere not being respected for domestic political reasons. Recentyears have seen measures introduced, therefore, with a view to addressingthe issues that repeatedly seem to arise.IMO Guidelines on the Fair Treatment of Seafarers in the Eventof the Maritime Accident (the Guidelines)The Guidelines were adopted by the IMO and ILO in 2006 and,whilst not legally binding, they are intended to establish internationalnorms for governments and courts to take into account. Inthe context of pollution cases, the particular vulnerability of seafarersto extended detention has been recognised in the Guidelineswhich provide, inter alia, that a port or coastal state should ‘use allavailable means to preserve evidence to minimize the continuing needfor the physical presence of any seafarer’ and recognise that seafarersrequire special protection, especially in relation to contact withpublicauthorities.The statedobjective of theGuidelines is to ensurethat seafarers are treated fairlyfollowing a maritime accident and during any investigationand detention by public authorities and that detentionis for no longer than necessary. The human rights and other legitimateinterests of seafarers involved should be respected at all times.In November 2011 the IMO Assembly adopted a resolution entitled‘Promotion as widely as possible of the application of the 2006Guidelines on Fair Treatment of Seafarers in the Event of a MaritimeAccident’ (the Resolution). The Resolution calls upon governmentsto give effect to the Guidelines, and invites interested partiesto assist in raising awareness of the Guidelines.The IMO Code of the International Standards and RecommendedPractices for a Safety Investigation into a Marine Casualtyor Marine Incident (the Code)The Code was adopted in 2008 and entered into force in January2010. It is designed to facilitate objective marine safety investigationsfor the benefit of flag States, coastal States, the Organizationand the shipping industry in general. Its stated objective is the provisionof a common approach for States to adopt in the conductof marine safety investigations into marine casualties and marineincidents. The Code recognises and addresses the vulnerability ofseafarers in the aftermath of a casualty and Chapter 12 of the Codeprovides mandatory standards in relation to obtaining evidencefrom seafarers. The Preamble to the Code expressly refers to theIMO Guidelines mentioned above and indeed the Legal Committeeof the IMO has expressly acknowledged that these should beimplemented in tandem with the Code.Key issues for Shipowners/Managers and CrewIf a casualty is not managed properly to protect both crew andcompany, the consequences could be dire and include the risk ofsevere penalties (custodial as well as monetary) for all concernedand a real danger of reputational damage. There can be little doubt3 ScapegoatsThe PrestigeThe Prestige, carrying 77,000tons of fuel oil, is a well-knownexample of a situation where, it hasbeen suggested, the public authorities havebeen keen to deflect blame from themselvesand find a scapegoat. Nearly ten years afterthe ship broke up, Captain Mangouras is stillwaiting for his criminal trial to take place.Cases prior and subsequent to the Prestige,however, have demonstrated that, far from beinga one off, such instances of potential unfairtreatment of seafarers continue to occur.10
THE SWEDISH CLUB TRITON 1-2012that the approach takenby the media affects bothpublic opinion and, potentially,the actions taken by theauthorities. By keeping theseissues in mind it may be possibleto minimise the damaging impact of acasualty. Effective casualty management isessential following a high profile incident andan awareness of the potential for unfair treatment of thecrew should be at the heart of the incident response.Awareness of International Safeguards relating to the FairTreatment of SeafarersFor a shipowner and his crew to have a fighting chance of protectingthe crew in the aftermath of a casualty it will be crucial thatthey, and their advisors, have an awareness of the safeguards availableto seafarers under international law, both mandatory and nonbinding. It is also important to ensure that local authorities andprosecutors are aware of those safeguards, preferably before chargesare brought and the decision to prosecute is taken. They should alsobe aware of the potential for cross-border measures to be takenagainst them in particular circumstances. A shipowner’s representative,for example, should be aware that he could potentially be vulnerableto a European Arrest Warrant being issued in the aftermathof a casualty abroad.Information management – External and InternalMany parties with conflicting interests will pressure owners for theurgent provision of information. It will be crucial to put in placededicated channels of communication to ensure that informationis gathered and analysed as soon as possible so that a consistentapproach can be adopted. Internal communications should alsobe carefully considered and managed, in particular in relation tothe creation of post-incident documents. Particular care should betaken regarding the release of information and documents relatingto causation. Such information should be carefully considered withyour lawyers in the first instance.Media StrategyA common media strategy should be agreed upon with your lawyersand any external communication should be carefully consideredin order to protect the crew and company’s reputation, to mitigatethe risk of litigation or criminal prosecution and to manage publicperception. In applicable cases, reassuring the public as to the existenceof an international regime for the provision of compensationor crew release may assist in assuaging anxiety which will inevitablyexist where significant pollution damage has occurred. Past caseshave demonstrated that managing public perception regarding theavailability of international regimes and possible compensation canassist in reducing the level of claims.ConclusionClearly the ideal situation is to prevent casualties from occurring inthe first place. A momentary lapse of concentration on the bridgecan result in a life changing crisis for both crew and owners. If theworst does occur, however, every decision taken in those first fewhours and days after a casualty will have a long term impact onevery aspect of the case – from the potential criminal liability ofcrew and shipowner’s shore representatives to a shipowner’s reputationand the eventual cost of the incident. In time, a company’sreputation will be measured less by reference to the original causeof the casualty but more in terms of how it was perceived to haveresponded. When it comes to the fair treatment of seafarers, to theextent it is possible, ‘prevention’ is always better than ‘cure.’ Oncean entrenched position against the crew has been taken by localauthorities and prosecutors, it may well be hard for them to ‘backdown’ and crew and owners may well find themselves facing criminalproceedings for years to come.Whilst measures such as the Guidelines and the recent IMO AssemblyResolution on the subject are encouraging, it is clear thatthere is still much to be done and it remains to be seen whether allparties involved can work together to ensure that seafarers are treatedfairly and consistently in the aftermath of a casualty.The Tasman SpiritIn 2003, for example, the treatment of the crew and the salvagemaster in the Tasman Spirit incident prompted widespreadcondemnation. This tanker, laden with Iranian crude oil,grounded at the entrance to Karachi Port, eventually breaking up and leadingto a spill of some 34,000 tonnes of oil. The case is illustrative of a situationwhere focus upon the alleged failings of the crew served to deflectattention from suggestions that local authorities may be at fault. All theGreek crew on duty were detained as well as the salvage master (who onlyattended after the vessel broke up). The ‘Karachi 8’, as the detained groupbecame known, were held for almost nine months and were released onlyafter intense political pressure and continued lobbying by many internationalorganisations as well as the Greek Government and European Union.The Hebei SpiritThe Hebei Spirit collision in 2007resulted in some 11,000 tonnes ofcrude oil leaking into the Yellow Sea andwas the largest oil spill in South Korean history.The detention and treatment of the tanker’smaster and chief officer was the subject of significantprotest and condemnation across themaritime industry and the case highlights thedifficulties foreign seafarers may face in thepolitically charged context of a major oil spill.11
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TSC Triton no. 1 2012 - The Swedish Club

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