It is an inherent risk in the working lives of seafarers that they may be subjected to criminal charges either of a professional or a non-professional nature. Seafaring is transnational by nature. As seafarers transit from port to port, they are subject to the entire range of criminal laws of those port states. They cannot know and they are unlikely to have been warned about local criminal laws, and hence they are at risk of committing an offence without any awareness or intention to do so. Further, in recent years, several legal developments at international, regional and national levels have criminalised a number of previously considered lawful seafaring activities and created a blame culture, particularly in relation to environmental incidents such as oil pollution.
In an era where ‘human rights’ are considered sacrosanct and ‘fairness’ a right in itself, seafarers sometimes seem to be excluded from the entitlements accorded to others. They may be foreign nationals, and after an incident there is often a reluctance to release seafarer defendants or witnesses who are deemed to be a ‘flight risk’, and who might not appear at a subsequent trial. They are, therefore, treated differently and less fairly than nationals, and are often discriminated against. They might have the continued support of their employers, but if they are less fortunate once the ship itself is released, they may find themselves friendless in a strange land, facing charges that are incomprehensible to them under a wholly alien system of justice, and with defence counsel unfamiliar with the technical nuances of a maritime scene. Language, and the lack of adequate translation facilities, might well be a serious handicap.
The fear of criminalisation
In any survey conducted to determine the attitudes of seafarers, in order to establish and rank their concerns about contemporary issues, the risk of facing criminal proceedings because of their particular employment will be found high on the list of their worries.
See Nautilus International survey as reported in October 2010 Nautilus Telegraph Vol.43 (355kb)
There have been some notorious cases in recent years which have been given wide publicity for the clear injustices they have represented. These cases have served to encourage a climate in which there is a very real fear of criminalisation among seafarers all over the world. Crews are also concerned about the practice of holding seafarers for months on end to serve as witnesses in a subsequent trial, hence they are forced to remain away from home without remission. (View high profile cases)
Whatever the age, nationality, rank or seniority of the seafarers, the fear of criminalisation, which probably would not have featured in a similar survey undertaken 20 years ago, is both real and sincere. And while it can be statistically argued that the chances of such a fate befalling any seafarer remains very low indeed, perception is a powerful driver.
The consequences are already apparent, in that otherwise ambitious and well-qualified officers are declining promotion to senior ranks, believing that this would leave them more exposed to the risks of prosecution and a subsequent criminal conviction. There are documented cases of senior officers electing to terminate their careers because of a brush with the law, or deciding to seek alternative employment that would leave them less vulnerable to criminal prosecution.
Right across the shipping industry, there is a strong belief that somehow the tide which increasingly threatens seafarers with criminal sanctions and discriminates against them must be turned. Seafarers’ organisations, their employers, regulators and non-governmental bodies – in addition to seafarers themselves – are agreed that this important body of essential workers needs protection from unfairness and injustice and, moreover, to reassure seafarers that they will be treated properly should they become involved in an incident or accident, particularly under a foreign jurisdiction. It has been suggested on more than one occasion that the continued detention of crew members in the past, whether criminal charges have been laid against them or not, has been used as a bargaining chip in a subsequent case over liability and compensation.
In May 2004, the Legal Committee of the IMO endorsed the proposal to establish a joint IMO/ILO Working Group on Fair Treatment of Seafarers. In 2006, the IMO and the ILO promulgated the “Guidelines on the Fair Treatment of Seafarers in the event of a Maritime Accident”. The objective of the Guidelines is “to ensure that seafarers are treated fairly following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary.” The Guidelines, which now must be read in the light of the Casualty Investigation Code, “do not seek to interfere with any State’s domestic, criminal or civil law processes ….” They are limited to the investigation of “maritime accidents”, although there is a general invitation “to take note of the principles contained in these Guidelines when considering the fair treatment of seafarers in other circumstances where innocent seafarers might be detained.”
But the criminalisation cases that have seized the attention of the global industry have encouraged the strong belief that something more than codes or recommendations must be produced to protect seafarers from the injustices which they can suffer when they are involved in incidents and accidents. The situation it is suggested will impact upon both recruitment and retention at a time when both are important for the industry’s future.
Seafarers’ Rights International (SRI) Project
SRI has made Seafarers’ Rights and the Criminal Law a priority subject. Earlier this year it presented the results of its Seafarers and the Criminal Law Survey at the landmark 100th session of the Legal Committee of the International Maritime Organization (IMO) which met in London on 15 – 19 April, 2013.
The survey analyses international maritime legal instruments, competing criminal jurisdictions and human rights protection for seafarers in order to obtain a full picture of how seafarers are exposed to criminal charges. It also features seafarers’ suggestions on how to improve their situation when facing criminal charges.
In winter 2013/14 SRI conducted a survey of IMO member states requesting information on how the states had passed the Guidelines into their laws, or otherwise given effect to the Guidelines.
The Legal Committee of the IMO at its 101st session called on further states to answer the SRI survey, and for the responses to be analysed, and for the analysis to be reported back to the next session of the Legal Committee in 2015.
IMO Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident (26 June 2006) (168 kB)