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, simply from carrying out their duties.
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. As foreigners, they cannot know and may not 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.
Seafarers sometimes seem to be excluded from the entitlements and human rights accorded to others. Often foreign seafarers are treated differently and less fairly than nationals, and can be discriminated against. 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.
WHAT WE’RE DOING
During 2011 to 2012, SRI conducted a survey of 3480 seafarers of 68 different nationalities to find out how many seafarers had faced criminal charges, and to learn more about seafarers’ experiences if they had faced criminal charges. Seafarers were also specifically asked about their views and suggestions. The findings in the survey raised a number of significant issues and highlighted the frequent lack of due process for those who face criminal charges:
- 8% of seafarers and 24% of masters had faced criminal charges
- 91% of seafarers who had faced criminal charges and who needed interpretation services were not provided interpretation
- 90% did not have legal representation
- 88% did not have their legal rights explained to them
- 80% felt intimidated or threatened.
- 46% said that they would be reluctant to cooperate fully and openly with casualty inquiries and accident investigations
- Overall 81% of seafarers who faced criminal charges did not consider that they had received fair treatment.
- And 85% were concerned about criminalization.
The findings of the survey were presented to the IMO Legal Committee in April 2013 under the auspices of the ITF and the International Federation of Shipmasters Associations (IFSMA). The Legal Committee called on States to continue efforts to promote Guidelines and mandated that the subject should remain on the agenda of the Legal Committee.
In 2013, SRI conducted a further survey of IMO Member States concerning implementation of the Guidelines in national laws. A further paper researched by SRI was presented to the IMO Legal Committee in May 2014 by ITF, IFSMA and the Comite Maritime International (CMI). 26% of States replied to the survey. The replies were in three categories: one group of countries implements the Guidelines by express reference; a second group of countries considers that their existing laws already cover the rights contained in the Guidelines; and a third group of countries requested assistance with implementation of the Guidelines and/or indicated that the Guidelines are still under consideration. The IMO Legal Committee requested analysis of implementing laws and secondly, suggested that States that had requested it should be given technical assistance.
A further paper was presented to the 102nd session of the IMO Legal Committee on 15 April 2015 by ITF, the International Federation of Shipmasters Association (“IFSMA”), Comite Maritime International (“CMI”) and InterManager. The paper contained an analysis of the replies from Member States to the survey circulated by SRI on behalf of ITF and IFSMA concerning the 2006 Guidelines on fair treatment of seafarers in the event of a maritime accident adopted jointly by the IMO and the ILO. The paper received overwhelming support and the Legal Committee concluded that:
- this was an important issue for seafarers and should consequently be placed on the work programme of the Legal Committee;
- the Committee should consider guidance on the implementation of the Guidelines, in particular for developing countries;
- technical support and assistance should be provided by the Technical Cooperation Committee in order to facilitate the wide implementation of the Guidelines to improve the conditions for seafarers, taking into account human rights issues;
- further consideration should be given regarding the need to remove legislation targeting seafarers and imposing criminal sanctions on them;
- it would be useful for States already giving effect to the Guidelines to provide translated copies of their laws to assist other States with their implementation efforts; and some States informed the Committee that they were ready to share their national legislation giving effect to the Guidelines;
- with regard to the compilation of statistics, it was also relevant to receive feedback from ports;
- States were urged to provide their embassies with the names of persons whom seafarers could contact to report violations of the Guidelines;
- seafarers should be given greater training and awareness of their rights.
in 2015, SRI released a short, informative film to raise awareness of the risks of seafarers facing criminal charges as a consequence of their professional activities, and the actions they can take to protect themselves from unfair treatment.WATCH THE FULL FILM HERE
FAIR TREATMENT GUIDELINES
9 February 2006
Resolution A.987(24) adopted on 1 December 2005: Guidelines on fair treatment of seafarers in the event of a maritime accident.
[The IMO Assembly and the ILO Governing Body, inter alia, agreed to the adoption of Guidelines on fair treatment of seafarers in the event of a maritime accident as a matter of priority; authorized the IMO Legal Committee and the ILO Governing Body to promulgate, once finalized, the said Guidelines by appropriate means; and requested the IMO Legal Committee and the ILO Governing Body to keep the problem of unfair treatment of seafarers in the event of a maritime accident under review and to assess periodically the scale of the problem]
27 April 2006
Legal Committee resolution. Adoption of Guidelines on fair treatment of seafarers in the event of a maritime accident.
[Calls on Member Governments to implement those guidelines as from 1 July 2006]
A 27/Res. 1056
30 November 2011
Resolution A.1056(27) Promotion as widely as possible of the application of the 2006 guidelines on fair treatment of seafarers in the event of a maritime accident. Adopted on 30 November 2011
[The resolution was subsequently revised to include, in the annex, Assembly Resolution A.987 (24) on Guidelines on Fair Treatment of Seafarers in the event of a maritime accident (A.1056(27)/Rev.1)]
A 27/Res 1056/Rev.1
30 November 2011
Promotion as widely as possible of the application of the 2006 guidelines on fair treatment of seafarers in the event of a maritime accident. Adopted on 30 November 2011
[This resolution invites Member States to amend their national legislation to give full and complete effect to the Fair Treatment Guidelines and recognises that they should be implemented alongside the IMO Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Accident, adopted by resolution MSC.255 (84), parts I and II of which have been made mandatory by way of amendments to SOLAS chapter XI-1, which entered into force on 1 January 2010, pursuant to resolution MSC.257(84).
The Assembly further requests that Member Governments, as a matter of urgency, to bring this resolution to the attention of any Government officials, in particular those involved in the administration of justice, who may be involved in decisions and procedures affecting the treatment of seafarers involved in maritime accidents, as well as shipowners and seafarers and their respective organizations and inform the IMO Legal Committee of the means by which this request has been implemented.]
ARE YOU A SEAFARER? – WHAT YOU SHOULD DO
As a seafarer, there are a number of things you can do to ensure fair treatment if you find yourself in a situation where you are facing criminal charges:
- Try to contact someone you know – ship owner, union officials, local ITF inspectors, the local consul or embassy in the port/flag state or your home state, or the seafarers’ missions in port, your family members
- Do all you can to educate yourself on your rights using information from employers, this website, and the ITF website.
- Ask ‘what is the basis for the investigation?’
- If you don’t speak the local language, ask for an interpreter
- Ask for your rights
- Get legal representation. This is essential for a fair trial. Seek your own through legal aid if your employer can’t provide a lawyer
- Participate in the investigation and be truthful
- Understand your right to not self-incriminate
ARE YOU A SEAFARER? – YOUR LEGAL RIGHTS
Seafarers are recognized as a special category of worker. Given the international nature of the shipping industry and the different jurisdictions within which seafarers may face criminal prosecution, seafarers need special protection when facing criminal prosecution in order to receive fair trials.
For seafarers some of the most important constituent elements of their right to a fair trial are their rights to have free interpretation and translation services; to have their legal rights explained to them; to have legal representation during pre-trial proceedings as well as trial proceedings; and when cooperating in a no-blame investigation to have their communications with the investigators kept confidential.FULL BREAKDOWN OF LEGAL RIGHTS FOR SEAFARERS FACING CRIMINAL INVESTIGATION
ARE YOU A SEAFARER? WHERE TO GET HELP
The ITF has inspectors in ports in countries all around the world. They are officials who can visit the vessels and assist seafarers in the event they are charged. All inspectors can be found on the ITF website.
HOW TO FIND A LAWYER
When choosing a lawyer, you should look for someone who is experienced in the type of legal problem you have, for example, maritime criminal law, if you are facing criminal charges. There should be no conflict of interest, which means that they can not act for you if they are also representing ship owners or other maritime interests in the dispute, as they may not be able to advise you independently.
Seafarers can find lawyers on our app in our legal database, in directories or international guides on websites such as www.legal500.com or www.chambersandpartners.com , or by recommendation from local trade unions, welfare organisations, the local consulate, and friends or family.
- Decide in which country you need a lawyer
- Find a lawyer experienced in the type of legal problem you have
- Check that the lawyer does not have conflict
- Enquire if there is any free legal advice available to you
- Negotiate an acceptable fee arrangement
- Ask to be kept informed throughout the case
- Remember you can change your lawyer if dissatisfied
You can find out more about how to find, engage and pay a lawyer in our Fact File.SRI FACT FILE – USING LAWYERS SRI APP