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Ship Management : Tuesday 3rd October 13.45 - 14.45 C J Parker - The Nautical Institute |
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CRIMINAL LAW AND THE SEAFARER By Mr. C.J. Parker BSc FNI, Secretary, The Nautical Institute Key elements in an approach to the IMO
Summary Seafarers generally, because of the international nature of their work, are exposed to the most varied legislation of any employees world wide. Shipmasters in particular are exposed to the above but also carry an added burden because they are vicariously liable for the actions of those on board and the consequences of an incident. Seafarers are treated an individuals under the laws of their country of domicile. The shipping company, however, may be registered in a different country and elect to discharge commercial and employment contract disputes in a third country. Most flag states have merchant chipping legislation to implement the provisions of international conventions. National shipping legislation can carry penalties for negligence and violations of regulations for example by overloading. Some flag states have regulations but lack the resources to enforce them. Some port states, such as the UK and USA apply provisions of their Merchant Shipping Acts to vessels which cause a nuisance or are violating rules in territorial waters such as discharging bilge water with a too high concentration of oil. Of increasing concern is the attitude towards drugs and alcohol. Alcohol for example can be accepted in some countries and not in others and often there are varying rules concerning bonds and allowances which are of course linked to safety but can cause incidents in off-duty hours in some countries. On the high seas the law of the Flag State prevails concerning flag state issues, however, to take just one example, when a company goes bankrupt, flag states have no recourse to the law of the owner¹s registered office. When a ship is in territorial waters it is granted innocent passage, however, many coastal states have a range of provisions which give them powers to prosecute masters for infringements and these have included:
When the ship gets into port the situation changes again as the crew are subject to local laws for example when driving a car or shopping when ashore. The ship is also subject to the local harbour bi-laws. The ship is also generally considered an extension of the port states territory and is subject to the provisions of health and safety legislation so that stevedores are able to work under the legal conditions of their country, e.g. failure to provide safe access can be an offence. A particular problem arises when a ship if abandoned by its owners. Port authorities invariably seek to detain a skeleton crew, without the obligation to feed them, so that the vessel is at all times manned without cost to the port. Much of the seafarers employment legislation is covered by ILO Conventions, the reality is that few of these conventions have been ratified so that seafarers lack a defined framework in which to assess their liabilities of their recourse both in civil and commercial (contractual) litigation. In brief, seafarers are seriously exposed to many kinds of criminal and employment legislation for which they are unprepared and can be unprotected. Masters in particular carry the burden of vicarious liability which can attach to the error, omission or carelessness of crew members, the condition of the ship, the quality of the crew, pollution by various causes the cargo worthiness and seaworthiness of the ship and the financial viability of the company which may lead to ship arrest. Notwithstanding the Master also has an employment contract with the owner which may be terminated at short notice or at the end of the contract period. Seafarers charged with criminal offences are technically speaking on their own¹ as it is unlawful to insure against unlawful acts. P & I Clubs through their rules are insuring shipowners¹ liabilities. They generally become involved if a ship is detained or cargo interests are affected, but insurance is not compulsory and seafarers cannot rely on their owners P&I Insurance when a criminal prosecution is pending. A further difficulty facing the seafarer when involved in legal proceedings in a foreign country is the problem of language. Some, but not all maritime countries have consular networks which can be of some assistance but this does not always work when for example a Chinese, Hong Kong vessel with Indian crew owned by Greek interests is involved in an incident. A further problem exists concerning fines for serious offences. Seafarers in foreign countries have limited resources and so there is the tendency to use custodial sentences. Recommendations It is unlikely that there will be a world-wide civil and merchant shipping legislation and seafarers will be exposed to a variety of jurisdictions with differing standards and legal provisions and penalties. Seafarers whilst not immune from the law deserve a measure of protection to ensure that their liberties are not infringed and the due process of law is seen to be fair and equitable. It is therefore recommended by the Command Seminar that the IMO adopts a resolution including the following principles. The IMO through its World maritime University legal faculty in Malta prepares a scale of penalties for infringement of the provisions of international conventions. The IMO invites every maritime coastal state to appoint a properly trained maritime provost whose job it is to investigate alleged criminal offences based upon maritime laws and apply an agreed international standard to investigation, prosecution and penalties. Seafarers involved in an incident which leads to a criminal prosecution in a foreign country shall be entitled to:
No seafarer shall be held in custody i.e. on gaol, until the seafarer has been found guilty through an approved court procedure. A seafarer accused of a criminal offence shall normally be confined on board. If the ship is released the individual shall be detained in accommodation similar to that found on board and preferably in a maritime centre such as the Missions to Seamen. Any changes for detention shall be borne by the Coastal State with recourse to the Flag State for compensation. A seafarer shall be entitled to a formal hearing within two weeks of an alleged incident. Should a seafarer be given a prison sentence in excess of three months the seafarer shall be entitled to serve the sentence in the country of their residence. Every seafarer shall be entitled to legal representation. All contract of employment shall entitle seafarers to receive legal representation during the course of their duties anywhere in the world up to a limit of £500,000. The IMO shall be asked to incorporate equitable provisions relating t international maritime conventions by reconvening The International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction in matters of Collision 1952, (ANNEX 1) and The International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or other Incidents 1952 (ANNEX II) Note: Under these provisions there is a process whereby coastal states can seek compensation from Flag States and the seafarer can elect to be tried in the Flag State. These provisions were helpful in 1952 but international law and the globalisation of shipping mean that they are now out of date and need to reflect modern employment practices not only with respect to collision, but pollution and other provisions not enacted in 1952. CJP/JEM 03.04.2000 |