The CMI Working Group on Fair treatment for Seafarers takes note that the Legal Committee of the IMO, at its 93 Session in Panama,

  • considered issues related to the implementation of the Guidelines on Fair Treatment of Seafarers adopted in 2006,
  • agreed that it would be appropriate to gain experience with the current Guidelines before considering any revisions.
  • It was suggested by the Committee that the Guidelines be widely disseminated and their application encouraged.
  • In this regard, the Committee agreed that the Joint IMO/ILO Working Group should be reconvened to monitor the implementation of the Guidelines on the basis of the terms of reference approved by the ILOGoverning Body, including the addition concerning the collection of information.
  • The CMI Working Group on Fair Treatment for Seafarers request the Committee to take note of information concerning four recent cases mentioned in the attached Submission.

SUBMISSION OF CMI Working Group on Fair Treatment for Seafarers to Legal Committee of the IMO - 18 September 2008

It had been hoped and anticipated that the IMO/ILO Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident’, which entered into force in July 2006, would significantly alleviate some of the problems encountered by seafarers in the aftermath of maritime accidents. The Guidelines had been brought about by demands from states due to notorious cases of unfair treatment of seafarers such as those arising from maritime accidents involving the Nissos Amorgas, Erika, Tasman Spirit, Virgo, and Prestige. Regrettably it appears that despite the entry into force of the Guidelines unfair treatment of seafarers by states is continuing. This can be best illustrated by four recent cases.

1. Zim Mexico III: Mobile, United States

The master of the container vessel Zim Mexico III was charged with manslaughter, held in jail pending trial for several months, and then convicted in the USport of Mobile in 2007. The master spent four months in prison, whilst awaiting trial as he was considered a “flight risk”. Although he had actually faced imprisonment for up to 15 years, the master was subsequently sentenced to time already served and then deported. Submissions on behalf of the master made to the court by many maritime organizations may have contributed to the “lenient” sentence.

The charge and subsequent conviction resulted from the vessel striking a container crane whilst maneuvering under the direction of a compulsory pilot. Regrettably, the accident resulted in the death of a technician who was working on the crane without permission. Nevertheless, the master was charged under an archaic US federal “Seaman’s Manslaughter Statute” dating back to 1838 that required a higher standard of care from seafarers than from others. There was been widespread and unanimous condemnation from the marine industry of the case, the way it has been handled and, of course, the unfairness of the ‘double-standard’ law. There is no question that under most other national justice systems the likelihood of criminal charges against the master would be minimal. Efforts are now underway to persuade the US Government to repeal this unfair legislation.

It appears that even full US compliance with the Guidelines might not have assisted the Zim Mexico III master in this case. The fact is that regardless of whether the US seaman’s manslaughter legislation is unfair, or even discriminatory, it is, nevertheless, a valid national law. On the other hand, it can be argued that prosecuting a master for an accident that arose from a mechanical failure whilst the vessel was under an experienced pilot’s direction, as well as denying him bail and detaining him in a very unpleasant jail for several months, is treatment that cannot be classified as ‘fair’.

2. Coral Sea. Aegion/Patras, Greece

The case of the reefer vessel Coral Sea in the Greek port of Aegion arose in July 2007, when during a routine inspection whilst discharging boxes of Ecuadorian bananas, one of the boxes was found to contain 51.6 kg of cocaine. The 58-year old Croatian master, the Lithuanian chief officer, and the Filipino bosun were arrested and subsequently held in the Korydallas high security prison in Athens. Bail applications failed. Reports indicate that there was no evidence that these seafarers had anything to do with the smuggled drugs, except that they held positions on board and late last year the lawyers representing the master, were confident that all crew members would be found innocent. This confidence was misplaced. The case finally came before the court in Patras recently and resulted in the master being sentenced to 14 years in jail in a contentious verdict on drug smuggling. The other two crew members were finally released. During the trial, testimonials on the master’s good character were submitted, and even the Aegion harbour master, a witness for the prosecution, stated that he did not believe that the three seafarers could have hidden the drugs on the ship. From reports received the verdict appears to be difficult to reconcile with the evidence presented. Appeals have been made to the President of Croatia to intervene and a number of maritime organizations have already expressed their deep concerns. According to legal sources in Greece it appears that Greek authorities routinely arrest and hold crew members of vessels that are found to have drugs on board, regardless of whether there is any evidence that such seafarers have had any involvement in the drugs.

Apart from the general lack of fairness in this type of case, it also seems that the new Guidelines may not cover this type of incident. The Guidelines in their title are applicable to “the fair treatment of seafarers in the event of a maritime accident.” However, ‘accident’ is defined as:

“…any unforeseen occurrence or physical event connected to the navigation, operations, manoeuvring or handling of ships, or the machinery, equipment, material, or cargo on board… which may result in the detention of seafarers.”

It could be argued that the illegal stowage of drugs on board may be an unforeseen event connected with the vessel’s cargo operations. However, it is doubtful whether it could really be classed as an ‘accident’ within the true meaning of that word. If this is so, then the Guidelines’ language may be too narrow and would not assist seafarers involved in criminal cases that are not classed as accidental. This would also mean that seafarers will continue to be treated unfairly in criminal cases, regardless whether there is any evidence of their involvement. It also shows that there will continue to be a ‘double standard’ where seafarers’ rights appear to have far less protection than anyone else involved in a criminal matter. It is doubtful whether police anywhere would arrest and hold a hotel manager and hotel staff if drugs were found on the premises!

3. Cosco Busan. San Francisco, USA

The container vessel Cosco Busan struck the OaklandBayBridge in San Francisco harbour in poor visibility under the direction of a pilot in late 2007. There was significant damage to ship and the bridge, as well as serious oil pollution. Initially all crew members of the vessel were held by US authorities. Most were eventually released but the six remaining crew members, all Chinese nationals, have now been held as ‘material witnesses’ for the past 8 months. They are not in jail but not permitted to leave the country. The pilot is facing serious ‘felony’ charges but his trial is not expected to start until at least October. At a recent hearing a judge has ordered that the 6 crew members should continue to be held in US custody. One wonders what type of ‘diplomatic incident’ would occur if a foreign state held US seafarers for 12 months?

4. Hebei Spirit. Daesan, Republic of Korea

Another case involving unfair treatment of seafarers that has already aroused vigorous protest from various sectors of the shipping industry recently relates to the VLCC Hebei Spirit. This vessel was anchored off the port of Daesan, South Korea in a designated anchorage, displaying all proper signals, when it was struck by passing crane barge in December 2007. This resulted in significant oil pollution from a cargo spill. The two South Korean tug masters in charge of the crane barge have been jailed for their part in the incident. The Hebei Spirit’s master and chief officer, both Indian nationals, were immediately detained and oppressively interviewed (including demands to sign statements in Korean) by Korean authorities. They were not jailed but not permitted to leave the country. However, they were acquitted in June 2008 by the Daemon region District Court, which found them innocent of all charges of violating national pollution law. Nevertheless, the prosecutors have now appealed this decision and have required that the two seafarers must remain in South Korea. Depending on the outcome of the appeal, it is also possible that the prosecutors may appeal further to the South Korea Supreme Court. This would result in a further trial that is unlikely to take place until mid-2009.

These cases may well only be an indication of a wider problem. There are likely to be other cases of unfair treatment by states that are never reported nor publicized. It also appears to indicate that the Fair Treatment Guidelines are either not being implemented or simply ignored by some states. The four cases cited occurred under the jurisdiction of major maritime states with well-established maritime administrations and legal systems. Yet very clear abuses of the basic rights of the seafarers involved appears to have occurred despite the fact that the Fair Treatment Guidelines and the SOLAS amendments are designed to prevent this. In particular, it can be seen that one of the fundamental principles of the Fair Treatment Guidelines, as well as the ‘United Nations Convention on the Law of the Sea’ (UNCLOS), which codify that seafarers should not be unreasonably detained where bail or security is offered, is routinely disregarded. In some cases this breach of the Guidelines can continue for many months and even years, causes great hardship and suffering to seafarers who subsequently find themselves trapped in a foreign country, often in prison, without the support of their family.

Apart from the issue of ever-increasing ‘criminalization’ raised by these detentions of seafarers for negligent acts and the detrimental effect this is having on the crisis of recruitment to the profession, it is unlikely that States would impose such treatment on civilians ashore for similar accidents or incidents. This raises a clear element of discrimination against seafarers that is simply unacceptable.

The CMI WG respectfully submits this information as a contribution to the experience aspect, mentioned in the preamble, of the operation of the Guidelines introduced in 2006.

David Hebden

Chairman

CMI Working Group on

Fair Treatment for Seafarers

Endorsement by WG members

David Hebden, Chairman

Professor Edgar Gold QC

Nathalie Wiseman

Kim Jefferies

Kiran Khosla

Michael Chalos (no comments on case No. 3, above, due to involvement)

Prof. P K Mukherjee

Ex Officio WG Members

Jean Serge Rohart: President CMI
Patrick Griggs

Colin de la Rue