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Friday, 05/03/2010, GMT+7

Unfair treatment of seafarers – still a major cause for concern

Incidents involving unfair treatment of seafarers continue to happen worldwide, and BIMCO is maintaining its focus on this area to try and improve the situation both for seafarers and the shipping industry in general. A series of three consecutive articles mark the International Maritime Organization’s “Year of the Seafarer” by focusing on general trends, implications for seafarers, and the international legislative perspective and future outlook

The year 2010 has been designated as the “Year of the Seafarer” by the International Maritime Organization (IMO) to give the organisation and the international maritime community at large the opportunity to pay tribute to the world’s seafarers for their unique contribution to society and in recognition of the risks they shoulder in the execution of their duties in an often hostile environment. BIMCO attributes much importance to the human element of shipping and considers that IMO’s decision will further support global measures aimed at safeguarding seafarers and recognize their work. The fact, however, that a number of maritime incidents in recent years continue to show examples of unfair treatment of seafarers - and perhaps even more significantly that these incidents appear to demonstrate a drifting towards a stricter liability regime - underlines the importance of maintaining this issue high on the agenda.

Beyond the Hebei Spirit
Most people involved in shipping will remember the Hebei Spirit incident in South Korea in December 2007. The legal aftermath of this incident only ended in June last year, when the Master and chief officer of the vessel were finally released from custody - nearly 18 months after it all started with a barge ramming the vessel and causing South Korea’s largest oil spill ever. Leaving aside the obvious disastrous consequences of the oil spill itself, the case was a severe example of how badly things can turn out and how unfairly seafarers can be treated - even when it is clear that they have done everything in their power and which could reasonably be expected under the circumstances to avoid and minimise the damage of the incident. Nevertheless, the seafarers had to stay in prison for months, face charges and fines, and even had their reputation tarnished by the guilty verdict of criminal negligence and endure difficulties in obtaining employment and visas in order to enter foreign countries.

Unfortunately, the likelihood of this being a one-off case seems remote, as several cases prior to and after the Hebei Spirit demonstrate similar unfortunate characteristics. In the Tosa case, three members of the crew have been held in Taiwan, China, since April 2009 after being arrested on suspicion of failing to come to the aid of a fishing vessel that capsized after an alleged close-quarters incident with the Tosa - a VLCC - resulting in the death of two crew members on the fishing vessel. Only after holding them for close to three months without charge did prosecutors move to indict the Master, second officer and another crew member in July. The second officer was charged with desertion in the light of alleged evidence that he failed to stop the vessel and assist crew on the fishing vessel and the Master on the lesser charge of involuntary manslaughter. Although the Master was sleeping at the time of the incident, he was accused of failure in his duty of care because he did not provide adequate instructions to the crew when navigating an area of sea known to be the favoured site of many fishing vessels. At the time of writing, almost 10 months after the incident, the case is no longer receiving much media attention. Yet the Master and two crew members continue to stay in a guest house with their movement restricted to within the city of Hua Lien, pending a hearing scheduled for February 2010. The case appears to display several elements of unfair treatment, and BIMCO is concerned that it has not yet been resolved.

A continuous effort
Cases such as those referred to above and the professional, as well as personal, implications for the seafarers involved are the main reason for BIMCO’s commitment to defending the right of vessels’ crews to fair treatment - regardless of the question of fault, as all seafarers have a basic entitlement to be treated fairly and objectively. A study carried out by BIMCO in 2009 clearly shows that there are a number of cases where seafarers have been subject to unfair treatment in one way or another, e.g. when seafarers are held in custody without being officially charged or when they are denied access to legal counsel. The study focuses on cases where seafarers have been subject to sanctions before or after any deliberate act or negligence has been admitted in court and there are numerous examples of both, the first category obviously posing the largest problems of principle for the protection of seafarers’ rights.

The BIMCO study on fair treatment confirms that the boundaries of negligence and responsibility appear to be drifting towards a stricter liability regime. This is worrying, as it is likely to have huge potential impact on the individual seafarers as well as the shipping sector and its ability to attract qualified personnel. The fact that certain countries have shifted the burden of proof from the prosecution to the defence in their domestic environmental legislation, such as the Canadian Bill C-15 from 2004 on environmental protection, further aggravates the situation and constitutes a more principal concern relating to the fairness of legal systems containing such rules. BIMCO considers that the normally applied procedure according to which a person charged with an offence is presumed innocent until proven guilty, should naturally also apply in shipping.

BIMCO will update its study on fair treatment of seafarers in 2010 and present the results to the IMO’s Legal Committee with a view to putting focus on the continued problematic nature of the issue, in particular the apparent drifting towards a stricter liability regime, and call for support in improving conditions for seafarers in line also with the IMO’s overall agenda for 2010. In addition, this year’s envisaged update of the Manpower Study to be conducted in co-operation with the International Shipping Federation should assist in these endeavours.

In addition to the much debated Hebei Spirit case, another unfortunate example of a case appearing to push the boundaries of negligence and responsibility is the Puffin Arrow. In this case, which took place in Venezuela in April 2009, a diver lost his life while surveying the vessel’s propellers and polishing them whilst the vessel was undertaking cargo operations at Puerto Cabello. Although it was obvious that there was no fault or negligence involved on the part of the vessel or its crew, the vessel was prohibited from leaving the port for a number of weeks whilst the local prosecutor investigated the case and took statements from the entire crew. The Master was detained pending an official investigation into the cause of the accident and at a court hearing the following month, the ship’s officers attended but were not allowed to bring a company representative or legal counsel. The vessel was allowed to depart on 29 May 2009 after 33 day’s detention. While it is understandable that investigations into the death of the diver had to take place immediately after the incident, there seems to be no good reason for blocking the vessel and crew for weeks, and it is difficult to see how the crew could be made responsible in any way for this tragic accident

BIMCO Weekly Updates - Mar 01, 2010

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