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Critical Analysis On Criminalization Of Seafarers

Each day passing, we see the world is executing globalisation in the most significant manner.

This process involves different countries, previously isolated through physical and technological distance, getting more interconnected. There are many ways in which countries can be seen getting interconnected like sharing of ideas, cultures, goods and service and investment. However, the most prominent motive seen behind the idea of globalisation is making ourselves economically good. The maritime or river transport provided at least 90 per cent world trade passes.[1]

This motive is achieved when countries ensures, there goods or manufactured goods reaches other countries. However it impossible to do the same without the existence of maritime world. Sea transport is the most convenient form of achieving the concept of globalisation since many years. It is here the seafarers play a vital role. Seafarers are those, who are employed by a shipowner to do ship service at sea. It can involve many task like taking care of operations and maintenance as well as the provisioning of those on board. Moreover, It can be persons who perform repair maintenance work on ships as well as cleaning and catering personnel.

However, people on ships with a land based employment are not considered [2]

Thus, looking at the importance of the seafarers, ILO has adopted around 70 instruments at special maritime sessions of the international Labour Conference. These instruments also included 41 conventions and the related recommendations. The ILO's international standards for this sector establishes minimum requirements for work on a ship.

Such as minimum age, medical fitness and training., hours of work, conditions for employment., wages, leave, accommodations, recreational facilities, food and catering, occupational safety and health protection, welfare and social security protection. Issues like pensions and internationally recognized document for seafarers to assist in border control. [3]
Sadly, despite of so many provisions mentioned for the seafarers, history shows exploitation of such seafarers done especially

Criminalization of the seafarers
In past many years it has been seen that crew, master, or any maritime professional faces criminal charges due to an unfortunate accident. This accident may involve vessel, which caused damage to the port or territorial waters of a country, environment or damage to person or property.

This is call the criminalization of the seafarers. Most of the time when a charge is brought against the captain of the ship which caused the damage, there is a wrong belief that it had an intention on the part of him to commit the offence. Mostly such criminal charges are brought against the seafarers with a wrong belief that it had a malefice intention to commit the offence.

 However, it is obvious to know that unpredicted incidents may not always need malefice intention behind their commission. Generally, due to lack of knowledge on the part of the authorities, the seafarers being nearest to the site of the accident are prosecuted by the local laws of the country, where such incident took place, even though they may be sailing on a different nationality flag or themselves being from some other country.

Even when there is operational failure on the vessel, still the burden of proof is brought upon the seafarers that they did not commit any act with the intention of doing a criminal act. This involves a very long process which turns out to be very tedious and ill effecting the mental and physical health of the seafarers. Seafarers being the most vulnerable resource of the industry, criminalization of seafarers is a great concern to the marine transportation community.

They've been described as a special category of a worker needing special protection, especially in relation to contacts with public authorities. Such indiscrete incident and acts of local authorities have created fear and doubt in the mind of the seafarers on their willingness to work onboard ships.

Some surveys indicates that: [4]
  • that nearly 24% of Masters have faced criminal charges.
  • With 50,000 ships trading internationally, and about 65,000 Masters, that is 15,600 Masters.
  • In addition, the survey states that 8% of seafarers have faced criminal charges.
  • Estimations indicate that there are about 1,187,000 serving seafarers, so at 8%, that is 94,960 serving seafarers that have faced criminal charges, or put another way, two crewmembers for every vessel at sea!

Looking at various incidents, we come across some areas where these sorts of legal actions against seafarers can be possible: [5]

  1. The Pollution matters are amongst the main reasons for which a mariner might be sued against. The US ports are the top of the list but other countries are not easy about it at all. It has been denoted in some papers that at times, a pollution case is treated with more severity than a case involving loss of life in the fortification of laws related in the EU region.
  2. The other may be major collision cases and incidents where a loss of life has happened.
  3. There are cases that the mariners might have offended some other crime related or non-related to their status as a seafarer. However, we may only consider the profession related concerns.

A survey conducted by Nautilus international indicated that the different criminal charges or investigations, seafarers find themselves at risk of.
The survey also showed the following factors: [6]

  • Pollution,
  • scapegoating for a third party,
  • Incorrect Paperwork,
  • Leaving the vessel in poor condition,
  • injuring a person on board,
  • Infringement of local laws,
  • causing an incident relating to drug or alcohol,
  • injuring a person on the shore side,
  • cargo loss etc.

Seafarers are placed in detention without recourse to fair justice. Representing themselves in a foreign country where they lack access to any sort of legal help, unknown to the the language of the country, cannot participate in the investigation, and they don't follow up with the enquiry conducted thereof due to the cultural and language barrier.

The Prestige Case, Tasman Spirit in Pakistan, Costa Concordia case, the Sewol tragedy Ocean Centurion case etc are some of the well-known cases in which the seafarers faced Criminalization. The incidents based on pollution of sea or death of any person of country due to the vessel are more in limelight but sadly the harassment of seafarers from the local authorities on the basis of port regulations are often settled amicably.

MC Prestige case [7]
It is one of the renowned case of criminalization of seafarer. The incident criminalized the seafarer due to oil pollution from the vessel. On November, 13, 2002, the MV Presitge was sailing from Ventspils, Latvia to Gibraltar, carrying 77,000 metric tons of two different grades of heavy fuel oil. Suddenly the weather in the sea started changing and started getting unsuitable for the ship. It started to take over the ship with high waves of water and eventually a 50 foot hole occurred in the ship. The ship had to be evacuated. In some time itself, the ship was found drifted within four miles of the Spanish coast. There was high leakage of the oil from the vessel.

In this case , the French, Spanish and Portuguese governments did not allow the vessel to dock to avoid the pollution on their coastlines. This result to vessel split in Portuguese waters. Over 20 million US gallons of oil were split in total. It was one of the worst ecological disaster until today. It caused high damage not only to the wildlife and environment but also to the local fishing industry.

Futher, the court found the captain, insurer and the owner of the tanker liable for the broke off. The Captain Apostolos Mangouras was sentenced to 2 years of imprisonment by the Spain court founding him to be reckless in his duty and failing to preserve the environment.

MT Hebei Spirit oil spill
The MT Hebei Spirit oil spill [8] was another case of major oil spill. It occurred in South Korea. It was South Korea's worst case since 1995. On December, 2, 2007, a crane barge being towed by a tug collided with the anchored crude carrier Hebie Spirit, which carrie 260000 tonnes of crude oil. The collision resulted in three of the five tanks bursting and consequently 10800 tonnes of oil leaked in the water.

However they were treated not upto the mark and both of them had to face high difficulties. South Korean officials handcuffed them immediately and gave them the prisoner's uniform. The rule of law states that until proven, one is innocent and cannot be held guilty. But in this case we can see that it did not take much time for south Korean government to tie handcuffs in Jasprit Chawla and Syam Chetan's hands.

They were immediately given prisoner's uniform and were treated in very ill manner. It took a lot of struggle and time for the families of the accused to fight for their justice. Recently both the accused were released after 18 months of jail for Master Jasprit Chawla and 8 months of jail for Chief Office Syam ChetanThe Ministry of External Affairs, in a release, said: The Government of India welcomes the verdict, which once again vindicates the position of the two Indian seafarers that there was no criminal negligence on their part in the accident involving their ship.

south Korea's detention of the crew has generated much controversy and protests from around the world. There have been strong protests from the shipping world and demands for the crews release, including from organizations like the

Organizations like International Transport Workers' Federation, International Group of P&I Clubs, BIMCO, International Chamber of Shipping / International Shipping Federation, International Association of Dry Cargo Shipowners (INTERCARGO), International Association of Independent Tanker Owners (INTERTANKO) and the Hong Kong Shipowners' Association had a strong protest against the decision of South Korea for detaining both of them and alleging them for criminal negligence on their part.

However in one of the interview both the accused were found mentioning that they took utmost precautions from their part to avoid the incident like releasing some chains from the anchor to avoid the collision. However things were not in their hands as it was clear natural distaster which occurred in sea.

Cyprus Case[9]
This is another case of seafers being treated unfairly as criminals in marine world. Captain Andrzej Lasota, Master of the Cyprus-registered multipurpose dry cargo vessel UBC Savannah was imprisoned in Mexico after his crew found packets of cocaine. First the entire crew was arrested for several weeks. However, the Captain was found incarcerated in Mexico without any due course or triral.

The captain was alleged for negligence in failing to be aware that the ship he commanded contained prohibited subtsances. The substances which were illegally delivered to Mexico, placing the lives and health of the citiznes of Mexico in danger.

In excess of 240 kgs of cocaine, buried under several thousand tons of coal, was discovered when the ship's Duty Officer, having noticed suspicious packages in the hold during unloading, informed the First Officer who subsequently notified the ship's Master.

However , when the local police and port security officers had made extensive searches in the vessel at the loading port, there was no as such drug located. Moreover with the lack of evidence of any involvement by any crew member in the deployment of the drug consignment, still all the crew members were immediately arrested and prisoned.

Inter Manager Secretary General, Captain Kuba Szymanski[10], said: The Captain and his crew were innocent seamen, going about their daily duties, and have been treated as common criminals without trial. Seafarers should not be unfairly criminalised in this way. Our thoughts are with Captain Lasota, his family, colleagues and supporters, and we urge everyone to sign this petition.[11]

There was a survey conducted by the Nautilus Federation from across the globe. They covered countries like Australia, Denmark, Singapore, the UK and the Netherlands, amongst others. Many questions contained an additional open option to allow respondents to expand on their answers; quotes included in this report are reported as exact comments, save for any spelling mistakes.

The survey reveals the following data:

  • seafarers fear being criminalised due to pollution (85%),
  • as a scapegoat for a third party (51%) and
  • for incorrect paperwork (46%). Many open questions showed hear-say and media reporting can play a big part in increasing these concerns.

When asked if there was a specific reason for a fear of criminalisation, answers included ‘Hearing about officers who aren't directly responsible for an incident being prosecuted', ‘Because of what I read in maritime articles,' and ‘Media hypes things up too much.'

What do you think are the most likely causes of maritime professionals being criminalised?

Pollution 85%
Scapegoating for a third party 51%
Incorrect paperwork 46%
Leaving the vessel and equipment in poor condition 44%
Injuring or killing a person on board 43%
Infringement of local law 43%
Incident relating to alcohol or drugs 29%
Injuring or killing a person shoreside 23%
Cargo damage and loss 16%

Explanation of the table
As mentioned earlier , Pollution was the biggest issue respondents thought they could be prosecuted for. It was felt that this was partly due to the media attention spills receive, and the resulting desire for authorities to be seen to hold someone accountable in order to promote their own political agenda.

Apart from pollution matters respondents' concerns around incidents likely to lead to criminalisation include infringement of local law (43%), incidents relating to alcohol and drugs (29%) and cargo damage and loss (16%), which highlight how alert seafarers need to be around every element of their role at sea.

Only seafarers in minority do not worry about the criminalisation of maritime professionals only if you follow the laws and procedures.

It can be identified from the surveys conducted that there is need to alert the seafarers through information on the potential legal issues which may arise or when they are directly or indirectly involved in an accident at sea or any unfamiliar country.

Most of the respondents to the surveys mentioned that they would approach their union for information rather than reying on other sources but to what extend the unions are known to such viable information is fairly not justiable. Very few seafarers would prepare themselves with legal information on the requirements for the countries they are visiting.

As per the surveys and data collected, it is seen that there is high requirement of laws for safety and security of the seafarers. Therefore, to protect the rights of the seafarers against unjust criminalization upon a maritime accident the IMO (International Maritime Organization) came up with a bunch of guidelines in 2006[12] for fair treatment of seafarers.

These guidelines were for the:

  • Flag state
  • The port state
  • Seafarer state
  • Ship owner and
  • Seafarer

To mention a few of the guidelines for seafarer protection against criminalisation are:

  • assuring seafarer fair investigation upon a maritime accident that occurs within their jurisdiction
  • Cooperating and communicating with all substantially interested States, ship owners, and seafarers
  • Taking steps to provide seafarers' representative organizations in the port or coastal state with access to seafarers
  • preserving the human rights of seafarers at all times
  • taking steps to ensure/verify that adequate provisions are in place to provide for the subsistence of each detained seafarer including, as appropriate, wages, suitable accommodation, food and medical care; provided interpretation services
  • Seafarer are advised of their right to independent legal advice
  • Seafarer are provided access to independent legal advice
  • Seafarer are advised of their right not to incriminate themselves and their right to remain silent, and, in the case of seafarers who have been taken into custody, ensure that independent legal advice is provided; ensure that all seafarers detained
  • Seafarer is provided with the means to communicate privately with all of the following parties: – family members; – welfare organizations; – the shipowner; – trade unions; – the Embassy or Consulate of the flag State and of their country of residence or nationality; and – legal representatives; etc.

While discussing about the guidelines we cannot forget the role of The IMO 2006 guidelines. These guidelines for the seafarers talks about what steps shall be taken upon getting arrested; taking steps to ensure, if necessary, that they have appropriate interpretation services; taking steps to ensure that they fully understand their right, not to self-incriminate and that they fully understand that when statements are made to port, coastal or flag State investigators; taking steps to ensure, that they have arrangements for access to legal advice before deciding whether to give statements to port, coastal or flag State investigators; participating in an investigation, to the extent possible, having regard to their right not to self-incriminate, with port, coastal or Flag State investigators, by providing truthful information to the best of their knowledge and belief.

However unfortunately even after the IMO and ITF guidelines on the seafarer's fair treatment most of the countries refrain from following them. This is one of the main reason why the seafarers today are still deprived of the basic rights which they deserve upon a maritime accident.

The reality shows, when a seafarer is arrested , the port state does not cooperate and communicate. They are not interested in the well-being of the accused seafarer , neither they are provided proper care for his or her wages, food, accommodation and the medical treatment. Not only that, they are often not allowed to communicate with their family, welfare organization, trade union or embassy, although this is their basic right.

Moreover, it is also the responsibility of the seafarer state to fund the repatriation of their national seafarers following the aftermath of a maritime accident in instances where ship owners and the flag State fail to fulfil their responsibilities to repatriate. Due to non-awareness of the basic rights of the seafarers, there is a lot of chaos when a seafarer is criminalized. Thus, it is of utmost importance for the seafarer to be aware of all the rights given to him/her by the IMO 2006 guidelines and this should be part of the curriculum for their competency exams.

Further, the Master of the ship should be Trained for Media Handling, as an additional qualification, until such time a person designated to do so takes over because media plays huge role when any such unfortunate incident takes place. This would ensure that in the initial moments of the accidents he does share details of any documents which might be used against the seafarer in the court during the proceedings takes place.

There is high requirement of transparency between the Master and the Complainant. As per the history in criminalization of the seafarers, it is seen that instead of blaming the accused, there is high requirement of due diligence while ascertaining the root cause of the incident. This will also ensure that fair verdict is passed in the media. Not only it is a concern towards fair treatment of the accused seafarers, but also criminalization involved high cost to fight the case at international level. It can be well over US$250,000 in legal fees.

There is a need for professional indemnity insurance for the seafarers for protection like doctors, lawyers and others have. There also arises a need for an association or a union that can provide such cover.

We shall not say that the past has not provided us with support of organizations in respect of the seafarers. A very prominent example to the same can be International Seafarers Welfare and Assistance Network (ISWAN) has a telephone helpline which manned 24/7/365 and has interpreters so it can assist non-English speakers. There are various such Seaman Centre who also provide adequate help to the victimized seaman and help them with legal representation.

Further, some shipping companies are quick to act and ensure their ship staff is well protected and the P&I Club is informed to take action through their local correspondent. Thus, incidents that have caused damage due to the operational failure or negligence of the vessel staff or due to the vessel equipment or hull failure due to lack of maintenance or other means, which are not intentionally done by the ship staff needs to be tackled with training and counselling of the seafarer and not their criminalisation.

The Seafarers interest, fear and unwillingness to work in shipping industry due to the criminalisation need to be eradicated and their trust needs to brought back with IMO guidelines being adopted and followed properly all over the world.

More legal compliances
Article 292 of the UN Convention on the Law of the Sea: Prompt release of vessels and crews: [13]

  1. Where the state party's authorities detain a vessel flying the flag of another state party and it is alleged that the detaining state has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within ten days from the time of detention, to a court or tribunal accepted by the detaining state under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree
  2. The application for release may be made only by or on behalf of the flag state of the vessel
  3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining state remain competent to release the vessel or its crew at any time
  4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining state shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew
  5. Article 293 of the UN Convention on the Law of the Sea: Applicable law
  6. A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention
  7. Paragraph l does not prejudice the power of the court or tribunal having jurisdiction under this section to decide a case ex aequo et bono (‘according to the right and good'), if the parties so agree

Seafers's Rights International
Seafers's Rights International is one of the organization too which deals in the supporting the seaferers. This organization was launched in 2010 with the aim of promoting, implementing, enforcing and advancing all seaferes and fisheries's rights and remedies. They mainly covers the human rights and the rights of the other persons onboard vessels. SRI undertakes support the seafarers in many ways like research, education and training throughout the international maritime industry, and advocacy in international, regional and national forums. Their research and efforts resulted in holding high database of materials for welfare of the international community.

This organization also have ITF inspectors. It is a network of around 130 inspectors based in ports all over the world. The TF inspectors are union officials. They either work full time or part time on the issues concerning the ITF FOC Campaign. Many inspectors are mostly the former seafarers or dock workers. Their job is to inspect the ships, calling int heir ports, decent pay is given to the seafarers is ensure, working and living condition on the board. They conduct routine inspections and on request of crew also visits the ships. When required, they assist the actions to protect the seaferer's rights as permitted by law.

It is very important for ITF inspectors to know their own native language, English and in some cases other languages too.

What do the guidelines say seafarers should do?
Seafarers should understand that when they make a statement to port, coastal or flag state investigators, their words could be used in a future criminal prosecution. Therefore one should therefore ensure that you have access to legal advice before making any statements. JASON can help you with this, so make sure to check this before speaking to anyone.

Although the guidelines are not mandatory, the above principle — the right to not self-incriminate — is also enshrined in the mandatory IMO Casualty Investigation Code (International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or a Marine Incident) and is an important principle in many legal systems.

One is entitled to access by consular officials from home state and are allowed to communicate privately with family members, union, welfare organisations, the shipowner, and legal representatives

If one is involved in any such maritime accident, some basic general advice could be useful which are base don the general principles, including those laid down in the international law. There may be safeguards in the national law of the country concerned which shall also be asserted.

Fair Treatment Guidelines
Below are certain guidelines which a criminalized seafer must ensure in respect to their rights and how shall they get advice and assistance in a maritime incident.
If the vessel is boarded by officials: [14]

  • Ask to see proper identification of any law enforcement officer and record full details of the identification
  • Notify owner/operator, flag state, and consular authorities of the incident and any enquiries made
  • Cooperate reasonably with the law enforcement authorities involved without waiving any of your legal rights
  • Request to be informed of your rights under the national law of the boarding state in a language that you can understand
  • Assert your rights as a citizen of the flag state to be dealt with by the authorities of the flag state

If a search is carried out

  • Refuse to allow a search of either yourself or your personal belongings unless a valid search warrant is produced
  • If there is no search warrant but the law enforcement officers still insist on the search, clearly state that you do not consent to the search, preferably in front of witnesses
  • Do not use force to prevent a search
  • Request legal representation before any search is carried out of your person or your belongings
  • Request contact with trade union or a local trade union official before any search is carried out of your person or belongings. Remember to refer to Nautilus Federation contacts or contact Nautilus 24/7
  • Remain present during any search of your belongings, preferably also with another crew member present, and note any personal items removed or damaged during the search
    If an interview is conducted [15]
  • Requesting for legal representation before agreeing to answer any questions
  • Seafarers have the right not to incriminate yourself that means make no admissions without taking legal advice
  • Seafarers can decide to speak without a lawyer present, or cannot avoid doing so, then request that there are witnesses present whom you can trust, including your trade union or a local trade union official. Note the assistance available through JASON
  • Seafarers shall Request the use of a translator before giving a statement or answering any questions if the language spoken by the law enforcement officials is not your own, or if English is being spoken and you are not a native speaker
  • Seafarers shall not rely on promises of immunity made by law enforcement officers in exchange for any statement or for answering any questions. Valid offers of immunity from criminal prosecution can generally not be made by law enforcement officials
  • If the interview is to be conducted outside the ship, refuse to leave unless accompanied by a lawyer and an interpreter (if necessary), and only after your consular authorities have been notified of your whereabouts.
  • Seafarers shall not use force to resist your removal from your ship
  • If intimidated, notify your lawyer and/or consular authorities

If you are detained or arrested

  • Request to be informed at the time of your arrest/ detention of the reason for your arrest and of any charges against you
  • Request legal assistance and confidential communication with counsel
  • Request consular assistance
  • Request the right to an interpreter (approved by consular authorities) and to translation of essential documents
  • Assert the right to be brought promptly before a judge to have the lawfulness of your detention reviewed
  • Assert the right to have a trial within a reasonable time and not to be detained pending trial without good reason
  • Assert your right not to be subjected to arbitrary arrest or detention, and not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law

To conclude, we can say that despite of knowing the very eminent and prominent contribution of the seafarers in the globalisation of the economies, still there is very less focus on these seafarers. This lead to increase in criminalisation and exploitation of such seafarers in the maritime world. Such people have already left their families and working hard in the ships but still a very little is given them back except for the financial satisfaction.

I feel, just because of any natural disaster the crew member of the ship cannot be held responsible just in the manner no officer of the authorised person is held responsible for any act of god on land. The ships are already prone to high risks due to unreadability of the weather, disasters, high carriage of goods on the ships etc. Lack of knowledge about their rights in the maritime world is also one of the largest hindrance to the justice. The way law works on land is quite different from how it works on sea.

Thus keeping this in mind, it's very important for the workers working in the ships and sailing shall know the protocols in a proper manner. Not being aware of languages in another countries is also one of the biggest problem, and I feel for that reason proper assistant or a language translator shall be provided to the assistant as their basic right when such problem arises. Language shall not become a barrier in such a fast growing world. At last, the families must be provided proper assistance when the seafarers are in such deep trouble, in order to decrease the chaos in their lives during difficult times.


  6. Nautilus international indicated that the different criminal charges or investigations, seafarers find themselves at risk of. The survey also showed the following factors

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