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Criminalisation and the salvor

By Andreas Tsavliris, President, the International Salvage Union (ISU)

Criminalisation following marine incidents is a real concern. ISU believes this trend is counter-productive and undermines the twin goals of safer ships and cleaner seas. There are also close links between the issues of criminalisation and lack of responder immunity for salvors and other emergency responders.

Progress on responder immunity has been disappointing the past decade. IMO member governments rejected responder immunity when adopting the Bunker Spills Convention, for example. This was a major setback for salvors, as the removal of bunkers is often the priority in salvage operations and always carries a risk. Some IMO delegations even went as far as saying they did not wish to rule out the possibility of prosecuting salvors. Of course, salvors are driven by commercial needs but nevertheless they deal with problems that are not of their making and they are, in most cases, the only organisations with the equipment and expertise required to prevent spills and pollution from casualties.

The International Salvage Union conducts an annual survey of its members’ efforts to prevent pollution. In 2012 the total of all pollutants salved was 810,068 tonnes. The average annual figure for the 18 years for which data is available is just below one million tonnes of potential pollutants salved per year. Not all of the potential pollutants which were salved were at imminent risk of spilling into the sea but there can be no doubt that ISU members’ services have been of great benefit in helping to protect the marine environment from potential damage.

Coastal states may pay a stern price for the creating a climate of fear through threat of criminalisation and lack of immunity which risks discouraging the kind of rapid response and intervention which can prevent pollution costing billions of dollars. Criminalisation is part of a wider “blame culture” more interested in scapegoats than prevention. In fact, criminalisation conflicts with the very essence of salvage: under the 1989 Salvage Convention and the most commonly used salvage contract, Lloyd’s Open Form, salvors must use their “best endeavours” to prevent or minimise environmental damage while engaged in salvage operations. This was recognised by former IMO Secretary-General, Efthimios Mitropoulos who said: “Criminalisation of individuals caught up in major spills might jeopardise effective response to an incident, as it might lead to fear and indecision at crucial times. If action is taken against salvors, indecision or inactivity may be further extended as third parties and other agencies may be unwilling, or at least hesitant, to respond to an incident because of the uncertainty over their position. Criminalisation may end up depriving us of the services of those individuals or agencies who may play an instrumental role in preventing accidents and, once they do happen, in mitigating their impact on human life and the environment.”

A notable case was the 87,580 dwt Tasman Spirit which grounded off Karachi, in 2003. Her cargo consisted of 67,532 tonnes of crude oil. It is thought that around 20,000 tonnes was already lost before a salvage contract was agreed. During the week following the grounding the vessel suffered more damage in a Monsoon storm. The weakened hull eventually broke in two on August 13. Seven members of the tanker’s crew were detained, as was the Salvage Master who was held for several months in Pakistan without any criminal charge brought against him.

Calls for the prompt release of the Salvage Master and the other detainees were ignored and the detainees were only released a month after the Tasman Spirit wreck removal was completed.

In Europe, specifically, the EU’s Directive on Ship-Source Pollution is also a cause for concern. It allows for criminal sanctions against Masters, owners, charterers, managers of port authorities and classification societies and, presumably, Salvage Masters. ISU supports the work of IMO in maritime matters and is concerned when there is tension between regional policy and IMO.

ISU is not seeking to excuse negligence but it believes it is possible to identify three principles which should be beyond dispute, regardless of the specifics of a particular case.

Seafarers should not be used as pawns by politicians and marine accidents should not be treated as commercial opportunities by authorities. Governments should meet their own obligations in areas such as places of refuge by adopting IMO guidelines. They should back IMO solutions to global problems and, not least, ensure that justice has priority over self-serving political expediency when accidents and spills occur.