By Andreas Tsavliris, President, the International Salvage Union (ISU)
Criminalisation following marine incidents is a real concern. ISU believes this disturbing trend is counter-productive and in direct conflict with the goals of safer ships and cleaner seas. There are close links between the issues of criminalisation and lack of responder immunity for salvors and other emergency responders.
The maritime community has experienced some harsh lessons in the area of criminalisation in recent years, with the imprisonment of the Master of the tanker Evoikos, in Singapore, followed by the confinement in Spain of the Master of the Prestige and the detention in Pakistan of seven crew members from the Tasman Spirit. In the latter, case the Salvage Master was also detained. More recently the case of the crew of the Hebei Spirit became a cause celebre.
There has been no real progress on responder immunity in the past decade. For example, IMO member governments rejected responder immunity when adopting the Bunker Spills Convention. This was a serious setback for salvors, as the removal of bunkers is the first priority in most salvage operations. At that time, various IMO delegations admitted that they did not wish to rule out the possibility of prosecuting salvors. Yet salvors deal with problems that are not of their making. They are also the only source of the equipment and expertise required to prevent spills when ships get into trouble.
Each year the ISU conducts a survey of its members’ success in preventing pollution. The survey began in 1994 and in the 17 years to end-2011, ISU members salved 17,047,014 tonnes of potential pollutants, an average of over one million tonnes per year. This consists of 12,871,947 tonnes of crude oil and fuel oil; 1,060,704 tonnes of chemicals; 1,404,897 tonnes of bunker fuel and 1,709,405 tonnes of “other pollutants”.
Not all of the pollutants were at imminent risk of leaking into the sea but there can be no doubt that collectively salvors’ actions have been of great benefit in helping to protect the marine environment from potential damage. Some context is given by the fact that in the United States’ worst environmental disaster, 700,000 tonnes of oil was released into the Gulf of Mexico in 2010.
Governments may well pay a stern price for the creating a climate of fear through threat of criminalisation. Criminalisation and lack of immunity do nothing to encourage the kind of swift, decisive response which can prevent pollution costing billions.
Criminalisation feeds a 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, wherin 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.
The fact that the salvage operation resulted in the recovery of 40,000 tonnes of oil was ignored. ISU, P & I Clubs, property underwriters and shipowners’ organisations protested strongly but calls for the prompt release of the Salvage Master and the other detainees were ignored. Indeed the detainees were only released a month after the Tasman Spirit wreck removal was completed.
In Europe, the EU’s Directive on Ship-Source Pollution also causes real concern. This allows for criminal sanctions against Masters, owners, charterers, managers of port authorities and classification societies and, presumably, Salvage Masters. A joint industry paper from INTERTANKO the International Chamber of Shipping and others noted that this long list of “potential criminals” did not include public entities. This was described as “puzzling, particularly in view of the prominent place public decision-makers have had in the causation chain leading to pollution incidents over the last decade.” These criminal sanctions are not balanced by due process safeguards for seafarers. The shipping industry said those accused of pollution offences should be entitled to a fair and independent hearing and any penalties imposed should be proportionate to the criminal offence.
EU Transport Ministers adopted the proposals allowing for criminal sanctions in the case of serious negligence. The International Transport Workers’ Federation reacted with a warning that the new measures would only exacerbate the trend towards treating Masters and senior officers as scapegoats. The EU measures conflict with existing IMO conventions and therefore add to pressures steadily undermining the UN agency’s all-important primacy.
And this came when some EU states have failed to meet their obligations to provide adequate “places of refuge”. A Spanish Government Decree allows the Spanish authorities to demand huge financial guarantees in return for shelter. It also permits the authorities to demand that the owner waive his rights of limitation under IMO conventions. In practical terms, this Decree amounts to a blanket ban on places of refuge along the Spanish coastline. France has legalisation providing for huge fines in spill cases. These fines may be based on multipliers of cargo value.
Ultimately, only legislators can put a stop to criminalisation. While seafarers cannot expect to be exempt from the normal legal process in criminal cases, it cannot be right that they become hostages in attempts to exact compensation payments or otherwise to attribute blame following a casualty.
A recent survey of the experiences of seafarers facing criminal charges has found numerous complaints of unfair treatment, intimidation and a lack of legal representation and interpretation services.
The survey, by international legal research centre Seafarers’ Rights International (SRI), questioned some 3000 seafarers and was conducted in eight languages, with responses returned from 18 countries and 68 different nationalities.
Of the seafarers surveyed, 8% had faced criminal charges; 4% had been witnesses in criminal prosecutions, while 33% knew of colleagues who had faced criminal charges. Almost 24% of masters in the survey had faced criminal charges.
Questions in the survey specifically asked about the experiences of seafarers who had faced criminal charges. 44% of seafarers reported that they were bodily searched. 87% who faced charges relating to the discharge of their professional duties said that they did not have legal representation; 91% of seafarers who needed interpretation services said that they were not provided with such services and 89% of seafarers who had faced criminal charges said that they did not have their rights explained to them. Overall, 81% of seafarers who faced criminal charges did not consider that they had received fair treatment.
“The voices of seafarers are expressing real fears and concerns over criminal charges and it must be in the interests of the whole maritime industry that these are addressed and seafarers adequately protected,” said Deirdre Fitzpatrick, SRI Executive Director.
ISU 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. Marine accidents should not be treated as commercial opportunities. Governments should meet their own obligations in areas such as places of refuge and compensation. 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.