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The following paper was presented by Captain Villy S. Raki, CEO of Maritime Resource Management, at the Seminar organised by the Maritime Institute of Malaysia (MIMA) on Fair Treatment of Seafarers - The Need For A Legal Regime on Tuesday 19th December 2006.
Seafarer’s Rights:
Initiatives or Nuisance ?
Imagine you are a Master, of a Malaysian flagged ship, under way in the Gulf of Mexico in U.S territorial waters. It is during the evening watch and you hear a plane flying low over the vessel . You call the bridge and the Ch.Officer tells you it appears to be a routine U.S Coast Guard patrol plane.
You think nothing of this further and rush to finish your paperwork as the vessel is due to arrive tomorrow a.m. in Corpus Christi, Texas.
Upon berthing you are greeted by 2 USCG Officers at your door.
They inform you your ship is being detained because of suspicion of causing an oil slick and they produce the photos their plane took. It shows a long and narrow light slick of oil appearing to trail your vessel’s wake.
You protest your innocence and inform them that you were not doing any tank cleaning or knew of any spillage or discharge from your vessel. They inform they are authorised to take samples of your diesel, lubs and fuel oil and will return later in the evening. They also ask to see your Oil Record Book and Engine and Deck logs. You contact your owners and they inform to wait for the results of the sample to come back.
The Coast Guard returns and informs that the slick matches positive with the sample of the diesel carried on board. They inform they are detaining the vessel whilst their investigations continue.
Coast Guard returns a couple of days later and informs they want the Master to come ashore for further questioning. After a further couple of days of intensive questioning of the Master the Coast Guard informs he is under arrest.
The Master is thrown into jail whilst owner’s lawyers try frantically to get him released. The local magistrate’s court has ruled that the arrest is valid as the Master is a key person and due to him being a foreign national, the detention of the Master should continue though the vessel can be released subject to undertakings provided by the P & I Club.
And so the legal process continues to get the Master released.
Finally after 5 ½ months in jail, the Master is released after the court finds that though the samples matched between the slick and the grade of diesel carried on board, it could not be conclusively proved that the slick did originate from his ship as other ships in the area could possibly have the same type of diesel on board.
· The Master had checked and ensured that all his crew and officers followed every dot of policy, rules and requirements with regards to safeguard of the environment and prevention of pollution as laid out by Malaysian flag state and that of the U.S government territorial rules.
· He had no direct control over what the 3rd Engineer of motorman did during their watches.
· He had no direct control over the recruitment of any of the Officers and crew on board his ship.
· There was no evidence of negligence on his part or that of his crew.
· After 5 ½ months he is released because there is insufficient evidence to prove the pollution originated from his ship.
But what if the courts found that the pollution did originate from his ship? Would that mean 5 ½ years of jail for him though it could not be proved he was directly negligent?
Or what about incidences that cause no pollution or harm to anyone but still the seafarer gets thrown into jail?
· Consider the case of third officer Denio Ruskovic, who spent 70 days in custody in the United Arab Emirates after being caught with his own prescribed medication on board.
· How much worse can the hazards of being a seafarer get when your own doctor can write out a prescription for prison to you.
The reality Ladies and Gentlemen, is that this scenario actually reflects what is happening or has happened in the last six years or so in various parts of the world with regards to arrests of ship masters and other personnel on board.
Notable Cases 1989-2003
1. Exxon Valdez. 1989. US flag VLCC. Major Pollution in US waters.
Master jailed, prosecuted.
2. Union. 1995. Hong Kong flag bulk carrier. Ran aground off Japan.
British Master arrested and subsequently fined,
3. Al Hadhi. 1996. Panamanian flag bulk carrier. Sank off India. Pakistani master arrested and detained in India for 10 months.
4. Nissos Amorgas. 1997. Greek flag VLCC. Grounding and pollution in Venezuelan waters. Vessel and master detained for 7 months by
Venezuelan authorities. Final Decision pending
5. Delta Pride. 1998. Pakistani flag bulk carrier. Abandoned by bankrupt owners in Tampico, Mexico. Eventually anchored off Brownsville, Texas. Master and all crew members arrested by US authorities and detained for 6 months before being deported.
6. Achilles I. 1999. Greek flag bulk carrier. Vessel abandoned by
bankrupt owners in Algiers. Vessel and Greek master detained
indefinitely by Algerian authorities. Master escaped on another vessel.
7. Erica. 1999. Maltese flag tanker. Vessel broke up and caused serious pollution off France. Indian master charged and detained in France for 3 months.
8. Tampa. 2001. Norwegian flag container/Ro-Ro vessel. Entered
Australian waters ‘illegally’ with over 400 rescued refugees. Vessel
boarded by Australian forces and master threatened with criminal
prosecution by Australian authorities. Vessel permitted to proceed after significant delay.
9. Virgo. 2001. Cyprus flag tanker. Allegedly involved in collision off US coast. Russian master, 2nd Officer and watch AB, held in Canada on US manslaughter extradition request for over 18 months. Decision pending.
10. Prestige. 2002. Bahamas flag tanker. Vessel broke up and caused serious pollution off Spain and France. Master arrested and jailed in high security prison for 4 months and then released but still detained in Spain.
Decision pending.
11. Vessel X. 2003. Greek flag tanker. 4 Pakistani crew members
deserted in Italy. Master arrested and jailed for two months without
charge by Italian authorities.
12. Dutch Aquamarine. 2003. Dutch flag chemical tanker. Collision in
English Channel. Dutch Second Officer charged with manslaughter,
found guilty and jailed by British court. On Appeal.
Does this call for concerted action from the industry and seafarer representative bodies? Do we hear a plea for unified, cohesive lobbying and firm action leading to enforceable laws? I hear Yes and Yes and coming from all corners of the maritime world.
But what ? What do we do?
· I note the objective of the Guidelines is to ensure that seafarers are treated fairly following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary.
But how do you ensure?
· These are Guidelines. It is simply advice to all those who may be involved following an incident: the port or coastal State, flag State, the seafarer's State, the shipowner and seafarers themselves.
· Whilst not relegating the Guidelines to the “ Nuisance” category I ponder if this is not set to become yet another manual to decorate our bookshelves in our offices or for us to force our Masters to read during their office briefings.
Do the politicians and authorities world wide hear a roar of a lion and will exercise caution or are they sniggering at the whimper of a toothless tiger?
· In 1987, the International Labour Organization amended the Repatriation of Seafarers Convention, which should have guaranteed that seafarers at least get home.
· This is a most basic fundamental right that seafarers should be entitled to.
· 17 years later and after the introduction of OPA'90, STCW'95, the ISM Code, the ISPS Code, the Stockholm Agreement and after incidences like the Erica II etc guess how many or who has signed this Convention?
· Australia, Brazil, Bulgaria, Guyana, Hungary, Luxembourg, Mexico, Romania and Spain. None of these countries are major flag states and two of them are landlocked. What happened to the Philippines, or the U.S or all the other E.C countries??
Yet these very governments and others are clambering over each other to enforce stricter rules against ship operators in the case of environmental mishaps. None seem to care all that much about the human or humane factosr.
It could be argued that protecting the rights of seafarers could be a nuisance for lawmakers and enforcers. They could rightfully argue what separates seafarers or makes them so special that they have to be treated differently from say airline pilots and crew, dockside or oil terminal workers, other transportation workers in a particular country etc.
My view is that it is more difficult to obtain recognition and hence
preferential treatment for seafarers as a separate class of people
than for the industry to simply insist for and enforce the principle of
fair treatment thru a single legal instrument developed specifically for
maritime incidences.
Everytime a pollution incident happens there is a mad frenzy amongst politicians to find a scapegoat. Every one tries to outdo another in wanting to impose very harsh penalties, introduce ridiculous new laws or other knee jerk reactions.
The issue of fair treatment becomes irrelevant in such an atmosphere and the courts find themselves under immense pressure to rule in favour of the political climate. Ultimately politics, money and self interest of parties rule over the plight of seafarers turning many of them into sacrificial pawns. Happens again and again, is happening now and will happen in the future.
Seafarers should in theory have no qualms over going to sea as there is a huge number of legal instruments that are already in existence and which, if applied, give them ample protection of their rights.
Among these are :
· Universal Declaration of Human Rights
· International Covenant on Civil and Political Rights
· International Covenant on Economic, Social and Cultural Rights
· United Nations Convention on the Law of the Sea, 1982
IMO resolution A. 849(20) as amended by resolution A. 884(21): Code for the Investigationof Marine Casualties and Incidents
· IMO resolution A. 443(XI) incorporated into Chapter IX of SOLAS and Regulation 10-1,
· Chapter V of SOLAS: Master's Discretion for Safe Navigation
· International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)
· ILO Declaration on Fundamental Principles and Rights to Work, 1998
· Settlement of Disputes - Article 287 of UNCLOS, 1982
Liability and Compensation Conventions - Articles 3,9,10 of International Convention on Civil Liability for Oil Pollution Damage, 1992
· Vienna Convention on Consular Relations, Article 36
Other International Instruments
· International Convention on Maritime Liens and Mortgages, 1993 - Article 12
· International Convention relating to the Arrest of Sea-Going Ships, 1999 - "Maritime Claims"
· Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (approved by the United Nations General Assembly resolution 43/173 of 9th
December 1988)
So how do we address this gross erosion of basic rights? I can only offer an opinion but not an answer as there is great risk of oversimplifying the legal hurdles any initiative will produce.
· I am inclined to change my focus from ShipMaster’s responsibilities and liabilities to his/her Rights?
· Can all of the above be condensed into a Bill of Rights for a ShipMaster that is universally adopted by all IMO member countries.
It would have been reasonable to assume that such a Bill should have come into force a long time ago as the maritime environment has significantly evolved into a complex creature with:
• Unidentifiable shipowners.
• Convoluted ship management systems.
• A great variety of open registry flags.
• Multi-national crews with commensurate communications
difficulties.
• Inexperienced or poorly trained ships’ officers often with
‘dubious’ qualifications.
• Overregulated administrative and inspection systems.
• Coastal states with a preoccupation, to the exclusion of almost
everything else, of protecting the marine environment.
• Predominant commercial “bottom-line” orientation.
· Factoring in the above it is evident that ships and their crews today operate with realities that are almost totally at odds with a legal regime that was created long ago for a very different shipping industry.
· Reality and Expectation are residing at polemic ends!
Though not seeking to categorise them into a privileged or special category I believe the complexities inherent within the industry warrant the enshrining of the rights of a Master and his crew into the national laws of all port and coastal states.
I do not see the development of such an instrument as being radical or requiring enormous manpower or financial resources. It is merely consolidating and condensing what is already in existence in several other instruments.
Thank you.
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7th August 2006
Funds agreed for Marine Electronic Highway in Straits of Malacca and Singapore
Implementation of the Marine Electronic Highway (MEH) Demonstration Project in the Straits of Malacca and Singapore is set to begin shortly, following the signing of a US$6.86 million grant agreement (on 19 June) between the Global Environment Facility (GEF)/World Bank and the International Maritime Organization (IMO).
[ FULL NEWS]
02nd August 2006.
How to Maintain the Right Attitude When Challenged
"It is our attitude at the beginning of a difficult task which, more than anything else, will affect its successful outcome." -William James
Notes from Paris: How to Maintain the Right Attitude When Challenged
By Michael Masterson
[CLICK HERE FOR FULL ARTICLES]
02nd August 2006
 Offshore Accidents .
1) Fatality During Cargo Handling
2) Fatility due to loose grating
3) Pigging Incidents.
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