“Seafarers are special” was the message sent out when guidelines on how they are treated in the wake of a maritime accident were adopted earlier this year.
The industry and the two agencies involved in their drafting of the “Fair Treatment of Seafarers in the Event of a Maritime Accident” guidelines, the International Maritime Organisation (IMO) and the International Labour Organisation (ILO), had, however, barely stopped congratulating themselves on a speedy outcome when dissenting voices were raised and it proved the guidelines were not as fully adopted as some had thought.
The guidelines were the result of increasing concern over the detention of seafarers mainly after maritime accidents resulting in pollution. Ships’ crews and even salvors on scene to try and minimise pollution were being arrested, often without being charged, in a cynical bid to have leverage. Seafarers, in effect, had become scapegoats and pawns in a game of politics and money.
There was equal concern over the treatment of seafarers involved in alleged cases of pollution involving oily water separators, treatment so harsh that it led in one case to a suicide. In other cases seafarers were held for long periods in a distant foreign country where they were unfamiliar with the language and, in particular, the laws.
The industry was also worried by a perceived trend towards criminalisation in proposed anti-pollution legislation in the European Union that was at odds with existing international laws dealing with maritime pollution. This trend was further evidenced last month when the EU Environment Commissioner threatened to strengthen existing laws and seek to introduce new laws to criminalise the actions of those involved in the disposal of ship’s slops.
This, like other incidents, showed an alarming propensity to prejudge cases before all the facts were known, as at the time several investigations were under way into the circumstances which led to the dumping of a tanker’s slops in open rubbish tips and the reported deaths and illnesses among people exposed to the fumes.
The criminalisation trend was of further concern to the industry because it coincided with a shortage of skilled seafarers and a perceived disinclination among people to consider seriously seafaring as a career. The image of seafaring would be damaged if it was perceived as one where there was an increasing likelihood of being seized as a hostage to fortune in some foreign land, far from home and unsure of one’s rights, even when totally innocent.
Hence the urgency with which the guidelines were drafted and adopted and the feeling of satisfaction and relief that something at last had been achieved, that might turn the tide.
What seemed, however, to be a fait accompli now turns out to have been conditional on a review which will take place next month when the IMO Legal Committee meets in Paris. There are some fine points of detail to be polished, but the main points of contention cover the guidelines’ definition of a maritime accident, the seafarer’s right to remain silent, presumption of innocence and jurisdictional precedence.
On the definition of a maritime accident, some flag states have claimed the definition is too broad, particularly by not referring to actual or potential damage. Shipowners and unions point out that the definition was developed by legal experts at the Comité Maritime International and that there is no connection between assessing whether damage has or has not been caused and whether seafarers should be treated fairly or not.
Another point made by the would-be amenders is that the guidelines fail to say they are not intended to apply following incidents committed with criminal intent. This, the industry, accepts is quite true, but points out criminal intent is something for courts to determine, not accident investigators. Seafarers are innocent until proved guilty following due legal process and any detained should still be treated fairly in accordance with the guidelines.
On the right of seafarers to remain silent, some want the guidelines to be qualified by the fact accident investigators are allowed to compel seafarers to co-operate. The industry says any such qualification would confuse seafarers, as they would not know when any statements they make may be used against them. It is up to the individual state, the industry argument goes, to satisfy the seafarer there is no danger of self-incrimination.
A working group at the IMO Flag State Implementation (FSI) Committee is in any case revising the Code for the Investigation of Marine Casualties and Incidents where the issue of self-incrimination is being addressed. So it would be premature to revise the guidelines until the FSI revision is completed.
Concerns have also been expressed about how the guidelines address the issue of jurisdiction, but they only recommend steps are taken to respect flag-state jurisdiction in accordance with international law. Nor, the industry argues, do they seek to call into question or prevent the use of a state’s criminal law where appropriate, but only to ensure that it is done in a fair way.
Seafarers are often subject to the laws of several states: the flag-state, the coastal state and their home country and it is unreasonable to presume they will be familiar with all of them. The point of the guidelines was to address this jurisdictional uncertainty and to seek to ensure seafarers could rely on the application of international human rights instruments.
There are serious concerns the guidelines will be amended in such a way as to negate their intention. It is accepted the text might not be perfect but this, it is argued, is the result of often delicate negotiations and that it was always intended they be reviewed, preferably after some experience and in light of the work of the FSI working group’s revision when a more detailed review could be undertaken.
It seems likely, however, either they will be amended next month or their adoption by governments will be delayed. In the meantime, more seafarers may be detained, no doubt to be recorded in the planned update to the study into such detentions already undertaken by BIMCO. Some might say that is not fair, but fairness, is of course, relative.
Editor’s Note: Andrew Guest is a freelance journalist.
Feature articles written by outside contributors do not necessarily reflect the views or policy of BIMCO.