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CRIMINALISATION OF SEAFARERS FOR SHIP-SOURCE

POLLUTION  - THE PROPOSED PATH

by

©Derek Hodgson
International Bar Association

INTRODUCTION

In medieval times in France ships’ pilots enforced their rights at the point of a sword or the gun.   But they had their responsibilities too.  In the oldest known printed pilot book from Northern Europe, “Le Routier de Mer” which was published in Rouen sometime between 1502 and 1510, the law relating to pilots is set out and translates as follows:

“A pilot undertakes to guide a ship to Saint-Malo or another place.  If he fails and the ship perishes because he did not know the way, and the merchants suffer loss, he is bound to pay the damages if he can.  And if he has not the means to do so he must have his head cut off.  And if the master or any of the seamen or any of the merchants cut off his head, they are not liable to make amends.  But all the same they ought to make sure before doing so, whether or not he has the means to pay.   This is a judgment.”

It looks as though in Europe at least, we are moving back to harsh criminal sanction for pollution, albeit without the ultimate penalty of execution.  New laws are being introduced in Europe which provide for serious criminal liability in the event of ship-source pollution both in territorial and non-territorial European waters.

To my knowledge, no similar legislation has been introduced in Malaysia but I gather the Merchant Shipping (Oil Pollution) Bill 2005 goes some way towards introducing sanctions here. 

The EU Directive on criminal sanctions for ship-source pollution has been formally adopted in the EU in order to tackle the causes of marine pollution and create a level playing field for quality Owners and Operators whereby both Seafarers and responsible Operators will benefit and which will enable the elimination of the small minority of substandard or rogue Operators who presently tarnish the image of the shipping industry.  In order to accomplish this the EU has introduced a new test of negligence and strict financial and criminal sanctions. 

POLLUTION EXAMPLES

The background to the introduction of this Directive is set by a number of recent dreadful causalities in Europe (and indeed, in the Far East).

Many of you will be familiar with the plight of Capt. Apostolos Mangouras, the Master of the “PRESTIGE”, (the vessel that broke up off the coast of Spain with 77,000mt of oil on its way to Singapore in 2002) and the way in which he has been treated by the Spanish Authorities.  He was held in detention in Spain for 2 years and although he now has limited freedom, he still awaits criminal trial.  You may also have heard that the flag state investigation into the loss of the “PRESTIGE” undertaken by the Bahamas Maritime Authority (BMA) does not attribute any blame at all to the Master of the ship for the incident.  And his behaviour in response to the damage suffered by the “PRESTIGE”, after most of his crew had been safely evacuated, is described as “exemplary”.  An exemplary officer detained for two years in Barcelona and seemingly made a scapegoat by the authorities whose actions many believe allowed the incident to escalate to a point where it has became far worse than it would have done if the vessel has been allowed a place of refuge.

As the BMA report commented, not only was this a violation of Capt. Mangouras’ human rights it has affected the morale of the industry.

Although not a crewmember, the operations manager of the company which ran the “PRESTIGE” (Captain Margetis) is said to have died from a stress related stroke shortly after having been served with extradition papers in connection with the sinking of the vessel.

In issuing the arrest order for Capt. Margetis, the Spanish judge apparently indicated that Capt. Margetis may have shared some responsibility for the accident and could have faced up to nine years in jail.  The procedure used by the Spanish judge is known as the European Arrest Warrant.  This is a relatively new measure agreed by most EU countries with the aim of fast-tracking extradition procedures for serious crimes and was an innovation that was meant to be used in the war against drugs and terrorism.  It arose out of a decision of the European Council in 1999 to improve judicial co-operation in the EU.  Its use in the “PRESTIGE” case suggests that no longer will it be the case that only those present at the scene of the accident will be susceptible to criminal actions by the authorities of the country.  With the introduction of the European Arrest Warrant it will be far easier for others within another EU Member State to have to face criminal charges.

The Spanish, however, are not alone.  What of the “ERIKA” which broke up and sank in the Mediterranean about five years ago?  Within days of the sinking, the investigating French judge had the “ERIKA”’s Indian Master, Capt. Karun Mathur behind bars on charges of endangering human life and causing marine pollution.  There is a view that the case against many of the accused, including Capt. Mathur, is likely to collapse for lack of hard evidence and it has been suggested that the Captain’s navigation of the vessel was totally irrelevant to the outcome.  It is believed that the loss of the “ERIKA” was a structural problem and nothing to do with the navigation of the vessel.

There seems, however, to be a general trend to a wider use of the criminal law in response to casualties, which trend is not confined to Europe.

In Pakistan, the “TASMAN SPIRIT” ran aground in July 2003 outside Karachi.  Some nine days later, the salvors, Tsavliris, were called in, and some nine days after that, the “TASMAN SPIRIT” broke into two.   Within a few days of that event, the “TASMAN SPIRIT”’s crew of five Greeks and twenty Filipinos were detained for questioning and not allowed to leave the country.  Some six weeks later seven of the detained crewmembers of the vessel, together with the salvage Master, Nikos Pappas, were arrested in Karachi.  Such was the stress that those arrested were under that in early January 2004, the third engineer, George Koutos, tried to take his own life.  Ultimately, some eight months after they were first detained, the “Karachi Eight”, as they had become known, were released against assurances that the EU citizens would return to Pakistan when the case reached court.  A little over one year after the incident, the Pakistan Merchant Navy Officers Association accused the Karachi Port Trust of improper channel maintenance and suggested it was a principal cause of the vessel’s grounding.

There will, of course, be cases where criminal offences are committed.  What is notable in the above high profile examples, however, is that the Members and crew members have all been accused of criminal offences but that, in each case, although criminal trials have not yet taken place, it seems as though any acts or omissions of the Master or crew may not have been the material cause of the loss of those respective vessels and yet, in all three cases, the Masters (and in one case crew) have lost their liberty for significant periods of time.

EU DIRECTIVE

The main features of the EU Directive which must be implemented by member states by April 2007 are the following:

1. Persons other than the Owner and the Master of the ship can be held criminally responsible for accidental pollution.  These include the Manager, Charterer and the Class Society. 

2. Pollution occurring outside the territorial sea results in a criminal violation if the Owner or Master “acted with intent or recklessly in the knowledge that damage would probably result”.

3. For pollution within the territorial sea of a country, a violation occurs if the party involved “acted with intent or recklessly or with serious negligence”. 

4. A maximum prison sentence of up to 10 years for intentional pollution and 3 years for “serious negligence”. 

5. Fines of between €150,000 (US$179,000) and €750,000 are recommended for responsible legal persons benefiting from those involved in pollution.  In other words, both the company concerned and the individuals within the companies who take the decisions are liable to fines and possible prison sentences. 

The Directive has been seriously criticised both by Shipowners and the legal profession.  Shipowners tend to criticise for policy reasons in that they have no wish to go to prison themselves.  It has been stated by the Greek Shipping Co-operative Committee Chairman in a recent conference in London that “the Commission has failed to undertake that the way to achieve its aim is through positive measures such as education and international initiatives like the ISM code, rather than through the threat of incarceration and the creation of a blame culture”. 

The Directive in the eyes of many jurists arises from the Directive’s clash with the 1982 Convention on the Law of the Sea (UNCLOS) and the MARPOL Convention.  UNCLOS obliges and empowers coastal states to adopt laws and regulations to prevent pollution by foreign vessels in its territorial sea and in its exclusive economic zone.  MARPOL does not provide for liability attaching to persons other than the Owner and Master of the ship whereas the Directive includes the Manager, Charterer and Class Society. 

The Directive adopts a lower test than MARPOL for pollution within the territorial sea in that a violation is caused if the party involved “acted within intent or recklessly or with serious negligence”. 

There has been considerable legal criticism of the words “serious negligence”.  Many commentators have said that the addition of the word “serious” adds nothing to the word “negligence”.  As far as I know, there is no established definition of “serious negligence” nor is it found in the Directive.  I fear that the Directive will, in practice result in criminal sanctions for pollution caused by ordinary negligence. 

The EU Directive is not the only legislation being introduced to criminalise seafarers.  The United States has always had serious sanctions available against Seafarers and between 1989 and 2004 there were 27 criminal cases involving marine environmental crimes in the US. 

In Singapore, the collision between the tanker “EVOIKOS” and “ORAPIN GLOBAL” in 1997 resulted in the Masters of both vessels being jailed for 3 and 2 months respectively.  Further, in 2003 the collision between a Singapore Navy vessel and “ANL INDONESIA” resulted in 2 crewmembers being fined after being found guilty of causing death by navigating negligently.  The fines were imposed despite the fact that 4 people died in this casualty, which contrasts starkly with imprisonment for the Masters of the “EVOIKOS” and “ORAPIN GLOBAL”. 

CORPORATE MANSLAUGHTER

In the United Kingdom, seafarers and shipping executives are vulnerable to corporate manslaughter charges and a Corporate Manslaughter Bill was presented to Parliament in March 2005.  This Bill is not limited to companies.  It extends liability to Government Departments and makes parties liable for corporate manslaughter if “the way in which any of its activities are managed or organised by it senior managers –

1. Causes a persons death, and

2. Amounts to a gross breach of a relevant duty of care owed by the [company] to the deceased.”.

You will see that the threshold for liability is a gross breach of the duty of care which is defined as “conduct falling far below what could reasonably be expected of the company in the circumstances”.  This Act when it comes into force, will widen the possibilities of Shipowning Corporations becoming criminally liable for manslaughter increasing the risk of conviction considerably from the old Health and Safety provisions under the existing legislation of the Health and Safety of Work Act 1974. 

CONCLUSIONS

Most countries have criminal liability legislation which enables a party to bring criminal charges against persons who are individually liable for criminal acts whether a Shipowner Executive or Master of a ship.  However, most of this legislation only applies to acts performed within the jurisdiction of the country concerned. 

What is new as far as Europe is concerned is the greater ease with which charges can be made against parties for acts performed outside the territorial sea of the country concerned. 

There is also now a direct conflict between MARPOL and the Directive on the test of criminal liability of the Owner and Master for pollution outside the territorial sea. 

Furthermore, International Law has always recognised the distinction between operational discharges and accidental pollution but the Directive is applicable to all incidences of ship-source pollution, whether intentional or otherwise. 

The United National Convention on the Law of the Sea is the main World-wide Convention on matters concerning the sea.   UNCLOS 82 through Article 73 and 292 has provisions to protect the Seafarer against unreasonable detention and for the Seafarer’s release where suitable bonds or guarantees are provided.  Article 230 also provides for strict monetary penalties. 

There is a considerable amount of support for the view that UNCLOS and MARPOL give enough protection to States in their fight against pollution and that the draconian provisions now being introduced by measures such as the Directive in the EU, contribute only to the further unfair penalisation of the Seafarer and Shipowning companies world-wide.

*This paper was delivered at the 13th Malaysian Law Conference.