BY Capt. A.K. Bansal.
Seafarer & The Law
An ancient, universally accepted legal principle is that each sovereign state enforces its own laws within its jurisdiction, and anyone present therein is subject to those laws. No state can impose its laws on the territories of another and no foreigner can invoke his laws outside his country. Thus seafarers are exposed to different legal systems of the world because their ship takes them from country to country. Art 2 of the United Nations Conventions on Law of the Sea, 1982, has extended it to the territorial waters of coastal states.
Today, a ship may be registered in one country, owned elsewhere, chartered by different nationals, employed in yet another country to carry cargo to a fifth state and may have crew of different nationalities. While owners are far away under their home jurisdiction, the only practical way a coastal state can pin liability on them is through the ship, her master and those on board who are present within their jurisdiction and can be made accountable, whether they are passing through its territorial waters or in a port. This is regardless of their own fault or even if others have offended local laws from behind the scenes.
No country will admit that it is taking illegal action against a seafarer or holding him illegally in custody. If it is under their own laws and procedures, it is legal. Also, no country will give up its right to hold an alleged or proved offender for trial or to serve out his sentence.
Legal procedures in each country are different even when similar laws are in force in many countries through international conventions. If a seafarer is accused of an offence the case proceeds against him according to procedures of that country. He may or may not be advised of charges against him as WE know it. He may or may not be formally heard. He may not understand the language and may not be provided with an interpreter.
If the authorities detain this ship, the owner is forced to step in with every assistance. But there is no obligation on the owner to provide such help or insure their seafarers with their P & I Club for entitlement to legal advice, assistance and interpretation if the ship is not involved or has sailed. Therefore, the seafarer is often abandoned to his own devices. A man is innocent till proved guilty. Since a seafarer is subject to laws of the country his ship visits, he should be entitled to legal assistance and interpretation by right. Only then can he defend himself without language problems. If after a fair trial he is found guilty, he must face the consequences like anybody else.
Masters, officers and engineers, who insure their certificates under professional indemnity policies, are usually under the impression that they have the above protection. But such policies do not usually cover them against their civil or criminal liability for their acts not related to their certificates of competency. Thus many matters, which may get them into trouble with the law in foreign countries, may not be covered. It is the duty of every state to assist its citizens in distress in a foreign country through its embassies and Consular offices. But procedural delays and red tape usually make it too little, too late. A seafarer has no other solace, especially when his ship has sailed.
Historically most reputed shipping companies DID assist their seafarers in such situations. In Adler v Dickson in 1954, P & O stood behind their captain and bosun, even though the case was neither against the company nor against their ship. The company paid heavy damages even though the court order was personally against their employees. It was a civil suit not filed in a foreign country, but illustrates the point.
The master personifies the ship and carries the responsibility for financial liability of the owners, usually limited to maximum value of the ship at the time of her arrest or detention.
But even though it does not mean that he can be held personally liable, some local authorities think so, and try their best to make it so. Basically international law is the law of the jungle. Governments use it when it suits them to do what they want to do, unless political or economic pressures force them to do otherwise. To that extent ‘might is right’ and possession is nine tenths of the law. If a person is within their jurisdiction, he is fair game.
Recently a seaman was caught fishing from his ship anchored in U.S. waters. Both the master and seaman were arrested for contravening U.S. laws, which require a licence to fish in U.S. waters. They were not U.S. nationals and the ship was foreign flag. The whole maritime world knows that seamen usually fish in their leisure time in all waters without let or hinderance.
But even though the Americans made themselves look ridiculous in the maritime world, they could not be legally faulted for a contravention which was innocently and harmlessly done. Since their ship was detained, the owners and their P & I Club acted fast to get their seafarers released.
M.T. ERIKA broke in two in the Bay of Biscay in bad weather and sank on December 12, 1999. All 26 crew were winched to safety by helicopters from the yet unsunk stern section of the ship and her life rafts. ERIKA had passed a special survey in August 1998, and an annual survey on November 24, 1999. Her safety construction, load line and safety equipment certificates, together with the ISM Code, DOC and SMC were all valid until August 2003. She was passed by Port State Control in Russia, Italy and France just days before she sank.
The master was taken to Paris for a brief hearing, asked a few questions and had to make a statement. The judge said that he be kept out of contact of ERIKA’S owner. No one from the Indian Embassy visited him.
Suggestions have been made to call a conventions to solve this problem. But we know well that the rules of criminal law are the preserve of each sovereign state and are mostly tied up with culture, ethos, tradition, religion, race, nationality, caste and creed. An international convention cannot abrogate such laws or solve such problems. Therefore something needs to be done to cut across political boundaries to solve this problem which is of immediate concern, without questioning the laws of all member nations of the U.N. and their right to exert them.
Seafarers are entitled to board, lodging, medical attention, costs of medicines, hospitalization, repatriation and many other facilities while serving on ships. Our MSA, 1958 provides for repatriation of seamen even when they are no longer attached to their ship. So why are seafarers denied legal advice, assistance and interpretation as part of their service conditions, since any authority anywhere in the world can detain them in accordance with their laws just because they are serving on a ship, whether they have done anything wrong or not?
Employment conditions have gone through a change recently, and make it less of an obligation on the part of a ship owner to assist a seafarer working on board his ship but not in his regular employ, especially when his ship is not involved. Therefore it should be made mandatory for ship owners to provide such assistance. This is not asking them to protect criminals. If a seafarer is found guilty after a fair trial, he must take his punishment like anybody else.
Both the IFSMA and the International Association of P & I Clubs are represented at the IMO. All these three organizations should agree for P & I Clubs to include a mandatory legal assistance cover for all bonafide seamen, anywhere in the world, as a precondition to enter a vessel in the clubs, without leaving ship-owners a choice. This will not involve the government of any country or conflict with their laws or sovereign rights or invoke an international convention.
Therefore our ship owners should take the lead to include P & I cover for all our seafarers on board our ships for legal advice, assistance and translation facilities against whatever they may be accused of. With our lead, the maritime world would have no choice but to follow if for no other reason than to show that they give equal if not better terms to ALL seafarers they employ.