By Capt. A.K. Bansal
Shipping by its very nature is international in character, concerned as it is with ships engaged in the transportation of personnel and goods from country to country. International shipping connections are a manifestation of the global economy and globalization, which have an immense impact on the way commercial shipping is conducted. Today, a ship can be financed in one country, owned by a company in another country, flagged in another, while her cargo may be owned by another set of companies in a different country, and the Master may be a national of yet another State. Thus, whilst serving at sea, seafarers are exposed to a variety of laws and jurisdictions with widely differing standards, legal provisions, and penalties.
A spate of recent incidents, which have gained notoriety through national and international media, has stunned the seafaring community as seafarers are unfairly treated and subjected to indignities on the flimsiest of grounds and even imprisoned when they were not even involved and no culpability could be attached to them. The evolving culture in the international arena harasses and imprisons Masters of ships at the will of local authorities, especially as a Master personifies his ship. Every time there is a marine accident, which may not even involve the ship, the first action of local authorities is to arrest or detain her Master. If there is a pollution incident, a collision, or stranding which is contributed to by the stupidity of a local pilot or inadequacy of traffic control, throw the Master in jail? Thus, everything from a collision to a B/L dispute can result in the arrest of the Master, who is then detained as a hostage pending the conclusion of legal proceedings.
Thus, ship Masters are operating under a very harsh and unforgiving environment today. This has become worse with the concept of a “Sister ship” while applying the age-old principle of “Maritime Lien.” Ship Masters know well that if their ship has caused a casualty or has been supplied with necessities, she is liable to make good the loss or to remunerate the supplier. But with this concept of a “Sister ship,” a Master safely docked in a harbor may face arrest because a sister ship has caused damage or has been supplied with necessaries by a supplier in that jurisdiction and has not been paid. Even so, and even though a sister ship may be detained, there seem to have been no cases in which the Master of a sister ship has been penalized, especially since it was not under his signature that supplies were made.
Yet in the past, with compact shipping companies and mainly permanent senior seafarers, a Master knew of every ship in the fleet and would have soon come to know if there was any problem with one of the ships. Today, with ship owners operating their fleets under different flags, different names, plus prevalent management systems, short-term employments, and what not, a Master may not even know the facts—especially since he himself is on a short-term employment of six months or less and serves different ships of different owners.
Legal Protection and International Frameworks
Legal protection has been envisaged in the UN Convention on the Law of the Sea (UNCLOS), 1982, which has been ratified by 168 world governments. The IMO has also adopted many resolutions in important conventions and codes to protect Masters.
- Article 73 of UNCLOS deals with the ‘Enforcement of laws and regulations of coastal States’ and expressly enjoins:
- Arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security.
- Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.
- In cases of arrest or detention of foreign vessels, the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.
- IMO Resolution A.443(XI), adopted on November 15, 1979, invited Governments to ensure that the Master is not constrained by the shipowner, charterer, or any other person from taking any decision which, in his professional judgment, is necessary, and that the Master is protected from unjustifiable dismissal or unjustified action by the shipowner or any other person as a consequence of the proper exercise of his professional judgment.
- IMO Resolution A.741(18), adopted on November 4, 1993, was incorporated in the preamble of the ISM Code and by reference into the new Chapter IX of the SOLAS Convention. The ISM Code contains a clear statement emphasizing the Master’s authority and responsibility to make decisions with respect to safety and pollution prevention and to request the Company’s assistance as may be required.
- The professional judgment of the ship Master is again recognized as “best effort” in the new Chapter V of SOLAS titled, “Master’s Discretion for Safe Navigation.”
Regrettably, despite all this, recent events have amply shown that these safeguards have neither been observed nor are sufficient to protect him.
Case Studies of Injustice Against Masters
This is illustrated by the following incidents involving Masters:
- France: The Technical Committee of P&I Clubs returned a finding that the primary cause of a major disaster was the poor state of the tanker, not incompetence of the Master or crew. (It may be recalled that this case led to the introduction of the Mandatory Ship Reporting System).
- Hebei Spirit: A fully laden super tanker safely anchored in a designated anchorage was holed in its cargo tanks as a consequence of the parting of the tow line of a tug and a crane barge passing nearby. Despite the best efforts of the Master and his Chief Officer, the crane barge drifted on to and rammed the anchored super tanker, causing much oil to spill into the harbor. Local authorities imposed an ‘exit ban’ on the Master, Chief Officer, and some crew members to prevent them from leaving port, and courts imposed jail sentences on the Master and Chief Officer. Fortunately, with the support of ship owners, management agents, and backing of the shipping fraternity, both officers were allowed to go home after wrongful detention for many months.
- M.T. Nissos Amorgas: Greek Master Konstantinos Spiropoulos was detained along with his ship by the Venezuelan Government for a prolonged period after the tanker grounded and struck an underwater obstruction while being piloted in the Maracaibo Channel on February 28, 1997.
- SEKI: British Master Captain Donald Shields suffered a similar prolonged detention when his Panama-registered VLCC was involved in a collision off Fujairah on March 30, 1994.
- MV Union: The Hong Kong-registered vessel grounded in Kammmon Kaikyo, Japan, in February 1995, leading to detention issues.
- M.T. Prestige: In November 2002, the tanker reported a 25-degree list. The Master’s request for a port of refuge was declined; instead, she was towed 133 miles out to sea by Spanish authorities. Thus, an unarmed merchant ship, in serious trouble and pleading for help, was forced to sink six days later, and the Master was jailed in Spain.
- TOSA: A VLCC was on the high seas on her way from Korea to Singapore under the charge of qualified navigating officers at all times. The Master left clear night orders in accordance with the STCW Convention that he should be called “if in doubt.” Next morning, his ship was accosted by the Taiwan Coast Guard, who accused the ship of having collided with a Taiwan fishing vessel with the loss of two fishermen. When the hull of the VLCC was inspected, no trace of a collision was found. Yet the ship was forced to be diverted to Taiwan from the high seas—outside the jurisdiction of Taiwan. The watchkeeping Second Officer, lookout man, and Master were charged with causing the death of two fishermen, even after media reported that the Japanese Coast Guard had found their ship was nowhere near the place where the collision was reported to have occurred. They were held up in Taiwan from April 17, 2009.
From the foregoing cases, it is abundantly clear that evidence in most such cases is either flawed or manipulated by local authorities, with a growing tendency to criminalize the Master and other seafarers. This gains credence because of evident flaws in investigation or expert committee reports which eventually influence their detention and the judgments of courts. Elementary principles of natural justice and fair treatment, including guidelines of the IMO, are ignored in favor of technical reports of doubtful validity.
Industry Fragmentation and Flags of Convenience
Apart from the above, in recent years the shipping industry has been characterized by increasing concern over falling standards of vessel operations, necessitating international maritime rules as evidenced by the greater frequency of ship inspections by insurance and chartering entities.
Standards of ship operations vary from highly professional shipowners to unscrupulous owners who disregard even basic requirements of safety and pollution-free operations. Fragmentation of the shipping industry has impaired the position of the Master and the relationship of seafarers with the ship and shipping company. This has destroyed the mutual trust and loyalty which was the hallmark of this relationship.
Since the 1960s, many States have sought to assert their economic independence by forming their own shipping companies. Also, the number of open registries called flags of convenience have increased as shipowners in traditional maritime countries sought flags that were less demanding from a tax point of view and offered more flexibility for the employment of cheaper seafarers. Today, most owners leave the operation of their ships to ship management companies and manning agencies to supply an increasing proportion of seafarers from different jurisdictions.
Increased use of flags of convenience, management companies, and manning agencies has weakened the links between seafarers, ships, and owners. This adversely affects a seafarer’s loyalty to ship owners and pride in their ship. Owners consider themselves absolved of any legal or moral obligation to look after their seafarers. Unscrupulous ship owners do not even hesitate to abandon the Master, officers, and crew when there is a mishap or an incident, leaving them to the whims and fancies of local authorities, especially since they are insured against their financial risks.
Thus, the international maritime industry lives in an age of open registers, multinational crews, and absentee owners. Traditionally, the flag State is responsible for ensuring that IMO standards and requirements are enforced. Yet, the increasing diffusion of the industry means that managers, insurers, classification societies, and so on may be outside flag State jurisdiction. It is of greater concern when the flag State is relatively new to shipping and has neither the knowledge, experience, nor resources of traditional shipping nations.
Conclusion and Urgent Need for Reform
Concerned maritime organizations must bring the plight of seafarers to the attention of the IMO and the world maritime industry, to adopt more suitable measures to ensure that seafarers serving on board merchant ships are treated with dignity and respect at all times, and in the event of a mishap occurring on board or at sea, they are not unduly harassed or unjustifiably detained. They must have basic human rights of life, liberty, and security of person. Legal protection available under UNCLOS and guidelines issued by the IMO or ILO must be duly observed. Local authorities must not just rush for handcuffs before finding out what happened, what went wrong, what harm or damage has been caused, and who is responsible. Fair laws must support good practices.
National parliaments have occasionally exacerbated this environment; for instance, Canada passed a law in 2005 making a pollution incident a criminal offence regardless of whether there was any “willful misconduct,” and similar legislation has been passed in the European Union. In the case of the MV Full City pollution incident in South Korea in late 2007, the ship’s crew could not leave Korea for 18 months and were imprisoned for some of that time.
The shipping industry cannot attract high-quality officers and engineers if it cannot protect them. The problem of the treatment of seafarers must be taken up for urgent discussion and remedial action.