Ashfords Solicitors - The legal perils for those at sea

The 18th century literary giant Samuel Johnson once commented: "No man will be a sailor who has contrivance enough to get himself into a jail - for being in a ship is being in a jail with the chance of being drowned."

This was a very apt comment and is, to some extent, as true today as it was then. Employment at sea has always meant danger, isolation and confinement. It has also meant that the seafarer is generally out of reach of any legal system that might be used to protect him.

Although substantial legislation has been passed to assist and advance the commercial prosperity of ship owners, charterers and cargo owners, those left operating the vessels at sea - the master and crew - are often left to fend for themselves.

Their position was weakened further by the tendency in the late 20th century for vessels to fly flags of convenience so that the particular flag state, for example, Panama, Belize, Cyprus or the Isle of Man, was, on the face of it, the appropriate jurisdiction in the event of any incident that happened outside territorial limits.

It is, of course, often very difficult to show a genuine link between a ship owner and a flag of convenience. This coupled with the rise of one-ship companies - to limit liability - has allowed ship owners to operate in a virtually invisible manner.

There is the well known case of the Erika, which broke in two in the Bay of Biscay on 12 December 1999 and polluted a vast area of the French coast. The vessel was built in Japan, ostensibly owned by a brass-plate company in Malta, managed in Italy, chartered by a French company, mortgaged by a British bank and had a crew primarily from India where the real owners were well hidden.

Similarly, the tanker Prestige, which sank off the north-west coast of Spain on 19 November 2003 had a similar matrix of vested interests. However, in this case, when the vessel was ordered away from the coast with a 30 degree list the master evacuated the crew, but remained on board with two officers to do what they could.

When the ship broke up, however, he was arrested and imprisoned by the Spanish authorities. He, like the master of the Erika was imprisoned for more than a year because he was the only person that the authorities were able to prosecute.

Accordingly, a master or a member of his crew may find themselves convicted of a health and safety offence for which they had no personal responsibility and about which they may have been totally unaware.

The criminalisation of seafarers is being looked at by the International Marine Organisation but, as yet, there is no common ground to avoid imprisonment or serious charges being laid by the police or Maritime Coastguard Agency in the UK in the event of a casualty.

Nor will the efforts of insurers - such as the protection and indemnity clubs - enable masters or crew to be extracted from prison because they will be subject to the laws of whichever jurisdiction they are held. For example, in the South West of England, there have been two recent cases of the police bringing manslaughter charges against an unsuspecting master and crew.

Other problems may arise with adequate payment. In England, the courts have always attempted to give the master and crew priority, and any such claim will survive change of ownership of the vessel and is known as a 'maritime lien'.

This lien has high priority over other maritime liens, such as collision and salvage claims, and, accordingly, there is very high priority for any such claim in the event of a judicial or forced sale of the vessel to satisfy such claim.

Most seafarers are now recruited through recognised agencies in countries such as the Philippines, which has more than 400 crewing agencies, allocating some 200,000 seafarers to global shipping.

Ironically, western European powers produce an ever-decreasing number of seafarers to an industry which is larger in the UK than the aviation and agricultural industries placed together.

This may be because seafarers are concerned about their rights and the risk of being branded a convict if, through no fault of their own, something goes wrong while at sea or alongside in harbour.

The answer is partly for the owners to give better terms and conditions to their seafarers to ensure that they are well rewarded financially for the difficult and, at times, dangerous work they carry out.

This, in turn, would lead to loyalty to ships and shipping companies from seafarers who have the rights they deserve in an industry on which we will all be increasingly dependent if global and UK trade is to maintain its current levels of expansion.

Charles Hattersley spent 15 years in the Submarine Service before qualifying as a solicitor in 1987 and has since specialised in all aspects of marine work – particularly in shipbuilding, casualty, mortgage and finance.

He is also renowned for handling contentious cases on behalf of major marine insurers involving the loss of crew, vessel and cargo. In particular, he has had high profile involvement in fishing vessel and total loss cases.

Other areas of expertise include port disputes, salvage claims, collisions and personal injury. Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

22nd December 2006

Key Contacts

The legal perils for those at sea

Introduction