Ashfords Solicitors - Shipping and Criminalisation in the 21st Century

Shipping is a high risk industry that can cause serious damage to life, property and the environment. As a result, it is subject to a regulatory system containing criminal sanctions, that has been steadily increasing as the industry has become more sophisticated. In this respect shipping is no different from other forms of transport and as such seafarers cannot expect special treatment. For example a train driver who contravenes a SPAD (signal past a danger) and goes through a red light may well be prosecuted while even air crew who have survived fatal crashes have faced criminal prosecution occasioned by their failure to follow procedure.

Nevertheless there are certain unique factors that apply to the role and responsibility of the Master of a ship and that makes a ship Master notably more vulnerable to criminal sanctions that many other people in responsible positions.

Self-evidently the Master of an internationally trading ship finds himself exposed to a whole range of different legal regimes and codes which can be interpreted and implemented very differently in various jurisdictions.

Historically most courts have recognised that in order to be guilty of a crime a person must have a criminal intent, or mens rea. Thus, in order to be guilty of a crime, it is necessary to have acted with wrongful purpose, knowledge of a particular wrong or in a reckless and/or wilful manner. The mental state necessary to trigger criminal liability will vary from statute to statute. Following the traditional rule, one would expect in maritime accidents resulting in pollution that criminal liability would be predicated upon the individual's mental status for wilful or knowing conduct, negligence, criminal negligence, recklessness and wilful ignorance. The basic notion running through most criminal laws is not to criminalise conduct without the showing of evil intent or motive or that which would be traditionally, considered a civil wrong, and addressed by civil remedies. A classic example in the marine industry is the Master of the Exxon Valdez , Captain Hazelwood, who was acquitted of all the felony charges and the more serious misdemeanour charges arising out of the incident. Although he was convicted on one count of negligent discharge of oil, (a class B misdemeanour under US law), for which he had to perform 1,000 hours of community service, and, despite his acquittal and the affirmation of the jury that the grounding was nothing more than a maritime accident, his criminal prosecution and the "circus like" media atmosphere surrounding this spill and his subsequent trial, changed his life and livelihood forever. That is the harsh reality of the criminalisation of maritime accidents.

In the UK I have had first hand experience of a number of cases over the last three/four years. Some of these have involved fishing vessel disputes where the skipper has been subject to extensive and detailed examination by Marine Fisheries Agency Officers. This often takes place in a quay alongside where the fishing vessels discharge and can be a very "rough and ready" means of obtaining evidence. Unfortunately in light of European directives, there is little or no room for manoeuvre when it comes to assessing and answering questions raised by MFA Inspectors. Other instances are, altogether, more serious and involve long and at times tortuous interviews by the police. This was certainly the case in a vessel known as the "Neermoor" which moored at Teignmouth, UK in April 2006.

Very shortly after coming alongside the transverse movable bulkhead collapsed killing one of the crew members, who was at the bottom of the hold at the material time. "Neermoor" is a single-hold 83 metre general cargo coaster with a gross tonnage of 1589. On 27 April 2006, having discharged her cargo at Southampton she was in ballast alongside at Teignmouth Dock. Two ABs were working in the hold, where the portable bulkhead was stowed. Whilst one of the ABs was working on the for'd face of the aft most bulkhead operating a jack, the bulkhead began to topple rotating about it's lower locating pins so that its top edge moved aft. The bulkhead continued to fall aft rotating about the lower pins until they too became disengaged and the bulkhead fell to the deck. One of the ABs escaped uninjured but tragically the second AB was fatally crushed between the fallen bulkhead and the bottom of the hold. Subsequent investigation and analysis showed that the bulkhead securing pins had not been checked for some time and as well as being poorly maintained, the upper pins in particular were defective. The bulkheads were badly designed and there is a record of similar incidents occurring onboard other vessels, operating these types of portable bulkheads.

The Russian Chief Officer – who was nowhere near the incident when it happened - had only been onboard the vessel for six days. However, not withstanding that he, together with the Master, was detained by the Devon & Cornwall Police in a police jail in Torquay and charged with attempted manslaughter and/or murder. Clearly these were very serious charges indeed.

There followed a series of interviews in Torquay Police Station, which lasted in total about 25 hours. The role of a lawyer in these circumstances is no different from any other case i.e. he or she is there to provide the best possible advice. Because of the very comprehensive legislative powers of the police and other authorities it is important to take the initiative at every stage. For example, if the prosecuting individual begins to ask leading questions and/or is pushing for an opinion or evidence that might be outside the expertise of the particular individual being interviewed, then an objection should be raised. One of the most common reasons for objection is repetition. In my experience, if prosecuting officers don't get the answer that they require, then they will attempt to repeat it and/or rephrase it in order to obtain what they consider to be a satisfactory answer. Such attempts should be resisted if necessary by stopping the interview and removing the client from the interview procedure. To call "time out" in this way can, not only assist break up the interview procedure, but also give encouragement to the interviewee that it is not all one way traffic; there is an inevitable tendency for those prosecuting to be over zealous and at times aggressive in an attempt to obtain the compelling evidence that is necessary in order to support their very serious allegations of. Also, it is very important to ensure that questions are properly understood and if a translator is present that questions are posed clearly, unambiguously and free from any technical jargon that may cause confusion and hence result in an incorrect answer. The prosecution will not like (and indeed often object) to the breaking up of interviews but it is very important for the lawyer defending his client to use every tactic that is available. Although the right to remain silent is an important part of some justice systems, in the UK, such a right has been severely curtailed by the Criminal Justice and Public Order Act 1994. This Act permits a court hearing the charge against a suspect to draw such inferences as appear proper from the act of any silence in certain circumstances. Accordingly this right which used to place the entire burden of proof on the prosecution thereby forcing it to find solid evidence linking the accused to the crime (rather than trick or intimidate the accused into incriminating themselves), has been considerably diluted. However, it is still a tactic that should be considered by any solicitor advising in these circumstances.

In this case, following very lengthy interviews, the Chief Officer was granted bail for a period of four months while the Police, together with the MCA, and other relevant authorities investigated further, the background into the incident.

However in the meantime the Chief Officer was kept in the UK for a further week while bail arrangements were formalised. It was only after about a month that he was allowed to fly back to Russia to see his family. When asked to answer bail – four months later, he was asked further detailed questions which this time lasted a mere 10 hours, before once again he was released on a further four months bail. This took him up to the beginning of 2007 during which time he was still under police scrutiny and subject to the bail procedures. Following re-application for bail in January 2007 he was released by order of the Devon & Cornwall Constabulary and allowed to proceed subject to certain conditions, e.g., that he should report as and when required by a UK authority.

Clearly following investigations of the Police and MCA decided that he was no longer a primary witness and/or suspect and as a result it may well be that no further charges will be made. However the point is that he had to spend uncomfortable and substantial time either detained at, or being interviewed in, a UK police centre.

He has also had difficulty obtaining a further job with his crewing company based in Cyprus. Although it is almost certain that no further charges will be brought against this Chief Officer, given the wide powers of the UK police, there is no guarantee that this is the case – particularly as there is no applicable time limit.

Another recent incident in the south west of England occurred onboard a vessel known as the "Overseas Josepha Comeja" which is a 66,000 ton tanker on a delivery voyage to Rotterdam. Whilst passing Bolt Head one of the cadets attacked the Master and knifed him to death in his cabin. The cadet, having committed this terrible deed, jumped overboard and his body has never been recovered – despite extensive searches in the Channel.

Subsequent police investigations centred upon actions of the crew immediately prior to the murder and as a result certain detentions and some serious allegations were made against a number of crew members. Whilst these did not necessarily lead to any conviction or detention in jail (as has often been the case in France, Spain, Pakistan etc.) nevertheless the remaining crew were subject to serious investigations. While this incident is not as serious as the first, nevertheless it does show the extreme powers of the UK police in prosecuting such incidents.

In French jurisdictions matters can be even worse. For example, any sniff of pollution off the French coast will, almost invariably, see a Master being charged for criminal offences under the ferocious Perben II law introduced in 2004. It is not the Master who in the depths of an engine room has unwittingly left a valve cracked open that will leave a trail of oil behind the ship.

However it is the Master who, after the slick has been seen by the spotter aircraft and the ship forcibly diverted into port, may be held responsible for the error of a junior engineer or even the malfunction of an item of engine room equipment.

Such unfair treatment has been in the public eye through cases such as the "Prestige" (off Spain); the "Erika" (off France) and the "Tasman Spirit" (off Pakistan). More recently there has been a case of criminal charges being bought against the German Master of the "Zim Mexico III" which knocked down a container crane and killed a maintenance engineer in the port of Mobile, Alabama in March 2006. This is exactly the sort of situation in which criminal charges ought to have played no part, as it was a genuine accident contributed to by an engineering malfunction in a highly dynamic ship manoeuvring as the ship swung off the berth. Moreover the Master who had a pilot was convicted under a 19 th century law that had little relevance to that situation. The prosecution made much of an earlier malfunction that affected the bow thrusters – but the fact that the ship had successfully used the thrusters more than 50 times since the previous incident was not considered.

Similarly, after the tanker "Nissos Amorgas" grounded in an inadequately trenched and poorly surveyed Maracibo channel – again with pilots on board –the Greek Master was arrested and detained for more than a year after the event.

These high profile cases generally reflect the severe frustration of coastal states when faced with the political need to find someone to blame. In most cases sub-standard, single company vessels are involved where the putative owner has disappeared at the same rate as the stricken vessel. Even if no charges are involved (which is unusual) the Master may be held under the criminal law procedure as a material witness. In these circumstances Masters and other seafarers have been subject to lengthy detention, lack of access to legal counsel or local agents, detailed interrogation and the inability to contact family; at the same time the living conditions while being detained are all part of the unfair treatment that arises even if these states have credible and respectable legal systems. Indeed as indicated above, I have recently dealt with two cases involving allegations of criminality and in both these cases the issue of unfairness and unreasonable implementation of the criminal law has been apparent.

While it would be fair to say that seafarers, in particular Masters and Chief Officers can never be above the law, nevertheless in the current climate it does place an undue and unfair burden on their responsibilities and exposes them to unnecessary pressure in a job that already demands extreme diligence and responsibility.

The answer is probably for ship owners and/or their managing companies and in particular charterers to pay more attention to this difficult area and ensure that adequate and sensible protection is given so that, at the very least, maximum support can be provided, in the event of allegations of criminality.

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.

1st June 2007

Key Contacts

Shipping and Criminalisation in the 21st Century

Introduction