Fair treatment of seafarers-One step forward,two steps back
The International Maritime Organization (IMO) and the International Labour Organization (ILO) joined by industry, marine labour and legal groups came together in 2005 in an “Ad Hoc Expert Working Group on the Fair Treatment of Seafarers” to address the trend to “criminalise” the ship’s master and crew following marine casualties.The use of criminal law following marine accidents was particularly acute in pollution incidents.
Guidelines on the fair treatment of seafarers
One of the most notorious examples of unfair treatment was the arrest and immediate incarceration of Captain Mangouras by the Spanish authorities following the PRESTIGE casualty and resulting oil spill. The Working Group efforts culminated in the Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident, adopted by the IMO and ILO in 2006.
The guidelines recognise the seafarer as a special category of worker requiring protection to ensure their fair treatment and well-being following a maritime accident.
The guidelines are “soft law” in that they are not mandatory but are instead internationally recognised recommendations that address “due process” rights, as well as seafarers’ welfare, during detentions for investigation of maritime accidents.
Since seafarers will most often be foreigners in the jurisdictions where accidents occur, a key goal of the Guidelines is to limit detention following an accident to no longer than necessary for port or coastal states to proceed with investigations expeditiously.
The state is to “ensure that a process is available for posting a reasonable bond or other financial security to allow for release and repatriation of the detained seafarer pending resolution of any investigatory or judicial process”.So, in the years since their adoption have the Guidelines influenced the action of states following marine casualties?
It is impossible to say to what extent the Guidelines are known and brought to the attention of the relevant authority in any particular case.Moreover, it would be difficult to find those cases where the Guidelines have been applied since these are not the cases that grab the headlines. What can be said,however, is that the use of criminal law against crew, particularly in pollution cases, has not abated. In its report to the IMO Legal Committee in November 2010 BIMCO concludes that most laws that are applied to seafarers are fair but “there is an unfortunate pattern of fair laws being applied unfairly incident either on a presumption of criminal negligence or as financial security”.
Following his arrest, Captain Mangouras was held in prison for 83 days until bail in the amount of EUR 3 million was posted by the vessel owner’s P&I Club. The Spanish investigating judge justified the amount of the bail based in part on the “public outcry” caused by the pollution and his judgment was affirmed by the Spanish Constitutional Court and in turn the European Court of Human Rights.
European Court of Human Rights In September 2010, the Grand Chamber of the European Court of Human Rights upheld the bail amount despite it being utterly beyond the personal means of the Captain.
”The working group efforts culminated in the guidelines on the fair treatment of seafarers in the event of a marine accident”
The Grand Chamber by majority opinion held that the absurdly high bail did not violate Captain Mangouras’ rights under Article 5 Section 3 of the Convention on the Protection of Human Rights and Fundamental Freedoms which provides for speedy trial or pre-trial release that “may be conditioned by guarantees to appear for trial”. The majority specifically relied on the trends within the European Union to treat marine accidents that result in pollution under criminal law as “new realities to be taken into account in interpreting Article 5 Section 3”.
Many of the same industry groups that participated in the drafting of the Guidelines also participated as Third Party Interveners.
The Interveners pointed out that Article 230 of the United Nations Convention on Law of the Sea (UNCLOS) bars coastal states from imposing sanctions, other than monetary penalties, for pollution offences by foreign vessels beyond their territorial waters. The PRESTIGE spill occurred within the Spanish Exclusive Economic Zone but outside territorial waters.The Interveners brought to the Grand Chamber’s attention both the BIMCO report and the Guidelines, but no mention was made by the Grand Chamber of the “reasonable bail” requirement within the Guidelines.
The net result of the decision is that seamen may be held before trial against a bail amount that reflects the environmental impact of the accident rather than the seamen’s individual financial ability to meet the bail. This is without any assessment of individual responsibility and despite the fact that UNCLOS provides only for monetary penalties in spills that occur outside territorial waters.
The Grand Chamber decision was ten to seven and the particularly robust wording of the dissenting opinion is telling. It is understood that the nature of the clear and detailed dissent is unusual and indicative of a strongly divided Grand Chamber.
The dissenters found that the bail violated Captain Mangouras’ human rights as it was based on the potential amount of the loss rather than his personal circumstances. Regarding the “new realities” referred to by the majority, the dissenters stated that, even if these new realities have
to be taken into account in interpreting the requirements of Article 5 3, the seriousness of the alleged offence can not be the decisive factor justifying the size of the bail. Nor should the environmental damage justify the setting of bail at a level that renders illusory the applicant’s ability to secure his release from custody.
Following his arrest, Captain Mangouras was held in prison for 83 days until bail in the amount of EUR 3 million was posted by the vessel owner’s P&I Club
The opinion is perhaps best reflected by its concluding paragraph,which states: “The majority conclude by stating that sufficient account was taken by the Spanish courts of the applicant’s personal situation and that,in view of the disastrous environmental and economic consequences of the oil spill, the courts were justified in taking into account the seriousness of the offences in question and the amount of the loss imputed to the applicant. We disagree.
In our view, the approach of the Spanish courts in fixing the applicant’s bail was not compatible with the principles established by the Court under Article 5 3 of the Convention, the fundamental purpose of which is to ensure that no one is arbitrarily deprived of his liberty.” Although released on bail and at home in Greece, Captain Mangouras is still obliged to report regularly to the local police station and, over eight years since the incident, still awaits trial.
Discriminatory application of criminal law
At the IMO Legal Committee meeting in November 2010, the Comité Maritime International joined by the International Group of P&I Clubs, BIMCO, the International Chamber of Shipping, the International Shipping Federation, the International Transport Workers’ Federation and INTERTANKO presented a paper that re-emphasised the discriminatory application of criminal law to seafarers.
The CMI submission pointed out that in addition to the failure of certain states to comply with the Guidelines, many states are apparently also failing to comply with their binding treaty obligations under UNCLOS. In essence, there have been occasions when the possibility of a custodial penalty should have been ruled out under international law (Art. 230 of UNCLOS) with the result that there was inadequate justification for preventing the defendants from leaving the jurisdiction, let alone detaining them in any form of custody.
It was suggested that in an attempt to circumvent the provisions of Article 230 of UNCLOS, seafarers have been seen to be vulnerable to other artificially-brought “holding” charges, which are unrelated to pollution but which carry a custodial sentence.
The CMI invited the Legal Committee to consider raising awareness of the provisions of Art. 230, highlighting its effect and importance to those countries that are party to UNCLOS and encouraging compliance with countries’ obligations under international law.
Finally, all the groups supporting the paper echoed the concern expressed by BIMCO in relation to the adverse impact the mistreatment of seafarers will inevitably have upon recruitment and retention of seafarers and, as a result, upon the safety of shipping generally.
So, are we moving forward or backward to secure the rights of seamen following a marine casualty? If the IMO/ILO Guidelines represent a step forward, the recent decision by the Grand Chamber of the European Court of Human Rights constitutes two steps back.
This article has initially been published at Gard News issue 202