Feature: Just the answer to criminalisation?
In its campaign against the criminalisation of seafarers, shipping is again watching the aviation industry and how it is dealing with a similar problem. Just as Masters and other senior officers have been prosecuted over incidents, principally involving pollution, so pilots, air traffic controllers and maintenance staff have found themselves facing criminal charges following accidents. (While these frontline staff have to date borne the brunt of criminal proceedings, there are signs in both industries prosecutors are beginning to aim higher within organisations in their search for guilty parties.)
The knowledge that a prosecution now virtually automatic in many countries will follow an aviation accident has had a chilling effect on an industry in which safety, given the millions of passengers carried each year, is regarded as paramount. The threat has lead to less transparency and an unwillingness to share safety information that could be used against those providing it.
Aviation is subject to mandatory reporting of incidents such as near-misses, while voluntary internal reporting systems provide airlines and other industry organisations with valuable feedback on safety. The latter, however, are seen by prosecutors as potentially rich veins of incriminatory data. At the same time the threat of prosecution has lead to staff becoming less willing to assist air accident investigators for fear of self-incrimination, despite assurances of confidentiality.
This trend has led to an intense debate within aviation over solutions to the seeming impasse. Some are proposing that voluntary reporting should have legal protection in effect, guaranteed immunity from prosecution. Others say this is naive and is based on the false premise that safety overrides justice. They call instead for closer co-operation between the industry, investigators and the judiciary to produce a clearer and simpler system in which only the most serious incidents can be as treated as criminal offences.
Aviations global regulator, the International Civil Aviation Organisation (ICAO), has taken up the issue and called on member states to back the development of a global organisational framework to protect the providers of sensitive safety data without which ICAO and others will be starved of the information essential to the analysis of such data and to the development of solutions.
Similarly, the European Commission, under its draft plans for a European network of national air accident investigation agencies, wants investigators and prosecutors to agree in advance procedures for ensuring safety information, such as statements by aircraft crew and investigators notes, is only disclosed in exceptional circumstances.
Another proposed solution that has gained increasing support is that of a just culture which has been defined as: A culture in which frontline operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated.”
Just culture, adopted by other industries such as oil and healthcare, is now being promoted in shipping, most notably in a recent publication (The Human Element: a Guide to Human Behaviour in Shipping) from the UKs Maritime and Coastguard Agency (MCA). The guide, which also covers issues such as communications, fatigue and stress, was sponsored by two tanker operators, BP Shipping and Teekay Marine Services, and the Standard P&I Club.
The MCA guide says a just culture is founded on two principles: human error is inevitable and organisations should shape their policies and processes around that fact; and individuals should be accountable for intentional violations of safety procedures or policies.
It requires organisations to develop reporting systems that integrate with a process for individual accountability across the whole organisation. In essence, the organisations culture has to be judged as just by all working within it.
The guide acknowledges that creating a just culture involves difficult challenges and requires unambiguous boardroom commitment and indemnity for incident-reporters against legal proceedings. The former seems the more easily achievable, as the latter would require changes to legislation.
In shipping there are both mandatory and voluntary reporting systems, the former through the International Safety Management (ISM) Code, while the latter are often required by charterers, in particular, oil companies. When the ISM Code was introduced 10 years ago operators were warned of the perils of the paper trail created by the documentation required: to fail to record incidents and non-conformities would be illegal but the paperwork might also reveal a defective safety system that could be used as damning evidence in either civil or criminal prosecutions.
Some will no doubt argue shipping is a different beast from aviation. Yet where aviation leads, shipping often follows: marine accident investigation agencies, for example, were modelled on those in the former. The MCA itself has in recent years been aggressive in seeking criminal prosecutions following marine accidents, although not always successfully.
As in aviation, shipping argues that criminalisation has a detrimental effect on safety. Fear of prosecution, the industry claims, not only drives qualified and experienced officers to quit and take jobs ashore, but also dissuades others from pursuing a career at sea, leaving gaps that can only be filled by promoting less-qualified staff.
Aviation has been criticised for seeking special privileges in order to reduce its exposure to the risk of criminal prosecution. Shipping too has argued for special consideration, arguing in its campaign for fair treatment of seafarers that they are a special category of workers, pointing to the global nature of shipping and their potential exposure to different jurisdictions. The same could be said for airline staff.
And while frontline staff in both industries might regard news that prosecutors are climbing up the corporate ladder in pursuit of those deemed to be responsible for incidents as a better and long overdue example of a just culture, they would be unwise to think it means they will be out of the firing line.
Ultimately, it will depend on the ability and willingness of governments to rebalance the interests of safety and justice, but that may only happen after it has been shown conclusively that safety is suffering from fear of prosecution.
Source: Feature, BIMCO
