Innocent Until Proven Guilty – or Not?
I would like to share with you the story of the fight for due process and fair treatment for ship owners, operators and more importantly our people, our seafarers. In a tragic accident, the Captain of the M/V ZIM Mexico 3 called Mobile Bay, Alabama. She was under the command of a local pilot and while manoeuvring hit a shore-crane and the electrician working on that crane was killed. The Coast Guard investigated the accident, they took statements and then the ship was free to depart as was the master. He took the ship back to the Caribbean, came back to the United States, back to the Caribbean, back to the United States. On the vessel;s 17th or 18th return visit to the United States, the Captain was arrested, handcuffed and dragged down the gangway in front of his crew and arrested.
Traditionally in United States in order to be guilty of a crime there has to be an intention, but that’s not so necessarily for public health and welfare statutes. The seaman’s manslaughter act is specific to our industry and means that if any person working on board the ship makes a simple mistake in act of negligence and someone dies, they can be convicted of seaman’s manslaughter; a felony in United States that carries both fine and a term of imprisonment in up to 10 years; this is a long time. It is not just the individual but also the owner or the Charter or inspectors that can be criminally liable too if they make a mistake that leads to a death.
Let’s turn to something not quite so obvious; the US codification of the MARPOL Treaty is called the Act to Prevent Pollution from Ships (APPS) . This is a public health and welfare statute. Actually, the Coast Guard and the American government have never prosecuted an apps violation for actual active pollution in US waters; the actual crime is the failure to maintain inaccurate oil record book while in US waters.
Let’s talk about a hypothetical case where you’re in the office on Friday night 5:45 and you are ready to leave to meet your wife then a call comes from the ship to inform you that there is a problem; last night an oiler and a second engineer pumped out five cubic meters of oily bilge water in the middle of the ocean- so what you do? Do you cover it up and say nothing? Do you make a notification? How about writing in the oil record book that last night a second engineering pumped five cubic meters avoiding bilge water directly to the sea because it felt nice?. Now it’s not a US crime because you have an accurate oil record book. But when you call US waters, the Coast Guard is not so straightforward; the tricks are dirty and can be a big trap to snare you if you’re not aware what happens. That same false oil record book or inaccurate or a record book is charged not just as apps violation(s), but also as a false statement and as obstruction of justice because you tried to fool the inspector, three felony counts; same underlying act. If the chief engineer tells the second engineer: ‘don’t say anything,’ then you have additional charges for things such as witness tampering and conspiracy.
In my view, it’s not about the environment, but rather a big money grab; the cases that we’re talking about are all about fines and penalties and not to protect the sea. Actions speak louder than words; the US government has collected almost 300 million dollars in MARPOL fines – that’s more than a quarter of billion dollars. How much has been reinvested in infrastructure, how many reception facilities have been built? The answer is zero so obviously it’s a money grab. But how do they get the money? The seafarer doesn’t have it. The US government proceeds under the theory of “vicarious liablity’ and the legal definition is that a seafarer needs to be working within the course and scope of their employment and for the benefit of their employer. The Coast Guard says any act is in the course and scope with the seafarer’s employment because it happens on the ship and it’s always for the benefit of the employer because it saves time and saves money.
All of the successful prosecutions are based on information from a whistleblower – the guy who comes and says there’s bad stuff happening on board; check your EMS and SMS. All bad acts were supposed to be reported to your DPA or your hotline but they don’t and they call the US Coast Guard. Why? Because there is a reward incentive. The government pays out up the half the fine collected. Let’s talk about it in real numbers; OSG paid $37 million dollars, EVERGREEN paid $25 million, MSC$11 million plus. So if you take that money divided in half, when you may go back to the Philippines, you’re the new king of Manila.
Just a few final points for the lessons learned and what not to do. The first thing what not to do is panic don’t panic take a deep breath these things are all manageable. Don’t just plead guilty because it’s easier and don’t make the traditional mistake of sending someone to fix it. It doesn’t work! Sure enough he is going be accused of tampering with witnesses, telling witnesses what to say, maybe lying, disposing of records and flanges and hoses or what have – the cover-up is always worse than the crime. As a practical note, don’t ever allow crew members to be harshly disciplined or fired on the way to the United States.
What to do? Have good systems in place, make sure they are robust and make sure that living breathing policies are in action because, cooperate with the Coast Guard when it’s appropriate, make a voluntary report about what’s happening on board your ship. I’ve never seen the Coast Guard coming after you when you’ve made a voluntary report. There are some tricks to doing it and some protocols to be followed but again it depends on the facts and circumstances of the matter.
The US version of MARPOL says that any ship unreasonably detained or delayed is entitled to compensation for any losses and damage suffered. That’s pretty powerful stuff it’s never been tested, will owners and operators really receive money from the Coast Guard or the US government? We don’t know, maybe it’s coming. Another lesson learned: check your employment contract don’t give away jurisdiction by having seafarer’s employment contracts signed by the management company for and on behalf of the owner. A final thought is to check your corporate structure; every owner has a single-purpose entity for each ship in the fleet. But yet you expose yourself because you trade the whole fleet under one document of compliance. If you get convicted of wrongdoing in America either by way of a plea deal or a guilty finding by a jury the whole fleet is going to be subjected to a compliance plan. This is very expensive and onerous. Consequently, we suggest serious consideration to be given to setting up your structure with a ‘one ship/one document of compliance’ arrangement in place.
Above article is an edited version of George Chalos presentation during 2014 SAFETY4SEA Forum
More details may be found by viewing his Presentation video