June2009 - NI HKG

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Hong Kong
                                           
Criminalisation of seafarers-
                                           
Looking after the crew
                                           
A total of 57 members and  guests attended this presentation. The speaker was Harry Hirst,  Partner, Ince & Co. He spent 14 years at sea  with Mobil Shipping Company Ltd serving on ship ranging in size from 3,000 to  300,000 dwt before moving ashore and qualifying as a solicitor. Harry is a  Fellow of the Institute and a past Chairman of the Hong Kong Branch.
                                           
 Recent high profile casualties involving  detention and imprisonment of masters and crew have drawn attention again to  the seafarer’s exposure to criminal action. Harry’s  presentation looked at some of the problems that this creates and what  measures can be taken to deal with them.
                                           
  The key point were:
                                           
·          Casualties  which involve pollution and/or injury normally result in investigations by  the marine safety authorities and the maritime police. Such investigations  may run in parallel. Therefore it is important to know which interview is  underway and the purpose/consequences of that interview.
                                           
·          In all cases,  criminal law requires specialist local advice. Selection of the best lawyer(who may not necessarily be a marine lawyer) who  knows the local criminal laws is essential.
                                           
·          Mobilisation and  industry support is essential to get mariners freed in criminal cases. This  must include the support of flag state, government as well as industry  bodies.
                                           
·          For the shipowner, allocation of additional manpower and  resources, such as relief masters and additional superintendents at the  scene, are essential to make sure that the case can be handled quickly and  efficiently. The investigating bodies have immense power and have little or  no concern for the ship’s operational requirements when they begin interviews  and take statements. This can take many days, which will exhaust the crew  under investigation and prevent them from carrying out their normal duties.  Support arrangements for the crew are essential including legal, moral,  family and financial.
                                           
·          Two types of  interviews apply. There are
                                                                                                                           
witness’  statements in which legal representation is not guaranteed. This may be  followed by ‘suspect’ interviews, in which legal representation is normally  guaranteed (interviews under caution). Crew should be aware that in some  jurisdictions, the refusal to co-operate with the witness statements or to  request a lawyer to be present, may be considered as  an admission of guilt.
                                           
·          If the merits  of the case are clear and simple to understand then is easier to defend the  crew against criminal liability. However complex cases involving perhaps oil  spillage and damage are more difficult because the general public always feel  that someone must be to blame. It is always easy to find a scapegoat when the  vessel is foreign-owned, crewed and flagged. Owners should not expect fair  treatment or the application of natural justice.
                                           
·          Swift action by  the insurers to start the claims process is essential to get public opinion  behind the shipowner.
                                           
·          The role of the  prosecutor is to determine if an offence has been committed, decide if the  crew is to be arrested and , if necessary, bring the  case against the crew.
                                           
·          The last point  made by Harry was:’ Who is going to pay?’ He  explained that P&I club cover does not include the cost of criminal  charges against seafarers. The club ‘omnibus’ rule may cover it but on a case  by case basis and certainly requiring board approval. He asked owners and  managers to keep in mind that a substantial legal bill perhaps exceeding  millions of USD$ will have to be settled at some stage and this may only be  recoverable at later date, if at all.

                                                                                                                                               
    Graham Cowling FNI                                                               Seaways June 2009
                               
                                                                                       
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The Nautical Institute Hong Kong Branch
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Kwai Chung N.T. Hong Kong S.A.R  P.R. China
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10 October 2018
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