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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