Apr2010 - NI HKG

I am writing on behalf of the committee of the Hong Kong Branch of The Nautical Institute to express our deep concern at the recent imprisonment of two masters and two Hong Kong harbour pilots following the collision between the Yao Hai and Neftegaz-67 in Hong Kong waters, with the tragic loss of 18 lives.

Like other members of the maritime community around the world, we have in recent years become increasingly concerned at the growing trend towards the criminalisation of seafarers who are involved in maritime accidents. Until recently, though, many of us were inclined to believe that `criminalisation' was something that only happened in less reputable jurisdictions, and could not happen in a place like Hong Kong with its relatively honest administration, enlightened legal system and highly experienced maritime sector. This case, alas, has shaken our complacency, and forced us to face the fact that such incidents can happen anywhere.

What we have found to be particularly disturbing in this instance is that the way in which such cases are investigated and prosecuted appears to be fundamentally flawed, and the appalling severity of the sentences meted out to seafarers who have suffered an accident when going about their normal business.

Our chief concerns are as follows:

1. The accident investigation carried out by the marine police appears to have been conducted without the benefit of any input from maritime professionals. We have seen no evidence that the police consulted anyone with a maritime background, either in the government or the private sector, with regard to the conduct of their investigation and the gathering of evidence. The evidence appears to have been collected by relatively junior police officers with no specialist knowledge of maritime practice and procedures, and may be flawed as a result.This is not a satisfactory state of affairs when professional seafarers face prosecution and possible imprisonment as a result of those investigations.

2.  The court case itself was a criminal case heard in the district court. The learned judge had no assessors to assist her and, with expert witnesses holding widely different views as to the causes of the collision, she was forced to choose between conflicting interpretations of the facts without professional advice. While we accept that this is normal in criminal cases, there is surely a strong argument in favour of having a maritime case heard in a marine court where the judge can call upon assessors to guide him or her on points of professional concern.Hong Kong is by no means short of local maritime experts who would have been both willing and able to advise the judge, but if the court had been reluctant to use local assessors for fear of conflict of interest, such expertise could also have been easily obtained overseas. The cost of employing maritime experts, such as Elder Brethren of Trinity House, could easily have been recovered, since their assistance would have saved a lot of the time-consuming arguments between counsel which marked this case, and might have considerably shortened the trial.

3.  Of particular concern to the branch is the judge's finding that the area where the collision occurred is a narrow channel, which conflicts with the stated opinion of the Marine Department of the Hong Kong SAR Government that the area is not a narrow channel.

Since the Directorate of Marine is the government authority that regulates Hong Kong waters, and is also the Pilotage Authority for Hong Kong, so the Marine Department examines both pilots and local mariners for their licences or certificates of competency. Mariners and pilots now find themselves in an impossible position, with the Marine Department telling them to conduct themselves as if the area was open water, while the court tells them to treat the area as a narrow channel.Whichever option they choose, they leave themselves liable to punishment should things go wrong. Put simply, they are placed in the difficult position ofhaving to choose between following government directives or obeying the law, and whichever course they choose, their conduct is liable to be seen as an error by someone in authority.

4.  Finally, we are deeply concerned at the sentences imposed. The master of the Neftegaz-67 was sentenced to 38 months' imprisonment. This is more than the penalty that was imposed, in an earlier case, on the coxswain of a smuggling craft who deliberately ran down and sank another vessel, with loss of life, while trying to evade capture by the authorities. The fact that an innocent shipmaster who made a mistake is penalised more than a person who committed a callous act with criminal intent tends to give the unhealthy message that it is the number of lives and the value of the property lost that determines the sentence, rather than the degree of criminality.

One of the senior counsel at the trial, in his plea for mitigation, pointed out that he believed the charge of endangering life at sea is the only one in Hong Kong SAR law under which someone can be imprisoned for a mere error of judgment.

Furthermore, in pleading with the judge not to impose a custodial sentence on any of the defendants, he asked what purpose such a sentence could possibly serve? To imprison them as a punishment would not affect them nearly as much as the punishment they have already received by living through the experience of having caused the death of so many of their shipmates. Indeed, it is doubtful whether any of them will ever be able to return to sea after the trauma of the events.Alternatively, to imprison them in order to reform them would be pointless because they are not criminals, so they do not need to be reformed. Despite this plea, all four defendants were sentenced to terms of imprisonment.The master of Neftegaz-67 has no friends in Hong Kong and the nearest Ukranian consulate is in Beijing. He was the sole breadwinner for his wife, his children and a grandchild, and had a previously unblemished record of more than 25 years of exemplary service.

The senior pilot aboard Yao Hai had a successful career spanning 40 years and was close to retirement. His record was similarly clean before the collision. He was sentenced to three years' imprisonment, which effectively ends his career.

His understudy, who was only assisting the senior pilot as he was not even qualified to pilot a ship of the size of Yao Hai, was sentenced to two years and four months, as was the master of Yao Hai. This master, too, was the sole breadwinner for his family, and was supporting his aged and infirm parents. Now, he may never see his parents again.

The members of this branch have been deeply shocked by this accident. It has claimed the lives of 18 innocent seafarers, and we mourn their loss. Nevertheless, we do not believe that the sentences imposed upon the defendants in this case have done anything to mitigate that loss, indeed they appear to have simply made matters worse. We also do not believe that the deterrent effect, if any, of making an example of these masters and pilots will contribute anything towards maritime safety. Rather, we believe that the ambiguities caused by the learned judge's extraordinary findings will detract from it.

We call upon the international shipping and legal communities to take urgent steps to find a better way of dealing with such tragic accidents in future.

The Hong Kong Branch of The Nautical Institute

Captain Robert Herman MNI, Hon Secretary Hong Kong