NAUTICAL INSTITUTE HONG KONG BRANCH PANEL DEBATE
"Criminalisation of Seafarers"
22 November 2018
“This house believes that the criminalisation of seafarers is unjust”
This was the title of a debate organised by the Hong Kong branch as their contribution to Hong Kong Maritime Week in November. Despite a large number of competing events, there was a sizeable audience for the debate, ably moderated by Arthur Bowring FNI.
Speaking for the motion were committee member and barrister James McGowan MNI and local ITF Inspector Jason Lam. They were opposed by Andrew Rigden Green, a partner with Stephenson Harwood, and committee member John Wilson FNI of SCBMCS who bravely stepped in at the last moment to replace a speaker who had to travel overseas.
Mr. Bowring began by calling for a vote on the motion and, perhaps not surprisingly, supporters outnumbered opposers by a wide margin.
James McGowan opened by pointing out that criminalisation can mean different things. He accepted that there must be rules which govern our behaviour. His objection was to the way certain mariners have been pursued using criminal laws as a result of simply doing their jobs – the Prestige being a prime example.
He also cited cases where seafarers have been put in a vulnerable position by their employers, and denied the support of P&I Clubs or other agencies which could advise them. Finally, he called for the establishment of proper legal practices internationally, so people are no longer punished for simply doing their jobs or deprived of their legal protections.
Jason Lam agreed that there were some legitimate prosecutions, but argued that many were not. A recent survey ad indicated the vast majority of seafarers involved in criminal cases had no legal representation and were not aware of their rights, especially the right not to incriminate themselves. Such people are often trapped on board or in jail without bail, and remain unpaid. In addition there is no uniformity, so the same law is applied differently in different countries.
Opposing the motion, Andrew Rigden Green assured us he was not immune to the emotional side of the argument, but seafarers should not be able to avoid responsibility simply because they do a difficult job. He pointed out that the purposes of the criminal law are retribution, deterrence, removing people who are a danger to society, rehabilitation and restoration. Concentrating on the first two, he questioned whether a Community Service Order was sufficient punishment for a captain who caused a massive oil spill when under the influence of alcohol. He also asked how we would deter others from committing criminal acts if there was no threat of prosecution. Recent guidelines offer a measure of protection for seafarers, but he agreed such seafarers are often not supported by their employers. A more vigourous defence by owners who stand behind their employees might reduce the severity of sentences.
John Wilson compared certificates of competency to driving licenses. When we hold a license we are trained to obey the rules and if we still break them we deserve to be punished. A punishment for speeding is similar to a breach of shipping rules; it would be unfair if one were punished and the other were not. Many seafarers are blinded by emotion, but if laws are broken then we, as highly-paid professionals, should be accountable. This is not unjust – it is fair and proper.
The debate was then opened to the floor, and there were a number of audience comments – generally in support of the motion. One quoted a senior barrister as claiming the charge of Endangering the Life of Others at Sea (a favourite in Hong Kong) is the only charge he is aware of where you can be sent to prison for an error of judgement. Other criminal charges require some intent or knowledge, but seafarers can be imprisoned for merely having an accident.
Another suggested that criminal proceedings should not commence until the local Marine Investigation is completed, so courts would have the benefit of sound maritime advice before they start a case. A third mentioned a local case where the courts had reached a completely different conclusion on liability from the investigations – both local and Flag State.
After other lively comments, the teams were invited to make their closing submissions.
Summarising in support of the motion, it was stressed that criminal charges often target individuals for matters beyond their control such as actions ordered by their employers. In addition, the courts do not understand the significance and consequences of factors such as fatigue or stress. For criminalisation of seafarers to be just, the courts must recognise the unique nature of the job and take it into account at all stages of the process.
In rebuttal, the opposition pointed out that the proposers were focusing on emotive issues and ignoring the many prosecutions which were just and proper. They stressed that criminalisation itself is not unjust, even if some courts sometimes get things wrong. If seafarers were not subject to criminal sanctions then crimes would increase and professional behaviour would diminish. The fact that officers study maritime and environmental law when gaining their certificates of competency, and learn of the potential for penalties to be imposed if such laws are broken, was also mentioned.
When Mr. Bowring called for another vote, there was still a healthy majority in favour of the motion, but the opposition vote had actually increased. A victory for everyone who took part, perhaps?
Before we turned our attention to the food and drink provided, there was time to thank our hosts, Stephenson Harwood, for providing the venue.
James McGowan, on behalf of the Nautical Institute, reminded everyone of the avenues available in Hong Kong for mariners who find themselves arrested or facing the prospect of criminalisation.
There are several organisations which can and will assist, yet we still learn of mariners who are held on remand in Hong Kong for many months because they have nobody to apply for bail on their behalf or care for them and provide legal advice.
As so often in cases of maritime peril, it is the Mission to Seafarers which is the first point of contact. Anyone who knows of any seafarer requiring assistance should contact the Senior Chaplain, the Rev. Canon Stephen Miller, at firstname.lastname@example.org or in writing at The Mariner’s Club, 2 Container Port Road, Kwai Chung, New Territories, Hong Kong.