Shipping by its very nature is international in character, concerned as it is with ships engaged in transportation of personnel and goods from country to country. International shipping connections are manifestation of global economy and globalization which have an immense impact on the way commercial shipping is conducted. Today, a ship can be financed in one country, owned by a company in another country, flagged in another, while her cargo maybe owned by another set of companies in a different country. Master maybe national of yet another State. Thus whilst serving at sea, seafarers are exposed to a variety of laws and jurisdictions with widely differing standards, legal provisions and penalties. Spate of recent incidents which have gained notoriety through national and international media, has stunned the seafaring community as seafarers are unfairly treated and subjected to indignities on flimsiest of grounds and even imprisoned when they were not even involved and no culpability could be attached to them. Evolving culture in international arena harasses and imprisons Masters of ships at will of local authorities, especially as a Master personifies his ship. Every time there is a marine accident, which may not even involve the ship, first action of local authorities is to arrest or detain her Master. If there is a pollution incident, a collision or stranding which is contributed to by stupidity of a local pilot or inadequacy of traffic control, throw the Master in jail? Thus every thing from a collision to B/L dispute can result in arrest of Master who is then detained as a hostage pending conclusion of legal proceedings. Thus, ship Masters are operating under a very harsh and un-forgiving environment today. This has become worse with concept of “Sister ship” while applying the age old principle of “Maritime Lien.” Ship Masters know well that if their ship has caused a casualty or has been supplied with necessities, she is liable to make good the loss or to remunerate the supplier.
But with this concept of “Sister ship,” a Master safely docked in a a harbor may face arrest because a sister ship has caused damage or has been supplied with necessaries by a supplier in THAT Jurisdiction and has not been paid. Even so and even though a sister ship maybe detained, there seem to have been no cases in which Master of a sister ship has been penalized especially since it was not under his signature that supplies were made. Yet in the past, with compact shipping companies and mainly permanent senior seafarers, a Master knew of every ship in the fleet and would have soon come to know if there was any problem to one of the ships. Today, ship owners operating their fleets under different flags, different names plus prevalent management systems, short term employments and what not, Master may not even know the facts especially since he himself is on short term employment of six months or less and serves different ships of different owners. Legal protection has been envisaged in UN Convention on Law of the Sea, 1982 which has been ratified by 168 world governments. IMO has also adopted many resolutions in important Conventions and Codes, to protect Masters. Article 73 of UNCLOS deals with ‘Enforcement of laws and regulations of coastal State.’ It expressly enjoins:- (i)Arrested vessels and their crews shall be promptly released upon posting of reasonable bond or other security; (ii)Coastal State penalties for violations of fisheries laws and regulations in exclusive economic zone may not include imprisonment in absence of agreements to the contrary by States concerned, or any other form of corporal punishment; (iii)In cases of arrest or detention of foreign vessels, coastal State shall promptly notify flag State, through appropriate channels, of action taken and of any penalties subsequently imposed. IMO Resolution 443(XI) adopted on November 15 1979 invited Governments to ensure that Master is not constrained by ship owner, charterer or any other person from taking any decision which, in his professional judgment, is necessary and that Master is protected from unjustifiable dismissal or unjustified action by ship owner or any other person, as a consequence of proper exercise of his professional judgment. IMO Resolution A 741(18) adopted on November 4 1993, was incorporated in preamble of ISM Code and by reference into new Chapter IX of SOLAS Convention; ISM Code contains a clear statement, emphasizing Master’s authority and responsibility to make decisions with respect to safety and pollution prevention and to request the Company’s assistance as may be required.
Every time there is a marine accident, which may not even involve the ship, first action of local authorities is to arrest or detain her Master
Professional judgment of ship Master is again recognized as “best effort” in new Chapter V of SOLAS titled, “Master’s Discretion for safe Navigation”. Regrettably, despite all this, recent events have amply shown that these safeguards have neither been observed nor are sufficient to protect him. This is illustrated by the following incidents involving Masters: Hull of M.T Erika cracked in Bay of Biscay in December 1999. When off the coast of France, Master of this ship, was refused “port of refuge.” Master acted professionally and managed to save lives of all seafarers on board. Yet Master was briefly jaile id France.Technical Committee of P.I. Clubs returned a finding that primary cause of the disaster was poor state of the Tanker, not incompetence of Master or crew. It may be recalled that this case led to introduction of Mandatory Ship Reporting System. In another case, fully laden super tanker ‘Hebei Spirit’ safely anchored in a designated anchorage was holed
in its cargo tanks as a consequence of parting of tow line of a tug and a crane barge passing nearby. Despite best efforts of Master, and his Chief Officer the crane barge drifted on to and rammed the anchored super tanker, causing much oil to spill into the harbor. Local authorities imposed an ‘exit ban’ on Master, Chief Officer and some crew members to prevent them from leaving port. Courts imposed jail sentences on Master and Chief officer. Fortunately, with support of ship owners, Management agents and backing of shipping fraternity, both officers were allowed to go home after wrongful detention for many months. There are many other cases such as arrest of Konstantinos Spiropolous, Greek Master of tanker M.T. Nissos Amorgas, which grounded in Maracaibo Channel on Feb 28 1997. She struck an under water obstruction while being piloted. Venezuelan Government detained the ship and Master for a prolonged period. Similar detentions were suffered by British Master Captain Donald Shields when his Panama registered VLCC “SEKI” was involved in collision off Fujairah on March 30 1994 and Master of Hongkong registered MV Union which grounded in Kammum Kaikyo, Japan in February 1995. In November 2002, M.T Prestige reported 25 degree list. Master’s request for a port of refuge was declined. Instead she was towed 133 miles out to sea by Spanish authorities. Thus an unarmed merchant ship, in serious trouble and pleading for help, was forced to sink six days later and Master jailed in Spain. VLCC TOSA was on the high seas, on her way from Korea to Singapore under charge of qualified navigating officers at all times. Master left clear night orders in accordance with STCW Convention and that he should be called “if in doubt.” Next morning his ship was accosted by Taiwan Coast UpGuard. They accused the ship of having collided with a Taiwan fishing vessel with loss of two fishermen. When hull of the VLCC was inspected, no trace of a collision was found. Yet the was forced to be diverted to Taiwan from high seas, outside jurisdiction of Taiwan. Yet Watch keeping Second officer, lookout man plus Master were charged with causing death of two fishermen even after media reported that Japanese Coast guard had found that their ship was nowhere near the place where the collision incident was reported to have occurred. They were held up in Taiwan from April 17 2009 From the foregoing cases, it is abundantly clear that evidence in most such cases is either flawed or manipulated by local authorities, with growing tendency to criminalize the Master and other seafarers. This gains credence because of evident flaws in Investigation or expert committee reports which eventually influence their detention and judgment of courts. Elementary principles of natural justice and fair treatment including guidelines of IMO are ignored in favor of technical reports of doubtful validity. Apart from the above, in recent years, shipping industry has been characterized by increasing concern over falling standards of vessel operations, necessitating international maritime rules as evidenced by greater frequency of ship inspections by insurance, chartering and port State interests. IMO has adopted many protocols or Codes which cast greater burden and responsibilities on Master and crew. Net effect is that world merchant fleet is now subject to more inspections than at any time in maritime history. Standards of ship operations vary from highly professional ship owners to unscrupulous owners who disregard even basic requirements of safety and pollution free operations. Fragmentation of shipping industry has impaired position of Master and relationship of seafarers with the ship and shipping company. This has destroyed mutual trust and loyalty which was the hallmark of this relationship. Since 1960’s, many States have sought to assert their economic independence by forming their own shipping companies. Also number of open registries called flags of convenience have increased as ship owners in traditional maritime countries sought flags that were less
demanding from tax point of view and offered more flexibility for employment of cheaper seafarers. Today, most owners leave operation of their ships to ship management companies and manning agencies to supply increasing proportion of seafarers from different jurisdictions. Increased use of Flags of convenience, management companies and manning agencies has weakened the links between seafarers, ships and owners. This adversely affects a seafarer’s loyalty to ship owners and pride in his ship. Owners consider themselves absolved of any legal or moral obligation to look after their seafarers. Unscrupulous ship owners do not even hesitate to abandon Master, officers and crew when there is a mishap or an incident, leaving them to whims and fancy of local authorities especially since they are insured against their financial risks. Thus International Maritime Industry lives in age of open registers, multi national crews and absentee owners. Traditionally, flag state is responsible to ensure that IMO standards and requirements are enforced. Yet increasing diffusion of the industry means that managers, insurers, classification societies and so on, may be outside flag State jurisdiction. It is of greater concern when flag State is relatively new to shipping and has neither knowledge, nor experience or resources of traditional shipping nations. Concerned maritime organizations must bring plight of Seafarers to attention of IMO and world maritime industry, to adopt more suitable measures to ensure that seafarers serving on board merchant ships, are treated with dignity and respect at all times and in the event of a mishap occurring on board or at sea, they are not unduly harassed or unjustifiably detained. They must have basic human rights of life, liberty and security of person. Legal protection available under UNCLOS and guidelines issued by IMO or ILO must be duly observed. Local authorities must not just rush for handcuffs before finding out what happened, what went wrong, what harm or damage has been caused and who is responsible? Fair laws must support good practices. National parliament in Canada passed a law in 2005 making pollution incident a criminal offence regardless of whether there was any “willful misconduct”. Similar legislation has been passed in European Union. In the case of MV Full City pollution incident in South Korea in late 2007, ship’s crew could not leave Korea for 18-months and were in prison for some of the time. Shipping industry can not attract high quality officers and engineers if it cannot protect them. Problem of treatment of seafarers must be taken up for discussion and remedial action.