Criminalization of Seafarers: Boon or Bane to Shipping By Rogelio Estrada Villanueva Jr.

Abstract One of the hottest issues making the headlines these days is the increasing trend to criminalize ship-source pollution. This paper attempts to present the issue of criminalization of pollution incidents from the seafarers perspective. This undertaking is further supplemented by the background of the writer as coming from a Coast Guard organization whose functions include inter alia maritime law enforcement and marine casualty investigation. Introduction The topic of criminalization for pollution acts is a relatively new one, hence the absence to date of an international regulatory regime to govern such incidents. Against such background, the dilemma of imputing a criminal value for violators of environmental and pollution laws are presented. The legal preconditions, natural elements of a criminal act and possible conflicts with existing regulations and customary international law are also worth examining. Despite the obvious lack of an international framework for the effective and uniform application of criminal sanctions for pollution offenders, criminal charges have not been a rarity, as provided in examples, probably due to the inherent peculiarities of individual legal jurisdictions. Brevity considered, this paper outlines some of the most conspicuous reasons why current initiatives to criminalize ship-source pollution is not only unjustified but also ludicrous. Now more than ever, in the history of maritime profession, the seafarer who serves as the heart of shipping operations faces his most serious threat. Prosecute crewmembers A most recent and controversial issue in the maritime scene is the increasing tendency to prosecute crewmembers in the aftermath of casualty incidents, the most notable of which are the Prestige and the Tasman Spirit incidents. This issue has been further highlighted by efforts currently being undertaken within the European Union to introduce a Directive effectively applying criminal sanctions for ship-source pollution1 This has been approved by the EU transport ministers and will be subject to approval by the European Parliament later this year. Once passed into law, EU member States will be obliged to implement measures to ensure that infringements are subject to effective, proportionate and dissuasive sanctions2. Such legislation is necessary at the first instance to provide a legal framework from which criminal sanctions could be applied for offences related to marine pollution activities. Any legislation for this matter should be carefully drafted so as to preclude any legal uncertainty arising from possible conflicts of law especially for those dealing with marine environmental protection under UNCLOS and MARPOL. At present, international law does not provide for any penal provisions relating to marine pollution. In particular, UNCLOS, Article 230, paragraph 2 states that, Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a
See The Commission proposes criminal sanctions for polluting ships , Retrieved 28 August 2004 at http://emsa.eu.int/end183d001.html 2 See EU ministers back criminalizing polluters , Fairplay, 24 June 2004 at http://www.fairplay.com . See also UNCLOS, Article 211, para 2 which states that States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.
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wilful and serious act of pollution in the territorial sea. It is therefore necessary that any new law to be passed should not run counter to existing legal instruments which may have already acquired the status of customary international law.3 Legally speaking, for an act to be adjudged criminal, the vital element of mens rea4 should be present. Therefore, intention is a prerequisite before a person is charged criminally. This has been the practice and requirement under the regime of general criminal statutes in the United States. The basic notion of which was not to criminalize conduct absent a showing of evil intent or motive or that which would be traditionally considered a civil wrong, addressed by civil remedies5. However, it is also important to note that there have been environmental statutes in the United States like the Clean Water Act and the Refuse Act which have applied the notion of strict liability. It is necessary to know the rationale behind these statutes in order to understand the reason behind the promotion of criminal liability for violations of environmental statutes. Historically, these environmental statutes originated from the so-called public welfare statutes which required sanctions permitting maximum protection for the general public. Thus, any person may be charged criminally even when he is unaware that his or her conduct violated a law or regulation6. Criminalization The subject of criminalization for ship-source environmental pollution is not a novel concept especially in the United States. Cases where masters or crews have been charged criminally include: KATINA P at Mozambique, HAVEN, Italy, ERIKA, France, NISSOS AMORGOS, Venezuela, FREJA JUTLANDIC, United States, PRESTIGE, Spain and TASMAN SPIRIT in Pakistan7. There are other elements which may have a bearing on the criminal culpability of a person such as the degree of negligence, recklessness and knowing conduct. Thus a violator may be criminally charged under both regimes of environmental statutes and the general criminal statutes. Captain Hazelwood of EXXON VALDEZ was charged under environmental statutes for negligent discharge of oil and under Alaskan general criminal statute for criminal mischief, reckless endangerment and operating a vessel while intoxicated. What is blatantly alarming is the increasing tendency to institutionalize the concept of criminalization for environmental pollution minus the necessary elements. There are a number of reasons why such criminalization is unjustified. With the increasing trend to criminalize pollution acts, the master and the crews are left on the frontline. The focus of criminal liability progresses from the crewmembers to the shipowning corporation, operator, manager and ultimately to the corporate officers who are hiding behind their corporate veils. This is evidenced by the extreme difficulty to identify the beneficial ownership of shipowning companies8. Secondly, criminalization is only being used to strengthen the bargaining position of the State pursuing the investigation. This has been done in the Tasman Spirit where the crews have been used as pawns in the virtual endgame battle for more financial compensation especially from the P&I Clubs. Thirdly, Administrations are using the issue of criminalization to deflect the more important political questions particularly those relating to their own responsibility for preventing the pollution incident.
See UNCLOS, Article 230, para 2 which states , Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea 4 Mens rea is defined as the state of mind indicating culpability which is required by statute as an element of a crime. See http://www.law.cornell.edu/lexicon/mens_rea.htm 5 See Michael Chalos, The Criminalization of Maritime Accidents at http://www.frclaw.com/publications/publications1.htm 6 Ibid 7 Ibid 8 From the Maritime Labour Issues lecture of Sharon James, Senior Section Assistant Seafarers Section, International Transport Workers Federation, 27 August 2004, World Maritime University, Malm, Sweden.
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Such issues may include the liability of the Administration to put up adequate aids to navigation or dredging perhaps. It is also a posture taken by Administrations to demonstrate determination to take firm action in response to public outrage to a pollution incident. Another reason is that this practice may lead to abuse of authority and lack of observance of the generally accepted principles of human rights. Occasionally there is a presumption of guilt even prior to the conduct of a formal investigation. Ships are detained and crew members held for unreasonably long periods of time under despicable conditions. Capt. Mangouras of M/T Prestige is still detained in Spain after almost two years. The Karachi eight have been allowed to post bail only after one year in custody and only after tremendous pressure from the international community. Another major point against the imposition of criminal sanctions is that this will act as a disincentive9 for further recruitment of seafarers into the profession10. What could be more frightening to a lowly seafarer trying to earn a decent living than to imagine himself being locked up for years in an unknown land for a crime he may not have personally committed or has no knowledge or control of. With the tremendous rise in economic and shipping activity, any drastic reduction in the supply of seafarers will result to reduced shipping services and an escalation in freight rates thereby hurting the entire industry11. Perhaps the greatest repercussion will be the discouragement for fostering a culture of transparency and of learning from mistakes12. In the Bow Mariner incident last February 2004, surviving crew members refused to provide information to Coast Guard accident investigators for fear of incriminating themselves and incurring criminal prosecution13. The objective of achieving environmental protection will be defeated when seafarers begin to hide their mistakes for fear of criminal sanctions, thereby making dangerous accidents ultimately inevitable14. Clearly, this is contrary to the principles underlined in the International Safety Management Code (ISM Code) for the reporting of near-misses and accidents. Conclusion It is therefore necessary that before regulators proceed any further in institutionalizing criminal sanctions on seafarers for pollution offences, a careful balance has to be made between the need to throw the book on violators who pollute our oceans arising from any wilful misconduct, gross negligence or criminal intent and the need to protect the rights and interests of our seafarers upon whom the movement of 90% of the worlds goods depend.

References Chalos, M. (2001). The Criminalization of Maritime Accidents. Online: http://www.frclaw.com/publications/publications1.htm. Accessed on: 29 August 2004) Coming soon (2004 February 5). Fairplay, Online: http://www.fairplay.com. (Accessed on 28 August 2004) Donner, P. (2004). Maritime labour. Lectures notes, World Maritime University, Malm, Sweden. EU ministers back criminalizing polluters. (2004 June 24) Fairplay. Online: http://www.fairplay.com (Accessed on 29 August 2004)
9 The effects will be varied from one State to another. In developing countries such as the Philippines where jobs are difficult to find and where seafaring provides a most attractive source of livelihood, the effect of criminalization may be very minimal compared to other labour-supplying States. 10 See EU ministers back criminalizing polluters , Fairplay, 24 June 2004 at http://www.fairplay.com. 11 See Seafarers on the brink , Fairplay, 15 January 2004 at http://www.fairplay.com where it even says that In Korea, nobody wants to go to sea these days. 12 See Shipping accused of original sin , Fairplay, 21 August 2003 at http://www.fairplay.com 13 See How survivors have become human pawans in legal games , Michael Grey, Lloyds List, 05 April 2004. 14 See Industry balks at criminal sanctions , Fairplay, 28 August 2003 at http://www.fairplay.com

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EU pollution sanctions illegal. (2003, October 10). Fairplay. Online: (Accessed on 29 August 2004).

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EU sympathetic to industry concerns. (2003 August 18). Online: Fairplay. http://www.fairplay.com (Accessed on: 29 August 2004) European Commission, Maritime Safety Agency (EMSA). (2004). The Commission proposes criminal sanctions for polluting ships. Online: http://emsa.eu.int/end183d001.html. (Accessed on 28 August 2004) European Commission. Maritime Transport. Water Protection and Management. (2003). Maritime safety: Ship-source pollution and the introduction of criminal sanctions. Online: http://www.europa.eu.int/scadplus/leg/en/lvb/l24123.htm (Accessed 28 August 2004) Grey, M. (2004, April 5). How survivors have become human pawans in legal games. Lloyds List. Online: http://www.lloydslist.com. (Accessed 29 August 2004). Industry balks at criminal sanctions. (2003, August 28). Fairplay. Online: http://www.fairplay.com. (Accessed 28 August 2004) Mejia, M. (2004). Occupational safety and health. Lectures notes, World Maritime University, Malm, Sweden. MEPs adopt tougher sanctions. (2004, 13 January). Fairplay, Online: http://www.fairplay.com (Accessed on 29 August 2004). Mukherjee, P.K. (2003). Maritime Law. Lecture notes, World Maritime University, Malm, Sweden. Seafarers on the brink. (2004 January 15) Fairplay. Online: (http://www.fairplay.com (Accessed on 29 August 2004) Shipping accused of original sin. (2003, August 21) http://www.fairplay.com. (Accessed on 28 August 2004). Fairplay. August 2003, Online:

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