Fair Treatment of Seafarers November 2018

Fair Treatment of Seafarers

S1. Seafarer Respondents’ Background Information

S2. Seafarers Facing Criminal Charges

S3. Seafarers as Witnesses in a Criminal Prosecution

S4. Seafarers’ Colleagues Facing Criminal Charges

S5. Seafarers’ Views

S6. Seafarers’ Suggestions

INTRODUCTION

INTRODUCTION

Foreword

The practice of charging masters and ships’ officers, as well as other crew members, with criminal offences has attracted widespread attention in recent years, both within and beyond the shipping industry. Concern has focused in particular on a number of high- profile harsh cases in the wake of pollution incidents. The use of the term “criminalization” in this context is perhaps an emotive one, but it reflects a widespread concern across the shipping industry that seafarers in particular, but also the wider shipping industry, are being unfairly targeted by prosecutors.

For seafarers, the risk of facing criminal charges is an ever present one. Ships routinely operate within and across different national jurisdictions. Indeed, the average ship spends a greater part of its time in areas that are beyond the jurisdiction of any specific state. Being subject to diverse criminal laws on a daily basis is not a situation that many workers have to face. In the circumstances, the need for seafarers to be able to rely on safeguards in criminal procedures, and defences in criminal laws, is high, whether they are facing criminal charges or in some other way implicated in a criminal prosecution.

Seafarers’ Rights International (SRI) is a research centre dedicated to advancing the rights of seafarers. One of the cornerstones of its work is risks and safeguards for seafarers facing criminal charges. There appears to be patchy research only available on the numbers of prosecutions taken by states against seafarers, the outcomes of such prosecutions, and the numbers of seafarers in jail or facing criminal charges at any given time. During 2011 to 2012, SRI undertook a survey to find out from seafarers themselves first, their experiences if they had faced criminal charges, been witnesses in criminal prosecutions, or if they knew of colleagues who had faced criminal charges; and secondly, seafarers were specifically asked about their views and suggestions.

The findings in the survey raise a number of significant issues.

If seafarers commit criminal offences then they deserve to be punished. But what the SRI survey highlights is the frequent lack of due process for those who face criminal charges. Seafarers are complaining of unfair treatment, intimidation and a lack of legal representation and interpretation services. They are saying that they are not going to cooperate with accident investigations and casualty inquiries because they are worried they will end up on the wrong side of the law just by trying to be helpful. This is where it becomes totally counter-productive if seafarers feel and say they are being regarded with suspicion.

There are copious amounts of national and international regulations which define, and then attempt to enforce the regulatory framework of the maritime industry. Many of these regulations are criminal in nature or effect. There is also a large body of international legal rules and recommended practices designed to ensure protections for all persons facing criminal charges, including seafarers.

The Guidelines on Fair Treatment of Seafarers in the event of a Maritime

Accident (the Guidelines) seek to ensure some uniformity in the treatment of seafarers ‘following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary’. The Guidelines now must be read in the light of the Casualty Investigation Code which contains provisions on Obtaining Evidence from Seafarers, and which became mandatory through the Safety of Life at Sea Convention. Used in conjunction with the Guidelines, and with due account taken of the United Nations Convention on the Law of the Sea, arguably there should be adequate protection in place for seafarers involved in maritime casualties. And more protection is provided by the Maritime Labour Convention 2006 which entered into force on 20 August 2013.

It might appear therefore that there is a relatively comprehensive and wide ranging body of protective measures that should mitigate the effects of criminal sanctions on seafarers throughout the world. But the existence of international and national rules cannot, in itself, ensure fair treatment. The reality remains rather more complex, being heavily dependent upon the willingness of individual states to recognise, implement and give full effect to the various conventions, guidelines and codes. There are few sanctions other than that of negative publicity for those states which prefer to treat seafarers harshly. Industry organisations and seafarers’ organisations themselves clearly need to keep a close eye on the situation to highlight any unfair treatment on seafarers’ behalf.

Today it is widely observed that global shipping has an image problem. It is not seen as an obvious career choice for today’s talented younger generation. Too frequently it has a bad image; perhaps worse, it has no image.

Criminalization is not rampant in the maritime industry. And seafarers are continuing to go to sea. But the fear of criminal charges amongst seafarers is both real and sincere. And while it can be argued that statistically the chances of such a fate befalling any seafarer remain very low indeed, perception is a powerful driver. The consequences are already apparent in that otherwise ambitious and well-qualified officers are declining promotion to senior ranks believing that this would leave them more exposed to

the risks of prosecution and a subsequent criminal conviction. There are documented cases of senior officers electing to terminate their careers because of a brush with the law, or deciding to seek alternative employment that would leave them less vulnerable to criminal prosecution.

The prospect of criminal charges is daunting for any human being, whether in their own country or even more so in a foreign country, and so it is for seafarers, entering foreign ports on a daily basis. For them, the risks are high and the consequences can be dire if fair and due process is not followed. The SRI survey has brought the seafarers’ concerns to the fore and it is hoped that it will create momentum amongst stakeholders - seafarers’ organisations, employers, regulators and non-governmental bodies, in addition to seafarers themselves - to better address the unfair treatment of seafarers. It seems that much remains to be done to protect this body of essential workers from unfairness and injustice but the effort is essential not only for the protection of serving seafarers, but also to improve the image of the profession for new recruits to come.

In the following pages, the Executive Summary is confined to significant results from the survey. Should the reader find these interesting, they are invited to read the Main Findings, where the issues are set out more fully, including the views and suggestions of seafarers themselves. The Legal Commentary discusses important legal rights of seafarers facing charges, or being witnesses in criminal prosecutions. The report contains a short Conclusion.

I would like to thank the team of multidisciplinary experts who were involved in the drafting of the questionnaire, the piloting and gathering of questionnaires, and the analysis of, and commentary on, the responses to the questionnaire.

Deirdre Fitzpatrick Executive Director Seafarers’ Rights International

The importance of the seafarer

There is a huge gap between how seafarers are recognised and appreciated for the role they play in society, and how much they are relied upon. Today, we all depend on seafarers for most of the things we take for granted in our everyday life. Over one million seafarers around the world are operating a global shipping fleet, yet they bring both the essentials and luxuries of life to billions of people. Shipping is essential to the world and shipping is the most energy efficient mode of mass transportation. But there would be no shipping without the seafarers.

Seafarers are often described as “an invisible workforce”. And yet when accidents and incidents occur, all too often they become visible for the wrong reasons. In a number of high-profile cases, seafarers have been detained or imprisoned, often facing criminal charges, being deprived of their liberty and badly treated, without having faced trial or being able to respond to the accusation made against them; which is not fair, especially when the seafarer’s actions are dictated by events outside their immediate control.

It was not long ago, in 2006, that IMO adopted Guidelines on fair treatment of Seafarers in the event of a maritime accident. The Guidelines were developed by the Joint Working Group on the subject, with the International Labour Organisation. The Guidelines apply to all instances where seafarers may be detained by public authorities in the event of maritime accident, defined as “any unforeseen occurrence or physical event connected to the navigation, operations, manoeuvring or handling of ships which may result in the detention of seafarers.” The Guidelines are provided to port and the coastal state, and the flag state, seafarer’s state and the ship owners and seafarers themselves.

Seafarers are recognised as a special category of workers. And given the global nature of the shipping industry and different jurisdictions that they may be brought into contact with, they need special protection, especially in relation to contact with the public authorities. Therefore, the objective of the guidelines is to ensure that seafarers are treated fairly following a maritime accident and during any investigation under detention by public authorities, and that detention is for no longer than necessary. A company resolution to the Guidelines, which was adopted by the IMO Legal Committee in 2006 and by the International Labour Organisation the same year, invited member governments to implement the Guidelines as from 1st July 2006.

Since then, the International Transport Workers’ Federation and Seafarers’ Rights International have developed guidance on how to implement these Guidelines, and a number of countries have incorporated the Guidelines in their national legislation. This has given the seafarers a much needed level of legal protection that they both need and deserve, and it is my sincere hope that many more countries will follow suit.

Kitack Lim Secretary General, IMO

Taken from his address at the SRI International Workshop on the Fair Treatment of Seafarers, 23 June 2017

Background to the Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident

In January 2001, the ILO (International Labour Organization) Joint Maritime Committee, a bipartite body formed by representatives of seafarers and ship owners’ organisations, noted with deep concern that in the event of maritime accidents, some administrations had placed seafarers, in particular Masters, under arrest before any investigation had taken place and while the seafarers concerned were still in a state of deep distress. The Joint Maritime Committee requested the ILO Director General to bring this issue to the attention of ILO member states and advise the Secretary-General of IMO of the action taken. This request had been endorsed by the ILO governing body, in March 2001.

As a result, in January 2004 the ILO High-Level Tripartite Working Group on Maritime Labour Standards requested the Director General of the ILO to raise the issue of the growing problem of criminalisation of seafarers following a maritime casualty, with the Secretary-General of the International Maritime Organisation, with a view to promoting an appropriate response. This resulted in the Legal Committee of the IMO considering the problem of the fair treatment of seafarers and the endorsement of the proposal to establish a Joint IMO-ILO Ad Hoc Working Group for the development of guidelines on this issue. This proposal had then been endorsed by the ILO governing body.

This Joint ILO-IMO Ad Hoc Expert Working Group produced draft guidelines, which were then adopted by the IMO and the ILO respective bodies in 2006. Since then, the fair treatment of seafarers has continued to remain on the agenda of the Legal Committee of the IMO, who has promoted the wide dissemination of the guidelines and encouraged its harmonious application.

The issue of the fair treatment of seafarers has also been addressed in some of the provisions of the more recently adopted Maritime Labour Convention 2006, in particular paragraph 2 and 3 of Guideline B4.4.6 on Seafarers in a foreign port. According to its paragraph 2, “Seafarers who are detained in a foreign port should be dealt with promptly and under due process of law and with appropriate consular protection.” Under its paragraph 3, “Whenever a seafarer is detained for any reason in the territory of a member, the competent authority should, if the seafarer so requests, immediately inform the flag state and the state of nationality of the seafarer. The competent authority should promptly inform the seafarer of the right to make such a request and the state of nationality of the seafarer should promptly notify the seafarer’s next of kin. The competent authority should allow consular officers of these states to have immediate access to the seafarer and to have regular visits thereafter so long as the seafarer is detained.”

Today, the Maritime Labour Convention 2006 has been ratified by 84 member states, which do represent around 90% of the world fleet, and therefore constitutes a powerful tool to continue to improve the fair treatment of seafarers, and which can ideally and powerfully and hopefully usefully complement the action undertaken to implement the Guidelines.

Corrine Vargha Director, International Labour Standards Department, ILO

Taken from her address at the SRI International Workshop on the Fair Treatment of Seafarers, 23 June, 2017

EXECUTIVE SUMMARY

EXECUTIVE

Introduction

During February 2011 to February 2012, Seafarers’ Rights International (SRI) conducted a survey of seafarers concerning their experiences of facing criminal charges or being a witness in a criminal prosecution, and colleagues they knew who had faced criminal charges. Seafarers were also asked about their views, and their suggestions for improving the situation when seafarers face criminal charges.

The survey was conducted in the context of the promotion of the Guidelines on Fair Treatment of Seafarers in the event of a Maritime Accident adopted by the International Maritime Organization (IMO) and the International Labour Organization (ILO) in 2006, as well as a number of high profile cases concerning alleged ‘criminalization’ of seafarers.

Methodology

Adraft questionnaire was piloted and then produced in eight languages: Chinese, English, Japanese, Portuguese, Russian, Spanish, Tagalog and Turkish. The questionnaires were distributed to the main seafarers’ centres around the world, where they were displayed along with posters inviting seafarers to participate. To increase the response rate, administered surveys were conducted with seafarers in the Philippines, and also some of the major seafarers’ training institutions in the United Kingdom.

3480 valid questionnaires were returned from 18 countries. These countries were Belgium, Brazil, Canada, China, France, Germany, India, Indonesia, Japan, Malaysia, Norway, Philippines, Russia, Spain, Turkey, Ukraine, the United Kingdom and the United States of America.

Weighting

In order to achieve a random and representative survey, the responses to the questionnaire were weighted using the same country proportions of seafarers as contained in the BIMCO/ISF Manpower 2005 Update. The preliminary weights of the survey sample were then adjusted through a process of poststratification to incorporate new observations as contained in the BIMCO/ISF Manpower 2010 Update. The results reported are the weighted data sets where appropriate. As a demographically weighted sample, the survey results can be treated as a random and representative sample of seafarers from the whole world.

Analysis

The findings in this report are based on the analysis of the 3480 valid returned questionnaires. Data from completed questionnaires was entered into the computer-based statistical package SPSS; R software was used to produce the descriptive and explanatory analysis of the weighted sample. Qualitative data collected via open ended questions was

either grouped or recoded into sub-categories for further analysis. In this report, only significant results from the survey are highlighted where clear patterns and trends emerge in the data. Where there were insufficient responses to a question, no conclusions were drawn since these would not have been reliable.

Main Findings

Incidence of criminal prosecutions

1. Of the seafarers who participated in the survey, 8.27% had faced criminal charges; 3.94% had been witnesses in criminal prosecutions; and 32.77% knew of colleagues who had faced criminal charges.

2. Of the seafarers who had faced criminal charges and who gave their ranks during the incident, 23.33% (the highest proportion) had faced criminal charges when serving as masters; 1.59% (the lowest proportion) were oilers when they faced criminal charges.

3. From these statistics it can be calculated that the odds ratio of a seafarer facing criminal charges is 18.87 times higher if the seafarer is a master than if he is an oiler.

4. Of the seafarers who had faced criminal charges and who answered the question, 67.03% had the charges dropped; 32.97% were convicted of the actual charge or a lesser charge.

5. In multi-level probit models, it is found that being in the rank of master is one of the most important determinants of the probability of facing criminal charges, and of being convicted.

Searches

6. Of the seafarers who had faced criminal charges and who answered the question, 44.28% of vessels and 63.75% of cabins were searched without warrants; and 43.55% of seafarers were bodily searched, which is 29.24% of all seafarers who had faced criminal charges who were bodily searched.

Fair criminal process

7. Of the seafarers who had faced criminal charges and who answered the question, 9.79% did have legal representation; 90.21% did not have legal representation. Thus a seafarer taken at random from all seafarers who had faced criminal charges, is 1.72 times more likely not to have legal representation than to have legal representation.

8. In multi-level probit models, having legal representation is one of the most important determinants of the probability of not being convicted of a charge.

9. Of the seafarers who had faced criminal charges and who needed interpretation services, 8.80% were provided with interpretation services; 91.20% were not provided with interpretation services.

10. Of the seafarers who had faced criminal charges and who answered the question, 11.40% did have their legal rights explained; 88.60% did not have their legal rights explained to them, which is 61.73% of all seafarers who had faced criminal charges who did not have their legal rights explained to them.

Fair treatment as an accused

11. Of the seafarers who had faced criminal charges and who answered the question, 18.75% considered that they had been treated fairly; 81.25% considered that they had not been treated fairly, which is 61.01 % of all seafarers who had faced criminal charges considered that they had not been treated fairly.

Intimidated or threatened as an accused

12. Of the seafarers who had faced criminal charges and who answered the question, 20.00% did not feel intimidated or threatened; 80.00% felt they were intimidated or threatened, which is 57.76% of all seafarers who had faced criminal charges felt they were intimated or threatened.

Fair treatment as a witness

13. Of the seafarers who had been witnesses in a prosecution and who answered the question, 43.42% considered that they had been treated fairly, 56.58% considered that they had not been treated fairly.

Intimidated or threatened as a witness

14. Of the seafarers who had been witnesses in a prosecution and who answered the question, 24.49% considered that they had been intimidated or threatened; 75.51 % did not consider they had been intimidated or threatened.

Seafarers’ concerns about criminal prosecution

15. Of the seafarers who answered the question, 85.04% were concerned about criminal charges. This is 73.65% of all seafarers who participated in the survey.

Reluctance to cooperate with casualty inquiries and accident investigators

16. Seafarers were asked whether they would feel reluctant to cooperate fully and openly with casualty inquiries and accident investigators. Of the seafarers who answered the question, 46.44% stated that they would be reluctant to cooperate fully with casualty inquiries and accident investigations; 53.56% would not be reluctant to cooperate fully and openly.

Seafarers’ views and suggestions

17. Under the Main Findings in the report, the views and suggestions of seafarers in relation to criminal charges are described. These are not reproduced here in the Executive Summary, and the reader is directed to these relevant sections of the report for further details of seafarers’ views and suggestions.

SECTION 1

SEAFARER RESPONDENTS’ BACKGROUND INFORMATION

Age distribution of seafarer respondents

There were 3480 seafarers who participated in the survey. Of these, 3339 seafarers reported their ages. The seafarer respondents had the following age distribution.

TABLE 1.1 AGE DISTRIBUTION

The average age of seafarer respondents was 37 years; the oldest seafarer was 78 years, and the youngest seafarer was 18 years. Most seafarers were in the age group 30 to 35 years (25.60%); or 24 to 29 years (18.56%).

Nationalities of seafarer respondents

Seafarers who answered the question on nationality had the following distribution (top 20 nationalities).

TABLE 1.2 DISTRIBUTION OF NATIONALITIES

Gender of seafarer respondents

In the survey, 3418 (98.93%) seafarer respondents were male, and 37 (1.07%) were female.

TABLE 1.3 DISTRIBUTION OF GENDERS

Employment status of seafarer respondents

Of the seafarer respondents, 435 seafarers (51.85%) were serving seafarers; 333 seafarers (39.69%) were on leave; and 71 seafarers (8.46%) were either retired or used to be a seafarer.

TABLE 1.4 DISTRIBUTION OF EMPLOYMENT STATUS

SECTION 2

SEAFARERS FACING CRIMINAL CHARGES

Number of seafarers who faced criminal charges

There were 277 seafarers (8.27%) in the survey, of 37 different nationalities, who had faced criminal charges.

Nature of charges faced by seafarers

Seafarers were asked about the nature of charges they had faced. Their answers were grouped into various categories as follows (top 20 charges).

TABLE 2.2 NATURE OF CHARGES

2.3

Ranks of seafarers charged

The ranks of seafarers at the time they faced criminal charges were compared with the total number of seafarer respondents in specific ranks. Masters were the highest proportion charged. 23.33% of masters in the survey had faced criminal charges. This compared with electrical engineer officers who were the second highest rank facing criminal charges (15.52%), and for example 3rd officers (10.35%), chief engineers (10.00%) and oilers (1.59%).

TABLE 2.3 RANKS OF SEAFARERS CHARGED

2.4

The odds ratios of masters and other ranks

2.4 The odds ratios of masters being charged as opposed to other ranks are that a master is 18.87 times more likely to be charged than an oiler; and for example is 4.01 times more likely to be charged than a 2nd engineer; and 1.66 times more likely to be charged than an electrical engineer officer.

Place where incident happened

Incidents in respect of which seafarers faced criminal charges were reported as having occurred in port, territorial seas, on high seas, on shore and in inland waters. Below is the distribution of the answers to this question in the survey.

TABLE 2.5 PLACE OF INCIDENT

Thus for example a seafarer selected at random from the seafarers who participated in the survey is approximately 53.56 times more likely to have experienced a maritime incident in port than in inland waters.

Vessel searches in relation to criminal charges

There were 89 seafarers who had faced criminal charges who reported that their vessel was searched. Of the 89 seafarers, 59 seafarers reported when the vessel was searched.

TABLE 2.7 VESSEL SEARCHES

Vessel searches Before Immigration/customs During Immigration/customs After Immigration/customs

Cabin searches in relation to criminal charges

There were 95 seafarers who had faced criminal charges who reported that their cabin was searched. Of these, 80 seafarers reported information on whether their cabin was searched with or without a warrant.

TABLE 2.8 CABIN SEARCHES

Body searches in relation to criminal charges

There were 81 seafarers who had faced criminal charges who reported that they were bodily searched. Of the 81 seafarers, 58 seafarers reported when they were bodily searched. 43.55% of seafarers who had faced criminal charges and who answered the question were bodily searched, which is 29.24% of all seafarers who had faced criminal charges.

TABLE 2.9 BODY SEARCHES

Legal representation

Of the seafarers who had faced criminal charges and who answered the question, 19 seafarers (9.79%) did have legal representation; 175 seafarers (90.21%) did not have legal representation. Thus, a seafarer taken at random from all seafarers who had faced criminal charges is 1.72 times more likely not to have legal representation than to have legal representation.

Fair treatment

Of the seafarers who had faced criminal charges and who answered the question, 39 seafarers (18.75%) considered that they had been treated fairly; 169 seafarers (81.25%) considered that they had not been treated fairly, which is 61.01% of all seafarers who had faced criminal charges considered that they had not been treated fairly.

TABLE 2.11 FAIR TREATMENT

A seafarer taken at random from all the seafarers who had faced criminal charges was 4.33 times more likely to have been treated unfairly than to have been treated fairly.

Some seafarers explained why they considered that they did not receive fair treatment. Seafarers said, for example:

“They didn’t tell us anything about our rights and they treated us like criminals directly;”

“Accused with no explanation;”

“They threw me and yelled at me;”

“I have saved the lives of my entire crew and there wasn’t any casualty neither leaking. But I was treated like an enemy of the nation;”

“Accused with no explanation. Personal belongings, private letters etc carried off ship by lawyers.”

Intimidation or threats

Of the seafarers who had faced criminal charges and who answered the question, 160 seafarers (80.00%) considered that they had been intimidated or threatened, which is 57.76% of charged seafarers who considered they had been intimidated or threatened; 40 seafarers (20.00%) did not consider they had been intimidated or threatened.

TABLE

2.14

INTIMIDATED OR THREATENED

A seafarer taken at random from the charged seafarer population is 4.00 times more likely to be intimidated or threatened than not.

Some seafarers explained why they felt intimidated or threatened. Seafarers said, for example:

“They put gun to our heads, I thought they were going to kill us;”

“I was threatened with words;”

“They tortured us physiologically;”

“They said that you would be either deported or put in prison, there were language difficulties too;”

“I didn’t know what would happen to me; foreign country, foreign system.”

Legal rights explained

Of the seafarers who had faced criminal charges and who answered the question, 22 seafarers (11.40%) did have their legal rights explained; 171 seafarers (88.60%) did not have their legal rights explained, which is 61.73% of charged seafarers who did not have their legal rights explained to them.

TABLE 2.17 LEGAL RIGHTS EXPLAINED

A seafarer taken at random from the charged seafarer population is 7.77 times more likely not to have their legal rights explained than to have their rights explained.

Several respondents described how their rights were explained:

“They explained to me that he had the right to counsel and if he could not afford, and there would be a Government lawyer to defend me;”

“They explain that we have right to have a lawyer and we can refuse to answer when we are not well (in illness);”

“By union;”

“By means of reading a booklet that was given by Customs.”

Interpretation services

Of the seafarers who had faced criminal charges and who needed interpretation services, 11 seafarers (8.80%) were provided with interpretation services; 114 seafarers (91.20%) were not. 77 seafarers did not need interpretation services.

TABLE 2.20 INTERPRETER PROVIDED

A seafarer taken at random from the charged seafarer population who needed interpretation services is 10.36 times more likely not to have interpretation services than to have such services.

Outcome of criminal charges

Seafarers reported on the outcomes of the charges they faced. 124 seafarers (67.03%) had their charges dropped. 48 seafarers were convicted and fined; 7 seafarers were convicted and imprisoned; and 6 seafarers were convicted of a lesser charge (total 32.97%).

TABLE 2.22 OUTCOMES OF CHARGES

SECTION 3

3.1 3.2 3.3 3.4 3.5

SEAFARERS AS WITNESSES IN A CRIMINAL PROSECUTION

Number of seafarer witnesses

There were 112 seafarers (3.94%) in the survey who had been witnesses in criminal prosecutions of their seafarer colleagues.

Nature of criminal prosecutions

The nature of the criminal prosecutions in which the seafarers had appeared as witnesses were grouped into various categories. In order of frequency mentioned, these were: (1) pollution; (2) murder; (3) fatal accident; (4) incident(s) occurring on-board, for example, fire or smuggling; (5) witnessing accidents ashore, for example, road traffic accident; (6) ship sinking; (7) crew member(s) disappearing ashore; (8) incidents related to seafarers’ relatives; and (9) sexual offences.

Ranks of seafarer witnesses

There were insufficient responses to the question on ranks of seafarers who appeared as witnesses in criminal prosecutions, and no conclusions were drawn since these would not have been reliable.

Place where incident happened

Incidents in respect of which seafarers appeared as witnesses were reported as having occurred in port, territorial seas, on high seas, on shore and in inland waters. Below is the distribution of the answers to this question in the survey.

Stopped from sailing because of being a witness

Of the seafarers who appeared as witnesses in criminal prosecutions, and who answered the question, 49 seafarers (57.65%) were stopped from sailing because of being a witness; 36 seafarers (42.35%) were not stopped from sailing.

TABLE 3.4 PLACE OF INCIDENT

Fair treatment as a witness

Of the seafarers who had been witnesses in a criminal prosecution and who answered the question, 33 seafarers (43.42%) considered that they had been treated fairly; 43 seafarers (56.58%) considered that they had not been treated fairly.

TABLE 3.6 FAIR TREATMENT

A seafarer taken at random from the seafarers who had appeared as a witness in a criminal prosecution of a seafarer colleague is 1.30 times more likely to be treated unfairly than to be treated fairly.

Some seafarers explained why they considered that they did not receive fair treatment as a witness. Seafarers said, for example:

“We were also treated as a... gang member;”

“The smuggling search ranged from crew personal belongings, and all the activities on board had to stop;”

“I was treated like everything was my fault.”

Intimidated or threatened as a witness

Of the seafarers who had been witnesses in a criminal prosecution and who answered the question, 12 seafarers (24.49%) considered that they had been intimidated or threatened; 37 seafarers (75.51%) did not consider they had been intimidated or threatened.

TABLE 3.9 INTIMIDATED OR THREATENED

Some seafarers explained why they felt intimidated or threatened as witnesses. Seafarers said, for example:

“We informed the police about the missing seafarer but were treated like criminals…;”

“Intimidated slightly due to language barrier & unsure of actual proceedings;”

“They were leading me.”

Legal rights explained

Of the seafarers who had been witnesses in a criminal prosecution and who answered the question, 23 seafarers (28.75%) reported that they did have their rights explained; 57 seafarers (71.25%) reported that they did not have their rights explained.

TABLE 3.11 LEGAL RIGHTS EXPLAINED

A seafarer taken at random from the seafarer population is 2.48 times more likely not to have their legal rights explained when appearing as a witness than to have their rights explained.

Interpretation services

Of the seafarers who had been witnesses in a criminal prosecution and who needed interpretation services, 28 seafarers (58.33%) were provided interpretation services; 20 seafarers (41.67%) were not provided interpretation services. 43 seafarers did not need interpretation services. Therefore almost half of seafarers who needed interpretation services were not provided with them.

TABLE 3.13 INTERPRETER PROVIDED

SECTION 4

SEAFARERS’ COLLEAGUES FACING CRIMINAL CHARGES

There were 940 seafarers (32.77%) in the survey who knew of colleagues who had faced criminal charges. The figure is 3.39 times higher than the number of seafarers who reported that they themselves had faced criminal charges.

Nature of charges

Seafarers were asked to describe the charges faced by their colleagues. Their answers were grouped into various categories as follows (top 20 charges).

TABLE

4.2

NATURE OF CHARGES FACED BY COLLEAGUES

Ranks of seafarers’ colleagues

The ranks of the seafarers’ colleagues who faced criminal charges are listed below. The rank most frequently reported was the master. The percentage of masters who colleagues reported had faced criminal charges was for example 3.73 times higher than the able seaman who was the second highest rank reported by colleagues.

TABLE

4.3

RANKS OF SEAFARERS’ COLLEAGUES WHO FACED CRIMINAL CHARGES

Place where incident happened

A very high percentage of seafarers’ colleagues incidents were reported to have happened in ports (48.21%). 27.68% were at territorial seas, and 15.40% were at high seas. A seafarer taken at random from seafarers who participated in the survey was 68.59 times more likely to know a colleague who had faced a criminal charge in port than on shore.

TABLE 4.4 PLACE OF INCIDENT

Situation faced by colleagues before trial

There were 450 replies to the question whether after criminal charges were brought against the seafarers’ colleagues, but before trial, the colleagues were jailed and/ or prohibited from leaving the country, or faced any other restriction. From the replies, 275 colleagues (61.11%) were jailed, and 154 colleagues (34.22%) were prohibited from leaving the country.

TABLE 4.5 SITUATION BEFORE TRIAL

Outcome of charges against colleagues

Seafarers reported on the outcomes of the charges their colleagues had faced. 234 seafarers’ colleagues (49.47%) had their charges dropped; 128 seafarers’ colleagues were imprisoned; 69 seafarers’ colleagues were fined; and 12 seafarers’ colleagues were convicted of a lesser charge.

TABLE 4.6 OUTCOMES OF COLLEAGUES’ CHARGES

In relation to seafarers’ colleagues who were convicted and imprisoned, the shortest sentence that a colleague was reported to have faced was 7 days, and the longest was for above 5 years.

SECTION 5

SEAFARERS’ VIEWS

Concerns about criminal charges

Seafarers were asked if they are concerned about criminal charges being brought against them, and the reasons for their concerns. Of those who answered the question, 2563 seafarers (85.04%) said that they are concerned about criminal charges, which is 73.65% of all seafarers who participated in the survey. A seafarer taken at random from all seafarers who participated in the survey is 5.69 times more likely to be concerned about criminal charges, than not.

Reasons for concerns

The main reasons why seafarers are concerned about criminal charges may be grouped into two categories: (1) scapegoating of seafarers; and (2) increase in number of criminal charges against seafarers.

Scapegoating of seafarers

Seafarers said, for example:

“With the increased amount of criminal charges being brought against seafarers, the chances of seafarers being made a scapegoat to cover up powerful parties involved have increased;”

“We have become soft targets by countries who just wish to put the blame on us;”

“We are used as scapegoats by foreign countries to help them appear to be tough on crimes;”

“Charges are often brought too quickly before a proper and thorough investigation has been completed;”

“There is a prejudice against seafarers; hence they are treated with a bias after the charges are placed;”

“This is the only industry in which a person is fined for criminal prosecution, when in his whole life he has been a totally law abiding citizen, and for something that probably was no mistake of his;”

“There will be more seafarers in prison than any other occupation;” “Many events are not caused with any intention of causing harm but happen due to unavoidable circumstances;”

“Seafarers are often treated as scapegoats and the potential punishments are heavily excessive;”

“People need to be accountable for their actions, but sometimes people are scapegoats to bring an incident quickly;”

5.5 5.6 5.7

“In most cases the seafarers are used as scapegoats and someone has to take the blame and all too often it’s the little person who takes the fall, especially when huge corporations are involved;”

“We seem to be scapegoats.”

Increase in number of criminal charges against seafarers

5.4 Seafarers said, for example:

“You can be charged for anything;”

“Seafarers are becoming more and more liable to prosecution;”

“Increased regulations - different state regulations and environmental regulations;”

“Rules are getting tighter;”

“The cases seem to increase;”

“With the growing attention of the international community on issues such as safety, security, environmental protection, the living environment of the crew changes.”

Reasons why seafarers are not concerned about criminal charges

The main reasons why seafarers are not concerned about criminal charges may be grouped into two categories: (1) seafarers’ trust in the professional discharge of their duty to avoid criminal charges; and (2) guilty seafarers deserve to be charged.

Trust in the professional discharge of their duties

Seafarers said, for example:

“I feel as long as I do my job professionally and work for it professionally I am safe;”

“As a seaman, I think of my job. I avoid trouble;”

“Because everybody knows what is right and wrong and there should be nothing to fear if you are just doing the right things;”

Guilty seafarers deserve to be charged

Seafarers said, for example:

“If you commit a crime you have to expect to face the consequences;”

5.8

“If you break the law then you should be subject to punishment;”

“If any seafarer is engaged in criminal activity, he should face its consequences;”

“If allegations are true, then I believe the seafarer know and understood possible consequences prior to committing the crime, and can take responsibility;”

“I believe if laws have been broken by a seafarer charges should be applied;”

“Face the consequence of your crime, if guilty;”

“If they are really guilty of something, then they should face the consequences;”

“Because if they commit any offense, they should face the consequences;”

“If you have knowingly broken the law tough cookies no one to blame but yourself.”

Most likely criminal charges

Seafarers were asked what they think are the most likely criminal charges they would face. Over half of seafarers who responded to the question considered pollution incidents to be the greatest risk, followed by collision incidents, and drugs found on board.

TABLE 5.8 MOST LIKELY CRIMINAL CHARGES

5.9

Casualty inquiries and accident investigations

5.10

Seafarers reluctant to cooperate

Seafarers were asked whether they would feel reluctant to cooperate fully and openly with casualty inquiries and accident investigators. Of the seafarers who answered the question, 46.44% stated that they would be reluctant to cooperate fully and openly with casualty inquiries and accident investigators; 53.56% would not be reluctant to cooperate fully and openly. The main reasons why seafarers would be reluctant to cooperate fully and openly with casualty inquiries and accident investigators may be grouped into three categories; (1) concern about being implicated in a crime; (2) mistrust of the authorities; and (3) prejudicial affect upon their employment.

Concern about being implicated

5.11

Seafarers said, for example:

“The information that I would provide might be used against me;”

“I would fear incriminating myself;”

“Anything you say can be used as evidence against you;”

“No, I was not involved, I was not responsible, if I intervened, I might also be accused and involved through no fault of my own;”

“I might be implicated in the case;”

“I might end up implicated and lose my job;”

“The investigation might result in having me as a witness or worse, I might be implicated in the case;”

“We might get implicated if we got involved in the investigation;”

“You might be involved in the case or be implicated by those who are being investigated;”

“I would be concerned about self-implication and my future employment prospects;”

“The information that I would provide might be used against me;”

“Sometimes you try to cooperate, you will be [in] trouble later;”

“Because I do not want to get involved. I might be charged as well;”

“They might come after me next.”

Mistrust of the authorities

Seafarers said, for example: 5.12 5.13

Seafarers said, for example:

“They try to trick you all the time. No cooperation with them;”

“Who wants to talk to them, they are there to accuse you;”

“Accidents investigation doesn’t know what really happened but they report in the way they feel like ignoring seafarer’s statement;”

“We should be taught how to answer because we might end up being pinned. Instead of just giving clarification to what happened, I might be made into the culprit or a witness;”

“We don’t know how they really think, if they are serious in asking questions or just trying to catch who they would charge;”

“We always cooperated but shore people always want to catch us and want to satisfy their interest;”

“Usually authorities believe that it’s the crew which is to blame if anything happens;”

“They would likely be looking for a way to cover the company and make you look like the culprit;”

“They consider us guilty why should I cooperate with them;”

“The reason to not to cooperate fully is because the investigator will listen only [to] what they want to and not rely on all facts given by seafarers;”

“The authorities always try to hold the crew responsible for shore side negligence;”

“The ‘blame’ culture that exists nowadays always tends to stall at the ship/ seafarers with shore personnel taking no responsibilities;”

“It is dangerous to speak to police and investigators without fully understanding what legal rights I have and do not have in a particular country.”

Prejudicial affect upon their employment

“It might destroy my job;”

“You might be fired or become embroiled in the case;”

“I might end up implicated and lose my job;”

5.14

“They say that cooperation is vital to investigations but you can still lose your job through cooperation;”

“Because it might lead to my non-employment onboard ships if I get involved in the case. What I should do is just mind myself;”

“Yes, we would like to help people. But we have to take a lot of risk (risk of not having a job or losing it, our family and our life). And we are not sure if others would also be willing to help us;”

“It gets in the way of my work;”

“It depends because it might affect my work as it could take months for investigation to terminate;”

“You will just be distracted from your work and you might get involved later;” “The investigation takes time so it disrupts work.”

Seafarers willing to cooperate

The main reasons why seafarers would be willing to cooperate fully and openly with casualty inquiries and accident investigators may be grouped into three categories: (1) to prevent future accidents; (2) to uncover the truth; and (3) to fulfil seafarers’ responsibilities to other seafarers and shipowners.

To prevent future accidents

5.15

Seafarers said, for example:

“You need to fully cooperate to prevent future accidents;”

“You have to be open and honest to find out exactly what happened so people and yourself can learn from the mistakes;”

“Yes in order to avoid casualties at the sea;”

“We should cooperate to avoid further accidents as we learn from incidents mistakes;”

“Outcomes of inquiry could develop safer practices;”

“Telling the truth about accidents will only help to prevent similar accidents of industries. As the old saying goes, learn from mistakes;”

“If my cooperation would save a seafarer life and career then I would be pleased to do it.”

5.16

To uncover the truth

Seafarers said, for example:

“To dig out the truth;”

“You don’t need to feel reluctant to cooperate as long as you see the truth then tell them the truth because the truth will set you free and everybody as well;”

“Whatever happens the truth needs to be told to stop it from happening again;”

“Truth prevails over money, corruption etc at all times, so that innocent people are not criminalised;”

“There should not be any reason for reservation if it is for the truth;”

“We have to give them true fact what we know;”

“Telling the truth is key to preventing sea disasters;”

“So that the truth may be uncovered and the guilty ones will be punished;”

“One has to tell the truth to gain justice;”

“Yes if I am part of the ship’s complement, I will cooperate in the investigation to uncover the truth;”

“I would cooperate fully because I feel that it is important to find the truth and who is responsible.”

To fulfil seafarers’ responsibilities

5.17

Seafarers said, for example:

“To be of help to my seafarer-colleagues;”

“Yes if it could help a seafarer in being proved not guilty;”

“Would like to justify the case on behalf of owners/seafarers;”

“We should help each other for our own good;”

“We need to help each other. The situation could worsen if you [do] not cooperate.”

SECTION 6

6.1 6.2 6.3 6.4 S6.

SEAFARERS’ SUGGESTIONS

Seafarers were asked for their suggestions for improving the situation when seafarers face criminal charges. There were 1359 valid answers which were grouped into categories.

Categories

In a major category, many seafarers accepted that they are responsible for their own actions, and that they should ensure that their actions are always lawful. Also they expressed a deep concern to protect the image of their industry.

More information

However, other answers concerning improving the situation of seafarers facing criminal charges may be grouped as categories requesting: (1) more information, knowledge, awareness, education, training and guidance about the rights and privileges of seafarers when conducting themselves as defendants, complainants or witnesses; (2) good and free legal representation for seafarers when facing criminal charges; (3) fair process and fair treatment for seafarers when facing criminal charges; (4) a greater network of support from governments, the maritime industry, trade unions, and international organizations; and (5) more uniform laws and procedures given the wide range of different crimes to which seafarers are exposed. Seafarers said, for example:

“We need to be told clearly what our rights are. It is impossible to know everything even lawyers do not know about the areas and they are specialised;”

“Seafarers are not aware about countries laws. They should learn more before they come to the port;”

“We should be given adequate information about these [criminal charges and rights];”

“Crew should be made more aware about the laws and criminal offences that is most likely occurring in different countries of the world. They should be briefed about the consequences they can face if they commit any such crime;”

“More information about criminal charges (to make seafarers aware of all charges and avoid conducting any criminal offence which seafarers are unaware of);”

“Before we go on board or work as seafarers, we first should know our rights;”

“Before boarding a ship, seafarers should be given education and orientation on laws of other countries where they are going so that they are not ignorant of them;”

“Seafarers should be given strict orientation on what to do and not do when outside the country;”

“The pre-departure orientation seminar should be revisited and improved. Seafarers should be informed and made aware of their rights;”

“There should be a pre-departure seminar about this. Seafarers should be fully educated before embarking on seafaring employment.”

Free legal representation

Seafarers said, for example: 6.5

“What is needed is the help of an upright and helpful lawyer to give the seafarer a fair fight in the case filed against him;”

“Provide good and competent lawyer and financial assistance to concerned seafarer;”

“Legal aid should be provided to seafarer;”

“There should be an organization that provides free legal service to seafarers who are facing criminal charges;”

“There must be someone [to] support and represent the seafarer. As for now the seafarer is a world traveller who is treated by authorities as a second hand citizen which no civilian/businessman/tourist would have experienced without a scandal;”

“They should be provided with lawyers who will take their case pro bono because you no longer have a job and on top of that you are fighting a case and surely you won’t be able to work again because you will have been blacklisted;”

“When a case is filed against a seaman, he should be allowed to leave the ship to look for legal assistance. However, once he leaves the ship, he won’t have money to spend for his case;”

“Seafarers should have an international legal counsel for assistance in case of criminal charges;”

“There should be an international lawyer who will give assistance in the country where an incident has happened; he should be paid or supported by the government;”

“Seafarers should have access to information about good lawyers ...in different countries, who can give timely and useful legal aid;”

“Legal support by an organization appointed by IMO. Stop prosecuting seafarers. It is commercial pressure which causes human error.”

Fair process and treatment

Seafarers said, for example: 6.6 6.7

Seafarers said, for example:

“We need [to be] treated fairly. I don’t want any privileges. I just want to be treated fairly;”

“Fair trial, transparency not look for scapegoat;”

“Transparency in investigation. The guilty should really be prosecuted and punished;”

“For investigations conducted by any state to be fair and not just to make money or find someone responsible;”

“They should consider us as their partners against crime, not as criminals;”

“Many seafarers are victimized and presumed guilty until proven innocent;”

“Unfair arrests must be ended; these ruins seafarers career;”

“Please give fair opportunities for seafarers and don’t treat them like criminals;”

“Treat seafarers as a normal person innocent until proven guilty;”

“The court and judge must include a panel of seafarers and the seafarer must only be punished for an act of intent of total negligence;”

“Human errors should be treated as errors not as criminal charges, as long as there is no intention.”

Greater network of support

“There should be somebody from government that should help them because sometimes there’s no money anymore;”

“Increased involvement of international bodies to provide justice to seafarers;”

“Greater support from unions/company/government;”

“IMO has to intervene, as not all governments (states) take full responsibility for their seafarers;”

“The respective governments must act promptly once any seafarer is facing a criminal charge in another country and provide the seafarer all types of help required to get a fair investigation done;”

“Governments should also be pro-active on matters affecting seafarers. It is time to change the perception towards seafarers. Everybody should be treated fairly;”

“The employing companies sometimes abandon the seafarer during the proceedings which make the families of the seafarers suffer;”

“Legal support to be provided by organizations, care for the seafarers as well his family, some compensation if charges are false;”

“Public awareness and more seafarer’s protection by companies and flag states.”

More uniform laws and procedures

Seafarers said, for example: 6.8

“Try to create uniform rules for ships and seafarers or easy to understand rulesi.e. info books, leaflets for countries or computer based system to help seafarers understand the rules;”

“A single international legal body with specialist knowledge of the sea able to investigate and judge the national legal incidents;”

“Many different rules - each different in each country;”

“There should be a uniform law to prosecute the seafarer due to any occurrence done by the seafarer;”

“Implementing and adopting laws and legislations that are equal in all countries around the world;”

“Making the world of seafaring related laws more international - i.e. universal so as to be easier to understand and less complicated to work with for all seafarers;”

“Seafarers facing criminal charges should be tried by international laws so that the law applies to everyone and there is no discrimination against. Also an international law is required which should apply to all seafarers;”

“There has to be an intentional set of rules and procedures rather than hundreds of different states doing different things, the sheer do’s and don’ts and if’s and but’s... it is ridiculous...;”

“International standards for charges to seafarers;”

“Provide protection and enforce the rights of seafarers under only one legal system.”

LEGAL COMMENTARY

LEGAL COMMENTARY

Seafarers are recognized as a special category of worker.1 Given the international nature of the shipping industry and the different jurisdictions within which seafarers may face criminal prosecution, seafarers need special protection when facing criminal prosecution in order to receive fair trials.

For seafarers some of the most important constituent elements of their right to a fair trial are their rights to have free interpretation and translation services; to have their legal rights explained to them; to have legal representation during pre-trial proceedings as well as trial proceedings; and when cooperating in a no-blame investigation to have their communications with the investigators kept confidential.

The extent to which all these rights have not, according to the seafarers, been accorded to them is a matter of deep concern. This commentary contextualises the importance, nature and extent of these rights with particular reference to seafarers.

Interpretation and translation services

Since most seafarers voyage between different criminal jurisdictions, the prospect of being interrogated in a foreign language and being confronted by criminal charges in a foreign language, is a risk of high probability. The right to interpretation and translation services is expressly enshrined in various international legal instruments,2 and is part of the national law of many states.

When a seafarer is not conversant with the language of the court, he is at an obvious disadvantage if he is not provided with a written translation of the indictment in a language he understands.3 So, a seafarer charged with an offence, who cannot understand or speak the language used in court, has the right to the free services of an interpreter and/or translator in order for him to have a fair trial;4 and the absence of such services is a clear violation of the right to a fair trial.5 The widespread denial of the right to the services of an interpreter and a translator, as strongly suggested in this survey, is therefore a matter of deep concern.

1 Guidelines on Fair Treatment of Seafarers in the event of a Maritime Accident.

2 See, for example, article 6(1)(3) of the European Convention on Human Rights provides that: “In the determination … of any criminal charge against him, everyone is entitled to a fair … hearing by [a] tribunal … 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him … (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court;” article 14(3)(a) of the International Covenant on Civil and Political Rights provides that in the determination of any criminal charge against him everyone shall be entitled “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;” article 8(2)(a) of the America Convention on Human Rights which refers to “the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;” and principle 14 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment which provides that: “A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information referred to in principle 10, principle 11, paragraph 2, principle 12, paragraph 1, and principle 13 and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest.”

3 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 79.

4 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

5 See, for example, the Case of Brozicek v Italy (Application no. 10964/84) 19 December 1989. 1 2 3 4 5

The right to the services of an interpreter and translator applies not only to oral statements and documentary material at the trial proceedings but also to pre-trial proceedings.6

This right does not, however, extend so far as to require a written translation of all written evidence or official documents; but the services of an interpreter or translator must be enough to enable the seafarer to have knowledge of the case against him and also to defend himself by being able to put before the court his version of the events.7

Special attention should be paid to the language of the indictment, which plays a crucial role in the criminal process, since service of the indictment formally puts the seafarer on written notice of the factual and legal basis of the criminal charge against him.8

The obligation of the authorities is not only to appoint a properly qualified interpreter and translator, but also to exercise a degree of control over the adequacy of the services of the interpreter and/or translator if they are put on notice by the seafarer that the services are inadequate.9

The obligation of the authorities is not only to appoint a properly qualified interpreter and translator, but also to exercise a degree of control over the adequacy of the services of the interpreter and/or translator if they are put on notice by the seafarer that the services are inadequate.9

The seafarer and/or his legal representative may however waive the right to interpretation and translation services.10

Legal rights explained

It is an inherent part of the right to a fair trial that seafarers who are suspected of committing a crime should have their legal rights explained to them. Since the rights of seafarers facing criminal charges will differ from jurisdiction to jurisdiction and seafarers cannot be expected to know of these differences, the right to an explanation of their rights is of crucial importance to seafarers.

Theoretical explanations of the rights of seafarers by persons other than their legal representatives may, however, not be sufficient. In respect of the right to silence, for example, it is imperative that before a seafarer is interrogated by the police he has the opportunity of consulting his legal representative so that he may be advised not merely of his right to silence, but also whether or not it is in the best interests of the seafarer to exercise that right by saying nothing at all or by making a limited statement.11

6 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

7 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

8 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 79.

9 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 74.

10 Case of Kamasinske v Austria (Application no. 9783/82) 19 December 1989 at para 80.

11 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

It makes no difference that the police may already have advised the seafarer of his right to silence;12 or that there is a video recording of the police interrogation.13 Instead, the seafarer must be given the opportunity to be advised by his legal representative not to make incriminating statements, whatever other inclination the seafarer may have.14

If a seafarer is being interviewed by a police officer as a witness, then the right to silence is not in play. Just when the seafarer is to be regarded as a suspect instead of a witness may sometimes be difficult to define, even for an experienced police officer.15 But once the police officer (acting honestly and conscientiously) realizes - or should realize - that the seafarer is under serious consideration as the perpetrator of the crime, the seafarer should enjoy the right against self-incrimination and the right to legal representation.16

Legal representation

The right of an accused person to legal representation is a right explicitly recognised in many international instruments (including the International Covenant on Civil and Political Rights,17 the African Charter on Human and Peoples’ Rights,18 the American Convention on Human Rights,19 the Standard Minimum Rules for the Treatment of Prisoners,20 and the European Convention on Human Rights);21 as well as in many national constitutions, and in much case law22 where it has been described as a right of “paramount importance”23 that “must .. lie near” the “heart” of a fair trial.24

12 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

13 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

14 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

15 Chalmers v HM Advocate 1954 JC 66 at 81-82; Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 85. .

16 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 85.

17 Article 14(1)(b) “To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing” and article 14(1)(d) “To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it …”.

18 Article 7 “Every individual shall have the right to have his cause heard. This comprises: … (c) the right to defence, including the right to be defended by counsel of his choice;..”.

19 Article 8(2) “… During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: … (d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel.” The Inter-American Court of Human Rights in an Advisory Opinion OC-18/03 of 17 September 2003 requested by the United Mexican States opined that: ”The right to judicial protection and judicial guarantees is violated for several reasons: owing to the risk a person runs, when he resorts to the administrative or judicial instances, of being deported, expelled or deprived of his freedom, and by the negative to provide him with a free public legal aid service, which prevents him from asserting the rights in question.”

20 “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.”

21 Article 6(3) “Everyone charged with a criminal offence has the following minimum rights: … (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require …”.

22 See, for example, the Case of S v Switzerland in the European Court of Human Rights 28 November 1991 (Application no. 12629/87; 13965/88).

23 Case of John Murray v The United Kingdom on the European Court of Human Rights 8 February 1996 (Application no. 18731/91) at para 66.

24 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 93. 13 14 15

The precise nature and extent to the right to legal representative for seafarers varies from jurisdiction to jurisdiction, and even states party to conventions may give different effect to the right. The European Convention on Human Rights, for example, gives to the contracting states considerable freedom in choosing the means of ensuring that the Convention rights are secured in their judicial systems;25 and, if the national law is obscure, uncertain or open to different interpretations, the European Court of Human Rights will interpret the national law in the manner that most closely corresponds with the Convention.26

The Convention rights are designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective.”27 It is central to the concept of a fair trial that an accused is not denied the opportunity to present his case effectively before the court and that he is able to enjoy equality of arms with the opposing side.28

Right of seafarer to enjoy equality of arms

Many of the rights to a fair trial would have little practical meaning to a seafarer without the aid of counsel to protect his rights.29 Without legal assistance, a seafarer may not be in a position to protect himself from abuses at the hands of authorities and that may adversely affect his defence and his right to a fair trial.

So, the right of a seafarer to legal representation is a most important aspect of the right to a fair trial.30 It is intended to ensure equality of arms31 and the right to an effective defence.32 The United States Supreme Court has observed in its internationally recognised Miranda judgment33 (based on the Fifth Amendment of the United States Constitution) that:

25 Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 30; Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 54.

26 See the partly dissenting opinion of Judge Foighel in Case of Benham v United Kingdom (Application no. 19380/92) 10 June 1996.

27 Artico v Italy (A/37) (1980) 3 EHRR 1 at para 33 cited, for example, in Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

28 Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 59.

29 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

30 Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 27.

31 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 33; Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 59. In theCase of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 62 it was however held that it is not incumbent on a state to ensure total equality of arms, as long as each side is afforded a reasonable opportunity to present their case.

32 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

33 Miranda v Arizona 384 US 436 at 478-479.

“Even the intelligent and educated layman has no skill in the science of law … Left without the aid of counsel he may be put on trial without a proper charge and be convicted upon incompetent evidence … He lacks both the skill and knowledge adequate to prepare his defence even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, although he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

For an isolated seafarer in a foreign state facing criminal charges in a strange and unfamiliar legal system, the need for a lawyer to ensure a fair trial would be even greater than it would for an accused facing criminal charges in his own national state.

Vulnerability of seafarer during police interrogation

There are clear judicial views to the effect that a custodial interrogation by police of a suspect is inherently coercive,34 the suspect being in a particularly vulnerable position35 and in a setting where the prosecutorial forces have the upper hand.36 The right of a suspect to a legal representative is therefore intended to compensate for this vulnerability, avoiding the risk that the police may be tempted by the vulnerability of the suspect to use coercion or oppression to obtain evidence from the suspect.37

The right to representation exists regardless of the consideration that a suspect, who is a national of the jurisdiction, may reasonably be expected to understand the language of interrogation and to have, at least to a degree, some knowledge of pre-trial and trial proceedings in his own country. The same cannot be expected of a seafarer from abroad who finds himself being subjected to police interrogation in a foreign, unfamiliar and strange jurisdiction, isolated and removed from his normal environment.38

For a seafarer to be without legal representation in such a setting should, it is argued, be presumed to be harmful to the defence of the seafarer, so that he should not be under the burden of having to adduce evidence of actual prejudice39 in order to show that his right to a fair trial was violated. For a seafarer alone and isolated in police custody this could be a difficult burden to discharge in the face of countervailing evidence brought by police with recourse to overwhelming resources.

Even assuming that the seafarer has full theoretical knowledge of all his rights in a foreign jurisdiction (which seems most unlikely), it is only an experienced and skilled legal representative who can effectively and best protect the seafarer from the risk of compelled self-incrimination, and also advise the seafarer whether or not to exercise his right to silence or to cooperate and make an admission or a confession (if it would probably result in a reduced sentence), and/or generally to assist the seafarer.40

34 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

35 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 33.

36 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

37 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 67.

38 See, for example, the minority opinion in Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71.

39 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71 in relation to the dissenting opinion of Judge Loucaides.

40 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR at para 71 in relation to the dissenting opinion of Judge Loucaides.

Right of seafarer to legal representation during pre-trial proceedings

Under the European Convention on Human Rights, for example, the rights of a seafarer to a fair trial would in principle be irretrievably prejudiced when incriminating statements made by a seafarer during police interrogation - without access to his legal representative - are used to obtain his conviction.41 The right to a legal representative therefore applies to pre-trial proceedings.42 The precise and practical manner in which the right to legal representation is to be applied during pre-trial proceedings depends, however, on the special features of the proceedings and the circumstances of the case taken as a whole.43

Nonetheless, a seafarer should, for example, have the benefit of the assistance of a legal representative at the initial stages of interrogation, that is, from the first police interrogation of the seafarer.44 However, the absence of a lawyer may (at least in respect of some periods of police interrogation), not be held to be a denial of the right to legal representation provided, for example, the legal representative does not request permission to be present at the police interrogation and if the criminal proceedings - when viewed in their entirety and as a whole - are considered by the court to have been fair.45

But to deny a seafarer access to a legal representative for the first 48 hours of police interrogation, if the rights of the seafarer may have been irretrievably prejudiced iswhatever the justification for the denial - incompatible with the right of a seafarer to a legal representative.46 Similarly, if the prosecutor supervises the meeting when the seafarer consults with his lawyer, without showing sufficient grounds why such supervision is necessary and justified,47 the right to legal representation is violated. The permissible grounds for such supervision are narrow; and might exist only if there is a risk of collusion between the seafarer and his lawyer48 or if the professional ethics of the lawyer or the lawfulness of his conduct is called into question.49 Supervision by police officers of the consultation between the seafarer and his lawyer would also violate the right to legal representation where, for example, the police officers, being in the same room and listening to the conversation between the seafarer and his lawyer, interrupt the conversation, warning that any discussion of the case would result in the consultation being stopped.50

41 Sukran Yildiz v Turkey (Application no. 4661/02) 3 February 2009; Amutgan v Turkey (Application no. 5138/04) 3 February 2009 paras 17-18; Plonka v Poland (Application no. 20310/02) 31 March 2009 at para 35; Pishchalnikov v Russia (Application no. 7025/04) 24 September 2009 at para 70; Dayanan v Turkey (Application no. 7377/03) 13 October 2009 at paras 32-33; Fatma Tunc v Turkey (Application no. 18532/05) 13 October 2009 at paras 14-15; and Salduz v Turkey (2008) 49 EHRR 421.

42 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 54.

43 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 55.

44 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 70.

45 Imbrioscia v Switzerland (1994) 17 EHRR 441 ECHR.

46 Case of John Murray v The United Kingdom on the European Court of Human Rights 8 February 1996 (Application no. 18731/91) at para 66.

47 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 58.

48 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 59.

49 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 59.

50 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 60.

The prejudice that a seafarer suffers as a result of the denial of the right to legal representation may take various forms, for example: self-incriminating statements;51 or statements which enable the police to obtain incriminating evidence from another source which is then used against the seafarer at his trial;52 or ill-treatment by the police;53 or the use of coercion or oppression54 or promises55 by the police to obtain evidence from the seafarer; or any other police inadequacy or police exploitation of the seafarer while he is in a vulnerable situation and without the assistance of his lawyer.56

Right of seafarer to communicate confidentially with his lawyer

For the right to legal representation to be practical, a detained seafarer has the right to communicate freely and confidentially with his legal representative. If the legal representative is unable to consult with, and receive confidential instructions from, the seafarer, the assistance rendered by the legal representative would lose much of its effectiveness; whereas the European Convention on Human Rights, for example, is intended to guarantee effective and practical rights.57 The right to a confidential consultation encourages open and honest communication between a seafarer and his lawyer, which is a most important part of the right of a seafarer to defend himself against a criminal charge58 and to receive a fair trial.

The right to legal representation includes in effect the right of a seafarer to communicate with his legal representative out of hearing of a third party so that the legal representative may receive confidential instructions; although consultations between the seafarer and his legal representative within sight of the authorities59 would not violate the right of the seafarer to a fair trial.

The right of a seafarer to free legal representation

Under the European Convention on Human Rights, for example, the institution of a legal aid scheme constitutes one of the means that a state may employ to guarantee the rights enshrined in the Convention.60 Here, a seafarer has the right to free legal assistance provided the seafarer does not have sufficient means to pay for legal assistance and the interests of justice require that he be given legal representation.61 The right to free legal assistance under that Convention is therefore subject to limitation and is not an absolute right.62

51 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 33.

52 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 50.

53 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 44.

54 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 67.

55 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

56 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 108.

57 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 56.

58 Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 56; Oferta Plus SRL v Moldova (Application no. 14385/04) 19 December 2006 at para 145.

59 Case of S v Switzerland (Application no. 12629/87; 13965/88) at para 48. In article 93 of the Standard Minimum rules for the Treatment of Prisoners it is provided that: “For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal advisor with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.”

60 Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 60 there are other means of guaranteeing the implementation of Convention rights such as simplifying the applicable procedure.

61 Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 27.

62 Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20; Case of Rybacki v Poland (Application no. 52479/99) 13 January 2009 at para 54.

There are other limitations. The right of a seafarer under article 6(3)(c) of the European Convention on Human Rights to “defend himself … through legal assistance of his own choosing” does not, despite its imprecision, connote a right to an unlimited number of legal representatives;63 instead, its purpose is to ensure that the seafarer’s case is heard by giving the seafarer - as necessary - the assistance of an independent legal professional.64 The right to legal representation is further limited by, for example, the state’s right to regulate the appearance of lawyers before the courts; the obligation of the lawyer not to transgress the professional ethics governing his profession;65 and the obligation of the lawyer not to support any criminal activity by the seafarer.66

Nonetheless, the right to free legal representation can be invoked where, for example, the potential sentence is severe; or a wide range of different options are available to the court; or the personal circumstances of the seafarer are complicated; or legal assistance is required for the adequate presentation of the case for the seafarer;67 or the case is generally complex;68 or the relevant law and procedure is complex;69 or what is at stake is of high importance;70 or the seafarer does not have capacity to present himself.71

The right to legal representation must be practical and effective. A failure of the court to allow a seafarer or his legal representative to address the court, especially where deprivation of liberty is at stake, is an egregious breach of natural justice and a violation of, for example, article 6 of the European Convention on Human Rights.72

A seafarer may, however, waive his right to a lawyer, provided he does so willingly and knowingly.73 So, if a seafarer declines to exercise his right to legal advice, a court might have to consider whether, having regard to all the circumstances, he has effectively waived his right under the European Convention on Human Rights.74

63 Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

64 Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

65 Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

66 Ensslin, Baader, and Raspe v Federal Republic of Germany (Application no. 7572/76, 7586/76 et 7587/76 at para 20.

67 Case of Quaranta v Switzerland 24 May 1991 (Application no. 12744/87) at para 33 to 37.

68 Case of Benham v United Kingdom (Application no. 19380/92) 10 June 1996.

69 Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 61

70 Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 59.

71 Case of Steel and Morris v United Kingdom (Application no. 68416/01) 15 February 2005 at para 61.

72 Hooper v United Kingdom (2005) 41 EHRR 1 275 at para 20.

73 Case of Benham v United Kingdom (Application no. 19380/92) 10 June 1996 at para 60.

74 Cadder v Her Majesty’s Advocate [2010] UKSC 43 at para 96.

It is, however, unlikely to be the case that the courts would find that many seafarers have waived their right to legal representation, since the survey reveals that very many seafarers have requested legal representation.

Rights of seafarers when cooperating as witnesses in a no-blame investigation

The International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (“the Code”) 75 is relevant to the reluctance of seafarers to cooperate with casualty and incident investigators. The application of the Code (except for Part III) is mandatory for states party to the Safety of Life at Sea Convention. 76

When a casualty, incident or accident occurs, an investigation which does not seek to “apportion blame or determine liability” under the Code77 may run in parallel with a separate criminal investigation, both proceedings arising out of the same factual matrix.

The reluctance of some seafarers to cooperate with casualty and incident investigators stems, according to the seafarers, from a fear of implication in the commission of a crime. If seafarers could be assured that their cooperation with casualty and incident investigators in a no-blame investigation cannot lead to their implication, their cooperation should be greatly enhanced.

The mandatory provisions of the Code appear to provide a reasonable assurance that the cooperation of a seafarer with the casualty and incident investigators should not result in the disclosure of information from the marine safety record, which would otherwise implicate the seafarer in the commission of a crime.

But the recommendatory provisions in Part III of the Code do not provide the same level of assurance. In Part III of the Code it is provided that:

75 The Code comprises the annex to resolution MSC.255(84) of the International Maritime Organization.

76 The Code came into effect on 1 January 2010.

77 Chapter 1.1 of the Code states that “… Marine safety investigations do not seek to apportion blame or determine

”23.1 States should ensure that investigator(s) carrying out a marine safety investigation only disclose information from a marine safety record where: .1 it is necessary or desirable to do so for transport safety purposes and any impact on the future availability of safety information to a marine safety investigation is taken into account; or .2 as otherwise permitted in accordance with this Code.

23.2 States involved in marine safety investigation under this Code should ensure that any marine safety record in its possession is not disclosed in criminal, civil, disciplinary or administrative proceedings unless: .1 the appropriate authority for the administration of justice in the State determines that any adverse domestic or international impact that the disclosure of the information might have on any current or future marine safety investigations is outweighed by the public interest in the administration of justice; and .2 where appropriate in the circumstances, the State which provided the marine safety record to the marine safety investigation authorizes its disclosure”.

This provision contains no mandatory rules against the disclosure of information (including self-incriminating statements taken from a seafarer), from a marine safety record78 in a casualty and incident investigation, “should” not “shall” being employed throughout the text which is couched in non-peremptory terms. Furthermore, information is admissible where that is “necessary or desirable” provided “any impact” is “taken into account;” or where disclosure is in the “public interest in the administration of justice” and “where appropriate in the circumstances” the “state” “authorizes its disclosure.”

What is necessary or desirable, what is in the public interest in the administration of justice, and what is appropriate in the circumstances would, in many instances, be open to argument in court. Therefore there can be no absolute guarantee of non-disclosure in advance of cooperation. So, if self-incriminating statements are solicited from a seafarer who is fully, frankly and honestly co-operating with investigators, that evidence might nonetheless be admitted in separate criminal proceedings against the seafarer. For this reason, the reluctance of some seafarers to incriminate themselves in cooperation with casualty and incident investigators is perhaps understandable.

78 In Chapter 2.15 of the Code, a “marine safety record” is defined to mean “the following types of records collected for a marine safety investigation: .1 all statements taken for the purpose of a marine safety investigation; .2 all communications between persons pertaining to the operation of the ship; .3 all medical or private information regarding person involved in the marine casualty or marine incident; .4 all records of the analysis of information nor evidential material acquired in the course of a marine safety investigation; and .5 information from the voyage data recorder.”

CONCLUSION

CONCLUSION

The SRI survey was carried out amidst a groundswell of concern that seafarers in particular, and the wider shipping industry generally, are being “criminalized”. The survey did not focus on the veracity of this sentiment, but on what protections seafarers are and should be afforded if they face criminal charges, or are witnesses in a criminal prosecution. Since criminal laws are largely tailored to nationals, they are an uneasy fit for foreign and temporary transnational workers.

Seafarers are clearly calling for more information on the risks they are exposed to in relation to criminal laws, in particular in a context which they feel does not present uniform laws that they can easily access or know. These risks may be accompanied by protections in international and national laws, including free legal representation and fair treatment generally, but to a large extent seafarers say these protections are theoretical and illusory, rather than practical and effective.

Seafarers are also calling for a greater network of support from all the various stakeholders in the maritime industry if they do face criminal charges. This would include greater transparency and commitment around the support they can rely on, should they need it.

The seafarers’ suggestions for what is needed to improve their situation, or their perception of their situation, is a challenge to the maritime industry and to prosecuting authorities generally if seafaring is to remain a viable option for young people.

Many tributes are paid to seafarers, in particular in the context of the work they do in transporting the bulk of cargo worldwide. It is disturbing therefore that the SRI survey has demonstrated that the worth of seafarers is not felt by the seafarers themselves, who in the context of facing criminal charges speak of fears, being regarded with suspicion and scapegoating.