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Marine pollution: prosecuting seafarers will not solve the problem

21/02/2017

US Assistant Attorney General John C. Cruden said it best: “The pollution in this case was the result of more than just bad actors on one ship. It reflects poorly on [the ship’s] culture and management.”

It was December 2016 and US-based Princess Cruise Lines had just been fined $40 million by a US court for discharging polluting waste-water into the sea. It was also accused of orchestrating a cover-up once the discharge had been reported.

It was a significant case, not just because of the size of the fine – the largest ever criminal penalty for deliberate vessel pollution – but because the prosecution targeted the company, not the seafarers.

Unfortunately this is more an exception than a rule. In the closing months of 2016 another US court jailed a ship’s engineer for concealing a discharge of oily waste. In a similar case two seafarers were sent to prison for obstructing the US Coast Guard in their investigation of an illegal discharge of oily water and sludge. The list of seafarer convictions in the United States is long.

And of course, it is not only in the United States that seafarers find themselves in the dock.

In January 2016, after a protracted legal process, Spain’s Supreme Court sentenced the captain of the Prestige oil tanker, which sank off Spain’s northwestern coast in 2002 spilling thousands of tons of fuel oil, to two years in prison.

It is worth recapping some of the facts. The ship, which had suffered crippling storm damage in the run-up to the sinking, had been forced to spend days drifting at sea because it had been refused permission to dock by Spanish, Portuguese and French authorities.

Nevertheless the Supreme Court decided that the captain could be faulted for ‘guiding the tanker in treacherous conditions’ with full knowledge of its weakened structure. There was an outcry. Many observers, at least those with maritime experience, believed the captain had been scapegoated.

“This sets a deplorable precedent,” said the Managing Director of the tanker owner’s association INTERTANKO. “Are ships’ masters who exercise best professional judgement in impossible circumstances to be shamefully treated as criminals?”

Alarmingly, at least in some cases, the answer might be ‘Yes’.

There are troubling issues too in the treatment of the captain of the ill-fated cruise ship Costa Concordia. Thirty-two people died when the vessel, on the orders of the captain, deviated from its planned route only to run into a rock.

He was sentenced by an Italian court to 16-years in prison. An appeal against the sentence is still to be heard by Italy’s highest court. Part of his defence was that he had taken the ship close to the shore for “commercial reasons”. He had wanted to please his passengers, suggesting that, in his mind at least, he had been attempting to fulfil a company mandate.

Other members of the Costa Concordia crew have also been sentenced to jail, although none is expected to actually face incarceration. The company, meanwhile, must pay a 1 million Euro fine, a punishment some consider light.

Why did the company culture allow a captain to make non-emergency routes change? The evacuation of the stricken vessel was chaotic; crew members were ill-prepared. Why had the company not ensured they were better trained?

A survey by Seafarers’ Rights International found that as many as 85% of seafarers were concerned about the possibility of facing criminal charges. In particular they feared being scapegoated or being caught by ‘gottcha’ regulations – regulations that seem designed to trap the unwary.

It is wrong to assume that seafarers are a reckless breed that can only be held in check by the threat of fines and prison. To take one example, it is a rare case indeed where a seafarer can be shown to have personally benefited from discharging oily waste into the sea.

Prosecutors should look at who benefits from breaching environmental laws. In the vast majority of the cases it is the shipping companies. While they may not actively condone law breaking they create an environment where cost cutting is applauded, sometimes with no questions asked.

Whatever problems the industry faces it is not, as US Assistant Attorney General John C. Cruden observed, down to the presence of a few bad apples.

Laws and regulations play a key role in the shipping industry. They should be aimed at companies and not just seafarers.

 

This paper is intended as a general summary of issues in the stated field. It is not a substitute for authoritative advice on a specific matter. It is provided for information only and free of charge. Every reasonable effort has been made to make it accurate and up to date but no responsibility for its accuracy or correctness, or for any consequences of reliance on it, is assumed by Gray Page.

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