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Whistle-blowing: Seafarers shouldn’t have to choose between their conscience or their career

10/10/2018

In 2017 a US court awarded a cruise ship engineer $1 million for reporting the illegal discharge of oily waste at sea.

At the time he blew the whistle he was 27 years old working in his first job since graduating college.

A rear admiral in the US Coast Guard praised his courage saying his actions had stopped the environmental damage wrought by the cruise line from being far worse.

In September 2018, another US judge scrapped a plea bargain that would have seen a ship operator pay $3.2 million for illegal discharges of oily waste. She said the deal was flawed as it failed to reward the crew member who had exposed the offence.

The United States has led the world in providing financial incentives to those who expose wrongdoing.

Under US law, whistle-blowers whose evidence leads to successful prosecutions can be rewarded with up to 50% of the value of the fines imposed.

Some 75% of prosecutions brought under the US Act to Prevent Pollution from Ships (APPS) have relied on whistle-blower evidence (source: the National Whistle-blower Legal Defense and Education Fund) .

“Activities like illegal discharge of oil and falsification of record-keeping usually take place within a close-knit community in the open ocean, making it hard for the Coast Guard to detect crime,” claims the US National Whistle-blower Legal Defense and Education Fund.

“[Those] best positioned to uncover violations are crew members. Testimony, videotapes, and other evidence provided to law enforcement by whistle-blowers is essential to the detection and prosecution of ocean pollution crime.”

The prospect of collecting up to half the fine levied by a court is, the Fund argues, a “strong incentive” for crew to come forward.

But the United States is almost alone in having a formal reward system built into its laws.

Opponents say there is no evidence that rewards make a significant difference to outcomes and that financial incentives open whistle-blowers to charges of bounty hunting.

The junior engineer who reported the cruise line for illegal discharges of oily waste claims not to have been reward driven. Indeed, in the first instance, his report was not given to US authorities, rather the UK Maritime and Coastguard Agency (MCA). The MCA operates in a jurisdiction with no reward provision.

The engineer told the US court that eventually fined the cruise company $40 million: “My actions were an automatic response to wrong, when so many others clearly turned a blind eye.”

Allowing whistle-blowers to be painted as motivated by money leaves them wide-open to retribution.

It is already clear that some employers and manning agencies will happily blacklist them – whether they are rewarded or not.

US court papers have described the dilemma facing potential whistle-blowers: “The decision to step forward must be weighed against the likelihood that [they] will forever be barred from working in the marine shipping industry and may be subject to physical harm and abuse.”

In the face of this threatening reality, it is entirely unreasonable that seafarers should become the ‘watchdogs’ for breaches of environmental laws.

The culture of ‘rewards’ represents an admission of failure by enforcement authorities.

Even US officials cannot claim the system a success. They are on record as saying that thousands of seafarers take part in or are aware of illegal conduct every year and only a tiny minority come forward.

The regulatory environment for shipping is tightening all the time. There are soon to be tough new restrictions on the sulphur content of bunker fuel, or more accurately, the sulphur content of ships’ exhaust gases.

There are already fears that the sulphur rules will not be consistently enforced. In this and in other regulations, it would be unjustifiable to expect seafarers, some of whom are among poorest paid in the shipping sector, to plug enforcement gaps at jeopardy to their careers.

If shipping is serious about its image it will have to show it can police itself without relying on the personal sacrifice of whistle-blowers.

The US reward system has undoubtedly brought financial security to a handful of seafarers but many whistle-blowers go unrewarded.

What is needed is a collective commitment to improving corporate culture to the point where ship’s officers no longer feel under pressure to flout the rules.

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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