CMI Colloquium – Cape Town – February 2006
Fair Treatment of Seafarers: A Marine Insurance Perspective
Kim Jefferies, Senior Claims Executive and Legal Advisor Gard AS1
The Fair Treatment of Seafarers or, as stated negatively, the “criminalization of
seafarers” is a topic of high priority but what do we really mean? In my view, we are
really talking about two related but separate phenomena. The first and probably most
common is the increasing trend to treat maritime accidents as crimes, particularly in
cases involving significant pollution. The second trend is the unfair treatment of mostly
foreign seafarers both in cases involving accidental harm as well as cases that may
involve intentional conduct. Some in the maritime industry would limit the discussion
of fair treatment to instances of marine accidents. It is my personal view that we must
also consider the treatment of those seamen who are accused of intentional criminal
conduct. Let’s consider these two trends separately.
When is an accident a crime?
Traditionally, at least in common-law systems, there has been a dividing line between
civil negligence and criminal acts and consequences. Negligence is nothing more than
the failure to use such care as a reasonable and prudent person would use under the
circumstances. Thus, when operating in conditions where even a minor lapse could
cause great harm, such as operating a ship, the “reasonable care” required increases. But
the consequence of a lapse or mistake remains the same, that is, compensation to the
victim. After all, part of living in society is to compensate those whom you have
unintentionally harmed by your actions and the actions of those you direct.
On the other hand, a society needs to protect its members by punishing those who
intentionally harm others and this is where the criminal law comes in. Historically, the
dividing line between the civil and criminal law has been “mens rea,” literally “guilty
mind,” meaning that deliberate acts intended to cause harm are considered to be
criminal. The aim of the criminal law is to punish the wrongdoer and to deter others,
leaving to the civil law the compensation of the victim. Of course this is a simplification
in that certain crimes such as negligent homicide do not require specific intent. It is
enough that the perpetrator has deliberately acted with gross negligence or recklessly
with knowledge that his action could lead to harm – the drunken driver who
inadvertently kills a pedestrian, for example, would be guilty of negligent homicide.
MARPOL and the Civil Liability Conventions, the current international regime for
prevention of and compensation for ship source pollution, recognize this distinction
between accidents and intentional acts. MARPOL provides that there is to be no
criminal liability for pollution resulting from a ship casualty “except if the owner or
master acted either with intent to cause damage or recklessly with knowledge that
This presentation is based upon a lecture to Gard members given by the author in June 2005 and is not
intended to represent the views of the International Group of P & I Clubs.
damage would probably result.”2 Similarly, the Civil Liability Convention provides, on
a strict liability basis, for compensation to victims and limits the consequences of the
crew actions to civil fines imposed on the registered owner unless “the damage resulted
from their personal act or omission committed with the intent to cause such damage and
with knowledge that such damage would probably result.” 3
The sensible approach of the CLC in trading strict liability and mandatory insurance for
reasonable and insurable limits of liability is currently under attack and has been
supplemented by new criminal provisions in Europe and other countries. This is the
trend toward criminalization we shall now address.
The Civil Liability Convention is considered just that --civil--leaving signatory states,
not to mention the European Union, free to create new criminal penalties for acts
leading to pollution. Following the ERIKA and PRESTIGE casualties, the European
Council pushed to deter “substandard shipping” by proposing criminal penalties in the
aftermath of a spill. Specifically, the EU Council found the current international regime
insufficient to deter substandard practices and that “dissuasive effects can only be
achieved through the introduction of sanctions applying to any person who causes or
contributes to marine pollution”. This means not only the shipowner or master but also
the owner of the cargo, the classification society or “any other person involved”.
The EU directive and framework decision which were adopted in July of 2005 require
member states to punish under the criminal law intentional and seriously negligent ship-
source pollution with maximum jail terms of three years, fines, and even the wind-up of
companies. In cases of serious harm to the environment the jail term is increased to a
maximum of five years.
Measured criminal punishment of those who deliberately pollute, including dumping of
oily wastes, is appropriate. It is the criminalization of negligence that the industry has
condemned. As stated by the International Chamber of Shipping and International
“The industry is not opposed to appropriate punishment of deliberate violations of
environmental rules, but the principle of criminalizing accidents is neither just nor
reasonable given the hazards of the sea”4
True, the EU directive requires a finding of “serious” negligence, but history has
demonstrated the purely subjective nature of such terms when actions including mere
omissions are viewed in hindsight and in the context of widespread and well publicized
environmental harm. The industry’s justifiable concern is that when applying the new
and untested legal standard of “serious negligence” the European courts will be tempted
to label an act or default as serious just because the effects of the act resulted in
“serious” pollution damage. The MARPOL standard of “recklessness” was rejected
MARPOL Annex I, Reg 11(b).
CLC 92 Protocol Article 4. Similarly UNCLOS provides only for monetary penalties for accidental
pollution UNCLOS ’82 Art 230.
Mariscene Issue 31, Winter 2005 (The Newsletter published by ICS and ISF).
with respect to spills in territorial waters.5 Perhaps a more surprising departure from the
historical roots of criminal law are the so called “strict liability” provisions found in
both the Canadian and American versions of the Migratory Birds Act. The victim here
is not human but, as the name implies, migratory sea birds, the harming of which from a
pollution incident can trigger criminal liability without evidence of individual intent or
even negligence. The concept of strict criminal liability turns the historical distinction
between civil and criminal law on its head. When societies consider pollution to be so
damaging as to criminally punish those who are guilty without fault, then perhaps it is
high time for societies to consider alternative solutions, for example, reducing our
dependence on petroleum.
So, when is an accident a crime? The answer, in the context of an oil spill, seems to be
whenever an accident leads to serious environmental consequences. Unfortunately, it is
the seafarers who will always be in the front line and will no doubt bear the brunt of the
application of criminal sanctions in the aftermath of major casualties. Mark Twain once
wrote that “sailing is like being in jail, but with the added opportunity of drowning.”
Despite this pessimistic view, the shipping industry historically could attract highly
qualified and motivated individuals who would enter sea service despite the inherent
risks and hardships of life at sea. Will that continue to be so given the additional risks
and deprivations of liberty that may follow from criminal investigations and sanctions
following a marine accident?
Why should we care about criminal prosecutions of seafarers for intentional
The second problem frequently discussed under the rubric of unfair treatment of
seafarers is the government’s treatment of seafarers as targets or witnesses in the
investigative process with respect to suspected intentional violations. As already
mentioned, the criminal law is an appropriate response to deliberate dumping of oil.
Indeed, the dichotomy between accidental and the intentional acts is reflected in the
insurance cover provided by the International Group of P & I Clubs for pollution fines.
The International Group adopted a common rule applicable since policy year 2000 that
only covers fines and related defense costs arising from accidental discharges. All
Clubs agree that deliberate violation of MARPOL by discharging oily waste water is not
an “accidental discharge”.
That said, Clubs in the International Group may consider payment of fines on a
discretionary basis. But in such cases, the Members are required to satisfy the Directors
or Executive Committee of the particular Club that they took such steps as appear to
have been reasonable to avoid the offence. The Clubs require the member to proactively
monitor the waste management practices aboard their vessels and do not cover any fines
Intertanko leads an industry challenge to the EU directive filed in the London High Court on 24
January 2006 seeking ultimately a ruling from the European Court of Justice that the directive conflicts
with international law, namely MARPOL and UNCLOS.
or other penalties imposed where the owner knew or ought to have known of the
offence, and failed to take reasonable measures to prevent it.6
It should also be noted that from a P & I perspective, the liability covered is that of the
ship owner or operator rather than individuals. Yet as mutuals, Clubs are naturally
interested in the welfare of their members including the seamen who man the ships, not
to mention the loss prevention benefits to the insurance industry as a whole of highly
Speaking personally, the problem is not that the criminal law is applied to seafarers who
deliberately pollute; the problem is the unfair way in which the law is applied. That
many crewmen have been caught bypassing or disabling the oily water separator in
clear violation of the MARPOL requirements is an embarrassment to the industry. Yet,
the treatment of crewmen, both the innocent and the guilty ones, has to be of concern
not just to the industry but to all who hold dear the civil rights of the individual when
faced with the crushing power of a government investigation.
One focus of industry frustration is with the criminal proceedings for MARPOL related
violations in the United States. The United States Coast Guard is the port state authority
that has the right and responsibility to inspect ships to assure compliance with
MARPOL regulations. In this role, the ship personnel have the corresponding
responsibility to cooperate in an open and transparent manner with the common goal of
compliance and correction of any deficiencies found. When deficiencies are found, the
Coast Guard also has the opportunity to impose a civil fine for MARPOL violations
including illegal discharges within US waters. The range for this administrative fine
against the ship operator is between 6,200 and 32,500 U.S. dollars. The Coast Guard
does not itself have authority to impose criminal fines or jail terms.
The Coast Guard, however, simultaneously acts as the investigative arm of the United
States Justice Department, the federal agency responsible for prosecuting criminals. In
this role, the Coast Guard’s relationship with crew is clearly adversarial. In the context
of a criminal investigation, a foreign crewman has the same rights as a United States
citizen, including the right against self-incrimination and the right to the assistance of
counsel. Unfortunately for the hapless Filipino, Latvian, Russian, Chinese or other
foreign engineer, it is not always possible to tell when the Coast Guard has changed hats
and is now looking for evidence that may land the crewman in prison. Even worse, a
wrong answer may result in prosecution for obstruction of an agency proceeding, a
serious crime in itself, and one that does not require any wrongdoing with respect to the
MARPOL violations that are the subject of the investigation. When the Justice
Department decides to prosecute, the penalties available include a fine against the
individual crewman of up to 250,000 dollars and five years in jail. The fines against the
company, as employer, can be as high as 1 million dollars per count. It is multiple
counts that produce the staggering figures we have all been reading about in the
In 2005 all IG Clubs issued a circular to their members stating a common position with respect to
fines for intentional violations of MARPOL. See for example Circular No. 3/2005 available in the
publications section of the Gard website www.gard.no.
The U.S. Coast Guard’s dual role as both civil inspector and criminal investigator is
unfortunate in that the criminal investigatory role may negatively impact the close
cooperation that the Coast Guard has historically shared with the international shipping
community. It does not have to be this way. Norway for example has provided for an
Investigatory Commission to investigate major accidents and pollution events both in
Norwegian waters and with respect to Norwegian Flag vessels. This agency will not
contemplate civil or criminal charges relating to the casualty. Criminal prosecutions
will be dealt with separately within the existing criminal justice system. While crew
will have a duty to provide information to the Investigatory Commission the
information provided by individuals cannot be used in a subsequent criminal
proceeding. In this way, the Commission has the best opportunity to determine the true
cause of an incident in order to best insure that it does not recur. Interestingly, this
Norwegian law is new, coming into force this year. This same system is already in place
in the United Kingdom.
Foreign crewmen are often detained in U.S. ports as “material witnesses” during a
Department of Justice investigation of suspected MARPOL violations. They are not
initially charged with a crime although they may be so charged based on the evidence
they or their fellow crewmembers produce. Because material witnesses subject to a
flight risk can be jailed without trial and without bail, shipowners will often agree to
provide hotel accommodations and pay for a security guard to stand watch. But this
undertaking by the shipowner and cooperation by the crewman are in no sense
voluntary. Detention in a foreign land in a hotel room with a guard at the door may not
be as bad as a prison cell but it is still a deprivation of personal liberty.
Crewmen are not advised of their right to counsel or right to remain silent. The Master
or the shore-side employer has to be careful in how they inform the crew of these rights
because a communication that can be construed as an order “not to talk” may be
considered obstruction or witness tampering, serious felony crimes. It is not only the
guilty who require assistance from a lawyer. Even innocent crewmembers struggle not
only with the English language, but with the fear engendered by being intensely
questioned by gun-carrying federal agents. Fear does not necessarily arise from
wrongdoing. It can just as easily be the fear of a single individual in a foreign land
facing the awesome power of the United States government.
We have to ask ourselves whether the end justifies the means when it comes to
punishing and deterring the violation of MARPOL through criminal sanctions. In my
personal view the answer has to be no. We as civilized human beings have to respect
the rights of even intentional violators when faced with deprivation of liberty. These
are rights of the individual seaman not because he serves aboard a ship but because he is
a human being.
Clearly, the trend toward criminalization of marine pollution will continue. With
respect to marine accidents we as an industry must continue to combat this trend. While
great strides can be made in reducing pollution incidents, accidents will continue to
occur. The way forward is to strengthen the current systems to identify and eliminate
“substandard” ships. On the insurance side, we must support the changes to the civil
regimes to ensure quick and adequate compensation in the event of a catastrophic spill.
Nothing fuels a political response more than inadequate compensation to victims. The
International Group of P & I Clubs, including Gard, is committed to this task.
In contrast, the industry should support the sanctions under current regimes for the
intentional dumping of oily wastes. Dumping is in clear violation of MARPOL, the
international treaty in force nearly worldwide. The clear answer to this problem is to
comply with the law including the reporting of violations to the flag state followed by
correction and imposition of sanctions as appropriate. The United States authorities
have concluded that flag states are not up to the task and will continue to prosecute
within the United States justice system those caught in a practice of dumping oil in
international waters and falsifying the Oil Record Book to mask the practice.
Experience has shown that both the guilty and the innocent are caught up in criminal
investigations in the United States, often with great harm done before a decision is made
whether there is evidence of intent and therefore criminal versus civil jurisdiction.
While condemning the practice of dumping, we as an industry should nonetheless
support the initiatives to provide guidelines as to the fair treatment of seafarers who are
detained against their will and subjected to possible prison sentences. The rights of all
are best protected by respecting the rights of those accused or suspected of crimes. This
has been a fundamental principal embodied in the United States Constitution and one
that is reflected in the Universal Declaration of Rights adopted by the General
Assembly of the United Nations more than fifty years ago.