SAFETY | Norwegian disappointment

WHEN the 26,800 dwt Panama-flagged Full City dragged its anchor on to the rocks off southern Norway in the summer of 2009, it leaked 200 tonnes of fuel oil into the country’s coastal waters and led to the criminal trial of two of the ship’s Chinese officers.

The ongoing investigation is a very important case for Norwegian maritime justice as it is the first full-scale test of the new Accident Investigation Board in Norway.

Previously, maritime accidents in Norway were investigated by way of traditional maritime inquiries.

The maritime inquiry conducted a general examination of the accident and its causes, and considered both safety at sea issues and the allocation of civil and criminal liability. The questioning of witnesses was led by an experienced mariner inspector.

This has, for several decades, been heavily criticised for the tendency to criminalise the seafarers as the same institution or person carried out both the safety inspection and the police investigation, and even claimed the criminal sentence to the victim.

But from July 1, 2008, Norway implemented a new investigation system, where understanding the cause and the criminal investigation were separated.

Following an international trend, the new rules gave the AIBN the authority to investigate the accident for the purpose of identifying circumstances of importance to improve the general safety at sea, but not to apportion criminal liability.

The responsibility of the criminal investigation was transferred to the local police authority that has the jurisdiction in the area where the accident occurs.

Regretfully, in view of the intention to put a stop to the unacceptable criminalisation of seafarers, the full-scale test of the new system, as we have seen by the Full City case, must be characterised as a great disappointment for the group of senior mariners, which for a decade were fighting for change.

The previous problem — that the same maritime accident investigators also carried out the police investigation and even instigated preliminary judgment — seems to have been replaced by the quite opposite problem, that the police are now investigating potential criminal charges following a maritime accident without being qualified.

Following the Full City case, the Norwegian Pilot Organisation sent a letter to the Norwegian Department of Justice claiming that the police should not be involved in the investigation of maritime accidents as they are not qualified.

After the Full City grounding most of the crew were interviewed, first by the police, later in court, presumably in order for the police to use their statements in any substantial criminal court. However, the ship master and third mate were almost immediately taken to virtual house arrest in Norway for nearly five months by detention of their passports.

They were preliminary charged with violations of Section 152b of the Norwegian Criminal Code and various sections of the Norwegian Ships Security Act.

Following the trial the master was sentenced to six months imprisonment, with three months suspended. The third mate received two months with three weeks suspended. The sentences are now at the appeal courts.

The present and common mandate to the accident investigation boards is to limit their activity to a maritime safety investigation and completely keep away from assessing probably criminal misdemeanour of the crew.

This is fair enough if there is no need for a criminal investigation. But in cases where the state’s public prosecutor wants to investigate possible civil liability or criminal offences, the accident investigation board should carry out a full safety management system evaluation and clarify compliance with the International Safety Management Code.

This is crucial information for the police before the starting up of a criminal investigation. We cannot expect the police investigator to have the full insight and understanding of the ship’s operational and navigational details and the sharing of responsibility between the company and the ship. Another flaw in the Full City case is that the court is acting and judging on behalf of a preliminary report, which clearly states that the investigation is not yet concluded. We see no evidence that the police have consulted anyone with a maritime background.

In the case of the Full City officers, they were detained in virtual house arrest by the confiscation of their passports. This must be considered as an illegal action and not justified in maritime laws.

Recent studies by BIMCO have identified 14 cases of seafarer’s detainment that took place during an 11-year period involving 12 coastal states. None of them were later convicted. According to BIMCO, this is unfair treatment of seafarers and a questionable application of law.

Marpol and the European Union’s directive 2005/35/EC give guidance on criminal proceedings being pursued only in cases where intent or serious neglect can be proven.

Even the United Nations Convention on the Law of the Seas urges that the human rights of the accused must be observed in all trials relating to the alleged violation of maritime pollution laws.

Has this provision been fulfilled for the Full City seafarers when their trial was based upon a preliminary investigation, and the police investigation was lacking professional maritime competence?

Arne Sagen is an authorised loss control manager, lead ISM code auditor and IACS quality assessor. He has been acting as port state inspector for Trinidad and Tobago, Namibia, Egypt and as flag state inspector for Antigua and Barbados. He is also on the advisory board of the Norwegian maritime safety lobby group, Skagerrak Foundation.

Source: http://www.lloydslist.com/ll/sector/regulation/article172372.ece?src=Search

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