MARITIME | Searching questions over seafarers’ rights to privacy

Steve Matthews | LLOYD’S LIST

A NUMBER of recent events have again highlighted apparent discrimination against seafarers when it comes to their rights in relation to alleged criminal offences, whether as suspects or victims.

Shipping industry organisations as well as seafarers’ trade unions are becoming increasingly vocal about this state of affairs as they face the challenge of attracting young people into seafaring.

The most high-profile example is that of piracy where seafarers, as victims of a crime, appear not to be accorded the same respect or treatment as others might expect in any other context.

Seafarers’ organisations suggest this is ably illustrated by the recent release of pirates apprehended by naval forces during attacks on merchant ships. The reasons given for the pirates not being detained or prosecuted involved the inability to lay charges and mount successful prosecutions. There is growing pressure for such procedural inadequacies to be addressed as a matter of urgency.

But meanwhile, for seafarers, being the victim of a crime onboard a ship is often treated simply an occupational hazard.

And when seafarers are accused of criminal offences such as smuggling or possessing drugs, alcohol and other illegal material, their rights can often appear less than equal with those of other citizens, especially if they are in foreign ports.

A recent court ruling in the US has raised particular concerns about the legal protection that seafarers have onboard ships compared with other citizens.

A US Court of Appeal for the 11th Circuit ruled in May that searching a seafarer’s cabin while in port without a search warrant or reasonable suspicion did not breach his rights. The ruling said: “There are no inspection-free zones on a foreign cargo vessel at the US border. Any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country.”

European Convention on Human Rights

ARTICLE 8: Right to privacy

(1) Everyone has the right for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This recent ruling contrasts with an earlier ruling in another court which said that a search warrant and reasonable suspicion was required to search a passenger’s cabin on a cruiseship in a US port. The Third Circuit court ruled in 2008 in a case where US Customs and Border Protection officers found heroin among personal possessions in a passenger’s cabin. The court said: “The search of private living quarters aboard a ship … must be supported by reasonable suspicion of criminal conduct.” It said that a cruiseship cabin is living quarters. A cruiseship passenger “had a reasonable expectation of privacy in his cabin”.

Seen together the two US court decisions imply discrimination against seafarers as their cabins do not seem to be afforded the same protection as a passenger’s cabin. These rulings illustrate the uncertainty about the status of seafarers’ cabins and seafarers’ rights when it comes to searches.

Last year, UK/Dutch seafarers’ union Nautilus issued a warning to its members about a crackdown in the UK and other countries on the contents of seafarers’ computers. It expressed concern that police, customs and immigration officials were mounting a concerted campaign to ‘trawl’ through seafarers’ computers searching for possible illegal or incriminating material.

Searches were reported in UK ports, New Zealand, US, Canada and South Africa with police officers boarding ships to inspect the contents of seafarers’ laptops and mobile phones. “We are disturbed that there appears to be a fairly concerted international drive on such inspections,” a Nautilus spokesman said.

Searches of ships in UK ports in relation to alleged criminal offences can be carried out by police or UK Border Agency officers.

The union sought clarification from the Home Office regarding the powers of police and other agencies to conduct such searches. “We have received some assurances from police and UKBA about the UK inspections and have been given details about the policies and procedures being followed, including a statement that ships are being selected for inspection on a ‘risk assessment’ basis,” the spokesman told Lloyd’s List.

Nautilus officer Chris Jones, covering ports in southern England observed: “Searches of ships by UKBA are routine, especially on ships that arrive with cargoes from Latin American countries and the West Indies. Indecent material is probably not the target on those vessels, but I am not convinced that inspections looking for indecent materials are intelligence led but some are random searches and perhaps by devious means as seafarers may not fully understand what is being said or asked.”

The union said that it continues to seek assurances from various authorities that seafarers are given the fundamental legal rights that they would have if they were shore-based. “We are not seeking to defend the indefensible, but we are profoundly uneasy about the way in which some authorities seem to be trawling through seafarers’ personal effects and also at the way in which intrusion into seafarers’ privacy could serve as yet another disincentive to recruitment and retention.”

The Home Office said to Lloyd’s List: “The search of any vessel within the territorial and internal waters of the United Kingdom plays an important role in securing our borders. UK Border Agency officers have powers as General Customs Officials to board vessels under the Customs & Excise Management Act 1979 and in certain circumstances in international waters under the Criminal Justice (International Co-operation) Act 1990.”

In legal terms seafarers enjoy the same rights and protections as anyone else under the Universal Declaration on Human Rights and the European Convention on Human Rights.

A UK lawyer advised Lloyd’s List that under the UK Police and Criminal Evidence Act 1984, police have powers to stop and search any person or vehicle, which specifically includes vessels, without a search warrant, provided they have reasonable grounds for suspecting that they will find stolen or prohibited articles.

They do require a search warrant to enter and search premises, which also include vessels, to search for evidence if they have reasonable grounds for believing that there is material of substantial value to an investigation.

These requirements imply that random ‘trawls’ are not lawful. However, they are entitled to seize material found other than related to the suspected offence.

To obtain a search warrant police must specify the premises and satisfy a magistrate that there are reasonable grounds to believing that it is necessary to search those premises. It is not clear if specifying a vessel is sufficient or if it a particular location or cabin must be identified.

Recent anti-terrorism legislation extended police powers to stop and search suspects and their vehicles without the need for reasonable grounds for suspicion. This power could potentially be used to search ships and has similarities with the recent decision in the US. However, a recent case in the European Court of Human Rights found that these powers were a breach of Article 8, regarding an individual’s right to respect for his private and family life, and did not contain sufficient legal safeguards. This means such searches require reasonable suspicion. This ruling applies to all EU member states.

It is therefore doubtful whether a search of a seafarer’s cabin without reasonable grounds for suspicion would be deemed lawful.

A vessel is regarded as private property but it is uncertain whether the master can consent to searches of individual seafarers’ cabins.

Paul Campbell UK Association of Chief Police Officers strategy co-ordinator, maritime planning and operations, commented to Lloyd’s List: “Normally the search would be at the request of, or with the consent of the ship’s owner and/or Master. In those circumstances they would give permission for the search. To the best of my knowledge all spaces on a ship including cabins remain the property of the owner and the Master acts on their authority. In the unlikely event that a shipowner was unco-operative, then it might be prudent to obtain a warrant.”

In Europe, clarifying the uncertain rights of seafarers to privacy in their cabins might require a court challenge under Article 8 of the ECHR and in the US to the Supreme Court, although there is no guarantee they would rule in seafarers’ favour.

Even in the 21st century it seems that whether seafarers’ enjoy some of the basic rights of other citizens as victims or suspects is still a matter for debate.

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6 Comments

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6 responses to “MARITIME | Searching questions over seafarers’ rights to privacy

  1. I don’t think the assertion that the two US court decisions “imply discrimination against seafarers” is accurate. Having read both opinions, I am sure that the 11th Circuit panel would have reached the same conclusion had it been dealing with a passenger’s cabin and the 3rd Circuit judges would have applied their standard to a crew member had that been the case before them. The former leaned heavily on the national security concerns at the border to find a lessened expectation of privacy (the living quarters of an RV would not be exempt from search at the border), while the latter weighed the general privacy interest in an individual’s (rather than a passenger’s) sleeping quarters more heavily (the intrusion was similar to that of body cavity and X-ray searches, whereas the 11th Circuit said the cabin search wasn’t similarly intrusive). In short, neither decision turned on the status of individual as a passenger or crew member.

    Regarding laptop searches, US Customs and Border Protection asserts the right to check anyone’s computer at the border. I doubt seafarers as a class are being specially targeted as I suspect most of this activity has taken place at airports. As evidence: various attorney groups have expressed great concern over CBP’s stance and have suggested not taking any attorney-client materials outside the US, if at all possible, as they might be inspected upon return, undercutting the attorney-client and work-product privileges.

  2. My previous comment should not be read as suggesting that seafarers are not getting the shaft in other areas–it’s merely that they are not being singled out or discriminated against in these.

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