A tribute to the community of seafarers in this year of the seafarers
By Fazlur Chowdhury, maritime adviser with General Organisation of Sea Ports in Bahrain
Originally published in Lloyd’s List, 2010/09/23
WHEN I joined a merchant ship as a cadet in 1963, life at sea was different.
As a young man it was always very exciting to call at new ports, see new lands, meet new people and of course get to know about their history and culture.
By choice of our unique profession we contributed to the world trade but in the process made new friends.
Almost 90% of the world trade is still sea-borne trade. How many of us ever thought of the fact that if all the sea-going ships were to be tied up in ports for merely two weeks, we would probably find the supermarket shelves empty. Today’s hectic modern lifestyle would come to a stand-still.
The subject of this article is the seafarers who keep these ships operating all over the world. If one wants to single out a community that has contributed more than any other to the cause of international trade and commerce then it has to be the seafarers. This is a community that remains out at sea, away from their near and dear ones for months at a time. There is no denying that it is their profession by their own choice but in the process they contribute so much to the cause of international trade, commerce and communications.
This in turn gives rise to friendship and closer relationship amongst nations. In today’s world of open door competition seafarers from several developing countries work together on ships in the spirit of friendship and brotherhood. In recognition of their special role, the seafaring community had always been treated with love, affection and respect. Ports around the world used to have recreational facilities to provide a home away from home.
Unfortunately things have changed. There are two factors. An incident in the year 2001 commonly referred to as 9/11 has perhaps caused more change than anything else. Terrorists’ actions in the US, Kenya, Spain, Bali and many other places claimed thousands of innocent lives and took away our peace of mind. The terrorist threats continue to exist and nobody knows for certain when and where the next will occur. Everyone has to be on guard to deny any further chance to the terrorists.
However, we must not suffer from any terrorist phobia. If we give up our modern lifestyle and do not enjoy the fruits of the modern civilisation built over ages then we help the terrorists achieve their goals.
This is one reason why the United Nations General Assembly Resolution A/ RES/ 57/ 219 ‘Protection of human rights and fundamental freedoms while countering terrorism’ affirms states must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law. Not granting shore leave to innocent seafarers in the name of security threat is nothing other than depriving the seafarer of their age-old tradition of recreational facility. It amounts to violation of human rights and dignity.
The other factor is a series of high profile ship related pollution cases around the world. Rightly or wrongly in most cases the master and chief engineer of the subject vessel is immediately arrested and put behind the bar like a criminal. The seafarers are kept in detention for days together without even any formal charge and in some cases without any access to lawyers or solicitors. This is certainly gross violation of human rights. The concept of natural justice of being innocent unless proved guilty is brushed aside and it falls upon the seafarers to prove that they are not guilty. The local authorities are always very eager to look to be doing something. The easiest thing to do is to put the master and chief engineer behind the bar. Sometime the marine professionals are the easiest scapegoats for the failure of others and thereby keep attention diverted when the issue is fresh and burning.
The tanker Prestige suffered structural damage in heavy weather and the master’s request for a place of refuge was refused. Instead the Spanish authorities towed the vessel 133 miles away from the coast of Spain exposing the damaged vessel to further perils of the sea, until finally six days later it sank. In the opinion of salvage experts, in a suitable shelter, the vessel could have transferred most of its cargo to other vessels and any limited spill out could be contained and later recovered/skimmed off. Nobody questioned the decision of the local authority; instead the master was arrested immediately despite having complied with all the orders and instructions. The suffering that Apostolos Mangouras underwent in Spanish jail is known to all. In any case the Prestige incident taught us two important things. It has now become a part of the Solas for coastal states to have designated shelters. It also identified the need for pre-arranged command structure which the UK has now done in the shape of a SOSREP.
In case of the tanker Tasman Spirit, which was under advice and guidance of fully licensed local pilot, it is again the master and crew of the vessel who were taken to police custody immediately after the incident as if they conspired and put the ship aground. It was later revealed that Pakistan was not even a party to Civil Liability Convention and the arrest was an effort to ensure that damages can be recovered. The innocent seafarers had to suffer for shortcoming on part of the government officials. There are many more such incidents where seafarers had to suffer for no fault of their own.
Now we look at another incident – this time it is not a ship but an oil rig named Deep Sea Horizon that exploded in the Gulf of Mexico off the coast Louisiana, US. The blast not only killed eleven persons but also caused the worst ever pollution known in human history. I have not heard of any police arresting any master, engineer or any other person. However, all measures have been taken to stop further pollution, clean-up the spill and compensate all affected. Inquiry and investigations are under way. The cause of the blast will be found and remedial action will be taken to avoid such explosion in future. It does not rule out punitive measures against any individual found to be negligent. That is the right way forward.
Denial of shore leave and locking up ship’s officers as the first action for any pollution incident is wrong. Being aware that seafarers work and live on ships involved in international trade and that access to shore facilities and shore-leave are vital elements of the seafarers’ general well-being and, therefore to the achievement of safer shipping and cleaner oceans, all coastal states should make recreational facilities available for the seafarers and allow them normal shore leave facility unless there is specific reason not to grant such facility to any individual. Asking them to obtain prior visa from the seafarers country of origin amount to denial of shore leave because sudden change of program may lead to unexpected destinations for which they were not prepared at the start of the voyage.
Criminalisation and victimisation of seafarers for no fault of theirs is barbaric and inhuman. With regard to the incident of Prestige Capt Roger MacDonald said: “It should be great concern to every European Union national that a democratically elected European Government got away with locking up a ship-master for three months in a high security prison without charge and without access to lawyers.” The secretary general of the International Maritime Organization said: “Punishing treatment meted out to seafarers, on whom international sea-trade and prosperity of nations depend, was not only disrespectful, wrong, unfair and unjust but also contrary to international law.”
United Nations Convention on the Law of the Sea is the paramount Convention on all sea related matters. We should, therefore, try to achieve our primary objectives through UNCLOS-82. Article 73 and 292 of UNCLOS-82 have clear provisions against unreasonable detention of seafarers and for their release against suitable bond or guarantee. Article 230 is very specific that monetary penalties may be imposed to control pollution of marine environment except in the case of a willful serious act of pollution in the territorial sea.
In the field of marine environment there is a number of international instruments to deal with various aspects of ship related marine pollution. They range from the subject of control and prevention of discharge by oil, chemicals, garbage, sewage and even exhaust by different annexes of the MARPOL-73/78. There is OPRC-90 that deals with preparedness and response (national as well as regional) in case of accidental pollution (how to contain and restrict and then the clan-up). There is Intervention-69 that gives powers to a coastal state to take pre-emptive precautionary action should it feel threatened by an accident or incident. In the field of compensation regime it has got CLC-69/ 76/ 92 to pay for by the carrier. There is Fund-71/ 76/ 92/ 2000/ 2003 to pay for on top of CLC.
The importance of protecting marine environment has gone to the extent of imposing restrictions and limitations on exchange of ballast water and use of anti-fouling paint on ships. These instruments are the outcome of lead given in the UNCLOS-82. There should be no need for putting people behind bar unless there is evidence of deliberate action or willful misconduct. Arresting people for cheap publicity or popularity should be discouraged.
On this occasion of the World Maritime Day the Secretary General of IMO says in a message to the world’s seafarers: “Our intention is to pay tribute to you, the world’s 1.5m seafarers – men and women from all over the globe.” As a seafarer, I say the best tribute we can pay to the seafarers is to do something which will prevent them being bullied in future.
I call upon both IMO and ILO to work together to prepare a draft document and then call a diplomatic conference to adopt a convention under title ‘Fair treatment to Seafarers’. The document, with all due respect to the sovereignty of every state, should make it binding upon them to ensure that visiting seafarers are given shore-leave (without insisting on prior visa) and that states should provide such recreational facilities as are considered appropriate to their history and culture except where there is reason for not granting such shore-leave.
In case of accidents or incidents resulting to loss or damage to human life, property or environment, the state which has the jurisdiction may inquire, investigate and deal with the matter in a manner acceptable under international treaties, practice and procedures. The flag state of the vessel should be involved in the process of investigation. Unilateral arrest of seafarers should be avoided unless there is clear evidence of deliberate misdeeds. Where arrests are already made, the seafarers should be treated with dignity and be provided with full access to legal support for grant of bail. Unless criminal negligence is established, monetary fine/penalty should be preferred to jail sentence.
Fazlur Chowdhury is the maritime adviser with General Organisation of Sea Ports in Bahrain. He was previously director general of Shipping in Bangladesh, deputy chief examiner of the UK-MCA and maritime administrator in Gibraltar.