Several instances of criminalisation of the maritime profession where authorities have acted against seafarers before any charges are proved in an appropriate court of law have been reported in the recent past. In many such incidents, the seafarers were at the receiving end at the port of call as the matter is often handled by people who do not have the basic idea of what can go wrong at sea or onboard. Just like a motor vehicle accident ashore, a mishap may occur at the sea also. At sea, this happens because of circumstances beyond the control of the seafarer. Perhaps it happens because of the negligence of those sitting ashore in arranging proper repair or maintenance of equipments fitted onboard. The seafarers are highly disciplined people who are aware of the high value of the cargo and sophisticated ship they are handling. They will brave their life to avert an accident – and that is the maritime tradition.
When an accident or a mishap occurs at sea, the seafarers become a guinea pig. The law enforcing authorities try to test their skills on admiralty and international law, as they rarely get a species of this kind. They use coercive or third degree methods to extract what they desire to fix a case. The situation becomes pathetic when a translator is not available for the seafarers to express their innocence. The protection of their home country’s legal system or a local legal representation may not be available instantly. It takes days or even months for the shipowners or their agents to turn up and till then seafarers are left to suffer the wrath. If at all they show up, their inclination will be to save the voyage and not the crew. Many seafarers have been subjected to prolonged detention at foreign countries, without charges having been proven against them – separated from their family and loved ones, abandoned by their shipowners & agents and without an idea as to when their ordeal will end.
Any one who flout the law or commits a crime should be punished. And there is adequate international legislation to approach maritime crimes. Several Unions of Seafarers have projected the need to ensure the protection of the rights of seafarers in view of the growing use of criminal proceedings against seafarers, in particular their prolonged detention, as a result of maritime accidents. The incidents that were reported globally and the representation of Seafarers’ Unions provided the background for the establishment of ‘Joint IMO/ILO Ad Hoc Expert Working Group on Fair Treatment of Seafarers’ to finalize guidelines on this issue.
The IMO Assembly at its 24th session in Nov-Dec 2005 adopted a resolution requesting the Joint Committee to finalise the guidelines expeditiously. The resolution urges all nations to respect the basic human rights of seafarers involved in maritime accidents; to investigate maritime accidents expeditiously to avoid any unfair treatment of seafarers; and to adopt procedures to allow the prompt repatriation or re-embarkation of seafarers following maritime accidents. It also invites Governments and non-governmental organizations to record instances of unfair treatment of seafarers in the event of maritime accidents and to provide data to IMO or ILO whenever requested.
The Joint IMO/ILO Ad Hoc Expert Working Group reviewed existing international instruments relating to the issue and agreed a draft resolution, for adoption by the IMO Assembly and the ILO Governing Body. The draft resolution expresses concern that in some cases the grounds for detaining seafarers following a maritime accident have not been clear to the seafarers being detained or to the international maritime community. Also, in some cases, the detained seafarers have been subject to conditions in which their basic human rights appear not to be have been fully respected. The draft resolution further states that, there is a need for recommendatory guidelines as a means of establishing “a framework of legal certainty and consistent good practice” to ensure that, in connection with maritime accidents, seafarers are fairly treated and their rights are not violated. It has also recommended the governments to implement the guidelines with effect from July 2006.
The salient feature of the draft guidelines as per Mr Brian Orrell, who served as Vice President of the Working Group (courtesy : NUMAST press release) are given below.
- The seafarers are ‘entitled to protection against coercion and intimidation from any source during or after any investigation into a maritime accident’.
- The draft lays down principles to be followed by port and coastal state authorities, flag states, the seafarers’ state, shipowners and seafarers.
- In any investigation, seafarers should be ‘treated in a manner which preserves their basic human dignity at all times’.
- Seafarers should have the right to independent legal advice during any investigation, along with any necessary interpretation services.
- Flag states should ensure that owners assist investigations and fund the repatriation of seafarers when employers abandon their crews.
- Seafarers should ensure that they have appropriate interpretation services and fully understand that any statements they make could be used in a criminal prosecution.
- Port and coastal states should ensure that detained seafarers are given the ability to communicate with their families, welfare organisations, owners, trade unions, consular officials and legal representatives.
The guidelines being an instrument with a humanitarian concern, will become a resolution and come up for adoption by the governments very soon. As in the case of any international conventions, the effectiveness depends on the sincere efforts of the governments in implementing it.
– By Jobships.com