Maritime security vis-à-vis fair treatment of seafarers
A conundrum in the development of international maritime law
Frank L. Wiswall, Jr.
Vice-President (honoris causa) Comité Maritime
International/ Former Chairman of the Legal
Committee of the International Maritime
Organization/Proctor and Advocate in Admiralty
What do the recent cases of the Sirius Star and the Hebei Spirit have in common? Or for that matter the older cases of the Achille Lauro and the Prestige? At first glance, nothing. The Sirius Star, a laden crude oil tanker, was taken by pirates in late 2008 off Somalia and together with her crew was held hostage; millions of dollars in ransom was paid and the pirates have gone unpunished. The Hebei Spirit, also a laden tanker, collided with a barge in 2007 and spilled oil in South Korean waters; her master and chief mate were arrested, jailed, convicted of environmental crimes and sentenced to prison. The Achille Lauro, a passenger liner, was the victim of a terrorist hijacking off Egypt in 1985; one of her passengers, an elderly disabled man confined to a wheelchair, was murdered in cold blood by the terrorists – who ultimately were captured and then released without trial. The Prestige, a tanker laden with heavy fuel oil, began to crack in heavy weather in late 2002 and was refused entry to ports of refuge in France, Spain and Portugal; naval vessels of those States held the Prestige out at sea, where she broke up and sank resulting in serious pollution of the Galician coast; her Master was arrested, jailed, convicted of environmental crimes and sentenced to prison. What these cases actually have in common is that they are flames at both ends of one legal candle, burning inexorably towards each other.
The Achille Lauro case prompted the drafting and adoption of a new international convention to combat terrorism, popularly known as SUA Convention,1 which can also be a highly effective tool in the suppression of piracy2 if the States Parties to the SUA Convention are able to muster sufficient collective resolve.
1 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988.
2 See UN Security Council Resolutions S/Res/1846 of 2 December 2008 and S/Res/1851 of 16 December 2008.
On quite the opposite tack, the international law applicable to cases such as Hebei Spirit and Prestige is founded upon the principle of comity and the customary international law recognizing flag State primacy of jurisdiction over the ship and crew, and has been established as conventional international law for over half a century. The CMI3/Brussels Penal Jurisdiction Convention4 provides:
Exclusive Competence of Ship’s Flag [State]
In the event of a collision or any other incident of navigation concerning a sea-going ship and invoking the penal or disciplinary responsibility of the Master or of any other person in the service of the ship, criminal or disciplinary proceedings may be instituted only before the judicial or administrative authorities of the State of which the ship was flying the flag at the time of the collision or other incident of navigation.
Vessel May Not Be Detained Abroad
In the case provided for in the preceding Article, no arrest or detention of the vessel shall be ordered, even as a measure of investigation, by any authorities other than those whose flag the ship was flying.
Over the 40 years following its adoption, 72 States have become Parties to the Penal Jurisdiction Convention; however, during this period the substance of Articles 1 and 2 of that Convention was also embedded in UNCLOS:5
Penal Jurisdiction in Matters of Collision or any other Incident of Navigation
1 In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility
3 The CMI is a non-governmental international organization founded in 1896 and formally organized in 1897; it is the oldest international organization in the maritime field. Its voting members are the constituent National Associations of Maritime Law, and at present there are over 50 such members with wide geographical distribution around the world. The CMI’s sole constitutional objective is and has always been the promotion by all appropriate means of international uniformity in all aspects of maritime law and maritime commercial practice. From the beginning of the twentieth century this objective was attained in cooperation with the government of Belgium, which acted between 1910 and 1979 as host to 13 Diplomatic Conferences on Maritime Law, convened to act upon draft conventions and protocols prepared by the CMI; the products of these Conferences are widely known as the ‘Brussels Conventions on Maritime Law’.
4 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation, 1952. Entered into Force on 20 November 1955.
5 United Nations Convention on the Law of the Sea, 1982. Entered into force 16 November 1994.
of the Master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2 In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3 No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.
At present there are 157 States Parties to UNCLOS, including all of the States involved in the cases of detention of vessels and criminal prosecution of their Masters and officers referred to in this paper.
Incidents of piracy have steadily increased in frequency6 over the past 20 years; yet while these brazen and unquestionably criminal acts have become daily news fare, the plight of seafarers who are treated as criminals after being involved in a collision or other ‘incident of navigation’ (i.e., a maritime casualty) receives scant notice in the non-maritime media. The odds at present are that the Master of a foreign-flag vessel involved in a maritime casualty resulting in high-profile environmental damage will be prosecuted and jailed by the affected coastal State, and it appears to be a matter of indifference that the coastal State in question is a Party to UNCLOS or the Penal Jurisdiction Convention. Of course if the casualty takes place in waters under the national jurisdiction of the coastal State it may be argued that the conventions – which by their terms apply only to incidents on the high seas7 – have absolutely no application. On a strict literal interpretation this may be true, but even where human error is an obvious cause, to bring a criminal prosecution ignores a basic concept in the law of human rights, namely that ordinary negligence is not criminal conduct. In the parlance of maritime law, a casualty is an accident, not an act involving the necessary criminal element of mens rea.8 Moreover, Article 230 of UNCLOS is specific in its mandate that States Parties seeking penalties in cases of violation of laws, regulations, rules or standards designed to prevent or minimize marine pollution are restricted to monetary penalties, and must also observe the human rights of the accused.9 Unfortunately some States appear to read this as providing that if the casualty giving rise to the violation occurs within territorial waters even the human rights of the accused may be ignored.
6 A brief exception occurred immediately after the terrorist atrocities of 11 September 2001, when pirate attacks virtually ceased for a period of weeks and only resumed their pre-9/11 level in 2002.
7 See, in particular, Article 4 of the Penal Jurisdiction Convention.
8 See, e.g., The N. F. Tiger  2 Lloyd’s Rep. 564 (Divisional (Criminal) Court, HCJ, England).
9 UNCLOS, Article 230, para. 3: ‘In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognized rights of the accused shall be observed.’
What is particularly unsettling is that, in the high-profile cases of criminalization of ordinary negligence, this manifest injustice has been compounded by making scapegoats of the ship masters – and in some instances other officers and crew – in a transparent attempt to mollify public opinion and/or to divert public attention from acts or omissions of government that may have constituted a contributing cause of the casualty. The disrespect for international law engendered by such misconduct on the part of States fans the flame at that end of the legal candle.
At present the plague of piracy – particularly near the Horn of Africa and in the Gulf of Aden off the coast of Somalia – has become headline news in the everyday media. Despite the escalation in frequency of incidents since the early 1990s, it appears to be the attack on the cruise ship Seabourn Spirit in late 2005 that finally focused general public attention on piracy; great attention was drawn to this incident by the passengers interviewed on television who vividly described the early morning assault using machine guns and rocket-propelled grenades, which damaged the side of the ship and injured a crewmember.10