WMU Symposium 2008, Malmo, Sweden

Nov 11, 2008

Deborah G Blanchard, Staff Attorney
The Seamen’s Church Institute

World Maritime University Symposium
Malmö, Sweden 

INTRODUCTION

Good morning, and thank you for that kind introduction. I am honored to be here at the WMU symposium and thank both WMU and the symposium sponsors. My colleague Douglas Stevenson regrets that he was not able to attend, though I am delighted to be here in his stead

For those of you not familiar with the Seamen’s Church Institute, we are an ecumenical agency affiliated with the Episcopal Church that has worked to promote the personal and professional well-being of merchant mariners around the world since 1834. We are about to celebrate our 175th anniversary. Since September 11th, our work has included a growing focus on maritime security and its impact on seafarers.

I must start my presentation with a caveat-the recent economic crisis has clearly impacted shipping, and some of the newbuildings and demand for seafarers that were projected only a month or so ago, though I am going to stick with the old numbers for the time being, as many rumors are circulating at the moment, and I am not enough of an economist to determine the outcome. I think ultimately the issues affecting recruitment and retention remain the same, especially as shipping is such a cyclical industry. In addition, the need for vigilance on the abandonment front may increase as economic difficulties increase.

Slide #1

My topic today is whether security requirements and criminal prosecutions are counter-productive in terms of recruitment and retention. The short answer is: yes and no. While security requirements are absolutely necessary and criminal prosecutions justified when intentional criminal actions occur, unreasonable or indiscriminate applications of both impact both the perception of the industry by seafarers, and their sense of the industry’s value of them as workers. To quote Professor Yacobssen from yesterday “Seafarers can’t be expected to protect cargo if not working under decent conditions.”

Slide #2

Prior to the recent economic downturn, shipping was booming. At the beginning of 2008 there were 44,553 ships (300 dwt and above) with 1.08 billion dwt in the world merchant fleet.  Since 2004, the world’s merchant vessel tonnage has grown at an average rate of 6.5% each year.  New ships are being built at a record rate and old ships are not being scrapped.  There are about 9,000 ships with 520 million dwt on order – about 48% of the current tonnage (from ISL’s 2008 Shipping Statistics and Market Review). According to the World Trade Organization, International trade has been increasing at rates between 5.4% and 8.0 % each year from 2000-2006.  About 90% of the world’s goods are transported by ship, and the U.S. Department of Transportation projects that the volume of goods passing through United States ports will increase by more than 50% between 2001 and 2020 and the volume of international container traffic will more than double.

Prosperity in today’s globalized economy depends upon merchant shipping, but shipping faces a number or serious threats.  One of the greatest threats to shipping is not from terrorism or high energy costs, but from recruiting and retaining skilled and reliable mariners.  

The crewing crisis dominates much of the discussion at maritime industry meetings (followed only perhaps by maritime security and piracy.)  Severe officer shortages have been projected for the years to come. Ship managers and crewing agencies are finding it increasingly difficult to find and keep skilled seafarers. Numerous factors are cited for the crisis, and discussions of all of the factors that affect seafarers’ job satisfaction and seafarers’ recruiting and retention could provide subject matter for several seminars and conferences. Security restrictions and criminalization of seafarers are two of the elements that greatly impact job satisfaction that I will discuss today.  In both areas, steps can be taken to make seafaring a more attractive career choice without compromising security or legitimate criminal prosecutions.

Before getting to those issues, let me briefly make one point about recruitment and retention in the context of the development of maritime law. Many of the protections that currently exist in maritime law, such as right to repatriation and to maintenance and cure, to decent lodging and provisions, derive from ancient maritime codes. Many of the seafarers’ rights contained in the recent Maritime Labour Convention, 2006 have their origins in those codes. But these ancient seafarers’ protections were not created for charitable or human-rights reasons. Early maritime enterprise and early courts both recognized that maritime commerce depended on protecting the people who moved the goods, and it was in everyone’s best interest that their rights were guaranteed.  Later on, even the United States Supreme Court described shore leave in the following manner:

“The assumption is hardly sound that the normal uses and purposes of shore leave are "exclusively personal" and have no relation to the vessel's business.  Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline.  Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly.  No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it.  Even more for the seaman than for the landsman, therefore, "the superfluous is the necessary . . . to make life livable" and to get work done.  In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion.” (Agular v. Standard Oil Company, 64 S.Ct. 930, 1943)  

The same remains true today when contemplating the treatment of seafarers, whether in the context of security or criminal prosecution.  

SECURITY RESTRICTIONS

As we are all aware, post 9/11, increased security measures have necessarily come into place though state implementation of ISPS.  The concept of “domain awareness” essential to maritime security relies on seafarers to serve as the eyes and ears on merchant ships and in seaports, as they are uniquely qualified to recognize suspicious situations, and to report them to the authorities. In order to best function in that capacity, as security officers or otherwise, seafarers need shore leave. This need is recognized by a variety of international instruments exist that acknowledge both seafarers’ value and underscore the importance of shore leave to seafarers.

SLIDE #3

Pre-9/11, the International Maritime Organization (IMO) Convention on Facilitation of International Maritime Traffic, ratified by ninety-two countries, including the United States of America, contains in Section 3.44, a modern codification of mariners’ right to shore leave, stating that:

“Foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reasons of public health, public safety or public order.”

Post 9/11, the International Ship and Port Facility Security Code (ISPS), also accepted by the United States, recognizes in Preamble paragraph 11 the same need for shore leave providing the security and public health requirements have been met, adding that:

"Contracting Governments, when approving ship and port facility security plans, should pay due cognizance to the fact that ship’s personnel live and work on the vessel and need shore leave and access to shore-based seafarer welfare facilities, including medical care.”

To reassert the importance of shore leave in ISPS, IMO MSC/Circ.1112 of 7 June 2004, reminded Contracting Governments of their responsibilities in implementing the ISPS to afford special protections to seafarers and of the critical importance of shore leave.  The exhortations contained in the Circular are based on the principles that seafarers have primary security duties under the ISPS, and they should be viewed as partners in the new security regime rather than as potential threats to security.

Similarly, the International Labor Organization’s Seafarers’ Identity Documents Convention (Revised), 2003 (ILO-185), which I will discuss in more detail later, confirms seafarers’ right to shore leave in its preamble.

SLIDE #4

Shore leave survey.
To track this important issue in the changing maritime security world post 9/11, since 2002, the Seamen’s Church Institute of New York and New Jersey (SCI) has conducted annual surveys of seafarers’ shore leave detentions and restrictions on seafarers’ and chaplains’ access through terminals in United States ports.  During the week of 20 through 27 July 2008, seafarers’ centers in thirty-four United States ports and one Canadian port participated in the survey.  Twenty three ports detailed instances where seafarers were denied shore leave or terminals imposed restrictions on chaplains’ or seafarers’ access through the terminals.  

The 20-27 July 2008 survey revealed that on approximately 20% of the ships visited, one or more seafarers were not allowed shore leave.  Seafarers were denied shore leave because they didn’t have visas, terminal restrictions, ship restrictions, and ship agents’ actions.  Before looking at the visa issue-the largest contributor to shore leave denials-seafarers have been encountering two other problems regardless of whether they possess valid US visas and can apply for entry to the U.S.

First are terminal restrictions. Terminal restrictions are examples of short-sighted decisions that do not enhance security but have a large impact on seafarers’ job satisfaction.  The International Ship and Port Facility Code (ISPS Code) in Part A 16.3.15 requires port facilities to include in their facility security plans “procedures for facilitating shore leave for ship’s personnel. . .”  The ISPS Code recognizes that seafarers have important security responsibilities as well has personal needs.

The survey indicated that several terminals thwart the objectives of the ISPS by imposing exorbitant fees to escort seafarers and other visitors through their terminal.  The fees are too expensive for seafarers to pay, and their employers refuse to pay the fees, this effectively depriving seafarers’ access to shore leave.  The fees also block port chaplains from access to ships in the terminals.  One of the typical services provided by port chaplains to seafarers, especially to those seafarers who are restricted to their vessel, is providing them mobile telephones and telephone cards so that they can communicate with family and friends. Restricting chaplain’s access to vessels creates even more hardships for seafarers who cannot go ashore.

SLIDE #5

To help address this problem, the U.S Coast Guard recently issued  ALCOAST 529/08 , which states that the denial of terminal access to those who hold a visa and whom Customs has cleared, or to seafarer welfare organizations,  runs counter to the  intent of their regulations implementing the Maritime transportation Security Act, the US version of ISPS. It also recognizes the importance of shore leave to “maintaining crew morale, readiness and wellbeing.”

SLIDE #6

On other positive sign on the horizon is contained in legislation pending in the United States Congress that would prohibit terminals in the United States from imposing fees to seafarers to transit their terminals for shore leave.  Ship operators also have an opportunity address this problem.  They could reexamine their decisions to use terminals that place obstacles on their crews’ shore leave and they could review the costs of paying the fees imposed by terminals in considering their effect on seafarers’ job satisfaction and recruiting and retention.  

SLIDE #7

In addition to terminal restrictions, ship restrictions on shore leave, surprisingly, still persist. Ship operators have for centuries recognized that shore leave is necessary for their crewmembers health and for the safe and efficient operation of their vessels.  Traditionally, a ship’s master can grant shore leave at his or her discretion.  The decision to grant shore leave should not be at the personal whim of the master, nor should a master deny shore leave as a punishment.  

Although a ship’s master may legitimately restrict shore leave to accomplish the ship’s operational requirements or for health or safety reasons, the shore leave survey reports indicated other reasons for ships’ restrictions: to prevent their crews from jumping ship.  One ship operator prohibits all Burmese seafarers from taking shore leave in the United States.  Other ship operators restrict their crews to their ships after one of the crew deserted.  Such restrictions do not prevent seafarers who are intent upon deserting from doing so.  If a seafarer wants to jump ship he or she will find a way to do so, regardless of any restrictions on shore leave imposed by a vessel.  The restrictions do, however, have an effect on recruiting and retention.    Maximizing shore leave opportunities will go a long way toward improving seafarers’ job satisfaction and retention.

Agent Restrictions.   The survey also indicated that shore leave was denied because of ship agent’s actions or omissions.  Agents represent shipowners’ interests, so their actions or omissions are extensions of shipowners’ responsibilities.  Ship agents are responsible for informing U.S. Customs and Border Protection (CBP) a ship’s arrival in a timely manner so that an immigration inspection can be conducted.  They are also responsible for ensuring that proper immigration forms are prepared for the CBP inspection. When agents do not fulfill the requirements for an immigration inspection, seafarers are denied shore leave.  A related issue is that in some terminals, agents must authorize port chaplains’ visits to vessels. When agents do not make proper arrangements for chaplains to visit ships in terminals, crewmembers suffer.  This potentially bars access to ships that need visits the most; ships where seafarers may be deprived of shore leave and the welfare services provided by chaplains.  Ship operators’ decisions on how agents represent their interests in ports, especially those that relate to seafarers well-being have a very significant impact on seafarers’ job satisfaction.

SLIDE #8

Turning to the larger visas issues, our surveys since 2002 have consistently indicated that U.S. Visa requirements remain the greatest obstacle to shore leave in the United States.  The survey revealed that 76% of all shore leave restrictions were because seafarers did not have United States crewmember visas (D1, D2).  

In order to apply for entry to the U.S., a seafarer must have one of two types of visa. A visa does not guarantee entry, but only allows a seafarer to apply for entry.

The United States requires foreign crews on visiting merchant vessels and aircraft to have a D-1 visa to apply for shore leave. 8 U.S.C. § 1101(a)(15)(D)(i). Crewmembers who sign-off from their ships in the United States and depart on conveyances other than the ships on which they arrived on are required to have D-2 visas, 8 U.S.C. § 1101(a)(15)(D)(i). Crewmembers who wish to enter the United States to join their ship in the United States must have a C-1 transit visa, 8 U.S.C. § 1101(a)(15)(C).  

Individual D-1 visas must be obtained at a United States consulate at a cost of $131.00.  They are multi-entry visas valid for up to ten years.  Because of reciprocity, most are valid for five years.  Merchant mariners customarily must pay for their own D-1 visas.

Pre-arrival notices.  The U.S. Coast Guard (USCG) requires vessels to provide 96-hour advance notice of arrival before calling at a United States port.  The Notice of Arrival information included lists of every person on board the vessel.  The USCG provides the crew lists to CBP where names are run through the Interagency Border Information System (IBIS) containing “lookout” databases maintained by the U.S. Customs Service, the U.S. State Department, the U.S. Bureau of Alcohol, Tobacco and Firearms, the U.S. Drug Enforcement Agency, the Royal Canadian Mounted Police and other law enforcement agencies.  IBIS also includes data on arrests and warrants in the Federal Bureau of Investigation’s National Crime Information Center (NCIC) database and lookouts posted in the CBP’s National Automated Immigration Lookout System (NAILS).

Border entry formalities.  When a vessel actually arrives in a United States port, a CBP officer boards the ship and personally inspects each crewmember and his or her documentation, including passport or seamen’s book and visa.  The immigration officer has discretion to grant or deny shore leave.  If shore leave is granted, the crewmember is provided with a Crewman’s Landing Permit (Form I-95) authorizing entry into the United States for up to 29 days.  The Crewman’s Landing Permit is a simple paper form that does not contain a photograph.  If CBP does not approve a crewmember’s shore leave, the crewmember is detained on board and not allowed to leave the ship.  The ship’s master normally holds the crewmembers’ passports in the ship’s safe while the vessel remains port.  Foreign crewmembers, therefore, often do not have a photo identification card while on shore leave.  On January 18, 2005 the USCG determined that when crew passports are required to be kept on the vessel and no other form of identification is available for the mariners, a photo ID meeting the requirements of 33 CFR 101.55 must be provided by the vessel’s owner or operator for the purpose of facilitating shore leave in the United States.

Visa Waivers and Paroles:  Authority does exist in 8 U.S.C 1282(a) for the Secretary of the Department of Homeland Security to promulgate regulations authorizing CBP officers to waive visas.  There are existing regulations in 8 C.F.R. 252.1(d) that authorize waivers for all or part of a crew.  Neither the statutory or regulatory authority provide any criteria for granting visa waivers, but past waivers include instances where ships could not obtain a visa because there was no American consulate at its last foreign port, or because the ship received orders while at sea to sail to a United States port.

Parole provides another option for a seafarer to go ashore in the United States without a visa.   A CBP parole allows a crewmember detained on board a vessel to temporarily go ashore for specific purposes, such as to conduct necessary ship’s business or to obtain medical care 8 U.S.C. 1182(d)(5); 8 C.F.R. 253.1.

As visa waivers and parole do not offer a long term or widespread solution to the shore leave issue, an better exists in the International Labour Organization’s (ILO) Seafarers’ Identity Document Convention, 2003 (Revised) (ILO-185).

ILO-185 was adopted in response to a United States initiative following the September 11, 2001 attacks.  ILO-185 was adopted by the ILO on 20 June 2003.  ILO-185 establishes an international system of biometric seafarers’ identity documents that satisfies contemporary security concerns, maintains necessary facilitation of shipping, and recognizes the needs of seafarers.  Features of ILO-185 include:

  • Establishes international standards for seafarers identity documents (SIDs);
  • SIDs are issued by the seafarer’s country of citizenship of permanent residence, not by the flag state;
  • SIDs employ fingerprint biometric standards using internationally recognized and proven ICAO standards that are used in the international aviation industry (including well-tested readers);
  • SIDs are identity documents only, they are not travel documents;
  • SIDs do not require background checks or security clearances, they only establish identity so that background checks and security assessments can be made from them.
  • SIDs would remain in seafarers’ possession, even while ashore (passports with United States visas are normally kept locked up in the ship’s safe.)
  • Seafarers still not guaranteed entry, must undergo entry interview, 96-hr notice screening.

Unfortunately, the United States has not ratified the convention, and this, in turn, has discouraged other countries from doing so.  In force as of 2005, as of September 11, 2008, thirteen countries have ratified ILO-185 (Albania, Azerbaijan, Bahamas, France, Hungary, Indonesia, Jordan, Republic of Korea, Madagascar, Republic of Moldova, Nigeria, Pakistan, and Vanuatu, and Yemen. Some other countries have indicated a reluctance to ratify ILO-185 and undertake the expense of setting up a seafarers’ identity document system when the United States has not done so.

The United States hasn’t ratified the ILO-185 due to the article 6 requirement to a SID as a substitute for a visa for the purpose of shore leave.   The United States’ reliance on its visa system that covers only foreign seafarers who want shore leave in the United States and prevents greater protections achieved through widespread implementation of ILO-185.  Three significant maritime and port security improvements over D-1 visas that would be realized through ILO-185 are:

  • Visas are required only for those foreign seafarers requesting shore leave in the United States.  Seafarers on ships in United States ports and waters are not required to have visas. ILO-185 would provide a mechanism for establishing the identity of all seafarers on all ships wherever they are.
  • Passports with visas are kept locked up in ships’ safes when in United States ports.  ILO-185 SIDs would be carried by foreign seafarers when ashore, providing them with secure biometric identification while ashore.
  • Potentially, all of the world’s seafarers could have biometric IDs.

The combination of the ILO-185 card and existing security measures, including port of entry immigration interviews, would provide a sufficiently high level of security.  Crewmembers not in possession of a SID would have to obtain a visa to apply for shore leave in the United States.  To have all seafarers entering U.S. waters posses a SID adds a significant benefit, greater than only portion possessing a U.S. visa.

If ILO-185 is not ratified by the major maritime nations, an increasing number of port states may begin to impose visa requirements for shore leave for all mariners, resulting in increased expenses and administrative burdens. U.S. In addition, the United States will have to devise a new credentialing system for foreign seafarers to meet the requirements of the Maritime Transportation Security Act.

Implementing ILO-185 represents a significant expense for many maritime labor producing countries, such that without major port state acceptance of the SID, they may be reluctant to undertake the cost of creating a secure SID implementation system for no benefit. The United States should be encouraged by other nations to reconsider ratifying ILO-185 taking into account the increased security and the improvements in seafarers’ job satisfaction that the convention would provide.

CRIMINAL EXPOSURE

Turning to a different arena affecting recruitment and retention, let us now look at the recent trend described as “criminalization of seafarers.”  Because of the perilous nature of seafarers work, maritime nations enacted special protections for seafarers to induce them to pursue a maritime career.  Yet recently, some countries have used the law to single out seafarers for criminal prosecutions when things go wrong in their ports.  As a result, a perception has grown amongst seafarers that they are subject greater risks of criminal prosecutions than persons pursuing other occupations, which deters skilled people from seagoing careers.  

I will just touch on a few of the recent cases illustrating this trend, though some of you may already be familiar with them:

MT Hebei Spirit.  While at anchor in Daesan Harbor, South Korea early in the morning of December 7, 2007 the VLCC Hebei Spirit under the command of Captain Jasprit Chawla was struck by a runaway crane barge.  The barge was floating free after it broke away from its tug in rough seas.  The collision punctured three tanks on the Hebei Spirit causing the largest oil spill in South Korean history.  The spill occurred near one of South Korea’s most beautiful beaches and affected wetland areas, wildlife, and aquaculture farms.  Although credited with taking actions that limited some of the damages, South Korean prosecutors criminally charged Captain Chawla and Chief Officer Syam Chetan.  On June 23, 2008 the district court cleared both Captain Chawla and Chief Officer Chetan of all charges.  However, they continue to be detained in South Korea pending an appeal of the case by Korean prosecutors to a high court.  

MV B Atlantic.  On August 13, 2007 Venezuelan National Guard arrested Captain Volodymyr Ustymenko and Second Officer Yuriy Datchenko after they discovered a package of cocaine attached to the outside hull below the waterline of the MV B Atlantic while in Lake Maracaibo.  Despite having no evidence of the seafarers’ involvement, the men remain under house arrest in Venezuela awaiting trial.  Trial is expected to commence in late 2008.  At least three similar cases have occurred in the same port over the past two years.

MV Coral Sea.     In mid-July 2007, Captain Kristos Laptalo, First Mate Konstantin Metelev, and Bosun Narciso Carcia of the M/V Coral Sea were arrested and charged with smuggling 52 kilos of cocaine into Greece.  The ship’s agent discovered the cocaine during a routine quality check hidden in two of the 27,000 boxes of bananas that had been unloaded in Patras, Greece.  (The Coral Sea’s total cargo was 187,000 boxes of bananas.)  The seafarers did not have access to the cargo of bananas during loading in Ecuador or during the voyage to Europe, nor did they know that the vessel was bound for Greece until after the vessel had departed-it had initially been bound for New York.  After being held in prison for one year, the seafarers’ trial was held in July 2008.  No evidence was produced at trial that established any connection between the seafarers and the cocaine.  To the contrary, one prosecution witness testified that he didn’t believe that the seafarers knew that cocaine was on their vessel.  The court acquitted First Officer Metelev and Bosun Carcia, but convicted Captain Laptalo and sentenced him to fourteen years in prison and a € 200,000 fine.  The judges’ rationale for convicting Captain Laptalo was that as Captain he should have known what was on his ship and be responsible for it.
 
Zim Mexico III.  On March 2, 2006 while the MV Zim Mexico III, under the command of Captain Wolfgang Schröder and assisted by a harbor pilot, was maneuvering from its berth in Mobile, Alabama, struck the pier and the overhang of its bow knocked over a container crane.  Tragically, when the crane collapsed it fell on an electrician who was working on the crane contrary to safety procedures and killed him.   Captain Schröder was arrested on April 17, 2006 and charged with a felony under the United States Seamen’s Manslaughter Act. On October 12, 2006 a Mobile, Alabama jury determined that Shawn Jacob’s death was caused in part Captain Schröder’s negligence, and they convicted him of the manslaughter charge.  At Captain Schröder’s sentencing hearing on February 7, 2007, the trial judge sentenced him to the four months he had already served in jail noting that Captain Schröder had been found guilty of only simple negligence, and that such acts are normally handled in civil courts, not criminal courts.

These cases, as well as several others, have suggested a general trend to use criminal laws to respond to maritime accidents and other maritime incidents.  While criminal laws serve as important tools of society to deter intentional crimes, and seafarers should be held responsible for intentional criminal acts, they should not be singled out for unfair criminal procedures because of the unique nature of their profession. They have created a perception that seafarers are subject to criminal prosecutions for actions that would not be crimes in other occupations.

Whether this perception is justified or not is irrelevant, because when attempting to recruit or retain seafarers, perception is reality.  Seafarers are acutely aware of the criminal prosecutions of their colleagues, and they are worried about their criminal exposure.  This risk affects their career choices. The maritime industry’s recruiting and retention crisis will get worse unless the maritime industry unites to protect seafarers from unreasonable prosecutions, and works with state governments to prevent unjustified prosecutions.  
Instruments such as the IMO/ILO Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident also serve to improve perceptions and to ensure that seafarers are treated fairly when detained by public authorities in the event of a maritime accident. Industry and governments should endeavor to follow the guidelines in the event of an accident.  To quote Admiral Mitropolous, “Seafarers serving throughout the shipping industry will not only have a clearer understanding of the fundamental elements of fair treatment in the unfortunate event they are caught up in a maritime accident, but they will also feel encouraged by the knowledge that they have the international community at their side, which, should the situation arise, is prepared and willing to pay attention to their plight.”

An additional place for the industry to unite to protect seafarers is in the United States.  As the Captain Schröder case demonstrated, there is a special manslaughter statute, the Seamen’s Manslaughter Act, 18 USC 1115, which provides criminal penalties for maritime fatalities caused by only simple negligence.  This act, by its very presence on the books, says to seafarers that they are treated differently from other workers in a very negative way.

The law applies only when a maritime incident results in death. A conviction under the Act requires only proof of any degree of negligence, including simple negligence (‘but for’).  Persons working on other conveyances, such as trains, airplanes, trucks, or buses do not face criminal conviction for deaths caused by their simple negligence or unintentional acts.  (A different manslaughter crime applies to those persons and others, including mariners, within United States federal jurisdiction. This crime, 18 U.S.C. 1112, like most other manslaughter crimes, requires proof that the accused caused a death with criminal intent or by criminal negligence. (knew or should have known)

The Seamen’s Manslaughter Act also runs counter to modern maritime safety principles by preventing a casualty investigation from determining the cause of a casualty.  If a maritime accident causes a death, the entire ship’s crew and the ship’s managers face possible criminal prosecution.  As a result, they have the right to refuse to answer an investigator’s questions about the circumstances surrounding the casualty, thereby making it very difficult for an investigator to determine the casualty’s cause and to make recommendations for prevention.

When bad things happen in ports, prosecuting a transient mariner becomes a convenient way for local prosecutors to appease their constituents.  Such short-sighted prosecutions may well work against local interests by hampering casualty investigations and by deterring ships from calling at ports where mariners face unfair exposure to criminal prosecutions.

The United States Seamen’s Manslaughter Act is a relic of the past.  It should be repealed, leaving 18 U.S.C. 1112, available for prosecuting mariners or ship operators who cause the death of another through criminal intent or criminal negligence.  

CONCLUSION

Today’s globalized economy depends upon merchant shipping, which is threatened by rising shortages of qualified seafarers to operating the growing merchant fleet.  Recruiting and retaining seafarers is one of the maritime industry’s gravest crisis, and lack of shore leave and the criminalization of seafarers for unintentional acts pose two of the greatest deterrents to pursuing a career at sea.  While security remains a critical issue, and intentional maritime crimes should not go unpunished, the responses to problems the much be critically targeted.  The crewing crisis does not just affect shipowners, but also has serious consequences, as the world’s economic prosperity relies on merchant shipping.  Various paths to improving the situation exists and all segments of the industry must work together to ensure that when whenever decisions are made that potentially affect seafarers, the impact on recruiting and retaining seafarers is considered. Thank you.