Efforts to protect seafarer’s human rights, including that of legal representation, in a new IMO code for maritime casualty investigation are being opposed by the US. As far as is known, only the US objects to seafarers being advised of their rights or being provided with legal counsel.
Several strings are tugging at the requirement for the IMO’s International Standards and Recommended Practices for a Safety Investigation Into a Maritime Casualty or Marine Incident, a copy of which has been made available to MAC by a member of the Maritime Accident Investigators International Forum, scheduled to become part of SOLAS in May this year. MAIIF itself is expected to be given observer status in the IMO next year.
The code will provide a common framework for maritime accident investigation, encourage the independence of accident investigation agencies and clarify the separation between liability-based investigations and those aimed at providing data and recommendations for future safety regulations by individual states and through the IMO.
Currently, many states have little more than a perfunctory approach to maritime accident investigation, such a Greece, while others consider investigation reports to be secret. Panama and Liberia, the largest flag states, have been criticised for failing to provide accident reports.
Recent increases in maritime casualties has exacerbated the need for a fairly comprehensive common database. The IMOs GSIS database is incomplete and reporting patchy. The new code will, in theory, make it easier to identify trends.
At the same time recent years have seen increasing concerns about the criminalising of seafarers involved in maritime accidents and incidents. The IMO, IFS/ICS, ILO and ITF collaborated in issuing a poster to advise seafarers of their rights should they be detained and questioned. Those rights are also outlined in the draft marine casualty code.
The US takes issue with several provisions in Chapter 12 of the code, under which seafarers must be returned to their ship or repatriated at the earliest opportunity and their human rights must be upheld.
Under Chapter 12, paragraph 2, a seafarer being questioned must be informed of the nature and basis of the investigation, be informed of or allowed access to legal counsel regarding possible incrimination with regard to subsequent legal action, rights regarding self-incrimination or the right to silence, and any protection gi8ven to prevent evidence being used against them.
Over all, the provisions follow the well known ‘Miranda’ rights, familiar to anyone who has watched an American police series – the right to remain silent, the warning that evidence may be used in a court of law, the right to legal counsel and the provision of legal counsel should the subject not be able to afford one. It is no surprise that the US refusal to accord those rights to seafarers is raising eyebrows.
American citizens have very firmly entrenched rights provided by their constitution and its amendments and various acts of Congress. American seafarers on American flagged ships or involved in incidents in US territorial waters already have the rights outlined in Chapter 12, together with a prohibition against imprisonment without trial. If the US acceeds to Chapter 12 then non-American seafarers will have similar rights, something which the US administration finds to be a problem.
Chapter 12 runs up against present US anti-terrorism legislation under which non-Americans may be arrested without trial, may be questioned without a legal counsel present, have no rights to legal counsel and may be ‘renditioned’ top other countries. It may be argued that this only applies to terrorists, yet the first prosecutions under the Patriot Act were casino owners who’d fiddled their taxes.
More realistically, it will create two classes of seafarers on American flagged ships, few of which are entirely manned by American nationals, to the extent that sometimes only one crew member out of a couple of dozen may be on board. One faces a situation in which the American master has rights but his Russian/Croatian/Filipino/Chinese first officer has none.
One wonders whether that’s quite what the Founding Fathers had in mind when they wrote “All men are created equal”.
Nor is it an entirely hypothetical situation. In the case of the Cosco Busan incident there was an American Pilot aboard a ship officered and crewed by non-Americans. The American pilot would have rights under American law but the crew would not.
While the rest of the industry at every level is seeking to provide legal protection for seafarers, the US stands out.