The release of the Hebei 2 on bail is no reason to celebrate or call off our efforts. We must continue protests and pressure tactics so that the folly against us is realized and amends made. The detained two have a right to claim compensation for unjust incarceration and unfair treatment meted out as for common criminals. Criminal charges against them are coming unstuck and that is why they have been granted bail, to save Korean face, on the face of strong ridicule and international reactions. Have the Koreans missed an opportunity to cash in by commuting/remitting prison term as fines?

It is pertinent to note that P&I Clubs do not cover mariners against criminal prosecution. It is the ships that are entered with the Clubs through indemnity-liability mutual insurance and owners are assisted with FDD (Freight, Demurrage & Defence). In this context it is noted that legal support is provided to the two and all expenses, detention charges and fines will be shared by owners/managers/Clubs, compensating mariners (traceable back to the old time-tested HIMALAYA case) as the unavoidable mishap has occurred in their course of duty more as a force majeure-fait accompli and not an avoidable one at short notice, as has been proven by technical analysis in hindsight too.

Koreans were forced to accept realities and have come to senses belatedly that, whether it is a jurisdiction issue, due process or not, in today’s globalised world, no country can flout norms of civility and if they do, they won’t be left alone. Haven’t Bush & Blair been hauled over coal on the WMD lies? Perhaps, we should take consolation that such an incident has brought us all together so that we can look ahead more unitedly. Anyhow, let us wait and see what Korean Supreme Court comes out with, till when they will, as before, be detained, respectfully, it is to be hoped. If need be, take it to be Human rights commissions and courts, wherever a fair hearing would be granted. Applicable laws permitting, there is a case for ‘interested parties’ to pursue the issue through Courts as a test case, to set precedent and pre-empt similar future scape-goating.

Given the events after HEBEI, the international outbursts and the recent reports, of which the following should suffice, there is reason enough to continue our protests at national and international levels and pull in all seafarer trade unions and welfare organizations globally. Add too all the responsible shipping bodies like professional associations and owners’/managers’ commercial and technical entities. Use the opportunity to catalyse concerted proactive preventive calls for the future. We might as well bang our heads against every pillar and post, hang it in shame and finally lay it shamelessly at IMO’s doorsteps, as good intent and efforts do not seem to be heeded by the rogues.

For, the following highlight the industry’s predicament and seafarers scapegoat status:

The case against Spain (against criminalisation) by the Prestige Master Apostolos Mangouras has been thrown out of the European Court of Human Rights.

The London P&I Club is calling for reasonableness: “the application of the EU Directive on Ship Source Pollution must be proportionate to the degree of personal fault on the part of the individual responsible for causing pollution and not focused on the pollution and its consequences.”

NAUTILUS UK reports that governments are failing to ratify IMO rules for fair treatment of seafarers after accidents.
INTERTANKO has pointed out that the evidence of Korean tribunal presented at IMO was “nonsensical and flawed. The use of inert gas is standard and if this is to be the basis under which officers are to be sent to prison, we have a major issue”
Fr almost half a century since Torrey Canyon- through TOVALOP, CRISTAL, CLC, FUND, its revisions/’92 Protocols and the last TOPIA & STOPIA, compensation for Oil pollution is well provided for. If it does not suffice –which seems to be an underlying issue for the hard Korean stand- it must be revised on war footing. Meantime, do please note that ’96 Convention and its OPRC Protocol for compensation for pollution by HNS (hazardous & Noxious Substances) remain un-ratified to come into force and so is a threat to mariners (for possible blackmailing to extract compensation, when it has not been properly provided for) though Bunker Convention has been ratified faster.

It is indeed heartening to note that all sectors of the industry are aghast and are united in their view that seafarers are getting a raw deal. Class, Club, Underwriters, Owners, ISF, Managers, Unions and Flag State Administrations too are bewildered at the turn of law and events as IMO, ILO, Round Table, IBF (International Bargaining Forum) etc are trying steadfastly to improve the treatment of seafarers.

All countries should be aware of IMO instruments including Code of Accident Investigations that emphasise conduct of safety investigations – and not for penal action. Unfortunately under pressure, local political considerations take control and the rest is ignored. When the so called developed one like EU behaves in questionable fashion others follow suit. Reportedly, IMO Secretary General talks about criminalisation of seafarers in almost every meeting. Unfortunately, his calls fall on stone deaf diplomatic, political, administrative and technocratic ears.

MARPOL Annexe1 Reg 11* under Exceptions exempts oil discharge for securing safety and due to damage. Caution but, as it is a case of `strict liability’ where mens rea (reckless with intent to cause consequences) may not apply. Pollution caused by a burst hydraulic hose of a crane of SITKA II in ’96 in Australia was denied by Court on appeal citing lack of maintenance. Caveat: there could be the odd case justifying prosecution of the Master -certainly not `criminal prosecution’ unless it is the avowed policy as in EU.

(* Regulation 11 Exceptions
Regulations 9 and 10 of this Annex shall not apply to:
(a) the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or
(b) the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:
(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the
discharge; and
(ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or
(c) discharge into the sea of substances containing oil, approved by the administration, when being used for the purpose of combating specific pollution incidents in order to minimize the damage from pollution. Any such discharge shall be subject to the approval of any Government in whose jurisdiction it is contemplated the discharge will occur.)

In Australia, Canada, France, UK etc seafarer could be prosecuted for pollution on criminal basis, even when it is not attributable to his acts of omission, commission or wilful negligence. EU has legislated so under `serious negligence’ against International Conventions they have ratified. So, our fight is not to let it be criminalised anywhere with due respect to marine adventure, unless of course it is a case of total professional failure as concurred by peers.

With over 90% world trade being seaborne in a truly globalised village served with everything from fuel, food, fertilizer, farm products and sporting items to luxury goods delivered just in time economically, it is pitiable and unforgivable that the seafarers undertaking marine adventures on behalf of consumers are nailed for no reason. In worsening weather and at frontier technologies, limits of adaptability and survival are being constantly tested and the world populace should be thankful for the high percentage of trade that delivers without loss/damage -perils of the sea, act of God/Satan and force majeure notwithstanding.

The challenge on educationists, trainers and ship-managers is to honestly apprise job and livelihood seeking mariners about the risks of the career and profession including lack of fair treatment viz: no shore leave, threat of criminalization etc so that attrition rate can be controlled. Reportedly, a Chief officer is said to have turned down Command stating that the incremental money was not worth the increased threat and risks of an extra stripe.

In this context, it is timely to convert this year’s National Maritime Day celebrations in India and elsewhere, and the World Maritime Day event globally as well to Protest Days to draw attention to the sad plight of Seafarers who are being ill-treated and used as pawns to suit jurisdictions and diplomatic manoeuvring. The scheduled rally in London to highlight issue should be used as the starting point for internationalized efforts.