Isn’t premeditated intent the test for criminality? Suffice to state that settled principles have accepted `reckless act with intent to cause damage’ as the basis for denying time tested Limitation of liability. `In all probability, beyond reasonable doubt’ is another threshold that determines plausibilities and possibilities for acceptabilities.

When all the proceeding is considered in the right sense and spirit, it is highly unlikely, improbable and implausible that any seafarer –leave alone Master- would intentionally cause pollution of the persistent kind. Where then does the question arise of criminalising and jailing the Master/Crew? Perhaps only as a deterrent for negligence, like death penalty in UAE for intentional pollution!

Is our civil society getting it all wrong? In this era of globalisation, when all and sundry concepts from faiths to social and political systems, and philosophies have become subservient to commerce and monetarism, how can we jettison the founding principles of marine adventure that has enabled mercantilism and its spread across oceans, continents apart?

Tracing back, on the strength of half a millennium of sea transportation, civilizations far apart have conjoined for the sake of better living standards and sustainable alternatives. Languages, customs, practices, laws and even dispute resolution processes have been enriched and refined through the contacts and contracts evolved through seafaring.

The principles of General average, for one, exemplify the imponderable risks and solutions for sharing the same. On its heels, the fundamentals of Salvage, lays down the reward mechanism for undertaking onerous tasks in adversity. No wonder, the threat of criminalisation is shaking the foundations of such time-tested measures, at the risk of losing such dare-devilry willing to strive on `no cure, no pay’ basis.

Isn’t Limitation of liability a sacrosanct concept granted to those who dare, in the larger interests? The checks and balances therein provide sufficiently, and against those who breach the trust bestowed on them. The risk spread through insurance/reinsurance and co-shouldering between ship and cargo interests, provides reasonable quantum for compensation and mitigation when ill-luck befalls the server and the served.

It is a pity that skippers who used to be felicitated in the town halls for bringing in ship and cargoes safely into havens, are threatened to be gaoled nowadays when they do the same in dire straits. Is failure of technology or its limitations shall we say, and durability of ships themselves due to fatigue given the worsening weather and sea conditions that they were not designed for, human or professional failure of seafarers?

Apart from owners, rule makers, enforcers, overseers and managers, should all be held liable under the current system of ship-shore shared management responsibilities. Liability regimes –typically Civil ones- do provide compensations for damage, mitigation and economic loss arising from errors, omissions and torts. Pollution through accidents are excepted by MARPOL and an Australian ruling did not attribute accidental pollution arising out of poor maintenance, in all fairness, to accident. EU’s `serious negligence’ edict –itself an alien concept- widens the ambit beyond Nissos Amorgos, Erika & Prestige. Are policy makers in Canada too being misguided to chain the Masters? Would SELENDANG AYU set new criterion for sentencing/plea bargaining on public demand?

Is it that the system pinpoints Master as the culprit, when everyone ashore is ensconced safely beyond culpability? Is Masters’ mantle that is unpiercable or the veils of one-ship companies that is eminently justified under the well fertilised system of flags of necessities, forum shopping and jurisdictional misadventures? EU directive targeting rogue owners is turning out to be a misdirected arrow! Have P&I Club’s unwittingly opened a Pandora’s box by bailing out Master of PRESTIGE at high cost?

Are the in rem, in personam characteristics so pervasive and persuasive as not to unravel his alter ego status and deny the master his own human personality and natural right for humane treatment? In the current wave of employee’s rights and equal opportunities for ranks and genders, where does the master belong: once he loses command of the object that was his to administer and preserve?

World trade, shipping, enterprises and the human elements behind these stand to lose by choosing an inimical path against those toiling at sea for a living. GPS, weather forecasts, mechanization, automation and remote technologies have taken the wind out of sails of marine careers as adventures, shore leave bans bolting the barns with criminalisation the last straw.

The threat is real that those who opt for sea careers may not be fit for purpose and all that they manage and navigate may be imperilled at higher risk levels, attracting yet more rules, regulations and expensive compliant technologies that are avoidables. The feedback from seafarers and the aspiring ones point out rightly that criminalising for no fault of theirs, will be a stopper that will be hard to crack. Scapegoating will make mariners un-coperative and undermine IMO’s authority too.

In this context, the right thinking must accept shipping and its attendant environment risks as a part of societal/industry macro issues (for instance, the old CRISTAL for Oil pollution) and downsides of developmental imperatives.
Going by the dictum of a common purpose focus for unifying, it is strange to see the littoral states of EU –once the colonizers on the strength of naval might- going with the landlocked to take a diabolical stand transgressing the well-found norms stated and implied in UNCLOS.

Isn’t it a system failure of the gross order from harbouring FOCs and letting DP be the be all and end all under ISM? UNCLOS provisions not withstanding, regional intransigence undermine the concept of free trade and its workhorses –ships that are the live wires of global trades. It is worth comparing shipboard dilemma with the responsibilities placed on enterprises, industries and factories ashore. What has come off of the infamous tragedies in Minamoto, Love Canal, Three Mile Island and Bhopal blow out?

In the end, the means fail Rule of law concepts underscoring its conflicts, the EU stand reeking of a showdown between Common and Civil Law regimes, unwilling to settle issues pragmatically for the sake of common goals and objectives. Hopefully when UK becomes full-fledged member of EU in every respect, differences between Maritime Laws due to the differing doctrines will be solved, leading to better synthesis world-wide.

Meantime, mariners should not misunderstand the imbroglio as revengeful measures against loss of jobs in the West. What need be done is to recreate the lost aura of seafaring by image make over. By raising performance levels, viz:-minimising PSC Deficiencies & Detentions, improving manning standards and highlighting professionalism of the mariner fraternity, seafarers, shipmanagers and professional bodies can contribute to the holistic cause. For those who pride in seafaring-leadership, the ultimate responsibility to train, mentor and instil professionalism cannot be relegated to the second in command or delegated to shipmanagers. This indeed is the challenge and answer to EU's misconceived diktats.