Going Overboard: the Criminalization of Seafarers in Violation of Their Human Rights, Regional and Domestic Law's Conflict With Unclos and Marpol, and the Need for Reform
| Publication year | 2014 |
| Author | By Megan K. Reid* |
By Megan K. Reid*
Following an oil spill, swift and aggressive measures are often taken to ensure that the public demand for justice is fulfilled. Unfortunately, seafarers1 are often placed in the post-incident spotlight, regardless of whether the incident involved operational error. During the 2002 Prestige accident, an oil spill formed off the coast of Spain in the middle of a raging storm. Spanish authorities denied the ship access to a calm harbor, which would have allowed the captain and crew to mitigate the environmental harm.2 During this fierce storm, it was impossible for the Prestige crew to attempt repairs or transshipment of the oil to lessen the environmental harms.3 Yet, Spain ordered the ship out to sea4 while it was severely damaged, which led to the eventual sinking and subsequent oil spill.5 The captain of this ship was criminally charged and waited ten years for his trial to commence.6 Eleven years after his detention, on the anniversary of the date the captain sent the original S.O.S. call for assistance, a Spanish court acquitted him on the pollution charges.7
In the most extreme cases of criminalization, authorities have detained seafarers without charges, confiscated their passports, and barred them from obtaining legal assistance, all in violation of their basic human rights.8 This practice seeks to merely assign blame and find a scapegoat, as opposed to reducing pollution through swift cooperation.9 For example, ship owners may be reluctant to send a technical team to quickly address the problem if there is a threat of imprisonment, and salvage companies may likewise be reluctant to assist.10 The International Salvage Union has even announced that it will not provide salvage services for ships in peril if they are located within a jurisdiction11 that has previously detained salvage personnel without reasonable cause.12
Criminal liability for seafarers has increased in tandem with the rising popularity of environmental protection in the eyes of the general public. Several states, and even a regional organization,13 have implemented criminal liability provisions for harmful discharges in violation of environmental protection laws, regardless of whether the incident was willful or accidental.14 The imposition of such criminal liability contravenes both the United Nations Convention on the Law of the Sea (UNCLOS), which imposes criminal liability only for willful or wanton violations,15 and the International Convention for the Prevention of Pollution from Ships (MARPOL), which creates an exception for liability in an accidental spill if all reasonable measures are taken to minimize the discharge.16 The conflict of these laws—and the public demand for penalties17 in the most publicized pollution incidents—has resulted in the prolonged detention of seafarers, often without formal criminal charges.18 These actions are in violation of the seafarers' rights under the International Covenant on Civil and Political Rights (ICCPR).19 The international community must ensure that adequate substantive and procedural safeguards are available to protect these individuals' human rights.
The International Maritime Organization (IMO) and the International Labor Organization (ILO) have recognized these problems.20 In a Joint Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident, the IMO and ILO developed relevant guidelines.21 These guidelines provide direction and advice to states on the appropriate measures to take after a marine accident in an effort to balance the seafarer's rights with the interests of the state.22 However, these guidelines are not binding, and their non-binding nature limits their reach and efficacy.23
Part I of this article will review the Prestige oil spill, where criminal liability was imposed on the seafarers, and Spain's role in the matter. Part II will address the international legal framework governing these situations and analyze (1) the ICCPR; (2) MARPOL; (3) UNCLOS; and (4) the IMO Guidelines. Part III will examine the governing regional and domestic legal frameworks and the contradictions between international law and domestic/regional law regarding criminal liability. Part IV will analyze the need for substantive and procedural reform of MARPOL to adequately protect seafarers.
[Page 34]
The most well-known case of misplaced criminal liability for a seafarer is the arrest and detention of the captain of the Prestige oil tanker, Apostolos Mangouras. On the afternoon of November 13, 2002, Mangouras sent an S.O.S. call for assistance due to severe weather conditions, while twenty-eight miles off the northwest coast of Spain.25 The ship's hull containing the oil supply had been compromised.26 The captain chose to stay on board the ship in an effort to prevent any further damage and allow his crew to escape to safety.27 Both the captain and the crew requested refuge in sheltered waters from the Spanish authorities several times, but these requests were denied.28 The Spanish authorities instead ordered the ship out to sea during the winter gale-force weather in an attempt to lessen the environmental damage from the spill.29 Six days after the initial call for assistance, the Prestige broke in half and sunk.30
Upon evacuating from the ship, the captain was arrested for pollution and disregarding Spanish authorities' orders to take the ship out to sea.31 He was detained and questioned in a police station for two days. He described his experience during the police questioning as follows: "I pleaded repeatedly to be allowed to rest as I had been awake for almost two days. The police insisted that I be interviewed immediately. My treatment in the police station was harsh."32 He was subsequently transferred to a high-security prison for eighty-three days, where for three months he was denied access to legal assistance.33 His detention by Spanish authorities had lasted for eighty-five days in total.34 After posting bail of three million euros,35 he was required to provide the address of where he would be located in Spain, report to the police station daily, and surrender his passport.36 This post-detention monitoring lasted for approximately one year and three months.37 In a request to the Spanish government,38 seven fellow European nations requested that Spain release Captain Mangouras from house arrest and allow him to move freely within Spain.39 Indeed, this was particularly egregious because after fourteen months no trial had yet been scheduled.40
In March of 2005, two and a half years after the sinking of the Prestige, he was permitted to return to his home country of Greece until trial.41 The trial against Mangouras, now seventy-eight, finally began on October 16, 2012,42 and closed on July 9, 2013,43 nearly eleven years after the incident. Prosecutors asked for up to twelve years in prison and four billion euros in damages.44
One of the most hotly debated points relating to these events is the decision by Spanish authorities to order the Prestige out to sea.45 Some have argued that the high level of environmental devastation is due to the failure of Spanish authorities to comply with both the salvage company's (SMIT) and the captain's advice to bring the Prestige to safe waters.46 The best way to minimize the pollution would have been for the ship to enter calm waters,47 so either the oil could be unloaded or the hull repaired.48
On November 13, 2013, a Spanish court issued its judgment and acquitted the Prestige crew on the environmental charges, finding that they did not act intentionally or with serious negligence.49 The court found that the leak was caused by a structural fault due to deficient maintenance of the ship.50 However, Mangouras was found guilty of disobeying Spanish authorities for refusing to take the ship out to sea, and was given a nine month suspended sentence.51 Mangouras will not spend time in prison due to his age.52
Trial was allegedly delayed due to the difficulty in determining liability because of the large number of stakeholders in the Prestige.53 The ship was owned by a Liberian company, registered in the Bahamas, operated by a Greek crew, and chartered by a Russian company based in Switzerland.54 The challenge of navigating through the laws and liability of five states, each of which denied responsibility, may have led to the selection of the most convenient target: the captain of the ship. The wide variety of stakeholders in these situations, requires that domestic and regional laws are consistent with the applicable international law.
Two ICCPR articles are highly relevant55 to the discussion of criminal liability for seafarers. Article 9 & Article 14(c) require those detained to receive a trial within a reasonable time after being arrested; if trial cannot occur within a reasonable time, then the individual should be released.56 The relevant portions of Article 9, Section 3 provide: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release...."57 Article 14 (3)(c) has a similar provision stating that, "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: . . . (c) To be tried without undue delay."58 These Articles are especially relevant when reflecting on the Prestige incident.59 Spain became a party to the ICCPR in 1977.60 However, the trial against Captain Mangouras commenced...
To continue reading
Request your trial