Increased risk of criminalization of seafarers - International Law Office

New investigation system
Full City: the first test
House arrest
Outlook

New investigation system

Maritime accidents were previously investigated by traditional maritime inquiries (ie, in local courts with one judge and two expert assessors). The inquiry conducted a general examination of the accident and its causes and considered safety issues and the allocation of civil and criminal liability. The questioning of witnesses would usually be conducted by a maritime inspector with experience as a master on merchant vessels.

On July 1 2008 Norway implemented a new investigation system which separated the safety and criminal aspects of accident investigation. Following an international trend, the new rules gave the Accident Investigation Board the authority to investigate accidents to identify the circumstances of importance to improve overall safety at sea. It was decided that the board should not decide on criminal liability; responsibility for criminal investigations was transferred to the police authority which has jurisdiction over the area in which an accident occurs.

Full City: the first test

On July 31 2009 the Full City began to drag its anchor during bad weather and grounded near Såstein, resulting in a substantial bunker oil spill. The grounding of Full City was the first major maritime accident in Norwegian waters since the new investigation system entered into force.

The local police interviewed several crew members. All 23 crew members were subsequently interviewed and no considerations were apparently made as to whether crew members had any information that was helpful to the investigation.

Police interviewed junior crew members who were off duty at the time of the incident (eg, the mess boy, oilers and the cook) on the same issues as senior officers, including issues that were outside their area of knowledge and competence. By comparison, the investigation board (and a representative from the flag state, Panama) interviewed only the master, officers and crew members who were on duty at the time of the incident.

Most crew members were interviewed in court, presumably in order for the police to use their statements in any subsequent criminal trial.

The interview process revealed that the police lacked the relevant maritime competence and that they had failed to obtain external assistance from personnel with such competence.

The police decision to interview all crew members and re-interview a substantial number of them in court meant that the crew was detained in Langesund for a significant length of time after the incident. Extensive detention of a crew violates the International Maritime Organization guidelines on fair treatment of seafarers. The guidelines impose a duty on the coastal state to ensure that crew members are re-embarked or repatriated without undue delay.

House arrest

Although most crew members were eventually released and repatriated to China, on September 24 2009 the master and third officer were preliminarily charged with violations of Section 152b of the Criminal Code and various provisions of the Ship Security Act. Section 152b of the code is a general penal clause for serious environmental crime and typically covers crimes where a person takes a calculated risk for personal gain which threatens the environment. The provision requires a minimum of gross negligence and is usually applied in cases where the provision is breached by intent on the part of the defendant, but has never been invoked in a marine accident investigation. It is therefore surprising that the police relied on this penal clause in a common marine accident such the dragging of an anchor.

During the lengthy detention of the master and third officer the police alluded to the maximum sentence of 10 years' imprisonment and seized their passports and seaman's books, releasing them only after the matter had been brought to the Supreme Court on two occasions. On December 10 2010 the Supreme Court refused to overturn the appeal court's decision that the passports and seaman's books should be returned against bail, since their continued consfication would constitute a "disproportionate remedy".

When the two officers were finally allowed to return to China, they had been under virtual house arrest for over four months.

In the most recent indictment on January 11 2010, the charge under Section 152b of the code was replaced with the less severe provisions of the Environmental Act. The criminal trial is scheduled to commence in April 2010.

Outlook

It is hoped that the handling of the case was due to a lack of individual and local knowledge, rather than an erroneous view of the criminalization of seafarers held by the police and lower courts. The case indicates that a revision is needed of the criminal investigation procedure following a maritime accident.

The legal safeguards in place for seafarers and shipowners may be threatened if responsibility for a complicated maritime investigation is placed on local police authorities that lack the necessary competence and experience. A proposal on cooperation between local police authorities and the Maritime Directorate in the event of a marine accident is currently the subject of a public inquiry.

For further information on this topic please contact Gaute Gjelsten, Morten Lund Mathisen, Oddbjørn Slinning or Andreas Fjaervoll-Larsen at Wikborg Rein by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email (ggj@wr.no, mlm@wr.no, osl@wr.no or afl@wr.no).