Responsibility and Accountability in Maritime Law

Criminalisation of the Ship's Master

Simon Daniels

• Publisher: Informa Law from Routledge
• Year: 2022
• ISBN:
  9781000557398
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

The criminalisation of seafarers has been observed as a growing phenomenon for more than forty years, presenting a picture of increasing liability upon the Master even though their responsibilities remain essentially unchanged in generations of maritime law. Because of the demand by society to find someone to blame for environmental and human loss, there is a constant flow of cases, which serve to confirm the phenomenon but offer no solutions to defend the innocent. The structure of the maritime environment in which they work has changed dramatically, as evidenced by the complex evolution of fleet ownership and management, leaving the Master with diminished management influence. This book has been written in a format which meets the needs of lawyers, academics and maritime professionals, with the aim to analyse the character of criminalisation to determine the features which characterise the phenomenon in Port and Flag State contexts; it interrogates the aim to define the nature of criminalisation and identifies the constituent problems in such criminal accountability.

Each chapter relies heavily on case studies to illustrate how the laws which reflect national policy underpinning those priorities are applied in practice. This structure enables an understanding of the problems in the criminal process, with a view to offering options for solutions. The book is directly relevant to a broad range of parties which includes lawyers, academics, P & I clubs, seafarers, shipowners, managers and agents, and national and international seafaring unions.

Chapter 1 What is a crime?

DOI: 10.4324/9781003266839-1

The essence of criminal accountability

Simply, a crime is whatever society says it is. People elect their lawmakers on the promises that are made to them, and it is this which underpins the concept of justice, upon which laws are made and prosecutions conducted. It is the evolutionary process of criminal accountability, defined and applied by rules that differ according to the normative ethics of changing societies, which has forged the process which the global maritime community identifies as the phenomenon of criminalisation. It has developed not by the intent, but by the harm caused,¹ and certainly should only be applied when it is fair to do so; but what is fair? Fairness demands equal rights for all individuals, as a principle of justice which must be satisfied before other political interests are satisfied. But the controversy surrounding the criminalisation of seafarers is founded on the perception that the Master is burdened with criminal accountability beyond that accorded to any other private citizen. This book is intended to explain problems and offer solutions; but to understand how criminal liability works, we need a picture of the basic characteristics of a crime.

1 Baker, J, 2007, The Moral Limits of Criminalizing Remote Harms, New Criminal Law Review, 11, 371.

Crimes are wrongs which threaten the well-being of society and, to that extent, they go beyond the mere interference with some individual’s private right; in short, society must be protected. Smith and Hogan express the point perfectly when they put us in the position of the man in the street, whose reaction to a story of some harm to society is to say There ought to be a law against it.²

2 Ormerod, D, 2008, Smith & Hogan Criminal Law, Oxford University Press, Oxford, p7.

We can take this to the scenario in which tensions rise between Flag State and Port State, in which seafarers are arrested and indicted on criminal charges that arise out of nothing more than an error of Judgment. Smith and Hogan proceed with some critical analysis of the development of criminal law in England with the view, gained by observing the development of the law, that lawmakers have taken a convenient path of relying disproportionately on criminal law by making strict liability offences in the form of regulations, that dispense with the capricious process of proving all the elements of a crime under general law.³ In view of the purpose of the regulatory offences for pollution envisaged in UNCLOS (United Nations Convention on the Law of the Sea) and MARPOL (International Convention for the Prevention of Pollution from Ships), this demonstrates a key clash between the theory of criminal accountability and the Master’s criminalisation for pollution offences. It also ignored the warnings of the Law Commission who warned that the State’s criminal justice system should not be exploited as the primary means of promoting regulatory objectives.

3 Ibid, p7.

The Master is the leader in the marine adventure, the Flag State’s representative with responsibility for the safety of life at sea and the protection of the marine environment. But they are also the owner’s representative whose purpose is to make the voyage a commercial success. They have always been accountable for the risks that accompany their command; the difference now is that they are being criminalised for what previously had been activity that, at worst, merited nothing more than a civil claim in negligence. As a result, a maritime casualty that results in collision, personal injury or an environmental spill has become the basis for crime and punishment without having to rely on the criminal burden of proof – and the target of choice is the Master.

Despite increasing concern within the global seafaring community, the criminalisation phenomenon has not diminished; indeed, it is widening its target field beyond the Master. We need to understand where the law is coming from, to guess where it is going. The criminal accountability of a Defendant is defined and regulated by the State’s domestic law, whose sovereignty is guarded jealously in accordance with Article 2(1) of the United Nations Charter that The Organization is based on the principle of the sovereign equality of all its Members. In other words, a State’s sovereignty is defined by its power to make its own laws and no other nation can interfere in its own administration of justice. That being said, a State’s criminal law, whether set out in a Statute or a Code, or indeed by the Common Law, is not necessarily set in stone, because society is not set in stone. In other words, what the people want the people get, so if attitudes change over years, so the approach taken by the law will change too.

How the Defendant must answer to such laws will depend on what is written in the State’s system and management procedures. In the English system, the Prosecution must establish both elements of the crime in question:

1. The actus reus contains all the elements in the definition of the crime except the Defendant’s mental element. It is generally, but not invariably, made up of the Defendant’s conduct and sometimes the consequences of that conduct, as well as the circumstances in which the conduct took place.
2. The Prosecution must also establish the Defendant’s Guilty Mind, or mens rea. The primary function of the Prosecution case therefore must be to establish the Defendant’s intention to commit the crime.⁴ A result is intended when it is established Beyond Reasonable Doubt that the Defendant deliberately and unjustifiably pursues a course of action while consciously disregarding any risks flowing from such action. 4 See R v Moloney [1985] 1 All ER 1025; R v Nedrick [1986] 3 All ER 1.

Like the Ten Commandments, these elements are few but have stood the test of time, and the noticeable absence of a political slant or, indeed, of bias, clearly establishes the founding principle that puts justice to the individual above political governance of society as a whole. The phenomenon of criminalisation only began to evolve after the exploitation of these elements was relaxed to meet the political demands in the administration of justice for a more certain conviction in particular cases, which puts the characteristics of a crime in the context of the Master⁵ into sharp focus regarding the mens rea. In a criminal prosecution, the mental element is required to establish proof of guilt Beyond Reasonable Doubt; failure to establish a Guilty Mind according to the crime defined in law will lead to an acquittal. The exception, however, so often giving rise to criminalisation, arises in the case of strict liability offences, which were originally promulgated in the nineteenth century to provide health and safety regulations in the workplace. Once challenged with such an offence, it is for the Defendant to prove on the Balance of Probabilities that he discharged his duties with Due Diligence; if the case is proved against him, then this will give rise to liability to pay a penalty, without the trappings of a criminal offence to which blame was attached, such as a case involving criminal negligence.

5 Mukherjee, P, 2006, Criminalisation and Unfair Treatment: The Seafarer’s Perspective, Journal of International Maritime Law, 12, 325‒336.

Prosecutions and the Master’s human rights

While criminal prosecutions have been more easily achieved by the implementation of strict liability offences, they present compelling arguments in claims of unfair treatment of Defendants. This is most clearly illustrated in the light cast by the European Convention on Human Rights, upon which the Human Rights Act 1998 is based. Article 6 provides rights to a fair Trial, in particular:

• In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law;
• Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

In December 2020, the Government announced an independent review to consider how the Human Rights Act is working in practice and whether any change is needed. The UK’s departure from the European Union undoubtedly influenced the review’s key themes:

• The relationship between domestic Courts and the European Court of Human Rights.
• The impact of the Human Rights Act 1998 (HRA) on the relationship between the judiciary, the executive and the legislature.

This has particular significance for the Master, because of the decision of the European Court of Human Rights in the case of Captain Mangouras, which we shall examine in more detail later; suffice to say, here, that the Court held that his rights were made subservient to the political demands of Spanish governance, giving priority over his human rights to the growing and legitimate concern both in Europe and internationally in relation to environmental offences and the tendency to use criminal law as a means of enforcing the environmental obligations imposed by European and international law.⁶

6 Mangouras v Spain (12050/04). The author’s reading of the text of the Judgment, which is in French.

Applying this in context, it is the globalisation of society which has driven the evolution of international law, bringing its normative ethics to Conventions that make strict liability offences of pollution. In this way, Article 211 of UNCLOS obliges Flag States to make laws designed to prevent and control pollution from their ships, while Port and Coastal States may make laws – specifically under their sovereign system – to prevent and control pollution from any ships in their jurisdiction.

The international community agreed that environmental protection had to be a priority; Treaty obligations must be applied under the legal system of a State and, thus, Port and Coastal State laws would conveniently make strict liability offences of pollution laws. It was always intended that liability be strict, not absolute, and so Regulation 11(b) of Annex 1 of MARPOL gives the Accused a Due Diligence defence to such a prosecution. As an additional safeguard, Article 230 of UNCLOS provides for monetary penalties only for a pollution offence, except in the case of a wilful and serious act of pollution in the territorial sea. In order that the seafarer’s human rights be respected, Article 230 (3) reminds the Courts that, during any such prosecution, the Defendant’s rights to a fair Trial must be respected.

The justification is clear: global society understands the need to make regulations which protect the environment from pollution and, thus, a violation of those regulations cannot go unpunished. But if the offence does not share the characteristics of a crime, that is, mens rea need not be proved, then the sanction must be appropriate to that.

It is the normative ethics of the society of the enforcing State which determines how (to paraphrase W S Gilbert) the punishment should fit the crime. In so many of the cases studied in this book though, the punishment visited upon the Master is disproportionate, evidencing justification for alarm in the emerging criminalisation of the Master as the individual responsible, even though they may not have the mens rea for blame.

The hurdle to overcome in criminal defence is to convey a compelling argument that the prosecution is offensive to the Defendant’s human rights in the sovereign jurisdiction of that State, for this is where the mischief lies. In understanding the mischief, it is essential to analyse how the normative ethics of society have influenced the current law, in which Masters find themselves subject to what the maritime community perceives to be a growing phenomenon of criminalisation, notably in relation to Port State jurisdiction but, in fact, the mischief is identified as spreading fa...