August 21, 2009

Full Tosa: Demanding a systemic response to criminalisation

It is a damning indictment of the warped state of affairs that Ajmal Kasab can be guaranteed a fair trial when Capt. Glen Aroza cannot, but this indictment is not the purpose of this piece.

Capt Aroza, the Second officer Mohammed Rizaul Karim from Bangladesh and Seaman Eduwardo Mallorca have been charged with involuntary manslaughter in Taiwan. In an incident that brings back memories of Capt. Raj Kumar Goel’s three year detention in the country in 1996, Capt. Aroza and his colleagues are being blamed for allegedly causing a Taiwanese trawler to capsize and for the death of two fishermen. Quite apart from the fact that the Captain was not on the bridge and that no signs of any collision were found on their VLCC, the ‘Tosa’, the detention and imminent trial of Capt. Aroza and his crew spotlights, once again, how seamen can be persecuted with brazen impunity.

In another recent incident, Norwegian police have charged the Captain of the COSCO owned "Full City” for not warning coastal authorities that his ship was in danger of stranding. The Full CIty was eventually responsible for one of Norway's largest oil spills that hit a 150 km stretch of coastline in Southern Norway near a bird sanctuary. I am interested to see how Norwegian law is applied here; the Captain faces a maximum two year jail term if convicted.

Close on the heels of the Cosco Busan disaster in the US (Cosco seems to be having a bit of a party leaking oil across the world) and not too long after the Hebei Spirit officers were released by South Korea, the Tosa story underlines to me once again that the maritime justice system as it applies to seafarers has failed. In an atmosphere where marine pollution laws are being tightened in many countries, including across the European Union and Canada, I fear that what we are seeing now is the beginning of a regular persecution of mariners for crimes without intent. The criminal prosecution of seafarers in these circumstances must be stopped, but our present system of so called justice is incapable of doing so: this is, in fact, a system to be feared by all law abiding seafarers. What it tells them is that they can become criminals and go to jail for years for an accident in a foreign country, and there is nothing they can do about it.

Those of us who bring up the Hebei Spirit as an illustration of what the industry can do if it gets together are guilty of over simplification and exaggeration. The entire industry chest thumping in the aftermath of that saga cannot hide the fact that two innocent Indian officers spent a year and a half in detention in a country that manipulated its systems, probably at the behest of powerful business interests, to subvert justice. We ignore the fact that the Hebei Two were, despite international industry outcry, held guilty by the Koreans even as they were released.

It is crystal clear to me, at least, that we can no longer continue to depend on the goodwill of countries when it comes to marine accidents and the inevitable persecution of Masters or crews. Making guidelines for fair treatment of seafarers in a bid to strengthen the present system is absurd when the system itself is corrupt, hostage to special interests and usually looking for scapegoats. The IMO is barking up the wrong tree here.

What is needed, instead, is a systematic protection of seafarer rights. What is needed is for an apex organisation like the IMO or the ILO to automatically launch its own investigation, backed by maritime experts, every time a seafarer is detained in a country after an incident. This investigation must shadow the investigation being conducted by the country in question and publish publicly its findings, making recommendations if required to the State where the detention has occurred.

If this independent investigation thinks that there is no prima facie evidence of any culpability on the part of the seafarer, the seafarer must be allowed to return home, promising to return if required in future. In any case, the international community must ensure that the entire process is fair and speedy. In case the prosecuting country fails to follow the recommendations of the independent investigation, it should be ‘blacklisted’ and face penalties in trade and shipping businesses.

It is probably too much to expect the Indian Government to show some spine when it comes to seafarer or even industry issues. Nevertheless, Governments of major seafarer supply nations like India and the Philippines must flex some muscle, and private industry players must concertedly push for this muscle to be flexed. India does not seem to tire of tom tomming its emerging superpower status; time to put some money where the mouth is, gentlemen. My recommendation: threaten Taiwan with trade sanctions unless Capt. Aroza gets a free, fair and speedy trial. There is no prima facie case against him, anyway.

Friends of mine tell me that the maritime world is not geared for my suggestions, and that neither private companies, the IMO nor the Indian government has the enthusiasm, people, budget or organisations in place to do what I suggest. I can only say this in response: The entire maritime world descends on the scene of an accident like bees on honey smelling money. There seems to be no shortage of budget, will or manpower then, and no shortage of enthusiasm either. I am sure some of this enthusiasm can be easily diverted to benefit the innocent seafarer, for a change. Lack of will is usually just an excuse.

We will not be able to fight the criminalisation issue by tilting at windmills after each incident. In the absence of a systemic response, we will be firefighting the problem, not solving it, and so we will lose.

One does not go into battle except with the intention of victory.