July 10, 2009

Et Two?

It is now three weeks since the Hebei Two were set free; the initial brouhaha seems to have died down. The impression one gets is that we are now back to business as usual, and that the protests from many industry bodies at the time of the liberation have now muted. Claims that justice had not been served even after the two were freed, and that action would be taken to clear the besmirched names of the two officers now ring hollow. Meanwhile, South Korea and India are in talks regarding the Comprehensive Economic Partnership Agreement (CEPA) between the two countries; Korean diplomats say they want to sign the treaty ‘as early as possible’. The Hebei Two were never really a diplomatic issue between the two countries, so why start now?

The ICS and ISF had expressed “disappointment” that the Hebei Spirit officers had not been found innocent of the charge of causing pollution by the Korean courts. InterManager had vowed to work to clear the records of the two officers, with President Girogi saying, "We will work hard to exonerate these two professional men and to clear their career records." Meanwhile, ITF general secretary David Cockroft had said: “Like everyone in shipping, we find it unacceptable that the lesser charge against them was never removed”. That is a strong word, unacceptable.

Maybe I am just being cynical. Maybe these, along with other good organisations, are still as determined as ever to right a wrong and will pursue this issue strongly. Nevertheless, I predict that this sorry story will go the same way that Capt. Mathur’s story went after the Erika incident; precisely nowhere. I realise that Capt. Mathur is just another name and another high profile incident. Much like Capt. Apostolos Mangouras of the Prestige, he, like Capt. Chawla and Chief Officer Chetan, just happened to be in the wrong place at the wrong time.

The history of mercantile shipping is replete with such names, known and unknown. The chapters of the stories are predictably interchangeable: an accident occurs, Masters and crews are made scapegoats and Port States behave in a manner unjust, unfair, and unethical and in defiance of all accepted norms of jurisprudence and the law of the sea. The rest of the industry just watches, making appropriate noises, more so when the crew in question comes from Third World countries. As for the mariners caught in this storm, their victory is usually Pyrrhic, at great cost to themselves. Their victory consists only of getting away from such incidents with life and liberty: the feeling of satisfaction at having received justice is a feeling a seafarer does not usually recognise, because he gets it so rarely after an accident.

I admit that my pessimism may well be premature. Three weeks is not such a long time, and wheels may well be in motion behind the scenes to put pressure on the Koreans. My disappointment may also arise from the fact that I expected more this time.

This is why I expected more: I believe that the Hebei Two would still be rotting in some jail in South Korea if so many in the industry and many of its bodies had not exhibited an unprecedented show of solidarity with the officers. I believe that the story thus far would be different if the managers had not stood strongly by the two; mariners are otherwise usually abandoned to their fate. Of course, greater pressure should have been put by the Indian Government on the Koreans, but the shipping constituency may be asking for too much if it expects a volte face from either the authorities or Indian society in general. We must find ways of correcting this unacceptable state of affairs. (There is that word again, unacceptable)

Nevertheless, my expectations from the Hebei Spirit incident are higher. I seriously think that this incident, and its aftermath, has the potential to become a watershed criminalisation case, mainly because it has already evinced global outrage and consequent support for the two officers. Therefore, my expectations are that we will pursue justice for the two officers with much more vigour than we have shown since their release. I hope that the Hebei Spirit case becomes a litmus test on how we will bring fair treatment to our seafarers in future.

In this context, recent legislation in the European Union and Canada worry me. Penalisation and criminalisation of the innocent seafarer is on the increase in these two huge and important regions; it won’t be long before other countries follow suit with draconian laws of their own. Penalties and jail terms for accidents are higher. The burden of proof in maritime pollution incidents is shifting from the prosecution, where it rightfully belongs, to the defence. Against all tenets of criminal law, an innocent seafarer in a foreign land (faced with huge litigation costs that he cannot afford) may soon be asked to prove his innocence instead of the authorities being asked to prove his guilt, as they should be required to do. The seafarer is a sitting duck in such circumstances. And, although there have been protests from some industry bodies in Canada, the legislation may well go through. Opposition to the EU legislation seems nonexistent anyway.

Seafarers face injustice in many smaller ways too. Whether ashore or afloat, many of us are guilty of shortchanging crews during normal times. Wages are sometimes not paid. Insurances are delayed or unpaid if a mariner dies. Medical records are sometimes fudged to minimise legitimate dues to which a mariner may be entitled. Contracts are almost universally one sided. Contractual disputes are not addressed justly even when they are brought up and pursued. Contractual terms are intentionally made obtuse or subject to interpretation that is usually favourable to the shipowner. Working hours are usually against international conventions, and, as UK’s MAIB said recently in a report, are ‘close to slavery’. Moreover, whenever the excreta hits the fan with what are euphemistically called ‘crew problems’, the prime objective of some Masters, Managers and Owners is to sign off the crew in question with a minimum of fuss and a minimum of payment. We all know there is not too much he can practically do once he is home and not on the ship’s articles, especially if we threaten to ‘blacklist’ him. Even if he has the inclination, he does not have the time, energy or resources to stop working and instead pursue expensive and elusive justice.

In this duplicitous atmosphere and in the event of an incident, the affected crewmember will return home glad to be alive or free or rid of the ship. He will lick his wounds and try to put the experience behind him. The company will not call him back or he will not return to it. Life will go on.

You know, maybe the basis for this entire article is bunk. It seems to ask for a global system of ethical and just behaviour towards the innocent seafarer. It assumes that there is justice for all.

How dare a seafarer ask for justice from outsiders when his own colleagues will not give it to him?