Seafarers are often criminally charged for accidents at sea that are unintentional or beyond their control. International laws and organizations have guidelines to protect seafarers' rights and prevent unjust criminalization. However, seafarers continue to be wrongfully arrested and detained for incidents like collisions, pollution events, and drug discoveries on ships, even when they had no knowledge or intention of wrongdoing. International Maritime Organization guidelines call for fair treatment of seafarers and cooperation between interested parties, but national authorities still scapegoat seafarers to appease public demands after accidents. Greater awareness and enforcement of seafarers' rights is needed to curb this unjust criminalization.

1. CRIMINILISATION OF SEAFARERS

2. CRIMINILISATION OF SEAFARERS

3. CASE LAWS
 MT TOSA vessel on her way from South Korea to Thailand- Master &
2nd Off arrested
 MV CORAL SEA: Not very long ago , a Croatian Captain, Croatian Chief
Mate, and a Filipino bosun were arrested when 51 kg of cocaine were
found in a cargo of fruit
 MT ERIKA Vessel broke into two in the Bay of Biscay with oil pollution
 MT PRESTIGE Vessel towed away from land forcible resulting in
sinking and subsequent pollution
 MT HEIBI SPIRIT collision with a crane barge off South Korea

4. WHAT CONSTITUTES A CRIMINAL ACT ?
A criminal act as per law books worldwide is defined to mandatorily have two
ingredients
ACTUS REUS
&
MENS REA
ACTUS REUS effectively means “guilty act” actus reus is the wrongful deed that
comprises the physical components of a crime
Whereas MEN REA refers to “guilty mind" & is the mental element of a person's
intention to commit a crime; or knowledge that one's action or lack of action
would cause a crime to be committed
When these two combine they constitute a crime.

5. CRIMINILISATION OF SEAFARERS
Lets give a few unintentional **acts by seafarers which were termed as
CRIMINALby the authorities
1. Collision : MT HEIBI SPIRIT
2. Pollution: MT ERIKA & MT PRESTIGE
3. Drugs discovered on ships : MV TOSA
Etc…etc

6. CRIMINILISATION OF SEAFARERS
Definition of “Criminalisation of Seafarer”:
It can defined as wrongfully arresting or detaining a seafarer against his will for acts
which he may be involved in unintentionally.
Lets now critically dissect each incident mentioned in slide 1
MT TOSA : we agree that the captain and 2nd Officer were implicated for the collision
and subsequent death of fishermen. BUT were any of the two ingredients required for
a criminal act present . Unfortunately neither the physical or the mental ingredients
were present…Neither the Captain or the 2nd Officer committed that act intentionally
or had any intention of killing the fisherman..then why were they criminalised and
subsequently jailed.
Interestingly after few months of imprisonment ,the Taiwan government realised that
the ship in-fact was not even involved in the collision. But by then both the seafarers
had lost few months of their lives and were not even compensated for their
incarceration.

7. CRIMINILISATION OF SEAFARERS
MV CORAL SEA : Talking about CORAL SEA. In layman terms the ship loaded close
to 20 crore bananas !!!!!. How can the ships staff possibly know which bananas
had cocaine stuffed in them. Yet the ships officers were found guilty of drugs
trade and imprisoned.
Surprisingly the same world community later rewarded the Captain with
“Seafarer of the year”reward. But by then the Captain had already suffered
worst humiliation by being in captivity with all the hardcore criminals whereas
the Chief Officer (2nd In command) had suffered severe depression and mental
problems.
MT ERIKA : Another example of making a seafarer a scapegoat. Blaming a
seafarer for everyone else’s mistakes. A seafarer is the softest and easiest target.
I personally know the captain and have seen his health deteriorating literally
before my own eyes. He couldn’t take the pressure and humiliation which he
suffered at the hands of world community

8. CRIMINILISATION OF SEAFARERS
 Discuss in brief about Prestige and Heibi Spirit.
THAT MAKES US TO QUESTION IF………………………
 any of the incarcerated seafarers hardened criminals….
 Then why were they treated like one
 Why were they kept along with hardened criminals
 Who is going to compensate them for the mental torture & humiliation
 Where are the human rights of seafarer

9. CRIMINILISATION OF SEAFARERS
abandonment
 Another DAMOCLES SWORD which constantly hangs over every seafarer's head
“ABANDONMENT”
 MLC was held in 2006 and amended in 2016.
 Though MLC 2006 articulated that , should the shipowner ABANDON the
seafarers , it is the insurance company which should pay for seafarers wages
and repatriation back to home country.
 But MLC 2006 did not define ABANDONMENT
 ABANDONMENT was subsequently defined under the 2016 amendment

10. CRIMINILISATION OF SEAFARERS
abandonment
What is ABNDONMENT as defined under MLC 2016 amendment
Abandonment is when the shipowner………..
 fails to cover the cost of the seafarer’s repatriation; or
 has left the seafarer without the necessary maintenance and support; or
 has otherwise unilaterally severed his ties with the seafarer including
failure to pay contractual wages for a period of at least two months’

11. CRIMINILISATION OF SEAFARERS
abandonment
 Abandonment is one of the most common causes of criminalisation
against seafarers now days.
 There are innumerable incidents where the shipowner has failed to
pay wages or
 Has failed to provide for upkeep of the crew or
 Has declared himself bankrupt thus leaving the seafarers without any
means or money to return home from foreign countries which are at
times very unfriendly

12. CRIMINILISATION OF SEAFARERS
abandonment
 So what is the recourse left for seafarers in the eventuality of an
abandonment.
 Seafarers must realise that under MLC ,it is compulsory for every
shipowner to take an insurance which is known as MLC insurance
 Under this insurance it is the responsibility of the insurance company
to ensure that seafarers wages are paid and also they are repatriated
to their home country, in case the shipowner abandons his crew
 Under MLC the insurance company is obliged to pay for only four
months of wages irrespective of how many months of wages are
unpaid

13. CRIMINILISATION OF SEAFARERS
exposure to different laws
 As shipping is a Global movement of cargoes , it is obvious that in the course of
their employment every seafarer has to move from one country to another
 Hence a seafarer is constantly governed by laws of different countries (both
criminal & civil)
 That is a rather difficult scenario if the laws under which a seafarer is governed
change with every movement of cargo and ship visiting different countries
 In order to provide a uniform base to this difficult problem a convention was held
in 1960 and was called UNCLOS (United Nations Convention on Law of Sea)
As the scope of our study today is Criminalisation of Seafarers, we will limit our
discussion to only that part of UNCLOS which effects seafarers. Though UNCLOS has a
very wide scope. It covers relations and behaviour between different countries
/movement of ships in the territorial waters of different countries/responsibilities
and rights of countries as regards the sea adjacent to their coats etc etc.
UNCLOS was further revised in 1982 and this 1982 convention came in force in 1994.

14. CRIMINILISATION OF SEAFARERS
exposure to different laws
 In the previous slide we have seen that UNCLOS governs actions of member
countries towards foreign ships visiting there ports and thereby also governing
the seafarers employed on those ships
 Under UNCLOS there are only two countries which have jurisdiction over a
seafarer
(a) Flag state **
(b) State to which the seafarer belongs**
 UNCLOS is very categorical in stating that whenever a ship / seafarer is
involved in an incident which is against the laws of a particular country then
that country must NOT resort to arresting the seafarer UNLESS the damage
has been caused with the intention to cause damage.

15. CRIMINILISATION OF SEAFARERS
exposure to different laws
 Art 230 of UNCLOS specifically states that ONLY MONETARY penalties may be
imposed
 However if any act causing pollution is wilful then the territorial state can
take action as per their laws
 Section 230 (2) provides “ Monetary penalties only may be imposed with
respect to violations of national laws and regulations or applicable
international rules and standards for the prevention, reduction and control of
pollution of the marine environment, committed by foreign vessels in the
territorial sea, except in the case of a wilful and serious act of pollution in
the territorial sea.”

16. RIGHTS OF SEAFARERS
 A seafarer has certain rights which he / she must be aware of
EVEN MLC PRIDES FOR SEAFARER’S RIGHTS
4.4.6 – Seafarers in a foreign port
1. For the protection of seafarers in foreign ports, measures should be taken to
Facilitate access to consuls of their State of nationality or State of residence;
and
(b) effective cooperation between consuls and the local or national authorities.
2. Seafarers who are detained in a foreign port should be dealt with promptly
under due process of law and with appropriate consular protection.

17. RIGHTS OF SEAFARERS
3. Whenever a seafarer is detained for any reason in the territory of a Member,
the competent authority should, if the seafarer so requests, immediately inform
 the flag State
 the State of nationality of the seafarer.
 The competent authority should promptly inform the seafarer of the right to make
such a request.
 The State of nationality of the seafarer should promptly notify the seafarer’s next
of kin.
 Allow consular officers of these States immediate access to the seafarer
4. Each Member should take measures, whenever necessary, to ensure the safety
of seafarers from aggression and other unlawful acts while ships are in their territorial
waters and especially in approaches to ports.

18. CRIMINILISATION OF SEAFARERS
IMO/ILO guidelines
 Criminalisation of seafarers is an internationally recognised malaise
 IMO/ITF/ILO have all published various papers/guidelines for member
countries to adhere
 IMO under resolution no 1056(27) provided guidelines for all member
countries to ensure “Fair Treatment of Seafarers”
 Some of those guidelines are
1) take steps so that any investigation they conduct is conducted in a fair and
expeditious manner
2) cooperate and communicate with all substantially interested States,
shipowners, and seafarers
3) take steps to ensure that adequate measures are taken to preserve human
rights of seafarers at all times

19. CRIMINILISATION OF SEAFARERS
IMO/ILO guidelines
4) ensure that seafarers are treated in a manner which preserves their basic
human dignity at all times; .
5) take steps to ensure/verify that adequate provisions are in place to provide
for the subsistence of each detained
6) ensure that seafarers are, where necessary, provided interpretation services
7) ensure that involved seafarers are informed of the basis on which the
investigation is being conducted
8) ensure that all seafarers detained are provided with the means to
communicate privately with family members/welfare organizations/ the
shipowner/ trade unions/ the Embassy or Consulate of the flag
9) use all available means to preserve evidence to minimize the continuing need
for the physical presence of any seafarer;

20. CRIMINILISATION OF SEAFARERS
conclusion
It is essential that National Governments implement the Guidelines on
Fair Treatment for Seafarers in the event of a maritime accident.
Accidents and pollution at sea can arise as a result of circumstances
that are beyond the seafarers’ control. But if there is a media storm
then the ship’s crew can be the easiest target when public authorities
seek to demonstrate they are taking action. Seafarers have a right to
undertake their work without fear of being treated unfairly, or, even
worse, placed in detention without recourse to fair justice and
representation. It is also important that seafarers are aware of their
rights under various rules.