A recent United States court decision raises questions
about the investigation and prosecution of seafarers involved in
maritime incidents on the west Coast.
On October 25, 2010, the U.S. District Court in Tacoma,
Washington, sentenced Seong Ug Sin, the South Korean captain of the
vessel STX Daisy, to 14 days in prison and six months of supervised
release, during which he is prohibited from sailing in U.S. waters.
Sin was convicted by a U.S. jury of being intoxicated while in
command of the 590- foot, 20,763-tonne freighter, while transiting
the Strait of Juan de Fuca.
Evidence at trial revealed that Sin's blood alcohol level
was more than two-and-a-half times the legal limit at the time of
the offence, which occurred at approximately 4:00am, on April 14,
2010. At that time, a ten-member U.S. Coast guard inspection crew
repeatedly attempted to board the STX Daisy, in three foot swells
in the Strait of Juan de Fuca, because the vessel had come from
ports-of-call where there were security concerns.
After ignoring a request to put his crew on the weather deck
rail, to be counted by the Coast Guard prior to boarding, the
defendant and his crew failed to provide the Coast Guard with a
sufficiently long Jacob's ladder to board the vessel. Instead,
the crew lowered a long metal ladder meant to be used while the
ship was in port.
Upon boarding the vessel, the Coast Guard found the entire crew
to be intoxicated, and using faxed copies of a chart that were
taped together, in order to navigate the waters of Puget Sound. The
Coast Guard also found a large number of empty liquor bottles and
beer cans on board. As a result, the boarding team obtained an
order from the Coast Guard captain to relieve Captain Sin of his
command of the vessel, and to anchor the vessel in Puget Sound
until another licenced captain and acceptable charts could be
obtained.
In seeking a sentence of three months imprisonment and a
US$100,000 fine, the District Attorney noted that the intended
route of the STX Daisy, which was carrying a large amount of fuel
oil, crossed "at least six Washington State Ferry routes, the
Tacoma Narrows Bridge, and many areas of high commercial
shipping."
The District Attorney also cited a number of English criminal
cases involving intoxicated seafarers. In one case, the captain of
a Scottish tug boat was sentenced to four months in prison for
operating his vessel while intoxicated, of the coast of Shetland,
U.K. In another case, the captain of a Cypriot merchant vessel was
sentenced to two months imprisonment for operating his vessel while
intoxicated near Dagenham, U.K. In yet another case, the captain of
a Swiss merchant vessel was sentenced to seven months in prison for
operating his vessel while intoxicated, near New Holland, U.K.
These cases, and that of Captain Sin, illustrate the current
emphasis on punishment and deterrence in the prosecution of
seafarers, both in the United States and elsewhere. While this
approach may be appropriate in instances where a crew member such
as Captain Sin is clearly engaged in criminal conduct, it is a
question as to whether it should be embraced in all cases. Issues
such as whether and to what extent crew members should be held
responsible for maritime accidents beyond their control, or held in
a foreign country for months, or even years, as "material
witnesses" even when they have not been charged, and the
danger of crew members being held for a colourable purpose, such as
to secure compensation from their employer or its insurers in
relation to an accident, are all factors that must be
considered.
To this end, the United Nations International Maritime
Organization, in conjunction with the International Labour
Organization, has drafted a set of guidelines intended bring some
uniformity to the manner in which coastal states investigate
maritime accidents, and the procedural protections afforded to
seafarers during such investigations. "The Guidelines on Fair
Treatment of Seafarers in the Event of A Maritime Accident"
came into force on July 1, 2006, but, to date, have not been
adopted in Canada.
With the number of tankers transiting the West Coast annually
expected to increase due to the planned Enbridge pipeline from
Edmonton to Kitimat, and the planned expansion of the Kinder Morgan
Trans Mountain pipeline between Alberta and B.C., Canada may find
itself confronting these issues more frequently than it has in the
past. It remains to be seen what approach to the investigation and
prosecution of seafarers Canada will eventually adopt.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
SIGNIFICANCE OF DECISION
This is the first appellate decision to interpret subsection 43(2) of Canada’s Marine Liability Act, which makes the Hague-Visby Rules apply compulsorily to certain contracts of carriage by water between places in Canada.
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