Maritime law comes under the larger domain of international law and is hence referred to as ‘law of the sea’. It is addressed as a set of conventions, treaties that govern private maritime business. The UN through the IMO (International Maritime Organization) has issued embarking conventions that are followed by navies and coast guards of countries who have signed the treaty outlining the rules. The law helps govern many insurance claims relating to ships & cargo, civil matters between shipowners, seamen, passengers, and privacy. Human rights are fluid and not defined anywhere in one place. The first recognized regularization had been enacted in 1948 through UNHR to make declaring provisions as binding, two multilateral treaties ICCPR (International Covenant on Civil and Political Rights) and ICCESCR (International Conference on Constitutional, Economic, Social and Cultural Rights) were formulated, and UNHRC that oversees the implementation of human right laws.
HUMAN RIGHTS OF CREW AT SEA
Often a civilian’s mistake is a mistake but a seafarer’s mistake is a crime.
According to the ‘Geneva Declaration On Human Rights At Sea’(5 April 2019), the concept of human rights at sea rests with the four basic fundamental principles: 1. Human Rights that apply at sea are similar to the degree and extent that they do on land, 2. All persons without any particular distinction enjoy such rights at sea, 3. There aren’t any maritime rules that rest on derogation from human rights standards, 4. All human rights established under a treaty and customary international law are respected at sea.
As reported on 5th May 2021 wherein the Egyptian Court ruled that the container ship that has blocked the Canal will continue being held in the waterway thereby rejecting an appeal led by its Japanese against its detention. An overall understanding stresses the fact that the crew comprises of all the 25 Indian members who are stuck at the Suez Canal, such human rights belong to all these individuals. Particularly, the Coastal States and the Port States need to ensure that the people who are trapped back at sea effectively enjoy these rights including the availability of an effective remedy in case their rights are infringed upon. As far as the present situation goes the crew members have been reported to be in ‘good health’. However, there are several cases wherein the members had been denied permission to go ashore to receive the required medical care. Hoping that such things don't reoccur, under ILO's MLC (Maritime Labour Convention) the post states should make sure that the members stuck aboard get the immediate medical care that they need. Accordingly, the ILO, with the help of exceptional measures adopted by a handful of governments cannot be invoked as such as a valid reason is not to comply with this international obligation. Furthermore, the responsibility to assist the seafarers in the times of their distress including the required medical assistance has also been looked upon in the IMO Safety of Life at Sea (SOLAS), Maritime Search and Rescue (SAR), Salvage and Facilitation conventions, as well as in the United Nations Convention on the Law of the Sea (UNCLOS). Amidst the ongoing pandemic where cases seem to increase every passing day, IMO member states have been encouraged to provide all the seafarers and marine personnel receive priority vaccination, which will reduce the chances of frequent contention being exposed to the virus. However, this would only be a success when there is collaboration and cooperation between the cruise lines, governments, and others which seems no easy of a deal. Not abiding by these the Egyptian government has claimed $1.2 billion against the Japanese owner of the Ever-Given ship for compensation which has made the atmosphere more tensed. The crew members find themselves trapped in this legal dispute between Egyptian authorities and their owners and operators.
The big concern is refloated as to what action the Suez Canal Authority take against these 25 members, according to the Times of India report there is a possibility that criminal charges would be brought against them. The charges should not be brought as there was no intention on the part of the ship’s captain to commit the offense of causing damage to the port or territorial waters. Further, it was because of the vessel’s operational failure which caused the blockage or accident and there is no ‘mens rea’ to cause damage to anyone. They have the full liberty to enjoy their human rights and shouldn’t be made vulnerable to the different criminal charges or investigations that they might be at risk of as there is no accusation on them wherein they had left the vessel in poor condition, injured a person on board, infringed local laws, caused incident relating to drug or alcohol, cargo loss or even injured a person onshore side. It is quite evident that these crew members feel like mere hostages with most of their freedoms being taken away and continue to survive only with the hope of being rescued.
There were similar criminal charges laid concerning MV Rena grounding which took place early on 5th October 2011 the MV Rena, a Liberian, Greek-owned 235-meter vessel had struck the Astrolabe Reef off the Tauranga coast, a port on the North Island of New Zealand. It was heading to Tauranga from New Zealand port and due to continue to an overseas port and was carrying 1400 containers and 1700 tonnes of fuel. There had been various well-known cases like The Prestige Case, Costa Concordia case, etc that caused pollution of sea or death of any person.
Confronted with the blockage of the Suez Canal by the Ever-Given ship, we however had come face to face with another similar incident in the previous year wherein dozens of sailors of Indian origin remained stuck on stranded ships at Chinese ports. There were as many as 23 Indians who got stuck on the bulk carrier ‘MV Jag Anand’ that had anchored off Jingtang port on the Bohai Sea in northern China’s Hebei province since June. The Bohai Sea is westward, at the inner extension of the yellow sea. Later on a Wednesday it got in touch with the Indian authorities regarding the incident but remained silent as to when they would be allowed to leave the vessel. Beijing has not yet allowed them to get off the vessel owing to the backdrop of increasing cases of covid 19 infections in the entire country, resulting in their physical and the mental health of at-risk. Some of the crews have already been suffering from poor health issues while the ship itself is running out of medicines etc. A recent news report brought out the fact that those 23 members who were still struck have been seeking help from the Indian government and are hoping to return home. Taking into consideration another instance wherein 16 Indian seafarers had not been allowed to step back from their allotted ship MV Anastasia, stranded off Caofeidian port in the same province.
It has been estimated that around 200,000 cargo ship crew members remained stuck at sea and their devastating situation is beyond their contract length due to the ongoing coronavirus pandemic which has brought a strain to their physical and mental state. The new UN guidelines that got published aimed to bring help to the industry to protect their human rights at sea. It acts as a positive step in the overall maritime industry and provides a practical approach for the cargo owners, charterers, seafarers as they work to deliver goods that people might need and want. Several factors like physical and mental health, access to family, freedom of movement are classified as some of the considerations included in the new guidelines thereby taking into care of their current situation. IMO had established a dedicated Seafarer Crisis Action Team to help monitor all the respective developments, coordinate efforts, better communication with stakeholders, and for providing relevant support to individuals in urgent situations. The team works alongside ILO, ITF, and ICS. This team works reassuring the seafarers that they could contact them directly as they help them contact national governments, NGOs, trade unions, organizations, etc.
On Thursday, the Ship’s owner had filed a suit against the operator in the UK’s HC, thereby limiting his part of liability which has made it even difficult to help determine who is to be held responsible when such things go wrong at sea. The filing of suit seems a clear case of injustice being served, where there wasn’t any liability from his side. The gigantic vessel got driven by strong winds and ended up wedged across the waterway with its bow and stern stuck in the banks of the Canal. Looking closely many things are at fault already. Firstly, figuring out which nation's court has jurisdiction is of question. While the Egyptian authorities are only concerned about their reputation and have demanded their due 1 billion. The crew members have been the worst sufferers as they have fears of ‘house arrest’.
June 26, 2021