It was in 1757 that Admiral John Byng was sentenced to death for neglect of duty in battle and duly faced a firing squad on the deck of a Royal Navy ship. It was Voltaire’s subsequent remark, which suggested such a punishment was “to encourage the others”, which has come down through the history books as much as the execution itself and was driven by political expediency.
For their part, naval officers were scandalised at the very idea that only the fear of capital punishment would persuade them to do their duty.
These matters come to mind when contemplating the seven month prison sentences meted out in a New Zealand court to the master and second officer of the containership ‘Rena’, wrecked last October on the Astrolabe Reef off Tauranga with a great deal of attendant mess. Is criminalisation and custodial sentencing an appropriate reaction to a serious error of judgement by a bridge team that had unwisely departed from their own rules and passage plan?
Of course it was not just the negligent navigation which led the court to convict, but the fact that both officers pleaded guilty to altering the ship’s GPS log, passage plan and computer after the ship had run aground, so confusing the initial investigation into the accident. Without this effort to deceive, it is possible that the court would have taken a more lenient view of the team’s – albeit serious – professional errors. Errors in which, as the Director of Maritime New Zealand Keith Branch commented, “breached the most fundamental principles of safe navigation”.
So in any discussion of the issue of criminalisation of ship’s officers, we need to consider the offence itself. As with so many of the pollution or “magic pipe” incidents which the United States prosecutes with such zeal, it is the effort of the accused to deceive with their false logbook entries which is regarded as the more serious element. Lying to the authorities inevitably attracts a more condign punishment than spilling pollutants into the sea and then openly reporting the mistake. The attempted “cover-up” by the ‘Rena’ officers effectively condemned them.
This is not to say that all such charges from the outset are perfectly justified in terms of both justice and common sense. Both officers were charged under the Resource Management Act, which related to the “discharge or harmful substances from ships or offshore installations”. The notion of the leaked oil being both inevitable and incidental after the ship ran aground makes this charge seem somehow superfluous.
But the same sort of legislation has been used to prosecute the officers of ships that have been damaged as a consequence of bad weather, or in one of the silliest cases, after a tanker was holed by an obstruction of which should not have been on a harbour bottom. There is a natural hysteria that attaches to any sort of pollution. This hysteria energises environmentally conscious politicians like none other in these febrile times. It would be useful, some professionals think, if the practicalities of operating ships in their own hostile environment were sometimes thought through more thoroughly when new offences of this nature were being considered.
Does the threat of criminal sanctions affect the behaviour of ships’ officers? Is it likely to make the role of shipmaster more or less attractive to those who might aspire to the position? There can be little doubt that this custom and practice, which attributes to the master the responsibility for all that goes on aboard his or her ship, does have an effect upon those who see their authority diminished but without any diminution in their responsibility. A truly horrendous survey undertaken recently by the Seafarers’ Rights International organisation discovered some awful facts, not least being the revelation that nearly 25 percent of the shipmasters polled had faced criminal charges, because of the job they did.
The poll was conducted in eight different languages, with the SRI despatching nearly 4,500 questionnaires over the course of a year, and reached seafarers of 68 different nationalities. The response was worrying, to say the least, revealing that the vast majority of seafarers who found themselves in trouble were denied explanation of their rights, access to lawyers and translation facilities. It sort of reinforces the idea that it is always easier to be nastier to foreigners, and there is little respect often shown to people who do one of the world’s more essential jobs.
It may be worth qualifying the SRI poll, noting that it would have taken in some pretty awful and corrupt regimes, where a few tonnes short landed, or a tiny discrepancy in the medicine chest contents, are likely to see the master hauled ashore and the ship arrested against some sort of fine or bond from the P&I club. But there are plenty of “civilised” countries where the rights of seafarers seem to be far less reinforced than those of shore folk.
All too often the law will be enforced not by a professional, but by an enforcement agent who has little comprehension of how ships work, while lawyers, who never took a risk in their lives, will wax eloquently about the operational faults of the man in the dock.
Perhaps the master and second mate of the ‘Rena’, who were probably never asked why they were in such a hurry that short cuts were necessary, were rightly convicted. Will their gaol sentences encourage the others? I somehow doubt it, but who knows?