Marine Pilotage in a Changing World Criminalisation of Seafarers

1. Marine Pilotage in a Changing WorldCriminalisation of Seafarers Ravi Nijjer Marine Consultancy Group AMPA Annual Workshop Melbourne 02 March 2007

2. Criminalisation of Seafarers Over last ten or so years, criminal prosecutions have become commonplace in the maritime industry Initially related only to environmental violations but in last few years also for negligent behaviour BIMCO* Study (2006) into Criminalization of Seafarers: • Identified 44 cases between 1996 and 2006. • 9 involved the detainment of seafarers prior to them being found guilty of committing a deliberate act or act of negligence • 28 cases involved detainment or punishment after allegations proven * BIMCO (Baltic and International Maritime Council) based in Denmark is the worlds largest shipping organisation

3. Criminalisation of Seafarers Recent Cases: • Captain Larsen (Danica White) • Captain Wolfgang Schröder (Zim Mexico III) (Incident in pilotage involving Captain Schröder on ‘Zim Mexico III’ where an error in judgment became a criminal offence)

4. ‘Zim Mexico III’ - Narrative • 02 March 2006 at 1130 ‘Zim Mexico III’ departs as normal* from Mobile (Alabama) and begins turning around in Mobile River using propeller, rudder and thruster. • Captain Wolfgang Schröder in command • Pilot aboard but no tug assisting • Wind increases during manoeuvre and bow thruster fails • Despite best efforts of pilot and Captain Schröder ship’s bulbous bow strikes lower wood fenders of dock while upper bow strikes a dock side (196 feet high) container crane’s support legs • Crane collapses killing electrician Wayne Jacobs who was in the crane’s cab (about 125 feet above the ground) servicing the crane • Another person working on the crane is badly injured but survives *The Zim Mexico III made regular calls to Mobile

5. ‘Zim Mexico III’- 02 March 2006 Collapsed Crane on left

6. ‘Zim Mexico III’ - Narrative • After accident investigation, U.S. Coast Guard allows vessel to continue sailing between Caribbean and U.S. ports without any problems • On 17 April 2006, when vessel in Houston captain asked to come ashore for clarification and additional questioning • Ashore Captain immediately arrested, handcuffed and taken to jail and thereafter transferred, as a prisoner, to Mobile. • Captain Schröder charged under US Federal Statute ‘Seaman’s Manslaughter Act’ (This act permits criminal conviction of a seafarer for ‘misconduct, negligence, or inattention to …duties resulting in the death of a person. The penalty for such a conviction may include imprisonment for up to ten years) • Captain Schröder’s misconduct or neglect was his failure to advise the pilot of previous occasions when the vessel’s bow thruster had lost power. (At the subsequent trial he maintained that the bow thruster had not been a problem prior to the casualty).

7. US Law Seaman's Manslaughter Act (1838) “Every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector or other public officer, through whose fraud, neglect, connivance, misconduct , or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years or both. When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.” Originally enacted in response to over 7000 deaths in steamboat accidents in 19th century Applied in Staten Island Ferry Accident 2003 & other recent accidents

8. ‘Zim Mexico III’ - Narrative • After a few days in prison with help from lawyers and a bond of $500,000, captain released from jail. (Bond was provided by German ship owner) • Between April and the trial in October captain under “house arrest” and without passport • Passport required to be handed in because Captain considered a ‘flight risk’ • 04 October 2006 nearly 6 months after house arrest Captain Schröder’s trial began

9. ‘Zim Mexico III’ - Trial 21 Feb 2004 - Collision between ‘Zim Mexico III’ and Offshore Supply Vessel Lee III in dense fog at the mouth of Mississippi - Pilot on board - 5 American seamen died in the accident - Shipping channel closed for a week - Pilot absolved of ultimate blame but placed on 3 years probation, ordered to finish 50 hours of continuing education and pay $10,000 to cover the cost of hearing - Captain Schröder not in command when this accident occurred Above previous accident brought to the attention of jury during the trial Second person working in crane who was badly injured but survived and presented in court

10. ‘Zim Mexico III’ - Trial • 12 October 2006 Jury finds Captain Schröder guilty of federal charge of criminal neglect. Three days after verdict Captain taken to prison to await sentencing by Chief US District Judge Ginny Granade in February 2007 • Bail application strongly opposed by prosecutor. The prosecutor created a picture of the captain as a person with ‘worldwide’* contacts, a major ‘flight risk’, families in several places etc. • Judge rejected the bail application. *Residence in Ireland, daughter in England, lover and child in Chile)

11. ‘Zim Mexico III’ - Trial Prosecution • “It was a completely ordinary morning, except for the fact that by the end of it, before lunchtime in fact, he would lie dead - dead beneath mangled steel and broken glass”, Assistant U.S. Attorney Maria Murphy told jurors Defence • “These were good people making professional decisions”, Defense attorney Irwin Schwartz countered. “Good men made the best decisions they could make and yet a man died. ... A few seconds one way or another would have made all the difference in the world. That's why we call these things accidents”

12. Captain Schröder - Imprisonment • Captain Schröder allowed 2 X 30 minutes visits per week, in handcuffs and foot-shackles behind bullet proof glass with a telephone connection to the visitor. During weekends and holidays no visitation. Mail only delivered via prison post office, no packages allowed; if a visitor 1 minute late visit cancelled • Captain Schröder spent his time in a cell with 6 bunk-beds and a toilet with a light on 24 hours a day. • Guards made rounds every 3 hours. • Other inmates murderers and severe criminals

13. Captain Schröder - Sentence 07 February 2007 • Chief U.S. District Judge Ginny Granade ignoring both the prosecution's recommendation and advisory sentencing guidelines (10 to 21 months) sentenced Captain Schröderto ‘time served’ • Judge gave Captain 72 hours to leave the country or be deported. • Felony to remain on Captain’s record • Shipowner pleaded guilty to criminal charges and fined US$375,000 following an agreement with the US attorney

14. Post Sentence - Prosecution • Assistant U.S. Attorney Maria Murphy believes conviction will have ‘deterrent value’ on ship officers plying U.S. waters. "We are satisfied that the sentence and prosecution send a strong message to the maritime community”

15. Post Sentence - Defence • Defence lawyer Irwin Schwartz quotes a statement in court Wednesday about a report issued several years ago by commission formed to improve air transportation safety. "Everyone must focus on fixing problems, not fixing blame. This is much how we feel in this case,…state docks has moved its cranes farther away from the docks and instituted a policy prohibiting workers from the cranes while ships are docking and leaving”.

16. Captain Wolfgang Schröder • Captain Schröder was 59 years old on his first day in prison • He is diabetic, suffers from high blood pressure, high cholesterol as well as other age related problems • As a professional Master Mariner, his whole working life has been at sea (30 years as master) • He was awarded a citation from Margaret Thatcher and a medal from the Belgian King for rescue assistance during the Herald of Free Enterprise capsizing in 1987, • He is a soft spoken man, a well respected man and company employee but was all by himself in prison • Following release he said “I expect my conviction will end my career at sea sooner than expected”

17. Food for thought The late great US Coast Guard Captain Dominic Callichio, who reformed American maritime law…, theorised that so many maritime rules were created so that no rules were clear. This led to confusion in operation and policy but complete clarity in hindsight and prosecution.

18. ‘Zim Mexico III’ – German (Antigua Flag)

19. ‘Zim Mexico III’ – Geared container ship Particulars Gross tonnage - 10,736Net tonnage - 5,478Deadweight tonnage - 14,120L.O.A. - 162.80 meters ( 534' 2" )  Including bulbous bowWidth overall - 22.30 meters ( 73' 2" )Draught - 8.115 meters ( 26' 7.5" )Depth - 11.10 meters ( 36' 5" )Container capacity (deck) - 766 (20')Reefer capacity (deck) - 99 (20')  Total container capacity - 1,156 (20')Cargo cranes - 3 - 40 tonne  Strengthened for navigation in light ice condition

20. ‘Zim Mexico III’ Number of engines - 1Engine type - B&W (model 6L50MC) 6-cyl diesel engineHorsepower - 9,431 bhp or 6,930 kWFuel - Diesel oil & heavy fuel oilSpeed - 17.7 knotsPropeller - 1 variable pitchBow thuster - 1 (unknown hp)Steering gear - standard rudder

21. Points for consideration • If no person had been injured or killed what would have applied? • The Zim Mexico III was equipped with a bow thruster powered by the main engine shaft generator. Prosecutors presented evidence at the trial that Schröder knew that the generator was designed to disengage whenever the RPM deviated by more than 10% • That happened on 02 March 2006, the bow thruster shut off and the ship lost its ability to maneuver in the Mobile River • Jurors heard evidence that indicated the ship had lost use of the bow thruster on previous occasions for the same reason. • Other testimony showed that other ship officers had raised the issue during safety committee meetings with the captain and that the ship's Safety Manual called for the device to be powered from the diesel generator, not the main engine shaft generator -- as it was on 02 March 2006 in Mobile.

22. Points for consideration • On the pilots recommendation Captain Schröder opted against ordering a tug. (The ship regularly called at Mobile) • The pilot stated that he would have ordered a tug if he had known that the bow thruster had failed on previous occasions • The ship’s schedule called for 8 ports in 21 days • The ‘Zim Mexico III’ had a shaft generator failure in November 2005 and December 2005. From the failure in December 2005 the bow thruster was used approximately 50 times without any problem

23. Captain’s Dilemma • The ‘Zim Mexico III’ Safety Manual advised against using the shaft Generator to power the bow thruster. The Operating Manual stated that the shaft generator should be used to power the bow thruster • The ship’s Safety Manual protected the company legally but put the Captain in a difficult position • The Captain is expected to cut costs • In risk terms is the diesel generator a better option than the shaft generator for powering the thruster? (There is no clear agreement on this issue amongst professional mariners)

24. ‘Zim Mexico III’ Design Fault • When both main engine and bow thruster used on full power, main engine slows down below the required RPM. The causes shaft generator to shut down with loss of power to bow thruster. This is probably what happened in Mobile • Is this a design deficiency or negligence on the part of the captain? • The solution : Installation of an electro-magnetic switch array that automatically starts a generator when power is lost on the shaft generator (Such an arrangement is standard in hospitals etc.)

25. Michael Grey on ‘Acceptable Risk’ “We can laugh about our risk averse society, and the high priests of “elf’n Safety”, but you do not argue with prosecutors bearing charges and demanding heavy sentences if things go wrong. And it is us, not society who will have to change our notions about risk…” The precautionary principle defines the risk-averse society Lloyd’s List, 19 February 2007 (Article following Judgement on ‘Zim Mexico III’)

26. Acceptable Risk • Where do we get our ideas/beliefs on ‘acceptable risk’? • After this accident and increasing criminal prosecutions do we need to change our ideas on ‘acceptable risk’? • Why is it important to get a ‘fix’ on ‘acceptable risk’ in pilotage in what is now a ‘risk averse’ society? • What can be be done?

27. Risk Creep • We under-react to changes that occur slowly and over time • The human brain is very sensitive to changes in light, sound, temperature, pressure, size, weight and just about everything else • But if the rate of change is slow enough, the change will go undetected • How does this apply to risk in pilotage?

28. Have risk management measures been updated to take into account decreasing margins of safety and increased risk over time?

29. Risk Creep • Is there any system for detecting increased risk over time? • What is the situation in your port? • Is it a case of ‘We’ve always done it this way’? • Without additional precautions a ‘near miss’ in the 1970’s could result in an accident in 2007!

30. End (Discussion)