Detention of Vessels and Crews in Venezuela

1. Detention of Vessels and Crews in Venezuela

3. The Situation For almost 20 years we have assisted owners and Clubs in releasing vessels from arrests and detentions in Venezuela for a variety of reasons. Perhaps given its vicinity to Colombia, Venezuela is, unfortunately, subject to continuous actions by illegal drug related criminal organizations, particularly in Lake Maracaibo near the Colombian border but also generally throughout the coasts. Over the last 5 or 6 years vessels in Lake Maracaibo and other Venezuelan ports have been targeted by these organizations and tried to be used without the knowledge of the owners and crews (or at least most of the crew) for drug related offences. Specifically, the operational mode has been to identify large vessels (mostly over 30.000 GRTs) loading in the Lake in route to the US, Canada, Europe or Asia. Once the vessel is almost fully laden, at dark, divers then attach below the waterline (on the bilge keel, the rudder trunk etc) a torpedo type metal device or a canvas wrap with illegal drugs (normally of the drug known as cocaine, in amounts of around 100 kilograms).

4. We do not practice criminal law nor defend criminal cases, (and even less so drug related offences). However, over the last 6 years our Caracas Office has accepted appointments from the different Clubs to assist in releasing vessels owned by reputable owners found in these situations and to appoint and monitor criminal counsel for the crew. On our knowledge of Venezuela and the International Shipping Industry we have analyzed in detail the facts and variables at play in each case we have been appointed and concluded every time that the owners are victims rather than perpetrators and indeed it is precisely prestigious owners that the perpetrators look for. It could be that the devices are attached with the purpose of retrieving them in the port of destination or it may even be they are used as mere decoys to distract the authorities (Police, National Guard, Prosecutors, Coast Guard, Harbor authorities etc) so while they are all dealing with the capture of one vessel, which perhaps the very perpetrators report, others leave Lake Maracaibo or the Venezuelan port unnoticed with larger quantities of drugs. There may even be law enforcement officers involved.

5. The Theoretical Legal Position Under Venezuelan law when individuals are detained and assets seized as a result of a criminal investigation the Prosecutors Office (which in Venezuela has the duty and authority to prosecute criminal offences) has 30 days plus an extension of 15 to either file charges or dismiss the case. If they do not file charges the detainees and assets must be released at the conclusion of day 45 or the detention becomes unconstitutional. Up to some 3 years ago, vessels detained in the said circumstances were released within the 45 days, with Prosecutors invariably dropping the charges in each case given the clear lack of involvement of the owners and crew.

6. The same happens in other Latin-American countries like Colombia, where the release is even faster because authorities have learned that it is not worth investing time and energy in prosecuting the victims, that they must concentrate in prosecuting the perpetrators and furthermore, maintain an alliance with the Shipping Industry to cooperate in the fight against this serious crime. Specific cases in which we assisted the Club and owner and in which the crew and vessel were released were that of the Christopher Oldendorff, the IDC 1, and the Yeoman Brooke, all entered with International Group Clubs.

7. The B Atlantic

8. The B Atlantic and Astro Saturn. However, the treatment by the authorities changed dramatically and shifted 180 degrees in two stages with the cases of the B Atlantic, an Italian owned bulk carrier detained in Lake Maracaibo on 13th August 2007 with a device attached to the rudder tunnel, filled with approximately 100 kilos of cocaine, and the Astro Saturn a Greek owned tanker detained in Puerto La Cruz, east Venezuela, with a similar amount of heroine around September 2008. We assisted the owners and Club of the B Atlantic and recommended and supervised criminal counsel for the crew. In this case, contrary to what had been the treatment of previous cases and notwithstanding the lack of evidence against them, after the 45 days the Prosecutors charged the master and (randomly) the second officer.

9. Equally notwithstanding that Venezuelan law is clear, as to that in the event that the owner of the vessel is not charged the vessel must be released at the latest in the preliminary hearing that must take place subsequent to the charges filed against the crew, the vessel was retained at the request of the prosecution and ordered so by the court in open violation of the Constitutional rights of the owner. A Maracaibo judge with 27 years in the bench who subsequently ordered its release was immediately suspended and the vessel´s sailing obstructed by the maritime authorities. The vessel remained in Lake Maracaibo manned by the owners for over two years, but was eventually abandoned by them last year. The Ukrainian master and second officer of the B Atlantic were taken through an excruciating process of continuous suspensions of the proceedings.

10. Astro Saturn

11. In the meantime the M/T Astro Saturn was released in Puerto La Cruz by a local judge. Disregarding the Judge´s ruling an unsuccessful hot pursuit of the vessel was ordered. The judge was immediately suspended and charged by reason thereof. An arrest warrant was issued against him and as we understand it he remains at large. The release of the Astro Saturn aggravated the treatment of the situation generated a more harsh view by the prosecutors and fear in the judiciary to rule objectively. After more than two years of house arrest the B Atlantic officers were sent to a jail that is of the most dangerous in the world. In or around May 2010 the two officers of the MV Astro Saturn were convicted and sentenced to 8 years in prison. On that matrix last week the two officers of the B Atlantic were convicted and sentenced to 9 years in prison

12. Aqua

13. The Aqua Since the month of February 2010 the MV Aqua of Turkish interest and part of the so called Aframax Pool of which PDV Marina together with its Time Charterer OSG are members, remains detained in Lake Maracaibo with 400.000 barrels of crude on board because of a similar drug shipment found in the rudder trunk while it was sailing from the PDVSA terminal on route to Belgium. The vessel was detained and 23 crew members arrested on board. After 45 days the Prosecutors decided not to file charges but the Court did not accept their decision. Instead it ordered the continued detention of the vessel and the prohibited the crew from leaving Venezuela pending further findings. Vessel and crew remain in Lake Maracaibo after 6 months.

14. Jin Yao

15. The Jin Yao On August 2 the M/V Jin Yao owned by Hong Kong interests and entered with an International Group Club was detained in Lake Maracaibo with a shipment of around 80 kgs. of cocaine attached to the rudder trunk. Its crew of 24 and the vessel are now under detention.

17. The Bottom Line So the Lake Maracaibo (and other Venezuelan ports) practice of drugs being attached to vessels owned by innocent owners and crews and its latest treatment by the authorities has become and must be seen as a serious problem for the maritime community that trades to Venezuela. Effectively, the current situation is that if an owner, his vessel and his crew encounter the ill fate of being targeted by these criminal organizations with the attachment of one of these drug devices, the live of his crew is at immense risk and his vessel in very serious danger of being lost forever. The degree to which the situation has escalated requires urgent action towards solutions first and most important for the sake of innocent seamen (and women as in the case of the M/T Aqua) whose life may be unfairly placed at risk, secondly for the sake of the members vessels and the Club's exposure and last but not least for the sake of Venezuela´s own name in the international shipping industry.

18. Solutions In our view the possible solutions can be divided in two groups: a) On the one hand immediate preventive action needed to minimize the risk for members calling at Venezuela and b) On the other one, a more general legal, political and diplomatic action, aimed at doing away with the problem for good while trying to generate an alliance between the international shipping community and the Venezuelan Government to fight illegal drugs.

19. a) Immediate Preventive Action Below we list what we would propose as immediate actions. This list is the result of interviewing master mariners, owners and operators, navy officers and surveyors with knowledge of the area. In each case our question to them has been, “what would you do to minimize the risk of being targeted if you were calling at Lake Maracaibo”. The result is a wish list. The majority of those consulted believe that combining the actions set out below the risk for a vessel is brought down to almost cero. It is no doubt an expensive list in absolute terms, but quite inexpensive insofar as it can save the life of crewmembers and indeed the vessel. i) Firstly, needless to say, all owners set to call in Venezuela must advice the Master and crew of the risks involved, with mention of the specific cases and their outcome. This serves a double purpose. It ensures the crew is more careful than in other destinations (just as they are more careful when they steam say through the Horn of Africa). It also can be a defense for the member before a crewmember arguing that he did not advise of the dangers of the specific destination. As we understand it, this is done to a significant degree now.

20. ii) Secondly, before entering Lake Maracaibo, the Master (not the agent) must send a letter, in the form of a letter of protest, to the Regional Commander of the National Guard, with a specific wording we w advise on, asking for National Guard custody and presence on board during the vessel's stay at the Lake, citing the problem with express mention of the vessels that have suffered. The request will most likely be ignored, but it can serve as an important defense in case there is an occurrence. iii) Thirdly, owners should perform a private underwater inspection entering the Lake and subsequently, once clear, petition for an official one. The reason for the private inspection preceding the official one is to be able to decide on actions if something is found underwater and if so decided have the master be the one reporting the discovery. It does not generate guaranteed immunity but it represents a defense. iv) The whole crew must remain permanently on board avoiding going ashore unless it is extremely necessary.

21. iii) Thirdly, owners should perform a private underwater inspection entering the Lake and subsequently, once clear, petition for an official one. The reason for the private inspection preceding the official one is to be able to decide on actions if something is found underwater and if so decided have the master be the one reporting the discovery. It does not generate guaranteed immunity but it represents a defense. iv) The whole crew must remain permanently on board avoiding going ashore unless it is extremely necessary. vi) Use cathodic ionization to prevent welding on the hull. vii) Maintain an ROV watch of the underwater parts 24 hours while the vessel is in Lake Maracaibo. vii) Maintain a sonar watch on the vessel 24 hours. ix) Approaching the ETD, carry out a private underwater inspection before the official one.

22. 5.b)Legal, diplomatic and political action. In determining the course of action needed to try and achieve a general solution to the situation one must first identify the reasons why the situation has reached the levels of a crisis.

23. In our opinion these reasons are: i) Complete lack of knowledge by the competent authorities (Prosecutors, Courts, Antidrug and Law enforcement agencies in general) of the international maritime industry and how it works, starting with ignorance about the structure of a vessel, who prestigious owners are, what is a P&I Club, the nature of the mariners profession etc… ii) Lack of a logical, sensible and coherent policy on the point imposed from highest levels of the State. iii) Fear by those called upon to adjudge the cases of appearing soft in actions against what is rightly so considered a heinous crime by the Venezuelan Constitution and Legislation. iv) Lack of ability to pursue the real perpetrators. v) Perhaps involvement by some authorities, for which the use of innocent vessels as decoys is convenient.

24. Objectives i) With the foregoing in mind, actions towards a solution should aim at the following: ii) Try to achieve the appointment of a Special Maritime Prosecutor with knowledge of how the maritime industry works. iii) Try to generate a policy (and declaration thereof) in the relevant authorities of the State (mainly Prosecutors, Court system, Ministry of Foreign relations and anti drug authorities) for the fair treatment of these cases. iii) Try to generate a written agreement between the law enforcement agencies and the shipping community for cooperation in the fight against drugs. iv) Try to achieve a legislative improvement of the relevant legal provisions.

25. Methods The foregoing objectives can not be achieved without the concerted efforts of key international players which the Venezuelan authorities will listen to in a way which generates critical mass action with all relevant parties around the table. In this, the International Group would be an essential participant. Intertanko and the International Shipping Chamber as well and a seaman institution such as for example the ITF should also participate. The two key points of contact at the Governmental level, with ability to generate that critical mass would be the National Assembly (which as a political body can convene all authorities and other entities involved such as PDVSA) and the Minister of Foreign relations the Executive Branch section in charge of international relations. Together with the group of colleagues who has handled the majority of the other cases we have opened the lines of communication on both fronts for working groups; however the international community participation, funding and eventual direct presence are of essence.