SRI Annual Review 2013 - Seafarers and the criminal law

Prestige – decision of the national court

It was something of a coincidence that 11 years to the day on 13 November 2013, in a 263 page judgment, Galicia’s regional High Court finally acquitted the Master of the Prestige Captain Apostolos Mangouras and the vessel’s Chief Engineer Nikolaos Argyropoulos of causing criminal damage to the environment, after the ship split in two and capsized in heavy weather off the Spanish coast spilling 63,000 tons of its oil cargo.

But Captain Mangouras was also charged and he was convicted of the offence of disobedience under Article 556 of the Penal Code, for delaying the towing of the vessel as ordered by the National Maritime Authority. After pursuing the evidence, the Court found that the three key elements of the offence of disobedience were fulfilled and concluded that:

“… the accused Captain could not delay for even a minute complying with what was ordered because he lacked any margin to question the order unless it was a question of an order that lacked any rationality and which was obviously prejudicial, which was not the case ….”

The Court found that the Master had refused the tow initially in order that he could contact the shipowner. Commenting on this behaviour, the Court said:

“what happened is that, more concerned by the financial consequences of a tow that was required urgently and reasonably to solve a situation of maximum emergency, the Captain decided perhaps with some consent of the shipowner not to obey the legitimate orders that were imperatively given to him which is evidence of clear disobedience and he intentionally scorned the principle of authority, again legitimate, of the national maritime authority.”

“… the accused Captain did not comply with that order or rather in an elusive way he decided not to comply with it and disobeyed it on the pretext that he had to speak with his shipowner and he delayed in making that consultation for around three hours.”

“The excuse is unacceptable because nor did the shipowner at the time when the event occurred have any margin to avoid compliance with the order.”

The Court found the disobedience to be “… serious not only given the emergency context in which it occurred which did not allow for any doubt, hesitation, reticence and/or evasion but rather required a prompt reaction of compliance and obedience even in the case that there should be disagreement with its full suit-ability which did not occur but also given its immediate compliance was avoided for an inadmissible reason which was preserving, improving or negotiating the financial interests in conflict, the scope for which is provided by the provisions of the salvage team and the usual clauses for this class of activities of towing and salvage.”

The Court also referred to the “… clearly disrespectful attitude of the accused Captain … which practically evaded the content and urgency of the orders and he decided not to comply with them as if they were doubtful or handed down by incompetent persons or by authorities of a country which it does not seem merited enough respect from him.”

“This is the objective gravity of the disobedience that is the clear intention to scorn the authority and the gravity of the emergency context which made any disobedience unfeasible and especially criticisable when it is a question of excusing that unacceptable even criminal conduct with criteria which only make reference to a desire for profit that is hard to comprehend in the context of that class of catastrophe.”

The judgment raises many issues some of which do not appear entirely consistent. What might be said however is that given the clear findings of the Court that “no one knows exactly what was the cause of what happened or what should have been the appropriate response to the emergency situation created by the catastrophic failure of the Prestige”, the Court might have been more sympathetic to the Master who on the Court’s findings had delayed agreeing the tow because he wanted to discuss the situation with the shipowner.

But even more problematic is the impossible conflict that a Master in such a situation finds himself in. Masters can find themselves overwhelmed by competing obligations to their shipowner, and to the coastal and flag states, and they have to make profound decisions under stress for which they can then be subject to criminal proceedings over many years. The Master is on the horns of a dilemma: he is subordinate to the shipowner and the coastal and flag states, yet ultimately he is personally responsible.

European Court of Human Rights and bail

The decision of the regional High Court followed in the wake of the decision of the European Court of Human Rights (ECtHR) to which the question of bail had been referred. Following the casualty, on arrival on shore, Captain Mangouras was immediately arrested and escorted to the police station in handcuffs. He was then taken to a high security prison and bail was set at €3 million. This was the highest bail security ever set in the history of Spanish criminal proceedings. Unable to afford this, he remained in jail for 83 days and was released only when the ship’s insurers volunteered to cover the bail. Even then, Captain Mangouras was required to remain in Spain and only allowed to return to his home in Greece after 2 years.

Captain Mangouras challenged the level of bail imposed through the Spanish Courts to the highest Court possible (the Constitutional Court), and before the ECtHR on the basis that the sum set was excessive and had been fixed without his personal circumstances having been taken into consideration. He relied on Article 5 § 3 of the Convention which, in its relevant part, provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

In 2010, the Grand Chamber ruled by a majority of 10 votes to 7 that there had been no violation of Article 5 § 3 even though the bail of €3 million was recognised by the Court as being far beyond the financial means of Captain Mangouras.

The majority decision emphasised two aspects of the case: first, the gravity of the alleged offence and the growing concerns in Europe and elsewhere in relation to environmental damage which was referred to as the ’new realities’ to be taken into account in interpreting Article 5 § 3 of the Convention. Secondly, the majority took the view that the Spanish courts in setting the bail had taken into account the ‘professional environment’ which was interpreted as covering the relationship between Captain Mangouras and the shipowners. The Court noted that the bail had been paid ‘as a one-off, spontaneous humanitarian gesture’ by the London P&I club.

The majority decision raises, with respect, many concerns. The Grand Chamber has decided that it would be compatible with the Convention for a national court to assume that the employer or its insurers, in the absence of any legal obligation to do so, would feel morally obliged to come to the employee’s rescue. This means that if bail is set beyond the affordability of the seafarer and there is no clear obligation on the shipowner or insurer to stand surety, then a game of bluff could be legally sanctioned.

The ECtHR has a responsibility to maintain high standards in the area of the protection of human rights and fundamental liberties. In marine pollution cases, it has rendered seafarers reliant on the moral goodwill of shipowners and their insurers who may have no legal obligation to meet bail demands. To set bail far beyond the reach of an accused person is to render illusory his ability to secure his release from custody.

In future, the ECtHR may be persuaded to dilute the effects of its majority judgement. A new balance needs to be reached for the setting of bail for Masters and crew given the obvious disadvantages they face as visitors only in ports around the world. Until this is taken into account, then the international community is not delivering equivalent human rights for seafarers.

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Source: Seafarers Right

07 July 2014