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The Maritime Executive – Seaman Guard Ohio: A Travesty of Justice?

Seaman Guard Ohio

By Philipho Yuan 2016-01-14 15:52:36

The continuing case of the incarceration of the 35 crew and private maritime security guards of the Seaman Guard Ohio has now gained the attention of the European Parliament.

The U.K.-based charity Human Rights at Sea has called for continued and exhaustive efforts by the European Parliament to ensure that international law and in particular, international human rights law, is upheld.

Human Rights at Sea has called for the European Parliament to recognize the desperate plight of, and consequences for, the families involved, and seeks to ensure that the rights of private maritime security guards are not separated from the rights of crew. The charity urges the European Parliament to consider the necessity for equality in legal representation and support for both guards and crew.

The charity reported earlier that legal support in India is being provided through the ITF Union to the members of the vessel’s crew, but it is understood not to extend to the six British private maritime security guards despite the guards being issued with Seaman’s Books as evidenced in Indian court documents.

Human Rights at Sea CEO, David Hammond, commented: “This is yet another blow to the families of the vessel’s crew and security guards, though our charity sees them as one body of seafarers caught in the Indian judicial system. We have always supported the rights of these men to lawfully challenge the facts of the case, the charges laid against them and now to appeal their sentences.”

A court in Tuticorin, India, sentenced the 35 men to five years hard labor after finding them guilty on charges of carrying illegal arms, illegal refuelling and unlawfully entering Indian waters off the coast of Tuticorin on October 18, 2013. The men have been held in India ever since. In March 2016, the Madras High Court Bench refused to suspend the five-year sentences handed down to the men in January. A final appeal is scheduled to be heard on June 1, 2016, while the crew remains in jail.

The Sierra Leone-flagged ship owned by AdvanFort, a U.S.-based company, was intercepted by the Indian Coast Guard ship Naikidevi on October 12, 2013 and escorted to V.O. Chidambaranar Port in Tuticorin. The crew and private security guards on board the vessel were arrested and 35 firearms, 102 magazines and 5,682 rounds of ammunition were recovered.

The ship had 10 crew members of whom eight were Indians and two Ukrainians. On board were 25 security guards, six British, 14 Estonian, four Indians and one Ukrainian.

The men, their families and the industry at large were deeply shocked by the five-year sentences.

Hammond, said at the time that, based on the facts available, it is a “travesty of justice for the ordinary crew members who we understand were not aware of instructions being passed down from the employer and who were otherwise simply doing their job.”

Human Rights at Sea alongside a number of other U.K. welfare organisations including The Mission to Seafarers and Royal British Legion has always strongly campaigned for a fair and equitable hearing for all crew while respecting their human rights and avoiding unlawful deprivation of individuals’ liberty.

“This case sends a stark warning in particular to the private maritime security industry and those who operate floating armouries in international waters, that the laws of foreign states must be known, briefed to the crew and respected as part of a voyage risk analysis and duty of care to all crew members,” said Hammond. “This is especially so when operating in and around any coastal states with a history of insurgency and terrorism.”

His sentiments were echoed around the industry as news of the sentencing broke.

Ken Peters, Director of Justice and Public Affairs at The Mission to Seafarers, said “I am horrified and filled with anguish at this decision which is deeply unfair and unjust. These men are seafarers, but it seems the court did not accept the basic fact that the ship was and is an anti-piracy vessel.

“The men carried arms in accordance with international maritime law for the purpose of ensuring the merchant fleet was protected properly from the very real risk of pirate attacks and hijack. The men have already suffered so much, so this is a terrible outcome. It is beyond belief.”

AdvanFort’s Actions in Question

Klaus Luhta, Chief of Staff for the International Organization of Masters, Mates & Pilots said his organization views the sentence as a travesty of justice particularly since the mariners had no say in how events leading to the supposed violation of Indian law transpired. “The vessel owners placed the ship in a position where it had no choice but to violate the law of the territorial waters or be left adrift at sea without fuel,” says Luhta. “The real criminal here is the owner of the AdvanFort firm, U.S.-based Arab billionaire Samir Farajallah, and he is who should be brought to justice.

“I personally call on organizations like Seafarers Rights International (SRI) and Human Rights at Sea (HRAS) to develop a class action lawsuit on behalf of the Ohio crew against the AdvanFort owner for damages suffered by these crew members and their families in the form of lost wages, legal expenses, pain and suffering, etc.

“At an absolute minimum Farajallah should be compelled by the courts to compensate the families of these suffering seafarers, and I hope organizations like SRI and HRAS answer the call.”

His views are reflected by Captain John Dalby, CEO of Marine Risk Management in the U.K. “AdvanFort are not known for reputable ops,” he says. “At the time they claimed the vessel had run out of bunkers. If that’s the case, they also suffer from poor planning and logistics. That was their reason, allegedly, for entering Indian territorial waters (almost trying to claim safe haven!) The whole world knew that India will not tolerate weapons – so were they ignorant of that fact – or just arrogant?”

Jonathan Stamper, Director, Watchwood, adds to the concerns about the risks taken:

“Nations all over the high risk area have been extremely concerned about the floating armories since they began to operate. Given the complexities of maritime law, the global issue with terrorism and commercial pressures it comes as no surprise that at some point, someone operating a floating armory has through either sheer bad luck or bad operating procedures come unstuck within the fragile legal boundaries these vessels operate under.

“India has and still is a difficult jurisdiction to work with, but their boundaries of maritime security legality have been made very clear for years, and any maritime security company that operates near it should take additional measures to ensure they do not fall foul. As a country it has had more than its fair share of conflict in recent years, and this, coupled with its size, and well known issues with its judicial procedures, you could not expect any other outcome than for them to pursue this issue with vigor.

“I think the matter will play out for a while longer, whether any diplomatic solution becomes viable to enable the personnel to be released is the only practical issue really, as the rest of it is a matter of interpreting law. Its seems clear that it was not a criminally intended operated vessel, however that is part of the corporate risk Advanfort took in operating it, and they have now been on the receiving end of Indian law enforcement, which must now play its role to whatever conclusion.”

Seafarers and Managers Reflect

Captain Kuba Szymanski, Secretary General of InterManager, sought opinions from ship managers and seafarers. “The industry sentiment is that there is no excuse for any shipowner, small or large, to act illegally. Nobody has a problem with that. We all believe that everybody should play by the rules. Therefore, the owner’s chief executive and whoever is running the business should have made sure that these guys were safe and not exposed to any illegal activities,” he said.

“What really bothers us is the fact that the Indian government is going after the lowest possible ranking. It is not going to help to jail those people, because they are not guilty. Once again, a government is going for the lowest hanging fruit to show the crowds that they have been strong and they have done something. No! This is laziness. If they really wanted to eradicate the problem, they should go after the top boss.”

Szymanski’s views are reflected by others (anonymously):

“I think the governments of all those imprisoned should seriously challenge the Indian government for this disgraceful action… Throughout the entire period of the Somali piracy problem, the Indian government, whilst providing some excellent naval escort assistance, have actively blocked the facilitation of embarking armed guards from its ports / waters, despite a huge number of Indian nationals who have benefited from the situation through their employment as guards.”

“Whilst I am grateful for the protection armed guards have given to seafarers and played their part in the reduction of successful piracy attempts and am, in turn, sorry for the individuals caught up in this incident and subsequently sentenced to a hefty punishment my opinion is: Nobody in any service or jurisdiction is above the law. If AdvanFort were going to operate in this particular arena (which is known for being litigiously complex) then they should have fully investigated the legal requirements and protected their people and property by acting in compliance with the law – failure to do so put them in the ‘cowboy’ category.

“There is no doubt that there were many opportunists in the security sector that made lucrative earnings by exploiting a vulnerable market – there were others that took their time, research and did things legally and professionally. A form of punishment is therefore justified but should have been levied against the company not the employees!”

“From what I read, the armed guard’s company had not complied with most basic requirements that someone would have expected, such as obtaining the proper license for the operation they were conducting, proper registration of the boat they were using, etc. I honestly don’t see the issue being a completely innocent boat getting trebled with local rules when it entered local jurisdiction but more of a boat that was “getting away with it” while it was operating in international waters and got caught out when it entered water with proper rules apply.”

“Why once again does the legal system goes after people at the “shopping floor” and not for masters of the disaster”

“They were supposed to comply with national and international requirements at all times. The full details are not very clear, but carrying undeclared arms in territorial waters without permission is a serious offence. Moreover, the mushroom growth of armed guards companies during this time had prompted them to bypass many issues and take lots of short cuts. But from a humanitarian point of view, it very sad. It appears that their case was not well fought. Any good marine lawyer could have convinced this case but…”

More Comments from Around the Industry

Nicholas F. Fisher, Chief Executive Officer, Masterbulk

“Disgust and dismay! Not being privy to the details of the case, it appears to be a matter of interpretation of UNCLOS which grants the state the right to establish and exercise full sovereign authority over its territorial sea, with the exception of the right of innocent passage and the right of safe haven for vessels in distress. Passage is innocent as long as it isn’t prejudicial to the peace, good order or security of the state and shall be considered prejudicial if the vessel engages in the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. Ask a maritime lawyer what they think!”

Nigel Shattock, Seafarers U.K.

“Seafarers play an immensely valuable role in our society, and the case of the MV Seaman Guard Ohio perhaps helps to highlight how they also have to deal with often complicated or dangerous working conditions whilst carrying out their duties, almost always beyond their control. The case is politically complex and the legal process carries on, but it serves to remind us how national governments, international regulators, shipowners and shipmanagers, trade unions and maritime charities alike still need to do a lot more to help protect seafarers’ rights and to provide them with a safer working environment on board, whatever the type of vessel, whatever the nationalities involved, and whether they are in national or international waters.”

Jean Gowin, Jeanius Consulting

“We have been following the case closely, and following media coverage last year, had anticipated – and very much hoped, the men would be returning home imminently, so we were extremely shocked to hear of the five year prison sentence.

“To be imprisoned for doing a job you had been employed to do is incomprehensible, and the response from the shipping industry as a whole has been that of dismay, sadness and disappointment. The incident will have far reaching consequences for the use of private maritime security industry in the fight against piracy. Our thoughts are with both the individuals affected, and their loved ones, and we keep everything crossed for a positive outcome from the appeal.”

Teresa Stevens, Guardian Maritime

“While understanding the Indian judicial system felt it had to act on the information presented to it, the facts read very differently. The dispute, over how far offshore the vessel was, seems to be the pivoting factor for the arrests and detentions.

“No crime was intended, no criminals were on the vessel, just hard working men, away from their families and trying to earn a living. They have already spent two years in detention unable to return to their homes and families. There should now be a line drawn under the unfortunate incident, the men should be released and a fine levied against the operating company to pay for the men’s legal fees. Justice should now prevail. India has shown that it will not tolerate these types of incidents, it has shown a strong, unbendable position but it is now time to be magnanimous and let these men go home.”

Louise Hammond, SeaWives

“We at SeaWives have been following this case for some time and we are deeply saddened by the decision of the court and the sentence that has been imposed on the seafarers.
As wives of seafarers ourselves we can honestly say , that this kind of situation is amongst your worst nightmares! Our thoughts, prayers and best wishes are with all the families of those detained. We sincerely hope that an appeal is lodged and proves to be successful.”

Arthur Bowring, Hong Kong Shipowners Association

“Awful – this is the most incredibly sad result of a long drawn out process. While we must respect the Indian legal system, there does seem to be something very wrong when those who we rely on to protect our ships are left in limbo for an extreme length of time and then sentenced to the most awful punishment.”

Case Report

David Hammond, CEO Human Rights at Sea, has prepared a case report which is available here.

J. Chin is a reporter based in Shanghai.

The opinions expressed herein are the author’s and not necessarily those of The Maritime Executive.

full article and comments here : http://www.maritime-executive.com/editorials/seaman-guard-ohio-a-travesty-of-justice

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