Criminalization:
The growing tendency to criminalize seafarers in the wake of maritime accidents is a matter of increasing concern to the entire international maritime community. As a result, the International Maritime Organization (IMO) and the International Labor Organization (ILO) formed a joint working group to address the issue of fair treatment of seafarers during post-accident investigations. The guidelines adopted by the IMO and ILO were considered as guiding principles in the IMO draft of a new Casualty Investigation Code that is on track to become a mandatory code as part of the SOLAS Convention at IMO MSC 84 in May of 2008.
The code would require that a seafarer be informed of the nature of the investigation being conducted, be given access to legal advice regarding the risk of self incrimination and be informed of the possibility that evidence provided to the investigator could be used against him in a legal proceeding. We believe that offering such guarantees in the context of what could potentially evolve into a criminal investigation is in keeping with the fundamental tenets of human rights.
As you know, the authority under which the Coast Guard conducts post-accident investigations is set forth in 46 USC 6301. That statute unambiguously asserts that the goal of Coast Guard casualty investigations is to uncover “an act of misconduct, incompetence, negligence, unskillfulness, or willful violation of the law” that can lead to suspension or revocation proceedings, civil penalties or criminal charges. Consequently, we believe it is unjust to interrogate a seafarer without informing him of the nature of the investigation being conducted and the right to have access to legal counsel.
The establishment of a procedure to inform a seafarer of his rights at the beginning of an investigation would not require any substantive change in U.S. law regarding what action might ultimately be taken against him. Its only consequence would be to grant seafarers the same procedural rights that are afforded under our legal system to all other U.S. citizens who are under investigation.
We realize that development of a solution to this problem could transcend the institutional authority of the Coast Guard and cross over into the jurisdictions of the Department of Justice and the U.S. Attorneys. But despite the difficulties inherent in addressing this type of multi-jurisdictional issue, we believe that finding a solution is essential to maintaining our country’s reputation as a nation that respects fundamental human rights: it is a well known fact that foreign crews are reluctant to sign onto ships that will be trading to the United States because of the risk of criminalization of negligence, visa issues restricting shore leave and denial of access to and from ships by terminal security. Given the worldwide shortage of officers, the result is that the most competent senior officers—those who are in the most advantageous bargaining position—are turning down assignments to ships in the U.S. trade. The response of the international maritime community to the treatment of seafarers by the United States on these human rights issues is adversely affecting our reputation and is clearly not in our nation’s best interests.
Medical standards:
As discussed at our December 10 meeting, the changes that the Coast Guard is proposing in medical standards and determining medical fitness through a centralized system at the National Maritime Center (NMC) will impose a costly burden on the industry without any evidence that these measures will lead to a reduction in accidents. A system under which the determination of medical fitness is made by USCG staffers at NMC who have never seen the applicant and must rely exclusively on documentation in the form of test results covering all possible medical conditions will in many cases be prohibitively expensive. In our opinion, it would be more practical and cost effective to have medical fitness determined by examining physicians who have been certified by the USCG as meeting appropriate standards.
We are aware that the impetus for the changes was the accident involving the Staten Island ferry Andrew J. Barberi, in which a medical condition caused the pilot to lose consciousness at a critical point in the transit. It is our belief that the investigation failed to adequately address the root cause of the accident: operating a high-capacity ferry in a high-risk environment with a single person in the wheelhouse. The potential for a single point failure in such an operation is apparent and will not be eliminated by imposing new medical standards.
There has been no documentation of a compelling need for the proposed medical standards and implementing procedures, nor has there been a cost/benefit analysis of their probable impact on the maritime workforce and the maritime industry.
We also note that the European Union has submitted a proposal to IMO that international medical standards for seafarers be included in the current comprehensive review of the STCW Code. That proposal will be acted on this coming March at the IMO STW 39 meeting. The United States is on record with IMO as supporting international standards of medical fitness in cooperation with the International Labor Organization and the World Health Organization. The International Medical Health Association has offered to assist in drafting new international medical standards for the IMO.
In light of the pending international action, we believe it would be appropriate for the USCG to wait until action is taken on international medical standards before acting on U.S. medical standards. As you know, over 95% of the large commercial ships in U.S. ports that are engaged in international trade are foreign flag and will thus be regulated under international medical standards. American maritime workers and U.S.-flag companies are justly concerned that the competitive capability of U.S. ships may be further eroded by the imposition of a costly medical review system that is not applicable to foreign ships and crews working in the same trades and ports.
Access to and from ships:
In the name of “port facility security,” seafarers are now routinely being denied access to their ships and to shore at a number of U.S. port facilities.
The possible conflict between access to a ship at a port facility and the security plans of the port facility was recognized by the IMO during adoption of the International Ship and Port Security (ISPS) Code. The issue was addressed in the mandatory Part A, Sec. 16.3.15, of the ISPS Code, which requires that a Port Facility Security Plan (PFSP) must include “procedures for facilitating shore leave for ship’s personnel or personnel changes, as well as access of visitors to the ship, including representatives of seafarers’ welfare and labor organizations.” The United States, as a signatory to the ISPS Code, is obliged to conform its practices to the provisions of the code, yet the USCG does not enforce the provisions of the code regarding shore leave and access to ships. The result is that mariners are denied shore leave, and labor and welfare representatives are denied access to ships. Ship service technicians and suppliers are also being denied access. As a result, in some cases ships are being forced to take on stores while underway in the stream, a risky undertaking. A ship blocking a navigation channel while maneuvering to change crew or take on stores is a hazard to navigation.
In response to the improper application of port and vessel access measures, primarily by the United States, the IMO issued further guidance to contracting governments to assist them in meeting their obligations under SOLAS Chapter XI-2 and the ISPS Code on the access issue in MSC/Circ. 1112, which states in part, “There must be a proper balance between the needs of security, the protection of the human rights of seafarers and port workers, and the requirement to maintain the safety and working efficiency of the ship by allowing access to ship support services such as the taking on of stores, repair and maintenance of essential equipment, and other vital activities that are appropriately undertaken while moored at port facilities.”
We have repeatedly requested that the USCG ensure that Port Facility Security Plans are in compliance with the mandatory provisions of the ISPS Code and relevant IMO circulars regarding shore leave and access to ships. There is a need for a national policy directive from USCG Headquarters on PFSP compliance and enforcement regarding access to ships at terminals under security plans.
TWIC issues:
The proposed USCG regulations for the use of the TWIC, for card readers and escort requirements will be impossible to implement on a ship calling at multiple ports, including foreign ports, which employ port worker identity systems that are not interoperable with the TWIC FIPS-based system. Aside from the connectivity problems inherent in a system based on a card reader interactively checking the validity of cards by use of a central server, U.S. ships in the international trades will be dealing with a port worker community composed entirely of non-TWIC holders. The proposed regulations require that such port workers be escorted anywhere on the ship, since for purposes of the regulations, the entire ship is designated as a secure area. As you know, on today’s merchant ships, there are perhaps as few as three deck crew members on watch at any one time: it is obvious that even under the most favorable conditions, three people would never be able to simultaneously escort up to as many as one hundred port workers engaged in cargo operations on the ship. Merchant ships simply do not have the resources to escort the number of non-TWIC holders that will be aboard in foreign port operations.
We note that the TWIC/MTSA Policy Advisory Council has reached the same conclusion and recommends that vessels operating with USCG approved vessel security plans shall be “deemed” to be properly escorting individuals who do not hold a TWIC, but this interpretation would only apply in foreign waters. In effect, the escort provisions are waived for U.S. ships in foreign waters. We believe that this recommendation should not be limited to foreign waters. The same interpretation should apply to U.S ships in U.S. waters dealing with American port workers. If foreign non-TWIC port workers were to be deemed as being escorted on the basis of having passed through USCG approved ships’ access control procedures, it would in fact be difficult to justify burdening U.S. ships in U.S. ports with the requirement to physically escort American non-TWIC port workers passing through the same access control procedures.
Due to the widely diverse operating conditions within the maritime transportation system, the connectivity issues with ships that do not have a land based communications system to interface with a central server, the difficulty in maintaining electronic equipment at unprotected access points in the marine environment, and the questionable need for the sophistication that a TWIC card reader system provides in many operations, it is suggested that the shipboard use of TWIC card readers be made optional with the ship owner. In most cases adherence to the ships’ access control procedures approved by the USCG should provide an appropriate level of security.
