[BITList] Fwd: Lloyd's List: Send to Colleague

[Michael Feltham]

Another interesting article from Michael Grey

Begin forwarded message:

From: enquiries at lloydslist.com
Date: 22 December 2008 08:58:41 GMT
To: mj.feltham at madasafish.com
Subject: Lloyd's List: Send to Colleague


The below article was sent to you from Mike Feltham (mj.feltham at madasafish.com 
) with the following message: I thought you might be interested in the  
article below.

Time to protect the risk-takers
Monday 22 December 2008

IT IS supposed to be the season of goodwill, but there is so much to  
be angry about. The bankers who have screwed up the world, driven by  
hubris and their outrageous bonus culture. The politicians who have  
encouraged their profligacy, presumably hoping for lucrative  
directorships in financial services when their politickingdays were  
over.

This sort of thing gets personal, as anyone who is not insulated by  
the state takes a look at the size of their pension pot. Isn’t this  
supposed to be the age of “blame and liability”? But clearly it  
doesn’t work for everyone.

But while the darned irresponsible and greedy get away with murder,  
professional seafarers who do their professional best to minimise the  
effects of an accident which was nothing to do with them get thrown  
into a South Korean prison.

Jasprit Chawla and Syam Chetan did not deserve the treatment they were  
given by the judges of the South Korean Court of Appeal. The two  
officers did what they believed was best after their ship had been  
raked by the floating crane, which, had not a tow-rope broken, would  
have cleared the Hebei Spirit as the huge ship lay in her appointed  
anchorage off the South Korean coast.

As I read the astonishing conclusions of the judges, my mind went back  
to the words of a very senior shipmaster, who told me, with a tone of  
weary resignation: “I have been at sea for 40 years, in command for 20  
of them, but there is always some b..... ashore who knows how to  
operate a ship better than I do, and will tell me what I am doing  
wrong.”

The truth of this remark seemed to be perfectly summed up by the  
curious statement from the Korean court as to the apparent culpability  
of the two accused officers. With the benefit of perfect hindsight,  
and presumably the advice of some sort of professional assessors, they  
had come to all sorts of strange conclusions as to what the Hebei  
Spirit master and his chief officer (who on the best-run ships acts  
under the master’s orders) should have done in the extremis in which  
they found themselves.

They should have briskly gone astern on the engine, and torn out the  
bitter end of the anchor cable to free their ship. Evidently the  
judges’ assessors thought that they were operating a ferry, ratherthan  
a very large crude carrier, and had a curious view of the damage and  
hazard likely to attend such a manoeuvre.

They criticised the decision to inert tanks (evidently the fear of  
fire did not enter into their minds) and thought that the ship should  
have been swiftly listed like an icebreaker (or that ferry again) to  
minimise outflow.

Most marine professionals will think that these views suggest both  
ignorance and extreme prejudice. The outrage which has greeted this  
judicial conclusion and the sentence it provoked is universal and  
genuine. If the conclusions showed that the judges had been very badly  
advised, the sentence illustrated malign barbarity.

In cases such as these, I sometimes wonder whether the protests of  
marine professionals and anyone with an ounce of sense who knows  
anything about ship operation are almost self-defeating.

There is often a huge professional arrogance among those who dispense  
what we like to call justice; witness the spats that sometimes arise  
between politicians and the judiciary, with the latter making it plain  
that they deeply resent being told what to do by outsiders.

It is bad enough politicians telling judges what sentences they should  
apply, but how much worse it is when there are people they regard as  
well beneath their dignified status apparently trying to put pressure  
on their findings. Organisations, lobbies and groups of people from  
different professions telling them what they should be concluding; it  
is quite beyond the pale.

Might it be that the distinguished judges of the higher court in South  
Korea were providing a salutary message to us noisy foreign interests  
that they would not be pushed around?

“We’ll show them,” they might have agreed in their chambers, “that we  
judges of the Court of Appeal are not swayed by these contemptible  
lobbies.”

And in this, I doubt that they are any different to their  
distinguished legal colleagues in many other places throughout the  
world. Without much trouble, you can think of all sorts of instances  
in which seafaring professionals have been treated outrageously by  
various judiciaries, with the most external protest and noise  
invariably producing the worst outcome.

Think of that travesty of justice which followed the grounding of the  
Nissos Amorgos in the Maracaibo Channel. Recall the treatment by the  
so-called civilised countries of France and Spain of the masters of  
the Erika and Prestige. Indeed, just enumerate some of the decisions  
of the Perben magistrates’ courts in France and their ludicrous  
decisions as they sought to make a point about oil pollution that had  
very little to do with justice.

Remember Wolfgang Schröder, the poor German master held and convicted  
in Mobile after his ship had knocked down a container crane with fatal  
consequences. The savage initial sentence for poor Kristo Laptalo by  
the Greek court, now thankfully reversed, for the crime of being in  
command of a ship in which drugs had been found.

I just don’t know whether it would have been better to have kept our  
protests at these injustices sotto voce, confined to quiet appeals,  
because the amount of noise we make seems to work in inverse  
proportion to the successful outcomes. The more noise we make, the  
worse the judges seem to behave. I would be interested to know what  
people think.

Certainly judges seem to reflect the mores of society in their  
judgements, while our laws too seem to be heavily weighted by a demand  
for blame, liability, retribution and punishment. One hesitates to  
employ the term vengeance, but it may be apposite.

It is a societal change that we are seeing after a period of  
relatively liberal thought, which has now clearly concluded.

Political correctness has a lot to do with it, in that some ‘crimes’  
are so much worse than others. You can wreck giant companies, the  
economies of whole nations and the lives of millions by your extreme  
recklessness, and it is viewed as an accident. But commit an  
environmental offence, with oil in the water, and the term ‘accident’  
ceases to have any meaning. You will be deemed guilty unless you can  
prove otherwise, and the odds of your success are lengthening against  
you while the penalties will be an expression of society’s demand for  
revenge.

It is not just mariners who are being exposed in this fashion. In  
England last week, some wretched man was starting an 18-month jail  
sentence after afatal accident contributed by his foolish compliance  
with a satnav instruction which directed him off a roundabout into  
oncoming traffic. Have any of you, Your Honours, ever taken the wrong  
exit from a roundabout?

As I say, the word ‘accident’ is clearly excised from our vocabulary.  
It is an eye for an eye.

But what can we do to protect our marine professionals from the  
excesses of judicial behaviour, if the more we shout, the worse the  
excesses will be? We can appeal to the International Maritime  
Organization and the International Labour Organisation to harden up  
the rather mild recommendations on the fair treatment of seafarers  
involved in accidents.

Whether this will have the slightest effect on the behaviour of  
judiciaries I really don’t know, but it is an obvious first start.

If we cannot protect our ship masters and senior officers from the  
outrageous behaviour of foreign (and domestic) courts, perhaps they  
have to be given industry encouragement to protect themselves, by  
reducing the risks we expect them to run on our behalf. This, of  
course would mean reversing the culture built up over centuries, in  
which we appreciate the risk-taking shipmaster who arrives on time,  
who goes that extra mile to oblige shippers, who takes short cuts and  
applies judgement and experience, rather than going by the book.

We expect them to live as they have been brought up, to believe that  
the ship comes first, to make do and mend, to keep the job going,  
rather than scream for a repair yard.

No longer. If seafarers are to be protected from the consequences of  
any risk taking, then they must stop taking risks. No more arriving at  
a port in hours of darkness, because it is more hazardous than  
arriving during daylight hours. No more doing ridiculous things with  
ballast in exposed anchorages to oblige the loaders. No more speeding  
along in poor visibility or taking chances in heavy weather. A whole  
series of strategies to ensure that no oil, garbage or anything ever  
else goes into the water. No calling at ports which will not receive  
waste products. No risk-taking with big ships relying on the tide to  
enter or leave port with a few inches under the keel.

And that is just the start. In short, the sort of self-protective  
strategies that will satisfy the critical eye of even a South Korean  
Appeal Court judge.

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