Seafarer Criminalisation Rears Its Ugly Head
Wednesday 19 October 2011 Lloyds List
The Rena oil spill off New Zealand has highlighted where blame will be apportioned by John AC Cartner
THE sickening odour of the criminalisation of yet another master is wafting in New Zealand’s vernal breezes. The scenario, depressingly clear, is well writ in the past. The master of Rena will be hanged. It is as summer following spring or, as in these cases, as injustice is piled on injustice in a sort of inverted compurgation.
First, there is a navigational difficulty, usually followed by collision (Marmara Princess and Beau Rivage ) or a grounding (Erika ). Then comes the pollution of black oil of some species (Exxon Valdez ).
During the pollution, the festivities of detention, drumhead trial and public hanging of the obviously guilty by the lynch mobs and the environmental vigilantes occurs. They have already decided as to the fault-worthy. Shouts of a sort of inchoate revanchism fill the air and ether. But there is no Zola with a handy “J’accuse!” in this Dreyfusian analogue.
Arrest follows by the local constabulary (Full City ) who round up the usual suspect — the master — and detain on either an improperly applied law or, if the state is lucky, a nice obsolete one (Zim Mexico III ) specially dusted off for the occasion.
A kangaroo hearing before a magistrate who knows not the difference between a navigational consequence and spilling his tea then occurs (Hebei Spirit ) with an outrageous bail set by the same. The master is then detained (Prestige ) for fear he will flee until the bail is met.
Rationally and evidentially founded or not, the prosecutor plays the tune well to a supposedly neutral magistrate — who puts the clearly subhuman and irretrievably sinful pile of flesh of a master behind bars. This is accompanied with some kind of tacky hyperbole for the press to consume then trumpet (Exxon Valdez ).
Earlier in our history there were three kinds of trials. There were trials meting the King’s justice which had some kind of predictable order.
There were Trials by Combat where one rider with a well-sharp’d lance and pointy tried to impale the other before meeting the same fate. God punished the guilty by bringing him to His expansive bosom as the consolation verdict. The innocent who lived was set free by lesser beings who concluded the more fortunate mortal had been saved by an opposite and equal application of divine grace.
Then there was Trial by Ordeal. Even the name gives one pause. Dunking stools; tossing the accused into a lake, hands tied behind, before a jeering crowd observing the miracle of learning to swim immediately; walking through fire to demonstrate that overnight God could grow one an asbestos integument, and other similar social phenomena made trial by ordeal a singularly creative judicial enterprise offering great public entertainment. If the accused died, innocent or guilty he was going on to a better place than this vale of tears. If he lived it was clear-cut: he was innocent because God was with him as surely as with Shadrach, et al. (see, Daniel, 1-3) in the furnace. Until recently, the King’s justice eventually out-competed the others and prevailed.
Now Trial by Ordeal is returning in indirect form — it is called Trial by Press. It too offers great public entertainment. The baccalaureate story-of-the-day journalists come along in these cases to fan the flames using prosecution press releases and dead aves counts until the next titillating le scandale of sex, money and corruption in self-described high places arrives — with more and better news-selling titillations.
The wretch in jail is forgot. Masters are rarely titillating. Justice has played out its game for now. There is no hope. The master, merely homo sapiens, has been convicted and awaits the public hanging.
The next phase is Fate by Finance. The master has been found guilty in the press for his clear and obvious moral defects. The press and people have had their public expressions of television-flamed outrage over the dead birds as heard for a day. Now real courts come along. Justice is a function of who hires the better set of lawyers.
The state has the full faith, credit and weight of the government to support it with unlimited budget for a nice juicy case everyman can understand. Here, pollution is best. Try a good pollution case and one can get a real job outside the prosecutor’s office when it is over.
The master? He has the policy-limited coverage, if any, of the P&I. The owner might grudgingly chip in a little. Now the master is in the full clutches of finance. It shakes him as a hound does a fox. The owner does not care because his money is not endangered — the laws are quite conveniently tilted so no liability attaches to him if he uses only half his brain. The crewing agency or union does not care.
They are not responsible. The master is now a press-created embarrassment. The banker, the shipper, the buyer of the cargo, the seller of the cargo do not care — they are covered. The prosecutor sees an opportunity to further career aspirations. Who cares now? The now utterly powerless.
Those who have been stripped of career, money and good repute then discarded to a footnote in a history or law book or blessed anonymity. Persons such as Capts Schroeder, Hazelwood, Madouras and the like care. These are the only people on the planet who know what is really happening.
They understand from experience: masters make good press, are expendable, and certainly not worth remonstrating for to the company who has sided with the state. They have been described in at least one eponymous doctoral dissertation thus: “masters: Pawns of the Financial System.”
The trials are show trials. The conclusions are foregone. No matter how much the defence tries to believe in the man being tried, it understands full well this is Trial by Ordeal in another guise. Prosecutors nowadays use the full arsenal: threats, lies, snitches, prevarication, bad laboratory work, coached witnesses. Sexism even has a place if well done.
In Zim Mexico III , Capt Schroeder was prosecuted by a female apparent man-hater before an apparently man-hating female judge. Each had gone to the Historical Redress School of Sexual Justice it seems.
Conviction is all. Justice, if served, is a nice by-product but not necessary. The Trial by Ordeal was abandoned in the middle ages and replaced by Trial by Compurgation.
Trial by Compurgation required the accused to swear on a stack of Bibles his innocence then to have others, good men and true (usually 12) swear the same. This somehow seems better than the unholy alliance of press, money and prosecutorial and judicial indiscretion which hangs masters.
Perhaps we should bring it back for balance in the dismal state of justice for any master. Parents: do not let your children grow up to be masters.
John AC Cartner is a lawyer and solicitor practising in Washington and London. He is certificated as a master mariner with no restrictions. He is the principal author of The International Law of the master (2011) Informa/Lloyds Press, www.intermaster law.com