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Criminalisation of seafarers - A New Zealand perspective

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posted on 2021-11-15, 10:37 authored by Grange, Miranda

Participants and observers of the maritime industry have been claiming a trend internationally towards criminalising the actions of seafarers in modern years. This trend has been apparent since the mid-20th century and has many vocal industry participants declaring that it is disturbing and negatively impacts the maritime industry as a whole, particularly when the blame of large-scale pollution events are placed on seafarers themselves. The International Transport Workers’ Federation (“ITWF”) highlights these industry concerns:¹ "In the modern maritime industry, reduced crews are expected to affect fast turnarounds and take ever greater responsibility for maritime security and pollution prevention. On the one hand they are subject to pressure from the company to remain economically competitive at all costs. On the other hand they face the threat of heavy-handed sanctions by States eager to find scapegoats for politically sensitive cases involving environmental damage." This paper looks at international discourse on this trend and examines whether it is reflected in New Zealand (“NZ”) by focusing on the statutory reality of the increasing criminalisation thesis. This maritime industry is largely regulated by the Maritime Transport Act 1994 (“MTA”). However, as with all jurisdictions, maritime specific laws do not exist in a vacuum. The MTA operates alongside maritime rules; the Crimes Act 1961; the Resource Management Act 1991 (“RMA”); anti-terrorism measures; health and safety legislation; employee rights; human rights; and international obligations. This research paper analyses the NZ dimension in the context of this international discussion. This paper has four main aims: 1) To isolate the areas where industry participants believe there is a trend towards greater criminalisation; 2) To analyse legislative and policy developments in NZ, focusing on the MTA and earlier legislation; 3) Determine whether NZ is following the international trend towards increased criminalisation of seafarers; and 4) Highlight infamous cases giving rise to liability in this area and hypothetically applies them to the NZ context. The bulk of this paper focuses on the second aim above: Part IV identifies five areas of criminal responsibility. Every maritime offence and crime in NZ legislation has been examined.² Part V is a forecasting exercise where I apply the facts of four international cases into the NZ framework and examine a ‘worse case’ scenario. This paper focuses on offences applicable only to seafarers (including masters) of merchant ships, in the course of their professional duties. There are sundry offences in NZ law which apply to “every person” but this paper only examines these in the context of seafarers’ professional duties. For example, offences under the recent legislation to combat piracy and terrorism through policing and border control – Maritime Crimes Act 1999 and Maritime Security Act 2004 – are outside the scope of this paper though both Acts are important pieces of legislation for NZ international obligations.³ I do not examine offences relating to harbour-masters; owners or employers of seafarers; warships or defence force members; port operators or facilities; pleasure craft; fishing boats; search and rescue operators; wrecks; nor marine structures and operations.⁴ Further, the paper does not look at the civil penalties for the same activities as examined in the criminal context, liability under the Maritime Insurance Act 1908, or the delegated authority of Maritime New Zealand (“MNZ”).⁵ This scope has been chosen due to the parallel international discussion and concerns with this subject. ¹ International Transport Workers’ Federation “Out of sight, out of mind: Seafarers, Fishers and Human Rights” June 2006 at 29. Challengers assert is that the “criminalisation of accidental pollution may discourage feedback regarding incidents, failures, and even accidents and so inhibit their prevention” as well as the increasingly employment costs that such criminal sanctions trigger: see Kyriaki Mitroussi “Employment of seafarers in the EU context: Challenges and opportunities” (2008) 32 Marine Policy at 1047. ² For ease of discussion, Part IV divides these areas into (1) health and safety offences (including pollution and hazardous cargo situations); (2) emergency situations, collisions or accidents; (3) employment rights and obligations; (4) financial and regulatory responsibilities; and (5) obligations involving the administration of justice. ³ See International Convention for the Safety of Life at Sea 1184 UNTS 1185 (opened for signature 1 November 1974, entered into force 25 May 1980). ⁴ See sections 31(4) and 71(1) of the Maritime Transport Act 1994 [hereinafter referred to as the “MTA”]; Maritime New Zealand v Page [2013] DCR 102; and Sellers v Maritime Safety (5 November 1998) CA104/98. ⁵ See Part 25 of the MTA.

History

Copyright Date

2015-01-01

Date of Award

2015-01-01

Publisher

Te Herenga Waka—Victoria University of Wellington

Rights License

Author Retains Copyright

Degree Grantor

Te Herenga Waka—Victoria University of Wellington

Degree Name

Master of Laws

ANZSRC Type Of Activity code

970118 Expanding Knowledge in Law and Legal Studies

Victoria University of Wellington Item Type

Masters Research Paper or Project

Language

en_NZ

Victoria University of Wellington School

School of Law

Advisors

Malten, Bevan