A recent United States court decision raises questions about the investigation and prosecution of seafarers involved in maritime incidents on the west Coast.

On October 25, 2010, the U.S. District Court in Tacoma, Washington, sentenced Seong Ug Sin, the South Korean captain of the vessel STX Daisy, to 14 days in prison and six months of supervised release, during which he is prohibited from sailing in U.S. waters. Sin was convicted by a U.S. jury of being intoxicated while in command of the 590- foot, 20,763-tonne freighter, while transiting the Strait of Juan de Fuca.

Evidence at trial revealed that Sin's blood alcohol level was more than two-and-a-half times the legal limit at the time of the offence, which occurred at approximately 4:00am, on April 14, 2010. At that time, a ten-member U.S. Coast guard inspection crew repeatedly attempted to board the STX Daisy, in three foot swells in the Strait of Juan de Fuca, because the vessel had come from ports-of-call where there were security concerns.

After ignoring a request to put his crew on the weather deck rail, to be counted by the Coast Guard prior to boarding, the defendant and his crew failed to provide the Coast Guard with a sufficiently long Jacob's ladder to board the vessel. Instead, the crew lowered a long metal ladder meant to be used while the ship was in port.

Upon boarding the vessel, the Coast Guard found the entire crew to be intoxicated, and using faxed copies of a chart that were taped together, in order to navigate the waters of Puget Sound. The Coast Guard also found a large number of empty liquor bottles and beer cans on board. As a result, the boarding team obtained an order from the Coast Guard captain to relieve Captain Sin of his command of the vessel, and to anchor the vessel in Puget Sound until another licenced captain and acceptable charts could be obtained.

In seeking a sentence of three months imprisonment and a US$100,000 fine, the District Attorney noted that the intended route of the STX Daisy, which was carrying a large amount of fuel oil, crossed "at least six Washington State Ferry routes, the Tacoma Narrows Bridge, and many areas of high commercial shipping."

The District Attorney also cited a number of English criminal cases involving intoxicated seafarers. In one case, the captain of a Scottish tug boat was sentenced to four months in prison for operating his vessel while intoxicated, of the coast of Shetland, U.K. In another case, the captain of a Cypriot merchant vessel was sentenced to two months imprisonment for operating his vessel while intoxicated near Dagenham, U.K. In yet another case, the captain of a Swiss merchant vessel was sentenced to seven months in prison for operating his vessel while intoxicated, near New Holland, U.K.

These cases, and that of Captain Sin, illustrate the current emphasis on punishment and deterrence in the prosecution of seafarers, both in the United States and elsewhere. While this approach may be appropriate in instances where a crew member such as Captain Sin is clearly engaged in criminal conduct, it is a question as to whether it should be embraced in all cases. Issues such as whether and to what extent crew members should be held responsible for maritime accidents beyond their control, or held in a foreign country for months, or even years, as "material witnesses" even when they have not been charged, and the danger of crew members being held for a colourable purpose, such as to secure compensation from their employer or its insurers in relation to an accident, are all factors that must be considered.

To this end, the United Nations International Maritime Organization, in conjunction with the International Labour Organization, has drafted a set of guidelines intended bring some uniformity to the manner in which coastal states investigate maritime accidents, and the procedural protections afforded to seafarers during such investigations. "The Guidelines on Fair Treatment of Seafarers in the Event of A Maritime Accident" came into force on July 1, 2006, but, to date, have not been adopted in Canada.

With the number of tankers transiting the West Coast annually expected to increase due to the planned Enbridge pipeline from Edmonton to Kitimat, and the planned expansion of the Kinder Morgan Trans Mountain pipeline between Alberta and B.C., Canada may find itself confronting these issues more frequently than it has in the past. It remains to be seen what approach to the investigation and prosecution of seafarers Canada will eventually adopt.