And they are right. The Korean Supreme Court decision that the charge against the Hebei Two of willful destruction of property was “unfounded” but the final judgment now rests with the Korean Appellate Court is a classic case of legal face saving.
In other words, making a ruling while not making a decision, or saying yes while saying no. Perhaps it is best put by one industry insider, who has closely monitored the case, who told Lloyd’s List “it seems the Supreme Court has passed the buck – backwards.”
Despite the ruling making a further jail sentence for the Master and C/O almost impossible, the decision means the Hebei Two have to reface the Appeals Court, with new judges, while remaining in Korea until the hearing, which could take up to three months.
The mangers of the Hebei Spirit and employers of the Hebei Two, V.Ships is not impressed. In a statement released shortly after the decision, Bob Bishop, CEO of V.Ships said “the decision was a great disappointment to all those in the shipping industry who have been calling for the immediate release of the Hebei officers for months.”
V.Ships said it will be seeking further clarity on the ruling and at the same time, working hard to get to the Hebei Two back to India and their families while they wait for the date of the Appeals Court hearing to be set.
This could mean a further appeal against the original bail terms, so they can be adjusted to allow the Hebei Two to finally return home.
“Our main concern is the repatriation of the Indian Master and the C/O to their families,” Bob Bishop stated.
“We will not just stand by and let this ongoing face saving exercise in Korea destroy the lives and careers of two highly professional seafarers.”
He added that he knows every thinking person in the global shipping industry supports this stance.
What remains unclear in this drawn out legal saga, which by now has truly become a “face saving exercise” for Korean jurisprudence, is will the original oil pollution charges against the Hebei Two be upheld and why should these be a criminal offence, as there was no intent and certainly no premeditation?
It was glaringly obvious by its omission from the Supreme Court ruling that the Hebei Two might still face fines and a criminal record for the original pollution charges.
How any mariner can receive a criminal conviction for pollution offences when they have safely anchored their vessel and are hit by an out of control crane barge is beyond any legal reasoning.
Except, it would seem, in Korea.
Friday 24 April 2009
Thursday 23 April 2009
Korea’s Supreme Court hands down Hebei Spirit judgement
In a landmark decision in the highest Court of the land, the charge of “willful destruction of property”, against the Master and C/O of the Hebei Spirit was considered by the Court, to be “unfounded” and sent back to the Appellate Court for a final judgement.
It is thought that based on this decision, a jail sentence should be out of the question.
However, it will mean the Master and C/O of the Hebei Spirit (currently on bail) may not have their travel ban lifted until after the Appellate Court has handed down their decision, which could take up to a couple of months –as it will be conducted with new judges for a start.
One question that does arise is : what sort of law would make it possible for a third party to hand down a jail sentence for you destructing your own property (the Hebei Spirit), without the owners having a say??
Over the next couple of days, the written judgement will be further dissected and will bring you the legal opinon – as well as the emotional ones.
For all parties, the main concern is of course the repatriation of the Indian Master and C/O to their families. They have now been held in Seoul 17 months and now, even with the worst charges being called “unfounded” by the highest court in the (Korean) land – the Korean Courts still will not let them go home.
Still to be seen is whether there will be any criminal conviction of either Master of C/O, as even a conviction with a fine, will make life difficult for further duties on-board, as many western countries will not issue visas to anyone with a criminal conviction.
Have Korea destroyed the career of two fine, professional officers – in their prime?
Have your say and let us have your opinion ..
It is thought that based on this decision, a jail sentence should be out of the question.
However, it will mean the Master and C/O of the Hebei Spirit (currently on bail) may not have their travel ban lifted until after the Appellate Court has handed down their decision, which could take up to a couple of months –as it will be conducted with new judges for a start.
One question that does arise is : what sort of law would make it possible for a third party to hand down a jail sentence for you destructing your own property (the Hebei Spirit), without the owners having a say??
Over the next couple of days, the written judgement will be further dissected and will bring you the legal opinon – as well as the emotional ones.
For all parties, the main concern is of course the repatriation of the Indian Master and C/O to their families. They have now been held in Seoul 17 months and now, even with the worst charges being called “unfounded” by the highest court in the (Korean) land – the Korean Courts still will not let them go home.
Still to be seen is whether there will be any criminal conviction of either Master of C/O, as even a conviction with a fine, will make life difficult for further duties on-board, as many western countries will not issue visas to anyone with a criminal conviction.
Have Korea destroyed the career of two fine, professional officers – in their prime?
Have your say and let us have your opinion ..
Tuesday 21 April 2009
Global shipping industry primed for decision on Hebei Spirit Two, due to be handed down by Korean Supreme Court on Thursday, April 23rd at 2.30pm
Owners and managers of the world’s Merchant Fleet are gearing up for the possibility of serious ‘industrial’ action – should the Korean Courts fail to find the Hebei Spirit Two innocent of all charges.
Never before have the global maritime associations, as well as individual industry leaders, been so united in expressing their opinion, forcefully and as one voice. From the ITF, to committees of the IMO to 118 individual shipping company leaders (signing a letter of protest submitted to the Korean Consulate in London for forwarding to the Korean President), the industry is united in their conviction of innocence of both Master and C/O of the Hebei Spirit.
The Indian shipping industry stands united behind the two seafarers and have produced an excellent report outlining the incident and why the two seafarers are innocent.
The Indian Government has also given their full support to the shipping industry and we believe there are moves afoot, on a Government to Government basis, from both the Indian and Chinese Governments to make official representation on behalf of the two seafarers.
Other organisations that have openly protested and been highly critical of the ‘criminalisation’ of the Hebei Two, while commending the Master and C/O for their prompt and correct action after having been hit repeatedly by the Samsung Crane Barge, have been the Nautical Institute, Hong Kong Ship Owners Association, ITF, ICS, Intertanko, International Group of P+I Clubs and various committees of the IMO.
The Korean Supreme Court’s decision on Thursday is hard to predict, but some possible outcomes could be:
1. The Appeal Court decision and subsequent jail sentence is rejected by the Supreme Court – the Hebei Two are found innocent of all charges and the seafarers go home. An optimistic scenario, as it is unusual for the Supreme Court to overturn a lower court's decision, yet the only really acceptable result for the shipping industry as a whole.
2. The Supreme Court finds that the Appeal Court’s decision to impose a prison sentence was illegal and overturns the prison sentence. In this case, the question would be – does that automatically mean the charge of negligence will also be overturned?
If not, the whole issue of negligence may have to be re-considered by the Appeal Court – in which case there may be more hearings, which may require the two seafarers to remain in Korea.
3. A totally disastrous result, for Korea’s shipping industry as well as the Hebei Two – would be if the two seafarers are found guilty as a result of the Supreme Court dismissing their appeal in its entirety and upholding the decision of the Appeals Court as a whole. The criminal case would be over and the Hebei Two would find themselves in jail by the end the day.
Totally unacceptable
Most interested parties feel that the Supreme Court will try and appease all parties – no jail sentence but a conviction on some aspects of the criminal charges.
Any conviction would, however, end the careers of two outstanding officers in their prime (the Master was 39 at the time of the incident and the C/O four years younger) – a complete travesty of justice.
Have your say and support the Hebei Two by writing to the Korean Government today – demand justice, not only for the Hebei Two, but for the thousands of seafarers still to sail in Korean waters – if they dare - to trust their luck and the Korean legal system in case of any small incident!
Find your nearest Korean Consulate
Never before have the global maritime associations, as well as individual industry leaders, been so united in expressing their opinion, forcefully and as one voice. From the ITF, to committees of the IMO to 118 individual shipping company leaders (signing a letter of protest submitted to the Korean Consulate in London for forwarding to the Korean President), the industry is united in their conviction of innocence of both Master and C/O of the Hebei Spirit.
The Indian shipping industry stands united behind the two seafarers and have produced an excellent report outlining the incident and why the two seafarers are innocent.
The Indian Government has also given their full support to the shipping industry and we believe there are moves afoot, on a Government to Government basis, from both the Indian and Chinese Governments to make official representation on behalf of the two seafarers.
Other organisations that have openly protested and been highly critical of the ‘criminalisation’ of the Hebei Two, while commending the Master and C/O for their prompt and correct action after having been hit repeatedly by the Samsung Crane Barge, have been the Nautical Institute, Hong Kong Ship Owners Association, ITF, ICS, Intertanko, International Group of P+I Clubs and various committees of the IMO.
The Korean Supreme Court’s decision on Thursday is hard to predict, but some possible outcomes could be:
1. The Appeal Court decision and subsequent jail sentence is rejected by the Supreme Court – the Hebei Two are found innocent of all charges and the seafarers go home. An optimistic scenario, as it is unusual for the Supreme Court to overturn a lower court's decision, yet the only really acceptable result for the shipping industry as a whole.
2. The Supreme Court finds that the Appeal Court’s decision to impose a prison sentence was illegal and overturns the prison sentence. In this case, the question would be – does that automatically mean the charge of negligence will also be overturned?
If not, the whole issue of negligence may have to be re-considered by the Appeal Court – in which case there may be more hearings, which may require the two seafarers to remain in Korea.
3. A totally disastrous result, for Korea’s shipping industry as well as the Hebei Two – would be if the two seafarers are found guilty as a result of the Supreme Court dismissing their appeal in its entirety and upholding the decision of the Appeals Court as a whole. The criminal case would be over and the Hebei Two would find themselves in jail by the end the day.
Totally unacceptable
Most interested parties feel that the Supreme Court will try and appease all parties – no jail sentence but a conviction on some aspects of the criminal charges.
Any conviction would, however, end the careers of two outstanding officers in their prime (the Master was 39 at the time of the incident and the C/O four years younger) – a complete travesty of justice.
Have your say and support the Hebei Two by writing to the Korean Government today – demand justice, not only for the Hebei Two, but for the thousands of seafarers still to sail in Korean waters – if they dare - to trust their luck and the Korean legal system in case of any small incident!
Find your nearest Korean Consulate
Thursday 2 April 2009
Hebei Spirit accident caused by Samsung tug’s decision to sail in extreme weather, Hong Kong Marine Department’s finds.
In a publicly released statement on the Hong Kong flagged Hebei Spirit incident in South Korea in December 2007, the Hong Kong Marine Department has found the tug boat operator’s decision to sail in hazardous weather caused the accident.
The three page Shipping Information Note, titled Safe Towage at Sea and recently released on the Hong Kong Marine Department’s website, has found that the probable cause of the Hebei Spirit accident was the decision to commence a towing voyage of a large crane barge in hazardous weather.
The Hong Kong Marine Department’s own investigation into the incident has “revealed that the decision for the tugs and the crane barge to commence the towing voyage when adverse weather had been forecast is the main probable cause of the accident.”
The shipping note also stated three additional, contributory factors, to the accident. These were that “the towing voyage was not carried out in accordance with the conditions stipulated in the towing survey certificate; towing wire was not properly maintained; the tugs did not alert the local Vessel Traffic Service and the nearby vessels when they lost control of the navigation.”
Lessons Learnt
Of interest to all ship owners, managers, operators, masters and offices, who received the shipping note, is the lessons learnt. The Hong Kong Marine Department highlights the fact that the Master in charge of the tugs underestimated the severity of the rough weather, as well as its likely impact on the towing convoy.
“He failed to take notice of the rough weather that might further deteriorate during the voyage,” the report states, adding that “the Master should have considered postponing the towing voyage until more favourable weather was expected.”
Because this did not happen, the report found that “the towing capability of the tugs could not overcome the weather conditions during the voyage.” In this instance, the tugs were towing a crane barge carrying a floating crane 140 meters high. The report states that “this large deck structure could induce large wind resistance when under strong wind conditions.”
Other observations arising from the Hong Kong Marine Department’s investigation are that after losing control of the navigation the Master of the tugs failed to immediately notify the local Vessel Traffic Centre about the “seriousness of the situation”.
Also, the wire which broke was found to be a used crane runner wire, not a dedicated towing wire. This crane runner wire had been in storage “for some time” and just before it snapped, the tug had increased its speed. The report states that “an increase of speed in rough sea conditions might exert additional strain at the towing wire…This would become critical if the towing wire was already pulled at its limit.”
Hebei Spirit’s Master and crew commended
The Hebei Spirit Master and crew’s attempt at reducing the pollution immediately after the accident was noted. Once the 140 metre high floating crane had finished bouncing along the hull of the Hebei Spirit (which took around 25 minutes) the crew commenced transferring oil from the damaged tanks. As well, collision mats were rigged over the damaged tanks and ballast was pumped to the starboard ballast tanks so the vessel would list to starboard, lowering the oil level in the damaged tanks.
“These remedial actions appeared to have reduced a certain amount of oil spillage and have fully complied with the provisions as laid down in the shipboard oil pollution emergency plan,” the shipping note states.
More to come…stay tuned
Despite the fact the Hong Kong Marine Department has concluded its official accident investigation into the Hebei Spirit incident, it will not publish its full accident report until the legal case of the Hebei Two has finished in South Korea.
Perhaps this decision is yet another indication of just how politically sensitive this case has become?
The three page Shipping Information Note, titled Safe Towage at Sea and recently released on the Hong Kong Marine Department’s website, has found that the probable cause of the Hebei Spirit accident was the decision to commence a towing voyage of a large crane barge in hazardous weather.
The Hong Kong Marine Department’s own investigation into the incident has “revealed that the decision for the tugs and the crane barge to commence the towing voyage when adverse weather had been forecast is the main probable cause of the accident.”
The shipping note also stated three additional, contributory factors, to the accident. These were that “the towing voyage was not carried out in accordance with the conditions stipulated in the towing survey certificate; towing wire was not properly maintained; the tugs did not alert the local Vessel Traffic Service and the nearby vessels when they lost control of the navigation.”
Lessons Learnt
Of interest to all ship owners, managers, operators, masters and offices, who received the shipping note, is the lessons learnt. The Hong Kong Marine Department highlights the fact that the Master in charge of the tugs underestimated the severity of the rough weather, as well as its likely impact on the towing convoy.
“He failed to take notice of the rough weather that might further deteriorate during the voyage,” the report states, adding that “the Master should have considered postponing the towing voyage until more favourable weather was expected.”
Because this did not happen, the report found that “the towing capability of the tugs could not overcome the weather conditions during the voyage.” In this instance, the tugs were towing a crane barge carrying a floating crane 140 meters high. The report states that “this large deck structure could induce large wind resistance when under strong wind conditions.”
Other observations arising from the Hong Kong Marine Department’s investigation are that after losing control of the navigation the Master of the tugs failed to immediately notify the local Vessel Traffic Centre about the “seriousness of the situation”.
Also, the wire which broke was found to be a used crane runner wire, not a dedicated towing wire. This crane runner wire had been in storage “for some time” and just before it snapped, the tug had increased its speed. The report states that “an increase of speed in rough sea conditions might exert additional strain at the towing wire…This would become critical if the towing wire was already pulled at its limit.”
Hebei Spirit’s Master and crew commended
The Hebei Spirit Master and crew’s attempt at reducing the pollution immediately after the accident was noted. Once the 140 metre high floating crane had finished bouncing along the hull of the Hebei Spirit (which took around 25 minutes) the crew commenced transferring oil from the damaged tanks. As well, collision mats were rigged over the damaged tanks and ballast was pumped to the starboard ballast tanks so the vessel would list to starboard, lowering the oil level in the damaged tanks.
“These remedial actions appeared to have reduced a certain amount of oil spillage and have fully complied with the provisions as laid down in the shipboard oil pollution emergency plan,” the shipping note states.
More to come…stay tuned
Despite the fact the Hong Kong Marine Department has concluded its official accident investigation into the Hebei Spirit incident, it will not publish its full accident report until the legal case of the Hebei Two has finished in South Korea.
Perhaps this decision is yet another indication of just how politically sensitive this case has become?
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