THE CRIMINALIZATION OF THE SEAFARER?

(Or is it, "We're from the government and we're here to help you"?)

by William R. Carr

What brings this subject up was the following quote which appeared in the November 18, 2004 issue of THE MASTERS, MATES AND PILOTS' -- WHEELHOUSE WEEKLY, the official electronic newsletter of the Masters, Mates & Pilots maritime union.

- Maritime Lawyer says US seeking to Prosecute Seafarers

Michael Chalos, a partner at the US maritime law firm of Fowler Rodriguez & Chalos believes that US authorities are actively looking to prosecute seafarers and shipping companies. "It's a dastardly thing that's happening in the US, but it's a reality," he said recently at a Nautical Institute seminar, The Criminalization of the Seafarer.

Chalos highlighted efforts he says are being made by a USCG task force that effectively has police powers to arrest crew and question them...

Just why U.S. authorities would begin vigorously targeting their own mariners or shipping companies for prosecution or harassment is anybody's guess. Perhaps its because it's a lot easier to pick on those over whom our government has unquestioned authority, than foreign mariners and shipping companies that are pretty much beyond their jurisdiction unless there is suspected terrorists aboard. This might be called a case of illegal "professional profiling," though nobody has thought to make it illegal yet. Seamen, of course, have always been considered a motley and marginal group, separate from mainline society. They are reputed to be a breed unto themselves both unruly and hard-drinking largely made up of mavericks, renegades, and misfits.

Now, with the terrorist security threat out there, maybe the authorities are, for some odd reason, determined to clean up the ranks of maritime labor and make sailors more like office secretaries or elementary school janitors. In any case, a new culture is being demanded of seafarers and all transportation workers an increasingly strict "culture of compliance" compliance with a whole new world of rules and regulations emanating from an array of national and international authorities.

Whatever the case, the foregoing brings to mind a recent personal experience aboard an American flag containership returning to Los Angeles from the Far East. The new Homeland Security Ship and Port Security rules were just coming into effect, and we expected a Coast Guard Ship Security drill upon arrival.

As second mate, I was on the bow as we approached the pilot station, so I was monitoring my radio on as the pilot boat came alongside. Soon the mate at the pilot ladder reported, "Pilot boat alongside. Pilot on the ladder," and "Pilot aboard." That's usually the end of that particular routine. When the pilot is aboard, the mate escorts him to the bridge, and the vessel proceeds into port. But then I heard the following exchange over the radio.

The mate continued, "Looks like some Sea Marshals coming aboard too."

"How many?" the captain queried from the bridge.

"One, two, three... Would you believe, SEVEN Sea Marshals!"

Seven heavily armed, black-clad, U.S. Coast Guard Sea Marshals came aboard. Boy, I thought, looks like this is the beginning of the drill and it's going to be more than we expected. I wondered if they were going to start pulling off some sort of security drills while we were trying to make our way to the dock.

But nothing happened, and we proceeded through the breakwater and toward the dock in the normal manner. A couple of the Sea Marshals did make a brief appearance on the forecastle. Then, apparently satisfied there were no terrorists hiding among us there, departed to return aft. I imagined they were going through the motions of "securing the vessel."

When we arrived at the dock, there was more than the usual number of authorities waiting to board the vessel. It seemed a small army of Coast Guard, Customs, and Immigration officers, seemingly bristling with authority and weaponry. I was beginning to wonder how the federal government could devote so many of its various security resources to just one drill on one friendly domestic ship when there were supposed to be a lot of real threats out there for them to keep an eye on. It looked like it was going to be some drill!

After we were finally securely moored, and the gangway lowered to the dock, half a dozen or so officers boarded in addition to the seven already aboard. As many remained on the dock, apparently guarding their several federal vehicles. In the mean time, a small group of joining crew members and a large group of longshoremen and other workers remained waiting on the dock.

Clearing the vessel was a high security affair, and it went very slowly. The crew was made to line up under the watchful eyes of several armed Sea Marshals and Customs agents. The passageway from the crew's mess to the crew lounge, where the Customs and Immigration officials were situated, was crowded with crew and security personnel. Then each crew member was thoroughly frisked before being allowed to proceed to clear with Immigration and Customs. When my turn came to be frisked, my radio was taken away from me along with my jack-knife. The treatment couldn't have been much different than what prisoners or air travelers are subjected to when being booked or ushered into jail, or allowed aboard an airliner. Some drill, I thought.

Each crew member was asked several questions by the Immigration officer. The Filipinos, Latinos, Arabs, and some others in the crew were beginning to look and act a little worried, especially when it became known that Customs officials were at that time conducting searches of the crews' rooms.

When my turn came, I was asked where I was born and whether I was an American citizen. When I said I was an American citizen, the officer asked, "How did you become a citizen?" "By birth!" I answered incredulously. The last question was, "What are the last four digits of your Social Security number?"

That question almost threw me, but fortunately I was able to respond correctly. I passed inspection and was able to recover my radio and jack-knife. Then I went out to relieve the third mate at the gangway so he could go through the process.

Prior to our arrival, and all during the previous voyage, the whole crew had been instructed and drilled in the new Ship Security procedures. One of the most important things stressed was gangway security in port. The able seaman on gangway watch was required to stop and check the identification papers of everybody that boarded the vessel, have each person sign a visitors' log, and issue identifying wrist bands or badges to be pinned on the boarding individual. If the person was carrying a bag, brief case, or package, it must be searched. Everybody with business inside the accommodation of the vessel was required to have an escort to wherever he claimed to have business, i.e., the engine room, chief mate's, or captain's office.

The only glaring exceptions to this stringent security procedure were longshoremen and government officials. The longshoremen, of course, were exempt because checking them might significantly delay or otherwise impact cargo operations. Uniformed government officials, whether armed to the teeth or not, and on an official mission, simply were too obvious and too important to allow themselves to be checked.

We had learned something about this during our recent port calls in the Peoples' Republic of China. It seemed that most boarding officials, including agents, claimed they didn't have an ID card or identity papers. Well, okay, let them aboard anyway, but escort them to the captain's office or bridge as the case may be. On one occasion the AB on gangway watch, an ex-marine named Bud, had stopped the pilot coming aboard to pilot the ship out of the port of Shanghai. The pilot, impeccably dressed in his impressive uniform, indignantly refused to tender an ID card or to have his bag inspected. But Bud, a man not to be trifled with, in the twinkle of an eye, snatched the pilot's bag and inspected it anyway. The pilot was outraged, of course, and a fist fight almost ensued. We were lucky to get out of port on schedule that day. Immediately after the incident, the captain, with all due diplomacy, apologized and smoothed the pilot's ruffled feathers as best he could, and we departed on schedule.

Here in Los Angeles, on the subject occasion of our arrival and port formalities, we were particularly on our toes. As yet, we didn't know whether the big show of force on the part of the overlarge boarding party of officialdom had become a "normal" procedure in light of the new Port and Ship Security regulations, or was part of a drill in which the ship was being assessed and graded on its security procedures. The captain had detailed extra crew members to assist the gangway watch screening boarding personnel and to perform "escort service". I, as deck officer of the watch, was assigned to stand at the gangway until the vessel was cleared.

Soon the longshoremen and others waiting to board the ship were getting restless due to the length of time it was taking to clear the ship. The longshoremen were particularly impatient, since they were accustomed to boarding even before the vessel was officially cleared. I stood at the top of the gangway, holding them at bay, awaiting word from the captain that the vessel was cleared.

All at once, apparently due to something one of the Customs officers on the dock had said, there was a general surge of people toward the foot of the gangway and a string of them started up. "Hold on," I said, "The vessel hasn't been cleared yet! You'll have to go back down." The string of people on the gangway reluctantly stopped and started back down to the dock.

Then an important looking Customs officer on the dock yelled up to me that the vessel was cleared. "I haven't got the word that the vessel is cleared yet," I said. To which he replied that he had just given me the word.

The Customs official approached the side of the vessel directly below me and said, "I'm the officer in charge of this detail, and I said the vessel is cleared!"

Not knowing whether the officer was really serious, or merely baiting me as a part of a "test" that we would be graded on, I held my ground. "I'm sorry, but I'm the officer in charge here on the ship," I said, "and I take MY orders from the captain!"

The officer shrugged his shoulders and said, "Well, okay...," and returned to the covey of other officers with whom he had been engaged in conversation, and nobody boarded. In another minute, however, I got the official word from the captain, and gave the okay for the longshoremen, other workers, and crew to come aboard, and they streamed aboard.

Drill or not, it was obvious that if there were any terrorists intent on boarding a ship in an American port, they would be either with the gang of longshoremen, or in the guise of black uniformed officialdom sporting U.S.C.G., INS, or Customs patches, none of whom were required to show ID or submit to careful security searches.

In this particular case, the large show of force and careful security during port clearance procedures, were not part of our expected security drill. Another taskforce of Coast Guard officers boarded about an hour later to perform those duties.

Since it had not been a drill, one might imagine that the U.S. authorities must have had reason to suspect that our vessel was harboring one or more terrorist suspects, or that they had advanced knowledge of a drug shipment on board. But that wasn't the case either. Yet, when the Sea Marshals left the vessel they were escorting two crew members ashore in hand cuffs.

The captured crewmen weren't terrorist suspects, but were "wanted men" nonetheless. One, a foreign national, apparently hadn't been making his alimony payments in a timely manner. The other was apparently wanted for a long neglected and unpaid parking violation. One of the two had also been found to have too many prescription (but otherwise legal), drugs in his room. They might have been antibiotics or Viagra, purchased in the Far East where "freedom" is supposedly in shorter supply than in America. In any case, both were wanted and captured by federal law enforcement on relatively petty charges.

The federal task force organized and assigned to bring those two men to justice numbered at least a score or more. The actual cost of the operation and the arrests to the American taxpayers must have amounted to somewhere in the tens of thousands of dollars. Undoubtedly, due to the non-serious nature of the "crimes," both culprits were released from custody soon after they were booked and jailed, and had to go home to their families jobless and humiliated. Perhaps their seamen's papers were pulled, making them and their families potential future wards of the welfare system.

No doubt, the ship owner could calculate its losses for an hour's delay in cargo operations in scores of thousands of dollars. Clearly, the penalty was paid not only by the two wanted men, but the shipping company and its stockholders as well at American taxpayers.

This operation, I believe, was conducted in the manner it was strictly due to the mandates of the new Office of Homeland Security and the War on Terror, under the guise of the new Port and Ship Security codes. But there were no suspected terrorists or terrorist threats involved only a couple of hapless sailors who, due to the very nature of their employment, often find it difficult to do things in a timely manner. Yet this is apparently the way things are going to be done from now on in the maritime industry. If a mariner has a ten year-old DUI, unpaid alimony, or parking ticket, it can come back, not only to haunt him, but as a federal issue that can totally destroy his career.

Do we mariners feel any safer from terrorism due to this new federal authoritarianism? Not by any stretch of the imagination! If a seaman can be taken off of his ship in irons for an old DUI or a forgotten parking ticket, the maritime profession is bound to become less and less attractive to active or potential mariners. I, for one, am looking with great eagerness toward an early retirement the sooner the better. Fortunately, I don't believe I have any old legal cases pending against me, and have never had a DUI arrest. But if I did have, I believe I'd cut my potential losses even sooner, and never step aboard another ship.

Should Americans in general feel safer because of this new proactive federal policy with regard to maritime personnel? Personally, though I have my personal biases and grievances, I don't think so. A lot of resources were devoted to capturing two seamen who were as far from being terrorists as most of the rest of us are. This could only have happened if those resources were diverted from real maritime law enforcement and security concerns as they most certainly must have been in this case. It may look like the authorities are really serious about doing something, but what they are doing, at least in such cases, have very little to do with a "real" war on terror, and more to do with spinning their wheels for the sake of appearances.

The incident related here, of course, was only a single incident on one ship. But there is no reason to believe that similar operations are not being undertaken with increasing regularity on other ships and other areas of federal concern. While the American people imagine that they are paying a high, but perhaps justifiable price, for homeland security and protection from terrorists, the price they pay will be much higher, and federal Homeland Security much less properly targeted and effective, that they might imagine..

The federal police power is apparently being used to institute a strict "culture of compliance" within the maritime community, and that culture of compliance has little, if anything, to do with Homeland Security. Ultimately, of course, this "culture of compliance" will increasingly touch all Americans not only in their pocketbooks, but their personal and professional lives.

Perhaps this was the basis from which attorney, Michael Chalos, spoke when he told his audience at the Nautical Institute, "It's a dastardly thing that's happening in the US, but it's a reality... The Criminalization of the Seafarer."

The security situation in America's ports, and aboard the ships calling at them, is a highly recognized area of concern with regard to the risk of terrorist attack. The task of securing those ports and ships against potential terrorist penetration and attack is an impossibly daunting one and one that is probably impossible to accomplish given the way our nation now does business, and our growing dependence on foreign trade. In any case, it is a very legitimate area of concern and operation for the Office of Homeland Security. However, targeting seafarers in the above manner would seem even less than productive.

American merchant mariners are on the same team as the Coast Guard and the maritime arm of the Office of Homeland Security when it comes to safeguarding their ships from terrorist threats. It would seem rather counterproductive for the federal authorities to target them for unrelated matters, and thus appear to be hostile to all seafarers. That's no way to encourage the cooperation needed to tackle the actual problems of ship and port security.

The security problem we face in American ports is not American seamen or American ships. The real problem is America's huge and growing dependence on foreign trade itself, and the fact that foreign ships and seamen that deliver 95% of the cargoes that our nation has become dependent upon and the literal millions of uninspected containers that are discharged and moved across the country from those ships. It makes little sense for the federal agencies empowered by the Office Homeland Security to spend their Homeland Security efforts in arresting American seamen for petty or forgotten offenses not in the least related to terrorism or homeland security.

The security problem is so great that in spite of all the new laws and regulations, the beefed up security forces, and exponentially expanding costs, no real or effective remedy is in sight. Millions of containers cross out or docks and radiate out into the nation annually, and it's literally impossible to know what is in all of them. The cost of putting hundreds of huge container ex-ray machines in place at every terminal would be astronomical, and the effectiveness probably negligible. What would the ex-ray screeners be looking for, a bomb that looks like a bomb? Or something that looks like almost anything else but is a bomb?

The idea that a significant percentage of containers could be carefully inspected is a pipe dream. I remember seeing one shipping container inspected on one occasion. Three Customs vehicles and at least half a dozen Customs officers were engaged in the task for three hours. That was just one box discharged from a ship that had delivered almost a thousand others. Could such searches ever be cost-effective? The answer is fairly obvious.

The purpose of our burgeoning foreign trade is to bring cheap imports to American businesses and consumers. But those cheap imports are beginning to cost a lot more than we bargained for and the problems of security in our ports and aboard ships have not yet begun to be effectively addressed. The costs of our "cheap" imports may not be reflected at Wal-Mart store checkout counters yet, but they are reflected in the astronomical projected costs of Homeland Security. The question is, are cheap imports and our "free trade" policies really worth what it is actually costing us now? Will it be worth what it will cost in an era of increasing terrorist paranoid?

The average person would think "free trade" and our exponentially increasing sea borne commerce, would be a great boon to American mariners and the American merchant fleet. But nothing could be further from the truth. Most of the American commercial merchant marine has already been "free traded" out of existence, and most of what is left of the "American" merchant marine is foreign owned American crew and flag only, while the profits go elsewhere.

With 95% of our foreign trade carried in foreign ships, we have developed one heck of a security risk situation one impossible to effectively address. With 95% of the freight revenue generated by our foreign trade going to the foreign competition, we also have one heck of a financial loss to the economy. But when you also realize that about 90% of the "American" taxpayer subsidized Maritime Security Fleet is also under foreign ownership, with their profits going to the competition... Wow! What can you say? We're getting cheated (big time!) on every single cheap import that crosses our docks! And our strategic vulnerabilities (not only with regard to terrorists but China and other potential future enemies), are much worse than anybody in any official policy making position has ever seen fit to acknowledge.

It would be incredible to think that our trusty leaders have not thought of all of this. But no more incredible than the policies and processes by which they have already managed to get us to where we are policies and processes that they always promise will continue!!! Free trade policy, cheap imports, and increased dependence on foreign trade, are always pronounced to be "Great for the American economy. Great for the American Consumer." And (incredibly), "Great, in the long term, for American workers!"

Great for American workers? Great for American consumers? Great for American mariners? Great for America? No wonder nobody believes anything the government tells them any more! The only thing holding back outright revolution and chaos is the continuing fact that as a society, we remain both overfed and over-entertained. But hard times are bound to be the long-term results of asinine national economic and strategic policy planning both apparently aimed at nothing more visionary than short-term corporate gains for Wall Street.

The policies our government has been pursuing for decades are nothing short of criminal. Yet the Office of Homeland Security is apparently targeting American mariners in their supposed attempt to protect the American people from terrorist attack!

Unfortunately, in this day and age of professionally created and broadcast propaganda, it is possible to fool almost all of the people almost all of the time certainly enough to keep almost all of the people content with their cake and circuses as a great nation is literally being dismantled all around them.

William R. Carr
10 December, 2004


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