DOSSIER

 

The ‘Dark Forces’ Surrounding The Captain’s Lawyers In Mauritius Wakashio Oil Spill Ship Case (I)

   Sunil Kumar Nandeshwar, captain of the MV Wakashio, seen outside the Supreme Court of Mauritius in ... [+]
 Maritime law is just like the ocean – full of turbulence and unexpected twists and turns. 
It has certainly been this way in the case of the large Japanese bulk carrier, the Wakashio, the ship at the center of the ongoing major oil spill response in Mauritius.  A series of revelations in the local media by the former lawyer to the captain over the past few weeks, has started to raise eyebrows in Mauritius and around the world.
For context, captains on large ocean-bound ships hold huge responsibility, but also bear intolerable risks.  Most of the biggest risks actually lay far from the ocean, and in the law courts on land.
In some of the biggest maritime cases in history, it has often been the captain of large vessels that have been positioned as scapegoats by the very shipping companies that employ them and earn billions of dollars annually for their loyal service.


Blaming the crew

‘Blaming the crew’ has been the go-to response for many ship owners, operators, maritime insurance firms, and ‘flags of convenience’ regulators, rather than addressing some of the bigger, systematic safety issues in the shipping world, that have gone unchecked for so long, such as the risks of single-hulled  vessels. 

              

    Jack Devanney's 2006 classic book, The Tankship Tromedy, is essential reading to understand the ... [+]

 

The phenomenon of ‘blaming the crew’ has been well documented in the iconic 2006 maritime accident book ‘The Tankship Tromedy’ authored by MIT Ocean Engineering Professor and famous oil tanker owner, Jack Devanney.  Page 6 of his account goes into the classic response of many shipowners to blame the crew.
It describes three reasons for this
1) crew errors are easier to recognize compared to poor ship design, poor maintenance, and poor enforcement of rules,
2) ship investigators are incentivized to only focus on the surface, operational issues rather than the systemic issues underlying them,
3) blaming the crew is the easy way out to avoid identifying culpability of the ship owners, constructors or those responsible for ship maintenance.
Some of the most high-profile maritime disaster cases entail the wrongful accusation of the captain and crew.  Here are four prominent examples.


Exxon Valdez (Alaska, USA, 1989)

 

 

                  

         Captain of the Exxon Valdez, Joseph Hazelwood, fought to clear his name from accusations. Image ... [+]
The Captain of the Exxon Valdez was accused of being drunk in the 1989 Alaska oil spill.  He wasn’t, and after a 12-month battle to clear his name, he still retains his captain’s license.  

According to the ITOPF, until the BP Deepwater Horizon incident in 2010, “The most expensive oil spill in history was the Exxon Valdez. Cleanup alone cost in the region of US $2.5 billion and total costs (including fines, penalties and claims settlements) have, at times been estimated at as much as US $7 billion.”


Cosco Busan (San Francisco, USA, 2007)

 

 

 In the Cosco Busan oil spill in San Francisco in 2007, the pilot (who steers the ship in and out of harbors and is different from the captain) was initially accused of being under the influence of drugs, after an anonymous tip off.  In fact, CVS the pharmacy was eventually sued by the Hong Kong owners for the wrongful issue of a cocktail prescription pharmaceuticals without sufficient warning, rather than the willful intent of the pilot to be under the influence of drugs.  


MV New Carissa (Oregon, USA, 1999)

  

In the case of the MV New Carissa off Oregon in 1999 (with many similar characteristics as the ongoing Wakashio incident in Mauritius), despite initial attempts to pin the blame of the grounding on the crew, there was no evidence found of criminal wrongdoing, and the crew was released without any charges. 

Negligence was found against other parties, however.


MV Heibei Spirit (Daesan Port, South Korea, 2007)

 

In 2007, Captain Jasprit Chawla of the Hebei Spirit was sentenced to jail in South Korea because a crane barge owned by Samsung broke loose and hit his ship which was at anchor.  The crane barge captain was exonerated.

There was global outrage by almost every maritime union, and the International Transport Workers Federation organized protests in several cities to call on the UN shipping agency, the International Maritime Organization, to stop criminalizing captains.  The IMO did not even issue a press release condemning the criminalizing of captains or crew and certainly did not take any action to prevent such workforce abuse from occurring again.

 

 

All of this is useful context for the surprising turn of events that have occurred surrounding the legal case against the captain of the giant Japanese iron ore bulk carrier that spilled oil in Mauritius last month. 

This has only now been revealed in a series of interviews by the former lawyer to the Captain of the Wakashio that has been prominently circulated through interviews in the local newspapers, on radio and television in Mauritius.

 

 

The ‘dark forces’ surrounding the Captain’s lawyers

 

    
The captain of the Wakashio, 58-year-old Sunil Kumar Nandeshwar, was arrested by police on August 18.
He was provisionally charged with “unlawful interference with the operation of a property of a ship likely to endanger its safe navigation” under articles 5(1) (b) (2) et (9) of the Mauritius Piracy and Maritime Violence Act.  This charge carried with it a 60-year jail sentence.

 

The family of the captain (mainly the captain’s wife, son and sister) as well as an association of ship captains, engaged one of the best and highest-profile legal teams in Mauritius.  The lawyer leading the case defending the captain was Yousuf Mohamed, a Senior Council. As the oldest lawyer still-practicing in Mauritius, he is a well-known figure in legal circles nationally and internationally.  He was a former Minister in the 1970s, an Ambassador to several countries and a Deputy Speaker in Parliament in the 1980s.

The wife of the captain, who is a judge in Indore, India, paid the 100,000 Mauritian Rupees (around $3500) to secure his services.

  

Yousuf Mohamed’s career spans 59 years since he was called to the bar in the UK before Mauritius even had independence.  He has one of the longest legal careers in Mauritius and has been involved in some of the island’s biggest cases, involving former Prime Ministers, Presidents, CEOs - cases that have defined Mauritius’s history.  His legal firm in Mauritius, MC Law Offices, are very well known.

Mauritius’ legal system has the UK’s Privy Council as the highest court of appeal, and has to take legal affairs seriously due to the importance of the country’s large international finance sector that depends on this legal integrity. 

 

To be Followed

 

 

 

 

 

 

 

 

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