Nautical Institute 2006, Houston, TX

Apr 11, 2006

Nautical Institute
U.S. Gulf Branch Command Seminar
Bridging the Maritime Gap
Houston, Texas

Shore leave: Visas and seafarers’ identity documents

by Douglas B. Stevenson, esq. [1]

 In 1790, the United States of America was facing a big crisis – a crises that threatened its very existence.  The United States was running out of money.  Its principle source of income was from import duties.  Import duties weren’t being collected because of the widespread smuggling problem.  To address this problem, the United States Congress, on August 4, 1790, at the urging of Secretary of the Treasury Alexander Hamilton, created the Revenue Marine to enforce the tariff laws.  This fleet of ten armed vessels, which preceded the United States Navy by eight years, was the predecessor of the United States Coast Guard.  (Between 1790 and 1798 the Revenue-Marine was the only armed maritime service for the United States.)

Revenue cutter captains had tremendous authority to board and seize vessels and their cargo. In his first letter of instruction, Alexander Hamilton exhorted cutter captains to:
 

“. . . always keep in mind that their countrymen are freemen, and, as such, are impatient of everything that bears the least mark of a domineering spirit.  They will, therefore, refrain, with the most guarded circumspection, from whatever has the semblance of haughtiness, rudeness, or insult.  . . .This reflection, and a regard to the good of the service, will prevent, at all times a spirit of irritation or resentment.  They will endeavor to overcome difficulties, if any are experienced, by a cool and temperate perseverance in their duty--by address and moderation, rather than by vehemence or violence."

It was good advice.  Hamilton knew that to get the cooperation of those people who were in the best position to help solve a problem, you should treat them as stake-holders - as team members.  You should treat them with dignity and respect.

Today, the United States and other countries are confronting the threat of terrorism.   Alexander Hamilton’s directives are as relevant today as they were in 1790. The same guidance is of particular relevance to governmental authorities that must rely upon the maritime industry to fulfill its anti-terrorism objectives.  Maritime security against terrorism cannot be accomplished by governmental authorities alone.  Security at sea and in port requires the combined efforts of all stake-holders: governmental agencies, port authorities, shipping companies, terminal operators and, especially, ship’s crews.

For more than four years, the maritime world has been preoccupied with security.  A vast array of security measures against the threat of terrorism has been mandated by governments and self-imposed by the industry.  On the first of July, 2004, a significant milestone was reached when the International Ship and Port Security Code (ISPS) became mandatory.

Already we have seen some of the effects of ISPS.  Ships and port facilities have completed threat assessments and have implemented security plans.  Security officers have been designated.  Crews have participated in security training and drills.  Access to sensitive areas of ships and ports has been restricted.  Gangways are guarded and visitors controlled.  Flag and port states have issued and inspected security documents, and they have tested crews’ security responsibilities.

Notwithstanding all of the ISPS’s paperwork requirements, the fundamental ISPS principle for assuring security is “domain awareness”.  In other words, know your environment, recognize things that are not normal and put your attention on those things that are out of the ordinary.   This concept could also be called “responsible, caring, neighbors”.   Good neighbors help each other by being aware of their neighborhood and vigilant to report unusual activities that pose a threat to their community.

The ISPS relies on ships crews to be good neighbors in protecting the maritime community from terrorism.  Their ability to observe unusual activity onboard their vessel and its surrounding areas is a key element in saving lives and preventing damage and destruction.  The ISPS recognizes seafarers’ essential security role by giving them many new responsibilities.  Seafarers’ security responsibilities will vary from ship to ship and from port to port depending upon the ship’s and port’s particular threat assessment.  Security measures will also depend upon the designated security level (from normal Security Level One to high Security Level Three) established by the ISPS.  At all levels of security, seafarers are required to monitor their ship and surrounding areas and to report dangerous and suspicious activities.

The ISPS recognizes seafarers’ unique role in combating terror.  The ISPS also codifies seafarers’ fundamental rights to shore leave.  Port states and terminal operators should recognize that security is enhanced when seafarers are perceived as responsible, caring neighbors rather than as suspects in their shared maritime community.  Seafarers’ vigilance in noticing and reporting suspicious activities will undoubtedly save lives, as well as enhance a spirit of cooperation between seafarers and port security personnel.

High level policy makers understand the need to treat ship’s crews as vital team-members and stake-holders in the war on terrorism, but the policies don’t always seem to make their way to the implementation level.  One good example is the issue of shore leave.

For as long as mariners have gone to sea on merchant ships, shore leave has been a cherished right – but it is not an absolute right.  Like most individual rights, shore leave must be balanced against other interests such as the vessel’s operational schedule and safety requirements.

Merchant mariners’ right to shore leave existed in customary maritime law long before articulation in the earliest written maritime codes of the Middle Ages.[2] The traditional rule is that a ship’s master has the discretion to grant or deny shore leave.  The decision to grant shore leave should not be at the master’s personal whim, nor should a master deny shore leave as a punishment.  The law recognizes the necessity of shore leave for maintaining a mariner’s health and for the safe and efficient operation of the vessel. The United States Supreme Court decided in the 1943 case of Aguilar v Standard Oil Company that:
 

“The assumption is hardly sound that the normal uses and purposes of shore leave are ‘exclusively personal’ and have no relation to the vessel's business.  Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline.  Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly.  No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it.  Even more for the seaman than for the landsman, therefore, "the superfluous is the necessary . . . to make life livable" and to get work done.  In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion. 318 US 724, 87 L Ed 1107, 63 S Ct 930, 143 AMC 451.

The International Maritime Organization Convention on Facilitation of International Maritime Traffic, ratified by ninety-two countries, including the United States of America, contains in Section 3.44, a modern codification of mariners’ right to shore leave.
 

“Foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reasons of public health, public safety or public order.”

The International Ship and Port Facility Security Code (ISPS), which has been accepted by the United States, provides in Preamble paragraph 11:
 

“Recognizing that the Convention on the Facilitation of Maritime Traffic, 1965, as amended, provides that foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reason of public health, public safety or public order, Contracting Governments, when approving ship and port facility security plans, should pay due cognizance to the fact that ship’s personnel live and work on the vessel and need shore leave and access to shore-based seafarer welfare facilities, including medical care.”

In MSC/Circ.1112 of 7 June 2004, the International Maritime Organization reminded Contracting Governments of their responsibilities in implementing the ISPS to afford special protections to seafarers and of the critical importance of shore leave.  The exhortations contained in the Circular are based on the principles that seafarers have primary security duties under the ISPS, and they should be viewed as partners in the new security regime rather than as potential threats to security.

Similarly, the International Labor Organization’s Seafarers’ Identity Documents Convention (Revised), 2003 (ILO-185), which came into force in February 2005, confirms seafarers’ right to shore leave in its preamble:
 

“Being aware that seafarers work and live on ships involved in international trade and that access to shore facilities and shore leave are vital elements of seafarers’ general well-being and, therefore, to the achievement of safer shipping and cleaner oceans,”

ILO-185 also requires, in Article 6.5, port authorities to allow seafarers to have shore leave unless they have reason to refuse entry because of “public health, public safety, public order or national security.

The recently adopted ILO Maritime Labour Convention, 2006 (ILO-186) also affirms seafarers’ rights to shore leave in its Regulation 2.4:
 

“Seafarers shall be granted shore leave consistent with their health and well-being and with the operational requirements of their positions”

Despite all of the regulatory and “good sense” reasons for maximizing shore leave opportunities for seafarers, it is commonly perceived that foreign seafarers are routinely denied shore leave in United States ports.

A recent ITF study reports that 58% of the people they represent have been denied shore leave, principally in the United States.  The Seamen’s Church Institute’s most recent survey of shore leave denials in United States ports revealed that 17.8% of the ships surveyed had at least one seafarer detained on board.  Customs and Border Protection (CBP) reported at our recent roundtable that only about 3% of the seafarers seeking shore leave in the United States during FY2005 were denied shore leave.

The ITF data is an indicator of the perceptions foreign seafarers now have about shore leave in the United States.  The SCI and CBP data show that, even though conditions are improving, problems still exist.  They exist in two principle areas:
 

  •     Seafarers without visas do not go ashore.
  •     Some private terminals impose restrictions on shore leave by making it difficult to transit through their terminal.  For example, several terminals in the United States charge crews exorbitant escort fees to go through their terminal.

Visas:  International Conventions codify customary international maritime practices that ship’s crews should not be required to have a visa for temporary shore leave.  The Facilitation of International Maritime Traffic convention specifically prohibits member states from requiring seafarers to obtain a visa for shore leave:
 

3.45     Standard. Crewmembers shall not be required to hold a visa for the purpose of shore leave.

In addition to confirming seafarers’ right to shore leave, Seafarers’ Identity Document Convention ILO-185, specifies in Article 6 that seafarers shall not be required to hold a visa for the purposes of shore leave.  It further requires port states to allow shore leave to seafarers holding valid seafarers’ identity documents.  This convention, which came into force on 9 February 2005, has been ratified by only four countries: France, Jordan, Nigeria and Hungary.

The United States requires foreign crews on visiting merchant vessels and aircraft to have a D-1 visa to apply for shore leave 8 U.S.C. § 1101(a)(15)(D)(i). Crewmembers who sign-off from their ships in the United States and depart on conveyances other than the ships on which they arrived on are required to have D-2 visas, 8 U.S.C. § 1101(a)(15)(D)(i). Crewmembers who wish to enter the United States to join their ship in the United States are considered transits and must have a C-1 visa, 8 U.S.C. § 1101(a)(15)(C).

A possible remedy to the visa related shore leave restrictions is found in the ILO Seafarers’ Identity Document Convention.  On 20 June 2003, at the United States’ initiative, the International Labour Organization adopted the Seafarers’ Identity Documents Convention (Revised) (ILO-185).  ILO-185 enhances maritime security by setting international standards for a seafarer identification documents (SID) that provides reliable, positively verifiable and internationally acceptable identification.  ILO-185 codifies mariners’ rights to shore leave and requires Member countries to accept SIDs in place of visas for the purposes of shore leave.  Member countries must maintain electronic databases of SIDs that are accessible by authorities from all ILO Member countries.

Ratification and implementation of ILO-185 by maritime nations depends upon the United States taking the lead in ratifying and implementing the Convention - and on the United States accepting SIDs as a basis for waiving crewmember visas for shore leave.  Countries will have no incentive to set up a SID system and mariners will have no incentive to obtain a SID if the United States requires crewmember D-1/2 visas in addition to SIDs.

ILO-185 SIDs would not serve as travel documents, but they would provide a basis for waiving a D-1/2 visa. Legislative authority already exists in 8 U.S.C. §1182(d) and §1282(a) for CBP officers to waive visas in circumstances provided for in regulations.  The Department of Homeland Security could promulgate regulations authorizing CBP officers to waive visas for crewmembers possessing conforming ILO-185 SIDs.  In the alternative, Congress could enact specific legislation authorizing waiving visas for crewmembers who have valid SIDs.

The standards for SIDs enumerated in ILO-185 satisfy the technical requirements of the U.S. Enhanced Border Security and Visa Reform Entry Act of 2002 (e.g. machine-readable, tamper-proof, digital photograph, biometric indicator).

The combination of the ILO-185 card and existing security measures, including port of entry immigration interviews, would provide a sufficiently high level of security.  Crewmembers not in possession of a SID would have to obtain a visa to apply for shore leave in the United States.

SIDs offer the best possible compromise between legitimate port security requirements and the need for crews to attend to their physical, emotional, and spiritual needs on shore leave – provided that the Convention is broadly ratified and implemented.

Shore Leave Through Facilities: The regulations implementing the United States Maritime Transportation Security Act (MTSA) and the ISPS require port facility security plans to contain procedures for facilitating crew shore leave as well as access to ships by representatives of seafarers’ welfare organizations.  The 8-14 January 2006 Seamen’s Church Institute survey showed the positive effect of the MTSA and ISPS in reducing instances of private terminals denying shore leave.  In previous surveys, private terminals’ denying shore leave to crews proved one of the most common reported causes for crew detentions.  Most private terminals appear to have implemented the MTSA and ISPS requirement that facility security plans must contain procedures for facilitating shore leave as well as access to ships by representatives of seafarers’ welfare organizations.  However, some problems still persist.  The Coast Guard and the Seamen’s Church Institute are cooperating to identify ISPS/MTSA related shore leave and terminal access problems and to seek solutions to them.  Examples of persisting problems include terminals that deny chaplains’ access to vessels, terminals that prohibit seafarers to go on shore leave through the terminal and terminals charging exorbitant fees for escorting crew or chaplains through the terminal.

Limiting shore leave without compelling reasons gives seafarers the impression that they are terrorist suspects instead of key members of anti-terrorist team.  We need to encourage the United States to ratify the Seafarers Identity Document Convention (ILO-185).  This convention, if widely ratified, would enhance security and would improve shore leave opportunities by providing a substitute for a US visa.  The maritime industry should actively reproach private terminals that place unreasonable restrictions on crew shore eave through their terminals.  Shipowners, for example, could ships refuse to use terminals that restrict their crews.

If we want to improve maritime security, and I think most of us do, we should be guided by the spirit of Alexander Hamilton’s directions to the Revenue Marine Cutter captains that achieving their objectives will enhanced by a cooperative and respectful approach to seafarers.

Center for Seafarers’ Rights at the Seamen's Church Institute

THE SEAMEN’S CHURCH INSTITUTE
seamenschurch.org

The Seamen’s Church Institute of New York and New Jersey conducted a survey of shore leave detentions and chaplains’ access to ships in United States ports 8 through 14 January 2006.  Seafarers’ centers in thirteen United States ports kept records of instances where merchant vessel crews experienced shore leave denials on ships they visited or attempted to visit, as well as of instances where chaplains did not have access to a vessel during the survey week.

The 8-14 January 2006 survey showed the positive effect of the MTSA and ISPS in reducing instances of private terminals denying shore leave. In previous surveys, private terminals’ denying shore leave to crews proved one of the most common reported causes for crew detentions.  Lack of crewmember visas provided the second most frequent reason. Most private terminals appear to have implemented the MTSA and ISPS requirement that facility security plans must contain procedures for facilitating shore leave as well as access to ships by representatives of seafarers’ welfare organizations.  However, a few terminals continue to deny seafarers access to shore leave.

On the negative side, the survey showed that the United States requirement that foreign merchant mariner crewmembers possess a crewmember visa to apply for shore leave remains an obstacle for shore leave.  Seafarers’ lack of visa remains the most often reason cited for shore leave denials.  A number of reports mentioned time constraints prohibiting obtaining visas as a reason for a lack of visa.  On one vessel, the majority of crewmembers were denied shore leave because the agent did not prepare the proper forms for inspection. Other reasons mentioned for shore leave denial included agents unwilling to pay terminal transportation fees, company policy after a prior shipjumping incident, and visa expirations while at sea.


ALEXANDER HAMILTON'S LETTER OF INSTRUCTIONS TO THE COMMANDING OFFICERS OF THE REVENUE CUTTERS

Treasury Department, June 4th, 1791

. . .While I recommend in the strongest terms to the respective officers, activity, vigilance and firmness, I feel no less solicitude, that their deportment may be marked with prudence, moderation and good temper.  Upon these last qualities, not less that the former, must depend the success, usefulness and consequently continuance of the establishment in which they are included.  They cannot be insensible that there are some prepossessions against it, that the charge with which they are intrusted [sic] is a delicate one, and that it is easy by mismanagement, to produce serious and extensive clamour, disgust and alarm.

They will always keep in mind that their countrymen are freemen, and, as such, are impatient of everything that bears the least mark of a domineering spirit.  They will, therefore, refrain, with the most guarded circumspection, from whatever has the semblance of haughtiness, rudeness, or insult.  If obstacles occur, they will remember that they are under the particular protection of the laws and that they can meet with nothing disagreeable in the execution of their duty which these will not severely reprehend.  This reflection, and a regard to the good of the service, will prevent, at all times a spirit of irritation or resentment.  They will endeavor to overcome difficulties, if any are experienced, by a cool and temperate perseverance in their duty--by address and moderation, rather than by vehemence or violence.  The former style of conduct will recommend them to the particular approbation of the President of the United States, while the reverse of it--even a single instance of outrage or intemperate or improper treatment of any person with whom they have anything to do, in the course of their duty, will meet with his pointed displeasure, and will be attended with correspondent consequences.

The foregoing observations are not dictated by any doubt of the prudence of any of those to whom they are addressed.  These have been selected with so careful an attention to character, as to afford the strongest assurance, that their conduct will be that of good officers and good citizens.  But, in an affair so delicate and important, it has been judged most advisable to listen to the suggestions of caution rather than of confidence, and to put all concerned on their guard against those sallies to which even good and prudent men are occasionally subject.  It is not doubted that the instructions will be received as it ought to be, and will have its due effect.  And that all may be apprized [sic] of what is expected you will communicate this part of your orders, particularly, to all your officers, and you will inculcate upon your men a correspondent disposition.

The 5th section of the Act, requires that all officers appointed pursuant to this Act, should take a certain oath therein specified.  The Act of the 1st of June, 1789, requires that you should also take the oath to support the Constitution of the United States.  These oaths, each of your officers must take before some Judge of the United States, if access can conveniently be had to one.  If not, before some other magistrate, duly empowered to administer oaths, and a certificate from him, of the taking of it, must be transmitted to the Comptroller of the Treasury.

I am sir, your obedient servant,

ALEXANDER HAMILTON,
Secretary of the Treasury


 

[1] Director, Center for Seafarers’ Rights, The Seamen’s Church Institute • Email: csr@seamenschurch.org • seamenschurch.org

[2] Several articles in the ancient admiralty codes mention or presume shore leave as a fact of maritime life.  The general rule being that mariners may not leave their ship without the master’s permission but that they should be allowed shore leave when their ship is safely anchored.  See Code of Wisby, Articles XVII and Article XXX.  Article XX of the Code of Oleron specifies that when a vessel arrives in port, seafarers can go ashore, two at a time and also take one meal (but no drink) from the ship with them.  Alexander Justice, in his commentary on Article XX explains the reason for this law “was to keep the Seamen in Health and vigor: for by encouraging them to go ashore, two at a time, when their Attendance was not necessary aboard, the Master gave them the opportunity to refresh themselves at Land, which is the best Remedy in the World for Scurvy, contracted a Ship-board by living on Salt Meats and Dry Bisket and being crowded up in a close Place for a considerable Time: Their Eating Fresh Provisions, and Breathing the free Air at Land, makes ‘em strong, and better able to go thro’ their Business.”  Alexander Justice, A General Treatise of the Dominion and Laws of the Sea. (London 1705).  See also The Laws of Wisby, Artic. XXXIII and LIV.