H.6 Death at sea

Details

STEVE WILLIAMS, NATALIE SHAW, KATINKA SVANBERG

H.6.1 Introduction

Seafaring is one of the most dangerous forms of work compared to other sectors.[1] Seafarers, passengers and others onboard ships including refugees, migrants and unauthorized people such as stowaways or pirates, can die at sea.

A death at sea can be caused by many different factors, including accidents, drowning, illness, suicide, or of natural causes. Also, killings, such as homicide can be the cause of death. Piracy attacks or terrorism can occur.

There can be a huge loss of life when a large vessel with many passengers onboard capsizes and sinks. Recently, refugees in overcrowded boats have also become victims due to the refugee crises in the 2010’s. In 2013, the number of migrants who had died in the previous two decades trying to reach Europe was estimated to have surpassed 20,000. These official figures are based on actual bodies counted, unofficial estimates are much higher, as many of the missing are never accounted for[2] Big accidents often result in major investigations as to the cause and responsibility, leading to trials for liability and damages.

However, many deaths at sea concern just one or a few people. Still there needs to be an investigation into the cause of death, questions of liability and of damages to be awarded. According to the Marine Casualties and Incidents records in 2014-19, the number of reported seafarer’s deaths at sea were 310, plus 467 missing, with deaths rising in 2019.[3] One reason for the rise in fatalities is the increase in extreme weather conditions.[4] Notably, the South China and the East Indies zones have the highest overall number of recorded seafarer deaths at sea.[5] However, the numbers of dead seafarers should be taken in the context that an estimated  400,000 seafarers work on merchant cargo ships, 300,000 on passenger and cruise ships and approximately 200,000 crew work on other types of vessels, including commercial fishing, n especially dangerous branch, according to IHS Markit’s 2019 Report[6]

On the other hand, the International Maritime Organization (IMO) found that the number of total shipping losses declined and was the lowest of the century in 2019, with 41 ships lost. This is due to factors such as improved ship design and technology, increased regulations, advances in risk management and more robust safety management systems and procedures on vessels.[7] However, despite decades of improvements in maritime safety regulation, training, technology and risk management, fatal accidents at sea persist. Human behavior is often the biggest risk factor, with Masters and crews operating in an increasingly time and resource pressured industry.[8]

H.6.2 Procedures in Case of a Death at Sea

Introduction

The full procedures/guidelines that should be followed will vary according to company policies and the laws of the country in which the death occurred, Flag State Laws and the laws of the country of the origin of the seafarer. Such procedures should be clearly documented and form part of the ships safety management system.

A death on board a ship should be treated as an emergency. Ship owners are always encouraged to urgently make contact with Telemedical Assistance Services (TMAS) in the event of a death and any doubt or uncertainty must be investigated and resolved as soon as possible. Once death is confirmed, the medical management of these incidents mainly relates to ensuring that the death is reported to the appropriate authorities within the prescribed time-frame and handling the local authorities at the next port of arrival, ensuring that the body is handed over in a good state and providing clinical documentation. In such an unfortunate event, the Master and crew must take all necessary steps outlined within the WHO’s International Medical Guide For Ships, an equivalent national medical guide or procedures as directed by shore side medical  personnel.

In the event of work-related injury, a piracy attack or foul play on board it is essential that evidence is preserved for proper scrutiny by the authorities and so nothing should be moved or touched until permission has been given to do so. Further information on the management a potential crime scene at sea is given in Ch. 9.7.

Information gathering

The Ship’s master should gather as much information as possible about the incident along with other necessary details that are required as evidence and for the declaration of death.

Important details required as evidence include:

  • Date, time, and position of the vessel when the death occurred
  • Location of the death if it occurred because of an accident
  • Record of the working hours of the deceased
  • Details of the condition of the body and what is known to have happened
  • Complete eye witness statement that is taken immediately after the incident
  • Type of medical treatment given to the person before death
  • Details of the person/ persons providing medical treatment
  • Details on indication of intoxication, or substance abuse if found
  • Details of any equipment which may have been the cause of death
  • Timed photographs of the place where the deceased was found
  • Details of telemedical support, if available and provided
  • Any other information requested by the company

All the details of the death and actions taken should be noted in the official Ship’s log book.

Certification of death and establishing the cause of death

Typically, the shipboard physician, if there is one, can record the fact that the patient has died, but a doctor licensed in the next port of international entry will perform the actual legal certification  of death. This doctor is usually the local coroner or medical examiner.  The local port police department may insist on coming on board to conduct a forensic investigation into the manner and circumstances of the death.   If there is uncertainty over the cause of death, the vessel may be forced to delay departure until the investigation is concluded.

Notification of death at sea

When a death happens at sea, this fact must be recorded on the International Maritime Declaration of Health (MDH).  In actuality, the requirement was originally for non-accidental deaths to be reported, and this was the intent of the International Health Regulations adopted in 2005[9].  In practice, most of the time, all deaths are noted on the form. The MDH is sent to the port health officer or the public health authority that has jurisdiction in the next port of call.

In the case of an arrival into a US port, the correct form to use is the US Center for Disease Control (CDC), Division of Migration and Quarantine’s “Maritime Conveyance Illness or Death Investigation Form”.  Under US federal regulations (42 CFR 71.21) the CDC require that any death occurring within 15 days of arrival into a US port is reported to the local quarantine station with jurisdiction over the anticipated port of entry at least 24 hours prior to arrival.

In addition to notifying the CDC there is also a requirement for all ships arriving into the US to notify the US Coast Guard if a passenger or crew member dies as the result of an accident on board.  This report should be filed to the local US Coast Guard Captain of the Port on form USCG 2692.

Within the US, the local port police, or the police department within whose geographical jurisdiction the port is located will respond to the ship, conduct the initial investigation and then refer the case to the local medical examiner.

The flag State of the ship also requires notification.  For example, the Bahamas Maritime Authority (BMA) requires the Master of a Bahamian registered vessel to notify them “immediately by the fastest mode of communication available.”  The BMA also requires the Master of a vessel registered with another flag State to notify them if a Bahamian citizen employed on a ship dies while in the “service of a vessel”.  Once the report is received, The Merchant Shipping Act of 1976 gives the BMA the authority to hold a preliminary investigation into the cause of death. Other Flag States have similar rules and requirements.

The Master must also inform the company as soon as possible and it is the responsibility of the company to inform the next-of-kin of the death of the employee. They may also inform the P&I club or other insurer.

Should an incident occur when the ship is at port or anchor, the procedures according to the laws of that particular country must be followed. The Master should inform the local agents and medical personnel. The local agent will guide the Master regarding the procedures to be followed as required by the authorities of that particular country.

Lastly, there is an expectation that the appropriate Embassy or Consulate shall also be notified of the death of one of their citizens.  Often consular offices are able to offer support with notification to the deceased’s home country and the Embassy or Consulate may also have consular officials able to meet with the family or next-of-kin to assist with documentation and other requirements.   They can also, typically, offer very useful advice on recommended funeral homes and assist family members with some of the arrangements for repatriation of the deceased.

Landing of the deceased

In most cases the local port authorities will require that the deceased is disembarked from the ship and then the local coroner or medical examiner will be involved.  However, authorities in many small ports with poorly developed infrastructures will often refuse to allow human remains off the ship, as they are not equipped to determine the cause of death or to manage the necessary arrangements for repatriation. In this situation, it may be that the body must remain on board until the next large port. If so, the body must be kept at an appropriate temperature in a morgue or large refrigerator on board. If this is not possible, it is usually possible to airlift the deceased to a suitable location ashore if there is no other solution. Other factors that may influence whether or not a body is landed in a port include:

  • The circumstances surrounding the death, such as if a crime investigation might be required.
  • The location of the ship at the time of death, for example on the high seas or in territorial waters, especially if there will be a crime investigation. Authorities of a coastal state in whose territorial waters the ship is in, can force the ship to go into one of its ports if they deem it necessary to investigate the death.

In the case of a passenger death on a short cruise, the family will often request that the deceased remain on board so that they can return to their original departure point together.  In most cases, the local authorities will not allow this.

 

Repatriation of mortal remains

Once the likely cause of death is established, a death certificate is issued and the body is taken to a local funeral home. At this point the next-of-kin or family will need to designate a funeral home in their hometown with whom the funeral home or mortuary who has the body can liaise and coordinate the repatriation of the remains.  Assistance companies, the Embassy or Consulate or the P&I club may also be involved in these arrangements.

As per the Maritime Labour Convention (MLC), all the belongings of the deceased seafarer should be packed and handed over to the agent to be forwarded to the company who will transfer them to the next-of-kin along with an inventory of belongings.

The ship owner should arrange for the repatriation of the body or the ashes of deceased seafarers, in accordance with the wishes of the next of kin and as soon as practicable.  There are a variety of reasons why burial at sea may prove problematic, including not following the spirit of the MLC advice but also because it may be more difficult to prove that foul play has not occurred. More information on burial at sea is available in xxx.

Efforts should be made to observe the customs of the deceased person’s religion wherever possible and appropriate advice sought if necessary.

Payment for repatriation can be expensive. All seafarers and persons on board merchant vessels  is often covered by the shipping company or P&I club insurer, but passengers travelling on board, for example, cruise ships are advised to have their own insurance policy as the repatriation of mortal remains is not usually covered by the consulate or the cruise line. A seafarer’s family may have the right to compensation in case of a workplace fatality. In the case of negligence or crime, a plaintiff might seek to be indemnified through filing a claim for damages in court. Specific information regarding death on a cruise ship can be found in section xxx

H.6.3 Burials at Sea

Introduction

Burial at sea is the disposal of human remains in the ocean, normally from a ship or boat. In the old days, more than 100 years ago, a dead body could be buried directly at sea, casting it overboard. This was convenient, as a morgue or fridge was often not available so when a contagious disease was suspected as the cause of death, or in wartime.  Nowadays in the 2000’s, burial at sea is still regularly performed by the navies of many countries and burial or the spreading of ashes is not uncommon, as below. In some regions, notably in Asia, sea burials are becoming popular and in some countries such as India, religious beliefs can pave the way for burials in internal waters, such as in the sacred Ganges River, which became a problem in the Covid Pandemic of 2020-21. Bodies were being disposed of directly into the sacred Gagnef river amid reports of wood shortages for cremation. This is illegal, as the authorities only admits ashes to be spread in the river based on the Hindu religion[10] In wartime, attempts are made for burial at sea to follow the same procedure as in peacetime although a ship on a combat mission may not have all the necessary resources available. Today, in a war situation, it is usually possible to airlift the remains back to shore and prepare a burial ceremony on land.

Under strict rules, private citizens in many countries, can also be buried at sea. Usually, a permit is needed for the burial and this must be obtained from the authorities.  The ceremony may include burial in a casket, burial sewn in sailcloth, burial in an urn, or scattering of the cremated remains from a ship and the master of the ship or a religious representative of the deceased's religion or the state religion performs the ceremony.[11] Different countries have different rules.[12]

Different practices

In Australia, burial at sea within its territorial waters, exclusive economic zone (EEZ) and continental shelf is covered by the Environmental Protection (Sea Dumping Act 1981) administered by the federal Department of the Environment. Permits are usually only granted in cases of a strong connection to the sea, such as long-serving navy personnel. The body must not be embalmed or placed in a casket but may only be sewn into a weighted shroud. The burial must be in water deeper than 2,000 meters and not interfere with shipping, fishing or undersea communications. Australian Defence Force vessels engaged in armed conflicts or emergency situations are exempt from these requirements.[13]

In the UK ashes can be freely spread at sea. For bodies, there are only a few designed areas for burial at sea and some burials at sea may be suitable for a self-service marine license. In order to qualify for such a license the intended place of burial must be one of the following locations:

  • off the Needles, Isle of Wight,
  • between Hastings and Newhaven,
  • off Tynemouth, North Tyneside.

The following documentation is also required:

  • a death certificate,
  • a Certificate of Freedom from Fever and Infection (available from the deceased person’s GP or hospital doctor),
  • a Notice to a Coroner of Intention to Remove a Body out of England.

Burials must take place within three months of the date the license is granted. To apply for burial at sea at a different location in England or the Northern Irish offshore area one can still apply for a license but also to provide evidence that the proposed burial location is suitable. Things like water depth, currents, pipelines and fishing will be considered.[14]

In the US, a funeral director is not required for the burial of cremated remains at sea. However, full body burials require specific preparation to ensure the body or coffin sinks quickly, and in many states a licensed funeral director must be present. The different states have different rules with regards to granting a permit for a burial at sea. The Environmental Protection Agency regulations for full body burials at sea in the US require that the site of interment be 3 nautical miles (5.6 km; 3.5 mi) from land and at a depth of at least 600 feet (180 m).  The United States Navy requires a metal casket for intact remains, but full body burial in a suitably weighted shroud is also legal.[15]

Many countries permit the spreading of cremation ashes within their Exclusive Economic zone (EEZ). In international waters, when spreading ashes from a ship the regulations and reporting procedures for the ship's flag State need to be complied with.

International conventions

The International Convention for the Prevention of Pollution from Ships (MARPOL) is the main international convention that deals with the prevention of the marine environment from pollution by ships. It does not mention burial at sea specifically but it is sometimes inferred that it prohibits burials at sea if the body is covered in plastic as per Annex V.[16] Also, the United Nations Convention on the Law of the Sea (UNCLOS), have rules about the rights of different states to impose restrictions on maritime conservation and pollution in their EEZ (Art.194), which could allow states to forbid sea burials in this area.[17]

People can still be buried at sea of necessity, such as when a ship or a submarine sinks and it is hard or impossible to recover the bodies. Then a sunken vessel can be declared a grave with laws ensuring their peace, not to be disturbed.[18]

It can be a crime to bury dead bodies by throwing them overboard. In 2020 a video circulated showing how two Indonesian fishermen on board a Chinese fishing vessel located outside South Korea, were ‘buried at sea’ after falling ill and dying on board the Chinese owned vessel caught operating illegally in South Korean waters.[19] This devastating story became trending news in South Korea and led to investigations by the local authorities and the Indonesian Government. The incident exposed that the Indonesian fishermen were mistreated on board, denied medical treatment or to go to hospital. They were forced to drink filtered saltwater and work long hours with very low salary, all of which are human rights violations.[20] The Chinese company owning the fishing vessels claimed that the families of the deceased workers had been informed about the deaths and had agreed with the subsequent burial at sea..[21]

However, a burial at sea needs to comply with the laws of the coastal state if done inside its territorial waters. Moreover, the case highlights that a death at sea needs to be investigated and the cause of death secured before burial of the body. In this case, both South Korean, Korean territorial waters, and Chinese Law, the flag State, would apply to the Indonesian workers death at sea. The dead bodies should have been reported to the port State. Their families claimed they were not informed of the burial of their loved ones at sea, but the passive personality jurisdiction principle provided that the victim’s families could only make claims based on the contract with the Chinese fishing company, and in this case they had the right to receive insurance money of $10,000 as stipulated in the employment contract. Due to alleged human rights violations, the case also gave rise to the Indonesian foreign office complaining about the ‘sea burials’ to the Chinese Government. Evidence showed that the Chinese Fishing company had used ‘sea burials’ for several other Indonesian workers as well[22].

H.6.4 Workplace Fatalities

Incidence

Among different industries, the maritime transport sector has a high workplace fatality rate. However, the global shipping industry is responsible for about 90% of the world trade.[23] In the UK, the Merchant Navy's work-related fatality rate is 26 times higher than the national average, in Demark 11 times higher, and in China work-related fatalities at sea have been shown to be higher in seafarers than in other industrial sectors.[24] In both developing and developed countries, workplace fatality is highly damaging to surviving families' social, financial and health conditions.[25]

With the growing world fleet, the numbers of crew killed are high considering shipping's increased focus over the last decade on the improvement of safety and environmental performance. While many of the major incidents that result in missing or dead crew may be perceived as rare events, the pressure experienced in a stressed environment, cause human errors.[26]A problem is that the stress can make the Master and others try to cut corners in order to meet a tight schedule. It is argued that the high occupational casualty rate of the shipping industry is a consequence of the efforts to minimize its operational costs while maximizing profit.[27] As the industry blames 80% of accidents on human errors, seafarers are afraid to report accidents, as many of them have precarious employment contracts.[28]The report concludes that ‘throughout the industry, mariners are genuinely frightened that if they were known to be reporting safety deficiencies, they would almost certainly lose their jobs’.[29]

Risk assessment

Working at sea has always been demanding – the hours are long and irregular and the ocean is a risky element. The environment also has the additional risks of handling machinery, chemicals, fuels and gases, without easy access to emergency services if things go wrong.[30] Hence, the International Convention for the Safety of Life at Sea (SOLAS), was adopted in 1948, to ensure safe conditions for seafarers.

The most frequent of all occupational fatalities and serious injuries reported are falls, including from height, on stairs, and overboard, followed by improper enclosed space entry and rescue incidents.[31] The most common natural cause of death in seafarers is cardiac arrest. Factors such as age and sex contribute, for example men aged over 40 years more often suffer a cardiac arrest and this group is overrepresented in seafarers. Clinical and statistical studies have also identified additional contributing factors on board a working vessel – hypothermia, electrocution, trauma caused by impacts or falls, respiratory and circulation problems, metabolic changes and the effects of drugs, all significantly increase the chances of suffering a sudden cardiac arrest.[32]  Thus, it has been suggested that an Automatic External Defibrillator (AED) should be necessary equipment on board.[33]

Liability and compensation

In considering liability and compensation for a seafarer’s workplace death, the complexity of employer structures may increase the uncertainty of compensation outcomes, to cite Shan Desai:

 ‘Unlike land-based workers, seafarers are subject to labour and maritime laws of multiple jurisdictions, including the Flag State of the ship and the labour supplying state where employment agreements are established. The structure of employers is complex, including ship owners, operators and multi-level crew agencies. Thus, in the case of workplace fatalities, seafarers' families usually have to negotiate with these parties, as well as with ship owners' insurers.’[34]

One problem lies in the liability and insurance regime that covers the ‘negligence of seafarers clause’ in insurance policies. It is admissible for insurance payouts that focus on negligence by the Master or crew on board the ship, but explicitly excludes the possibility of compensation for management errors.[35]

Employment contracts and flag State laws

Many seafarers are subject to fixed-term, temporary and even freelancing precarious employment agreements. For example, seafarers in China do not have long-term employment relationships and 58.45% of seafarers are not covered by the Chinese Work related Injury Insurance.[36] When working at sea, the health and safety conditions on board are subject to the flag State jurisdiction, which can include open registry countries, such as Panama, Liberia, the Bahamas and the Marshall Islands. Such flags of convenience may have lower standards and laws that will make it harder for claimants to sue.

 

Multiple jurisdictions

Following workplace fatalities at sea, there may be responses from different jurisdictions, including flag states, port states and labour supplying states. Thus, claiming compensation from the overseas employer can be challenging.[37] Further information about the jurisdiction for incidents at sea can be found in Ch 9.9. There are many cultural, linguistic and procedural barriers including in

  • accessing accident investigation reports issued abroad,
  • requesting that employers transport the body of the deceased seafarer back to their homeland,
  • conservation of the body,
  • applying for the declaration of death when seafarers are missing at sea,
  • negotiating with foreign ship owners and litigating in a foreign jurisdiction.[38]

Many times, foreign ship owners are not obliged to comply with the seafarer’s domestic labour law to provide seafarers with work-related injury insurance, for example in many flags of convenience.[39] Another problem is that most workplace accident laws have in common that the current compensation system is primarily focused on economic costs while ignoring the additional psychological harm suffered by families and relatives to the dead.[40]

The management of workplace fatalities for seafarers, is complicated by the fact that several different parties are involved in handling seafarer casualties:

  • crewing agencies, who recruited the seafarers involved on behalf of ship owners or charterers
  • Ship owners and their representatives, heir liability insurers' claim handlers and lawyers, who manage the claims and cover compensation liabilities
  • administrative and judicial authorities, who act as arbitrators or adjudicators in the justice system.[41]

One problem can be that ship owners, shipping companies, charterers and insurers try to minimize liability, avoiding the work-related nature of fatalities.[42] There is often an uneven battle between the victim’s family and the companies involved in the death, the latter equipped with major assets and corporate lawyers. In addition, liability can be limited in the seafarer’s contract or in that, ship owners, charterers, managers and operators of sea going ships can limit their liability for maritime claims arising from vessel operation accidents.[43]

Additional information on liability to seafarers can be found in Ch. 2.10.

 

H.6.5 Multiple deaths from maritime disasters

When a large vessel with many passengers and crew capsizes there will most likely be lawsuits concerning criminal liability and huge compensation claims from families and relatives from the victims.

Costa Concordia

In 2012 Italy’s newest and largest cruise ship, Costa Concordia, capsized after it struck rocks off the coast of Giglio Island in the Mediterranean Sea. On board were 1023 crew and 3206 passengers. 32 people lost their lives[44]. The ship deviated from its standard course, moving closer to the small Tuscan island for a maritime ‘salute’, a common practice that includes the ship sounding its horn. Unfortunately, this area has many outcrops of rocks. The Master,  ordered a change in course, but due to language issues, the Indonesian helmsman steered the ship in the opposite direction. The stern collided with the reef and the ship’s side suffered a 53 metre tear. An assessment of the damage revealed that five compartments, including the engine room, were flooding, and the ship soon lost power. In addition, with neither the engines nor rudder functioning, the ship could not be steered away from the island and the wind and the stuck position of the rudder caused the Concordia to turn back towards the island. While the change in direction made the later rescue easier, it caused the ship to list to the starboard side and it eventually ran aground near the shore. The Master did not warn the SAR Authority of his own initiative. The warning was received by a person calling from shore) and he later underreported the damage. When a passenger alerted the coast guard, the Master responded only with the information that the vessel had experienced a blackout. Some 10 minutes later the coast guard contacted the ship again, and, at this time, the crew admitted that the vessel was taking on water. The Master asked only for tugboats and then left the cruise ship in a lifeboat together with other Concordia officers. He refused the coast guard’s order to return to the vessel and oversee the evacuation. 25 patrol boats, 14 vessels, 4 tugs and 8 helicopters rescued over 4000 passengers over the next days.

The incident resulted in four members of the crew and the cruise line, Costa Cruises, pleading guilty to various charges, including manslaughter. The Master was charged with manslaughter as well as causing the wreck and abandoning ship. He received a sentence of 16 years. The ship owners, Costa Cruises have paid €84 million in compensation to 3586 victims, including passengers and crew. This amount includes payments made to families of 29 of the 32 fatalities. The family of one American fatality opted for a lawsuit in US courts, where the parent company of Costa, Carnival Corporation, has its headquarters.[45]

Herald of Free Enterprise

The UK flagged ferry, the Herald of Free Enterprise, sank in 1987 when she sailed from Zeebrugge with her bow doors open and water washing into her car deck that compromised stability. The ferry sank within ninety seconds just outside the harbour with the loss of 193 passengers and crew. It became apparent that the blame did not lie solely with the unfortunate crewmember responsible for closing the doors. A coroner’s inquest jury returned a verdict of unlawful killing and there were attempts to prosecute the owners, P&O European Ferries, for manslaughter.[46]

 

The Estonia

The Estonia was a large ferry, sailing from Tallinn to Stockholm when it sank in the Baltic Sea off the coast of Finland in September 1994. 852 of 989 passengers and crew, made up of 17 different nationalities lost their lives. Most, 501, were Swedish. The ferry sank within an hour, at night, in a storm. In 1997 an international investigation concluded that the disaster was caused by a problem with the bow-door locking system so that the retractable bow visor had opened in heavy seas, allowing water to flow onto the car deck and destabilize the vessel.[47]

Survivors and relatives were compensated for material damages from Estonian ship owner Estline. In 2019 a French court rejected the claim of 1116 plaintiffs seeking more than 40 million euros ($45 million) in damages from the French certification agency and German shipbuilder for the construction of the ship as well as for failed inspections by Bureau Veritas on its seaworthiness.

In 1995, after deciding not to salvage the wreck or recover the bodies, Sweden, Estonia and Finland agreed to designate it a final resting place and make it illegal to disturb the site through diving. In 2020, two filmmakers went on trial in Sweden for violating the sanctity of the wreck of the Estonia , when they made a documentary and sent a remote-operated submersible to the ship that revealed a massive hole in the ship’s hull, casting doubt on the findings of an official investigation into the sinking.[48] They were later acquitted. After the documentary the Swedish Accident Investigation Authority made a request to amend the law banning diving to the ferry in order to allow a re-examination of the wreck.[49]

Drowning onboard cruise ships

At least a dozen drownings or near drownings have occurred in cruise ship pools since 2014. Many have been children, such as the drowning of a 10-year-old Singaporean boy, found dead in the pool of the Genting Dream, even though there were pool attendants and guests in the pool with him, who tried to resuscitate him. This raises the question as to who is responsible when cruise ships do not offer lifeguards?

Legally speaking, cruise lines are protected from nearly all financial responsibility in the death of a non-wage earner, such as a child or retiree, by a US law, the Death on the High Seas Act (DOHSA) and the Jones Act. The only financial burden on the lines would be funeral costs for the victims, which does not incentivize cruise lines to post lifeguards.[50] However, large settlements with compensation to the victim’s families have made many more cruise lines hire lifeguards.

 

 

H.6.6 Hospital Ships Protection Under the Laws of War

 In hostilities

Hospital ships, that is white ships clearly marked and adorned with the red cross or red crescent, are internationally recognized as protected platforms engaged exclusively in the care and treatment of the casualties of war or the victims of disaster.[51] Most are operated by the military forces (mostly navies) of various countries. However, it is common for naval ships, especially large ships such as aircraft carriers and amphibious assault ships to have onboard hospitals. These are not protected as hospital ships, as the ships are overwhelmingly combat ships.

It is illegal to attack and sink a hospital ship or its personnel. However, in World War II several hospital ships were attacked and sunk killing many nurses, doctors and patients. Hospital ships are protected under humanitarian law, the second Geneva (II) Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1949) ‘and may in no circumstances be attacked or captured.’[52] This language makes clear that hospital ships always retain their protected status, even if they are not at a given moment, engaged in the treatment or transport of casualties.[53] Moreover, shipwrecked  ex-comattants, such as the wounded, as well as hospital personnel are protected as well.

The basic premise is that hospital ships are not to be used for any military purpose other than, of course, the care and transport of casualties. Wounded, sick, and shipwrecked military members, and the medical personnel who care for them, are considered non-combatants and therefore not subject to direct attack. Hospital ships caring for and transporting casualties of war enjoy immunity from deliberate attack, provided they are identifiable as such—hence the rules regarding distinctive markings, emblems, and signals.[54]

By no means can a hospital ship be carrying out offensive attacks and used for combat. However, it shall be noted that “during and after an engagement” hospital ships “act at their own risk.”[55] This does not mean that they can be fired upon but infers that it can be risky to sail on a hospital ship. A hospital ship can happen to collide with a mine, or by mistake be attacked. Recently, in wars on terrorism, terrorists have also illegally targeted hospitals and ambulances, but not yet hospital ships, with the loss of human life.[56]

In Peacetime

In peacetime hospital ships can serve civilians. When the 2004 Asian tsunami struck both the US and China sent a hospital ship each to care for the victims in Indonesia. The Chinese have also deployed its hospital ship Peace-Ark on a mission to Africa with the strategic mission to provide for humanitarian assistance mission to Africa as well as the establishment of favourable relations aiming to secure important economic resources.[57]

In connection with the COVID-19 pandemic,  the United States, deployed two of the U.S. Navy's Mercy-class hospital ships, both in the Port of Los Angeles and to New York Harbor. The Los Angeles ship helped care for people with illnesses other than COVID, when hospitals were full of COVID patients.  The Indonesian Navy hospital ship KRI Dr Soeharso was deployed to transport crew members from the infected cruise ships World Dream and Diamond Princess back to Indonesia in February–March 2020. In addition, a Mediterranean Shipping company converted one of its ferries into a hospital ship to treat covid patients in Italy.

 

[1] Shan, Desai. Workplace Death at Sea: Chinese Surviving Families' Experiences of Compensation Claims, Relations Industrielles / Industrial Relations, 72, no. 1 (2017): 125-148, 125.

 Basran, infra, p.206.

[3] The inaugural State of Maritime Safety Report, data led insights and analyzes into vessel incidents, into 2020,  IHS Markit, 2020. Available from:https://ihsmarkit.com/research-analysis/seafarer-fatalities-shows-shipping-must-do-more.html [Accessed 13 July 2021.

[4] It has led the World Meteorological Organisation and the IMO to hold their first joint symposium, 'Extreme Maritime Weather: Towards Safety of Life at Sea and a Sustainable Blue Economy', on 23-25 October 2019.

[5]On EU ships and in EU waters, as between 2013 and 2019, 53 seafarers lost their lives at sea and 199 seafarers were missing in marine casualties, Annual Overview of Marine Casualties and Incidents, EMSA, 2020, and the trend is declining deaths at sea, see its Preliminary Annual Overview of Marine Casualties and Incidents, EMSA, 2020. Available from: file:///C:/Users/katin/Downloads/Annual%20Overview%20of%20Marine%20Casualties%20and%20Incidents%202020%20publication.pdf. Accessed 13 July 2021]]..

[6] State of Maritime Safety Report,  supra.

[7] AGZ Safety and Shipping Review 2020. Available from:https://www.agcs.allianz.com/news-and-insights/reports/shipping-safety.html. [Accessed 13 July 2021].

[8] Annual Overview of Marine Casualties and Incidents, EMSA, 2020, supra.

[9] https://www.who.int/publications/i/item/9789241580496

 

[11] Legal aspects of sea burial, Asser Institute for International and European Law, p.1, [https://www.thanos.org/uploads/documents/seaburial-fiat-ifta-march-2013-advice-1.pdf]

[12]Ibid.

[13] Burials at Sea, Australian Navy, [https://www.navy.gov.au/customs-and-traditions/burial-sea].

[14] Marine Management Organisation, How to get a license for a burial at sea in the UK marine area, Gov. UK Homepage, 15 Nov. 2017. Available from:https://www.gov.uk/guidance/how-to-get-a-licence-for-a-burial-at-sea-in-england.Accessed 13 July 2021]

[15] Legal aspects of sea burial, supra,.

[16]Available from: https://www.imo.org/en/About/Conventions/Pages/International-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx. [Accessed 13 July 2021]

[18] See infra about the sunken ferry Estonia, the wreck being declared  an inviolable grave.

[19]Ratu Ayu Asih Kusuma Putri, The Factors Behind the Disturbing ‘Burial at Sea’ of Indonesian Migrant Fishers, The Diplomat, May 11, 2020.

[20]  Ibid.

[21] Ibid.

[22] China Continues Investigation Into Sea Burials of Indonesian Fishermen: Foreign Affairs Ministry, Jakarta Globe, 3 June 2020.

[23]Shan, Desai. Workplace Death at Sea: Chinese Surviving Families' Experiences of Compensation Claims, Relations Industrielles / Industrial Relations 72, no. 1 (2017): 125-148.

[24]Ibid., 126.

[25] Ibid.

[26] HIS State of Maritime Safety report , supra.

[27] Walters, David, and Nicholas Bailey, Lives in Peril, Basingstoke: Palgrave Macmillan (2013):122.

[28] Suresh Bhardwaj, Work Organisation, Labour & Globalisation. 2014:8(1): 22-36,.27.

[29], Marine Accident Investigation Branch Annual Report, Maritime Accident Investigating Branch, 2001.

[30] The Most Common Cause of Death at Sea. Martek Marine, Feb. 25, 2019. Available at https://www.martek-marine.com/blog/common-cause-of-death-at-sea/. [Accessed 13 July 2021] 

[31], ANNUAL REPORT ON MARINE SAFETY INVESTIGATIONS 202. REPUBLIC OF THE MARSHALL ISLANDS Maritime Administrator Apr.2021.Available from:https://safety4sea.com/wp-content/uploads/2021/04/RMI-Annual-Report-on-Marine-Safety-Investigations-2020-2021_04.pdf. [Accessed 13 July 2021].

[32] The Most Common Cause of Death at Sea, Martek Marine, supra.

[33] The Shocking Truth: Sudden Cardiac Arrest at Sea. Martek Marine, 1 June 2018.Available from: https://www.martek-marine.com/blog/shocking-truth-sudden-cardiac-arrest-sea/. [Accessed 13 July 2021]

[34] Desai, supra, 126.

[35]  Bhardwaj, supra, 29-30.

[36] Chen, Gang, Xinyan Zhu, and Yong Hao, The Application of Maritime Labour Convention (2006) in China and Standard Employment Contractual Remedies. Wuhan and Fuzho,: Wuhan University of Science and Techonology and Fujian Maritime Safety Adm, 2014:22-40..

[37] Desai, supra, 127.

[38] Ibid.,

[39] Ibid,,127.

[40] Ibid., 128. See also in US Law infra.

[41] Densai, supra,p.127.

[42] Lund, Henrik Lambrecht, Strategies for Sustainable Business and the Handling of Workers' Interests: Integrated Management Systems and Worker Participation, Economic and Industrial Democracy, 2004:25(1):.41 -74.

[43]  Desai, supra,139.

[44] MINISTRY OF INFRASTRUCTURES AND TRANSPORTS Marine Casualties Investigative Body Cruise Ship COSTA CONCORDIA Marine casualty. Report on the safety technical investigation, January 13, 2012.  Available from: https://www.mitma.gob.es/recursos_mfom/2012costaconcordia.pdf. [Accessed 13 July 2021]

[45] Costa Concordia, victims of shipwreck receive €84 million, The MedieTelegraph, 22 Jan 2015 [https://www.themeditelegraph.com/en/shipping/cruise-and-ferries/2015/01/22/news/costa-concordia-victims-of-shipwreck-receive-84-million-1.38171567].

[46]Barbara Tomlinson, Commemorating the Seafarer, in Tomlinson B, (ed.) Lost at sea: maritime accidents, Monuments, Memorials and Memory, ,UK, Boydell & Brewer; Boydell Press, 1988.

[47]Final Report by the Joint Accident Investigation Commission, M/S ESTONIA, Sep. 28, 1994,THE FINAL REPORT, 14 Dec.1997. Available from:http://www.multi.fi/estonia/estorap.html#_Toc405839343 . [Accessed 13 july 2021].

[48] Göteborgs tingsrätt (Gothenburg Court of First Instance): Case number: B 18677–19, 2019.

[49] Sweden looks to change law so 1994 ferry disaster can be re-examined, The Guardian, 19 Dec.2020.

[50] According to maritime attorney Michael Winkleman, cited in LipCON Blog, Available from:https://www.lipcon.com/blog/in ].Accessed 13 July 2021].

[51] Richard J. Grunawalt,  Hospital Ships in the War on Terror, Naval War College Review2005:58:1, 88.

[52] Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.Art.12.

[53]Grunawalt, supra,at.96.

[54] Grunawalt, supraat 89.

[55] Ibid.

[56]Ibid. p.20., See also, Arthur M. Smith, Has the Red Cross-Adorned Hopsital Ship Become Obsolete?  Naval War College Review, Vol. 58, No. 3, pp. 121-131.

[57] Leah Averritt, Semaphore: Chinese Hospital Ships and Soft Power, Semaphore 2011:3:1-3.