Criminal jurisdiction for ship collision and marine pollution in high seas-Focused on the 2015 judgement on M/V Ernest Hemingway case

Abstract

ABSTRACTOn 16 January 2015, about 10 miles east of Busan, South Korea, Liberian container carrier, M/V Ernest Hemingway collided with Korean fishing boat, Geunyang-ho, and Geunyang-ho sank and two Korean nationals perished and about 600 liters of fuel oil on board Geunyang-ho spilt into the sea. M/V Ernest Hemingway’s crew escaped from the site without carrying out duties of rescue after the collision. The Busan District Prosecutor’s Office arrested and prosecuted M/V Hemingway’s second officer and an able seaman, Philippine nationals, for the criminal facts subject to judgement, violation of the Act on Aggravated Punishment, etc., of Specific Crimes, Professional Negligence resulting in ship sinking, and violation of the Marine Environment Management Act. Busan District Court pleaded guilty and sentenced fine for the violation of the Marine Environment Management Act, on the other hand, sentenced dismissal of public prosecution for the violation of the Act on Aggravated Punishment, etc., of Specific Crimes and professional negligence resulting in ship sinking due to lack of jurisdiction based on UNCLOS Article 97(1). Looking at the rulings and the annotations on this case, the main issues were whether South Korea has jurisdiction on ship collision incidents on the high seas as the state of the alleged victim’s nationality, and whether South Korea may exercise criminal jurisdiction over marine pollution caused by a ship collision on the high seas. This paper examines the decisions by the Courts and the main issues related with the case. Here is a summary of what has been reviewed in this paper: First, UNCLOS Article 97(1) is applicable for all criminal penalties of the captain and crew members concerning ship collision and other navigational accidents, without consideration on the intention, and can also be applied to intentions or attempts of illegal activities. Therefore, it can be applied to the events causing loss of life or serious injury (professional negligence resulting in deaths, running away after professional negligence resulting in deaths, etc.) and physical damage (professional negligence resulting in ship sinking, or ship damage, etc.) that were caused by ship collision, allowing priority over criminal jurisdiction exercised by the flag state and the state of the alleged offender’s nationality. Second, it is appropriate to interpret that the exclusive jurisdiction of the flag state on high seas as having a superior position against the jurisdiction of other states, not as having jurisdiction that excludes all other states. Therefore, in the M/V Hemingway’s case, it would be reasonable for our country to exercise complementary jurisdiction if the flag state and the state of the alleged offender’s nationality did not exercise criminal jurisdiction.Third, marine pollution accidents occurring in the high seas (EEZ of South Korea) should apply the relevant provisions of UNCLOS Part 12 regardless of the cause. The coastal state can institute proceedings when there are cases of marine pollution occurring in territorial seas or EEZ of the state and occurring outside of its EEZ but causing or being likely to cause damages to the state. For the lawsuit regarding the pollution accidents that occurred outside of national territories shall be suspended if the flag state institute proceedings on the same allegation within six months of the commencement of the lawsuit, and when the flag state ends the lawsuit, the suspended lawsuit is also automatically terminated. South Korea is eligible to file a lawsuit on the M/V Hemingway’s case, and because the flag state did not file a suit within six months, the judgement of the South Korean Court is considered to be valid. Fourth, while the Marine Environment Management Act of South Korea prescribes its jurisdiction based on the flag state of the violated vessel and location of the spills, UNCLOS prescribes coastal state’s jurisdiction based on the severity of pollution damage and compliance on procedures. Therefore, some supplements on related laws need to be made.