Criminalisation: the long suffering of the San Padre Pio crew and why the Swiss flag was able to protect them

On January 23, 2018, the Nigerian coast guard set the Swiss flag tanker San Padre Pio and its crew firmly on charges of illegal oil trade. The arrest with armed soldiers and official representatives of the authorities was staged in front of the cameras by journalists brought along. The media reports read accordingly: Nigeria is rigorous against foreign criminals.

The background is Nigeria's fight against illegal oil and diesel smuggling out of the country with the help of tankers, which also reload the goods from ship to ship far out at sea in order to carry out controls bypass. The San Padre Pio had evidently made itself suspicious because, coming from Togo, it drove in a large arc in the Gulf of Guinea, which is not unusual due to the high risk of piracy.

The 16 crew members were immediately arrested and taken to a Port Harcourt prison. As an employer, the Swiss shipping company ABC Maritime immediately campaigned for the release, sent lawyers and contacted the Swiss authorities, including the embassy in Nigeria. The shipping company also took care of informing family members in Odessa - most of the crew members came from the Ukraine. After 10 days the lawsuit against 12 seafarers was dropped and they were released from prison but had to stay aboard the ship. Three officers and the captain remained in prison for weeks until they too were brought to the guarded ship after paying a bail by ABC and observing their passports.

It was not until July that most of the seafarers were finally able to travel home, but the four accused had to remain on the ship. Now began a grueling time with intensive diplomatic negotiations, which ultimately ended with a 'success' for Switzerland at the International Tribunal for the Sea in Hamburg. A court in Nigeria acquitted the four defendants in November 2019, which meant the sailors were trapped on their ship for almost two years.

The suffering of the seafarers and their relatives can hardly be described, but in retrospect it must be clearly stated that the shipping company and, above all, Switzerland as the flag state, helped to resolve the situation very intensively through various channels from the beginning. Without the protection of a well-functioning diplomacy, it would almost certainly have turned out even worse.

The New Zurich Times (NZZ), which has just carried out extensive research on this case, writes: 'It is not a matter of course that a country should appeal to the International Tribunal for the Law of the Sea because of a detained tanker. "Many flag states wouldn't lift a finger," says Valentin Schatz from the Institute for Maritime Law and Maritime Trade Law at the University of Hamburg. For certain countries, the flagging of ships is a pure business model, "they put out the flag for money without having to do much".'

The so-called flags of convenience of Panama, Liberia or the Cayman Islands, for example, offer ship owners economic advantages: registration and taxes are low, social obligations and safety requirements are low, international treaties can be circumvented. The crews are often left behind.

At Nautilus International, on the other hand, we could trust from the start that Switzerland would vigorously carry out its obligations as a flag state and work on solutions. The shipping company ABC also fulfilled its duty of care and we were able to control the wage and social security obligations.

Nautilus and Swiss authorities secure wages

However, the farce did not end with the release of the original crew. The ship remained arrested off Nigeria, because Nigeria tried again and again to proceed with various legal objections. Switzerland and the shipping company sued for damages – in order to recoup trading losses worth millions and expensive renovation due to the damp climate.

The legal dispute over money between Switzerland, ABC and Nigeria and the ship continues to this day.

In the course of 2020, the new crew that ABC was able to recruit to ensure the ship's maintenance also suffered from the situation, because without revenues the owners were facing difficulties to meet all of their obligations and could not pay its wages from summer 2020.

Some of the seafarers – this time also many from the Philippines – had to wait for four months' wages until we and the Swiss authorities had found a solution to finance the wages.

Even this would not have been possible without the Swiss flag.

Nautilus was also able to organise a small support from a solidarity fund in Switzerland for the families of the seafarers during the four-month waiting period.

Swiss flag preserved

The case shows once again why it is better for seafarers to work under the protection of a flag state with a functioning maritime authority and strong diplomacy. In this respect, Nautilus is committed to ensuring that the Swiss flag is retained.

As we have reported, the Swiss fleet is under great pressure, both domestically and due to the threat of downgrading by the Paris MoU which ranks vessels, and which investors and customers use to assess the quality of a ship or a fleet. Because there have been two major bankruptcies by Swiss shipping companies in the recent past, ships have been arrested more often and therefore received fewer inspections, which are important in the ranking of the Paris MoU, and the Swiss flag is under threat to be blacklisted. To prevent this, Switzerland passed a new ordinance last year allowing shipowners to change flags at short notice in order to circumvent such a downgrade.

However, from the perspective of Swiss industry, there has been a risk that shipowners will be permanently flagged out and that Swiss shipping is slowly facing its decline. This has mainly to do with the increasingly difficult competitiveness of the Swiss fleet, for example due to the lack of tonnage tax, which disadvantages Swiss shipowners in an international comparison, or an outdated Swiss shipping law from 1953. The Swiss shipping companies have therefore started a campaign to promote Switzerland as a business location within Swiss politics and the public.