Worldwide, there are signs and placards throughout airports, train stations, seaports, and bus stops offering assistance to individuals who may be experiencing being held against their will.  They often pose a series of questions along the lines of the following:

 “Is someone . . . holding your passport or personal documents; threatening you or your family; controlling your movements; and/or forbidding you to go anywhere or speak with anyone you want.” 

These are tale-tell warning signs of human trafficking, involuntary servitude, and modern-day slavery.  The posted signs are jarring, but they are not just for individuals to reach out for help, but to raise awareness for the public to be on the lookout for distressed individuals in need. There is no dispute that the persons being held against their will is a bad thing and has no place in the modern world.

However, in the United States, there is a government sanctioned regime whereby foreign seafarers are routinely held against their will as involuntary detainees and material witnesses in MARPOL/APPS prosecutions.  Pursuant to 33 U.S.C. §1908(e), the Coast Guard (and Customs and Border Protection acting at the Coast Guard’s instruction) can revoke and refuse to reinstate a foreign flagged vessel’s departure clearance until surety satisfactory to the Secretary is posted.  Such “surety” takes the form of an “Agreement on Security,” which requires not only the posting of a financial undertaking by the Vessel’s Owners and Operators, but also requires the removal of seafarers from the Vessel.  It is standard for the Coast Guard to insist that the Captain and the entire Engine Room Department be disembarked from their shipboard home, turnover their passports/travel documents, and remain in a hotel within the federal district where the matter is pending  for an unknown and unlimited amount of time during the government’s investigation.

The seafarers are not parties or signatories to the “Agreement on Security.” When a seafarer asks to go home or to have his passport returned to him, the government denies those requests. When a seafarer applies to the Court to have his travel documents returned or to have his deposition taken so he may leave the United States, the government opposes the requests.  Typically, the government will implement some combination of the following procedure to block a seafarer’s right to departure: 1) claim that the crewmember is in the United States voluntarily; 2) argue that there is no right to a deposition because criminal charges are not yet pending; and 3) if all else fails, obtain a material witness arrest warrant pursuant to 18 U.S.C. § 3144 to ensure that a seafarer remains for trial. The purpose of the material witness statute is to secure the presence of a witness who possesses information material to a criminal proceeding.

Some district courts have found that seafarers held pursuant to an Agreement on Security and/or material witness warrants in MARPOL/APPS cases were functionally detained as a result of this arrangement, even if not formally incarcerated, and therefore entitled to have their deposition taken so that they could return to their jobs and families abroad.  See, e.g.  In re Zak, 2017 U.S. Dist. LEXIS 222937, *17 (D. Me. 2017); United States v. Dalnave Navigation, Criminal No. 09-130, 2009 U.S. Dist. LEXIS 21765, 2009 WL 743100, at *2 (D.N.J. Mar. 18, 2009); Mercator Lines Ltd. (Sing.) PTE Ltd. v. M/V GAURAV PREM, 2011 U.S. Dist. LEXIS 153429, *28-31 (SDAL 2011).  However, even in those matters, the seafarers had to complain of detention for many months before the Court took action.

In two (2) recent cases, U.S. Magistrate Judges in the Eastern District of Louisiana and Southern District of California have refused to order depositions, instead finding that the government’s interests in completing charging decisions and live testimony of witnesses was of greater interest than the rights and liberty of the individual seafarers.  See, e.g., In re Joanna, 2021 U.S. Dist. LEXIS 114281, (ED La. 2021)(finding that the prosecutors’ subjective intent of the use of the material witness warrant was not reviewable, so long as the warrant was facially valid)(citations omitted). In another recent case, United States v. Evridiki Navigation, et al., in the District of Delaware, the Court finally ordered Rule 15 depositions after the crewmembers were detained for several months by government officials on the basis their testimony would be significant to the investigation and prosecution.  When the crewmembers returned for trial six (6) months later, the government shockingly did not call any of the seafarers as witnesses in the case.

The actions of the government is all the more egregious compared to how the material witness warrant statute is routinely used in other criminal matters in the United States.  For example, in U.S. v. Whited, the Court found that Christopher Cambron had material information relevant to a pending criminal matter in which the defendant was accused of armed robbery of at least seven (7) businesses.  Due to Mr. Cambron’s history of drug and alcohol abuse, the government sought a material witness warrant to keep him in custody to ensure his availability for trial. United States v. Whited, 3:21-cr-29, 2022 U.S. Dist. LEXIS 230521 (E.D. Tenn. 2022). The Court agreed and ordered Mr. Cambron detained.  However, the District Court directed his deposition to be completed within a week and Mr. Cambron’s deposition was completed the day after Christmas on December 26, 2022. He was released the next day after spending less than seven (7) days in custody. Similarly, in U.S. border cases, material witnesses are often detained, deposed, and then released within a matter of days. See, e.g., W.D. Tex. Local Criminal Rule 15b (setting out the procedure for deposition and release of material witnesses and requiring release within 24-hours of deposition or 45 days of first appearance in Court, whichever occurs sooner).

So why are seafarers, who are historically recognized as ‘wards of the Court’ to be afforded special treatment and protection, abused by the system in MARPOL/APPS cases. The reason is simple: the crewmembers are pawns utilized by the government as an additional pressure point on the Owner and Operator in these prosecutions.  The expense of paying for the total wage salary, per diems, hotel costs, and local travel expenses for the crewmembers detained in the district can reach $30,000 – $50,000 per month (or more).  Meanwhile, seafarers who most times have done nothing wrong, are forced miss important life events: births, deaths, anniversaries, family obligations, etc; a result that is all the more inhumane and disproportionate when considering that the US Courts routinely utilize remote appearances and/or video recorded deposition testimony in lieu of live, in-person testimony.

Source: Chalos & Co