Recently, a case in which a ship was fined by customs for exchanging seafood with local fishermen in a port in Togo, West Africa, has attracted widespread attention in the industry. In fact, bartering between crew members and local fishermen or other personnel is still uncommon on ships, but it is worth noting that such behavior is likely to have violated local customs laws and will be regarded as illegal smuggling of foreign goods by customs authorities.
1. Togo’s fine case
The P&I Society case described that while a merchant ship was waiting for unloading at the anchorage in the port of Lomé, Togo, the crew exchanged the contents on board with a local fishing vessel for 7 kilograms of seafood. Lomé customs authorities identified the above acts as smuggling through merchant ships, not only detaining merchant ships, but also imposing fines of up to 87 million euros, and the captain and crew could also face imprisonment for 1 to 3 years.
At the same time, the P&I Association in Togo also recently reported that they have been informed of three cases of customs penalties imposed by ships in the port of Lomé, where they exchanged used oil drums, bottled water and some waste materials on board for seafood or phone SIM cards with nearby fishing boats while waiting at the anchorage in the port of Lomé. When the fishing boats returned to port, they were seized by customs and confessed to trading with the ships. The freighter involved was also detained by Lomé Customs, who informed that the ship’s informal transaction constituted smuggling and would be fined between 60 million and 130 million euros.
2. Basis for fines in Togo
According to the feedback of Africa P&I and Budd Togo, different terms applicable to fine cases and different interpretations of terms may affect the final fine amount. These smuggling fines are so high because they are calculated based on the value of the exchanged goods, plus twice the valuation of all relevant ships, and a duty of 28% to 49% on the valuation of the exchanged goods and ships. In these cases, customs refused to discuss fines unless the fines were signed, which also led to the longer time the ship was detained.
The relevant regulations involved in ship fine cases in Togo are:
Art 361
The following shall be liable to confiscation of the object of fraud, confiscation of the means of transport, confiscation of objects used to conceal the fraud, a fine equal to four times the value of the objects confiscated and imprisonment of between one and three years.
Customs Code Article 60 – Paragraph 2
No goods can be discharged or transferred without written authorization from Customs. Discharge and transfer operations must take place in the presence of Customs at the times and under the conditions decided by the General Commissioner.
Customs Code Article 340- Paragraph 1
Captains of ships，boats，vessels and aircraft are considered liable for any omissions or inexact information found in their cargo manifests and, generally speaking, for any infringements committed on board their vessel or aircraft.
Customs Code Article 359 – Paragraph 1
The following offences are punishable by confiscation of the object of fraud, confiscation of the means of transport, confiscation of objects used to conceal the fraud, a fine equal to double the value of the object of fraud and imprisonment of between three months and one year any act of smuggling as well as any act of import or export without declaration when these offences relate to goods in the category of those which are prohibited or heavily taxed on entry, or prohibited or taxed on exit.
The term of imprisonment is increased to a maximum of ten years and the fine may be up to five times the value of the object of the fraud when the acts of smuggling, importing or exporting concern goods that are dangerous to public health, morals or safety, the list of which is determined by order of the Minister of Finance.
Customs Code Article 369 – Paragraph 2
The following are deemed to be undeclared imports: Those items which are prohibited or heavily taxed on entry or liable to internal taxes discovered on board ships within the limits of commercial ports or roads which were not duly included in the cargo and the ship’s store declarations presented before inspection.
Customs Code Article 372 – Paragraph 1
The following are deemed imports without declaration of prohibited goods: fraudulent disembarkation of articles cited in article 369, paragraph 2.
3. List of fines
In most jurisdictions where ships sail, there will be administrative penalties for violations of safety and environmental protection regulations. Under normal circumstances, fines for ships, captains and crew members are relatively minor penalties, but there are also some fines that are extremely large. Even in some jurisdictions, fines are considered part of the state budget. The object of fines is also mainly for ships, captains and crews, but there are also fines issued to companies.
Usually, ship operations involve many aspects such as diplomacy, administration, security, environmental protection, etc., and there are various behaviors that may be fined, including but not limited to the following:
â—¾ Violation of the International Maritime Collision Avoidance Code and national navigation safety regulations.
â—¾ Violation of navigation instructions issued by the local traffic management department.
â—¾ The vessel’s trade document expires.
â—¾ The cargo volume of the ship does not match the bill of lading, and the short cargo may be overloaded.
â—¾ Customs statements, manifests and crew lists do not comply with regulations.
â—¾ Missing or expired vessel certificate.
â—¾ Crew certificates are genuine, expired, or not signed at the place of signature.
â—¾ The declaration of materials, spare parts, medicines and personal belongings of the crew on board is incomplete and non-compliant.
â—¾ Expired drugs are available in the ship’s pharmacy.
â—¾ The ship’s rations expire.
â—¾ Pollution to the marine environment.
â—¾ Violation of the requirements of the MARPOL Convention.
â—¾ There were bootleggers on board.
â—¾ Crew members leave the ship without permission.
â—¾ The crew fished in the harbor area.
â—¾ During the ship’s stay in port, it violates regulations, such as fire, maintenance, painting, and loading and unloading items.
â—¾ Ship flag flying incorrectly.
â—¾ Providing false evidence in port inspections or maritime investigations.
4. Measures to avoid fines
It is worth noting that not all fines will be covered by P&I associations, and the terms of the association only cover fines that members list risks in principle. In many cases where ships are fined, the penalty subject does not accept the guarantee and requires payment within a time limit. Otherwise, the ship will be detained and cannot be released, so it is also difficult to deal with the case of the ship being fined. This reminds our members and ships that they should pay special attention to port fine cases to avoid both economic and schedule losses caused by fines.
â—¾ After the voyage order is issued, the captain should understand the policy requirements of the port authorities with the local agent as soon as possible and prepare the arrival information as soon as possible.
â—¾ The voyage plan should refer to the route guide, port entry guide, agency information and local port information, and important reminder information should be highlighted on the electronic chart or captain’s order.
â—¾ A safety meeting is essential before arrival, and the captain should inform the crew of the port rules and regulations, especially when it comes to fines.
â—¾ After the ship arrives at the port, it should strictly abide by the regulations of international maritime conventions and the regulations of the port.
â—¾ The ship customs declaration form should be detailed and accurate, the crew list should be updated in a timely manner, and the transit cargo should not be forgotten to be declared.
â—¾ Regularly check the ship and crew certificates, declare them as soon as possible if they have expired, and do not ignore the signature of the crew certificate.
â—¾ Any safety and environmental protection operations during the vessel’s stay in port should be confirmed with the agent whether it is necessary to report to the port.
â—¾ It is strictly prohibited for crew members to barter with fishermen and dockworkers, and ship purchases, reception, and unloading of items should go through formal channels, and confirm the declaration with the agent in advance.
â—¾ In case of port inspection or maritime investigation, you must seek truth from facts and must not commit fraud, especially not to provide written form of perjury.
â—¾ In the event of a fine or threat of fine, please contact the association or the local agency in time.
