Masters as Captain, Management and Scapegoat
Master is a qualified seafarer in Command of a Merchant SHIP. Under common Law, Ship’s register evidences this plus her Nationality, Port of registry and mortgages if any etc. Master is obliged to produce it on demand and declare her nationality at all times.
A ship has two legal personalities.
In Rem. i.e. The Res. A ship as a thing of Value.
In Personam. i.e. a ship as a person like us.
She can do wrong, incur liabilities and be held responsible. Collision is a typical example where the ship herself is responsible in Law to make reparations. She can be held liable for causing pollution, in addition to other remedies available to those who suffer from it. A Ship can have contractual obligations independent of her owners. For example a supplier or repairer has a right directly against the ship if he is not paid for supply of essentials such as stores/bunkers or for carrying out necessary repairs to her. Salver has a right, directly against the ship, for salvage services rendered to her. Owners usually discharge such liabilities, but if they don’t, she can be arrested and made to meet her obligations and liabilities, limited to her own value.
But a ship has no eyes, ears hands or brain. Therefore she functions through the Master who is her Alter Ego. His orders commit HER to a collision for which SHE is liable. His signatures on HER behalf, commit her to a debt which SHE must pay if owners dont. A ship can also exert her rights such as exercising lien, for unpaid freight earned by HER on cargo she carried.
When we meet Master of a ship, we know who he is. But what are his responsibilities obligations and liabilities, especially in light of her legal personality? What laws are applicable to him and to his ship? To whom, to what extent and under what laws is he accountable?
Common Law prevails in most commonwealth countries & USA. It follows Statutes and earlier decided cases in courts. Once there is clear decision of a competent court, it is accepted in subsequent cases on same point as a principle of law, unless overruled by a higher court or by statute. Because West European countries, especially UK and USA, dominated commercial Shipping and International trade in the 20th century, modern International Maritime Law is largely based on Common Law. Civil Law system, prevails in Scotland, continental Europe, South Africa, and Latin America.
Historically and traditionally, when choices have to be made, lives on board take precedence over the ship & cargo. Master is obliged to do every thing in his power for safety of his ship without endangering lives on board. All seafarers have heard tales about Captains of ships going down with the ship after ordering all hands on board to abandon her. This practice probably originated with the age-old tradition, which identified the Captain with the ship as her Alter Ego. If the ship perished, the captain perished with her as her second self. The nearest historical evidence of this fact is that of the TITANIC. Since the vessel was in imminent danger, Master evacuated every person on board he could, and did not even think of saving himself. In this case, a lot of passengers also went down with the ship because she did not have enough life boat capacity.
Nothing could release a Nautical Professional from his traditional duty to answer to ‘SOS’ except danger to his own ship or life on board. It is an International legal duty. It maybe lives on a distressed ship, a man adrift at sea, or refugees in boats. Master maybe carrying perishable cargo, OR rushing to make a C/P cancelling date! Apart from delay at sea to pick up person(s) in distress, he may get into problems with immigration authorities at his next port. This may tempt him to turn a Nelson’s eye and sail by! But Article 98 of UNCLOS does not allow him a choice. Chapter V rule 10-A of SOLAS, does not allow owners or charterers to interfere with his decision in this regard for the sake of commercial considerations.
Under rules of UN High Commission for Refugees (UNHCR) 1983, if a master rescued Vietnam refugees, Governments of UN member countries co-operated to disembark them at his port of destination, with as little loss of time to the ship as possible. UNHCR reimbursed owners some amounts so that financial considerations did not influence Master’s decision to rescue. But if it was a different port than the one his ship was originally bound for, port in THAT country was not obliged to take on this responsibility. Therefore master could not deviate to the nearest port unless deviation was for safety of life on board. Even today, if in any doubt especially if he wants to deviate to another Port, Master should seek guidance from owners, and P&I Club.
In a 1987 British case, charterers argued in arbitration that vessel was OFF HIRE during the time port authorities refused to allow her into port with 290 refugees on board, AND for time taken to disembark them! Arbitrators found that the vessel was “efficient in herself and fully capable to perform the services required of her.” Therefore she was not off hire. Courts endorsed this decision and held that charterer takes a vessel with all obligations which normally attach to her under her national and International Laws, and this is one of her legal obligations. This is established Law now as it is reasonable to look upon the rescue as legally consistent with owners obligations and charterer’s use of the ship, given Master’s over riding duty to save life at sea under Maritime conventions Act 1911, and Art 98 of UNCLOS.
In some countries, only nationals can command their ships. Till 1995, Master, Chief officer and Chief Engineer of British ships had to be British. Today numerous Masters sail the high seas in command of foreign flag vessels. But Master commands a ship in accordance with Laws of the Flag State, regardless of his own nationality or nationalities of his officers, crew and passengers. He must ensure compliance of safety, manning and other Maritime, civil and criminal matters on the HIGH SEAS in accordance with those Laws.
In a recent case, two phillipino seamen killed a Japanese 2nd officer on a Japanese owned but Panama registered VLCC on her way to Japan. Despite the fact that the deceased officer was Japanese, and the ship arrived in Japan immediately after the crime, the seamen were deported to Panama, for criminal prosecution even though they were nationals of Phillipines. This is because under UNCLOS only the Flag State has jurisdiction over such a crime, committed on a ship while she is on the high seas and the crime was committed in International waters.
Under UNCLOS 1982, Sovereignty of a Coastal State extends to an adjescent belt of sea, breadth of which is 12 miles. Roadsteads normally used by ships to anchor and for cargo work, are included in territorial sea. Since all countries are Sovereign within their own political boundries, it naturally follows that all ships within their political boundries and territorial waters are subject to their jurisdiction and laws.
Thus, all ships must comply with Laws of the Coastal State even while navigating through its territorial waters without entering any of her ports. Articles 18, 21 and 39 of Unclos stipulate how a coastal State may apply its Civil and Criminal Laws to Foreign Flag Vessels including ships in its territorial waters on innocent passage i.e without entering or without proceeding to or from her internal waters. When in the territory of a foreign country, a merchant ship flies the flag of that country on her foremast to show courtesy, and to proclaim that she and all on board her, submit to its Laws and jurisdiction.
In a recent incident, a seaman was caught fishing from stern of his ship anchored in US territorial waters. Both Master & the seaman were arrested for contravening US Law which requires a person to have a licence to fish. The seaman was not a National of USA, and was fishing from taffrail of his Foreign Flag vessel. Even so US Law applied even though it is usual for seamen to throw their fishing lines overboard in their leisure time in all waters, all over the world.
Quite obviously, a merchant ship is operated by owners for profit. Master is their agent and Chief Executive on board and is answerable to them for her successful commercial operation subject to laws applicable to him and his ship. But for this he must understand how such laws and rules affect his ship at any given time in any country. In the past few hundred years, even though owners and Masters may have had their problems, shipmasters acquired an aura of authority, social respect and economic professionalism. But today, with the owner’s office having shifted to his bedside, Master has become more of a floating office manager. This tends to take away his authority without exonerating him of his responsibility.
Master is custodian & bailee of cargo, but his authority on cargo is limited by Bills of Lading. He can bind the ship, her owners and cargo to GA and Salvage. Increasing complexity of Management and handling of ships and cargo, coupled with rapid developments in National and International Laws make ever increasing demands on him. He must understand the techno legal issues involved in specific situations and know how to avoid pitfalls to make her a good commercial unit for owners.
He must learn how to sift out pulls and pushes of commercial interests to ensure that no untoward commercial or legal liability attaches to his ship. He must know the WHY, HOW AND consequences of his orders & actions. Even so, no two situations on board ship are alike. Therefore he should always seek expert advice from owners and his P & I club, readily available to him NOW through modern communication systems. But he must know when to seek advice, assistance and instructions.
Only a born American National with American certificate can Command a US Flag Ship. In some countries, only those who hold their own state certificates, can command their ships. For example Laws of Panama only allow Panama flag vessels to be commanded by holders of a Panama Certificate of Competency.
Therefore, presently some Masters hold another independent Master’s Certificate issued by the Flag State, unconnected with their national certificate. In such situations they are accountable to the State which issued THAT certificate by virtue of which Master was commanding the ship at the relevant time.
On 12.8.86, a Panama Flag vessel sank 232 nautical miles off Indian coast. Indian Mercantile Marine Department filed a complaint in court under Sec 363 of Indian Merchant Shippinmg Act 1958, charging the Indian Master with incompetence and misconduct, and calling for cancellation of his Indian Certificate under part XII of the Act. Under Indian Merchants shipping Act 1958, Govt of India can cause a certificate of competency to be granted, but it can be cancelled only by resort to Indian courts. Captain filed a petition that Indian Courts had no jurisdiction in this case. Fact that he was an Indian National AND also held an Indian Master’s Certificate had no relevance. He commanded a Panama flag ship by virtue of holding an Independent Master’s certificate issued by The Panama Govt. The ship sank in International waters. Therefore Merchant Shipping Act 1958 did not apply.
Held by Supreme Court of India:-
1. Alleged negligence, having occurred to a foreign flag ship, 232 nautical miles away from India, i.e outside Indian territorial waters, the Act would not apply.
2. MSA 1958 could apply to her only if she was within India, including Indian Territorial Waters i.e at a distance of twelve nautical miles from baseline. Therefore this casualty is not a shipping casualty as envisaged in section 358 of MSA 1958.
3. If Master held a certificate under law of any other country but incompetence or misconduct occurred on board an INDIAN Ship ANYWHERE, the Act will apply.
4. Under Art 2 and Sec 3 of Unclos, and Indian Merchant Shipping Act, all ships are under Indian jurisdiction, within Indian territorial waters even while on innocent passage. Therefore the Act applies if the accident occurred within territory of India and inquiry affects Master of a foreign ship who holds a certificate from another country. In that case Indian Govt. may hold an inquiry and transmit a report together with evidence, to proper authority in that Country under sec 363 of MSA 1958.
Above judgement of the Highest Court in India, endorses the accepted Law that:-
1. Under Art. 91 of UNCLOS, ships shall be subject to exclusive jurisdiction of the flag State on the high seas. Therefore if a casualty occurs on a foreign flag vessel on the HIGH SEAS, an inquiry can only be conducted by the flag state.
2. Under Art 97 of Unclos, only issuing Govt. can question holder of a certificate of competency regardless of his nationality. Therefore if Master of that ship had commanded her by virtue of holding an Indian Certificate, the Flag State could transmit findings of that inquiry to Indian Govt. His competence to hold the Indian certificate and his conduct could then be questioned in Indian Courts under MSA 1958. But in this case, he did not Command that vessel by virtue of his Indian Certificate. Even if the Flag State conducted an inquiry AND had found him incompetent, or guilty of misconduct, they could only cancel his Panamanian certificate if they wished.
This case even though factually the Panama certificate was issued to this Master on the strength of his Indian Certificate of Competency, but legally, it was issued after Panama Govt authorities OR their authorised agents in India, checked the Master’s sea service record, examined him and found him eligible and fit to hold an independent Panama Master’s Certficate of Competency.
Since this judgement by The Supreme Court of India, STCW convention has made certain changes. In time it may be no more possible for a seafarer to hold two independent certificates of Competency. Panama authorities are already endorsing their Certificates with a statement that it is issued because the holder has an Indian Master’s Certificate. But all this is now in a flux and may change further.
A Master may delegate his authority but not his responsibiity or accountability. Under U.K. Merchant Shipping Act 1995 a master is exposed to civil, disciplinary, and criminal sanctions whilst on board a UK registered vessel or within the UK jurisdiction. He can be guilty of an offence where his ship is found to be in a dangerously unsafe condition. He may find himself convicted for something of which he was totally unaware. Indian Merchant Shipping Act has similar provisions. A Master may also be under a personal liability to any person who has a cause of action against him in accordance with general principles of the Law of Tort under which each of us has a duty of care not to cause harm or injury to fellow man through our actions and inactions. In the same vein, Master has a duty of care not to cause harm or injury through his acts of omission and/or commission, to anyone who is on board his ship bona fide. This duty is not based on any contract or agreement between the wrong doer and the wronged. For example if a stevadore labourer on the ship is injured while on board, because a manhole was left open in a dark tween deck, those responsible can be held liable, for their negligence. If no one else is identified, Master is accountable.
ADLER v DICKSON, is a cardinal case concerning duty of care and Master’s liability. Decided in 1955 by the Court of Appeal in England, is good Law till this day. This was a case of personal injury suffered by a lady passenger on the P&O ship HIMALAYA who fell down and injured herself while climbing the ship’s gangway at Genoa.
She sued P&O and claimed medical expences and damages. But P&O denied liability because under clauses printed on her ticket, the passenger contracted with shipowners, absolving them for all their acts of negligence, omission and commission including those of their employees. She then sued the Captain and Bosun of the ship in Tort and claimed that because she had a right to be on the ship by virtue of her ticket, she was entitled to safe access to and from the ship. As professionals responsible for safe running of the ship, Master & Bosun owed her a duty of care to ensure that the gangway was safe for her use. It was further argued on her behalf that the shipping Company could not contract out of THIS personal obligation of Master and Bosun through the clauses on her ticket as it was outside the contract of carriage. UK Court of Appeal upheld this argument and awarded heavy damages in a judgement against the Master and Bosun in person, for not discharging their duty of care.
Master is given authority by the flag state to maintain good order on board and meet reasonable safety and pollution prevention standards set out in national and International Maritime legislation, increasingly influenced by UN and IMO Conventions. In today’s scenario, it has become a practice to hold the ship and Master criminally responsible for anything and everything under local laws. Coastal states have a range of provisions which give them powers to prosecute masters for infringements. Among many such laws are included rules against:-
1. Violations of traffic schemes and Rule of the Road, groundings and Collisions with other ships and fishing vessels.
2. Major and minor pollutions including illegal dumping of garbage or excessive noxious emissions from their ship.
3. Drugs, contraband, illegal immigrants and other Customs related infringements
Because of international nature of his work under the most varied legislation in different countries, consequences of errors, omissions or negligence of crews, causing pollution, deficiency in seaworthiness and cargo-worthiness of the ship, and even financial viability of the owners, may lead to ship arrest and criminalisation of the Master. Owner can rarely be made personally accountable even for causing pollution because of the peculiar nature of a ship’s personality.
It is the ship which has caused an offence or pollution and not the owner. Therefore the maximum that can happen to the owner is that he may have to abandon his ship in hands of those who have sufferred from any of it.
Before Torrey Canyon spilled nearly 90000 Tons of oil when she stranded on Sudbury Reef in 1967, there were no known cases of criminalisation of masters of ships. In this case it was reported that Master of Torrey Canyon, tried to save two hours of steaming time by taking a shorter route to avoid four days berthing delay. In the process the ship ran aground due to insufficient depth of water enroute. Many beaches on both coasts of the English Channel were polluted, not to talk of millions of Dollars worth of loss to fisheries and other civil and marine infrastructure.
In Law whether a ship sinks or is abandoned by her owners, Master is accountable as her Alter Ego not only to the coastal State but also to Riparion States whose coasts may have been polluted. Yet this Master was not criminalised for what could best be termed as his error of judgement which caused this disaster. But today, every time there is a pollution incident or a Marine accident or breach of port regulations, a collision or starnding, the first action of the local authorities is usually to detain the master. He may have lost his ship through no fault of his, and may have been one of the few survivors from an appalling tragedy. But he is thrown in jail as a hostage, and subjected to harsh interrogation through days and nights. Of late, there have been many cases of unjust treatment and detention of shipmasters without trial even when they were generally innocent. This incarceration without due legal process is a matter of grave concern. Following examples demonstrate vulnerability of Masters under foreign rules and Laws, even when they were themselves victims having lost their ships.
The Maltese Flag, 25 year old, M.T Erica of 37238 DWT, broke into two and sank in the Bay of Biscay at 0820 hrs on Sunday December 12, 1999, in poor visibility, gale force winds and upto six meters swell, while enroute from Dunkirk to Livorno, loaded with 31000 tonnes of fuel oil.
Media and International maritime community praised the Master for his seamanship which ensured rescue of all 26 crew members by helicopters from ship’s life rafts and the sinking stern section of the ship. Yet Master was arrested in France. Released under extreme International pressure, he was not allowed to go home to India till February 2000.
ERIKA had passed her Annual Survey just 18 days before she sank. Her Safety Construction, Load line, Safety Equipment Certificates, ISM Code, DOC and SMC were all valid until 8/03. But the ship was described by the Media as an old RUST BUCKET. It is difficult not to accept that Master knew or ought to have known overall condition of the ship, even though fully certified and in CLASS. RINA & International Association of Classification Societies (IACS) were severely criticised by the Maritime World for gross dereliction of duty by their surveyors.
Sinking of the 1976 built tanker Prestige on 19.11.2002, because shipside plates fell down in bad weather, is another case. Jailed in Spain and released after 83 days on an exhorbitant bail of Euro three million, Master is still not allowed to go home to Greece even though no case of error of judgement has yet been made out against him much less that of negligence what to talk of criminal negligence warranting arrest. Yet those more likely to be responsible for this tragedy, remain untouched and free to point fingers at each other AND all and sundry in self defence!?
Capt. S. Paloba, master of the Pakistani flag vessel Al-Hadi which sank off Bombay on 16.08.1996, was held responsible for causing pollution and detained for over 10 months by Indian authorities.
Owners of M.V. Delta Pride a Pakistani Flag vessel, filed for bankruptcy in March 1998. While she anchored in US territorial waters, the vessel was auctioned by court orders. Crew wages amounted to USD 270.000/-. Instead of receiving their rightful wages out of sale proceeds of USD 350.000/-, as per law, Master and crew were taken into custody and kept in immigration detention for over six months.
No Master is above the law. He is responsible for gross negligence and for substandard operations involving danger to life and property including criminal liability for pollution emanating from his vessel and must be accountable. But law must be fair to support good practices, and impose penalties for infringements. Also Criminal liability for pollution emanating from vessels must be equally applied to shipowners, ship surveyors, classification societies, port State control inspectors and others alike depending upon who is at fault.
Also to hold any one criminally liable there has to be either criminal intent or criminal negligence and not just oversight or acts of Nature, such as sinking of a ship in bad weather through natural causes as has happened in the above cited cases. But most coastal states follow Law of the Jungle, ignoring International Law, Conventions and traditions when it suits them. This has made life just about as difficult for Ship Masters as can be.
Best defence of seafarers is to ensure that all international regulations, directives and required procedures are properly complied with, implemented and monitored at all times inspite of what owners may ask. But Masters especially those serving on substandard ships of flags of convenience, need support of the International Maritime Industry to stand up to their owners and managers, and protect their legitimate rights against unacceptable commercial pressures which compromise their professionalism for maritime safety and environmental protection. It is imperative that the international maritime authorities discontinue the current practice of holding the shipmaster hostage whenever a maritime casualty occurs.
Seafarers deserve that their liberties are not infringed illegally. There is urgent need to design an equitable system to ensure that not only Masters but all seafarers can obtain adequate and competent legal advice and assistance throughout the world free of cost to them. This can be done through compulsory P & I insurance regardless of divergence of interests of owners vis a vis those of seafarers.