Master and Crew PDF

09-10-2024 5. MASTER AND CREW 64 64 CONTEXT AND SCOPE ̶ In seafaring: variety of roles and ranks ▪ Each with specific responsibili...

09-10-2024 5. MASTER AND CREW 64 64 CONTEXT AND SCOPE ̶ In seafaring: variety of roles and ranks ▪ Each with specific responsibilities integral to successful operation of ship ▪ Notable distinctions (in arrangement and nature of functions, hierarchy and used terms) Merchant ships  military ships Cargo ships  passenger ships ̶ Terminology ▪ Seafarer / sailor / mariner: umbrella term for persons working on board ship ▪ Master (≈ ‘magister navis’): top of hierarchy commands ship in accordance with instructions shipowner ‘captain’ more often used in context of military ships ▪ Other officers = ‘mates’: supporting master and managing subordinate crew ▪ Subordinate crew = ‘ratings’ 65 65 1  09-10-2024 CONTEXT AND SCOPE ̶ Ship’s crew: typically divided into categories (according to function and skills) ▪ Deck department Primarily responsible for navigation of ship (bridge team) + supervision of cargo operations Headed by chief/first mate/officer: second in command answers to master for general safety and security of ship/cargo/passengers/crew Junior deck officers: second/third mate Ratings: able seamen (AB; > 2 years experience at sea) + ordinary seamen (OS; apprentice) supervised by boatswain / bosun (≈ ‘bootsman’) o Most senior rating => foreman of deck ratings o Operational link between staff (senior and junior officers: managerial tasks) and workers 66 66 CONTEXT AND SCOPE 67 67 2  09-10-2024 CONTEXT AND SCOPE ▪ Engine department Responsible for operation/maintenance/repair of propulsion machinery, support systems and other equipment Headed by chief engineer: supported by other engineering officers + engine ratings (e.g., motorman, oiler, wiper) ▪ Electro-technical department Responsible for all electrical systems on ship Headed by electro-technical officer, who answers directly to chief engineer Although highly important, some ships do not carry electro-technical officers on board (duties assigned to officer engine department) Due to technological advancements in terms of communication: position of radio officer has become less common ▪ Steward's department Responsible for general services on board ship (e.g., cooking, cleaning, accommodation, inventory) Headed by chief steward (sometimes also assuming role of chief cook) Wide variety of crew members (‘messmen’; e.g., cook, purser, cleaner, surgeon, chaplain) 68 68 CONTEXT AND SCOPE 69 69 3  09-10-2024 CONTEXT AND SCOPE 70 70 CONTEXT AND SCOPE ̶ Relevant treaties ▪ International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) (1978) Adopted by IMO International minimum requirements for masters, officers and deck personnel Significantly amended (e.g., Manila Amendments 2010) ▪ International Convention for the Safety of Life at Sea (SOLAS) (1974) Adopted by IMO Important because of provisions on manning levels of ships ▪ Maritime Labour Convention (2006) Developed by International Labour Organization (ILO) Comprehensive provisions on seafarer’s rights and conditions of employment 71 71 4  09-10-2024 CONTEXT AND SCOPE ̶ Muster roll (‘monsterrol’) ▪ Old tradition: all persons serving on ship sign up on muster roll at start of each voyage ▪ Includes names, ranks, ages and date of enlistment of all crew members ▪ Signed up on muster roll => noted in seaman’s book (‘monsterboekje’ / ‘zeemansboek’) Traditionally collected by master at start of each voyage and returned upon discharge ‘Seafarer’s passport’: certifies that holder is seaman (in accordance with STCW) compiles all personal information (including overview voyages and relevant training) ▪ Served as maritime labor contract between shipowner and seafarer (including employment conditions and wages) Abolished by Belgian legislation o Problems and abuse: seafarers barely aware of working conditions when signing up no copy provided => in conflict with general regulations on employment contracts Nevertheless: content muster roll still relevant for administrative purposes (≈ population register of all seafarers on board ship; useful within context of master’s function as registrar) 72 72 CONTEXT AND SCOPE 73 73 5  09-10-2024 CONTEXT AND SCOPE 74 74 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ̶ Complex legal status due to extensive competences ▪ Competences on board especially broad when ship is at sea ( in port) ▪ Entrusted command of ship by shipowner ▪ Usually bound by employment contract Unless master = shipowner Cannot be considered merchant + cannot be declared bankrupt ▪ Functions are extremely diverse Competences of public law  Leader of community on board ship, holding public authority in various respects Competences of private law  Navigational, managerial and commercial tasks ▪ Several traditional competences: outdated + fallen into disuse originally motivated by seclusion of ship at sea and resulting lack of contact 75 75 6  09-10-2024 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ̶ Public law competences/duties ▪ Civil registrar Record births and deaths ( marriages) ▪ Notary Draw up maritime testaments o Only valid if drafted during voyage at sea no possibility to go ashore and make use of regular notary testator dies at sea or within three months of arriving ashore o Cannot include officers on board ship as beneficiaries (unless relatives) ▪ Commander At sea: almost sovereign powers (“next after God”) to ensure public order successful conclusion of voyage safety of the ship, cargo and persons on board take coercive measures and commandeer everyone on board to that end (in exclusive interests of stakeholders) (e.g., detention, forced disembarkation) In port: cooperate with maritime police (Belgian ports) or consul and local authorities (foreign ports) 76 76 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ▪ Disciplinary judge Punish disciplinary infringements at sea in ports where no maritime police or consul is present Parties involved heard by master Imposed sanctions to be validated by Belgian consul in first port of call + maritime police in Belgian port of arrival recorded in ship’s logbook (together with infringements) Applicable principles o “Nullum crimen sine lege”: sanctions can only be imposed for infringements listed in law o “Nulla poena sine lege”: only sanctions listed in law can be imposed Fell into disuse + abolished by Belgian Shipping Code o Mere competence to establish disciplinary infringements o Competence to issue disciplinary sanctions: Maritime Investigation Board (‘Onderzoeksraad voor de Scheepvaart’) (already qualified to punish disciplinary infringements of masters and officers) o Nevertheless: does not weaken master’s power to maintain public order and safety on board ship 77 77 7  09-10-2024 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ▪ Investigating judge Investigate any crimes or misdemeanors committed on board ship Interrogating suspects, hearing witnesses, writing official report (‘proces-verbaal’) Assisted by officer Official reports o Recorded in ship’s logbook o Evidential value until proof of contrary o In first foreign port of call: official reports handed over to consul => may continue investigation => competent to disembark + transfer suspect to Belgian port (if deemed necessary) In first Belgian port of call: official reports handed over to maritime police => immediate transfer to competent public prosecutor => public prosecutor may detain suspect pending decision (if deemed necessary) 78 78 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ▪ Police officer Obliged to execute arrest warrant against person wanted or convicted by Belgian judicial authorities on board Belgian ship beyond Belgian territorial sea Arrested individual remains on board until return to Belgian port ship meets other Belgian ship willing to bring arrestee to Belgian port Recorded in ship’s logbook 79 79 8  09-10-2024 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ̶ Private law competences/duties ▪ Management and navigation of ship + commanding people on board Final, sovereign decision power regarding ship’s safety o Obliged to act in accordance with good seamanship Despite important precept of compliance with shipowner’s instructions (e.g., voyage trajectory, ports of call, management of cargo, equipment of ship) o Faults in operation of ship cannot be excused on basis of shipowner instructions o Consequently: shipowner instructions of purely nautical character other instructions that might jeopardize safety of ship or people on board  not binding, should not be followed by master! Further elaboration by reference to customs and general principles of maritime law (including good seamanship) o Creating flexibility o Allowing for adaptation to new developments in shipping o Eliminating need to include detailed list and description of all responsibilities Generally accepted duties/responsibilities o Be on board ship when entering or leaving port / performing any other difficult/dangerous manoeuvre o Stay on board ship as last man in case of emergencies (“the captain goes down with the ship”) 80 80 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ▪ Representing shipowner (+ serving interests other parties involved) Serve as representative and proxy of shipowner o Scope and content of mandate to a large extent determined by law (and certainly not only by contract) o Ability to perform legal acts in name and on behalf of shipowner (commercial acts without being considered a merchant) o Shipowner bound by legal commitments if established in accordance with competences attributed by law  Not: explicit declaration that master is representing other party proof that master was not competent to act + counterparty (ought to be) aware of lack of competence o Mostly agreements related to exploitation of ship (e.g., requesting pilotage/towage, buying equipment/supplies, ordering repairs, enlisting crew members) Belgian Shipping Code: specific conditions to limit competences o To adapt rules to current context and practice (modern communication; use of ship agents) o Master can only perform legal acts on behalf of shipowner: 1) in urgent cases (with a view to preserving rights of all interested parties) 2) in absence of (timely) instructions by shipowner if deemed necessary for operation of ship, successful completion of voyage, protection of marine environment or in best interests of parties involved 3) on basis of authorization issued by judge, consul or other competent government authority 4) on basis of explicit proxy arrangement (‘volmacht’) in accordance with ordinary law 5) in other situations provided by law (e.g., concluding salvage agreements) o General precepts  Where necessary and possible: request instructions and consult with shipowner  Inform shipowner of actions taken and answer for them 81 81 9  09-10-2024 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER Many aspects of this traditional representational responsibility: currently taken up by ship agents o However: designation of ship agent = without prejudice to mandate master Also: representational competences with judicial character o Represent shipowner in court in relation to cases pertaining to ship concerned o Notifications intended for shipowner in cases related to ship/voyage concerned can be made to master (or in absence master: highest ranking officer on board) Serving interests of other parties involved? o Master always obliged to serve interests shipowner, but also interests other parties where necessary (e.g., cargo owners) o Situations traditionally giving rise to master representing interests cargo owners  Refusal of goods by consignee at destination (obliging master to store cargo on land)  Lack of payment of freight (possibly leading to master retaining and having to store cargo on land)  Declaration of general average (partly in interest and on behalf cargo owners)  Conclusion of salvage agreement (also binding cargo owners) 82 82 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER ▪ Administration Manage and keep on board required ship’s books and official documents (e.g., property title, certificate of registration, tonnage certificate, certificate of seaworthiness, logbook, muster roll, complaints book [passenger ships], copies of bills of lading [cargo ships], receipts of payments/customs duties) Draft, submit and receive transport documents, declarations, reservations and other documents for fulfillment of obligations or preservation of rights Ship’s books and documents can be consulted by all interested parties Properly kept ship’s books can be considered evidence by judge o Relevant elements to assess evidential value: fulfillment of formalities, moment of submission, attached documents, confirmation of content by crew members or other people on board, … o Judge has authority to interrogate master, people on board and other interested parties In case of maritime casualties or damages: captain’s report / sea protest (‘scheepsverklaring’) o Filed on initiative of master OR ordered by competent judge on request of any interested party o Written document, unless judge demands personal oral submission o Can be consulted by all interested parties o Evidential value can be freely determined by judge (save in cases where it reflects content of properly kept ship’s books) o Purpose: protect shipowner or master from liability for damage to cargo or (other) ship if caused by perils of the sea ( older traditions: captain’s report after every arrival in port) (e.g., bad weather) 83 83 10  09-10-2024 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER 84 84 LEGAL STATUS, RIGHTS AND DUTIES OF MASTER 85 85 11  09-10-2024 LIABILITY OF MASTER AND CREW ̶ Potential liability master and crew (employees shipowner) for actions committed in course of their work => compensation for damage caused ̶ Three separate categories of liability ▪ Criminal liability ▪ Civil liability ▪ Disciplinary liability 86 86 LIABILITY OF MASTER AND CREW ̶ Criminal liability ▪ Special circumstances (in particular: risks involved) => specific penal + disciplinary regime for seafarers ▪ Long list of criminal offenses in Belgian Shipping Code Some aimed at master (+ officers), but most are applicable to all people on board Offenses specifically targeting master: abandoning ship, unlawful use of violence, posturing of authority (‘aanmatiging van gezag’), allowing illegal (dis)embarkation, abandoning sick/wounded persons, departing with insufficient/unsuitable supplies, disobedience towards government and resisting inspection, improper keeping of ship’s books, culpable negligence (‘schuldig verzuim’) of assistance to persons/ships in distress at sea, unauthorized sale or embezzlement (‘verduistering’) of ship, jettison/destruction of cargo/supplies, needless deviation of course with criminal/malicious intent, … Offenses applicable to all people on board: drunkenness/intoxication leading to disturbance, lighting fire on board, intentionally destroying equipment/supplies, smuggling, theft, abandoning post, disobedience (‘ongehoorzaamheid’) of safety orders, insubordination (‘weerspannigheid’), slander (‘smaad’) or battery (‘slagen’) against officer/other official, conspiracy (mutiny), abuse of authority, illegal command or performance of task, illegal embarkation, illegal sale of alcohol, forgery of ship’s documents and seaman’s books, intentionally stranding/destroying ship, surrendering vessel to pirates, participating in privateering (‘kaapvaart’) Also infringements of other rules/principles throughout Belgian Shipping Code: lack of ship registration, absence of ship documents/certificates, lack of ship insurance, marine pollution, illegal use of private maritime security companies, …  Possible criminal liability for shipowner as well 87 87 12  09-10-2024 LIABILITY OF MASTER AND CREW ▪ Seven sanction levels with defined minimum-maximum punishments (also including option of administrative fines) Separate part: various offenses linked to sanction level by specific provisions Levels 1-2 and 7: only fines (level 7: very high fines up to 8 million euro, constituting deterrent for shipowners) Levels 3-6: also possibility of imprisonment (level 6: life-threatening crimes; no administrative fine, possible life sentence) ▪ Repeated offenses Repeated criminal offenses within one year: doubling of maximum sanction Repeated disciplinary offenses during same voyage: possible criminal sanctions ▪ Aiding and abetting: normal rules Belgian Penal Code apply ▪ Criminal fines servants (‘aangestelden’) / agents (‘lasthebber’) for actions in the course of their duties: employer (‘aansteller’) / principal (‘lastgever’) liable (≈ vicarious civil liability)  For example: criminal fine master or crew member => shipowner liable to pay ▪ Criminal offenses master Competent authorities to investigate: maritime police + consul Master may be disembarked in case of serious offenses ▪ Jurisdiction: criminal offenses on board Belgian ship => ≈ committed on Belgian territory => can be prosecuted in Belgium 88 88 LIABILITY OF MASTER AND CREW ̶ Civil liability ▪ Civil liability master or crew rarely comes into play Limited personal solvency Widespread exclusions (e.g., Himalaya clause: popular clause inserted in B/Ls and C/Ps for benefit of master and crew) Vicarious liability shipowner entitling them to same rights and defenses as shipowner ▪ Contractual liability (vis à vis shipowner, on basis of employment contract)  Master or crew members can only be held liable in case of: o willful misconduct o gross negligence contractual exoneration possible o repeated minor negligence ▪ Extra-contractual liability (vis à vis third parties, such as cargo owners)  Master or crew members can only be held liable in case of: o acts beyond scope of employment (ultra vires) o willful misconduct / gross negligence / repeated minor negligence within scope of employment (e.g., abandoning ship during voyage) (e.g., improper keeping of ship’s books) ▪ Vicarious liability shipowner For all damages caused by actions attributable to servants/agents in course of duties (regardless of their immunity) If master or crew member also liable: co-liability in solidum = plaintiff can claim total sum from each of defendants Master ≠ employer or principal => no vicarious liability for damages caused by crew members / service providers (or passengers) 89 89 13  09-10-2024 LIABILITY OF MASTER AND CREW ̶ Disciplinary liability ▪ Also list of disciplinary offenses in Belgian Shipping Code ▪ Examples: simple disobedience, not being on post in time, absence or lack of vigilance during watch, drunkenness or intoxication without disturbance, quarrel at sea or on duty, irregular absence on board, secretly taking on board alcohol or narcotics, intentionally damaging equipment, use of equipment without authorization, lack of respect vis à vis others, … ▪ Old system of disciplinary liability fell into disuse Former maritime legislation: archaic sanctions (e.g., withholding of wages, confinement to quarters) Partly replaced by labor law mechanisms + increased criminalization ▪ Competent authority: Maritime Investigation Board (‘Onderzoeksraad voor de Scheepvaart’) ▪ Disciplinary sanctions Warning (‘waarschuwing’), reprimand (‘vermaning’), suspension/withdrawal of diplomas/licenses, temporary/permanent disqualification to serve on board ship in certain function, mandatory training/exam, fine ▪ Completely separate from criminal or civil liability Also comprises acts not leading to criminal or civil liability Can be applied in addition to criminal and civil liability ( non bis in idem) Disciplinary authority not bound by sentences issued in related criminal or civil cases (and vice versa) 90 90 14