Safe manning, hours of work and watcbkeeping
A 1997 SI gives effect in respect ofthese matters to STCW 95 and requires that you ensure that your ship does not pro ceed to sea unless there is on bo ard a valid safe manning do cument and that the manning of the ship complies with that document. In other words, you are no longer allowed to sail short-handed.MSNI682(M) explains that 'the responsibility to ensure that ships are safely, sufficiently and efficiently manned rests with owners and managing operators', which appears to absolve you as master from responsibility. However, the SI provides that the master must ensure that the watchkeeping arrangements for the ship are at all times adequate for maintaining safe navigational and engineering watches, having regard to Chapter VIII of Section A ofthe STCW Code. You must also give directions to
the deck watchkeeping officers responsible for navigating the ship safely during their periods of duty, in accordance with Part 3-1 of Section A VIIII2 of the STCW Code and any requirements sp ecified by the Secretary of State (which in practice means the Maritime and Coastguard Agency). It may be a relief to know that responsibility for giving directions for engineering watchkeeping arrangements is the chief engineer's, and that he can be fined up to £5,000 for breach of that duty.
The Safe Manning Regulations further require you to ensure that all seamen who are newly employed in your ship are given a reasonable opportunity to become familiar with the ship's equipment, operating procedures and other arrangements needed for the proper performance of their duties, before being assigned to those duties. Hopefully you will have enough time in port!
It is the ship operator's duty to ensure that a schedule of duties is produced setting out hours ofwork and rest periods, but before this is done you must seek the views of your officers and of the ship's safety committee or the seamen or their representatives or a trade union, as appropriate. The final decision on the schedule rests with the operator, who has the responsibility to ensure that it is safe for the ship and the performance of duties, but you are required to ensure, as far as reasonably practicable, that the schedule is adhered to.
Documents
The Safe Manning Regulations also requireyou to ensure that there are on board at all times all original certificates and other documents issued pursuant to the STCW Convention (including the 1978 version) indicating the qualifications of any member ofthe crew to perform his or her professional functions.
Engagement and discharge
Regulations require you to maintain two Lists of Crew - one of seamen who are engaged on a crew agreement and one of those who are not, e.g. riding crew, supernumeraries and ship staff contracted to another employer. You usually have a duty to act as the employer's representative in signing the proper crew's agreement, but since you are not employed on the same terms, you are not required to 'sign on' with them and should instead put your details on the ALCI (b). (Your own contract may be contained in written or oral instructions from directors, superintendents or the superseded master, and in the custom and traditional practice of masters.)
Inspections
You must make weekly inspections ofprovisions, water and the crew accommodation and record the results in the Official Log Book. These, like inspections of LSA and fire appliances, may be delegated, but legally they remain your responsibility.
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Musters and drills
You are personally responsible for compiling the muster list, keeping it up to date and ensuring that copies are displayed conspicuously throughout your ship. You must ensure that every crew member participates in at least one boat drill and one fire drill each month, and in a passenger ship must hold drills each week. Your duties are well-detailed in M GN 17;
if every SI was so comprehensively explained, the master's legal duties would be much easier to define, ifno less difficultto carry out!
Health and safety law
The Health and Safety at Work Regulations 1997 consolidate the old SORADO Regulations and Health and Safety: General Duties Regulations and provide that the master must, with the Company and employer, provide the necessary facilities to enable the 'comp etent person', safety officer and safety representatives to carry out their statutory duties under the regulations. The general duty of ensuring the health and safety of workers and other persons on board is that of the employer, but you, as the employer's representative on board, are normally expected to
carry the heavy practical burden.
Ancillary health and safety regulations cover protective clothing and equipment, means of access, entry into dangerous spaces, safe movement on board ship, guarding ofmachinery and safety of electrical equipment, and hatches and lifting plant; compliance with corresponding chapters of the Code of Safe Working Practices for Merchant Seamen will ensure that obligations under these SIs are met. The 1998 edition of the Code (which must be carried), also contains detailed advice on how to make risk assessments and carry out health surveillance; these onerous and time-consuming duties are imposed by the HSW Regulations on the employer, but their implementation on board will probably be devolved to you.
Accidents
You must make reports to the MAIB of specified accidents and dangerous occurrences, while other 'hazardous incidents' such as 'near misses' may be reported either to the MAIB or to The Nautical Institute's MARS scheme. Should any person die on board, or if a crew member dies ashore, you must make a Return of Death to the Registrar of Shipping and Seamen in Cardiff, inform the next-of-kin within three days, and make entries in the OLB, including a list of the deceased's property.
Discipline
If the UK's Merchant Navy Code of Conduct is written into the crew agreement (which will be the case where your crew is on a 'BSF' agreement), you must deal with breaches of discipline in strict accordance with the Code. Since the Code only documents the basic principles of natural justice (as
interpreted in the UK), there is no reason why its procedures should not be followed in other cases, unless the crew agreement or the flag state's law
dictates otherwise. Under the Code you act as judge andjury, but must hear evidence from both sides, and record it, and give the accused a copy of relevant log entries. You may no longer impose fines, but can give oral warnings, written reprimands or-your ultimate sanction-dismissal.
The ship's employment Cormnon law duties
Contractual disputes have yielded judges' interpretations of the master's responsibilities with respect to matters such as deviation, voyage speed, tendering of notice of readiness and use of unsafe berths. You may not enjoy reading a mass of small print, but charter party and bill oflading clauses are meant to be read and understood by masters as well aslawyers!
BiDs of lading
Even where you do not personally sign Bills of Lading (BlLs), you must, as the carrier's selVant and agent, take proper care of the merchant's goods.
Whenever aB/L or sea waybill has been issued, either the Hague Rules or Hague-Visby Rules will almost always be part of the contract (see the Clause Paramount) and will impose a duty to 'properly and carefully load, handle, stow, carry, keep, care for and discharge any goods carried'. If the shipper demands, either the carrier, or the master, or the carrier's agent must issue a B/L to him, but you need not insert any inaccurate statements or give any details which you carmot reasonably check, such as weights.
On time charter
You should pay special attention to the text in a time charter party, including all those confusing deletions, insertions, side clauses and rider clauses.
You are obliged to carry out the charterer's orders as far as employment of the vesselis concerned andmust normally give him 'customary and reasonable assistance'. Remember, however, the Master's Discretion Regulations which prohibit any interference with your decisions concerning safe navigation.
Cargo-related SIs
The Carriage of Cargoes Regulations impose several duties and prohibitions on you with regard to acceptance, documentation, loading, stowage and securing of cargo, while other SIs define your duties regarding the carriage (and disposal) of dangerous goods andmarine pollutants, the carriage of dangerous ornoxious liquid substances in bulk, and the weighing of goods vehicles and other cargo.
At sea
General; routeing
Statutory regulations create many obligations on you as master when at sea, for example with respect
to using automatic pilot, sending distress messages, complying with Collision Regulations, sending mandatory ship reports and navigational warnings and taking mandatory routes. The conunonlawmeanwhile requires that your vessel takes the shortest route consistent with safety and the law, which is normally the customary route for the trade. Ifshe is not insured forgoing beyond Institute Warranty Limits, you must advise the owners when it becomes necessary to do so. Ordinarily, you are prohibited from taking your
ship into offshore safety zones.
Master's discretion
A 1997 SI prohibits the owner, charterer or manager, or any other person, from preventing or restricting you from taking or executing any decision which. in your professional judgement, is necessary for the safe navigation of your ship - a useful tool against those who might seek to undermine your supreme authority on board.
PoUntion prevention
In UK law you currently have duties under SIs dealing with prevention of pollution by oil, noxious liquid substances andgarbage. Within a few years, SIs covering airpollution and sewage will also be in force.
Discharging oil or a mixture containing oil into UK national waters, or breaching MARPOL's discharge criteria anywhere beyond them, willrenderyouliable for a fine of up to £250,000, while pollution by other substances carries amaximum fine of £25,000. You have a duty to report any 'serious harm to the environment' to the MAIB and any oil or NLS pollution to the nearest coostal state in accordance with M1614. Growing concern forthe marine environment has inrecent years added 'custodian and protector' to your various roles.
Distress, rescue and salvage incidents
Under the Distress MessagesRegulations youhave a duty render assistance (if you can do so without serious danger to your vessel and the persons there on) to any person in danger of being lost at sea - but not to maritime property, salvage being a conunercial venture. If you go in for it, Article 8 of the Salvage Convention - as enshrined in the MSA 1995 - will impose several duties on you, whether you are salvor or master of the property in danger; in either case you must exercise due care to prevent or minimise damage to the environment.
In port
Arrival
The contract in a voyage charter imposes a clear duty on you to tender notice of readiness at the earliest opportunity on the owner's behalf, the charterparty's wording should be carefully read, however, for detailed instructions. In most ports you will have statutory duties in connection with pilotage and to make declarations to customs, port health and immigration officials. There may be a local requirement for you to note protest, particularly if
landing damaged goods; your P&l club correspondent can advise on this.
Stowaways
IMO Resolution A.871 (Guidelines on the Allocation of Responsibilities to seek the Successful Resolution of Stowaway Cases) contains suggested responsibilities of masters in such cases, running to halfapage ofMGN70(M). Even so, if you are to avoid a fine, bringing stowaways to a foreign port will require special attention to local law.
Watchkeeplng in port
Chapter VIII of the STCW Code provides clear guidelines on responsibilities for safe watchkeeping and pollution prevention in port, including when carry ing hazardous cargo and the Safe Manning Regulations require you to follow them. Port State Control regimes will check your compliance with the Code.
Seaworthiness
Section 98 of MS A 1995 provides that if a ship in a UK port, or a UK ship in any other port is dangerously unsafe, then subject to certain provisos, the master and the owner of the ship shall each be guilty of an offence punishable on summary conviction by a fine of up to ,£50,000 or on conviction on indictment by imprisonment for up to two years, or an unlimited fine, or both. The penalty is aimed primarily at owners of substandard ships, but if the prosecutor cannot find the owner, the master makes a convenient alternative target. The common law requires your ship to be seaworthy before departure for each stage ofhervoyage in respect of (1) technical matters (e.g. structure and stability), (2) cargo care, and (3) 'fittednessforthe voyage' (meaning manning, charts and publications, stores, bunkers, etc.). Where the owner has contracted only to exercise 'due diligence' to ensure that the vessel is seaworthy for the voyage, you have a duty to make (and record) every reasonably practicable check before departure.
Section 42 of MSA 1995 provides that in every contract of employment between the owner ofa UK ship and its master or any seaman employed in it, there is an implied obligation on the owner that the owner, the master and every agent charged with loading the ship, preparing the ship for sea or sending the ship to sea shall use all reasonable means to ensure
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the seaworthiness of the ship for the voyage at the time when the voyage commences, and to keep the ship in a seaworthy condition for the voyage during the voyage. This obligation applies notwithstanding any agreement to the contrary (i.e. it cannot be contracted out of).
Load line
You will be guilty of an offence if your ship, not being exempted, proceeds or attempts to proceed to sea without being survey ed or marked with deck and load lines, or fails to comp ly with Conditions of Assignment or to carry statutory stability information.
You commit a furth er offence if your ship is overloaded in port, and another if you attempt to take her to sea overloaded. Serious overloading could render your ship 'dangerously unsafe', as could undermanning and a range of other defects and deficiencies.
Passengers
SIs dealing with boarding cards, counting and recording systems, emergency information and musters and drills all impose further legal duties on you in connection with passengers, while carrying more passengers than is allowed by the Passenger Certificate is another ,£50,000 offence.
Conclusion
While a shipmaster's traditional authority has been reduced by modern communicaions, this brief outline shows that his legal responsibilities have grown enormously. Amendments to maritime conventions have brought new and onerous duties, the ISM Code alone generating what amounts to a wholesale change in the master's job description. In EC waters, meanwhile, a whole new branch of shipping legislation grows with each new Directive, while the mandatory status of new UK Merchant Shipping Notices means yet more documents to be read and filed away in the master's memory.
The weight of both the legal burden and the extra paperwork accompanying it has become intolerable for masters. Regulators ashore should not be surprised at the growing shortage of future masters, for what office worker would want to leave his family to become the legal scapegoat for the shortcomings of a shipowner, manager, charterer or classification society, while accepting the physical risks of seafaring?
References
Maclachlan, M.S., The Shipmaster's Business Companion, The Nautical Institute, 1997.