Responsibility and Accountability in Maritime Law

Published:April 2022

The criminalisation of seafarers has been observed as a growing phenomenon for more than forty years, presenting a picture of increasing liability upon the Master even though their responsibilities remain essentially unchanged in generations of maritime law. Because of the demand by society to find someone to blame for environmental and human loss, there is a constant flow of cases, which serve to confirm the phenomenon but offer no solutions to defend the innocent. The structure of the maritime environment in which they work has changed dramatically, as evidenced by the complex evolution of fleet ownership and management, leaving the Master with diminished management influence. This book has been written in a format which meets the needs of lawyers, academics and maritime professionals, with the aim to analyse the character of criminalisation to determine the features which characterise the phenomenon in Port and Flag State contexts; it interrogates the aim to define the nature of criminalisation and identifies the constituent problems in such criminal accountability.

Each chapter relies heavily on case studies to illustrate how the laws which reflect national policy underpinning those priorities are applied in practice. This structure enables an understanding of the problems in the criminal process, with a view to offering options for solutions. The book is directly relevant to a broad range of parties which includes lawyers, academics, P & I clubs, seafarers, shipowners, managers and agents, and national and international seafaring unions.

Table of Contents

INTRODUCTION

1. WHAT IS A CRIME?

The essence of criminal accountability

Prosecutions and the Master’s human rights

2. SOURCES OF LAW

State sovereignty

Sovereignty and maritime Conventions

The case of the Arctic Sunrise

The enforcement of Conventions in domestic law

The case of the Gladys Bowater

The case of Gandara v Bennett: Gladys Bowater confirmed

Interpreting clear statements in Port State laws

The case of Spector v Norwegian Cruise Line

Tensions between sources of laws

The case of Captain Mangouras of the Prestige

3. THE MASTER AND THE SHIP

Who is the Master?

The Master’s Overriding Duty

The case of R v Juanga

The Master’s responsibility for safe navigation

Safe navigation of what? Trouble with English law

The case of R v Goodwin

Assistance from overseas jurisdictions

4. THE RISK BUSINESS

The Master and their accountability

The Smyrna and the Moto

Business and Law

The business of the owner

The financial magnitude of the risk

Any way to make a profit

The Master-Owner relationship

The case of the Sussex Oak

The case of the Tasman Pioneer

The Impact of Statute Law on the relationship between the Master and the owner

The case of Captain Schettino of the Costa Concordia

5. PORT STATE SOVEREIGNTY: WHAT COULD POSSIBLY GO WRONG?

Port State jurisdiction

The case of Captain Laptalo of the Coral Sea

Strict liability – its use and abuse

The case of Captain Schröder of the Zim Mexico III

The case of Captain Chawla of the Hebei Spirit

China’s emergence on the maritime stage

The case of the Kota Nebula

6. MANAGEMENT CONTROL BY THE FLAG STATE

The Flag State and UNCLOS

The case of the Mavi Marmara

The Flag State and the Master’s accountability

The case that will not go away: Regina v Dudley and Stephens

The Master’s management of the Flag State’s human rights

The case of Hook v Cunard

The role of Flags of Convenience

7. CRIMINAL ACCOUNTABILITY FOR NEGLIGENCE

The evolution of negligence in maritime law

The case of Donoghue v Stevenson

What is criminal negligence?

What is the gross negligence element?

The case of the Seistan

The gulf between civil and criminal accountability

Neither one thing nor the other

The case of Michael Hubble of the Pride of Bilbao

Conclusions?

8. CRIMINALISATION AND SEAFARERS’ RIGHTS: PROBLEMS AND SOLUTIONS

Rights and responsibilities

Human rights protection

What is a crime under the Maritime Labour Convention?

The case of Wilson v Secretary of State for Transport

The case of the Wakashio: a step-by-step study of Port State justice and the consequences on human rights

Criminalisation of the Master and human rights: a solution?

9. INVESTIGATIONS, EVIDENCE AND SELF-INCRIMINATION

What is the purpose of an investigation?

The case of Hoyle v Rogers

Captain Wolfgang Schröder again

Gathering evidence and record-keeping

What is evidence for legal purposes?

When is evidence unnecessary?

Presenting evidence to the Court

The evaluation of evidence

So, what must the evidence establish?

Insufficiency of evidence – no case to answer

In the wake of the Herald: the Marchioness

Attributing responsibility and blame: comparing shipping and aviation

The case of the Schiphol prosecution

A 'Just Culture'

10. THE FOUNDATIONS OF SENTENCING: CULPABILITY AND HARM

Sentencing guidelines

Culpability

Harm

Crime and punishment

The case of Captain Hoyt of the Azura

Sentencing in practice: the Herald of Free Enterprise

11. OCCUPATIONAL HAZARDS

Trouble in the Gulf

Metamorphosis of maritime risk

The Master’s risk management

A solution: mediation?

Piracy and the Master

Flag State protection? How the Flag State sees it

The case of the Enrica Lexie

The unacceptable risk of liability for armed guards

Summing up the risk

Problems and solutions: the story of Captain Stapleton of the Teignbank

12. COMPULSORY PILOTAGE: WHO TAKES THE BLAME?

The modern law of compulsory pilotage

The case of the Sea Empress

The case of the Cosco Busan

13. POLAR RISKS

Taking UNCLOS to the High Arctic

The case of Captain Hazelwood of the Exxon Valdez

The greatest risk: criminalisation for environmental damage

The elements of the duty of care in the High Arctic

The Xuelong and the Shokalskiy

The Russians are coming

The Master’s accountability – summing up

14. AUTONOMOUS SHIPS

The emerging technology

What is autonomy?

State responsibilities for ships and the tensions that arise

The Master’s responsibility for the autonomous ship

Risk management and responsibility

The dangerously unsafe ship

Pilotage

The safe navigational watch

The Master’s discretion and the safe port

Remote management of an emergency

Summing up – applying criminalisation to autonomous ships