The International Law of the Shipmaster

John A. C. Cartner, Richard Fiske, Tara Leiter

• Éditeur: Informa Law from Routledge
• Année: 2013
• ISBN:
  9781136653971
• Édition: 1
• Sujet: Droit
• Sous-sujet: Droit maritime

A comprehensive review of the laws and regulations governing the shipmaster including customary law, case law, statutory law, treaty law and regulatory law, covering: • A brief history of the shipmaster • Manning and crewing requirements in relation to vessel registration • Comparison of regimes of law of agency for shipmasters and crews across jurisdictions • Examination of shipmaster liability (civil and criminal)

Part I
The Shipmaster in Context

Chapter 1
Introduction to the Law of the Shipmaster

“Of all the living creatures upon land and sea, it is ships alone that cannot be taken in by barren pretenses, that will not put up with bad art from their masters.”

Joseph Conrad (1857–1924), The Mirror of the Sea (1906).

§ 1.0 The Shipmaster in Law.

The shipmaster,¹ usually called the master in maritime law,² is a natural person hired by contract who lives on a vessel and manages it and its related matters while the vessel is navigating and carrying goods or performing services for freights or hire. Thus, he is the appointed and retained commander of a vessel in commercial service and is the person who is responsible for a vessel in navigation and licensed by competent national authority.³ In common usage, the “captain” is the master of a vessel and “captain” is, in the English language, a social title by which most masters are called.⁴ In general terms, a master is a qualified seafarer⁵ in command of a ship. One United States’ statutory definition of “master” means “the individual having command of a vessel”.⁶ The United States Court of Appeals for the Fifth Circuit has held, “A [m]aster is not one in name alone. He is [m]aster in fact and commander of his ship….”⁷ Section 3, UK Harbours, Docks, and Piers Clauses Act, 1847, incorporated in the London Dock-lands Development Corporation Act 1994, defines “master,” in relation to any vessel, as “the person having the command or charge of the vessel for the time being”.⁸ States have a slightly different version of the definition or occasionally more than one definition.⁹ In summary, each state with a ship registry scheme recognises and provides authority and balancing liabilities to one natural person responsible for the ship at sea. He is the master. Curiously, the master is not necessarily the statutory person in charge or the person authorized by the employer.¹⁰ Further, the master, if he appears in the crew list, is often not a seafarer within a state’s definition,¹¹ although many states treat the master as a seafarer for certain beneficial and protective purposes. Today, the master is usually not the owner or direct co-owner of his ship.¹² Finally, depending on a state’s tradition of laws, masters are empowered by varied levels of statutory authority to enforce flag state laws on their vessels and different authorities among the states to deal with situations which arise at sea.¹³

§ 1.1 A Social History of Shipmasters and Commanding Officers.

The seagoing business – whether commercial or naval – requires exacting terminology. Confusion often exists both seaside and landside in the distinction between a commander at sea who is a government-employed or a commissioned officer commanding a publicly-owned ship and a civilian commanding a privately-owned commercial vessel, or in some cases, a government-owned vessel that is not a warship. Each kind of commander holds the social title “captain”. That term came in the modern sense during the reign of Henry VII of England for a person in charge of a large and complex ship owned by the Crown and chartered out when not used as a warship or as a vessel for cargo.¹⁴ The chartering fees were lucrative and the Crown was always ready for new sources of revenue. The title “captain”, however, merely reflected the status and position of such a person managing a large and technically challenging vessel at sea. It was unrelated to the style of an army officer who may have boarded and outranked the master under Crown authority in years past during wartime.¹⁵ The first person to have the modern seagoing social title was likely Captain William Combershall of the royal carrack Elizabeth (1484).¹⁶ Thus, he was Captain Combershall whilst on the royal payroll, and still Captain Comber-shall whilst on the private payroll of his chartered-out ship.¹⁷ By 1489, the royal ship Sovereign had both a master and a captain. The master operated the ship. The captain represented the Crown. Therefore, in today’s parlance the master was the captain and the captain was the Crown’s officer responsible for making the ship do the Crown’s bidding. This was a logical division of labour for a large ship with several missions.¹⁸ Today, a naval ship has a commanding officer in United States practice who is captain of the ship. In United States usage, naval ships do not have masters except as distinctive adjectival titles among petty officers such as a master chief petty officer.¹⁹ An oceanic commercial vessel has a master who is also the captain. To muddy the waters further, a commanding officer of a warship is not required to be a master mariner although he may have sufficient partial credentials to qualify outside the naval service, in the industrialized states, usually with additional education, training and relevant maritime experience. Further, the commanding officer need not have the rank of naval captain. Masters in the commercial service always have that certification or license, and rank (occasionally by statute).²⁰ Captains in the government service hold the commission of the head of state. Merchant masters are often naval reserve officers holding the reserve commission of the head of state, although not necessarily with the naval rank of captain. Nonetheless, a master of a commercial vessel is a master and a commanding officer of a warship is a commanding officer, but each is undeniably a captain.²¹

§ 1.2 The Ship, the Master and Society.

To put the master in another perspective, commercially-operated ships are as a class the largest structures in the world – often larger in length, depth, breadth and volume than naval ships – and producers of revenue, not cost alone. Ships in general are our only common class of Earth-bound machines in which people live in order to make them work. Ships are also our oldest complex machines. Masters are responsible for the ship-machine, its contents, its movements and its people as an integrated unit in performing efficiently and safely to the standards set by shoreside managers, paying customers and regulatory authorities. This notion of the vessel and the people working as a system is identical to the treatment the international law gives to the vessel cum natural person cum legal person unit. Thus worldwide, the master plays one of those essential societal and economic roles in transborder trade that has evolved over at least five millennia.²² Masters thereby have become woven inextricably into the fabric of civilization and the culture of any maritime state. In the broader economic scope, the shipmaster is necessary to the principals of transborder trade. To facilitate trade and the master’s acts for the sake of trade, he is vested with many legal powers by custom, tradition and necessity by every state.²³ The master’s powers are uniquely beyond those given a non-military and landside person similarly situated.²⁴ In return for his powers, he has been prescribed concomitant responsibilities and duties by statutes, regulations and certain acts. As may be expected, the burdens under which the master is dutiable on a commercial ship or vessel of the merchant service²⁵ arrive with a large number of liabilities which may or may not be, as the master sees it, in equitable proportion to his compensation.²⁶ This situation has not changed much over time. We have extant laws governing the ancient shipmasters of five millennia ago.²⁷ We can parse the history of the law of the shipmaster into several periods starting in the third millennium BCE with the Code of Hammurabi, the Sumerian Laws and the Manumritsa of India. We can look at the later Roman law as the foundation of the civil law tradition we see today, which often governed the master domestically. Similarly, we can see in the localized mediaeval codes which augmented Roman law, which had fallen into desuetude, other expressions of the laws governing the shipmaster.²⁸ In all cases the regulating law was formed by the necessary relationships among buyers, sellers and financiers in transborder trade and the interactions among the vessel, owner, cargo and passengers, sea, weather, other objects on the sea, manager, time, money, labour, salvors, governments, repairmen, chandlers, sailmakers (now bunker vendors) and other necessarymen. Those realities have not changed, and the law of the ship-master today continues to deal with them all. There may be differing emphases, penalties and expressions of duty and responsibility and liability, but the master’s role and the allocations of law governing him have been fairly constant and continuous.

§ 1.3 The Modern Law of the Shipmaster.

We deal with laws of the ship-master which coalesced after 1648. The treaties of Osnabruck and Münster in that year led to the end of the chronic medieval wars in Europe and to the Peace of Westphalia.²⁹ The Peace gave footing to the structure of the law of sovereignty and the nation-state concept with which we deal today. By 1700, the stabilization of the system of the sovereign states’ inter se governance allowed the roots of the trading system and its financing to become well established and then to flourish in modernity.³⁰ In parallel, with the desires of northern Europeans to bring religious rectitude to those outside, trade expanded to new levels by the end of the seventeenth century.³¹ The modern law of the shipmaster evolved in the latter part of the eighteenth and nineteenth centuries as the law reoriented itself to the realities of the Industrial Revolution and the consequences of political revolution in France, the American English colonies and elsewhere. One side of the law of the shipmaster which grew from the latter part of the sixteenth century to the middle of the nineteenth century was directed toward the regulation, continuance and subsequent suppression of the most profitable transborder enterprise ever seen in western Europe and North America: the trade in human beings from Africa, in which shipmasters played an essential, if shameful, role.³² The common law of the ship-master in general stabilized prior to World War I after the conversion from sail to steam was well established. While the common law was stabilizing, the sinking of the Titani...