International Law of the Shipmaster

Dr John A; C; Cartner; Richard P; Fiske and Tara L; Leiter

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CHAPTER 12 THE SHIPMASTER AND THE ENVIRONMENT

“How inappropriate to call this planet Earth when it is clearly Ocean.” Arthur C. Clarke, Nature (8 March 1990). § 12.0 Pollutions from Vessels in Context. Pollutions from vessels1 arise through either operational or accidental discharges. The public awareness of accidental discharges from the Torrey Canyon (1967) and the Amoco Cadiz (1978) released a wave of regulation in Europe designed to prevent marine pollution and to punish those who pollute severely. A similar wave was released in the United States with the Exxon Valdez (1989). Those regulations affect the shipmaster and are far from being neutral. The main international convention regulating pollution from vessels is the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) and its 1978 Protocol, which cover all forms of pollution from ships except dumping or solid waste. § 12.1 The Growing Exposure of the Shipmaster to Criminal Sanction as a Result of the Rise of Environmental Regulation. The hybrid status of the shipmaster as commander of the ship, as agent of the owner and as an employee-servant of the owner-master makes the owner and his liability insurer the natural recipients of compensation claims. The shipmaster has become the subject of an ever-increasing criminalisation for his acts under various domestic environmental statutes supported by international conventions.2 By making environmental statutes stricter and by increasing the lengths and costs of punishments available, a shipmaster or crew member may find that what once would have been considered an act of innocent and simple negligence will place him in the most stringent and unforgiving area of the criminal law.3 The new interpretation of civil negligence in these cases has nearly made the pollution of navigable waters criminal per se. Under the statutes, the usually recognized and understood phrases “failed to perceive a substantial and unjustifiable risk” or “a gross deviation from the standard of care of a reasonable person”4 or “gross negligence so extreme that it is punishable as a crime”5 are abandoned and a mere proof of “simple negligence” may be sufficient for a zealous prosecutor to obtain a conviction under a particular act. Negligence may not even be a factor if the person is charged under a strict liability statute.6 These environmental laws ease the burden of proof resting with the government for proof of mens rea and mens culpa and often even remove the burden of proof altogether if the government is prosecuting under a strict liability theory and statute.7 In the case of a hydrocarbon pollution, this means that the government must show only that the spill was caused by the failure to exercise due care on the part of the individual or the company. Even where the spill occurred because of a lack of equipment or a lack of functioning equipment, even if that equipment were not required by law, prosecutors have cited that lack of equipment as negligent for purposes of criminal sanctions.8 Further, the shipmaster is often subject to detention under material witness statutes, sometimes in gaol, even when not charged, because of the court’s perceived risk of flight by a shipmaster because of his work.9 Of all the conventions listed supra only MARPOL is both exclusively concerned with prevention of pollution and concerns the shipmaster. SOLAS, which also contains relevant prescriptions regarding the shipmaster, is dealt with in Ch. 10, Shipmasters and Safety and Seaworthiness. § 12.1.1 MARPOL. MARPOL was adopted at the International Conference on Marine Pollution convened by the IMO in 1973 to replace the 1954 Oil Pollution Convention found inefficient after the oil spill caused by the Torrey Canyon (1967). MARPOL 73/78 sets out basic definitions. Harmful substances include “any substance which, if introduced into the sea, is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea”.10 Discharge covers intentional and unintentional releases from a ship, including “any escape, disposal, spilling, leaking, pumping, emitting or emptying”, [but not dumping within the meaning of the 1972 London Convention], releases directly arising from exploration and exploitation of seabed mineral resources, or releases for certain scientific research.11 MARPOL lays out certain exceptional circumstances where the discharge of oil is acceptable.12 MAR-POL covers ships flying the flag of a party or operate under the authority of a party, but it does not apply to warships or state-owned ships used only on governmental non-commercial service.13 MARPOL mandates the parties to adopt national legislation prohibiting any violation of its requirements and establishing sanctions for such violations and to accept certificates from other parties of MARPOL as their own certificates.14 A ship in the port or offshore terminal of a state party may be subject to an inspection to verify the existence of a valid certificate unless there are “clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of that certificate.”15 Where a vessel is found non-compliant, the inspecting party must ensure that the ship does not sail “until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment.”16 MARPOL 73/78 requires parties to apply the Convention to ships flying flags of non-party states so as to ensure that “no more favorable treatment is given to such ship”.17 MARPOL 73/78 also provides for the detection of violations and enforcement, such as in-port inspections to verify whether ships have discharge harmful substances, the communication and information to the IMO, and technical cooperation.18 MARPOL defines detailed standards covering oil (Annex I), chemical and liquefied gases in bulk (Annex II), dangerous goods in bulk and packaged form (Annex III), sewage (Annex IV), garbage (Annex V), atmospheric pollution (Annex VI). § 12.1.2 The Shipmaster’s Duties under AiARPOL. Whenever an incident occurs to a ship or a defect is discovered which caused or may have caused a discharge, the shipmaster must establish a detailed report and communicate it to the appropriate authorities.19 Regulation 26 of Annex I of MARPOL requires that all ships carry on board a so-called Shipboard Oil Pollution Emergency Plan, intended for use following any accidental discharge of oil, cargo or bunkers. In addition, Regulation 16 to Annex II of MARPOL requires ships certified for the carriage of a noxious liquid substance in bulk to carry a so-called Shipboard Marine Pollution Emergency Plan for Noxious Liquid Substances.20 The plans must be made available to assist the crew in dealing with an unexpected discharge and to set in motion the necessary actions to stop or minimize the discharge and to mitigate its effects. The plan must include guidance to assist the shipmaster in meeting the demand for a major discharge. The plans must also include the procedure to be followed by the shipmaster to report an oil pollution incident. General principles for reporting incidents involving marine pollutants and other harmful substances, including packaged dangerous goods, were adopted by IMO in Assembly Resolution A. 851(20) in 1997. These principles extended the requirement to make reports on incidents involving damage, failure or breakdown of a ship, its machinery or equipment where such failures could give rise to a significant threat of pollution. § 12.1.3 Shipmaster’s Liabilities under MARPOL. MARPOL instituted a strict liability scheme toward shipowners. Very little is said, however, about the shipmaster’s liability. But the shipmaster is expressly referred to in the exception provided by Regulation 4 of Annex I of the Convention, which excludes the owner’s and shipmaster’s liability under MARPOL for discharges resulting from damage to a ship or its equipment, unless they acted with intent or recklessness.21 The express reference to the shipmaster in the exception makes it clear that he was seen as a potential defendant, along with the owner. However, whereas the justification for imposing strict liability on the owner is clear, considering he is the person taking the risk of operating the ship over which he has the ultimate control, and the one whose activity is insured, allowing the shipmaster to be liable regardless of his fault seems an oddity. But most national legislation encompasses the shipmaster among the scope of persons subject to charges under a strict liability basis. In this respect, the Australian courts have found an equitable compromise, finding the shipmaster liable for a strict liability offence, but exercising discretion to dismiss the charge against him in view of his lack of fault.22 But the lack of clear guidance in the Convention subjects the shipmaster to a disparity of regimes,23 so it is fair to say that the shipmaster’s fate hinges entirely on the laws of the arresting state. The broad language provided by the MARPOL Convention can have grave implications regarding the shipmaster.24 § 12.2 UNCLOS 1982. UNCLOS 1982 provides that coastal states have the right to enforce pollution standards to maintain marine resources and to preserve and protect the marine environment within their exclusive economic zones.25 Port states may also enforce pollution standards and, when the evidence warrants, they may also institute proceedings with respect to ship discharges occurring on the high seas. Cooperation with the flag state is necessary whenever practicable.26 The Convention provides coastal states with specific powers to take action when a major maritime accident threatens their coastlines and waters with serious pollution.27 Such powers include boarding, inspection, legal proceedings and detention of the vessel. However, even these powers are strictly limited by a number of specific and general enforcement safeguards in the CLOS Convention, including:

1. the duty not to endanger the safety of navigation or create other hazards to a vessel, or bring it to an unsafe port or anchorage;28
2. the requirement to only impose monetary penalties for pollution offences outside the territorial sea. Only monetary penalties may be imposed within the territorial sea unless the pollution resulted from a willful act;29
3. that the rights of the accused should be considered in all aspects of any legal proceedings;30
4. that arrested vessels and their crews should be promptly released on the posting of a reasonable bond or other security;31
5. the requirement that violations of coastal state regulations in the Exclusive Economic Zone may not include imprisonment.32

UNCLOS 1982, Article 97 provides the highest general level of international law establishing rules on who has penal jurisdiction over seafarers involved in an accident at sea, including those exercising the right of innocent passage:33

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