Corporate duress and the Master’s liability

22 Ноя

В последнее время значительно возросли риски, связанные с привлечением капитанов судов к уголовной ответственности. Капитана могут заключить в тюрьму или оштрафовать за то, что раньше считалось случайностью. Таким образом, карьера капитана может рухнуть как замок из песка. Практика привлечения капитана судна к ответственности практически за всякое, даже незначительное, отклонение от правил может завести любую ситуацию в тупик. Капитаны находят защиту и поддержку у своего профсоюза, а также у Морского института в качестве его членов.

Статья сопровождается редакционной публикацией условий страховой защиты Морским институтом своих членов. Приводятся реквизиты контактных лиц, с которыми можно связаться в случае необходимости в немедленном получении услуг юридического представителя.

Recent events both personal and industry wide have compelled me to analyse the changing operational theatre to which we as Masters are subjected, in particular, the Masters’ liability and increasing threat of criminal prosecution. It is an established fact and a regular feature of our professional journals that it is becoming common practice to imprison and/or fine the Master for a whole range of issues that were previously accepted as a natural hazard of the job. After all, we work in a risk management profession.

There are times when I envy my peers in the deep sea commercial business. Huge ships cutting a dash across the world’s oceans, continent to continent; pilot on arrival and tugs to assist; safe berths readied and agent standing by. But I work in the offshore business.

A few years ago I was employed as Master of a large offshore construction vessel working in West Africa where I often conducted the pilotage myself. Logistics could be chaotic and disorganised, and nominated berths were sometimes clearly unsuitable. Of course, you don’t know the berth is unsuitable until the vessel is 10 metres off and you are committed.

The vessel had an unusually shallow draft for its size.This often meant it operated in ports entirely unsuited for its dimensions, ports where similar sized but deeper draft ships simply could not go.

Many offshore operators regularly consult their Masters as to the suitability of various project matters including port approach and entry. I have often received drawings of ports for future projects. However it is not unusual to dismiss my concerns or wait until the relief Master is on duty where any previous concerns or objections are conveniently ignored, or lost in the paperwork.

It would not be unusual to receive proposals similar to the hypothetical examples below.

Hypothetically speaking…

Future port development: a proposal to construct a port where a vessel would be required to enter the port through a narrow buoyed channel around 1,500 metres long, giving 15-20 metres clearance either side, with no turning basin at the end of the channel and where the vessel would also fill the berth. There would be no clearance under the keel, so the approach could only be made on a rising tide. Either side of the channel was unforgiving rock and the vessel had fuel tanks at its bilge. The Master would be expected to undertake this hazardous procedure; the vessel design making it capable of such manoeuvres.

The company’s philosophy in this situation would be that ‘the vessel has successfully completed similar manoeuvres, albeit several years previously and would be perfectly suitable for this operation.’ Although a pilot would be on board to assist in the procedure, he would refuse to accept responsibility for any damage. The manoeuvre would be completely at the Master’s discretion.

The same principles apply when it comes to planning operations. Often, these are located in areas where port costs are minimal and closer to the operational site; where the Master is directed to operate the vessel and thus presented with a fait accompli.

«It is becoming common practice to imprison and/or fine the Master for a whole range of issues that were previously accepted as a natural hazard of the job. After all, we work in a risk management profession.»

For example, take the case of heavy lift operations alongside a barge. The Master of an offshore construction vessel is instructed to raft alongside a large weather-vaning barge in order to conduct heavy lifts. The operation would take place within a small idyllic bay that is essentially land-locked, the barge would be anchored and in addition would have a tug alongside in continual attendance. A squall develops and the weather deteriorates. The barge drags anchor across the bay. It would require considerable effort from the offshore construction vessel to stabilise the situation and avoid grounding along with the barge and its tug.

The post-accident investigation reveals the barge anchoring system to be entirely inadequate for the task. From behind a desk at head office, the Master is asked, ‘Why did you effectively endanger the construction vessel?’ At the same time, the Master is asking, ‘Why did the company instruct such an exercise to be undertaken, endangering not only the vessel but the lives of the crew as well?’

Commercial pressure

Today, companies make it clear: ‘The asset must not be put at risk.’ Or, to put it even more plainly, ‘The Master must not put the asset at risk.’ Yet in both of the scenarios above there is immediate conflict between those at head office in the project department, who tender for these multi-million dollar projects, and the Master of the vessel. These projects directly relate to the ability of the vessel to operate efficiently in such scenarios.

I have found this to be a common experience and through commercial pressure, situations similar to those above induce corporate duress upon the Master. The message I have received loud and clear is that in the event of an unfortunate incident, I would be solely responsible. I could be accused of gross negligence and incompetence and the company would probably immediately distance itself from my actions brought about by obeying their orders.

We all know that you are only as good as your last mistake and there are a thousand ways to end your career. I often think that a seafarer’s career is nothing more than a sand castle on the beach — one high tide and it’s vanished without a trace.

Changing attitudes

As a profession we don’t always help ourselves. Too often, particularly in the offshore environment, we take on a difficult task as a matter of ego-driven professional pride — ‘I can put my ship anywhere’. This is a result of many years’ intimidation from companies, particularly during the lean years of the eighties and nineties. More than once I was told ‘If you can’t do it we’ll get someone who can.’ But thankfully, those days are over.

Now it is a case of not whether we can do it, but rather can we do it safely? There is a considerable difference. Many have experienced the ever-expanding company directives emanating from HSE departments relating to compliance with safety procedures. It never gets any less and much of it serves as a protection for the company.

Recent anecdotal experience and that derived from our press has allowed me to conclude that companies will no longer stand by their captains. On the contrary, they actively seek to put distance between the company and the employee, immediately looking for a breach of procedure; a breach of procedure that they may have induced and may have encouraged. As the Master is always responsible, it’s a no-win situation.

This includes pilot authorities stating that pilots acted outside their remit; ports allowing the Master to make a sailing decision in poor weather conditions that resulted in the closure of their own port; and countless collisions and groundings, with the most significant recent loss being the Costa Concordia. Readers may recall the recent Canadian train disaster. Within 24 hours of the event, the railway company representative was blaming its train engineer before an official inquiry had even commenced.

Finding protection

So where does that leave the Master? And what is our protection from corporate lawyers queuing up to destroy the careers of willing, dedicated professionals who after all, believed they were operating in the best interests of the company? It leaves us on our own and taking on a major energy company is not an easy task. I would like to think most Masters have at least union protection and as a Member of The Nautical Institute, there is also limited legal cover.

Concerned about my level of personal protection, I have consulted with my own union, Nautilus, and they confirmed they will support members who are being investigated or charged by authorities and that they will resist employers’ attempts to shift blame onto individual members. Reassuringly, they also confirmed they have no limit on the extent to which they will fund a member’s legal defence, with the exception of a deliberate wilful act. Make no mistake, should such an unfortunate event befall you, your career is effectively over — If not permanently, then at least for several years — along with the professional stigma you have to live with.

I now live by the mantra ‘Protect the asset — and yourself.’

Автор:

Captain Jeffrey Parfitt, FNI

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Источник: Seaways. — 2013. — № Octoder. — P. 4 — 5.