Responsibility and Accountability in Maritime Law Criminalisation of the Ship’s Master

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 andidentifies 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 partieswhich includes lawyers, academics, P & I clubs, seafarers, shipowners, managers and agents, and national and international seafaring unions.

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: astep-by-step study of Port State justice and the consequences on human rights Criminalisation of the Master andhuman 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

Dr Simon Daniels qualified as a Solicitor in 1985, practising in marine litigation, with experience in commercial and criminal cases over many years, before he developed a career in alternative dispute resolution as a Qualified Dispute Resolver and Member of the Faculty of Mediation and ADR, founded by the Academy of Experts in London. He brought his professional background in maritime practice to the academic field at Solent University, where he managed the law and business parts of the MCA-accredited Merchant Vessel Operations programme at Warsash Maritime Academy, one of the world's leading centres of excellence in training for merchant shipping professionals. With the benefit of his experience across professional and academic fields, he took particular interest in the field of the criminalisation of the Ship’s Master and, in 2012, was awarded a PhD forhis thesis: The Criminalisation of the Ship’s Master. A new approach for the new millennium. In August 2019, Simon left Solent University and established a new career in maritime research and consultancy. Most recently he has carried out a complete review and update of The Shipmaster’s Business Self-Examiner, the flagship publication of the Nautical Institute.