Two high-profile maritime tragedies have left many with a vexing question:
Are captains bound by law to go down with the ship?
Lore or law: The captain must go down with the ship? Answer: Lore. How about the master being responsible for his passengers and crew? Answer: law.
“The master’s primary responsibility is the safety of his passengers and crew,” says Richard Dein, a retired Coast Guard officer and expert witness who has worked as a master on passenger ferries and towboats.
“That has evolved through case law, though it’s not in statutory law.”
That means you can’t find a master’s obligations stated succinctly in a single law, but you can look for answers in court rulings in liability cases; in administrative decisions to revoke or suspend masters’ licenses for misconduct, negligence or incompetence; and in some cases of criminal negligence where deaths are involved. Beyond their responsibilities to passengers and crew, masters also are responsible for the safe navigation of a vessel and for protecting the interests of the vessel’s owner — mainly the ship and its cargo, Dein says.
What a master’s responsibilities are has been much in the news after the captain of a South Korean ferry abandoned his sinking ship in April, leaving passengers to fend for themselves, and after the captain of the Italian cruise ship Costa Concordia was charged with doing the same thing two years ago. (His trial opened in May.)
Except for protecting the owner’s interests, which is a commercial duty, the pleasure-boat skipper has responsibilities similar to those of the ship’s master, says Capt. Bill Doherty, who teaches safety management at the Massachusetts Maritime Academy.
“A life is a life, whether you pay to get on a boat or someone invites you on,” says the retired cruise ship captain, safety manager and boater. “The sea is the same, whether you’re out there for recreation or commerce. The inherent risks are the same. … If you take other people out there with you, you have the same moral responsibility to the people on your boat as the master of a ship.”
And you, as the boat’s operator, are bound by regulation, as well, to be safety-conscious, he adds.
“In general, a captain has a duty to exercise ‘responsible care’ for the safety of his guests,” says James Mercante, a retired Navy Reserve captain, head of the admiralty practice of the New York law firm Rubin, Fiorella & Friedman and a commissioner on the Board of Commissioners of Pilots of the State of New York. But the standard for “responsible care” is higher for captains of ships that take on fare-paying passengers, he adds. “They have a heightened standard of care.”
On a pleasure boat, the standard for responsible care for one’s guests is: Would a reasonable man consider the boat operator’s actions “prudent?” Mercante says. Again, “prudent” is determined case by case in the courts, based on the facts.
Those are the principles. A dramatic case in point: In 1952, Capt. Henrik Kurt Carlsen evacuated 10 passengers and 40 crewmembers from Flying Enterprise in a brutal Atlantic storm after a wave cracked the freighter’s hull in the western approaches to the English Channel. Carlsen stayed aboard the listing ship in treacherous seas for seven more days until tugs put a line on her to bring her into port.
On the way in, the tow line parted in a second storm, and Carlsen had to abandon the vessel just before she sank. His courageous efforts drew accolades from around the world, including a ticker-tape parade in New York City.
Compare Carlsen with Lee Jun-seok, captain of the passenger ferry Sewol, which sank off southwestern South Korea on April 16. Jun-seok and 15 other crewmembers are alleged to have hustled off the sinking ship — abandoned it — before evacuating the passengers, most of them high school students on a class trip, and before even alerting them to begin an evacuation.
Jun-seok, a first mate, a second mate and the chief engineer have been charged with homicide; 11 other crewmembers were charged with negligence and abandoning passengers in need. South Korean law obligates a captain to remain aboard a distressed vessel until all passengers have gotten off. The death toll is expected to exceed 300.
Or compare Carlsen with Francesco Schettino, captain of the cruise ship Costa Concordia. Schettino was charged with manslaughter for abandoning ship before all of his passengers were safely evacuated and causing the shipwreck — charges he denies. The ship ran aground off the Italian island of Giglio in January 2012, killing 32 people.
“I have no problem whatsoever saying that the behavior of these two captains — the captains of the Costa Concordia and the Sewol — as masters and seafarers was disgraceful,” says Doherty. In the United States, when masters of vessels receive their certificate of competency, they take an oath that they will act responsibly, although the oath does not expand on exactly what that responsibility is, Doherty says.
In a few countries — Italy, Spain and Greece among them — the law obligates a master to stay aboard a sinking vessel until the passengers and crew are safely evacuated, says Craig H. Allen, a licensed master (inactive) and professor of admiralty and maritime law at the University of Washington. In the United States, history, tradition, professional codes of conduct — and case law — flesh out what that responsibility is. “Among professional mariners [in this country] I doubt anyone coming out of a merchant marine academy — or anyone dealing with passengers — would not understand that they have a very high obligation to those passengers,” Allen says.
Passengers come aboard as guests, unfamiliar with the ship or its emergency systems and procedures. They don’t know how to get their life jacket, how to put it on, how to launch the lifeboats. “That responsibility belongs to the master and crew,” Allen says.
Masters also have a responsibility to the ship’s owner and to its crew. The Merchant Marine Officer’s Handbook counsels masters of cargo ships to be the last to leave the vessel if it’s sinking, to use “all reasonable efforts” to save the ship and its cargo, to take responsibility for the safe return of the crew, to communicate promptly with owners and underwriters in an emergency and to exercise their command until it is lawfully suspended, Allen says. Similarly, the Navy tells commanding officers of stricken ships to remain with them “so long as is necessary,” and if they must abandon ship they should be the last to leave and are responsible for protecting survivors until they are rescued.
Though it is oft-quoted, “The captain must go down with his ship” is a canard, Allen says. He cites Adm. James Stavridis’ Command at Sea:
There is no current regulation or tradition which prevents you from leaving your ship after you have discharged your duties, if you are absolutely sure it is about to sink. If you commanded well and fought well, the Navy will want to use your experience and talents again.
“Even the Navy recognized long ago [going down with the ship] was just silly,” Allen says. “Why would we condemn someone to death just because their ship sank?”
Doherty stresses character and “bridge resource management” when he instructs cadets in their responsibilities to passengers, crew and owner when they become ship’s officers. “Those of us who make our living at sea take pride in doing it the right way, the responsible way,” Doherty says.
The “right way” is rooted, in part, in tradition, but also in the way Doherty was taught 50 years ago by professors at Massachusetts Maritime, who had themselves been masters of ships and led the cadets on training cruises. “I ask myself, ‘What would the officers on my ship, my professors, do?’ ” But in the end, that understanding of one’s responsibility to “all the souls” on the ship is rooted in character.
“As well trained as a person can be, when the ‘ship’ hits the fan and you’re faced with a life-or-death situation, I don’t think you can teach that,” Mercante says.
“We all know right and wrong,” Doherty agrees. “We don’t need anyone to tell us what is right and wrong.” In an emergency, you either do what you’re supposed to do or you cut and run. Yet Doherty says it is not enough to know what the right thing to do is.
A master and crew must be trained in how to do the right thing, and that’s where bridge resource management is critical. “Every seafarer — every crewmember, from the master down to the lowest-entry seaman — must have a duty station [in emergencies] and must familiarize [himself or herself] with that duty station,” he says. It is the master’s responsibility to make sure all crew are assigned duty stations, make sure they become intimately familiar with their duties at those stations and make sure the crew is drilled in their duties and evaluated in their performance on an ongoing basis.
The master has ultimate authority on a ship, so he or she has ultimate responsibility for it and for the readiness of its crew. “The behavior of the crews on both the Costa Concordia and the Sewol was just as preposterous, for the most part, as their masters’, though there were some heroes,” Doherty says. For instance, a female crewmember stayed to help passengers off the Sewol and later was found dead in the water.
“If we train for an emergency, if we drill for an emergency, we are much more apt to tend to our duties than abandon our duties in an emergency,” he says.
Doherty says a safety-conscious attitude must pervade a vessel’s organization from the top down, from the owners to the able-bodied seamen. In Sewol’s case, corporate greed appears to have been a factor in the loss, he says. Investigators reported that the vessel should have been carrying more ballast and less cargo to correct stability deficiencies after staterooms were added to the upper decks.
Instead, Sewol had been carrying three times more cargo in its hold than it should have been carrying; the cargo was not tied down, so it was prone to shift; and ballast in the keel was removed, so the load line on the hull remained above water, even with the overloading — all contributing to instability and capsize.
In Costa Concordia’s case, the corporate and governmental system for vetting, promoting and licensing officers failed to weed out a captain who authorities say ordered a dangerous flyby, then abandoned the ship after it ran aground — while using the wrong chart to navigate. “You have to look not just at the skills he has to operate the ship, but does he have the moral fiber to operate it right,” Doherty says. “You can’t take a ship out for a joy ride. … His behavior had to have been that way all along. They ignored it and gave him the authority to behave that way on a big ship.”
In a case pending before the federal district court in Guam involving a 187-foot South Korean-affiliated fishing vessel, Miami lawyer Michael Moore is alleging on behalf of two crewmen who died when the boat sank that, among other things, the captain couldn’t properly maintain the ship and couldn’t properly enforce crew discipline and safety training because the vessel owner refused support to the captain. As a result, the ship sank in calm seas and good weather, 22 of 24 crewmembers abandoned the ship without mustering at their abandon-ship stations and the two crewmembers — one the captain, who had stayed aboard to retrieve the EPIRB and send a mayday — died.
The suit alleges that the owners didn’t listen to the captain when he complained that the vessel was not maintained in seaworthy condition, that the crews wouldn’t acknowledge the captain’s authority (most spoke almost no English and answered only to the Korean fishmaster), and that the owners didn’t listen when a succession of captains reported that the vessel’s crews were insubordinate and improperly trained.
“When you look at [some of] these sinkings, it’s all about the inadequacies of the crew,” Moore says, and about owners who know this and don’t themselves address maintenance and crew problems. “This is indicative of [some] Korean vessels,” he alleges, again, with greed at the root of the problem. Skimp on training and get boats out of the yard and onto the water as quickly as possible so they can make money. “They put ships to sea that are not seaworthy,” Moore says.
“At the end of the day, I think it’s the government’s failure to enforce regulations,” he says. “Crews are not properly trained. I don’t think they are properly licensed.”
Lack of good order, discipline, proper maintenance and emergency readiness on a ship may not be just the captain’s failure to do his job but a systemic failure, he says.
Yet Dein says licensing systems are set up mainly to test skills. They aren’t very good at measuring integrity or testing character. Again and again, he says, whether a vessel is commercial or recreational, catastrophic accidents often come down to issues of character and judgment.
“We all make mistakes,” Dein says. What do we do after we make that mistake? Good character and judgment often make the difference between minimizing the consequences of the mistake and making them worse.
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July 2014 issue