!∀#∃%%&∀∋ ( !∀) %% ∗++% ,+−−.+ The Criminalisation of the Ship’s Master. A new approach for the new Millennium SIMON DANIELS This thesis is submitted in partial fulfilment of the requirements of the Nottingham Trent University and Southampton Solent University for the degree of Doctor of Philosophy October 2012 1 Acknowledgements I wish to express my profound gratitude to the following: My Director of Studies, Professor Patricia Park, who guided me with her wisdom and sound advice in the completion of this work, and patiently steered me on the path which took me from a practitioner to an academic. My Second Supervisor, John Millican, for his professional and intellectual guidance, a sound pilot in labyrinthine channels. Captain Hamish Roberts, mentor, philosopher and friend, with whom my innumerable discussions on philosophy and jurisprudence rarely remained confined within the area of this work, and I am much the better for it. Spyros M Polemis, Chairman of the International Chamber of Shipping and President of the International Shipping Federation, for his invaluable opinion and advice on the search for solutions to the criminalisation problem worldwide. Mr Ashley Ailes, Barrister, who so opportunely reminded me that the question I must ask is, not what is possible, but what is likely. Judge Lewis McCreery would understand. The Masters, retired Masters and senior officers who readily gave of their time and the enormous benefit of their experience – as well as the moral support which encouraged me to find solutions to the problem of criminalisation. 2 Contents Acknowledgements ................................................................................................................ 2 Abstract .................................................................................................................................. 4 Section One: Introduction ...................................................................................................... 5 1.1 Justice or Criminalisation? ....................................................................................... 5 The Primary and Secondary Research Questions ................................................................... 6 1.2 Action Research: Challenging the World View ....................................................... 7 (i) The Research Methodology ................................................................................ 7 (ii) Analysing the Mischief: Key Issues in the Literature Review ......................... 10 (iii) The Mischief .................................................................................................... 15 (iv) The Elephant in the Corner: Sovereignty ......................................................... 18 Section Two: On The Origin Of Species.............................................................................. 24 2.1 The Master and the Flag State ................................................................................ 24 (i) The Evolution of the Master Under God .......................................................... 24 (ii) Risk Management by Flag State ....................................................................... 43 (iii) The Clash of Authority: Compulsory Pilotage ................................................. 55 2.2 The Master and the Owner ..................................................................................... 66 (i) The Loss of the Master-Owner Relationship ................................................................... 66 (ii) The Influence of Corporate Accountability ...................................................... 84 (iii) The Loss of the Relationship: Risk and Responsibility on the Owner …………….….93 (iv) The Master and the Business of Commercial Risk .......................................... 98 Section Three: The Golden Thread laid Bare ..................................................................... 111 3.1 Criminalisation and Sovereignty .......................................................................... 111 (i) Risk Management by Port State – the Cradle of Criminalisation ................... 111 (ii) The Evolution of Injustice – Criminal Negligence ......................................... 129 3.2 The Unchecked Mischief of Sovereign Jurisdiction ............................................ 149 (i) The Character of Sovereignty ......................................................................... 149 (ii) Sovereignty: Causes and Cures ...................................................................... 152 Section Four: A New Approach ......................................................................................... 171 4.1 The Options for a New Approach ........................................................................ 174 Option 1: Rely on International Obligations between the States ....................................... 179 Option 2: Alternative Dispute Resolution .......................................................................... 183 Option 3: A new International Court? ................................................................................ 189 Option 4: Submission to the provisions of UNCLOS or the Clear Statement Rule, but with a Model Code for Sentencing................................................................................................ 193 Option 5: A New Approach To The Master-Owner Relationship ..................................... 202 4.2 The Options: Recommendation and Conclusion .................................................. 211 Plan A: The Preferred Approach ........................................................................................ 212 Plan B: The Alternative of Management Control by Port State or an International Tribunal ………………………………………………………………………………214 The Final Word of an Optimist .......................................................................................... 217 BIBLIOGRAPHY .............................................................................................................. 219 CASES CITED ................................................................................................................... 225 NATIONAL ARCHIVE CATALOGUING SYSTEM ...................................................... 228 3 Abstract The criminalisation of seafarers has been observed as a growing phenomenon for more than thirty years, presenting a picture of increasing liability upon the Master even though their responsibilities remain essentially unchanged in generations of maritime law. Over the same period, the structure of the maritime environment in which they work has changed dramatically, as evidenced by the complex evolution of Fleet Ownership and Management and the resultant challenges in identifying the party liable in a potential action. Paradoxically, the person least able to influence such changes has been the Master, who has seen the key features of their traditional relationship with the ship operator blurring, as the structure of maritime operations has evolved with the demands of social and economic change. The effect of these changes has left the Master with diminishing management influence without losing responsibility. They remain Master Under God, but without God‟s authority over the management of the ship‟s affairs. Faced with an increasing amount of criminal prosecutions globally in recent decades, the shipping industry has met the phenomenon with growing dismay, the downstream consequence of which has raised questions challenging the proportionality and, indeed, the fairness, of criminal accountability, in what is perceived by the maritime community to be a disharmonised system worldwide. The purpose of this work is to examine the many facets of the mischief with which the phenomenon confronts the Master in their professional conduct, both in terms of Flag State and Port State obligations. But the purpose goes further than that, for upon this foundation we can then synthesise options for a solution. Ultimately, this thesis is all about the perception of justice in a globalised maritime community in the twenty first century – but the real challenge is to rationalise a new approach to criminalisation, which would meet the interests of justice both for the Master and the State. In the harsh reality of intractable disputes in the twenty first century, that new approach might mean a compromise, which may not be ideal for the Master or for the State, but would be something which both can live with. 4 Section One: Introduction 1.1 Justice or Criminalisation? Moral standards regulate right and wrong conduct, which underpin the concept of Justice. This must, itself, be defined, in order to present a persuasive argument for the ethics which flow from it. John Stuart Mill first published his seminal work „Utilitarianism‟ in 1861; his definition of Justice has not subsequently been improved: Justice is a name for certain moral classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life.1 The Mischief, which broods at the very heart of the question, demands an understanding of just how the concept of criminal justice has evolved in the accountability of the Master. Such accountability logically should be defined by a single principle against which we judge all actions. Given the Master‟s responsibility for the vessel and the safety of life under the laws of the Flag