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    Responsibility and Accountability in Maritime Law

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    Responsibility and Accountability in Maritime Law: Criminalisation of the Ship’s Master
    ISBN: 9781032211190
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    Published:April 2022

     

    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 and identifies 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 parties which includes lawyers, academics, P & I clubs, seafarers, shipowners, managers and agents, and national and international seafaring unions.

     

    Table of Contents

    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: a step-by-step study of Port State justice and the consequences on human rights

    Criminalisation of the Master and human 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

     

    Published:April 2022

     

    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 and identifies 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 parties which includes lawyers, academics, P & I clubs, seafarers, shipowners, managers and agents, and national and international seafaring unions.

     

    Table of Contents

    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: a step-by-step study of Port State justice and the consequences on human rights

    Criminalisation of the Master and human 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

     

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