Who’s in Command?

30th April 2004

Who's in Command?

Initial Report

Short sea trade vessels are having Masters overriding authority under the ISM Code relinquished to shore based personnel in charter-parties.

Numerous instances that charter party calling for compulsory starboard side berthing irrespective of wind/tide/current conditions.  This has caused damage to vessels by attempting manoeuvres wholly inappropriate to the conditions.  If the Master calls for additional tugs there is an inquisition.

Masters failing to comply are subject to “removal” from the vessel, as again this is written into the charter party as Master failing to comply with Charterer’s instructions.

 

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Commercial conflicts with safety are not uncommon and Masters are often caught in the middle.  If the Owner has a properly functioning Safety Management System, the Master should be able to address any concerns to the Designated Person Ashore.

Failing that, these matters often end up in the hands of lawyers, so CHIRP is grateful for the following brief comments from Tony Goldsmith of City law firm Hill Taylor Dickinson:

Firstly, this highlights the ever present strains between commerce and safety.  Although of little practical help to the Master, the fact that Charterers want a provision in the charterparty saying the vessel must berth starboard side to, does not mean that Owners have to agree to it, save that someone else may snap up the fixture instead.

It may be that the issue is not in fact a charterparty issue but a matter of Charterers’ voyage instructions. If they are instructions from voyage Charterers, the legal status of these is a bit dubious. Voyage Charterers¬†do not have a general right to order the ship around. If¬†the instructions are from time Charterers, then they do have a general right to order the vessel around, but it does not extend to questions of navigation as distinct from employment. Although the boundary has been blurred by the¬†recent HILL HARMONY decision, in our view¬†the HILL HARMONY¬†still leaves the master with the right to take decisions about navigation, particularly where the vessel’s safety may be at stake.

In any event, whether the orders come from the charterparty or the voyage instructions, the law considers that the Master has an overriding duty for the safety of his ship and crew and an overriding right to take the action he, as a reasonable mariner, considers necessary. Therefore, even if the charterparty itself contains a provision for berthing starboard side alongside, the Master does not have to comply if in a particular situation he considers it  dangerous to do so.

There is no right in a voyage charter for Charterers to call for a change in the officers. In a time Charterparty there often is, but Owners are generally only obligated to consider the complaint and make a change if it is justified. It is down to Owners to hold out for their Masters, although whether or not they will do so, may depend significantly on commercial considerations.

If the situation is one of voyage instructions which says something like¬†¬†‘ Master, you must berth starboard side to and you should call for extra tugs if you need them for this’, then as a matter of law, it would depend on the precise wording of the charterparty and the voyage instructions. However, in general terms we are of the view that¬† Charterers would have to pay for the extra tugs on a time and use¬†basis.¬†Of course, notwithstanding the wording etc. if the master has concerns for the safety of his vessel then he should comply with his obligations as discussed above. If he feels that it would be safe to perform the manoeuvre if he uses tugs then he should make his position clear. A good Owner will support his Master, although we are sure there are many instances where this will not happen.

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