"The Captain's Overriding Authority under SOLAS/ISM": I took a turn at the International Federation of Shipmasters' Associations in Helsinki, Finland
I was asked by the International Federation of Shipmasters’ Associations, a group that organizes numerous captain’s associations throughout the world, to speak at their annual gathering in Helsinki, Finland.
Thus, I got up at 3:30 AM, drove to Bremen, caught my flight (thanks, KLM!), transferred through Amsterdam, landed, presented, then headed back to Helsinki airport more or less immediately, caught my flight back to Amsterdam, transferred to Bremen and finally drove back home, where I arrived at 11:30 PM.
Not glamorous, and a somewhat questionable effort, but I did my best to give a group of perhaps 30 sea captains my insights into how they could use their legally enshrined overriding authority to ensure the safety of crew and cargo on board. If even one person is saved from death or injury, it was worth it.
Helsinki itself seemed like a lovely, small town. I got a chance to briefly walk about and take pictures:
I’ll substantively reproduce the contents of my presentation below momentarily, since I was asked to provide a 2,000 word article summarizing my ideas for publication in the IFSMA newsletter.
I left with an IFSMA novelty tie, a box of Finnish chocolates (mmm!) and a commemorative IFSMA lapel pin.
A few individuals from the audience complimented me on my presentation, but one gentleman mentioned that I had “done a better job in San Diego.” Tough crowd. As someone born in Los Angeles, just a couple miles from “Screenland” Culver City, I can say with authority: the sequel is never as good as the original. But before I give away the plot, I’ll ask you, kindly reader, to keep going and form your own opinion:
Overriding Authority – And How to Defend It
by Erik Kravets
On the bridge, the captain has overriding authority over all issues relating to safety and security on board his or her ship. Aside from it being part of maritime tradition to give a captain this kind of power, it’s also enshrined in the law, e.g. in ISM Code Sec. 5.2 and SOLAS Ch. 5 Reg. 34-1.
Those rules both say the same thing: the master has overriding authority and responsibility to make decisions regarding safety and security and/or to protect the marine environment. What does it mean, though, to have “overriding authority”? It means that neither the company who employs the captain nor the owner of the ship nor the charterer of the same have any right to interference in the captain’s decision-making. They must back off and let the captain run his ship in the way that he or she believes is proper – this is the reverse side of the coin. After all, if the captain has full responsibility for what happens on board, he must have full authority, too.
Since the captain is responsible, the captain is also liable if anything goes wrong. If there are any breaches of labor regulations, any harm to the crew, any loss of cargo, any pollution of the marine environment, then invariably the captain is first drawn to account. But when people other than the captain are calling the shots, this can turn into an unfair scapegoat situation.
Indeed, the relationship between the captain’s overriding authority as the master of the vessel is fraught with complexity vis-à-vis the commercial and/or managerial concerns of the shipowner. These often exist in a state of tension. The safety and security of the vessel, its crew and its cargo, which take legal priority over other considerations, are in fact forced to take the “back seat” to saving costs, making a schedule or keeping a customer happy.
When the captain is subject to “desk-jockeying” by the shore office or other interests, it can complicate the already difficult task of keeping the ship, the crew and the cargo safe and secure. Beyond such immediate meddling, there is also the overarching problem of bureaucracy. “The vast amount of administrative requirements,” noted the International Maritime Organization (IMO) in a 2013 white paper, “seen as a whole, together represents a huge administrative burden for the company and the crew on board.” The IMO correctly identified this as not just a harmless time-wasting exercise, but also as a safety risk, since crews “spend considerable time on bureaucratic tasks, rather than actually manning and operating the ship[…].”
It goes without saying that the combination of intrusive shore office employees, the tug of war between the charterer, cargo interests and the shipowner and the hassle of paperwork are a serious burden on the captain. After all, good seamanship is still more art than science. Even with today’s technology, to paraphrase Samuel Clemens, it’s about knowing where the “good water” is and keeping her there. On top of that, with how complex modern ships are, and how challenging it can be to command multi-ethnic crews, it’s also about ensuring that all of the crew on board are doing their jobs properly, efficiently and with due diligence.
These problems, naturally, will be broadly known to today’s captains. The bigger question is what can be done to mitigate some of the harm from over-bureaucratization and intrusion into the captain’s overriding authority. In other words, how can the captain remain the ship’s master?
To start with, remember that not all rules are bad or even the enemy. When there is a conflict, reference to rules can often be used to overcome differences of opinion. This applies both vis-à-vis crew conflicts and also to potential issues encountered in port or with customs. Knowing the rules that can play in your favor, and being able to present them articulately and persuasively, is an important part of being a captain today – along with technical knowledge, such legal knowledge, at least in cursory terms, is an essential part of running a ship well. Rules can help enforce discipline, identify needed paperwork and make operational processes consistent.
Additionally, some shore offices are open to input from captains. By staying engaged with the shore office and making helpful suggestions, policies and procedures can be steered. Usually, the lawyer is the “smartest guy in the room” – and draws the ire of everybody else who just wants to “keep it simple!” But captains can bear this burden sometimes, as well. After all, more so than lawyers, it’s captains who have the experience to create good policies and procedures. They are the ones who know how the ships, crews and cargo work and interact. They know where the weak points are and where better procedures could help or, alternatively, hurt. By getting involved, bad policies can be prevented and good policies can be encouraged.
As always, though, paperwork is no substitute for “doing the job right”, even over the objections of the owner, the charterer, the cargo interests or even the crew. And in the end, it’s the captain’s duty and responsibility to get the job done right, even when it’s hard.
In this spirit, captains should always have a masterclass in evidence gathering and presentation under their belt. When a tough call is at hand, it’s impossible to make everybody happy. Whether it’s the owner, other crewmembers, the cargo interests or the charterer, when the captain is called to account for his decision, he or she will need an airtight, compelling case.
As generally practical people who are on site during critical moments, captains need to make split-second choices and can’t always go through the trouble of documenting, photographing, logging, recording or finding witnesses to support what they regard as just doing their job. But when their decisions are under scrutiny later, it’s not the captain’s in-the-moment seamanship that will persuade potentially aggrieved parties. It’s hard, objective evidence. While the good news is that, being on site, the captain can record the facts underlying his or her decision, and these are typically very solid, there’s also bad news: there is often no time to do so.
In other words, captains must both do their jobs and be prepared for the additional hardship of having to defend how their job was ultimately done. This is tough to swallow for most sailors whose chief goal and main desire is to get out on the water and run a tight ship. But it’s vital that captains assume every decision will be challenged. They should anticipate such challenges. Because of captains’ great responsibility, their decisions often affect millions of dollars. Whether it’s expensive cargo claims or large sums owed for demurrage, someone will inevitably challenge the captain’s decisions – it would be idealistic to assume that everybody will give the captain the benefit of the doubt rather than using the legal system to vigorously look after their own interests. Insurance companies, consignors and consignees, terminal operations, freight forwarders and ocean and land freight carriers all have a financial stake in the outcome.
And remember: the captain is the only individual on board who has both the authority, the strategic overview and the experience and knowledge required to make the call. Even other crew members will only have a partial understanding of the captain’s decision, since in all likelihood, information is disseminated on a “need to know” basis. The buck stops with the captain, and as a result of that, it’s the captain whose decisions will be attacked.
Even assuming complete honesty and integrity on the part of the captain, third parties are to some extent entitled to their skepticism. On top of that, it’s simply good practice to keep comprehensive, accurate and well-organized records – as irritating as it may be to have to go through the motions on a day by day basis, when few of the many risks ever materialize, for the one time the risk turns into a loss, it will have been worth all of the extra effort.
But then again, even the best effort can be undone. Written records can be accused of inaccuracy; photos can be blurry, grainy or mis-timed; witnesses can be confused, have gaps in their memory or can even be tampered with or bribed. If that’s the case, why bother? Just like locking a house at night, there are different levels of security. A simple lock, the most basic precaution, can be easily picked. A lock and bolt system may be harder to overcome. More sophisticated, smart alarm systems or even systems using live security guards provide another level of comfort. The point is that precautions can overlap, and that the more precautions overlap the better, overall, the protection will be at keeping out unwanted guests.
The same is true of evidence. It’s most persuasive when deployed together, e.g. photos supported by detailed, time-stamped protocols and third-party reports signed by witnesses. The more evidence is assembled into a phalanx, the more believable it will be and the more countervailing evidence will need to be found to challenge or call into question a story.
Modern merchant vessels typically offer internet access and a range of computer equipment on board. As such, it’s possible to compile valuable information even before arriving in port. Rough seas can be photographed and corroborated with weather station reports or marine forecasts; mechanical failures can be photographed, associated with maintenance records and maybe even captured in built-in error correction or maintenance software from the manufacturer; damage to the vessel or cargo can be recorded and sealed in protocols and then later cross-checked by a surveyor, who will ideally substantiate what is already known.
In a perfect world, lawyers would want the policies and procedures mentioned earlier to be linked in directly to step-by-step processes for addressing all kinds of situations. After fixing a problem that has arisen and ensuring and safe and secure journey, in the next step, the crew and captain would work together to capture and assemble all of the available evidence. Then the same would be archived, copied and communicated to the shore office and to legal counsel. Only then would the information, after being given the “green light”, be sent on to other stakeholders. A thorough, well-thought-out process is the best way to ensuring that the captain’s overriding authority is permitted to manifest itself fully for the benefit of the ship, crew and cargo, even if it means more work for the captain and crew, talking to lawyers and some paperwork.
The lawyers are the ones who have to take the evidence presented in favor or against a decision made by a captain and, if all else fails, argue it in court. Captains can play their part by making sure that all of the pieces are in place for the lawyer and that a complete picture is presented. If a sailor has a history of drunkenness, it needs to be fully supported and documented that the sailor was sober on the day of an accident; if there was a mechanical failure caused by a junior mechanic, show that he or she got the right, specific training prior to the issue; if cargo was issued a clean B/L, ensure that the genesis of any damage is plausibly, fully recorded.
It’s about ensuring that the company, the captain and the legal team work together to promote a good result. In times of economic hardship, like now, it’s important for everybody to do their best to try to make the inevitably arising problems go away just a little more quickly – even when problems are often made unnecessarily contentious in a try to “squeeze” a contract partner. A little bit of preparation, good policies and procedures and taking a deep breath before making strategic choices all go a long way toward keeping a shipping company viable.
But this is also essential for defending the right of the captain to use his or her overriding authority. When a captain makes a good call but takes bad evidence, it creates unnecessary exposure and also makes it seem like overriding authority should be subjected to more restraints. A tree is judged by the fruit, even if the fruit is already weeks old. It’s important to show the people who weren’t on board that captains know what they’re doing and should be left alone to do it – even when it’s unpopular or goes against the owner’s or customer’s wishes. The shipping industry relies on professionals to make the right call time after time. Integrity and a sense of duty should be respected as valuable aspects of our global industry.
In the end, the owner, shipper and charterer may complain, but they all rely on the captain to get the crew, the ship and the cargo to its destination safely – and in spite of second-guessing, the captain shouldn’t just be able to tell why his call was the right one, he must show it.
 “The Company should establish in the SMS that the master has the overriding authority and the responsibility to make decisions with respect to safety and pollution prevention and to request the Company's assistance as may be necessary.”
 “The owner, the charterer, the company operating the ship as defined in regulation IX/1, or any other person shall not prevent or restrict the master of the ship from taking orexecuting any decision which, in the master's professional judgement, is necessary for safety of life at sea and protection of the marine environment.”