# The relentless criminalisation of the ship's master



## Cap'n Pete (Feb 27, 2006)

NAUTILUS UK has expressed alarm about a court case in which a member was fined £1,800 after breaching his vessel's safety management system by allowing an 'over the limit' crew member onboard.

Captain Alexander Phimister, master of the support vessel VOS Viper, was sentenced at Lerwick Sheriff Court last month after pleading guilty to breaching safety regulations in connection with the death of a crew member Gordon Michael Buchan in November 2007.

Mr Buchan died following a fall down steps onboard the ship after returning from a run ashore. Capt Phimister was accused of breaching the safety management system by allowing Mr Buchan to board the vessel when his blood alcohol level was almost four times the legal limit under merchant shipping rules.

Defending, advocate Louis Moll told the court that Capt Phimister clearly had breached the regulations 'with the best of intentions' because he was 'between a rock and a hard place' when Mr Buchan returned to the ship.

The master had to make a decision 'either to leave him on the pier or let him on to the ship to recover, clearly in breach of the regulations', the advocate said. Capt Phimister decided to let Mr Buchan onboard because the ship was docked and there was no prospect that she would leave within the following 24 hours. There were also duty crew members onboard who could move the vessel to another berthing place should that have been required by the harbour authorities.

Nautilus assistant general secretary Mark Dickinson says the Union provided legal support for Capt Phimister, and regards the case as 'extremely disturbing' because of the implications it raises.

'We believe this case is another example of the criminalisation of the maritime profession, and raises fundamental questions about the responsibilities of masters and the workings of the ISM Code.

'The core question remains: what was Capt Phimister meant to do in such cir***stances, and what would have happened had he refused to allow Mr Buchan onboard the ship?'


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## Cap'n Pete (Feb 27, 2006)

I would be interested in SN's members views on what action they would take if a crewmember returns from shoreleave drunk. Would you leave him standing on the dock where he could possibly come to great harm, or allow him to board your ship where he could sleep it off in his bunk. 

This mans death was tragic - however, if the captain had not let him back on board, he could easily have died in any number of ways had he left ashore. The master is in a catch-22 situation - dammed if you do and dammed if you do not.


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## Steve Woodward (Sep 4, 2006)

Wonder what the court would have dome had the captain followed co. directives and left him ashore and he had : A - frozen to death on the jetty, B fallen in the dock and drowned.
very sad and unfair case


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## shamrock (May 16, 2009)

I am not qualified in any way in respect to the legal side of this situation but my take on this would be...

If the ship, as was the case here, was due to remain in port for 24 hours then I would be inclined to have the crewmember board and have them confined to their cabin until they had at least slept off the effects of the booze. I know it is hard to keep someone in their cabin but if push came to shove, ther would be a way, I'm sure, to do that safely.

Had the ship been due to leave within the hour of the crewmember arriving drunk, then yes, I would have left him behind, probably have made arrangements for him/her to stay at a hotel or B&B or somewhere safe until the ship was next in port to collect them or they were in a fit state to rejoin the ship at another port.

Rock and hard place does come to mind and I do wonder if the captain concerned in this tragedy would have been prosecuted had the accident not actually happened or if the crewmember concerned had not died as a result of the fall but had only sustained injuries.


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## paisleymerchant (Mar 15, 2007)

The Master is responsible for all crew members he was right to allow the man onboard, it is a shame that the chap passed away but as you say the captain was caught in a catch 22.
When you go ashore usually it is with the intention of coming back after a good nights boozing ! you dont expect to come back to the ship to be told you are not getting on board !That would have caused ructions.
On some ships even came back with the skipper after a good night out did not see him telling himself that he was banned from boarding !
Its ridiculous that the Master was held resposible for the chap's passing.


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## roddy (Mar 5, 2006)

There can be very few, if any, who sailed as Master, that have not been guilty of the same offence. Attitudes to excess alcohol have hardened in more recent times, however I am not aware of any company instruction that requires that the intoxicated person be left at the foot of the gangway.
This one has to go to appeal.

Just a thought if the vessel had been RN, or even large cruise liner, would the commander have been prosecuted.


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## Peter Fielding (Jul 20, 2005)

"If the ship, as was the case here, was due to remain in port for 24 hours then I would be inclined to have the crewmember board and have them confined to their cabin until they had at least slept off the effects of the booze. I know it is hard to keep someone in their cabin but if push came to shove, ther would be a way, I'm sure, to do that safely."

Under the idiotic "human rights" legislation, I wouldn't be at all surprised if that course of action would have left the master open to an action for false imprisonment!


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## Supergoods (Nov 25, 2007)

It seems the only legal way out of the situation would be to call the law down to do whatever they had to.

Any other solution leaves you in a catch 22 position.

Not a good solution for crew relations


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## Bill Davies (Sep 5, 2007)

Cap'n Pete said:


> - dammed if you do and dammed if you do not.


The nature of the beast.

Brgds

Bill


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## ROBERT HENDERSON (Apr 11, 2008)

What would any of us do? This is difficult to give a definitive aswer to, but as I read the Nautilis magazine and read more and more cases of shipmasters and in the case of the Pride of Bilboa and the yacht sinking off the IOW the OOW was up on manslaughter charges, all I can say is that I am bloody glad I am retired.

Regards Robert


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## Keltic Star (Jan 21, 2006)

My first take is that the ship was the crew members home, nobody had a right to refuse him access to his home, drunk or sober.
Secondly, if the master is expected to refuse boarding to crew members in a foreign port he can be guilty of all sorts of immigration laws and I certainly wouldn't want to try that stunt in the United States. Come to think about it, for his own safety, I wouldn't want to leave a crew member stranded on the dock in any port, foreign or UK in an inebriated condition. 

If one had to put up with this type of BS in my time at sea. a three month trip would have ended up as a six months voyage due to waiting for the entire crew to sober up on the dock before we left each and every port.

This is another case that proves the fact that judges are totally incompetent lawyers politically promoted to the bench by crooked politicians.


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## tunatownshipwreck (Nov 9, 2005)

A captain has to wear a lot of hats in his job and he did the right thing in letting a crewmember on board, although not in the best of condition, but any alternative would be worse. As it was noted, the ship was not to set sail for at least a day, ample time for a recovery. I'm not excusing the crewmember's excess, but that is a discipline to be weighed by the captain. Even though his condition was self-inflicted, he was for all purposes, ill, and I can't fathom denying him his bunk for that.


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## stein (Nov 4, 2006)

The legal profession has lost contact with reality, but this is related to the state growing ever bigger and leaving less and less responsibility for himself to the individual. 
One stupid example is the effective ban on climbing apparatuses in kindergartens in my country, which certainly impairs the chidrens ability to learn balance, and so lessens their safety. But should one toddler break his neck the head of the innstitution would be sued for a fortune.
My judgement on the above story is that getting drunk impairs your balance and judgement and everyone who has ever drunk alcohol knows that, which means that the responsibility lies squarely on the dead sailor himself. This sort of story makes me real angry (Cloud). Regards, Stein.


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## Bill Davies (Sep 5, 2007)

I would encourage further site debate on the ISM code. Since its implementation common sense and self reasoning have been lost. Masters, when confronted with a situation seem to think' What does the Code have to say'?? before making a rational decision themselves.

Bill


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## tsell (Apr 29, 2008)

roddy said:


> There can be very few, if any, who sailed as Master, that have not been guilty of the same offence. Attitudes to excess alcohol have hardened in more recent times, however I am not aware of any company instruction that requires that the intoxicated person be left at the foot of the gangway.
> This one has to go to appeal.
> 
> Just a thought if the vessel had been RN, or even large cruise liner, would the commander have been prosecuted.



Another thought too, regarding a cruise liner. If the captain has, as the lawyers seem to be saying, a duty of care to his crew, does he also have the same duty of care to his passengers?
What is he expected to do when an inebriated passenger attempts to board his ship? It happens all the time.
So does this now open a huge can of worms? Imagine a litigation conscious captain leaving a couple of hundred pissed passengers on the wharf!
Could this be an argument on appeal?
Would be interested to know the answer to this question.

Taffy R556959


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## spongebob (Dec 11, 2007)

Stein, your post raises an interesting point regarding a sense of balance and while I stray from gist of this thread I mention that recent advice to me and many of my age is that a good sense of balance is an essential weapon against accidental falls that so often lay us up with a broken limb.
My own Doctor, a young ironman cyclist, confirms that cycling, even a slow pedal along a quiet track, does wonders for the sense of balance and that all able older people should be giving it a go.
Met up with an old friend last weekend who rode for Britain and won silver medals on the cycle track at the Helsinki and Melbourne Olympics and he confirms that he still gets out once or twice a week to pedal up to 30 kilometres. Not bad for 77 so I am seriously thinking about getting on my bike.
You are right about those Kids in the playground or even in their home environment, they are not getting the healthy physically rough and tumble introductions to their youth that most of the previous generations enjoyed. Falling out of a tree is a character building experience.
Back to falling over drunk, we have all done it.

Bob


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## J Boyde (Apr 7, 2005)

Had an incident wgere I was the watch engineer. Weather was rough and the greaser had had a gew drinks, he stunk of sherry, or some cheap wine and was not very stable on his feet. I told him to leave the engineroom and sleep it of. Generaly a reliable man. I reported it, being there on my one. About fifteen minutes later I was told he would by comming back in the enginroom. I was told that i was not a Doctor and thus not capable for saying he was drunk. The delegates had been to the master and chief, result, back into the engineroom. I always wondered what would happen had there been an accident.
Jim B


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## Cap'n Pete (Feb 27, 2006)

For info, I remember being in San Francisco a few years ago on Independence Day. An American warship was berthed alongside Fishermens Wharf, so the tourists could see her. I noticed that large numbers of her crew where returning from shore leave three sheets to the wind. At the bottom of the gangway stood several stretcher parties. Each tar returning to the ship was inspected by a regulating po and those noted to have been drinking were lashed down onto a stretcher and carried aboard.

Of course, it's all very well for the Navy but with so few crew on merchant ships these days, you're hard pressed to maintain a gangway watch at all, let alone make sure drunken sailors can get safely onboard and into their bunks.


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## Eddie Wallace (Nov 1, 2005)

the health and saftey clearly states that Everyone is Responsable for their own saftey ,the captain should have appealed .


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## Pat Thompson (Jan 25, 2006)

Greetings,

It would apear that our legislators (MPs) managed to drag themselves away from stealing from us just long enough to criminalise seafarers.


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## GWB (Jul 11, 2007)

What happened to taking responsibilty for own your actions, duty of care is just a cover up for lawyer's to make money, why should the master have to stand at the gangway and breatherlise every seaman coming aboard. If this was a cruise liner and Captain insisted passengers be breatherilised could you see the repercussions with managment and customer complaints of the infringement of their civile rights. It's a laweryers picnic personally Bull-----
sh--

GWB


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## McCloggie (Apr 19, 2008)

It is of course a sad event but I have to agree that the responsibility of the individual to look after him/her self is being taken away and there now seems to be a culture of always blaming somebody else. The threat of litigation round every corner has of course contributed.

What could/should the Master have done? Maybe keep the victim on the dockside with a somebody else to keep him out of harm and call the Police. Having said that were there any other crew members available and would the Police have answered a call to deal with an inebriated seafarer?

To answer the questions about the RN and cruise ships - firstly there are far more crew available to deal with the situation. Secondly, in the RN it is (or used to be) the Officer of the Day (OOD) who has the responsibility (perticularly if the OM is ashore anyway) and can call on a duty watch to assist him. The OOD can (or used to be able) to decide what to do and may call for a doctor to confirm his opinion that a crew member is drunk (he/she MAY be ill after all!).

It is possible to have someone else watch over the miscreant through the night and of course you can always charge the guy and bring him to the Captain's Table. 

All very well on a warship with young sailors but maybe not the best way forward with older guys in the MN!

McC


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## Torrance (Jan 1, 2009)

*Tip of the iceberg.*

With more and more legislation being directed towards the vessel, incidents like this will become more and more common place. 
Large companies who constantly set standards higher and higher, and disrupt the social well being of the seafarer constantly by pointing the finger have only themselves to blame.
There was a time when the Master's decision meant something now he has as much chance of breaking the law as he does of keeping it. 
Far too much interference from desk bound experts that think we need all of the fancy new directives to make us better, KPI's at sea, whatever next! 

When are they going to relaise that all management is people management, and all leadership is is people leadership, and there is nothing a manager or leader can do that does not depend on its effectiveness on the meaning that other people attach to it. 

This will go all the way the repercusions endless!! I don't think the Master was at fault at all, I would have done the same.

How I yearn for the old days when people actually mattered.


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## Cap'n Pete (Feb 27, 2006)

Eddie Wallace said:


> the health and saftey clearly states that Everyone is Responsable for their own saftey ,the captain should have appealed .


Unfortunately, the Health & Safety Legislation does not apply on merchant ships, including British-flag vessels. EVERYTHING comes under the control of the MCA whose primary concern is to protect the interests of the shipowner; this is part of the problem - in the UK, the authorities would be prefer to prosecute the master as prosecuting the shipowner might make him flag his ships elsewhere.


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## Iain B (Apr 28, 2007)

Cap'n Pete said:


> Unfortunately, the Health & Safety Legislation does not apply on merchant ships, including British-flag vessels. EVERYTHING comes under the control of the MCA whose primary concern is to protect the interests of the shipowner; this is part of the problem - in the UK, the authorities would be prefer to prosecute the master as prosecuting the shipowner might make him flag his ships elsewhere.



Capt Pete 

Looking at the very first post on this you report that the Capt was found guilty of breaching the companies SMS. I presume that this means he either wasn't in breach of any other H&S regulations or the common law 'duty of care' or perhaps the prosecutors just went for this one because it would be easier to get a conviction. 

The Managers developed and implemented the Safety Management System and the Capt was found guilty of intentionally choosing to ignore it. The Captains problems start with the unworkable and unrealistic SMS. 

I was involved in a similar case where a drunk crew member fell and was seriously injured on board a ship. The lawyers had a very close look at the SMS in view of a potential civil case for damages, but they dropped it because they had no where to go, and you should bear in mind that the burden of proof in a civil case is much less then it is for a criminal prosecution. 

I think you always need to read the full judgement before being able to really understand the case and it's also unclear whether the prosecution was brought by the MCA enforcement unit? I suppose if it was breach of the SMS then this would be the MCA? 

Working in my side of the business, I would have to disagree about the MCA being too nice to owners. Compared to just about every other flag on the planet the MCA must be the most difficult to deal with for an owner. 

Iain


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## James_C (Feb 17, 2005)

Regarding the MCA being 'difficult', it's hard to deny that in recent years they've mellowed significantly when it comes to Agency/Company relations.
I recall a conversation I had a couple of years ago with a fleet manager asking him why the ships were all flagged in Douglas and not in London, taking into regard the tonnage tax etc. His reply was that monetarily there wasn't much difference, however the Isle of Man were much more "flexible" in their structure with regards to regulation onboard plus any exemptions and ad hoc questions/demands the company should pose.
I'm sure we all know *exactly* what that means.
However that doesn't move away from the fact that today the Red Ensign is nothing more than a Flag of Convenience.


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## Torrance (Jan 1, 2009)

*Mca*

I have always found the MCA to be quite reasonable, on the whole understanding and knowledgable, far better to deal with than some of the classification surveyors especially in China and the Middle East.

But have to agree before you can make final judgement would ahve to see the whole transcript of the case. But still feel its opened a can of worms, maybe no booze at all like Maersk is the answer!!


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## Bill Davies (Sep 5, 2007)

James_C said:


> However that doesn't move away from the fact that today the Red Ensign is nothing more than a Flag of Convenience.


Quite agree.

Bill


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## Bill Davies (Sep 5, 2007)

Iain B said:


> Capt Pete
> 
> . Compared to just about every other flag on the planet the MCA must be the most difficult to deal with for an owner.
> 
> Iain


The MCA has an image problem. I do not think there are many out there who have the slightest respect for MCA Surveyors.


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## cboots (Aug 16, 2004)

I have had a similar experience when there was a nasty accident on the factory floor of a client of mine some years ago. Some guys were clowning around late one Friday afternoon and the outcome was a couple of them got burnt, one quite badly. The Health and Safety people got involved, of course, and immediately started assessing blame and hinting at fines, for my client of course, not the culprits. Well, on conducting some inhouse investigations it was quickly ascertained that alcohol was involved and Bill, my client, grabbed on this and was of the view that this got him off the hook. I well recall saying, "Bill, keep your mouth shut, this will only make matters worse." Unfortunately he chose to ignore me and ........... well suffice to say he was blamed for allowing inebriated personnel access to the shop floor in addition to being held responsible for the original accident. The thing dragged on for months being a horrendous drain on management time and resources, the fines were far beyond what was being talked of originally. But the true revelation were the lawyers' fees, the ones that he engaged to conduct the investigation which I offered to do for my normal modest rates. Their daily rates were about what Bill Clinton charges for an after dinner speech. Whatismore, their noble and learned efforts did not seem to aid our cause one iota.
To summarise, we live in a litigious age; if you get hurt in anyway, someone has to be to blame, and there are an army of lawyers out there only to eager to help you find that person and pursue them for as much money as you can get out of them. I am not trying to excuse negligent and callous employers but sometimes accidents just happen and I am not of the view that the relentless pursuit of an "**** to nail to the deck" produces the best outcome.
I also agree with what has been said above, that the unfortunate master in this case was stuffed whatever he did. Sadly this is a common tale in many professions now; think it is tough being a ship's master, try being a doctor!
CBoots


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## noodles (Apr 22, 2009)

Cap'n Pete said:


> I would be interested in SN's members views on what action they would take if a crewmember returns from shoreleave drunk. Would you leave him standing on the dock where he could possibly come to great harm, or allow him to board your ship where he could sleep it off in his bunk.
> 
> This mans death was tragic - however, if the captain had not let him back on board, he could easily have died in any number of ways had he left ashore. The master is in a catch-22 situation - dammed if you do and dammed if you do not.


what is happing here of course he should b allowed onboard jeasus what they want to do with seaman nowadays tell them to go ashoure and enjoy themselfs but if they get over the limet dont return back to school days


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## tell (Feb 12, 2005)

the skipper of the Llanberis never turned me away, oh how i wish he had


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