TORN HULL STRAINED RELATIONSHIP

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TORN HULL / STRAINED RELATIONSHIP

• Marcus Dodds
• Solicitor Master Mariner
• 2nd October 2008

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CASE STUDY - pictorial
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CASE STUDY the events
Bulk carrier inbound approaching pilotage. Chief
Officer and lookout in turn report an isolated
danger mark on the starboard side.
The Master acknowledges the reports, but takes no
action. The Vessel allides with an underwater
obstruction marked by the buoy.
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CASE STUDY the investigation
The finding of the Flag State investigation is
that there was a failure amongst the bridge team
to work effectively and in particular to observe
proper challenge/response methods of
communication.
All members of the bridge team were properly
qualified and certificated. The Master, had not
appreciated that the Vessel was setting down on
to the danger mark and the bridge team allowed
the accident to happen.
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CASE STUDY the allegations
Owners hold Managers at fault for failing to
realise difficulties within the bridge team in
particular, Owners say that Managers should have
known that
they had combined incompatible nationalities
the Master behaved like a tyrant and there was
a culture of subservience that prevented a
challenge / response culture and the Chief
Officer was not sufficiently experienced to hold
such rank.
1.
2.
3.
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CASE STUDY the internal enquiry
There are no records of any pre-employment
inquiries and it appears that the Chief Officer
had been involved in a previous incident There
are inconsistent records of appraisals The
Chief Officer says that he had difficulties with
the Master, but no-one ever asked him.
2.
3.
4.
The Master says the Chief Officer was
inexperienced and that he had lost faith in him.
5.
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SHIPMAN 98 FORM Managers duties
Cl. 3.1 Provide suitably qualified crew to STCW
95 standards and associated training. Provide
for training and supervise their efficiency. Cl.
3.2 Provide competent personnel to supervise the
maintenance and general efficiency of the
vessel. Cl. 4 Use best endeavours to provide
the agreed services in accordance with sound ship
management practice.
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Pre-Employment Enquiries
The Makedonia
such important appointments to such responsible
positions call for a proper interviewing and a
proper inquiry
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Pre-Employment Enquiries
The Farandoc
The owners duty is to ensure that the vessel is
properly manned so far as the exercise of due
diligence can serve to secure it.
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Pre-Employment Enquiries
So, what goes to show the exercise of due
diligence on the part of Owners and Managers?
The Makedonia
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Pre-Employment Enquiries
A careful inspection of the seamans book The
applicants history question him on it and in
particular the reasons for any previous incidents
or for any gaps in that history Establish that
his certificate is valid Seek and obtain written
references from previous employers and, if
necessary, press for fuller information
and Carry out an interview and record that
interview in his personnel file
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3
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Pre-Employment Enquiries
A careful inspection of the seamans book The
applicants history question him on it and in
particular the reasons for any previous incidents
or for any gaps in that history Establish that
his certificate is valid Seek and obtain written
references from previous employers and, if
necessary, press for fuller information
and Carry out an interview and record that
interview in his personnel file
1
2
3
4
5
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Pre-Employment Enquiries
A careful inspection of the seamans book The
applicants history question him on it and in
particular the reasons for any previous incidents
or for any gaps in that history Establish that
his certificates are valid Seek and obtain
written references from previous employers and,
if necessary, press for fuller information
and Carry out an interview and record that
interview in his personnel file
1
2
3
4
5
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Pre-Employment Enquiries
A careful inspection of the seamans book The
applicants history question him on it and in
particular the reasons for any previous incidents
or for any gaps in that history Establish that
his certificate is valid Seek and obtain written
references from previous employers and, if
necessary, press for fuller information
and Carry out an interview and record that
interview in his personnel file
1
2
3
4
5
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Pre-Employment Enquiries
A careful inspection of the seamans book The
applicants history question him on it and in
particular the reasons for any previous incidents
or for any gaps in that history Establish that
his certificate is valid Seek and obtain written
references from previous employers and, if
necessary, press for fuller information
and Carry out an interview and record that
interview in his personnel file
1
2
3
4
5
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Post Employment New personnel
The Hong Kong Fir Shipping Co.
Properly manned means appropriate certificates
and appropriate knowledge, training and
instruction
The Eurasian Dream
seaworthiness must be judged by the standards
and practises of the industry at the relevant
time, at least so long as those standards and
practises are reasonable
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Post Employment New personnel
Appointing new personnel to a vessel
Position on first employment Similar rank on
different vessel types
The higher the rank the more care is required to
record the steps taken to ensure that an
appropriate rank on an appropriate vessel has
been assigned.
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Post Employment New personnel
Familiarisation
with SMS
bulk, accessibility and time taken
period/opportunity allowed
evidence of competence and diligence
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Post Employment Work loads
Monitoring work loads on Vessels
Records of hours worked Exigencies of the
service Evidence of under manning / delegation
issues
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Post Employment - Compatibility
The importance of the teams

• TMSA Guidelines make clear that the main
  objective is to ensure that all ships have
  competent crews who fully understand their roles
  and responsibilities and who are capable of
  working as effective teams.

The ISM Code expects that Owners will work to
improve the skill of personnel.
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Post Employment - Compatibility
Ensuring that the bridge and engine room team
work effectively as units and together
Language barriers Cultural differences Personali
ty clashes
Clause 3.1 (iv)
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Post Employment - Compatibility
Ensuring that the bridge and engine room team
work effectively as units and together
Communication with the technical arm of the
managers, who attend the Vessel and Debriefing
of crew and appraisal of all, including the
Master.
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Post Employment - Appraisal
Written appraisals
Paper trail evidence of due diligence Recommendat
ions for retention/promotion Consistency/regulari
ty
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Post Employment - Reporting
Reporting of incidents or potential risks
ISM Code (SMS) sets out chains of responsibility
and creation of a designated person
ashore Safety committee minutes/incident reports
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Induction Ashore ?
The crewing arm of the Managers
Familiarity with SMS Proper handovers from
predecessors and Need for retention of records.
1.
2.
3.
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Post-incidents and relationship issues
Investigation and reporting to Owners
Issuing Fleet Circulars
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CREW NEGLIGENCE WHOSE EMPLOYEES WERE THEY
ANYWAY?

• Alex Andrews / Marcus Dodds
• Partner / Solicitor Master Mariner
• 28th May 2008

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The background
Ferryways v ABP (Preliminary Issues)
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The Form
BIMCO Crewman A
Costs Plus Fee Form
Manager acts as agent for and behalf of Owners
Intention is that Owner is the employer
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The contract
Employment contract voyage contract
Manager was the employer
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The facts
Managers were a small company and only engaged in
crewing not technical services The grievance
policy and code of conduct had more relevance to
Owners There was a reference to the existence
of an SMS and Owners were involved in the
selection of senior officers (including the Chief
Officer).
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The decision
Despite the apparent intention of the employment
contract, the indications were that Managers had
entered into this contract as agents for the
Owners, who were the undisclosed principal.
Court found that the Owner was the employer
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Why of interest then?
There are clear indications from the decision as
to how the Court might find differently, if
The Managers were also technical managers and not
merely involved in crewing
1.
The Managers had enough staff to have dealt with
grievances and to establish codes of conduct and
2.
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Why of interest then?
There are clear indications from the decision as
to how the Court might find differently, if
The Managers had the experience to produce and
operate a structured SMS for each of the vessels
of its clients and
3.
the Chief Officer had not sailed on the Owners
vessels before, the use of a voyage contract
rather than a permanent contract may have
indicated that he was the servant of the Managers
4.
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The moral?
The use of Crewman A or B Forms is not the end of
the enquiry with respect to issues of identifying
the employer. Consideration needs to be given to
the precise terms of the employment contract.
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CASE STUDY - pictorial