Command or Control

Members will doubtless recall the findings of the court in the Birchall case recently which concerned the question of ‘command’ during a Cook Strait incident. 

As I understand it the case revolved around the question, and legal interpretation of,  ‘Command or control?’ and the Court’s findings were based, as doubtless they had to be, on the wording and interpretation of the Maritime Transport Act 1994. 

I have no difficulty with the judgment which was presumably the only conclusion to which they could come in the circumstances. However, the result is that it is causing New Zealanders to confuse the time honoured, and demonstrably practical, interpretation of the difference between ‘command’ and ‘control’ of a vessel. 

John Brown, when still Master of the Company, made reference to it in writing. Others have done so in private debate and discussion. 

I raise it now because I have read at least twice since then (unfortunately I do not recall where) of the two being confused but as I recall it they were in relatively authoritative statements of whatever was their source. 

I am concerned that the evil is spreading and it’s time to try to put a stop to it. 

I have no difficulty with the concept, of a ship having on board two masters where her operation calls for it (i.e. Cook Strait ferries) so long as there is clear a hand over with entries in both Official and Deck Log Books, and the retiring master is ‘on leave’ aboard the ship — not merely ‘off duty’ — during the period the alternative master is in command. 

As experienced mariners we are very familiar with the concepts of ‘in command’ and ‘in control’. I do not need to elaborate on them here. 

I have not yet attempted to research the many facets of this subject and this is only a preliminary ‘alert’ in the hope that our members and other master mariners in NZ will be willing to take up the issue as being of sufficient important in the operation of ships. 

I do not wish to appear unduly biased in expressing a concern that so much direction of NZ maritime legislation and operation is being driven by an MSA (Maritime New Zealand) which lacks, to a now significant extent, experienced mariners in senior positions whose replacements, understandably, have little understanding of the culture or the practical aspects of the matter. 

I believe that as responsible master mariners we have a duty to speak out and I suspect that the MTA drafters may perhaps have been unclear on this point, possibly from ignorance, and were not deliberately intending to upset the boat. 

I believe, but correct me if I am wrong, that the problem is being brought about by the way in which this subject is framed in the legislation; the MTA being at the heart of the problem. 

I feel sufficiently strongly that, if after proper research and legal opinion, my concern is supported, we should take the matter further with MNZ, and with the Minister of Transport if necessary, with a view of ultimately ensuring the legislation does not erode a clearly understood practice amongst mariners which, when properly handled, removes confusion and adds to maritime safety. 

As a member of the Honourable Company I would be happy to write to its master for an expression of his, and/or the Honourable Company’s, views. Similarly I would happily seek the views of the Nautical Institute too. 

If I am correct in my understanding, and if becomes necessary, I would be pleased to see the NZ Company enlist the support of maritime organizations in the UK and Commonwealth.  

If members share my concern  I think we first need to determine if I am correct in believing this is presently an NZ only, concern arising out of the MTA and the court’s judgment in the Birchall case. 

To this end our Master might care to consult with the Company’s legal advisers and, being Auckland based, might perhaps choose to have a first discussion with the Auckland Branch’s legal adviser to whom I am sending a copy of his memo for his interest.

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