Master of all she surveys â€” or not?
As Cunard appoints its first female master, what are the principal duties she will be taking on that encompass the role of a shipâ€™s chief executive?
John AC Cartner
Lloyds List Wednesday 22 December 2010
WHAT does a master do? It is a curious position, unique in employment, fraught with mental, physical and legal dangers.
Hats off to Cunard for appointing the first female as master in its 170 years. May Inger Olsen always have following winds, calm seas and prosperous voyages. It is fitting that she now commands the Queen Victoria .
The shipmaster has five duties. She must keep safe the ship, people, cargo, voyage and environment. The master acts under the flag state warrant, her professional discretion and by communicating with the owner.
She must keep the ship safe as a costly company asset entrusted to a selected few. She must keep the people safe who are safer on the ship than off. She must keep the cargo safe because she is entrusted with it and it represents revenue.
The master must safely prosecute the voyage because if she does not, things to which she owes duties are jeopardised. She must keep the environment within her local control by operating safely and leaving no footprints. The devil is in the details.
Surrounding her duties are her status as ownerâ€™s agent. There she owes the owner the duties of following orders, conserving assets, not exposing him or her to unnecessary liability, reporting regularly and by warrant and law exercising her command discretion prudently. Violating a duty is violating the agency.
The certificate grants her many powers to enforce the flag stateâ€™s laws. The owner cannot operate the ship without a master. The master must have an owner. May the master disobey the owner? The short but accurate answer is â€œYesâ€. Letâ€™s take three examples under the doctrine of agency of necessity.
The master is in the same port as the owner. The weather is making up and the master has taken all precautions. The ship is bunkering. The owner decides that he or she would like to see the ship and shows up asking to board. May the master deny the request? Yes.
Within the masterâ€™s duties are the denial of boarding to any person for his or her safety and for the safety of the ship, the people on board, the cargo, the voyage and the environment. The bunkering, the thunderstorm the master expects and the beginnings of a good gale of wind are all reasons for denial.
Does that change the master in law? She is an employee at will. With her command discretion she is upon her denial a bailee pro tem of the ship. That means that she has custody of the ship during the danger and may exclude all comers â€” including the owner.
Does the baileeship pro tem expire when things are safe? It depends. If no reasonable danger replaces it she would justify only with difficulty and could be made redundant if she cannot.
At sea in weather the master is on the bridge at night manoeuvring. The owner is taking a free trip. The ship is in substantial motion. The owner comes to the bridge â€” wild-eyed â€” and begins to direct the helmsman.
The master countermands and orders him restrained and returned to his stateroom, where the chief mate explains the masterâ€™s reasoning. The master is an employee at will but exercising her duties as a bailee pro tem where she may exclude all comers. When the danger passes is she still a bailee? Only if the master as a prudent master says she is by her acts or words or the ship is in a safe port.
The master of a small bulker in a one-ship outfit is in a small South American ore port. She is running out of funds for payroll, repairs and provisions.
Neither the owner nor the minimised staff return her calls for 96 hours. The master is beginning to contemplate the dwindling moneys and her wages and ticket home.
She goes ashore. The agent denies her. The agent has neither been paid nor can reach the owner. The master prudently seeks legal counsel and learns that she can borrow money against the ship for the needs of the vessel and the voyage and the exercise of the other duties by a pledge in bottomry against the vessel in the stead of the owner.
She goes to the bank, borrows the money in the name of the owner, pledges the ship as security, pays the bills and awaits orders, dutifully trying to call the owner four times a day.
What is the master? She is an employee at will. She is a bailee pro tem up to the time she borrows the money. But she must be something else to borrow the money because a bailee has no claim to the title of the property. Therefore the master as bailee pro tem becomes a constructive trustee.
The constructive trustee may borrow the money because in that circumstance the master as trustee holds constructively the title of the vessel. The trusteeship expires as soon as the loan is closed. The owner has the liability. The master as bailee pro tem does not. She holds the money and accounts for it as an agent doing her duties.
John AC Cartner is a maritime lawyer practising in Washington DC. He holds the US Coast Guardâ€™s unrestricted master mariner certification and is the principal author of The International Law of the Shipmaster (2009) Informa/Lloydâ€™s. firstname.lastname@example.org