As reported over a few days, the APL England, a 5,780 TEU capacity containership lost around 40 containers off the coast of New South Wales in Australia with around 74 containers lying in a collapsed state within the stacks on board the ship..
Preliminary investigations found that the lashing arrangement for the cargo was inadequate and that some of the securing points for containers on deck were heavily corroded..
These findings are in breach of the requirements of SOLAS (The International Convention for the Safety of Life at Seas) necessitating the detention of the ship in the Port of Brisbane to be in place till these serious deficiencies have been fixed by the ship’s owner APL and the vessel operator..
The Australian Maritime Safety Authority (AMSA), the Queensland Police and the Commonwealth Director of Public Prosecution laid charges against the Master (Captain) of the ship for offences relating to pollution and/or damage of the Australian marine environment as a result of poor cargo loading..
As per AMSA, The Master of the APL England appeared before the Wynnum Magistrates Court to face two charges relating to the loss of containers from the ship:
- Section 26F of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 – Discharging of garbage into the sea contrary to the Act
- Section 141 of the Navigation Act 2012 – Master did not ensure that the vessel was operated in a manner that did not cause
- pollution to the marine environment in the coastal sea of Australia or the exclusive economic zone of Australia and
- damage to the marine environment in the coastal sea of Australia or the exclusive economic zone of Australia
These charges carry maximum penalties in excess of $300,000..
While AMSA clarified that laying charges against the ship’s Master is not an action that they undertake lightly, they wanted to remind everyone of the important role the ship’s Master has in ensuring the ships that ply in Australian waters are operated safely and do not damage the marine environment..
AMSA also mentions that the action against the master should in no way absolve the shipowner APL Singapore, insurer Steamship Mutual, and operator ANL from accountability or remediation of any impacts of this incident..
The Master of the APL England, a Malaysian national has subsequently been permitted to return home after payment of $60,000 as deposit and under new bail conditions which require him to return to Australia as and when required by the court..
While this means that he can return to work, it is unlikely he will take command of any ship currently given the tough conditions seafarers face for crew changes due to COVID-19 and also the requirement to return to Australia on short notice..
Are ship captains responsible..??
This incident has elicited several comments from the maritime community
Dariusz Gozdzik, a Master Mariner, non-practising Solicitor and Independent Maritime Consultant is of the view that
“Two entities with primary responsibility for the ship are (1) the company named in the ISM Document of Compliance issued to it and in the Safety Management Certificate issued to the ship; and (2) the Flag State which issued those certificates and which is obliged by the UN Convention on the Law of the Sea, 1982 (LOSC) to take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, among other things, to the construction, equipment and seaworthiness of ships.
In taking those measures, a Flag State is required to conform to generally accepted international regulations. These include treaties adopted under the auspices of IMO; SOLAS being one.
According to AMSA, the ship was detained for clear breaches of SOLAS. If primary responsibility for that (and thereby for the safety of lives and ships at sea) had now to be placed on the persons and organisations you list, would it not tend to suggest that the other two are repudiating theirs?
Masters often do not have the luxury of choosing where to work, much less which particular ship they are appointed to. Are we to understand that from now on, masters of container ships arriving in Australia face a lottery – if calm weather is encountered on the way, they are fine.
If heavy seas are encountered, stacks collapse and containers are lost, they become criminals? If so, they are easy targets for possible failings of the whole industry and systems.
Safe Manning and ISM certification is, after all, issued by flag states. Thus your decision to prosecute this master is in my view highly regrettable. The more so if, as I suspect, the offence(s) he is charged with is/are of strict criminal liability.
Meaning that, not only will he face criminal charges and possible conviction for what effectively may amount (if at all) to no more than mere negligence, but he will have no (or very limited and practically unattainable) defences. His state of mind will, unfortunately, be irrelevant – a classic case of criminalisation.
None of this should imply that I condone the taking to sea of unsafe ships or indicate how I might act faced with such a contingency.
In my view it would not be unreasonable or unfair if the standard for criminal liability of a master were based on a mens rea of intent or recklessness.
Not, as is often the case these days, (mere) negligence. Worse still is the imposition of strict criminal liability – in which situation the presence of actus reus alone is sufficient to secure conviction – or, where statutory defences (if they exist at all) are mostly unattainable in practice.”
Abhishek Nair, another Master Mariner, opines
“AMSA in their press release dated 29 May 2020, confirmed that they have charged the Master of APL England with offences related to pollution and/or damage to the Australian marine environment as a result of poor loading. They also stress that investigations are ongoing and this action was not undertaken lightly.
Going by the extensive sea-going experience within AMSA’s team, I am confident that the Master’s version of the story will be heard out and he/she will be given a fair trial. That being said, this is bound to set a wrong precedent for the future as laying charges on the Master (or other ship staff) for an accident, whose possible root causes lie in the multitude of loopholes in the logistics chain of the “box”, is plainly unjust and unfair.
The Master is indeed responsible for the safe loading of his/her ship and ensuring she is safe to carry out the intended voyage. However, he has no control whatsoever in how the container has been packed and it’s suitability to perform a sea voyage. Every Master does his bit of due diligence (and a lot of it in good faith) before proceeding on a voyage, after all it is not just the cargo that he is a bailee of, he is responsible for the safety of his crew and no master takes that lightly.
It is very interesting to note AMSA’s comment that their initial findings constitute a breach of SOLAS requirements that ensure the ship and its equipment to be maintained in a safe manner. In this day and age, ships (and their management) are being constantly vetted by a plethora of PSC, flag state inspections, regular internal and external audits, class surveys to name a few.
How was it that all of them missed seeing the upcoming disaster but expect the Master, who in all likelihood has been onboard for not more than a couple of months, to have some sort of crystal maze and take necessary actions.
If there was “willful negligence” or intention to sabotage the environment without reason on the part of the Master, then he/she should bear the consequence. BUT if that cannot be proven, then laying charges on this Master is a murder of justice. I hope better sense prevails.”
Capt.Ricardo Caballero Vega, a Panama Canal marine Pilot, raised this question with two other Captains (Chinese and Korean) of container ships plying the Panama Canal and the responses were as below..
The Chinese Captain agreed that it would be very difficult to check the conditions of the lashing, though not impossible, but said that if the law calls for detention of the Master, that is what should happen..
The Korean Captain also agrees that Captains are responsible for the ship, its crew, and cargo and that the lashing should be checked at every port before departure for the containers that are loaded at that port.. But he also advised that there is an issue with the number of crew onboard to assertively do this..
Remember that there may be only between 13-22 crew members on board even on the most modern ULCVs which can load more than 20,000 TEUs..
Some others are of the opinion that the Chief Officer and Officers on the Watch must be responsible because he/she must be aware of the lashing procedures and as per these procedures, they must check the lashing at all times once containers are loaded on the allocated stow position..
There is also the opinion that the stevedores from the ports where these containers were loaded should have reported any unsafe securing points if that has been identified as the reason for this incident..
Kris Kosmala, a business digital transformation strategist, raises a valid point which is “Classification societies moved to electronic audits and remotely administered compliance verification. If the safety was breached due to lack of maintenance / physical verification of lashing plates, D-rings, etc., etc, and that would be of interest to the certifier, the society issuing certificates of seaworthiness, insurers, etc., could there be a way to inform the certification body that something needs to be done and record of that would be held by the society, yet data related to the issue would be accessible to others for querying.“
Questions have also been raised whether such issues could have been avoided if there were real-time verification systems which could have confirmed or conveyed such crucial information about improper securing points in time to the next ports..