The Great Southern Route : 2013 - 2014
GSR | 279 contractor and employee become blurred. CRIMINAL LIABILITY The last issue is whether the captain may be criminally responsible for the acts of the security guard. Crimes committed within the territorial sea of any state will generally be governed by the laws of that state. For example, in Australia, the Crimes at Sea Act 2000 (Cth) and the State and Territory equivalents, extend the criminal jurisdiction of the Commonwealth and that of the States and Territories to Australia's territorial sea. This criminal jurisdiction applies to foreign ships in Australia's territorial waters as well as Australian ships. So, in the example given above, if the acts of the security guard occurred in the territorial sea of say the Philippines, can the captain be liable for criminal prosecution? Putting to one side the specific rules of criminal law that may apply in the Philippines, criminal liability (like civil liability) can in some situations be imputed onto one person (A) for the acts of another (B). This can occur when (A) and (B) form an agreement to commit a particular crime. Even if (B) carries out all the necessary acts involved in the crime on their own, (A) may still be criminally responsible. Furthermore, (A) can still be liable for other crimes that are committed by (B) if it was reasonably foreseeable that such crimes could occur during the course of carrying out the agreed crime. As an interesting twist on our Philippine fishing voyage example, consider this: Before embarking you agree with the security guard that they will bring with them on board several automatic machine guns. In forming this agreement you both know that bringing these on board will breach arms control laws (thereby forming an agreement to commit a crime). The security guard then uses these weapons to kill and injure the fishermen. Was such a result reasonably foreseeable when the agreement was made to carry the arms on board? The situation is much less clear when we consider crimes committed on the high seas outside the jurisdiction of any one country. Certain international crimes do exist; however, generally speaking they relate to broader and more serious acts such as genocide and crimes against humanity. CONCLUSION As is apparent from the above discussion, the hurricane of potential legal dilemmas that is stirred up when armed security guards are taken on board any vessel is vast and dangerous. The difficulty for a ship's captain is that while they are ultimately responsible for the welfare of the ship, her cargo and all that sail upon her, inadvertently the captain may find themselves in hot water when armed security guards adopt potentially unlawful actions when protecting themselves from suspected pirates. Legal expert Marcel Vaarzon-Morel is a professional lawyer and Director of Vaarzon-Morel Solicitors. Based in Newcastle, Australia, the company specialises in the marine industry and maritime law. www.vmlegal.com.au email: firstname.lastname@example.org To answer this question it will often be necessary to look at the actual contract between the ship's owner and the security provider. This will often contain extensive exclusion of liability clauses that seek to protect the contractor from liability for loss or damage sustained by the ship. The result of such clauses may be that, whilst the security firm is contracted to provide security services, the ship's captain ultimately remains legally responsible for the safety of those on board. It would always be prudent to ensure, however, that any contract of this sort contains a clause that protects the captain from liability for patently illegal conduct on the part of the security contractor. In the case of larger passenger vessels and cargo ships, the International Convention for the Safety of Life at Sea (1974) (SOLAS) recognises that the authority of the Master of any ship extends beyond any other person and that the Master will have the ultimate discretion regarding safety measures to be taken on board. In the case of smaller private vessels, which are subject to less regulation, the situation is much less clear. CIVIL LIABILITY The next issue is whether the ship's captain may be liable in a civil suit against the injured fishermen. There are two main questions here. The first is what jurisdiction applies to the determination of the captain's liability. The second is whether the captain can be liable for the actions of the contractor. a) Jurisdiction Generally, the law applicable in relation to any tort (or civil claim) is the law of the place where the tort occurred (the 'lex loci delicti'). Therefore, if a tort occurs in New South Wales, the laws of New South Wales will apply to the determination of the defendant's liability. Maritime torts, however, pose an interesting dilemma as they can occur outside the strict jurisdiction of any one place. Where the tort is committed inside the territorial waters of a particular country, the lex loci delicti rule will apply as that country's jurisdiction will extend over those waters. A country's territorial sea is the body of water extending 12 nautical miles off the country's coast. Where the tort is committed on the high seas, however, we have a different situation. In this case, the laws that govern the tort will be those of the place or country in which the vessel is registered. This means that, regardless of where the injured fishermen bring their civil claim, the laws of the jurisdiction of registration will be used to determine the liability of the captain. b) Liability of the captain for the actions of the security guard Civil law recognises certain situations where one person (A) may be liable for the actions of another (B). The main category of such liability is the case of an employer. It is generally recognised that employers are liable for the tortious acts of their employees. This liability does not, however, extend to the situation where (A) hires an independent contractor. Therefore, the ship's captain in the example given above would, strictly speaking, not be liable for the actions of the security guard as the guard was hired as an independent contractor. The matter becomes complicated, however, when the lines between independent safety and security of a vessel. On the one hand, we have the relationship between the owner of the vessel ("the Company") and the captain ("the Master") and the differing responsibilities which may be assigned to each of these parties. On the other hand, we have the independent contractor who is providing security services for the vessel. This party may be contracted on behalf of the Company or the Master and their obligations will be largely controlled by the contract itself. What is clear is that there is an intertwining relationship between the main actors involved in the security of any vessel which, like an unruly web of tangled rope, must be untangled to decipher where the liability of one party ends and the other begins. THE CAPTAIN'S RESPONSIBILITIES As mentioned above, when security firms are contracted to provide protection on ocean- bound voyages, a question can arise regarding the responsibilities of the Captain for the safety of the passengers on board and whether these responsibilities can be passed on to the travelling security guard.
2010 - 2011