Tuesday, July 30, 2013

The case of "Refusal to sign/ accept" a piece of paper on board the ship

     As commonly observed, the action of 'refusal to sign/accept' a paper given to someone, is given the treatment of act of indiscipline, as in 'refused to obey the lawful command of Master'. This is where most ship officers make a mistake. In seafaring life, particularly where there is culturally prevailing a criss-cross notion between the Navy (the armed force of nation) and the Merchant 'Navy' (the commercial shipping) , people like to behave, conduct and also deliver in style of a disciplined and regimented personnel. The commercial laws implications of 'refusal to sign/accept' are not as large or significant as to claim insubordination or disobedience against the person. It is merely about the 'breakdown of communications', for reasons which may both be valid or invalid. In most likely situations it may get evidenced as a 'valid' action, the flow of logic from the commercial laws would happen like that.
      In a shipcrew to master exchange of paper, the 'refusal to sign/accept' will invoke an intervention from the Shipping Master of the flag state, provided that the action of refusal to sign/accept has already been notation-ed in the Official Log Book, with many of the crew members as the witness. It is important to note that this notation will require many witness, not to mean simply as 'more than one', because the likely causation of the shipcrew who is doing the 'refusal to accept' would be that he was under duress. Disproving that ship does not have hostile conditions on board will be challenging. Since the crew generally meet the Master in collective action, in a converse logic the witnessing of 'many' crew together will help nullify the claim of hostile conditions on ship, if such a claim is presented.
     In laws, the view of shipping life is taken as a condition where people are in a confined territory governed and controlled by a person whom they call as the Master, and they are there for the reasons of employment. Hence a case of being co-erced , or being under duress becomes a naturally valid and consistent argument for the lawyers. The appointment of the shipping Master is to look into such cases. Meaning to say, conditions of slavery may emerge on ships, and must be cautioned. Against this, the Masters of ship often put forward the claims of suffering indiscipline from ship crew. The merchant shipping act in itself does not give any definition of what is indiscipline, but does give recognition to the phenomenon by assigning certain penalties and punishment. Traditionally, acts such as arriving late on bridge watches is considered indiscipline. Man- handling is an immediately admissible indiscipline which will invoke severe penalty.
       Day to day acts as coming late for watches may not get so much support unless the damages have been suffered such as serious inconvenience to fellow ship crew. Even with an evidence, merely the coming late to a watch will get mild reprimands, if no damages have been suffered. Laws avoid to punish someone because of a public belief to see an act as an offence. The potential threat of the claimed act of indiscipline should be widely held acceptable.
    Ship staff may abuse the 'refusal to sign/accept' by never actually presenting the paper to someone, and later introducing away that paper after putting this notation. They have a mindset to invoke claim of indiscipline against the person, and they believe that , that is how the law would proceed to act. However things are much different in the commercial laws. What if all that 'many' crew refuse to be a witness to any action of a single ship crew? It will be a case of mutiny against the master, which will prompt an urgent intervention from the shipping master. Either the dispute will have to be proved and settled, or either the full ship crew OR the master, in single, will have to be replaced on that ship.
     In a 'refusal to sign/accept' OLB entry by a master, Signature of just one witness, say the cadet only, will raise a claim from a lawyer that that crew too is a poor, co-erced soul on board the ship in as much as that other crew who has 'refused to sign/accept'.
     There are two questions which might be emerging in the minds of the readers of the above post. First, why is the viewpoint of the Law about life on board merchant ships not healthy, positive one. To this, the answer lies in the fundamentals of the Common Law, where free-will is treated as the first and foremost essential condition for occurrence of any commercial contract between two people. The searfarers would feel a social disgrace in discussing about such a viewpoint of the law about their life with their neighbours when they return home from sailing. but then the law does it to EVERY Contract seen anywhere in the world. Employment has to be guarded against from becoming a slavery.
    The second question would be about the logical issue of how come the witness signature of say one crew, or say two crew, or say three crew would be challenged in the court, if a person as openly 'refused to sign/accept', ..whereas suddenly the signature of 'many' crew would suddenly become valid, without having defined anywhere how many is the 'many' ? That is to say, if the signature of the cadet as the witness is challenged, then lawyers will challenge two crew signatures too, or three crew, and so on (the logic of Mathematical induction). Then, why would the court admit the signature of 'many' crew.The answer is that the concern is about the occurrence of hostile conditions on board the ship. There is no straight answer to how many is the 'many' , but the follow-up circumstances will be investigated to pick the characteristic traits of the hostile conditions. For example, if the master fails to act promptly by informing the company , the flag state, through the fastest communication mode, the action of 'refusal to sign/accept' in the witnessing of 'many' of the shipcrew, the lawyers will claim a vested interest of the master, or that the crew is not fully aware of the papers they were signing (a coercion condition established). However, if the witness is turned out to be genuine, meaning the ship conditions were not hostile, the errant ship crew will face the double charges -- that of his acts of disobedience and of having refused to communicate with the Master in the witnessing of many of the ship crew. He is almost definite to suffer heavy penalty. However, in the otherwise case, where the master's witnesses turn out to be not genuine, the Master will be at the same stakes of penalty.