Protecting the master

WHEN his principals are hiding behind fictitious companies, the master of a vessel can often find himself the scapegoat for all casualties and damages, particularly in jurisdictions where he has no legal defences. However, under French law, important developments have recently provided the master with weapons to protect himself against abusive prosecution and judiciary actions.

On February 24, 2000, the Plenary Assembly of the Supreme Court decided in the Costedoat case that an employee who acts without exceeding the limits of the mission entrusted to him by his principals is not accountable to third parties. The matter concerned a land employee, but the general wording of the decision implies that the same principle would apply to the master of a vessel. As a result, masters would enjoy some sort of civil immunity for their wrongful or negligent acts, whether navigational or commercial, considering the unconfined spectrum of their attributions.

The impact of the above decision was, however, muted on December 14, 2001, by the same court which stated in the Cousin case that the civil liability of an employee to third parties could be retained if the employee is convicted of having intentionally perpetrated an offence that caused damage to a third party. So the master of a vessel, for example, could be liable to indemnify a claimant victim without the need to investigate whether the offence was in breach of the orders of his principals, or fell within the scope of his mission.

The rationale behind this decision goes in line with another rule recently enacted in the French Code of Criminal Procedure in relation to second-degree or involuntary offences. Under the new provisions of the Law of July 10, 2000, which remodelled the New Criminal Code, the perpetrator of a careless or negligent act can be criminally responsible for the damage caused only if it is established that he breached, in a manifestly deliberate manner, an obligation of caution and safety provided by law, or that he committed a blatant fault or exposed others to a risk of a particular gravity that could not be ignored. The significance of this provision lies in the fact that it applies to all ‘non-intentional offences’ and may therefore be extended to those provided in the Criminal and Disciplinary Code of the Merchant Marine, or the legislation concerning pollution. However, Article 4.1 of the Code of Criminal Procedure makes it clear that this does not hinder the right of the victim to seek the condemnation of the master, before civil jurisdictions, to compensate the damage sustained.

Another aspect of the criminal liability of the master that deserves to be highlighted is the offence of ‘endangering human life’, introduced in the New Criminal Code. The peculiarity of this offence is that it could exist irrespective of the occurrence of any damage. The legislator obviously intended to punish the perpetrators of - and prevent the exposure of human life to - serious and immediate danger through the deliberate breach of an obligation of caution and safety.

On 11 February, 1998, the Supreme Court had the opportunity to apply this rule to a master of a vessel who took onboard 112 passengers in excess of the authorised limit. The High Court held inter alia that the good weather and sea conditions did not waive the risk of an insufficiency of the salvage amenities in case of a collision or a fire, and condemned the master to a one-year term of imprisonment and a hefty fine.

It would appear that, apart from matters affecting human life or safety at sea, the legal exposure of the master of a vessel under French law has been narrowing. This is perhaps a direct consequence of the master’s diminishing role in maritime trade now that modern communications have enabled shipowners to assume direct supervision of the operation of their vessels. However, all the regulations in the world will never be sufficient to protect the vulnerable in some circumstances - something Captain Mangouras knows only too well.