A recent decision of the Dutch disciplinary committee for the shipping industry demonstrates how illegally beaching a vessel can have consequences for the master of the ship.

Facts

On May 26 2013 the Dutch container vessel HMS Laurence was beached before demolition near Alang, India. By order of the public prosecutor in Rotterdam, an investigation was initiated concerning the actions of the master in relation to the illegal movement of the vessel from EU waters to Alang.

The Dutch public prosecutor noted that because the vessel was being beached with the intention of demolishing it, it could be considered as waste under Dutch national and European law. As such, the owner could be held responsible. Considering that the action was physically performed by the captain, it also had to be assessed whether this met the standards of good seamanship under Article 4(4) and Article 55a of the Dutch Law Concerning Seafarers as it relates to:

  • Article 10.60 of the Dutch Law on Environmental Management;
  • Article 2(35) of the EU Shipment of Waste Regulation (1013/2006);
  • Article 34 of the regulation, which covers the prohibition on exporting waste from the European Union to third countries which are not part of the European Free Trade Association; and
  • Article 36 and Annex V of the regulation, which covers the prohibition on exporting waste from the European Union which is destined for useful application in countries which are not members of the Organisation for Economic Co-operation and Development.

Decision

The Dutch disciplinary committee for the shipping industry found that it had been proven that on May 26 2013 the HMS Laurence was beached in order to be demolished near Alang after sailing from the European Union under the authority of the master. Proof of this action was based on a YouTube video uploaded by the ship's master which clearly showed that he was acting as the master of the vessel when it was beached.

The actions of the master were held to be in violation of Article 55a of the Law Concerning Seafarers, and specifically Article 4(4) in respect of the act or omission of a master on board in breach of the care which he should have observed as a good sailor in relation to the crew, the ship, the cargo, the environment and traffic. In particular, it was held that the master could be held responsible for the fact that he had cooperated in deliberately beaching the vessel in India. Based on European environmental law, it is prohibited to transfer vessels for demolition to India.

The disciplinary committee noted that, because the master had not made a statement, it could not know on whose order he had beached the vessel. But the sight of the coastline in the YouTube video made it clear that the master should have understood that it would be left there for demolition.

The disciplinary committee found that the defendant was in serious breach of his duties as master of the vessel. At the time of the incident, the consequences of having ships beached for demolition in India were generally known within the shipping industry. These consequences included harrowing working conditions, environmental damage and serious dangers to the health of employees and the local population.

The disciplinary committee ruled that the master be suspended for a period of six months. However, the suspension would not be executed unless the disciplinary committee later decided otherwise, based on the fact that the master, before the end of a two-year probationary period, had again acted contrary to the care which he should have observed as a good sailor in relation to the crew, the ship, the cargo, the environment and traffic.

Comment

This is the first decision from the disciplinary committee suspending a master on these grounds. It clearly demonstrates that the beaching for subsequent demolition of ships moved from the European Union to Southeast India places the master of such ships at risk of suspension if the physical breach of national and European law has been performed under the authority of such master. Posting a recording of the beaching of such vessels on YouTube clearly increases the risk of detection and suspension.

For further information on this topic please contact Thomas van Hövell at AKD by telephone (+31 88 253 50 00) or email (tvanhovell@akd.nl). The AKD website can be accessed at www.akd.nl.

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