Is a cadet’s negligence always the master’s incompetence? HVR, art. IV.2(a)

‘Incompetence is to be distinguished from negligence and may derive from: (a) an inherent lack of ability; (b) a lack of adequate training or instruction; (c)a lack of knowledge about a particular vessel and/or its systems; (d) a disinclination to perform the job properly; (e) physical or mental disability or incapacity.
Papera Traders Co. Ltd. v Hyundai Merchant Marine Co. Ltd (The Eurasian Dream) [2002] EWHC 118 (Comm)

In an article "The distinction between ‘crew negligence’ and ‘crew incompetence’ and the consequence thereof" (click here if you cannot access this document) published on UK P&I Club web site, the author offered an analysis of imaginary situation happened on board of merchant vessel when the cadet (who was for the first time at sea), on direction from the chief officer, wrongfully operated valves and caused major cargo contamination. Author further attempts to answer whether this act was a negligence or incompetence. The difference being of vital importance since ‘crew negligence’ falls under protection of The Hague / The Hague-Visby Rules, art. IV.2(a).

Incompetence, on the other hand, forfeits the above carrier’s defence under the Rules because it would constitute failure on the part of the shipowner to provide competent crew, as a part of his absolute obligation to have the vessel seaworthy under art.III(a)(b) of The Rules.

Author answered this question in a way that mishandling of valves can be both, either negligence or incompetence, depending on the mental state of the cadet at the time of his mistake. If cadet just confused the valves it would be negligence, but if he was sure that wrong valve is a right one, then author suggests that it would lead to the path of incompetence.

Taking an example about wrong valve and a novice cadet, suggested in the article, one important consideration was omitted from legal analysis, namely, that wrongful act of cadet is a part of ship’s management test for incompetence. Proposition, expressed in the article that all cadets are historically under the duty to manage valves is too wide, and especially so if one speaks about such important valve mishandling of which will lead to major cargo contamination.

In Papera Traders Co. Ltd. & Ors v Hyundai Merchant Marine Co. Ltd. & Anor [2002] EWHC 118 (Commercial) Cresswell J underlined in his judgment that an incompetent master (officer) may be well qualified and hold the highest grade in certificates of competency. The test then is whether he applies or uses his qualification in the light of relevant training, established procedures and company’s instruction.

Applying this test to a cadet which is new on board of the vessel, but yet has been sent to manage valves without supervision of deck officer or engineer, conclusion as to incompetence of master and chief officer is relatively easy to reach. Such conclusion follows from The Farrandoc [1967] 2 Lloyd’s Rep. 276 case where at p.282 the learned judge said:

To my mind, a person taking reasonable care for his own ship or cargo or seeking to discharge this obligation even when told that the person to be employed in a position involving responsibility held a qualifying certificate would scarcely fail to make further inquiries as to his ability and experience. Even after making such inquiries he would, in my opinion, inquire how far the man’s experience fitted him for service in the particular ship and take steps to see that the man was adequately instructed with respect to any features of the particular ship with which it was necessary for him to be familiar to properly discharge the duties of his position and to avoid damage to the ship and her cargo.

Thus, ship’s command (master and chief officer) must appraise and estimate abilities of their subordinates to "inquire how far the man’s experience fitted him for service and train them accordingly if necessary.

Under STCW Convention, rule II/2 both master and chief officer are holders of certificate of competence of "management" level under. Therefore they must be able to effectively manage ship’s crew, which duty, in this particular case, is not discharged by ship’s command when cadet just being instructed to go and operate valve and supplied with walkie-talkie for communication. Obviously, any job or order must be supervised and execution controlled. Of course, there is no foolproof method and some mistakes will always happen, but for the crew to be competent a kind of procedure both on board and in the shipowner’s office should be established ensuring that Master monitors job of his chief officer in a way that later would never send a cadet to handle valves without supervision.

Thus, apart from objective test of the mental state, there is, in my view, much harder burden placed on the carrier to bring himself under the defence of art. IV.2(a) of The Hague / The Hague-Visby Rules. To prove their competence ship’s command must provide evidence of proper training and briefing of the person who was assigned to carry out certain task but eventually failed in his duties. Crucially, there must be an assignment of the man’s abilities and experience confirming his fitness for service as established by The Farrandoc case. Furthermore, it is possible to assume that failure to satisfy ship’s command competence test would lead to similar failure in proving that there was no ‘want of due diligence’ to properly man the vessel as stipulated by art.IV.1 of The Rules and the road to escape liability provided by art.IV.2(a) would be no longer available to the carrier.

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Readers’ comments:

Posted by: Bryan A. Bittner, 11 February 2012

First, please accept my admiration for this website and your efforts. I assume this little white box is for comments so I will leave one on this topic.

1. Under ISM all Managers holding a DOC must have a Class-approved Safety Management System (SMS).

2. The SMS will set forth policy, standards and procedures as well as job descriptions.

3. A Cadet may well be one of the positions authorized (but is certainly not part of the minimum manning requirements) so the daily tasks of that tanker would not specify a cadet in any task essential to the vessel.

4. Although the hypothetical example is extreme (the idea of a non-certified individual in control of any critical procedure is outlandish) it would clearly indicate:

- If the procedure is mis-manned it falls first upon the Duty Officer to control.
- If the Duty Officer is mismanaged this falls upon the Master as incompetence.
- If the Master is incompetent it then falls on the Managers for their failure to administer the ISM.

Lastly, I think the dividing line between negligence and incompetence is this: If a person has the capacity to do the job (as being trained, tested, certified/licensed then they have been seen fit to carry on the minimum requirements for the job on board, they are "competent". Although the Master of a VLCC holds the same ticket at a Master of a short-sea 150 TEU feeder vessel it does not follow that each is competent in the other’s position. Accepting someone in this manner is the Manager’s responsibility in addition to the minimum certificate of competency.

If once on board they cannot discharge their duties then they may be found to be incompetent by virtue of negligence.

Posted by: Konstantinos Bachxevanis, 30 January 2012

Dear Capt. Sterzhantov,

Many thanks for your comments below with which I fully agree. This is an very short summarizing edition of my full article and there was no space for such analysis as you rightly point out.

On a more careful reading though, you will see that there is a caveat in this simple example (used merely as a practical illustration) that the "mental state" of the deck cadet is only the starting point and a full range of enquiry should be carried out. The "mental state" of the seaman in question is only the starting point but on deep analysis it is a NECESSARY stage of the enquiry because, in the first place, "negligence" is a "state of mind opposite to intention" and if someone "intended" to open a valve he is hardly negligent. In fact, this is the very ratio of The FARRANDOC.

Anyhow, please see attached the full academic version of my article. I would be interested to have your useful comments.

I would be happy to assist should you have any questions or concerns on any other shipping issue and please feel free to call me any time.

Best regards, Konstantinos Bachxevanis

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