開船好呢? 還是不開?

開船好呢? 還是不開?

秘書長李蓬

最近一期的加拿大船長協會刊物中有一篇分析報導¹, 文章指出船長的難處: 在關鍵時刻, 開船好呢? 還是不開好呢? 根據約翰卡特勒船長的分析指出重點所在. 開宗明義的, 作者就指出, 其實從20世紀初, 自”船主”可以不隨船, 亦可指派”船長”去開船開始, 就有如是的問題發生. 這個問題一直是無法切割的非常清楚, 讓船長在”生命”; ”榮譽”與”生計”間難以取捨.

以往的認知是: 船長可以決定開船與否, 但由船東決定船長是誰.

直到近年, 在國際, 船員的聘僱與船舶的運作上, 有了重大的突破, 在眾多的國家中, 船員仲介公司; 船舶管理公司已被廣泛的應用, 這個”船東決定船長”的問題已經得到了相當的紓解. 一旦這個船長已經被認可, 他開船或不開船的理由有著正當的邏輯性時, 船東就沒有情緒上的自由了.

但是在台灣, 由於長久以來, 船員不願意被仲介剝削, 於是沒有正常的人力仲介系統. 船東又各自成立管理公司, 招募自己的船員與船長. 船舶管理公司在台灣的航業範疇中的地位是模糊的, 船公司兼職船舶管理及人力仲介者比比皆是, 船公司提供符合公司自己利益的訓練; 福利; 薪津; 環境等條件給船員. 用自己的管理組織決定船長的優劣, 船長在沒有仲介公司或管理公司在精神上或邏輯上的支援後, 為了糊口, 為了不要再做流浪船員, 只能遷就船東的命令, 許多的悲劇於焉而生.

船長決定開船與否, 雖有國際法源依據, 也明示於公司的管理程序書上, 但是在行政評議上, 如果沒有邏輯性的判斷基礎, 同樣也是要付出很大代價的. 再者, 當事者口袋的深淺則是決定膽量的重要因子. 當船長有著”是否開船”或”是否不開船”的抉擇時. 個人以為應該有以下幾個考量:

• 公司的文化是否尊重船長的決定?如果不能, 請你謹慎行事.
• 自己是否仍在被船公司評估的階段?或已經是A咖了?如果不是, 絕對要謹慎行事, 多聽、多看、多問.
• 是否有膽量按照自己的意思行事?或願意接受行政上的抗辯程序?或願意繼續流浪?
• 遵守命令後, 是否有技術或膽量克服原本不願意冒的風險? 本事在哪裡, 自己要充分瞭解.
• 陽奉陰違的可能性?或做法上的斟酌?

在西方的海事環境已然有許多的判例, 讓事情的是非可以在法庭辯論攻防中釐清. 然而在東方的社會中, 敢於走向法律去解決這方面勞資糾紛的船長不多, 對於本公會而言, 這個機制是存在的. 可是, 對於船長而言, 要記住, 你不僅僅要保護船舶, 也要保護貨物, 更要保護船員的生命, 你可以代表以上任何一方說話. 你不是一個單純的受雇者, 你有話語權! 在這個思維下, 你的邏輯將能更清楚的論述. 不僅僅是就法論法而已.

近年來, 由於媒體的強勢, 使得未審先判, 或是直接扣押的局面愈來愈多, 即便是在國內航線, 亦會受到波及. 船長的尊嚴受到挑戰是另外一個顧慮. 因此船長想要不孤單, 假如在公司內部得不到協助, 本公會可以提供行政程序的辯護支援.  本會切入的方式可以用:

1. 主張行政會議的內容不得用於刑、民事庭.
2. 參與公司或主管機關的行政會議, 代理發言.
3. 參與公司或主管機關的行政會議, 不參與發言.
4. 得知行政會議結果後, 採取抗辯程序.
5. 無法得知會議結果, 由本會要求召開協調會議.

1. Sidelight, Jul/Aug of 2015, page 21 Sail or not to sail by Dr. Captain John A.C. Cartner, http://www.mastermariner.org/sidelights/Sidelights_July2015.pdf

Sail or not to sail by Dr. Captain John A.C. Cartner

That is the Question

At the 2015 World Maritime Rescue Congress , John Dalziel and Dr. Roberta Weisbrod of the Worldwide Ferry Safety Association stated in simplistic fashion, “It is the master’s decision whether to sail [;] It is the owner’s decision who is the master.” They characterized this schoolboy mnemonic as “the seafarer’s dilemma(兩難)” citing Charles S. Price in the Great Storm of 1913. If life were so clear-cut and obvious now does not exist in today’s realities – it is a false proposition(主張).

It is the owner’s decision who is master.

Let us unpackage the snappy(瞬間) and seemingly pithy (簡練)words. To do so meaningfully we will start at the top, “It is the owner’s decision who is master.” Not so fast. Masters sailing on the majority of vessels have nothing to do with the owner but are selected by a crewing agency which acts for the owner or deponent(宣誓人) owner. The agency has little incentive(獎勵) to select the best master which whom the agent likely has little or no experience. Hence the master is selected by a bureaucratic(官僚) procedure wherein the paper trail of the past is presumed to be a predictor(預報器) of performance in the future.

Paper trails are not difficult to spin and more than one master has a sterling paper trail when in fact in his or her personal life there are various things which would cause rejection by an owner having greater concern for the vessel than a mere personnel agent. By devaluing(貶值) the master to “crew” as the name implies, he or she is another peg(夾子) to plug in the hole. That hardly gives one comfort as to the ditty(短詩).

It is the master’s decision to sail

Now let us look at “It is the master’s decision to sail.” So far so good. However, the master also wants employment. Not to sail raises immediate questions with ship operators ashore as to the master’s ability. Not sailing is costly and the excuses had better be good. Even delays in sailing on the decision of the master in some trades are frowned(苦惱的) upon. Not sailing or too many delays are a quick ticket to the beach and most, if not all, masters unprotected by collective labor agreements know that.

Perhaps the better sloganeering should be “It is the master’s decision to not sail if he is adroit(機巧) enough to withstand(受得住) the criticism and if he is monied(有錢的) enough to withstand dismissal(裁處); it is the uninterested crewing agent acting for the owner or deponent owner who selects the master from the available pool that day.” Let’s get down to further realities here.

A hundred years ago there was a distinct branch of laws dealing with maritime matters which was adjudicated(判決) by judges in admiralty with a great deal of experience and within a system of laws which gave great deference to the maritime nature of the admiralty jurisdiction and to the master in his or her decision making. Further, the managing entities(實體) and masters had strong interest in the masters selected. One hundred years later such statements would be gross overstatements.

In the 19th century, the laws of the shipmaster became, as one author has said, “ossified(保守的).” That is, the glory days of sail and required laws dealing with the vagaries(變幻莫測) of wooden ships designed by experienced tradesmen and not engineers, sail propulsion evolved over several millennia and not necessarily efficient or safe, weather reporting that was rudimentary(起碼的) at best and not instantaneous(瞬間) as today, communications systems with master and vessel from and to the shore which were only slightly leavened by Marconi’s invention of marine telegraphy, the fob system of lading requiring fiduciary(信託的) acts by the master and other systems quaint(精巧) by today’s standards. Therefore the master at sea was by law God, king and the constitution. The decision not to sail was given great deference and the decision as to whom would be appointed master was given equally great deference and often was in the person of a part-owner of the venture or at least a holder of cargo preimage space.

The Seafarer’s Dilemma:

It is the master’s decision whether to sail.

It is the owner’s decision who is the master.

Today we deal with a maritime law which has gradually been overtaken by terrine (陶罐)thinking and terrine crimes. These crimes may not be appropriate to the maritime business but here they are and governments have not been standing still. They have the modern conveniences just as do modern companies.

Thus, when a prosecutor gets wind of an accident which looks like a crime and smells like a crime and walks and talks like a crime it is a crime to his terrine view there is a terrine prosecution. The niceties of maritime law suggested by Dalziel and Weisbrod may have worked well in 1913. That is not a defense in 2015. One need look only at cases such as Hebei Spirit, Erica, Prestige, Exxon Valdez, Amoco Cadiz, Zim Mexico and many others to see that the master has been placed into the legal position of being a mere(只) factotum(普通的僕人) who is perversely punished in a latter-day thinking unrelated to seagoing but still binding as law.

Ferries in the inland trades are not much different. There may be the alleviation (緩和) of onus (舉證責任) because of state employment of the master or the like but there is still the thinking by management and prosecution that the master – in some sort of pseudo-military (準軍事) albeit (盡管) non-existent structure – is the man to arrest when things go wrong. Further, the master is usually hung by the press far before any objective inquiry can be made. Hanging is what is wanted in the crassest (最魯莽的) form of revanche (復仇) in the press and hanging is what governments give.

Hence, the arguments of Dalziel and Weisbrod are like Fauvre’s music – nostalgic and warm and dreamy – but not realistic to today’s black and white and hard-bitten world. Would most masters sailing today be sailing? Not if the polls going around the past few years are an indication. Masters understand their positions – targets with large red and white concentric circles back and front. Many simply hope to be retired before being struck by a criminal charge.

Copyright c 2015 John A C Cartner, M.B.A., Ph.D., LL.M., Master Mariner.

The opinions are those of the author alone and not of Sidelights. John A C Cartner is a practicing maritime lawyer in Washington, D.C. and London and a Regular Member of CAMM.