All who go to sea will know the paralysing fear that gripped Costa Concordias master
I have written in this journal on several occasions about the phenomenon of seafarer criminalisation. Lest my long-suffering readers think otherwise, I will state clearly that not all cases wherein a master is arrested are proximate state acts of criminalisation.
I have suggested that the case of the master of Rena , which grounded and capsized off New Zealand, smacked of the beginnings of criminalisation.
To the great credit of that state, the rules of due process of law and the substantive criminal law have been carefully and meticulously applied to the master with no hint of criminalisation yet.
The master of Costa Concordia appears to be a case that, as with Rena , is not illustrative of criminalisation.
As the facts emerge daily, some things are clear. The ship grounded on a well-known reef. The master did not efficiently lead abandonment of the vessel and, beyond violating some technical rules, appears to have left the ship during operations of which he was, by law, in charge.
Charges have been proffered. But to the credit of the Italian judiciary the prosecutors have dropped some – for now – due to lack of evidence. The master is under house arrest and not jailed and appears to have been treated humanely by the government.
One has to ask; what was this man thinking? He was apparently, as are all modern masters, well trained. He was experienced. He had been entrusted with a $450m ship and all souls on board. However, an event of this scope is a once in a lifetime happening. I make no excuses for him.
I do think, however, that he did not know what to do as he began to comprehend the enormity of what was occurring. I think, frankly, he expressed that emotion that each of us has: he was so afraid that he could not act rationally.
Taken together, he exacerbated an already bad situation. All who have worked at sea have known paralysing fear out there – at least briefly. Anyone who has commanded a ship who says otherwise is not being candid.
This man’s fear lasted so long that he is now suffering the consequences of facts arising, the law applied to those facts and the implications. The master, as it is proper after such an event, is in serious trouble.
It is interesting that the argument keeps coming back to the moral aspect of the master’s behaviour. It goes like this: this man was master under God and did not die with his ship, therefore he is immoral. That is utter nonsense. Immoral he may be, but not because he did not die. What has happened is horrible. The master had no intent, I think, to do those deeds.
People died. The master had no intent, I think, to kill people. The ship is likely lost. The master had no intent there either. Should a man die because of misjudgement and its consequences?
The novelist and former seafarer Joseph Conrad said: “It is bad enough to die for commerce.”
In a harsh sense, he was completely correct. We carry cargo, and people, for freights. Would the death of the man on the scene expiate his soul of immorality? Again, nonsense.
The master is accused in some quarters of cowardice. That charge too is nonsensical. Our masters are not naval officers who are paid not to be cowards and who face deadly coercion to back that up, if necessary.
Our masters are not naval commanding officers. Bravery and valour is not in the job description. Of course cowardice strongly implies immorality. Again, the man may have committed criminal acts. The wheels of justice are beginning to grind. There is a societal desire to exact justice and retribution.
Immorality, cowardice, not dying for commerce: none of these things are crimes.
So we will continue to watch this unfold. Many snippets will be leaked and many diversions will appear in the search for the truth. The official report may be years in coming out. The investigation for facts sufficient to convict may take months.
For now, the master is having time out to reflect on his errors as he and his lawyers attempt to craft defences. These are defences to which each and every one of us is entitled, no matter how heinous, obscene or nauseating the crime with which we have been charged.
It may take a little longer to try to marry law and justice, but the wait is worth it. Every shipmaster today is saying under his breath “there but for the grace of God go I”. We have all had lapses in professional judgement. We simply were not caught in such frightening and awful circumstances.
John AC Cartner
Maritime Lawyer
This article appeared in Lloyd’s List on 1 February 2012.For more information visit www.lloydslist.com
