pratibha cauvery case study

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Case Study on Pratibha Cauvery

Presented by:

Mukesh Kumar

C.L Yadav

Roshan

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MATRIX ANALYSIS: WHERE THIS RESEARCH IS PLACED

PRATIBHA CAUVERY CASE STUDY

Applied Research

Doctrial Research

Pure Research

Non Doctrial

Research

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DATA COLLECTION

Interview, Interview schedule is of funnel type Facts from observations made by the Newspapers’ &News channels Case studies Case law

DATA ANALYSIS

Analysis of statues Analysis of case laws &case studies Statistical Analysis Analysis with respect to Management

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Facts of the Case:

On 31st October, 2012 of the Pattinapakkam coast in chenai.MT Pratibha Cauvery drifted

away and ran aground under the influence of cyclone Nilam. Consequently, six crew

members drowned in the water and died. The ministry of shipping and Government of Tamil

Nadu declared compensation and ordered for an investigation of the incident. The

investigation revealed certain facts.

1. Indian Oil Corporation had chartered the ship to deliver a shipment of fuel from

Haldia port in West Bengal to Chennai MT Prathibha Cauvery entered Chennai

waters on September 25th and stay put for 3 days to unload the cargo..

2. Pratibha Cauvery left Chennai coast on 29th September,2012. At the time it had a

valid certificate which expired on 1st October.

3. It left the Chennai port and started sailing to Mumbai. Chennai Port Traffic

Department show that the vessels turned around and instead of heading to Mumbai

sailed towards the city on October 8 reportedly for fuel and supplies.

4. When it returned on the 8th October, the agent decided to keep it at anchorage within

Chennai Port . Moreover the agent did not seek permission from the concerned

Authority to dock the ship inside the Chennai port.

5. From the 8th to 28th of October the ship was anchored in the Chennai port awaiting its

supplies. The ship owner failed to heed to the messages of the master for the supplies

of food, water and fuel. The 37-member crew reportedly had supplies on board for

just seven days. And apparently they lived on it for a month. The generators were

gradually shut down and all systems, barring those of communications were turned

off.

6. The crew members had not been paid since July 2012 and therefore spending own

cash to buy provisions and water from fishermen would not have been a possibility.

7. As per crew member Sarath “There was no drinking water. We collected rain water

from the deck for drinking.”

8. Since the vessel remained within the Chennai Port’s jurisdictional limits, it continued

to receive periodic weather bulletins and messages.

9. According to port officials, the first warning of a cyclone was issued by the

meteorological department on October 28th(Sunday) and by Tuesday noon, Chennai

Port Trust received a Level 7 warning which estimated wind speed at 100 Kmph.

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10. Captain of Prathibha Cauvery reportedly informed the port authorities on 28th October

itself that he was short of fuel .

11. According to newspaper reports the captain sought permission to dock but the Port

turned down his request saying it did not have berths to spare.

12. In our interview with the port authorites, they claimed that the captain sought only

bunker, which they were not authorized to provide.

13. The port authorities also informed the team that OSM Arena, which was in a similar

state, had made a written application stating their inability to sail out and therefore the

port authorities had berthed it as per the request made to it.

14. When cyclone Nilam reached the eastern cost of India on 31st October, the vessel was

still anchored in the Chennai port area . Port authorities said they demanded that the

vessel to move either North or East to the open sea, ie, to sail out of the storm as was

the international practice.

15. The vessel removed anchor at 11:00, 31st October when the storm all ready hit the

coast. The tanker was proceeding along the coast line and tried to head to the open sea

, but did not make with the speed of only 5knots and had to drop both anchors to

avoid grounding.

16. Anchor did not hold, and tanker was pushed aground at Besant Nagar beach at 14:20

local time. After the grounding, master was advised by the companies’ manager to

stay calm and try to stabilize the vessel by ballasting.

17. Apparently there was a panic on board, Master requested from the port authority for

the evacuation of the 37 crew, but was rejected. He was told that the weather was too

tough to send rescue boats, and that he should use the vessel’s life boats.

18. A life boat was lowered with 22 sailors on board. It almost immediately capsized,

throwing them into the sea. 17 sailors were rescued. It is understood that some of

them managed to swim to the shore, and some were rescued by fishing boats. Finally

six, crew died, five in the life boat accident and one on board, under unclear

circumstances.

Master is blaming the port authority for failing to rescue the Crew. Authority is blaming the

master for failing to take vessel to sea of the dangerous coast, when there was time, as he was

warned about the coming storm well in advance.

Additional Facts:

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1.

a. Oil tanker Prathibha Koyna is currently docked in Hidd, Bahrain and eight

sailors have been stranded on board the ship which owes millions of dollars to

to two local companies.

b. There were 34 sailors who claim that they have not been paid since July by the

Mumbai based Prathibha shipping Company .

c. The General Federation of Bahrain Trade Union (GFBTU) and the Bahrain

International Seafarers Society supplied the crew with essential supplies

including food.

d. The local companies are reportedly taking a legal recourse against the Pratibha

Shipping Company,

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THE FLOW CHART OF EVENTS:

Discharge of cargo – 28 sept 2012 Sail out (Proceed to Mumbai) - 29 sept 2012 Anchor Chennai Port- 8 Oct 2012-28 Oct 2012 Port inform the cyclone to capton-28 Oct 2012 The capton the port that he does not have fuel-28Oct 2012 Storm hits -31 Oct 2012 Capton calls to Port-Port Rejected Captions ordered lowering the life boat

6 crew -dead

HALDIA

CHENNAI

MUMBAI

STRUCTURE OF ANALYSIS:

PORT AUTHORITIES

ORGANIZATIONAL STRUCTURE

LEGISLATIONS

ISSUES

ANALYSIS AND RECOMMENDATIONS

SHIPPING COMPANY


THE PRATHIBHA

ISSUES


STRUCTURE OF ANALYSIS:

PORT AUTHORITIES



DG-SHIPPING


LEGISLATIONS

ISSUES


SHIPPING COMPANY



THE MASTER

RIGHTS AND DUTIES

ISSUES


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A SCHEMATIC REPRESENTATION OF THE LEVELS OF FUNCTIONING OF

VARIOUS AUTHORITIES

ord

CENTRAL

STATE

LOCALDy. Departments of port

Department of ports/Maritime board

National shipping board

M.M.D

M.M.D Subordinate office

TAMP

Board of trustees

D.G.Shipping

Major port Act 1963

Maritime Zone Act 1976

Indian port Act 1908

Coast Guard Act 1978

Merchant shipping Act 1958

Regional Head Quarter

District Head Quarter

Cost Guard

FROM THE PERSPECTIVE OF PORT AUTHORITY:

THE ORGANIZATIONAL STRUCTURE:

PORT ORGANISATION

BOARD OF

TRUSTY

CHAIRMAN

OFFICE

FROM THE PERSPECTIVE OF PORT AUTHORITY:

THE ORGANIZATIONAL STRUCTURE:

MARINE MANAGEME

NT

GANERAL ADMINISTRATI

ON DEPARTMENT

TRAFFIC DEPARTME

NT

FINANCE DEPARTMEN

T

VIGILANCE DEPARTMENT

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I. ISSUES:

1. What port authorities have done?

2. What port authorities could have done?

1. WHAT PORT AUTHORITIES HAVE DONE?

The action of port authorities for the sake of analysis can be bifurcated as in for two

periods.

A. Between Oct 8th-Oct 27th and

B. Between Oct 28th- Oct 31st.

Between Oct 8th-Oct 27th:

The reference point of the above issues would be the answer to the question ‘what port

authorities are mandated to do?’. For this we turn to the Indian Port Act, 1908 which enlist

LEGISLATIONS

• INDIAN PORT ACT, 1908• PORT ANCHORAGE RULES• MAJOR PORT TRUST ACT• CHENNAI PORT TRUST RULES: CHENNAI PORT

SAFETY REGULATIONS, 1981

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four major responsibilities of the port authorities. Schematically we present it below:

Prathibha Cauvery remained in port from Oct 8th to Oct 27th. During this period two major

events had happened concerning the ship:

The statutory certificates had expired.

The provisions (food, water and fuel) were exhausted.

Aligning the facts of the case and the above mentioned reference point would help us to

draw certain valid inferences:

1. Navigation:

The traffic department had failed to take notice of the expired certificates

when the ship re-entered the port waters on Oct 8th .

Though the ship remained in the port for almost three weeks the harbour

master did not ask for any action . this inaction could however be explained by

the legislative lacunae. As per the Port Act, 1908, the harbour master is

empowered to remove a stranded ship which impedes navigation. But he has

no power to do anything about a ship which is stranded but is not impeding

navigation even though in the future it might impede navigation or might

challenge the safety of the port

2. Health:

NAVIGATION HEALTH

PORT DUES SAFETY OF PORT

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The port authorites failed to check the provisions for water and food as they

are mandated to do according to section 168 and 176 of the Merchant

Shipping Act,1958.

3. Safety of Port:

The safety of port was not under threat and therefore the port authorities

neednot have done anything under this mandate and have not done so.

4. Port Dues:

Prathibha Cauvery had cleared all port dues and therefore did not warrant any

action from the port authorities in this regard. One of the main reasons of total

disregard of the presence of Pratibha Cauvery within the port premises by the

port authorities is due to the fact that it did not have any port dues pending.

Between Oct 28th- Oct 31st.

Port authorities under a warning, such as a cyclone , has two mandates, namely:

A. To preserve the port (which is their primary duty)

B. To open the port to ships facing distress (under force majeure)-as per the international

customary law.

Now, we have to analyse the facts concerning the issues under discussion with respect to the

above mandate:

A. Mandate to preserve the port:

The port authorities asked all merchant and commercial ships to sail out of

storm, i.e, to sail away from the Chennai port. This is reportedly the

international practice when a port faces a storm or a cyclone.

OSM Arena which have been stranded in the Chennai port for the past two

years had then written to the port stating their inability to sail out of the port.

The port authorities had made the required arrangement to tow it and berth it.

Naval and Coast Guard ships (boats) were also given berths.

Prathibha Cauvery was also requested to sail out but the Captain reported to

the port that it did not have enough fuel to sail out. According to the port

authorities the Captain of Prathibha requested repeatedly for bunker (which

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the port was not authorized to provide ) unlike OSM Arena which specifically

asked for their assistance much before the storm.

Request for assistance to berth the ship came only when the storm had actually

hit the port and by then it was too late to render help.

B. Mandate to open the port for ships under distress.

Rebecca case1: Access to port is not to be denied for ships under distress due

to force majeure even if the port would have been inaccessible for the ship

under normal circumstances.

Customary law is unclear as to what the position is if the port itself is under

distress due to force majeure.

RECCOMENDATIONS:

A. LEGISLATIVE RECOMMENDATIONS

1. Amend the Indian Port Act, 1908 so as to enable the harbour master to deal with

stranded ships which might impede navigation or challenge the safety of the port

in the future. Empower him with a discretionary power to investigate into the matters

of a ship which remains in the port for more than a stipulated period of time.

2. Alternatively make it mandatory for the master of a ship to report to the port as to

the reasons for his staying within the port limits beyond a stipulated period of time.

3. The Merchant Shipping (Regulation of Entry of Ships into Ports, Anchorages and

Offshore Facilities) Rules, 2012 was made by the Central Government, under section

457 of the Merchant Shipping Act, 1958 to regulate the standard of the ship entering

Indian ports. Rules 3, 4, and 5 stipulates on the Class and Insurance of ships

especially if they are tankers and are above 25 years of age. Interestingly, Indian ships

are completely exempted out of the ambit of these rules. We strongly recommend the

streamlining of rules and it to be made applicable both to the Indian ships as well as

to the foreign vessels .

4. The fourth recommendation that we would like to make is on the basis of the question

asked in our brainstorming session. The question was ‘what would have been the

likely consequence if the ship was grounded within the port itself?’. Two untoward

1 April 2nd 1929

circumstances would have arisen apart from the tragedy Prathibha Cauvery herself

suffered:

a. The safety of the port would itself have been endangered, with a possible

scenario of a huge loss of port infrastructure.

b. The navigation would have been impeded for weeks together with the

consequential loss of business and revenue.

In our interview with the port authorities this emerged as a matter of serious concern. They

suggested a possible legislative-judicial reform

to be stranded within the port limits. This implies not only a check on substandard ships

(Pratibha Cauvery) but also a quick disposal of admirality cases

FROM THE PERSPECTIVE OF DIRECTOR GENERAL

ORGANIZATIONAL STRUCTURE:

M.M.D

Mumbai

Chennai

Kandla

Kolkota

Cochin


The safety of the port would itself have been endangered, with a possible

cenario of a huge loss of port infrastructure.

The navigation would have been impeded for weeks together with the

consequential loss of business and revenue.


judicial reform wherein it is ensured that no ships are likely


quick disposal of admirality cases (OSM Arena).

FROM THE PERSPECTIVE OF DIRECTOR GENERAL OF SHIPPING:

ORGANIZATIONAL STRUCTURE:

D.G.Shipping, Mumbai

Cochin

Allied Offices

SEO

Shipping Office

RO(SAILS)

SWO

Autonpmous bodies

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The safety of the port would itself have been endangered, with a possible

The navigation would have been impeded for weeks together with the


wherein it is ensured that no ships are likely


.

:

Autonpmous bodies

SWFS

SPFO

NSB

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M.M.D: Mercantile Marine Department.

By MSA,1958 MMDs are established in Mumbai, Kolkata and Chennai (and at such other

port Central Government may consider necessary) for the administration of the Act and the

rules and regulations thereunder.

SEO: Seamen’s Employment Offices.

RO: Regional Office.

SWO: Seamen’s Welfare Office.

SPFO: Seamen’s Provident Fund Organisation.

SWFS: Seafarers’ Welfare Fund Society.

NSB: National Shipping Board.

II. ISSUES:1. Concerning certificates and certification:

a) the statutory certificates of a ship(What are the certificates issued by DG? )b) Issuing and inspection : analysis

2. Over aged vessels.

The reference point for the ensuing discussion would be the responsibilities DG shipping shoulders.

LEGISLATIONS:

• MERCHANT SHIPPING ACT, 1958

• MERCHANT SHIPPING (DISTRESSED SEAMEN) RULES, 1960

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The subjects, the Directorate General of Shipping are required to deal with, are briefly listed below: - (i) Matters affecting Merchant Shipping and navigation and administration of the Merchant Shipping Laws. (ii) Measures to ensure safety of life and ships at sea. (iii) Development of Indian shipping. (iv) International convention relating to marine matters. (v) Provision of facilities for training to officers and ratings for the merchant navy. (vi) Regulation of employment of' Seamen, and Welfare of Seamen. (vii) Development of Sailing Vessels Industry. (viii) Development of Coastal Shipping

Concerning certificates and certification:

Analysis of II Isuue (1a):

Statutory Certificates issued by DG shipping:

1. Cargo Ship Construction Certficate.2. Government of India Load Line Certificate3. Cargo Ship Equipment Certficate4. Cargo Ship Safety Radio Certficate5. IOPP Certificate( International Oil Pollution Prevention Certificate)6. Tankers: an additional appropriate certificate of fitness is required.

Extension of Certificates:

EOC as applicable in Indian Waters: whenever a vessel is in port in India with an expired statutory certificate and it is not possible to carry out the survey due to non-availability of necessary repair facilities or other causes, the principal officer concerned may permit the ship to proceed from that port to another port of survey in India. Such extensions shall not exceed a period of one month.

Pratibha Cauvery case with respect to expired certificates would come under the EOC clause. Technically DG/ MMD would not have been able to assert an immediate production of valid certificates and would have been compelled to wait for one month to do so. Apparently Pratibha Cauvery was on its way to Mumbai port and it could have renewed its certificates there.

Analysis of II Issue (1b) :

It is pertinent at this juncture to analyse the Flag State Inspection Report 20112:

2 D.G.Shipping, Mumbai

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The Directorate General of Shipping (DGS) as the Indian Maritime Administration is responsible for flag State implementation (FSI) on Indian flag ships. The FSI is carried out by the officers of 13 nos. Mercantile Marine Departments (MMD), which are allied offices of the Directorate. DGS ensures that at least ten percent of Indian flag ships that call at Indian ports, whether alongside berth or at anchorage, are inspected in order to ascertain that unsafe and substandard ships which may threaten the life and property on board as well as the environment are not permitted to operate till their deficiencies are rectified.During the year 2011, total 267 ships were inspected by the surveyors of the Directorate. Among them, 15.73% ships, i.e., 42 nos. ships were detained. Of the detained 42 ships, the highest detention was under the category of OSV(offshore supply vessels.). Five oil tankers were also detained. The MMD which inspected the largest number of ships was that of Mumbai followed by Paradip and then Chennai. If we were to look at the age wise breakup of the inspected and detained ships, ships between 26-30 years of age recorded the highest number of inspections (81) which also resulted in the largest amount of detentions (10). Ships between 20-25years of age recorded the number of inspections as 35 but detentions were only 8. While ships between 16-20 years of age witnessed only 25 inspections but resulted in 9 detentions. The detainable deficiencies were with respect to SOLAS 74,MARPOL 73/78, STCW 78, ISM CODE, LOADLINE, ILO 147, ISPS CODE.3

Of interest is the trend analysis of the inspection and detention done by MMD from 2005 onwards. The peak of inspection was seen in 2006 when 473 ships were inspected. And this had resulted in 30 detentions. The trend analysis shows that there was a markeddecrease in the inspection rate in the subsequent years. By 2011 inspected numbers of ships have dwindled to 267. But interestingly, the detention rate rose significantly to 42.4

From the FSI report we can draw the following inferences:

DGS is apparently focussing towards stricter implementation as evidenced by higher number of detentions while narrowing down the frequency or number of inspections.

The age wise breakup of the inspected and detained ships shows that age is not the only significant criteria which makes a ship substandard.

Over Aged Vessels: Analysis especially with respect oil tankers:World Fleet Analysis:Taking a look at the world fleet statistics (number of ships) with respect to different age groups, we see that oil and chemical tankers constitute 19.2% of the 0-4 years age group of the world fleet while it makes up 17.9% and 15.9% of the world fleet in 5-14 years and 15-24

3 Flag inspection Report 20114 See annexure III

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years age group respectively. Interestingly, the prominence of oil and chemical tankers drastically reduces to 9.8% when it comes to +25 years age group.5 This trend is all the more significant when we scrutinize the world fleet data (in terms of gross tonnage) by age groups. The oil and chemical tankers form 34% of the world fleet by tonnage in the 5-14 years age group while it constitutes only 7.3% of the world fleet when it comes to +25 years age group.6

A remarkably similar trend is seen if we analyse the class status and the age of the ships. Oil and chemical tankers constituted 25.4% of the total ships that were certified by IACS (International Association of Classification Societies) under the 0-4 years age group. It was 25.3% and 19.8% for 5-14years and 15-24years age group. But again the percentage dwindled to just 8.3% of the total ships that was certified by IACS under the +25 age group7. Similar trend is witnessed when we analyse the data on class status and age of world fleet by gross tonnage8.An imperative inference from the above statistics is that oil tankers are phased out much more earlier than other type of ships. A tenable reason for this could be that maintenance cost of oil tankers is much more expensive than other ships. And therefore it is economically viable to scrap the ship and buy a new one than to prolong the days of an aged tanker.

Indian Fleet Analysis:Now , if we were to look at the data concerning the composition of Indian oil tankers by their age, we see that of the 71 crude oil tanker 22 tankers were in 20+ age groups . In the oil tanker(product carrier) sector, of the 53(total) ships 20 of them again belongs to the 20+ age group9.This is in stark contrast to the international practice that we witnessed in the above analysis. Indian fleet seems to operate mainly on aged ships and that too in the tanker sector.

RECOMMENDATIONS:1. DGS needs to increase the number and frequency of inspections while maintaining

their position on detention. In the FSI report it is mentioned that DGS is aiming to inspect 10% of ships. This we consider as being extremely low . we would like to propose that at least 25% ships be inspected.

2. In our interview with the port authorities we had raised the question of information channel that is existent between MMD and the port authorities. It was reported that it was almost non-existent.

5 See annexure IV6 See annexure IV7 See annexure V8 See annexure V9 See annexure VI

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We recommend the institution of a communication channel between the port

authorities and the MMD as the port authorities is the agency which gets to meet the ship and its certificates in the first instance. The PCS (the Port Community System) which is being implemented can be of great help in this matter, but we recommend an integrated approach beyond the PCS.

3. The Distressed Seamen Rules,1960 envisages of distressed Indian seamen in foreigncountries or distressed by shipwreck. We recommend a revision to include seamen in distress in the Indian Coast (such as in Pratibha Cauvery).

4. We also recommend fiscal incentives to the shipping sector, especially the tanker sector so as to move to a younger fleet.

5. We also recommend an effective and proactive functioning of Seamens’ Welfare Organisation as was sen in the case of Pratibha Koyna(refer additional facts).

PORT AUTHORITIES MMD/DGS

THE SHIPPING COMPANY.

MANAGEMENT

SHIP MANAGEMENT

TECHNICAL MANAGEMENT

*Purchasing

*Maintaning*Certification

*Emergency & Contengency Mgt.

CREW MANAGEMENT

*Voyage Estimate

SHIP MANAGEMENT

CREW MANAGEMENT

COMMERCIAL MANAGEMENT

*Marketing

*Chartering*Voyage Estimate

*Agency*Accounting

ANCILLARY MANAGEMENT

*Insurance*Legal

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ANCILLARY MANAGEMENT

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THE PRATIBHA:

FLEET DETAILSNAME OF THE VESSEL YEAR OF ESTABLISH AGEPratibha Cauvary 1981 32Pratibha Chandrabhaga 1983 30Pratibha Indrayani 1983 30Pratibha Warna 1988 25Pratibha Tapi 1987 26Pratibha Neera 1986 27Pratibha Koyna 1992 21Pratibha Bheema 1991 20

Pratibha Shipping Company Limited (PSCL) was incorporated on 20th February 1995 to explore the business prospects in the Indian Oil Tanker Market. The main promoter, Mr Sunil Pawar, is a Marine Engineer with more than 20 years experience in the shipping industry.

PSCL caters to the liquid cargo segment within the Shipping Sector. It owns seven medium sized product tankers and 1 suezmax size crude carrier. It caters to the transportation of clean as well as dirty crude liquid cargo. Total Dead Weight Tonnage (DWT) of the fleet is 406,202 tones. As a business strategy, the Company has employed its vessels on time charter with leading Indian Public Sector Oil Companies/foreign players.

ISSUES:1. Management issues with respect to Prathibha.2. The relationship of the master of the ship and the company.

Management issues:Most of the ships of Pratibha were on time charter but as were reported in the cases of Cauvery, warna and Koyna, there wasa total lack of responsible management of the ships. The certificate of all the above mentioned ships had lapsed. It can be readily inferred that the ship management division and the commercial management division had totally been on an erroneous path.

The relationship of the master and the company: with respect to distress:

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SECURITY RESPONSIBILITY

RECCOMENDATIONS:

1. Since the ships were on time charter, there seems to be no reason why there should be a cash flow crisis. The shipping company needs to develop a model where by the ships and its crew are well maintained.

2. Even if the shipping company was in a crisis, it should not have failed to give appropriate directions to the master under a distress situation. We therefore

ISPS CODE

COMPANY SECURITY OFFICER

SHIP SECURITY OFFICER/ MASTER

PORT FACILITY SECURITY OFFICER

SHIP SECURITY PLANPORT FACILITY SECURITY

PLAN

FLAG STATE COMPANYOTHER SHIPS

PORT STATE PORT

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recommend an adoption of a distress management plan at the company level as well which should have an independent existence of its own.

THE MASTER:

Four Case Studies

By way of background, it will be helpful to focus on three high profile cases, as well as one lesser-known case:

1. Erika: this was a well-publicized tanker accident that occurred off the French coast in December 1999. It involved a 24-year old 37,000 DWT, Italian owned, Maltese flag product tanker that foundered and subsequently caused heavy oil pollution. The vessel was fully classed by RINA. The Indian master, Capt. Kumar was arrested and imprisoned for some time by French authorities. The RINA report removed all responsibility from class and placed the blame for the accident on master and crew.

MASTER OF THE

MARITIME SHIP

GENERAL MANAGER SHIPPING

COMPANY

FLEET DIRECTOR

STATE AUTHORITIES OF

SHIPS FLAG

DECKS CREW

STATE AUTHORITIES OF

THE TRANSIT PORTS

ENGINEERS CREW

PASSENGERS CREW

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2. Virgo: this is a case that has received very little publicity even though it should have! It involved a modern 28,000 DWT, Russian-owned, Cyprus-flag product tanker, built in 1995, that was allegedly in a collision in international waters in August 2001 with a US-flag fishing vessel that involved loss of life on the fishing vessel. The vessel was arrested and held in a Canadian port subsequent to a request by the US government. The master, Capt. Vladimir Ivanovo, was arrested and imprisoned by Canadian authorities, together with the ship’s 2nd Officer and the AB who had been on lookout duty when the accident apparently occurred. The arrest was based on a criminal law extradition request by the US authorities. The master and the two crew members were eventually released from jail but not permitted to leave Canada. The vessel was released after a surety amounting to US$ 13.5 million was deposited.Capt. Ivanov and the other two crew members remained confined in Canada for over 18 months. They were then permitted to return to Russia after a $100,000 bond was posted to ensure their return for further legal action in Canada. If Canada agrees to extradition they could face manslaughter charges in the United States.

3. Tampa: this is another high profile case involving a modern Norwegian-flag ro-ro container vessel, under the command of Capt. Arne Rinnan who responded to a request to go to the assistance of a boat overloaded with refugees that was in distress in international waters north of Australia. The Tampa eventually picked up some 433 refugees. The vessel was, obviously, not suited to accommodate these ‘passengers’, many of whom were ill. Furthermore, some of the refugees also categorically refused to cooperate with the ship’s staff. Capt. Rinnan requested assistance to offload the refugees from the closest states, Australia and Indonesia.

However, he could not persuade either country to cooperate. He found himself in a desperate situation and eventually headed for Christmas Island, which is part of Australia. Although he was ordered not to enter Australian waters, he felt that he had to. The vessel was subsequently boarded by Australian military commandos who took over the ship. The Australian authorities subsequently offloaded the refugees, when arrangements to place them with third states could be made.

4. Prestige: The Prestige was a 26-year old Greek-owned, Bahamas flag Aframax tanker that sank in heavy weather off the coast of Spain, causing serious oil pollution, after being refused access to a place of refuge in order to undertake salvage operations, and after the vessel was effectively taken over by Spanish maritime authorities. The master, Capt. Apostolos Mangouras, who had remained on board after evacuating most of the crew, was forcibly removed by the Spanish military and subsequently jailed for over three months unless bail of EUR 3 million were paid. He was eventually released, but on a bail amount that was significantly lower.

In all the four case studies the captains were experienced and qualified. And in all the four cases the captains were arrested punished. Judging from the above case laws it seems that the master has lots of responsibilities but very few rights. This is because of two reasons:

1. Customary rules which are not codified prevail in the area

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2. The master is often seen as the agent of the owner: The master is considered the agent for any act that may fall within the customary legal authority of the master, unless some legal limitations on such authority have been clearly stated.(Grant v Norway)10

The liabilities of a master are practically unlimited and are coextensive with the loss occurring through what will be considered to be any negligent or wrongful act by the master.The extraordinary responsibility and commensurate legal liability has been developed over a long period of time and originates from a shipping era when communications with ship owners were very difficult or even impossible. But in a globalized era, where the communications are instant, there is a great need of codifying the responsibilities and the liabilities of the master.

What Pratibha Cauvery master could have done?1. Claimed wages without delay. Three months of unpaid wages is a sure way of having

an unruly crew.2. Reported the matter to ITF or Seaman’s’ Welfare Organization.3. Proceeded as per section 445 of Merchant Shipping Act, 19584. Should have called the port authorities and stated the facts and asked for help as OSM

Arena had done.RECCOMENDATIONS:

1. Codify the law concerning the master.2. In maritime courses, include classes as to the legal recourse available as against a

irresponsible principal/ ship owner.

10 (1951)10C.B 665

pratibha cauvery case study

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