Legal aspect: The Crucial Role of the DPA in Casualty Response

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(www.MaritimeCyprus.com) At nautical college mariners are taught about the importance of communication, particularly in emergency situations. Similar to the tale of Goldilocks, the trainers teach you, not too much, not too little, just enough. This is drilled into seafarers in all their courses such as firefighting, sea survival, Bridge Resource Management etc. But it must be remembered that communication goes two ways. A Master on a ship that is experiencing an emergency is often communicating with a person who could be many time zones away and it may be that person may not actually have any marine experience, so explaining the situation can be a difficult and time consuming event. It is also not something that is commonly practised in drills, unlike the physical donning of suits and practising with a fire hose for example, even though it is a crucial part of the emergency process.

A recent casualty that I will use as a case study throughout this post is the grounding of the Thea II (the “Casualty”) just outside the Humber Estuary in the North East of the United Kingdom, the MAIB report was released in August 2020. As a brief overview: the Casualty experienced an engine failure which rendered her “not under command” and she anchored in a position under instruction from the vessel traffic service (VTS). The ship’s crew were unable to repair the engine due to not having the spare part on board and therefore required tug assistance. The weather deteriorated significantly, reaching force 10, and the port was closed to pilotage but the VTS was still able to send tugs to assist. The Casualty began to drag her anchor and slowly move towards a shallow area. The Master contacted the managers shoreside (hereafter referred to as “Owners”) and was told not to accept tug assistance. This approach was maintained by the Casualty’s Owners until the Duty Counter-Pollution and Salvage Officer from the Maritime & Coastguard Agency informed the Owners via telephone that they would be issuing a formal order on the behalf of the SOSREP forcing them to accept LOF if they had not managed to agree terms with the towage company with which they had been communicating. The Owners eventually agreed to allow the Master to connect tugs at 0054, many hours after the incident had begun. The Casualty had actually touched bottom during this time, refloated on the tide and was in imminent danger of firmly grounding as the tide was now going out.

This case clearly demonstrates the crucial role that the Designated Person Ashore (DPA) has in an emergency and how clear communication between ship and shore is vital. It also touches on an interesting area of law with regard to the Master’s authority.

Shore Side Assistance & the DPA

Under the ISM Code, all commercial shipping businesses must have a trained DPA as a point of contact between the company and the crew. This role was created following the disasters of the Herald of Free Enterprise and the Scandinavian Star. They have to be available at all hours of the day and night to ensure the safety of the crew, vessel, cargo and environment. The IMO has outlined the minimum requirements for a DPA to meet in MSC-MEPC.7/Circ.6 but it is not a mandatory requirement for this person to have seagoing experience if they have a qualification from a recognised higher institute.

When selecting the person to fulfil the role of DPA the process should be properly undertaken with the same due diligence you would expect to see in selecting the crew for the company’s vessels. This is the person who will be called at 0200 because a ship has grounded or there has been a fire or a crew member has been injured. It is also the person called by any crew member who has concerns about safety on the vessel and wishes to report these concerns anonymously. It is a role of extreme responsibility and should be treated as such. It is vital that the DPAs role is recognised throughout the company and the fleet for the importance it holds.

It could even be viewed that on a practical level once called they are just as responsible for the safety of the ship as the Master and it is the DPA who “activates” the higher level management when they deem it necessary. The DPA should have direct access to the CEO for issues that cannot be settled at a lower level. In order to make this decision they need to understand what is happening on the vessel and an important part of this is knowing what questions to ask.

In the Thea II case it was noted that the shoreside management was only able to communicate with the Master via email, and that emails from the Master were short, not providing much information. This ultimately gave the DPA the wrong impression of the urgency of the case. However, the question arises of why did the DPA not ask more questions in order to gain a better understanding of the situation? Further, they did not attempt to ascertain the Casualty’s position for themselves by using AIS or any other means. This is a fairly simple thing to do, even if you are at home there are plenty of easy to access websites that can be used (at no charge) to identify a vessel’s location.

This raises the additional question as to whether it is sufficient for the DPA simply to have a work phone or whether they should be provided with more equipment in order to perform their role efficiently. You would not expect the Master of a vessel to navigate it without being provided with the correct equipment; equally, for a DPA to be able to perform their job properly they should be provided with the correct equipment. The effective work of the DPA is crucial for companies to be able to avoid prosecution or claims of neglect from any accidents that may occur, so companies should endeavour to ensure this work can be carried out to the highest level possible.

Developing a selection of questions that should be asked in any emergency, with additional ones for specific emergencies could provide a framework for the DPA to build upon. Much like the airline industry, shipping has moved towards the checklist as a means of ensuring crucial steps are not missed in an emergency. This provides support for the crew in a difficult situation. A small booklet provided to the DPA would enable them always to know what questions to ask in order to gain a fuller understanding of the situation.

In the case of the Thea II simple questions such as “what are the weather conditions?”, “what is your proximity to land?” and “are there any defects?” would have enabled the person at the end of the phone to build a picture that indicated clearly that urgent tug assistance would be required. As it was, the DPA was missing large parts of the picture and, as such, did not necessarily appreciate the imminent risk of grounding.

Master’s Authority and the DPA

Under section five of the ISM Code it is stated that the company should ensure their SMS shows that the Master has overriding authority when it comes to decisions regarding the safety of the vessel and the environment. This ability of the Master to make decisions is the lynchpin of the shipping industry. Masters are highly trained individuals with many years of seagoing experience. They are trained specifically to do that job, a large part of which is making important and swift decisions. Masters should be able to make decisions safe in the knowledge that they will be supported by the Owners.

A modern issue is that, occasionally, Masters are afraid to make decisions that they perceive might cause difficulties for the Owner as they fear they could lose their job. They do not want to be the “expensive Master” who always orders a tug, even if the conditions indicate a tug is likely to be required. Of course, any reputable Owner would always encourage the Master to make those decisions and allow them that freedom but the atmosphere in the company must promote this. The DPA holds a very key role in providing this support.

But what happens if the Owner expressly forbids the Master to make that decision, essentially removing his responsibility under the ISM Code and taking it upon themselves? In the Thea II the Owners told the Master not to take a tug or sign an LOF but rather to wait for the insurance brokers to organise it. As the situation progressed, the Master persistently asked for permission to take a tug with increasing frequency and anxiety (as noted by the MAIB). The Owners remained focused on the commercial aspect of securing a good deal with the tug company. The severity of the situation should have become even more apparent to them when all the tug companies refused a commercial contract and would only take an LOF due to the prevailing conditions.

So legally, what can the Owners rely on in this situation? The Master’s overriding authority is always the final fall back for Owners. But in the case of the Thea II it should be questioned if this is really sufficient. It was specifically noted by the MAIB in their investigation that the “approach undermined the master’s authority.” Therefore, could the Owners rely on the Article IV 2(a) defence in the Hague-Visby Rules? This is used to cover any act, neglect or default of the Master in the navigation or management of the ship. It is possible that the non-transferrable nature of the Master’s authority would be upheld at law and the Owners would be able to rely on that defence against cargo claims even with the actions of the DPA. However that can only be relied on if the Owners have exercised due diligence at the outset of the voyage.

Usually the argument against an Art. IV defence is to challenge the due diligence that goes into making a ship seaworthy. This would involving reviewing the planned maintenance system, the recruitment process of the ship’s crew, competence of the Master etc. The due diligence that went into the appointment of the DPA and the company’s efforts in ensuring that they were fully provided with the means to execute their role could come under scrutiny, particularly in cases like this where there has been such significant overstep by the DPA. Indeed a system which allows the Owners to overrule the Master may be deficient; or a Master that allows himself to be overruled may be incompetent.

Summary

As shown in the Thea II, the communications between the DPA and the ship are vital. It was mainly luck that stopped the Casualty from being washed up upon the shore and causing an environmental disaster. With the continued growth in the criminalisation of the seafarer it is likely the Master would have faced lawsuits for negligence, amongst other things, for failing to execute his duties as expected. Although it is possible the Owners would be able to rely on Hague-Visby to defend cargo claims, the action of the DPA could shift the liability.

Owners should ensure that they carry out the same level of due diligence in appointing their DPA that they take in appointing their Masters. The role of the DPA has developed significantly from 30 years ago when it was first introduced. A DPA needs to be a leader who has top level communication skills and an understanding of what is happening on the ship at a regular operational level, not just a theoretical knowledge from their management of the SMS. Regular drills with the vessels calling the DPA would assist both sides, the crew practise their firefighting skills every month and so should the DPA even though their form of “firefighting” is in an advisory capacity. It would also enable the crew to know who the DPA is and practise interacting with them, getting used to answering the questions they can expect in an emergency.

Specifically in the Thea II the Owners did not wish to engage tugs on an LOF, they wished for a commercial contract. This is something that is happening more and more, even though salvage is usually recoverable through GA and therefore cargo would ultimately be contributing to the cost. It should always be remembered that usually in an LOF case the vessel is in peril: by the very nature of salvage she must be in danger. Removing the Master’s right to make decisions for the safety of the ship, crew and environment is a dangerous precedent that could end up creating more dangerous situations in the future.

Source: Ms Voirrey Blount, Admiralty Manager, ReedSmith.

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