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E-raamat: Responsibility and Accountability in Maritime Law: Criminalisation of the Ships Master [Taylor & Francis e-raamat]

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"The criminalisation of seafarers has been observed as a growing phenomenon for more than forty years, presenting a picture of increasing liability upon the Master even though their responsibilities remain essentially unchanged in generations of maritimelaw. Because of the demand by society to find someone to blame for environmental and human loss, there is a constant flow of cases, which serve to confirm the phenomenon but offer no solutions to defend the innocent. The structure of the maritime environment in which they work has changed dramatically, as evidenced by the complex evolution of fleet ownership and management, leaving the Master with diminished management influence. This book has been written in a format which meets the needs of lawyers, academics and maritime professionals, with the aim to analyse the character of criminalisation to determine the features which characterise the phenomenon in Port and Flag State contexts; it interrogates the aim to define the nature of criminalisation, identifies the constituent problems in such criminal accountability. Each chapter relies heavily on case studies to illustrate how the laws which reflect national policy underpinning those priorities are applied in practice. This structure enables an understanding the problems in the criminal process, with a view to offering options for solutions. The book is directly relevant to a broad range of parties that includes lawyers, academics, P & I clubs, seafarers, shipowners, managers and agents, and national and international seafaring unions"--

This book aims to analyse the character of criminalisation to determine the features which characterise the phenomenon in Port and Flag State contexts; it interrogates the aim to define the nature of criminalisation, identifies the constituent problems in such criminal accountability.

List of cases
ix
Introduction xii
Chapter 1 What is a Crime?
1(6)
The essence of criminal accountability
1(2)
Prosecutions and the Master's human rights
3(4)
Chapter 2 Sources of Law
7(17)
State sovereignty
7(2)
Sovereignty and maritime Conventions
9(3)
The case of the Arctic Sunrise
12(2)
The enforcement of Conventions in domestic law
14(1)
The case of the Gladys Bowater
15(1)
The case of Gandara v Bennett: Gladys Bowater confirmed
16(2)
Interpreting clear statements in Port State laws
18(1)
The case of Spector v Norwegian Cruise Line
18(1)
Tensions between sources of laws
19(1)
The case of Captain Mangouras of the Prestige
20(4)
Chapter 3 The Master and the Ship
24(9)
Who is the Master?
24(1)
The Master's Overriding Duty
25(1)
The case of R v Juanga
26(1)
The Master's responsibility for safe navigation
26(1)
Safe navigation of what? Trouble with English law
27(1)
The case of R v Goodwin
28(2)
Assistance from overseas jurisdictions
30(3)
Chapter 4 The Risk Business
33(25)
The Master and their accountability
33(3)
The Smyrna and the Moto
36(2)
Business and law
38(2)
The business of the owner
40(2)
The financial magnitude of the risk
42(2)
Any way to make a profit
44(3)
The Master--Owner relationship
47(1)
The case of the Sussex Oak
48(2)
The case of the Tasman Pioneer
50(3)
The impact of Statute Law on the relationship between the Master and the owner
53(2)
The case of Captain Schettino of the Costa Concordia
55(3)
Chapter 5 Port State Sovereignty: What Could Possibly Go Wrong?
58(13)
Port State jurisdiction
58(1)
The case of Captain Laptalo of the Coral Sea
58(2)
Strict liability -- its use and abuse
60(1)
The case of Captain Schroder of the Zim Mexico III
61(2)
The case of Captain Chawla of the Hebei Spirit
63(3)
China's emergence on the maritime stage
66(3)
The case of the Kota Nebula
69(2)
Chapter 6 Management Control By the Flag State
71(12)
The Flag State and UNCLOS
71(1)
The case of the Mavi Marmara
72(1)
The Flag State and the Master's accountability
73(1)
The case that will not go away: Regina v Dudley and Stephens
74(4)
The Master's management of the Flag State's human rights
78(1)
The case of Hook v Cunard
79(2)
The role of Flags of Convenience
81(2)
Chapter 7 Criminal Accountability for Neglience
83(14)
The evolution of negligence in maritime law
83(3)
The case of Donoghue v Stevenson
86(1)
What is criminal negligence?
87(2)
What is the gross negligence element?
89(1)
The case of the Seistan
90(2)
The gulf between civil and criminal accountability
92(1)
Neither one thing nor the other
93(1)
The case of Michael Hubble of the Pride of Bilbao
94(2)
Conclusions?
96(1)
Chapter 8 Criminalisation and Seafarers' Rights: Problems and Solutions
97(16)
Rights and responsibilities
97(1)
Human rights protection
97(2)
What is a crime under the Maritime Labour Convention?
99(2)
The case of Wilson v Secretary of State for Transport
101(1)
The case of the Wakashio: a step-by-step study of Port State justice and the consequences on human rights
102(9)
Criminalisation of the Master and human rights: a solution?
111(2)
Chapter 9 Investigations, Evidence and Self-Incrimination
113(16)
What is the purpose of an investigation?
113(1)
The case of Hoyle v Rogers
114(2)
Captain Wolfgang Schroder again
116(1)
Gathering evidence and record-keeping
117(1)
What is evidence for legal purposes?
117(1)
When is evidence unnecessary?
118(1)
Presenting evidence to the Court
119(1)
The evaluation of evidence
119(1)
So, what must the evidence establish?
120(1)
Insufficiency of evidence - no case to answer
121(1)
In the wake of the Herald: the Marchioness
122(1)
Attributing responsibility and blame: comparing shipping and aviation
123(2)
The case of the Schiphol prosecution
125(1)
A `Just Culture'
126(3)
Chapter 10 The Foundations of Sentencing: Culpability and Harm
129(11)
Sentencing guidelines
129(1)
Culpability
130(2)
Harm
132(1)
Crime and punishment
132(2)
The case of Captain Hoyt of the Azura
134(1)
Sentencing in practice: the Herald of Free Enterprise
135(5)
Chapter 11 Occupational Hazards
140(21)
Trouble in the Gulf
140(1)
Metamorphosis of maritime risk
141(5)
The Master's risk management
146(2)
A solution: mediation?
148(2)
Piracy and the Master
150(2)
Flag State protection? How the Flag State sees it
152(2)
The case of the Enrica Lexie
154(3)
The unacceptable risk of liability for armed guards
157(1)
Summing up the risk
158(1)
Problems and solutions: the story of Captain Stapleton of the Teignbank
159(2)
Chapter 12 Compulsory Pilotage: Who Takes the Blame?
161(7)
The modern law of compulsory pilotage
161(3)
The case of the Sea Empress
164(1)
The case of the Cosco Busan
165(3)
Chapter 13 Polar Risks
168(15)
Taking UNCLOS to the High Arctic
168(1)
The case of Captain Hazelwood of the Exxon Valdez
169(1)
The greatest risk: criminalisation for environmental damage
170(3)
The elements of the duty of care in the High Arctic
173(2)
The Xuelong and the Shokalskiy
175(1)
The Russians are coming
176(4)
The Master's accountability -- summing up
180(3)
Chapter 14 Autonomous Ships
183(12)
The emerging technology
183(1)
What is autonomy?
184(1)
State responsibilities for ships and the tensions that arise
185(1)
The Master's responsibility for the autonomous ship
185(1)
Risk management and responsibility
186(1)
The dangerously unsafe ship
187(1)
Pilotage
187(2)
The safe navigational watch
189(2)
The Master's discretion and the safe port
191(1)
Remote management of an emergency
192(1)
Summing up -- applying criminalisation to autonomous ships
193(2)
Index 195
Dr Simon Daniels qualified as a Solicitor in 1985, practising in marine litigation, with experience in commercial and criminal cases over many years, before he developed a career in alternative dispute resolution as a Qualified Dispute Resolver and Member of the Faculty of Mediation and ADR, founded by the Academy of Experts in London. He brought his professional background in maritime practice to the academic field at Solent University, where he managed the law and business parts of the MCA-accredited Merchant Vessel Operations programme at Warsash Maritime Academy, one of the world's leading centres of excellence in training for merchant shipping professionals. With the benefit of his experience across professional and academic fields, he took particular interest in the field of the criminalisation of the Ships Master and, in 2012, was awarded a PhD for his thesis: The Criminalisation of the Ships Master. A new approach for the new millennium.

In August 2019, Simon left Solent University and established a new career in maritime research and consultancy. Most recently he has carried out a complete review and update of The Shipmasters Business Self-Examiner, the flagship publication of the Nautical Institute.