Section 31 of the Maritime Transport Act 1994 ("MTA") provides that the master of a ship must notify Maritime New Zealand ("MNZ"), the maritime safety authority of New Zealand, as soon as practicable, when the ship is involved in an accident, incident or mishap. Failure to do so amounts to an offence under the MTA.  "Who is the master in terms of section 31 MTA", was the question for determination, on appeal, in Maritime New Zealand v Birchall[1].

[1] Maritime New Zealand v Birchall [2009] NZCA 119

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Facts

The ferry Santa Regina was involved in an incident in the Cook Strait. Mr Hoedemaeckers was employed on board as the master. The ship's manuals set out the master's responsibilities, which included responsibility for safe navigation, safety and overall maintenance, seaworthiness, and the entire management of the ship.  Since the ship was operated almost continuously, Mr Hoedemaekers would, from time to time, hand over the navigational command of the ship to the first mate, in order to rest. Mr Birchall was employed on board as first mate. The ship's manual provided for a change of command procedure from the master to the first mate/relief master. This procedure included the master's authority to resume command at any time. The manual also recorded the first mate's responsibilities, which included the safe navigation of the vessel during his watch. Mr Birchall was navigating the ship when the incident occurred. He did not report the incident to MNZ until four days later. 

Mr Birchall was charged, as the master, with failing to notify MNZ of the incident as soon as practicable. He was found guilty of the offence in the District Court and appealed from that decision.

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High Court Decision

The High Court granted Mr Birchall's appeal on the basis that the prosecution had not established an essential element of the charge, namely that he was the master.

Section 2 MTA defines "master" as "any person (except a pilot) having command or charge of a ship". 

The High Court held that, for the purpose of section 31 MTA, there could only be one master at any one time. The High Court then had to decide who the master of the ship was at the time of the incident. It decided that Mr Hoedemaeckers was the master. This decision was largely based on the responsibilities outlined in the ship's manuals. Particular reliance was placed on the fact that the master's transfer of command was always subject to the master's authority to resume command at any time and was not a total transfer: the master remained responsible for the navigation of the ship even when he was not on the bridge.

MNZ appealed, without asking for the re-instatement of Mr Birchall's conviction.

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Court of Appeal Decision

In a single judgment, the Court of Appeal disagreed with the High Court and found that the master, for the purposes of section 31 MTA, was Mr Birchall. 

The Court of Appeal primarily based its decision on the statutory definition of "master" in section 2 MTA.  In particular, it interpreted the words "any person" as applying to the person who fulfilled the qualifications of master at the particular time, rather than requiring a single person to be the master of the ship at all times.  The Court then held that the words 'having command or charge" in the definition must be read disjunctively. The Court of Appeal considered that the words "having command" or "having charge" focused on the person factually having the functions of "command" or being "in charge" at the relevant time and not on the rank of any other person who theoretically could have taken command or charge, but had not actually done so. The Court then concluded on the facts that Mr Birchall had "command" of the ship, as he had made an entry in the deck log to that effect when he took over Mr Hoedemaeckers position on the bridge.  Even though Mr Hoedemaeckers could have retaken command from Mr Birchall at any time, he had not done so and Mr Birchall remained in command of the ship at the time of the incident.  Mr Birchall was also found to have "charge" of the ship, as he had the con, overrode the autopilot and undertook manual steering at the time of the incident. 

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Comment

The Court of Appeal considered that the definition of 'master' in the Act does not require a single person to be the master of the vessel at all times. Instead, it held that the definition rather applies to the person who fulfills the qualifications of the definition at a particular time. At the same time, the Court seems to have proceeded on the basis that the obligation of the master (to report an incident under section 31), can only reside in one person at a particular time. However, having decided that the words 'having command or charge of the ship" in the definition of master in section 2 MTA must be read disjunctively and that Mr Birchall fulfilled both parts of the definition (he was in command of the vessel and he was in charge of the vessel), the Court of Appeal left open the question who would be the master, if one person on board were in charge whilst another held command of the ship.

It should be noted that the obligation under section 31 of the MTA, to notify MNZ of incidents, is imposed on masters of New Zealand ships but also on masters of foreign ships in New Zealand waters. The MTA places numerous duties on masters, both of New Zealand ships and foreign ships in New Zealand waters (such as, for example, rendering assistance to persons in danger of being lost at sea, or reporting dangers to navigation to ships in the vicinity) and the master's failure to fulfill these duties amounts to an offence.

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