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Should a Shipmaster be Punished for Cowardice?

The question has been debated and has arisen again as to whether or not a shipmaster should be punished for cowardice. I am of two minds about the question. On the one hand, if the master is paid by his employer to be courageous, then by all means -- if a law can be found to punish him lawfully. If he is not paid to be courageous, then no.

Let me explain before the knee-jerk uproar such statements will inevitably make among some.
First we must distinguish between cowardice and courageous behavior. Each is a personal characteristic much like stature or the state of having no hair. So we must ask ourselves whether or not personal characteristics should be punished and if so in what situations. Some characteristics ought never to be punished. I would of course argue that baldness is one of those. Drug addiction ought not be punished. That is not a moral matter of choice but, as modern science has shown a matter of physiological characteristic in the addict and largely genetic.
Second, we must define cowardice. The military definition dominant in most thinking is running before the face of the enemy. This means in some ways that turning and running rather than standing and fighting are a component of cowardice. It implies that uncontrolled fear of death or injury is not a part of turning and running unless a retreat is called. It is also a part of the American common sense and culture. So in reality punishment of cowardice is punishment of fear and visible running which implies he who runs is not brave enough to conquer his own fear or perhaps, even, being demonstratively un-American. He who does that is a coward.
But then there is moral cowardice – not doing the right thing in what is seen as generally right. In other words, doing what ought be done. This appears to be a matter of choice as well as personal characteristic. It is not necessarily related to fear. So the calls for the master’s head are for the proposition of punishing a person who cannot control his or her fear but not punishing a person who does. That is a pretty tough standard in a civil environment. It is also tough in a military environment, hence the coercive nature of non-commissioned officers and commissioned officers in combat. Thus, the calls for judicially punishing behavior labeled as civil cowardice is not one which would be entertained by a court of law but would immediately be recognized as vigilante justice.
No, in the maritime international business we are commercial and apply cool unbiased money is the arbiter. Money implies free will and that is the end of the argument. We pay people to do things correctly. We take away their money if they do not. Shipmasters then are paid to do things correctly or they are fired – a form of economic punishment but not criminal punishment. That is the commercial way. Since we have got rid of flogging, bread and water, keelhauling, the cat-o-nine tails and similar medieval practices that is about the only way we can commercially punish. We are not a military organization even though we are traditionally disciplined. We do not manage by coercion and fear of death. We manage by money. We run big machines and thereby our risks are bigger than life and when our risks turn to awful reality the response is bigger than life and somebody has to be blamed. This is delicately called accountability. If the bus cannot stop and a man throws himself under it to do so some would call him a fool and others would call him brave. If the ship cannot function and the man responsible throws himself over the side and drowns we call him nothing except the man who was responsible who died.
So because we are not a military organization, we are only beholden to flag state law not to the laws of military conduct and justice. In our business we do not shoot people who run. A military organization always has the power of coercion – even if it is at gunpoint. We do not make drumhead court decisions whether or not a person is a coward. When we draw the conclusion we look back and make the decision about the behavior in moral but not legal terms. The laws against immorality are spiritual laws. Civil cowards may be spiritually guilty or spiritually corrupt. Courts do not deal with spiritual guilt. The Inquisition did that. Courts deal with legal guilt.
Let us take the Costa Concordia. The master has been said to be coward by the prosecutor and therefore deserves 26 years in prison – however he calculated that number. How can he say that? First, it is a moral statement and not a statement of law. The master is being prosecuted for our equivalents of criminal negligence and manslaughter not moral cowardice. The statement is prosecutorial grandstanding and headline grabbing. Some call it advocacy. I call it poor prosecutorial form.
The master of the vessel was being paid to do what he ought to have done by the law and the regulations. It was argued that he did not. There were mitigations including the prior practices of passing close by other masters to the particular island which grounded the ship – encouraged by the company. As a proximate result of his failures in behavior people died and a vessel was lost -- it was argued at law. It also so happens that the defense arguments never had a chance in this year’s version of the circus maximus of sophomoric reporting and hangman judgments.
Accusations of cowardice are public posturing and posing and yellow journalistic editorial press. The press hanged the master 24 hours after the grounding. Morality is not the law here, however. That tended to die out over the course of the 17th century in Europe. We are now some three centuries after the inquisition -- but it now lives in the press and biased juridical dicta and mouthy prosecutors.
Unlawful behavior was the only question before the court in Italy. The master is not paid to be a hero. I have seen no flag state law requiring it and I have seen no union contract mandating it. He is not a military person ruled by coercion. He is a civil employee at will with certain duties and responsibilities. Those duties are to the vessel and nearby vessels and structures, to the souls aboard and nearby on other vessels and in the water, to the cargo and the shipper, to the flag state whose warrant he holds and by whom he is competent authority aboard, to the voyage, to the owner as a commercial agent and agent of necessity and occasionally custodian and even constructive trustee, and to the environment surrounding his vessel. In the Costa Concordia matter, the evidence indicated that he violated his duties to the vessel and nearby vessels, he violated his duties to the souls aboard his ship and in the water, he violated his duties to the inanimate chattel being shipped on his vessel and to their consignors, he violated his duties to the flag state, he violated his duties to the voyage and to the owner, he violated his duties to the environment. Under both flag state and port state laws some of these violations were criminal in nature. He was not tried for the moral violation – if it is one – of being afraid and not doing his duties. He was tried for not doing his duties.
Backbone is not a contract or a flag state requirement, I fear. That is a personal characteristic not ruled by the civil and criminal law. However, neither can it be bought or sold for money.

The opinions expressed by Dr. John A.C. Cartner in the ‘Conversations with Cartner’ Video Series and accompanying blogs are the opinions of Dr. Cartner and do not necessarily reflect the views of the staff and management of Maritime TV, or its parent network, TV Worldwide, Inc.

Categories: Maritime Law
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John A. C. Cartner

John A. C. CartnerJohn A. C. Cartner

Dr. John A. C. Cartner practices maritime law domestically and internationally. He is designated Proctor in Admiralty by the Maritime Law Association of the United States and is member of other state maritime law associations.

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Maritime TV 'Conversations with Cartner'
A weekly discussion on maritime industry issues of the day with Shipmaster and Maritime Lawyer, Dr. John A.C. Cartner.

The opinions expressed by Dr. John A.C. Cartner in the ‘Conversations with Cartner’ Video Series and accompanying blogs are the opinions of Dr. Cartner and do not necessarily reflect the views of the staff and management of Maritime TV, or its parent network, TV Worldwide, Inc.

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