There are few decisions that provide guidance on what is meant by the term 'Master' in maritime law. However, a recent decision handed by the New Zealand Court of Appeal provides some assistance. In Maritime New Zealand v Birchall  NZCA 119, the Court broadened the definition of 'Master' when it determined that the First Mate temporarily in command of a vessel was responsible in the capacity of Master to report an accident.
The Court held that a person may fall within the definition of 'Master' under the Maritime Transport Act 1994 (Act) even if they are not the Master appointed by the shipowners. So long as the person had command or was in charge at the relevant time, he or she was the 'Master' and must comply with the Master's obligations under the Act.
On 9 June 2005, a Cook Strait ferry Santa Regina was passing through the Tory Channel in the Marlborough Sounds heading for Cook Strait and Wellington. At around 6pm, the Captain, Mr Hoedemaeckers took a rest and handed over the navigation of the ship to the First Mate, Mr Birchall. This was recorded in the deck log, but not the official log.
As the vessel passed Taranaki Rock and began to turn into the Channel entrance, the tide pushed the vessel across the entrance towards its northern shore and the rocks at East Head. Mr Birchall tried to straighten up the vessel using the autopilot, but the vessel was not straightening up quickly enough and headed straight for the rocks at East Head. The vessel came within approximately 100 metres of the rocks.
Mr Birchall then took manual control and managed to straighten up the vessel so that it passed safely into Cook Strait. Mr Birchall reported the incident four days later.
Because of Mr Birchall's delay in reporting, Maritime New Zealand (MNZ) charged him under section 71 of the Act for failing to comply with section 31 without reasonable excuse. Section 31 provides that the Master of any New Zealand ship must notify MNZ of any mishap that it was involved in 'as soon as practicable'.
The 'Master' is defined in section 2 as 'any person (except a pilot) having command or charge or any ship'.
MNZ also charged Mr Birchall under section 65 for operating a ship in a manner which causes unnecessary danger or risk to any other person or property.
DISTRICT COURT RULING
The District Court Judge dismissed the unnecessary danger charge but held that the prosecution established the late reporting charge against Mr Birchall.
The District Court Judge held that the definition of 'Master' extended beyond the person appointed by the shipowners as the Captain or Master. Mr Birchall was in control of the vessel at the relevant time. Accordingly, he was the 'Master' at that time. As the 'Master', Mr Birchall failed to report the incident as soon as practicable, but reported the incident four days later. The District Court held that he was liable under section 71.
HIGH COURT RULING
Mr Birchall appealed to the New Zealand High Court. Justice MacKenzie in the High Court held that Mr Birchall was not a 'Master' at the relevant time and quashed the late reporting conviction under section 71.
After hearing evidence from experts for both parties, Justice MacKenzie held that the understanding in maritime practice is that the Master had overall command of the vessel and that command is single and individual. Section 31 imposes reporting obligations on 'the' Master, which indicates that there can only be one Master. There would be confusion if the reporting obligations were imposed on more than one person.
The Judge held that the Master cannot be subordinate to someone who has overriding command. Since Captain Hoedemaeckers had overall command and could retake command at any time, Mr Birchall's command was always subordinate to the Captain's. Therefore, he was not the 'Master' at the relevant time.
THE COURT OF APPEAL RULING
MNZ appealed to the Court of Appeal. Its appeal was on one issue only: whether Mr Birchall fell within the definition of 'Master' in the Act.
The Court of Appeal considered there were three approaches: interpretative, historical and factual.
The interpretative approach looks at the meaning of the statutory provisions, in the context of the Act's aims. The Court agreed with the High Court that reporting obligations under section 31 are only imposed on one person at any time. However, the definition of 'Master' refers to 'any person'. The Master is not necessarily always the same person.
The focus is on the person 'having command or in charge' of the vessel. The 'Master' means the person having the functions of 'command' or who is 'in charge' at the relevant time.
Historically, 'having command or charge' of a ship is interpreted broadly. In Beilby v Scott (1840) 7 M&W 93, selection of a course was held to be in the 'conduct and charge' of a vessel.
The facts of the case indicated that Mr Birchall was in command or in charge at the time. The Captain transferred command to Mr Birchall. Mr Birchall controlled the autopilot and took manual control. Until the Captain retook command, Mr Birchall was in command and the 'Master' of Santa Regina. Accordingly, he must comply with the Master's reporting obligations.
This approach is consistent with the aims of the Act to enhance safety at sea. The person in control of the ship at a particular time should be responsible for the overall safety of the ship.
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