From the USCG MSM for Industrial Personnel
Yes, I am familiar with this. “engaged” refers to the shipping articles. I don’t believe that applies here.
In any case the articles require that the seaman be paid. The articles is an agreement to pay specific wages.
Abandonment is not the correct term, it’s desertion.
Have a buddy with the fed pilots in New Orleans. Apparently they are having trouble there too, and one Bouchard ATB was actually forced to the pier by Coast Guard. Check out Bouchard girls last night on AIS.
Dana Bouchard is right there too. Looks messy
Until it is established that Bouchard seamen signed shipping articles this is a moot point. Without signing shipping articles a person working on a vessel is no different from someone working at the local 7-11 in so far as continuing to work without relief or without being paid. They can lock the door, if they wish, and go home.
More from Volume V of MSM. Your responsibility as a credentialed Mariner and the substantial difference in the relationship between Master and crew vs. employee employer will not allow you to walk off a boat at anchor against Masters orders without Possible repercussions. especially if there is a COTP order in place identify it as a unsafe condition.,
Disobedience Of A Lawful Command
The authority of the ship’s master to issue orders is well established (see
46 USC 11501). A command need not be issued directly by the master, but may be transmitted by the master through subordinate officers. No statute permits a mariner, either expressly or implicitly, to disobey a lawful order of a superior; a mate or engineer as well as the master (certain statutory safeguards provide a remedy to mariners in cases of abuse). The relationship of master to mariner is entirely different from that of the employer and employee ashore. A mariner who questions a master’s order does so at risk. Whenever the basis of a complaint is refusal or failure to obey an order, the evidence should show that the order was not in the nature of a request, that it was properly communicated to the person issued the complaint, that it was lawful, and that it was directly connected with the safe operations of the vessel. The factual allegations must tell what the command was and, unless obvious, the manner in which it was disobeyed.
Not talking about lawful commands. The question is what is stopping the crewmember from terminating his employment relationship?
If sufficient notice is given the issue of leaving the vessel at risk is not valid. Nor do the articles apply in this case.
Nothing is keeping him from terminating his employment, but if he does so while serving under the authority of his credential and it puts the vessel, personnel or environment at risk, he could be held accountable for it.
You have to wait for your relieve if your absence would create a hazardous condition, that in this case has already been declared by the COTP. Your responsibilities when serving under the authority of your MMC are very very different from employment at 7-11…
The company and the master are responsible. That responsibly cannot be escaped simply by declaring that it’s been shifted to another person.
There is an old saying, The Master decides if the the ship is safe to sail. But the company decides who is the Master. The Master decides who he works for. The company pays the Master to sail the ship and they both sign articles [a contract] to that effect. Should pay stop the articles are null as the contract has been broken unless there some extenuating clause such as force de majeure within the articles.
What’s being confused here is the responsibilities and obligations of a crewmember and that of a specific individual. If Joe Schome is the AB then he is responsible. But when Joe Schome stops being the AB he no longer has those responsibilities.
The C.G. and the company have a problem on their hands here. It’s not the responsibly of some random AB to solve that problem for them.
The United States has a common law legal system, like England, We are not a Civil Code based system like, France, and most of the world. Not all law is found in a statute book or CFR.
A great deal of Anglo-American law is “common law” found only in court decisions, hornbooks, and digests. New court decisions are made, and new common law is formed everyday. What wasn’t the law yesterday, maybe tomorrow.
Typically, American maritime law has two principle sources GML (General Maritime Law) which is judge made maritime common law, and Federal statutes, the USC (United States Code), and the regulations (CFR) authorized by Congress to implement those statutes.
Just because a legal requirement is not codified in a statute or CFR, that does not mean that it’s not binding law. Cases like, THE T. J. HOOPER 60 F.2d 737, (1932) (Just because it’s not required by USCG regulations, does not mean that the courts cannot require it) illustrate this point.
A quick look at my dated copy of the MARITIME LAW DESKBOOK tells me that 46 USC 10502 requires “Coastwise Articles,” but the fact that I’ve never seen Coastwise Articles, suggests to me that the courts have probably decided in various cases that this statute is obsolete, and that articles are no longer required, or a legal custom has developed to not enforce it.
I don’t happen to have a copy of Norris, THE LAW OF SEAMEN on my shelf because it’s too bloody expensive (something like $1500, plus monthly updates).
What do lawyers usually say when you ask a question: “It depends”! …”On the one hand, it may be this…. On the other hand, it may that …”
Why don’t lawyers just look up a definitive answer in the statutes or CFR, and give you a straight answer? Because they can’t. The answer is not in the statute or the CFRs. The answer, if there is one, is only found in the cases that interpret and apply the statutes, CFRs, and the common law.
Often there is no clear answer. Lawyers are merely “weathermen“ who forecast, how some judge might interpret and apply the constitution, statutes, CFRs, treaties, and common law to some peculiar factual scenario (assuming those “facts” can be proven at trial —- a huge assumption).
In the absence of a lawyer to give a “legal forecast,” a Mariner can only do what he would do in the absence of a weather report, use seamanship and common sense to make his own forecast.
In this case, the Bouchard crews can easily get a good legal forecast and excellent proactive and zealous legal representation. I cannot believe that masters and mates engaged in the transport of oil at top wages do not have MOPS (Merchant Officer’s Protective Syndicate) license insurance. They must have it. They are fools if they don’t. All they need to do is pull that MOPS card out of their wallet and call the toll free number. When they report the circumstances that they find themselves in, and that the USCG is threatening them with license suspension, MOPS will provide them with good attorneys.
I don’t recall seeing this. Where was it?
Bouchard crew, if you have MOPS license insurance call them now.
It was in the Captain of the Port letter posted above.
In the penalties section of those COTP letters IIRC.
It’s not shifted, its shared by way of a lawful order. The Master and owner will be held accountable for violating the COTP order but crew could be held accountable for not following lawful orders and in doing so creating a hazardous condition.
If they were secure dockside (read as no hazardous condition would be caused by the absence) I agree with you. No employment agreement regarding work schedules and no shipping articles your good to go.
Which one? Not seeing it. Can you repost?
There would be no point on giving orders, lawful or otherwise to people that are not on the crew.
Or some reason I cannot get it to copy and paste. It’s in the two CAptainof the port letters hat you posted 5 hours ago.
Looking at the Penalties section. The USCG is also threating the Masters with felony CRIMINAL prosecution.
Bouchard Masters, if you are members of the Nautical Institute, you should call them immediately and request a lawyer under their criminal defense coverage.
