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APPENDIX C LAWS AND GUIDES OF Tat: UNITED STA1tE:S CONCERNING VESSEL MANNING By Capt. Clinton J. Maguire, U.S. Coast Guard, Ret. Government control* of manning is exercised through statutes ~ i. e., acts of Congress), regulations, and court rulings. Regulations are Promulgated by the commandant of the Coast Guard under authority conferred oy acts of Congress. U.S. court rulings interpret the statutes and apply the pr inciples of admiralty law. . The Coast Guard's general policy guidelines for the administration of manning laws and regulations are found in the Maritime Safety Manual and are available to the public. The Coast Guard' ~ general rules on manning are published as notices in the Federal Reg ister and collected for convenience in its compilation, the Code of Federal Regulations (Ti~cle 46, Shipping) . These deal only w ith those requirements actually imposed by statute and are little more than repetition. More important is the authority given by 46 USC 8101 (222), for the Coast Guard to prescribe the minimum complement of persons, licensed and unlicensed, considered necessary for the safe navigation of each individual vessel. These requirements are set out in the Certificate of Inspection issued to the vessel. In the mat familiar and customary form, a Certificate of Inspection calls for a licensed master, three mate=, three or four licensed engineers, enough sailors to have three per watch, and enough unlicensed engine-room personnel on a steam vessel to have three per *The laws regarding vessel inspection, manning, licensing, and shipment and discharge of seamen were remodified by P.~. 98-39 of August 26, 1983, to update the language of the various laws and to put them in log ical sequence. While some laws were repealed, the recodif ication was not intended to make any substantive changes in the laws replaced. References here in to the new law are followed by corresponding section nabbers of the former law in parentheses, e.g., 46 USC 8104 (673) . 99
100 watch.* The standard has thus been 26 individuals. Actual crews have been larger primarily because of food service personnel and, on the few passenger vessels, supernumeraries, but these personnel are not found necessary to safe operation. Many laws recognize and impose duties upon the master. One law declares that a vessel subject to the section must have a Licensed master.. The law governing vessel documentation allows certain vessels to have a master who is not even aboard at any time and who may be the master of more than one vessel. It is theoretically possible for a vessel to have two masters aboard at the same time, one to fulfill the Licensed master. requirement and another to be the master for the marine document. The oddity of ·seaman. is that it includes licensed officers, cooks, staff personnel, waiters, musicians, and more, but is sometimes confused with ·sailor, ~ a term traditionally reserved for seamen with deck department dut ies . Certif icate requirements change both with the vessel's nature and equipment improvements. The Coast Guard has broad discretion. The Coast Guard is presumed to understand what is necessary; it is open to persuasion In individual cases; and its rulings if unreasonable are subject to review in the courts. The only statute that explicitly states in terms and numbers that certain people must be aboard is 46 USC 8301(a} (223~. It requires that every machine-propelled vessel, of the type involved, have one duly licensed master, and three licensed mates, and a licensed engineer. Pursuant to Chapter 4 of the International Convention for the Safety of Life at Sea, 1974, a radio officer in required on most vessels. Among other acts of Congress, there in one that pertains directly to manning, and There are others that do so indirectly by establishing shipowner's liability. *Before considering the effect of governmental control on the manning of American vessels, the reader needs to take into account that the f ield suffers from a history of loose terminology usage. Many terms in common use have never been def ined. Some general understandings and concepts have changed resulting in two distinct, generally understood meanings for the same term in different but overlapping contexts. Examples are the terms ~master,. ~seaman,. and ~sailor.. In 46 USC 713, the master was def ined as the person in command, and a seaman as a person employed in any capacity aboard the vessel. These def initions are perpetuated, with minor exceptions, to the ~ seaman ~ concept in the new law at Sec. 10101. This on its face applies only to one part of she new law, but the def initions may be expected to receive varying application.
101 The Three-Watch Provision Known as the three-watch provision, 46 USC 8104 ~ 673}, states: Ton a merchant vessel of more than 100 gross tons. . . the licensed individuals, sailors, coal passers, firemen, oilers, and water tenders shall be divided, when at sea, into at least three watches,~ and shall be kept on duty successively to perform ordinary work incident to the operation and management of the vessel. ~ I ts concern is with safety, not conditions of labor . When first enacted in l91S, the provision had no reference to licensed officers. It imposed at least two watches on sailors and did not include coal passers among those enumerated for achier watches. Today's application was introduced in 1936 to cover licensed officers, move sailors to the three-watch system, and add coal passers. Other prov is ions of the section speak of a ~ sealant in recognition of the long understood concept of person employed aboard a Pretzel, other than the master . ~ The language is precise as to those unlicensed engineer categor ies which must be divided into watches. It is clear that if an unlicensed person is engaged for engine duties other than as coal passer, fire- man, oiler, or water tender, he is not covered by the language of the statute. It is a different matter with a sailor. Sailor is not a term defined el~ew},ere; it is one of many assumptions in The law, presuming that everyone knows what a sailor is. Duties such as steer ing, when required, and lookout are traditionally sailor ' ~ work . It is when chipping, scraping, painting, or other maintenance duties are considered that trouble may be encountered. The provision for licensed officers is the one which seems to contain the most significant assumption. Licensed officers are to be divided into three watches. From 1915 to 1936, there had been no reference to licensed officer. When this category was covered for the f irst time, radio operators were not ~officers. and even Unregistered staff officers. were not recognized by statute. There were, then, the following classes of license provided for under 46 USC 7101(c) (224~: (1) Master; ~ 2) Chief mate; {3} Second and third mate {if in charge of watch); ~ 4 ~ Eng ineer; and (S) Pilot.
102 Specif ic statutes* then went on to deal with: l ~ Master of steam or sail ~ 46 USC 226 ); (2) Chief mate, ocean or coastwise, steam or sail, and second and third mate, ocean or coastwise steam 146 USC 228); and ~ 3 ~ Engineer of any steam vessel ~ 46 USC 229 ~ . A curiosity here is ache es~cablishment of grades of mate with no distinction as to engineers. Another is that no recognition was giver to mates other than ocean or coastwise, with no provision f or lesser mates than chief on sail vessels. A third is that the law did not apply to engineers on other than steam vessels. The letter of the law requires the three general categor ies of licensed officer (i.e., masters, mates, and engineers) to be divided into three watches. It seems certain that the law did not contemplate forcing the master to stand a watch. The requirement for three mates on the great ma jority of vessels (46 USC 830lta) (223) ~ reinforces this excep~cion. Of lesser importance, but of some value as precedent, is the fact that the larger passenger vessels generally carried a second licensed master who was denominated ·staff captain. or something similar. This off icer was not required or expected to stand a watch simply because his duties lay elsewhere in the management of the ship. The conclusion must be reached, given the unquestioned status of a ~master,. that when Congress declared that ·the licensed officers...shall...be divided into at least three watches, · it incorporated the unstated qualification of ·officers...whose activities involve watch duties. From a converse situation, the real world produces another conf irming instance. Although engineers are not divided into classes by statute, as deck officers (including the master as deck officer) are, the administrator has created four grades of license: chief, first assistant, second assistant, and third assistant. When a vessel is required to have four licensed engineers by its certificate of inspection, no one has ever questioned that the chief engineer need not, and in fact does not, stand a watch. The law must be taken to understand that the duties of some seamen traditionally involve watchstanding while those of others, especially food handlers and many supernumeraries (e.g., musicians, librarians, and supercargoes) do not. Court Application of Three-Watch Law The Supreme Court decided a case involving sailors in 1926, O' Hara v . Luckenback Steamship Company, 269 U.S. 364 (1926~. The two-watch rule was still the law for sailors. The vessel had aboard 13 sailors. _ *There are no direct substitutes f or these three code sections in the new law.
103 Neither a Certificate of Inspection nor shipping agreement was mentioned. Three of the sailors were said to have been designated as quar termasters . There were, in fact, three watches, not two. Each watch used a quartermaster and one able seaman, .the remaining seven sailors being kept at day work only.. While the lower courts had been satisfied that the watch requirements of the law were met if qualified personnel were selected for quartermaster and lookout duties, the Supreme Court saw the issue as a matter of ~equality. of the watches, alone. It decreed that the 13 sailors had to be divided into equal watches, presumably 4, 4, 5. Under the principle announced by the court, the division would be s ix-se~ren had the master chosen to comply only with the two~watch requirement. Indeed, he could have chosen a six-watch system with quar telecaster and lookout on each . By quoting an earlier court of appeals decision, the Supreme Court silently construed the words Ordinary work incident to the sailing and management of the vessels as including capability in each watch to meet fall exigencies of the intended route. and many exigency that is likely to happen.. The Court cited allegations that several marine disasters had been worsened by a total shortage of able seamen or by incompetency of lifeboat handlers. The court had resoldered the narrow issue of equality of watch size in language that is cited in every watch law case. Almost immediately after this decis ion, and under the sasee law, came a district court decision, E1 Estero, 14 F. 2d 340 (S.D. Texas 1926~. Here, a Certificate of Inspection showed that the vessel was required to have, in the words of the court, Only six seamen; four able seamen and two seamen. ~ In addition to the required crew, other seamen were aboard for ship maintenance. The court saw the respon- dent's position thus: Of the ship can satisfy the local inspectors as to her navigation requirements, she may employ as many additional seamen as-she wants, without any of them having the protection of that part of the act providing for their division into watches.. Despite the Supreme Court' n heavy emphasis on the safety purposes of the statute, the district court saw it a" a ~protection. to the seamen. The American Shinuer (McCrea fir. United States) . 3 F. Sups. 184 {SD N.Y. 1932), still in the era of the two~watch sailor provision, provides some curiosities. After citing O'Hara fir. Luckenback for the proposition that ache division law applies to fall the sailors of a vessel...as nearly equal to each other as the whole number of sailors will permit,. fiche court provides fact. as follows:
104 . . . the 13 seamen on the vessel were not as equally divided into watches as that number permitted. Instead, three seamen were placed on each of three watches, and four men were used for day duty and were not on any watch. It further appears that three oilers were not placed on any watch but were assigned to day duty. The firemen and water tenders, however, appear to have been equally divided into three watches. ~ It is obvious here that the court means ~sailors. by ~sea~nen. because the enumerated personnel would otherwise cause the total to go above 13. It recognized that the vessel car reed more of these than were required by the Certificate of Inspec~ion--~the additional men should have been divided into watches.. The petitioner, however, was a f ireman. The f iremen were divided into three equal watches. The court allowed the petitioner the remedy of quitting the ship for the master ' s breach of the law. Whenever the master of any vessel shall fail to comply with this section.... the seamen shall be entitled to discharge from such vessel. ~ Since the petitioner was not of a class offended directly by the watch-law ~ iolation, seamen is construed in the broad sense: any per con employed aboard other than the master . The mates, the licensed engineers, and the cooks all are entitled to discharge if there is a breach. This decision was upheld by a court of appeals and the Supreme Court [The American Shipper, 70 F. 2d 632 (2d Cite 19341; McCrea v. United States, 234 U.S. 23 (193S)~. An innovation is found in The Chilbar, 10 F. Supp. 926 (D.C. Pa. 193S) which held that ~repairmen. hired and described as part of a Maintenance department. (a term not found in law or regulation) need not be divided into watches. The Youngstown, 110 F. 2d 968 ~ 8th Cir . 1940), cert. denied , 311 U.S. 690 (1940), probably offers the most hope for achieving compliance with the law within a desired shipboard organization. It was held that a wiper and a boatswain were not under the three-watch rule. For long, boatswain, known to be a supervisory position over deck department maintenance work, was not required in a Certificate of Inspection. A seaman employed as boatswain might well be the only deck department rating hired beyond the requirements of the Certif icate of Inspection. The Youngstown also recognized that an oiler performing the duties of deck engineer, while other oilers stood watches, was not subject to the provision on watch division. It seems that on this side of the case a ~regular. deck engineer was not carried. Some speculation is needed here. Deck eng ineer is a rating classif fed as Pa qualified member of the engine department.. It is not a rating enumerated in the three-watch provision. Since a regular deck
105 eng ineer was not car r led, either the rating was not mentioned in the shipping agreement or, if it was, no one was employed in that capacity. It seems to follow then that the seaman in question was s igned on precisely as oiler . The court has looked beyond nomen- clature to see just what kind of work was done to determine the seaman' s capacity within the three-watch law as distinct from the shipping agreement. The conflict with E1 Estero is obvious, but no court has ever mentioned it, and come courts will cite both as if in harmony. The most recent decision of a court on this law appears to be Distr ict 2, Har ine Engineers ' Benef icial Association ~ . Adam, 477 F . Supp 72 (ND Ohio 1977) which presents serious questions for crew management. The Marine Engineers' Beneficial Association, the plaintiff union, was found to have standing to sue because it represented the class of seamen who were assertedly offended by violations of the law. By a writ of mandamus, the union asked the court to compel both the vessel's owner, and the U.S. Coast Guard, government administrator of the laws involved, to enforce the law. Alleged was a violation of the three-watch law (46 USC 8104 (d} {673} ~ with respect to the licensed eng ineers on the weasels . The Certificate of Inspection required three licensed engineers, one chief, and two further-unclassified assistants. It was agreed that the vessels ado not operate a ~chree-watch system for licensed engineers. and that the Coast Guard is approving operation of the vessels son a non-three-watch basis to licensed engineers. ~ The vessels were equipped with full pilot-house control of the engines. Since no other persons were required in the engine department and unattended engine room was a factor, it is cause for apprehension that the court nearer considered the possiblity that the law attached only to seamen whose work performance involved watchstanding duties, or whether, if the requirement had been for unlicensed engineer personnel not enumerated in the statute, the result might have been different. There was no thought given to the basic reality that it is the master who is ultimately responsible for netting watches and not the adminis- trator who is, on that particular point, authorized only to set the complement required. Suit against the owner was dismissed as beyond the jur isdiction under the federal mandamus laws. The court declared that the remedy given to egg: leered seamen, to quit the vessel when a violation of the three-watch law occur., was inadequate. It ordered the administrator to enforce the law, giving adequate remedy to the plaintiff union, by imposing monetary penalties on the owner for violation. . The ~ remedy. for the plaintif f union is an order to the government agency to impose a statutory penalty of SSOO on the owner of the vessels which when collected goes to the Treasury of the United States.
106 No monetary penalty has been imposed on the owner f or condi Lions before or since the date of the suit. Current ( 1983 ~ Certif icates of Inspection issued to the vessels still require the same three licensed engineers and still have the same proviso as to unattended engine rooms and operation in confined and congested waters. It is not known whether successive watches on a f till-day schedule are being maintained . , . The net effect of the decision in the real world appears to be nothing. No changes and no complaints have arisen since 1977. It may well be suspected that the suit was a mere camouf lage f or a different question. If the plaintiff feared that a new manning requirement for less than three licensed engineers might be forth- coming, regardless of who stood or did not stand watches or pert arm day war k, the suit might have used some ready-to-hand statute merely to get into court and direct the attention of the administrator. If that be the case, the result can be seen as a victory for the plaintiff since the administrator has not in fact reduced the requirement. If this is true, it is unfortunate that the problems could not have been dealt with without recourse to judicial intervention. The decision itself stands out as ache only pronouncement in recent decades on the three-watch law and, taken alone, as lawyers and courts will take it wi shout inquiry into collateral and unraised issues, wi 11 imply that: A licensed engineer watch must be maintained on all machine- propelled vessels. Since chief engineers traditionally do not stand watches, three watchstanding engineers also must be required. These implications, in light of the unexhaustive reasoning applied both by litigants and by courts, forewarn that next case may have results which could not now be anticipated. Interpretation of the three-watch law, and the potentiality of reducing crew size, involves a mixture of the mode of hiring seamen according to the vessel's Certif icate of Inspection and the written shipping agreement between master and crew. Each involves terminology questions as well as actual work expectations. Each is a requirement of statute! the certificate under 46 USC 8101 (222), and the agreement under 46 USC 10302 (5647. Regulations appear as to unlicensed seamen in Part 12 (Certification of Seamen), Title 46 (Shipping) of the Code of Federal Regulations. The shipping agreement, or ·articles,. is required to show The respective employments. and The capacity in which to serve. ~ The certificate, as seen before, shows the complement found necessary for ·safe navigation, ~ in terms of ~ratings. for the unlicensed seamen. It is with the ratings that complications develop.
107 Two basic laws affect this problem. 46 USC 643 (a) requires that each seaman hold either a certif icate of identif Cation or a continuous discharge book; and 46 USC 672 (i} requires that each seaman below the grade of licensed off ice r hold a certif icate of service to be employed aboard a vessel. Other subsections create categor ies of certif icates of service*: 0 Able seaman (AB) (subsection b); o Qualified member of the engine department (QMED) {subsection e); and o Ratings other than the above, Which certificates shall authorize (the seaman) to serve in the capacities indicated in such cer tif icates ~ ~ subsection g) . The QMED certificate is required for every member of the engine department below the grade of licensed officer and Above the rating of coal passer or wiper. ~ Note that the term Ordinary seamen. does not appear, although Service on deck. is required for qualification as AB. Note also that the QMED ratings are left to the creative discretion of the administrator, and that, while coal passer and wiper are mentioned as ratings, the ~other. ratings are also unidentified. (The Others are to be issued without examination, except for medical examinations in the case of a food-handler. They have commonly been called sentry ratings. ~ ~ The restated matters in the new law have one minor and one potentially major difference. Coal passer and wiper are declared to be entry ratings (7313 (b} ~ . This se~ to confirm the authority to des ignate the other ~ entry ratings ~ that already exist. The first major change is that the Merchant mariner's document,. representing both certificates created by 46 USC 643 and 6?2, is now the only document to be issued. New subsection 8701 (b) requires the document for service and new subsection 7302 provides for its issuance. Although 8701 (b) appears in a chapter entitled Unlicensed personnel, licensed officers including masters must possess this document. Of potentially greater impact is that the document, when presented for employment (except in the case of a licensed officer), Must authorize service in the capacity for which. . .employed, ~ while the document itself must .specify...each rating in which the holder is qualified to serve.. There are numerous positions which may be entered on the shipping agreement for the ~capacity. of a seaman. Librarian, musician, waiter, - and cattleman have been seen as *For purposes of this survey ~tankermen. are excluded from cons iteration .
108 examples . The statutes mandate only one, i . e., AB, and leave to the administrator the designations for QMED. Other statutes, like the three-watch law, enumerate positions or capacities; they were not keyed originally to identifying documents. The administrator has followed the certif ication laws by providing in the regulations for AB seaman and QMEDS. He has declared that an engine rating of assistant electrician is on a level with coal passer and wiper . wiper, ordinary seaman, and steward' ~ department are recognized. Created are the ratings of cadet, student observer, apprentice engineer, and apprentice mate. No other ratings of any k ind are acknowledged in the regulations . Two unmentioned ratings which exist as capacities and, in a few cases, as ratings and which can prove troublesome are boatswain and maintenance personnel. On automated vessels where it is deemed necessary for the purpose of maintaining the vessel or its equipment, or for emergencies, maintenance personnel are being required by the Coast Guard. Where maintenance personnel are required, the Certif icate of Inspection delineates the ratings acceptable to f ill the position, e.gO, Two deck maintenance persons (any deck rating). n A prudent master has usually arranged the listing of his crew in the shipping agreement to reflect quickly and easily the employment of these persons required by his Certif icate of Inspection. The articles are pr ima facie evidence that he has aboard the required licensed off icers and ratings. It is also customary to present all those in the traditional deck department f irst, those in the engine department next, and stewards and other supernumerar ies last, with the required persons grouped together in their respective departments. In practice then, an official checking for compliance with a requirement for Mix ABS - three ordinaries. will look to the articles and observe the billets designated for those ratings. If that official finds the necessary #SIX and threes he will pay no heed to a boatswain or any other position listed in the unlicensed part of the deck depart- ment. If a boatswain is shown, however, and if the articles reflect that one of the required ratings was lost to the vessel in the course of the voyage, he will, upon the master's representation of compliance, look to the qualif ications of the boatswain, especially if AB is the questioned billet. Although it may appear that the Coast Guard is requir ing a rating that is not acknowleged in regulations, the maintenance person is meant to be identif fed with the ratings deemed acceptable by the Coast Guard. The requirement for such a person to be aboard reflects a j udgment that such person is necessary to the continued adequate performance (maintenance) of the vessel and/or to the adequate manning of the vessel for emergencies. The specif ic duties to be assigned or the level of rating to be hired (within the parameters allowed on the Certif icate of Inspection) are left to the discretion of the vessel' s master .
109 Other Mann ing Laws The last clause of the first proviso of 46 USC 8702{d) (672(a)) ~ declares that ~ in narrow and crowded waters or in low visibility none below the rating of able seaman shall be permitted at the wheel. ~ This must be understood to be in a context of deck department alone. The duty is clearly a sailor 's. If an AB seaman is used, the caution . . would be: ~ if one, then three. ~ There is no law that says a vessel must have a lookout. However, 33 USC 221 states, #Nothing in these rules shall exonerate any vessel. . . from the consequences of . . . any neglect to keep a proper lookout.. The courts have seen that the need- for proper lookout is inherent in the operation of ships. They have given this negative an affirmative status by declaring that a failure in this respect is a .statutory fault. {like failure of a burdened vessel to keep clear) such that the offender, 'co escape liability, must prove that his fault not only did not contribute to the collision but could not have so contr ibuted. Lookout has unquestionably been accepted as sailor 's work. Consider ing ache str ictures that a proper lookout cannot be kept by one who is distracted by other concerns and the myriad duties of an off icer in charge c ~ a watch, it appears certain that at some the there must be a specif ic sailor lookout, and ~ if one, then three. attaches. The Annex to the International Convention on the Standards of Training, Certification, and Watchkeeping for Seafarer-, 1978, contains formalized warnings which not only reflect tradition but also conform closely to the pr inciples long announced by the U.S. admiralty bench. Chapter 2 deals with the master and the deck department. The master is charged with supervision of the navigational watches which should principally be concerned with avoidance of collision and grounding. Noting the relevance of prevailing circumstances and conditions and an ever-present need for maintaining a proper lookout, the swatch arrange- ments. paragraph declares flatly sat no time shall the bridge be unattended. On the matter of lookout "pacifically, it is declared that no other duties may be permitted which could interfere with the pr Cry function and that except ~ in small shaped a helmsman cannot be the lookout. The navigation watch has always been the subject of scrutiny. Chapter 3 of this Annex attempts to crystallize responsibilities of engineers on machine-propelled vessels. Here, the chief engineer, acting sin consultation with the '~aster,. is recognized as supervisory of watchkeeping arrangments. Interestingly enough, a watch is presumed, although the possibility for there being no ratings below the officer of the watch is acknowledged. A distinction is made
110 between a ~manned" and an ~unmanned. condition of the "machinery space. ~ Despite this, the off icer of the watch must be ~ immediately available. and he must "ensure that the main propulsion system. . . (is) kept under constant surveillance. ~ It seems that if a system is under constant surveillance, despite an unmanned machinery space, there must be a watch even though it may be only one person at an observation center. Standards such as these are most likely, when occas ion ar ises, to be seized on by the courts. Thus, assigning the normal nonwatchkeeping master, the way is open to four deck of f icer s but still open to only three engineer ' s officers. Engine ratings can be dispensed with under proper conditions, but, given the limitation on the deck watch officer as lookout, a deck rating (and thus, under a three-watch system, three crewmembers) is essential for each watch. Sublunary From all this must be distilled the laws that might hinder efforts and remedies arable or to be sought to facilitate the objective. It is clear that safety remains the pr incipal element to be reckoned with in any system. Eff iciency is a paramount consideration in selection of methods, but convenience, computability of individuals, and quality of life are not subject deco specific legal restraint when numbers alone are in question. A simple observation is that beyond radio, navigation f and propulsion, in the case of machine-propelled vessels, the law would not affect a decision to eliminate all supernumerary berths. The law is presently imperative as to a master and three mates, but the three-watch law is more subtle in its inf luence. The initial approach must be to attempt to avoid possibly misguided court inter- ference, and it must be to the administrator that recourse should f irst be had. The interest of the administrator is evidenced in visible form in the 13-page document, Navigation and Vessel Inspection Circular No. 5-67, superseded by a similar Circular No. 1-69 which in turn led to the innovative Certif icates of Inspection involved in the Mar ine Eng ineer s Benef ic ial ASsOc iation dec is ion . On these certif icates, having examined propulsion systems, the administrator elected to require absolutely no unlicensed personnel in the engine department, and this decision, undoubtedly a product of extensive conference and discussion, has been contested by no one. It means as to application of the statute, "no oilers, no three watches..
111 It is easy to say that Congress should be called upon to clar if y its real intent by def ining or ref ining its concept of sailor, thus reducing the opportunity for courts to interpret. Such a course is lengthy and could produce unexpected results. If the ob jective can be reached by administrative action, the effort is easier and the results are more quickly seen. If it is agreeable to the parties, the formal designation by the administrator of watch berths and nonwatch berths on the certif icate can be used and is not as likely to be challenged in a court as some other efforts to resolve the problem. The concept of ·unattended engine room. implies no watch. If more than one person is considered necessary for engine maintenance, and if the requirement for, say, two licensed engineers is seen to bring them into the three-watch provision, a solution is to require only one licensed engineer, a chief, and for the other required position ~ s ~ create a new QUAKED rating which can carry licensed quali- fications but can have a descriptive title plainly indicative of nonwatch activity. (It is emphasized here that under the convention it is the engineer sin charge of a watch. who must be licensed. ~ Considerations such as dignity, pay, and ~social. status may be considerable in other contexts: they are not controlling of or even relevant to the purely legal issue. The author's view, then, is that under existing law and practice, the statutory minimum crew is: o One licensed master; o Three licensed mates; o Three qualified deck sailors; and o Three licensed engineers. This then is subject to the ·if one, then three. rule if sailors are increased or if firemen, oilers, or watertenders are found necessary. Some comment has been given on the licensed engineers. Given the changes in propulsion machinery and its requisites, industry and the administrator could well agree upon and create new descriptions and terminology in the shape of engine room ratings other than those named in the three-watch law. As to the licensed master and mates, to achieve a reduction to three officers (already permitted for a run of less than 400 miles and for smaller vessels ~ requires a change in the law. This can be accomplished either by a flat change, probably impossible to achieve at present, or an exception. The exception, if inserted into the 46 USC 8301ta) (223), would necessarily be encumbered with conditions. It would be difficult to draft r more difficult to enact, and possibly
112 unworkable when f inally in place. The administrator could, however, be author ized by Congress to grant a reduction, under general guide- lines, when ~ in his judgment. safety considerations would permit. Here, of course, the more discretion the drafters could vest in the administrator the better the results. The three sailors above have been presumed irreducible by reason of the traditional concept of lookout, combined with the three-watch law. In light of the reference to the mate in daylight in the Annex to the International Convention, it is possible that thought could be 9 iven to reliance on day workers' availability to assume lookout duties at times that the mate could not. While a lookout must be "qualified. and ~adequate, ~ it has never been held that he reust be an AB seaman, and in fact in the traditional organization of three sailors to a watch, with rotation, the ordinary seamen is the des ignated look- out one third the time . I f exploration of this is undertaken in the practical order, it may well be that the three sailors could be reduced to the number actually found necessary to supplement the watch of f icer under the r ight conditions and changed from the sailor category on the certif icate. It is repeated that the law does not specify a lookout, nor does a certif icate denominate a required berth as lookout. Much of this speculation is predicated on the assumption that the three-watch law would be difficult to change. This law is not one, like the three-mate law, which the administrator could be author ized to dispense f rose, s ince it is directed to the master of the vessel . If changes were attempted, ~sailor., as already indicated, should be clarified, as also the status of the licensed officer. It is not believed feasible to attempt diminishment of watch requirements in those areas where watches are obviously required or already clear ly specif fed . The ~crossover. provision of 46 USC 8104 (e) {673), stipulates that the seafarer may serve in either deck or engine department and not both, thereby prohibiting any crossover ~ No law prohibits stewards department personnel from working on deck, or in the engine room, or vice versa. Departments are not created or defined in the laws A court has already accepted the concept of a maintenance and repair department. The way seems open, if the form of a Certificate of Inspection is altered and the appropriate rating designations used, to avoid having deck deparments and engine departments, or at least to minimize them, with the outr ight recogntion of a maintenance depart- ment, and the use of a properly designated and identified General purpose. endorsement for seamen. The 1 icensed of f icer presents a dif ferent case. The concept of master does not in general preclude watchstanding. The concept of mate is so traditionally linked to deck duty that, while an .engineer- less~ ship is not out of the question, the expansion of mate to include quasi-en<3ineer duties would, it is believed, require a basic statutory change. It does not seem that the administrator, under the specific license laws now on the books, could create by fiat a new license
113 dedicated to such a dual purpose. The concept of an unlicensed, superior-type Ql5ED could alleviate the problem of body count but if a true general-purpose licensed officer is needed, appropriate legi~la- tion is needed. This is Trade more certain by the Crossovers prohibition in 46 USC 8104 (e), which applies to .seamen. generally, not just to unlicensed personnel. Whatever is attempted in the way of administrative arrangement or statutory change, the caveat remains an always for a shipowner that liability is not necessarily limited to mere statutory compliance. In the event of collision, the court sitting in admiralty is not going to be diverted by a certif icate showing numbers of crew required from a f inding of inadequate lookout. Appropriate designations and arrange- ments may serve to prevent internal management disorder, as among owner, master, and crew, and avoid the impact of obsolete legislation or too-ingrained custom. The burden imposed by the general concept of negligence must be kept in mind in all analysis and consideration of even safe reduction in crew numbers.
