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OCR for page 99
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 While some laws were repealed, the recodif ication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
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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.
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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.
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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.
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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:
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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
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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.
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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.
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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 .
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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 .
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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
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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..
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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
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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
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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.
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Representative terms from entire chapter:
licensed engineers
