In this paper I wish to draw attention to some of the many changes that have recently taken place in the law in so far as they affect the criminal liability of ships’ masters. I also hope to be able to indicate the particular problems that a master faces if he does find himself in breach of some rule or regulation. I do so not as an academic, nor as a specialist criminal lawyer, but as somebody who has had some experience of representing, and on occasions prosecuting, masters who have directly or indirectly contravened some provision carrying a criminal sanction. I have found the experience surprising in many respects and certainly the general reaction of my clients has been one of surprise at the seriousness of the situation in which they have found themselves. The conclusion which I have reached is that for a number of different reasons the scales of justice appear to be weighted against the master who finds himself prosecuted for a criminal offence.

I think it can be said without fear of contradiction that a master is potentially more at risk of being prosecuted for a criminal offence than a person fulfilling a similar function with similar responsibilities in any other profession or occupation. I had considered making a list of all the punishable offences that a master can commit. I soon decided that the task was beyond me. The Merchant Shipping Act 1894 itself creates dozens of statutory offences and the number of prescribed offences has escalated ever since. This is in itself part of the problem. The mariner at the beginning of the century who carried the 1894 Act with him had a fairly complete guide to the criminal offences which he might commit. These days a master must have regard to a plethora of Acts, Statutory Instruments, Rules, Orders, Regulations and Codes of Practice. Even the best informed master will find it difficult to keep pace with the sheer volume of major and subordinate legislation.

It is appropriate to consider these offences at the beginning as there is not a lot that can be said about them. If you commit an offence of absolute liability then you are guilty, and that is the end of the story. The general principle of English law is that you cannot be convicted without proof of mens rea (guilty mind). In broad terms this means that you have intended to commit the offence or to have had no regard or concern as to whether the offence would be committed or not. Courts will look very closely at any statutory provision which seeks to side-step this requirement and will only convict without proof of mens rea where it clearly appears that this was the intention of Parliament. Such provisions then create offences of absolute or strict liability.