Maritime Law and Practice in China

Liang Zhao and Lianjun Li

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CHAPTER 3 Master and seamen

3.1 The CMC 1992 provides for the general rules of seamen and the special rules pertaining to the master. The Regulations of the PRC on Seamen 2007,1 as amended in 2013 and 2014 (the “Regulations on Seamen 2014”) provide detailed rules regarding the registration, qualification, training and occupational security of seamen as well as the provision of seaman services within the territory of the PRC.2 In 2015, the National People’s Congress Standing Committee of the PRC (the “NPCSC”) ratified the 2006 Maritime Labour Convention (the “MLC 2006”), which aims at protecting the rights and interests of maritime workers. The relevant laws regarding seamen in China need to be improved or amended according to the MLC 2006.

Master

3.2 In the Regulations on Seamen 2014, a “master” means a person who has obtained master’s qualifications in accordance with the provisions of the Regulations on Seamen 2014 and is responsible for managing and commanding a ship.3 According to the CMC 1992, the master is responsible for the management and navigation of the ship.4 The duty of the master in the management and navigation of the ship is not absolved even with the presence of a pilot piloting the ship.5 The master should also take necessary measures to protect the ship and all persons on board, the documents, postal matters, the goods as well as other property carried.6 For the protection of persons on board, the Regulations on Seamen 2014 specify that when managing and commanding a ship, the master must ensure the safety of persons on board and those temporarily embarked on board.7 The master if negligent in protecting the safety of seamen on board is liable in tort for the injury to or death of any seamen.8 The master’s liability will not be discharged even if there is a certain fault of the injured seaman.9

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3.3 The persons temporarily embarked on board include any person sent by charterers on board for loading/discharge operations. In Cui Dehai v Jinyang Shipping Company,10 an employee of the charterer was sent on board and injured in an accident during the discharge operation. The Tianjin High People’s Court held that the master had a duty to ensure the safety of the employee on board and the shipowner had the burden of proof that the master had exercised due diligence in the management of the ship to prevent the occurrence of the accident. Persons temporarily embarked on board also include repairmen who are on board the vessel to conduct repair work. In The Shipping Corporation of India Co Ltd and United India Insurance Company v Qingdao Beihai Shipbuilding Heavy Industry Co Ltd,11 the ship repairmen on board were injured when an accident happened to the ship in the shipyard. The Shandong High People’s Court held that the master’s duty of management of the ship was not relieved on the basis of the ship repair. The repairer’s duties were to repair certain parts of the ship under the supervision of the master. When the master was on board, it was not the repairmen’s duty but the master’s responsibility to keep the ship safe and ensure the safety of the repairmen. The master is free of responsibility only when he is not on board and if the repairmen control and operate the ship. 3.4 To comply with these obligations, orders given by the master within the scope of his functions and powers must be carried out by other members of crew, passengers and all other persons on board.12 The Regulations on Seamen 2014 repeat that all persons on board are bound to carry out the orders delivered by the master within the scope of his functions and powers. In addition, the officers should organise their subordinate seamen to carry out the master’s orders and supervise the performance of their functions and duties.13 Should death occur to the master, or should the master be unable to perform his duties for whatever reason, the deck officer with the highest rank shall then act as the master; before the ship sails from its next port of call, the shipowner should appoint a new master to take command.14 3.5 The Regulations on Seamen 2014 provide detailed requirements for the master’s obligation to manage and navigate a ship. When managing and commanding a ship, the master must meet the following requirements:

(1) ensuring that the ship and seamen carries all certificates, documents and other relevant navigational materials to meet statutory requirements;
(2) formulating the emergency plan and ensuring its effective implementation;
(3) ensuring the seaworthiness of the ship and the competency of the seamen at the commencement of the voyage, ensuring the minimum safe manning for the ship according to the relevant law, and securing the normal watchkeeping of the ship;
(4) implementing the maritime administration’s instructions on waterborne traffic safety and prevention and control of pollution from ships, and submitting an accident report to the maritime administration where the ship is involved in a waterborne traffic accident or pollution accident;
(5)

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conducting routine training and examination of seamen on the ship, and faithfully recording their service experience and performance in their Seaman’s Identity Documents;
(6) being on duty on the bridge or, if necessary, directly commanding the ship, when the ship enters or leaves the port, berths or unberths, or passes heavy traffic zones or dangerous navigational zones, or encounters inclement weather or sea conditions, or suffers a waterborne traffic accident, ship pollution accident, ship security incident or other emergency situations;
(7) ensuring the safety of persons on board and those temporarily embarked on board;
(8) organising the seamen and other persons on board to render rescue operations where the ship encounters an accident threatening the safety of the lives and property on board; and
(9) when the ship is abandoned, taking all measures first to organise the passengers to safely leave the ship, then arranging for seamen to leave, and himself as the master, being the last person to leave and, before leaving the ship, directing seamen to rescue the deck log book, engine log book, oil record book, radio log book, the charts, documents and papers used in the voyage, as well as valuables, postal matter and cash money as far as possible.15

3.6 The Regulations on Seamen 2014 emphasise that the master has the power to make independent decisions with regard to the waterborne safety of lives and property, ship security and prevention and control of pollution, and shall assume the ultimate responsibility for such matters. In performing his duties, the master may exercise the following powers:

(1) to determine the voyage plan, or refuse to sail or discontinue the voyage where the ship fails to meet the requirements for safe navigation;
(2) to refuse to carry out illegal instructions by the employer of the seamen or the owner of the ship, or instructions that may threaten the safety of lives, property and the ship or cause pollution to the waters;
(3) to correct or stop the pilot’s instruction in a timely manner or, if necessary, to ask for a change of the pilot, when finding the pilot’s operating instructions may threaten safe navigation or pollute the waters;
(4) to decide to evacuate the ship when the ship is in distress and the safety of lives on board is seriously threatened;
(5) to decide to abandon the ship if the sinking or destruction of the ship is inevitable, however, he must first report such matter to the owner of the ship for permission, except in an emergency;16 and
(6) to order incompetent seamen to leave their posts.17

3.7 To ensure the safety of the ship and all persons on board, the master is entitled to confine or take other necessary measures against those who have committed crimes or violated laws or regulations on board, and to guard against their concealment, destruction or forging of evidence. The master, having taken those actions, must make a written report

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of the case, which shall bear the signature of the master himself and those of two or more others on board, and shall be handed over, together with the offender, to the authorities concerned for disposition.18 3.8 The master should make entries in the log book of any occurrence of birth or death on board and should issue a certificate to that effect in the presence of two witnesses. The death certificate shall be attached with a list of personal belongings of the deceased, and attestation should be given by the master to the will, if any, of the deceased. Both the death certificate and the will should be taken into safe keeping by the master and handed over to the family members of the deceased or the organisations concerned.19 3.9 After a collision, the master of each of the ships in collision is bound, so far as he can do so without serious danger to his ship and persons on board, to render assistance to the other ship and persons on board. The master of each of the ships in collision is likewise bound so far as possible to make known to the other ship the name of his ship, its port of registry, port of departure and port of destination.20

Seamen

3.10 The term “seamen” in the CMC 1992 means the entire complement of the ship, including the master.21 The term “seaman” in the Regulations on Seamen 2014 means a person who has obtained the Seaman’s Identity Document after being registered in accordance with the provisions of the Regulations on Seamen 2014 including the master, officer and rating (who is any ordinary seaman other than master or officer).22 As words are not pluralised in Chinese, the terms for “seamen” and “seaman” are the same word. The meaning of seaman in the Regulations on Seamen 2014 emphasises the requirements for the registration and possession of the Seaman’s Identity Document.23 3.11 In the Regulations on Seamen 2014, the term “officer” means a person who has obtained the relevant qualifications in accordance with the provisions of the Regulations on Seamen 2014, including chief officer, second officer, third officer, chief engineer, second engineer, third engineer, fourth engineer, communication personnel, and other senior technical and administrative personnel serving on board. The term “rating” means seamen other than the master and officers.24 During the voyage, the master and officers may not resign, leave or suspend their duties without permission.25 The master and officers of a ship with Chinese nationality26 should be recruited from among Chinese seamen. In case of an actual need for the posts of officers to be assumed by foreign seamen, the matter shall be reported to the maritime administration27 for approval.28

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3.12 According to the Regulations on Seamen 2014, when serving on board, a seaman must meet the following requirements:

(1) carry the valid documents and certificates as specified in the Regulations on Seamen 2014;
(2) keep abreast of the seaworthiness conditions of the ship, security conditions of the trade route, as well as the necessary information about meteorological and sea conditions in the relevant trade zone;
(3) abide by the management systems and watchkeeping provisions of the ship, operate, control and manage the ship according to the rules on waterborne traffic safety and prevention and control of pollution from ships, faithfully complete the relevant statutory documents of the ship, and not conceal, tamper with or destroy the relevant statutory certificates and documents of the ship;
(4) participate in emergency drills and exercises of the ship and implement emergency precautions as required by emergency management of the ship;
(5) abide by the reporting system of the ship and submit a timely report when dangers, accidents, security incidents or other circumstances affecting the navigation safety are found or take place;
(6) make all efforts to rescue people in danger if it would impose no serious danger to himself; and
(7) be prohibited from carrying passengers and cargo on the ship for private purposes or carry contraband.29

Registration and qualifications of seamen

Registration

3.13 To apply for seaman registration, the following requirements must be met:

(1) be not less than 18 years old (or not less than 16 years old for those who are on internship or probation on board) but not more than 60 years old;
(2) meet the medical fitness standards for seamen; and
(3) have received basic safety training for seamen and passed the examination held by the maritime administration.

Those who apply for registration as seamen serving on ships of international voyages must in addition pass the professional foreign language examination for seamen.30

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