May 1, 2014
By Colin McRae, HunterMaclean
Special to Savannah Morning News
The recent South Korean ferry disaster has brought back into the limelight the age-old adage about a captain’s responsibility to “go down with the ship.” Like the Italian master of the cruise ship Costa Concordia in 2012, the South Korean captain of the ferry vessel Sewol has come under sharp criticism for leaving the helm and disembarking the vessel before all passengers had been successfully evacuated. But was his refusal to remain onboard this sinking ship, and follow it to the bottom of the sea, a violation of the law?
The answer to that question highlights the often patchwork nature of the law that applies to international maritime commerce. Many know that the general maritime law (often referred to in the United States as admiralty, in reference to the name of the courts in England that heard these disputes) is international in character and draws its central principles from various sources. Dating back to its roots in the ancient sea codes of Rhodes, the purpose of international maritime law has always been to arrive at a consistent set of laws that promotes uniformity in application no matter where the ship might call.
The rules of vessel navigation are fairly consistent, generally speaking, whether the ship finds itself in international waters or the national waters of a particular country. These navigational “rules of the road” are supplemented by international treaties and conventions on specific commercial topics, like service of process of a lawsuit and liability considerations. Nations with seafaring interests have even reached a consensus on a code of international safety management, or “safety of life at sea,” that applies to most classes of oceangoing vessels. But the overarching goal of achieving international uniformity has proved difficult to implement in the criminal arena.
In particular, it is in the various nations’ criminal laws where you see can stark differences in whether certain maritime situations amount to maritime crimes. For example, United States law does not necessarily consider a captain abandoning a ship to be a crime in itself, while both Italy and South Korea do criminalize such actions. Other United States criminal laws might come into play, however, if the captain puts his passengers and crew in further danger by neglecting his duties (as many claim the South Korean captain did in delaying the evacuation in the face of mounting danger). No international consensus has emerged on whether a captain is required to follow his vessel to the bottom.
The abandoning of the Costa Concordia and the Sewol, while morally shameful, may not have actually been criminal had they occurred in certain other jurisdictions. The actual source of this concept is more likely attributable to the shipowner’s concern that a foundering ship abandoned by its captain becomes subject to salvage by opportunistic rivals. The ideal of the captain going down with the ship, while noble in the abstract, does not necessarily reflect the reality of United States maritime law.
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