"What Shall We Do With the Drunken Sailor?"

Introduction

During the period 1992 – 2000, the following incidents were caused by the abuse of alcohol and/or drugs whilst at sea:
· incidents of grounding – 2
· loss of vessel – 2; and
· injuries to fishermen – 11.
These statistics were part of the Marine Accident and Investigation Branch’s (“MAIB”) accident data relating to fishing boats during the period mentioned.

The Department of Transport and Regions, keen to improve the safety of vessels at sea, have drafted legislation that effectively brings the marine law relating to the abuse of alcohol and drugs in line with the equivalent regime for car drivers on land. This may have an impact beyond the individual criminal liability of the drunken sailor.

The current statutory law relating to alcohol and drug abuse is provided by the Merchant Shipping Act 1995. It simply provides that it is a criminal offence for a skipper or seaman to be under the influence of alcohol or drugs to the extent that their ability to carry out their duties is impaired. The offence is punishable by a fine and/or a maximum term of imprisonment of 2 years.

The Railways and Transport Safety Act 2003 (“the Act”)

 
The Act expands upon the scope of the current law relating to the abuse of alcohol and drugs so that it is more in line with the established offence of drink driving. The Act has received royal assent but not all of its provisions are yet in force including those relating to alcohol and drug abuse. They await the secretary of state’s commencement order.

The current test for liability under the Merchant Shipping Act 1995 is whether or not a skipper or seaman’s ability to carry out their duties is impaired by alcohol or drugs. The Act includes the current test and expands it so that where the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit he is committing an offence.

The Act also widens the scope of who will commit the offence to professional staff, which is defined as either a professional master of a ship, a professional pilot of a ship or a professional seaman.

Drinking off duty

It is will be an offence for off duty in certain circumstances as well as on duty seaman to have a prescribed proportion of alcohol in their breath, blood or urine. Those circumstances are where the professional staff may be required to take action to protect the safety of passengers in the event of an emergency. In reality professional staff would be expected to assist in an emergency whether they are off duty or on duty and so could potentially be committing an offence if they drink in excess of the prescribed amounts when off duty, even if there is no action needed as a result of an emergency.

· the current prescribed limit of alcohol in the case of breath is 35 microgrammes of alcohol in 100 millilitres, in the case of blood, 80 milligrammes of alcohol in 100 millilitres and in the case of urine, 107 milligrammes of alcohol in 100 millilitres.

Volunteers

The current law only applies to individuals who could broadly be described as professional seaman. The Act extends the offence to non-professional seaman, who are defined as individuals on board a vessel while under way and who exercise or attempt to exercise a function in connection with the navigation of the ship. This provision is aimed to regulate the consumption of alcohol and or drugs by the users of pleasure craft. Although it is not beyond the bounds of imagination to foresee instances where such a wide definition could potentially include volunteer crew or passengers aboard a professionally run vessel.

Powers of detention by marine officials and rights of entry by police

The Act introduces the procedures currently used by the police to test for drink driving into the marine context. Importantly it also gives marine officials the power to detain a ship where the marine official reasonably suspects that an offence has been committed. This power to detain a ship is conditional upon the marine official making a request for a police officer to attend as soon as possible after he has exercised his power to detain the ship and lapses as soon as the contacted police officer has decided whether or not to attend the ship. Marine officials are defined as harbour masters or their assistants and also include the following:

• any commissioned naval or military officer; 
• any officer of a Minister of the Crown with relevant authorisation;
• any officer of customs and excise; and 
• any British consular officer.

A uniformed police officer may board a ship and enter any place aboard that ship if he suspects that he needs to exercise his powers under the Act.

Practical considerations

Employers owe their employees a duty of care to ensure that they provide their employees with a safe working environment. The law of tort and general health and safety legislation imposes this duty. If another employee jeopardises the safety of a vessel by abusing alcohol or drugs and his colleagues are injured as a result, the employer may be liable for those injuries.

If an employee causes injury to a passenger aboard a vessel then the employer is quite likely to face liability for those injuries.

Therefore, where crew are employed or engaged there must be strong written policies in place, if they are not already, to ensure that is understood that the abuse of alcohol or drugs by employees is not permitted to any extent. These policies will now have to take the off duty behaviour of employees into account. The Act’s definition of when off duty seaman commits an offence is wide. As a result of the Act a court could impose an increased duty of care upon ship owners to ensure that its off duty officers do not drink.

The Act could also have an influence upon those vessels crewed by share fishermen, beyond those share fishermens’ personal criminal liability. Where a vessel owner makes available a vessel he is under a duty to ensure that the vessel is safe for use. This duty may extend as far as making reasonable attempts to ensure that those who use the vessel are not put at risk by individuals who abuse drink or drugs. A policy should be imposed upon the crew. This could be achieved either through the principal contract that makes the vessel available to the share fishermen or by separate undertakings that must be signed individually by each share fisherman.

If you would like further information on this or on any other area of law please contact Dan Dyson.

The material contained in this article is for general purposes only and does not constitute legal or other professional advice. Before any action is taken specific legal advice should be taken.