RULING 3 OF 2016 OF THE MARITIME DISCIPLINARY COURT OF THE NETHERLANDS IN CASE NUMBER 2015.V9 - DAGERAAD As petitioned by: the Minister of Infrastructure and the Environment in The Hague, petitioner, represented by: ing. M. Schipper, inspector at the Human Environment and Transport Inspectorate (ILT)/Shipping in Rotterdam, versus W. D., the person concerned. 1. The course of the proceedings On 15 October 2015, the Maritime Disciplinary Court received from M. Schipper, inspector ILT/Shipping in Rotterdam, a written petition for a disciplinary hearing of the case against the person concerned as the captain of the Dutch seagoing vessel Dageraad (referred to below as "the Dageraad"). Sixteen appendices were appended to the petition. The Disciplinary Court has notified the person concerned of the petition, enclosing a copy of the petition with appendices and informed the person concerned of the right of appeal. On 25 November 2015 a statement of defence with six appendices was received from the person concerned. The inspector responded to this by submitting a reply with one appendix on 7 December 2015. A copy of this document was forwarded to the person concerned. The person concerned did not submit a rejoinder.

 

         

The presiding judge stipulated that the oral hearing of the case would be held at 11.00 hours on 22 April 2016 at the offices of the Disciplinary Court in Amsterdam. The ILT and the person concerned were summoned to appear at the hearing of the Disciplinary Court. The court hearing was held on 22 April 2016. M. Schipper, inspector at the ILT/Shipping appeared at the hearing for the petitioner. The person concerned also appeared at the hearing. 2. The petition In summarised form, the following forms the basis for the petition. On 21 May 2015 it was established by inspectors of the ILT that during the night of 20/21 May 2015 the Dageraad embarked on a sea voyage with passengers on board. This was not permitted under the certificates. The Dageraad is exclusively certified to go to sea with passengers on board in daylight. The person concerned was the ship's captain at the time. The person concerned is charged with acting contrary to the care expected of a good seaman in respect of the persons on board, the vessel, the cargo, the environment and shipping; and that he thus acted in breach of the following regulations and provisions: ∙ Dutch Ships Act, Section 3 and Section 9.1 (i) and Section 40 of the

Safety of Seagoing Vessels Regulation; ∙ Seafarers Act, Section 4.5 3. The position of the person concerned Rendered in summarised and concise form, the person concerned has advanced arguments including the following:

 

         

I have been the owner of the company conducted with the Dageraad for 30 years. I transferred this company to my son J. in 2014. I am very much aware that the compulsory certificates are intended to guarantee a certain level of safety rather than being a product of meaningless bureaucracy. I do not deny that I have acted in such a way that the Dageraad did not meet the statutory requirements and certificates. I do however refute that the absence of these certificates necessarily means that the safety level was potentially too low. A very experienced captain who has sailed on the same ship for decades is more qualified than a less experienced captain on a relatively unfamiliar ship. It was never our intention to place the people on board in a dangerous situation and we do not take any unnecessary risks when at sea. The shallows in the Westgat from/to Lauwersoog often make it necessary for us to depart from our sailing schedule and to opt instead for good seamanship. We have taken action regarding certification since the impoundment in July 2014. We have filed applications for a 200-mile certificate and for modifications to the ship so that it can sail at night. Unfortunately the Human Environment and Transport Inspectorate (ILT) responded very slowly. During an inspection of the ship by the ILT whilst it was docked at the end of March 2015 the inspector concluded that the ship was suitable for sailing at night. We gathered from this that the certificates for sailing at night would be issued. Action was also taken very slowly after this. It was predicted that the certification for sailing at night would be issued by the end of November/December [2015]. Many safety measures were put in place: the stability was modified and at the end of October 2015 a completely revised stability book was handed in. The impoundment on 22 May 2015 was just before the Whitsun weekend, which therefore lasted for five days. Under these circumstances the impoundment was disproportionately severe to us. The Whitsun weekend is important for sport fishing, which generates turnover with sport fishing voyages. Having to cancel the voyages meant disappointing clients and we lost sales to the value of € 12,000. The cancellation also damaged the company's reputation, despite the fact that the company is certified.

 

         

We are not unfavourably disposed to meeting the statutory regulations and after July 2014 we devoted a lot of effort to meeting the safety rules. No incident took place and nor was any actual danger of an incident created. It is not possible to unequivocally identify the potential danger that people on board could have faced following an incident. 4. Assessment of the petition A. The ship's details attached to the petition (appendices 2 and 7 to the petition, pp 09/10 and 24/30) show that the Dageraad is a Dutch seagoing sport fishing vessel of 152 BRT and with a length of 29.03 m. B. An impoundment report drawn up by M. Schipper and F.P. Hachmang, inspectors at the ILT (appendix 4 to the petition, pp 14-17) contains - briefly and concisely - information including the following: (1) On 1 July 2014 the inspectors M. Schipper and Z. Tomljenovic went on board the Dageraad at sea. It was concluded on board on the basis of a notepad serving as a ship's log that the ship had departed on the previous day. The ship had spent the night at sea, and this was not permitted under the Passenger Ship Safety Certificate. No official report was drawn up because those on board gave an undertaking that this would not happen again. (2) On 21 May 2015 at around 16.30 hours the inspectors H. Bokhorst and F. Hachmang went on board the Dageraad from the Barend Biesheuvel using a RHIB. We, the reporting officers, asked for the ship's papers. The ship has a certificate to sail with 37 persons on board during daytime hours. The captain, W. D., told us that he had departed in daylight in the morning. Once we had returned to the Barend Biesheuvel we found out that the ship had not departed in the morning but had already left the day before, which meant that it had sailed at night. This is absolutely not permitted under the certificates. The ship is not certified to be at sea at night with (sleeping) passengers on board.

 

         

(3) On 22 May 2015 the inspectors M. Schipper and F.P. Hachmang went on board the Dageraad in Lauwersoog. We, the reporting officers, confronted the captain (W. D.) with the facts that the captain had not told the truth about the time in which the ship had been at sea and that sailing at night is not permitted under the certificate. We explained several times that what is now stated in the certificate is what counts. We were not shown much understanding. The captain and his son felt that sailing at night in this way was safe enough. In view of the seriousness of the offence and the previous warning we decided to impound the vessel because we suspected a lack of safety awareness. M. Schipper had verified and registered that the ship had sailed in the hours of darkness on marinetraffic.com prior to this inspection on 22 May 2015. C. A number of screen prints taken from www.marinetraffic.com (appendix 6 to the petition, pp. 22/23) show according to the petition that the Dageraad was at sea in the night of 20/21 May 2015. Owing to the poor quality of the screen prints the Disciplinary Court is not able to gather this from these screen prints with sufficient certainty. D. A Passenger Ship Safety Certificate (PSSC) issued for the Dageraad on 1 April 2015 provides information including the following: This is to certify (..) That the ship is, under the authority conferred by Article 9(3) of Directive 2009/45/EC, exempted from the following requirements of the Directive: (..) -As specified in Reg. Safety of Seagoing Vessels art 40.1.a and 40.1.b. Conditions, if any, on which the exemptions are granted: -The ship will only be engaged in voyages during daylight; a significant wave height of not more than 2 meters (Reg. Safety Seagoing Vessels art 40.2.b).

 

         

This certificate makes reference to Directive 2009/45/EC of 6 May 2009 concerning safety regulations and standards for passenger ships. This directive is attached to the petition as an appendix. The certificate also makes reference to the Safety of Seagoing Vessels Regulation, which is based on the Dutch Ships Act. Section 40 of this is attached to the petition as appendix 10. E. The following parts of the relevant regulations are cited here. (1) Ships Act Article 1: The following definitions are operated for the purpose of this Kingdom Act: . the undertaking of a voyage: taking a ship to sea (outside of a line designated by general order in council, being the outer line of the Wadden Islands, general order in council dated 17.11.1981); . passenger ship: any ship designated by its owner to carry more than twelve passengers or a ship that carries more than twelve passengers. Article 3.1: No voyage shall be undertaken unless the necessary certificates for the ship have been issued, which certificates shall still be valid at the time of departure. paragraph 2: The necessary certificates will be laid down by or under a general order in council. Restrictions can be attached to certificates. Article 9.1: The captain is obliged to: (1) ensure that the necessary certificates are held on board at all times (..). (2) Safety of Seagoing Vessels Regulation Article 4.1: The certificate for passenger ships accompanying Directive 2009/45/EC is required for passenger ships with which national voyages are undertaken from or to a port in the EU. Article 40 [exemptions: Sport fishing vessels] Paragraph 1. Ships used for commercial purposes for recreational fishing with more than 12 passengers on board are (...) exempted when undertaking national voyages from: (a) the stability requirements for damaged ships as laid down in chapter II-1, part B, of the appendix to

 

         

Directive 2009/45/EC, provided that at least the stability requirements for undamaged ships are met as laid down in the IS Code [Intact Stability Code; IMO resolution A.749(18) of 4.11.1993 and subsequent amendments] (..). Paragraph 2. The following restrictions are attached to the exemption provided for in the first paragraph: (..) b. the ship will only be engaged in voyages during daylight hours; a significant wave height of not more than 2 metres used to undertake voyages in daylight. Paragraph 3. The exemption is not applicable to ships with night accommodation for passengers. The predecessor to this exemption was Policy Rule "Exemption policy for an existing seagoing vessel being used for commercial recreation in the form of sport fishing" of 31 March 2004 (Government Gazette 10.8.2004, no. 151; appendix 11 to the petition). (3) Directive 2009/45/EC of 6 May 2009 concerning safety regulations and - standards for passenger ships (OJEU L 163; a reclassification of Directive 98/18/EC of 17 March 1998 and the subsequent amendments) in which 'a passenger ship' is defined as a ship carrying more than twelve passengers. The Directive covers existing passenger ships with a minimum length of 24 m, which are used for a sea voyage from a port of a Member State to another or the same port within that Member State. Article 9 permits a Member State to allow an exemption from certain requirements for ships taking inland voyages under certain operational conditions, such as sailing exclusively in daylight. Article 13 prescribes a PSSC in accordance with appendix II. . Appendix I, chapter II-1, part B, sets out stability requirements for damaged ships [leakage stability]. . Appendix II: is the form for the safety certificate for passenger ships; this corresponds to the Passenger Ship Safety Certificate issued for the Dageraad on 1 April 2015 (see under D above).

 

         

F. The person concerned has confirmed in his statement of defence that he does not deny that he acted without the Dageraad meeting the statutory requirements and certificates (see under paragraph 3). G. At the hearing of 22 April 2016, rendered in summarised and concise form, the person concerned made the following statement: It is true that I departed from Lauwersoog with the Dageraad the day before the inspection. The departure took place in the evening of 20 May roughly between 22:30 and 23.00 hours. I only sailed in the hours of darkness for a couple of hours. I had seventeen passengers on board. I know that I should not have sailed during the night time hours. 5. The ruling of the Disciplinary Court A. The findings are based on the content of the documents referred to above and the statement of the person concerned are as follows. On 20 May 2015, the person concerned, as captain of the Dutch seagoing vessel Dageraad, undertook a sea voyage as a passenger ship and in so doing sailed during the hours of darkness on the night of 20/21 May 2015. The captain is obliged to ensure that the necessary certificates are kept on board. The Dageraad did not have a certificate to sail as a passenger ship in the hours of darkness. B. According to the description given in the Ships Act, sailing as a passenger ship is defined as a ship designated by its owner to carry more than twelve passengers or a ship that carries more than twelve passengers. Directive 2009/45/EU only relates to sailing with more than twelve passengers. On that night the Dageraad sailed with seventeen passengers, and therefore as a passenger ship. A passenger ship must in principle meet the leakage stability requirements. There is nothing to show that the Dageraad met those requirements. An exemption from those requirements was given in the issued PSSC in accordance with article 40 of the Safety of Seagoing Vessels Regulation, but only for sailing during daylight hours.

 

         

The Disciplinary Court leaves aside the question of whether the Dageraad was designated by its owner to carry more than twelve passengers and whether there was any night accommodation for the passengers (the person concerned has stated that there were sleeping berths for sixteen passengers on board). The charge brought by the petitioner in the petition has been worded too broadly in the sense that making a sea voyage with passengers during the hours of darkness with the certificate issued for the Dageraad is not permitted only if the vessel sails as a passenger ship. This is not the case if a maximum of twelve passengers are carried. C. The rules for sailing with passenger ships are - in view of the explanation and purpose of Directive 2009/45/EU - aimed at guaranteeing an appropriate level of safety for passengers. Apparently this is intended not so much to prevent accidents, but sooner to limit their consequences, particularly preventing the loss of human lives. The captain's failure to comply with those rules constitutes acting contrary to the regulation of Section 55a of the Seafarers Act in conjunction with Section 4.4 of that Act: acting or failing to act as captain contrary to the duty of care that he should observe in accordance with the principles of good seamanship in respect of the people on board. D. Other than what the person concerned appears to be indicating, no certificate was issued to sail as a passenger ship other than in daylight hours either after the inspection on 1 July 2014 or after the inspection on 21 May 2015 and the subsequent impounding of the vessel. The petition is accompanied by (appendix 15, pp. 41-47) a PSSC issued on 17 July 2015; it contains the same exemption with the same conditions as those in the PSSC of 1 April 2015 (see paragraph 4.D above). The only difference is that the permitted number of passengers has been raised from 37 to 50 and the navigating area has been extended.

 

         

A National Safety Certificate was issued at the hearing, which was issued on 10 February 2016 for the Dageraad but for the cargo vessel category. This document does not contain an exemption from the stability requirements and there are therefore no related conditions either. It follows from this document that the Dageraad is certified to sail as a cargo vessel during the hours of darkness. According to the information provided by the inspector in his reply, the new stability book submitted for the Dageraad in October 2015 was (still) based on stability in undamaged state. There is nothing to show that the Dageraad now meets or will shortly meet the requirements for leakage stability. E. The Disciplinary Court considers it implausible that the person concerned was not precisely aware of the regulations applicable to the business being run with the Dageraad: commercial recreation for sport fishing, for which possible voyages were made at sea as a passenger ship. The person concerned has himself said that he was the owner of this company for 30 years, until it was taken over by his son J. D. in 2014. These rules and the necessary certificates were of vital importance to the operations with the Dageraad. The Safety of Seagoing Vessels Regulation and its predecessor, the Policy Rule from 2014 with the exemption from certain requirements that are normally applicable to seagoing passenger ships - leakage stability in particular - were specifically brought about for this category of sport fishing vessels (the Dageraad is mentioned by name in the appendix to the explanatory notes to the Policy Rule) because it was not economically feasible for these ships to meet all of the requirements. The person concerned had already been given a warning about a similar violation in July 2014. F. The court finds that the person concerned, as the captain responsible for the Dageraad, deliberately violated the restrictive condition of not taking the ship to sea as a passenger ship during the hours of darkness, presumably for commercial motives.

 

         

The background to this restrictive condition appears to be that the consequences of an incident involving the Dageraad, such as a collision or a grounding, could be more serious if the incident took place in the dark and with (sleeping) passengers on board. As pointed out by the inspector, the passengers form the most vulnerable group of people on board because passengers - unlike crew members - cannot be expected to have sufficient knowledge and experience to respond appropriately in the event of an incident occurring. The applicability of and compliance with the regulations cannot be subordinated to the individual views of an experienced captain on their necessity or reasonableness. This does not however alter the fact that there have never been any incidents with the ship with such consequences in the past. Nor do the special conditions in the navigation area at Lauwersoog and the Westgat justify not keeping to the rules. 6. The disciplinary measure The Disciplinary Court judges that the person concerned has seriously failed in his responsibilities as captain. The person concerned has not acted as befits a responsible captain, as a result of which the safety of the people on board, especially the passengers, was placed in jeopardy. In view of the seriousness of the evident behaviours a suspension of the navigation licence for the duration mentioned below is appropriate. The Disciplinary Court has taken into account on the one hand that the person concerned had already been given a warning without any further consequences being attached and on the other that no accident took place with any harmful consequences for the passengers. The consequences of the impoundment of the ship for the business operations can only be taken into account to a limited extent since the extent to which they have affected the person concerned is not clear as he was not the owner of the ship or the company. In view of the various circumstances the Disciplinary Court sees good cause to stipulate that the suspension of the navigation licence will be partially suspended as provided for below. This conditional sentence is

 

         

intended in part as an inducement to henceforth comply with the rules that have been broken in this case for as long as they are applicable to the ship on which the person concerned sales as captain or ship's officer. 7. The decision The Disciplinary Court: • declares the objections against the person concerned as stated under

point 5 to be well-founded; • suspends the navigation licence of the person concerned for a period of

six months; • stipulates that of this suspension, a period of four months will not be

imposed unless the Disciplinary Court stipulates otherwise in a subsequent ruling based on the fact that the person concerned has once again behaved contrary to his duty of care as a good seaman in respect of the people on board, the vessel, its cargo, the environment or shipping prior to the end of a probationary period, which the Disciplinary Court hereby sets at two years;

• stipulates that the probationary period of the suspension shall commence on the date six weeks following the date of this ruling being forwarded.

• declares the objections to be otherwise unfounded; Duly delivered by A.N. van Zelm van Eldik, LL.M, presiding judge, R.E. Roozendaal and S. Kramer, members, in the presence of E.H.G. Kleingeld, LL.M., secretary, and pronounced by the presiding judge in public session on 1 June 2016.

 

         

A.N. van Zelm van Eldik E.G.H. Kleingeld, LL.M presiding judge secretary An appeal against this ruling can be lodged within six weeks of the date of forwarding with the Dutch Trade and Industry Appeals Tribunal (‘College van Beroep voor het Bedrijfsleven’), Prins Clauslaan 60, 2595 AJ The Hague, P.O. Box 20021, 2500 EA The Hague, the Netherlands.