100Ton Licensed Captain - Not Hired as captain

I don't have anything in writing in regards to the question at hand, but I also know how the Gov't works, and I would feel pretty confident that the licensed person onboard would be getting hung out to dry if there wasn't a written agreement in place on the scope of the their duties. Again, this is strictly my opinion, and I can admit that I've been wrong before, but I'm going with my gut instinct on this one, and I've seen how the Coast Guard conducts boardings and accident investigations.

Truthfully, when I get my response from MSC I expect it to be so full of 'ifs', 'maybes' and bureaucratic CYA mumble jumble to be virtually meaningless based on past experience trying to get straight answers from the CG or most government agencies. But I'll post what I get.

Also, answers from MOS or any free legal consultation are generally worth what you pay for them, and who can afford to hire an attorney at $400 an hour every time you have a question. Then, as you so astutely pointed out the correct answer will be different from every lawyer and in every area. That's why the young captain comes here, to draw on our experience and our opinions based on that experience. It's probably the best guide available until he gets himself in a jackpot and has to hire a lawyer. Then he'll probably have a court ruling to answer his questions, but that's a little late. That's why most of us operate as I mentioned before: "What we do is know what we can (especially what pertains to what we do daily); know where to get the answers to what we don't know, and try to err on the safe side."
Opinions here aren't legal opinions, their opinions based on experience. Anybody who's been in this business any length of time knows that when something goes wrong on a boat all eyes immediately go to the Master. How things end up after the investigations and court cases depend on the individual circumstances, but we all know that even successfully defending yourself is expensive and reputations are difficult to recover.

My bottom line is that I will never let anyone but myself be on the helm unless I'm pretty sure they can't get us into trouble or I can keep them from getting us into trouble. Otherwise I make it clear that I'm accepting no responsibility. That's not a legal opinion, just one that has kept me out of trouble for the past 25 years.

I rest my case.

Did you even bother to look up MOPS license insurance and see what it is and how it works?

Yes I did. It's an insurance & defense policy. That won't get him the answer to his question. He can simply buy a policy. Although I didn't request a quote I'd guess that he can't afford to buy a policy, and if I'd had a policy all these years it would have been a waste of money since I've had no claims against me. My opinion of insurance is that their job is to collect premiums and deny claims. If I get into a jackpot I've got a lawyer. If he can't represent me properly he can recommend someone or I can fire him. I'd hate to pay for one for 20 years, and, when I needed him, find that he's incompetent. So where MOPS is concerned my question is who exactly will they appoint to represent me? Personally I'd like the lawyer who charges $1,000 an hour, not the one who makes $100 an hour, but somehow I don't think my premium is going to get me that $1,000 an hour lawyer.

Well, I got my answer, the CG shuffle. I was referred to a non-existant link.

I wouldn't consider that an answer ...

But since you seem to have given up, here is the question and answer I received.


I asked:

"The old question (myth?) keeps coming up among small boat operators that if a crew member or even passenger on a non-commercial small vessel or yacht holds a license higher than the master or operator (who may not even hold a license or be required to hold a license), that person is held responsible to some degree for any incident, accident, or violation.

Is there any truth in that? Are there published case studies of such incidents or enforcement actions?"


The CG representative who responded very quickly will remain anonymous as I have not asked permission to publish his name or response. His response was:

"Thank you for your question. The answer is fairly complex, but I'll try and address it as simply as possible.

First, there are two types of enforcement actions that the Coast Guard can take against a licensed mariner:

The first is a civil penalty (fine), which can be issued if a mariner commits a violation that the United States Code has an associated penalty for. A civil penalty is unrelated to a license, so there certainly is a potential for a licensed mariner that commits a violation onboard a recreational vessel (non-commercial) to be issued a penalty.

The second type of enforcement action is Suspension and Revocation (S&R), which is our authority to suspend (temporary) or revoke (permanent) a mariner's license. We can initiate S&R actions against a mariner for 6 circumstances: (1) negligence, (2) misconduct, (3) violation of a law or regulation, (4) incompetence, (5) dangerous drug use, or for a (6) conviction that would prevent the issuance of a license. (1), (2) and (3) require that the license holder be "acting under the authority" of his/her license. That means that if a license isn't required for the position that the person is serving in, then they aren't acting under the authority and can't be charged with those first 3. (4), (5) and (6) only require that person be a "holder of" a license. So as an example, the CG will seek to revoke a mariner's license if they fail a drug test, even if they are only driving recreational boats.

Now to try and answer your question. It doesn't matter if someone on the vessel holds a license that's higher than another crewmember because in the event that there's an accident, incident or violation, the CG will have to show that they were acting under the authority of their document - which on a recreational (non-commercial) vessel is improbable. There's one notable exception to this: if the license is required as a condition of employment, the license-holder is considered to be acting under the authority of that license. This actually happens a lot down here in South Florida - a person buys a big yacht and the insurance company requires the owner to hire a licensed captain for the boat. In that case, the master is acting under the authority of their license and could have S&R action taken against them for an incident, accident or violation.

With regards to a passenger holding a license being culpable, I can't think of a situation where that would be possible.

Hence my simple question to the OP, "is your license a condition of employment?" If it is then your failure to supervise the operation of the vessel puts the responsibility on your shoulders. If you get nailed for a wake or some other violation when you are not driving or watching then tough tanoogies, you want to be a captain, act like one and take responsibility. If you are a passenger or were hired because you can lift heavy stuff and clean heads, relax and enjoy the ride.

Thank you for posting that. Although the question you asked was not the one the OP asked he did answer the question, and you put it succinctly " "is your license a condition of employment?" If it is then your failure to supervise the operation of the vessel puts the responsibility on your shoulders." Of course that answer was given several times over the past 6 pages, but now it's official.

No, No, No. Do not make your license a "condition of employment". IOWs if you apply for a job as boat washer don't mention your license or specifically state that you are not being employed as a captain. If you're looking for a job as a captain, and get hired to 'take care of the boat and ride along' on a boat with no captain, you're hired as a captain no matter what's been shown or not, unless you specifically opt out.
One other point. If I'm hired to work on a boat, I'm hired and paid as a captain (unless I specifically make other arrangements). Use me as a deckhand if you like, but you'll pay me as a captain. By selling himself cheap the OP is working his way out of the business instead of into it, along with putting his future in jeopardy for very little money. I gave him some suggestions by PM about how to get pertinent experience. Hopefully he goes in the right direction.

The Captain absolutely has power over the owner on the boat he is on in regards to safety and many other circumstances. A captain's license is stated that he is an "officer in the merchant marines". The Captain also has the power to detain or even handcuff or tie up a crew member, owner, guest, or anyone else that threatens the safety of the vessel or anyone on board.

I'd be real cautous of handcuffing or detaining anybody on a boat, especially an owner. Basically you're talking about a citizen's arrest with all the hazzards that accompany that (lawsuits). Or you're talking about assault, kidnapping and about a dozen other felonies, depending on who's doing the talking.

I didn't say I was doing any of that or planned to. I just stated that the Captain has the ability to do that. For example, if you're running a tour boat with 50 passangers and one passanger becomes drunk and threathens all of the other passangers with a knife. The Captain (and crew) have the legal authority to tie the guy up to protect the safety of the other passangers until they get back to the dock and he can be turned over to authorities on land or handed over to the USCG at sea.

can a 6pac guy do that???

Anybody can. It's called a "citizen's arrest". Captain J though is referring to the captain's authority on international waters. Don't go pinning that badge on your chest though. Odds are you'll lose it along with your shirt unless you're very sure of what you're doing.

This Thread needs some Yoga Exercises for Carpal Tunnel Syndrome - YouTube

Hi,

Maybe in your locale but not everywhere.