Anders MØllmann | International Recent Developments
In 2010, the general rules of the Act on Safety at Sea (Safety at Sea Act), which divide the responsibilities regarding safety at sea between the shipowner, master, etc., were amended. Previously, section 9 of the Safety at Sea Act only placed responsibility on the shipowner for ensuring that faults and defects that the shipowner had knowledge of were repaired and that the ship conformed with the legislation’s requirements as to inspections and certifications. In other respects, the master was the primary person responsible. With the technological advances in facilitating communication between ships and their land-based organizations, allocating most of the responsibilities to the master was found to be outdated. As amended, the shipowner has the overall responsibility for ensuring that all safety regulations are observed; it has been further clarified that this responsibility continues even if the shipowner has delegated or outsourced various tasks. It has further been clarified that if the shipowner has delegated the International Safety Management (ISM) Code responsibility to a third party, then this party will also be responsible under the Act for the observance of all regulations regarding the transferred obligations and fields of responsibility. The increase in responsibility for the shipowner has also been worked into the penalty provisions of the Act. Thus, in relation to the Danish scheme for criminal liability for corporations, which may be described as a vicarious criminal liability, the shipowner will be accountable for actions of the employees on board the ship even if the shipowner is not the employer. If a Document of Compliance (DoC) under either the ISM Code or the Maritime Labour Convention has been issued to someone other than the shipowner, then in addition to the shipowner the holder of the DoC will also be held accountable for the actions of the master and crew.
It is worth noting that the rules do not directly regulate the potential tort liability of the shipowner. It will, however, be interesting to see whether the new rules will have a spin-off effect on who may be liable in tort when the rules on safety at sea are breached.