The Legal Liability Signing Onboard Assesments

[john]

Onboard assessments are a cornerstone of the new evaluation system for license upgrades but today, years after the system was created, confusion still surrounds the actual signing of assessments.

Safe Voyages tells us:

Instructors, trainers, examiners and assessors come in multitudes of forms and structure. Captains mentor and train mates. Mates observe captains. Captains and mates train and instruct seamen. Senior mates counsel and instruct newer officers or deck crews. Office personnel (e.g., Port Captains) join vessels at sea to train and assess personnel for regulatory and operational safety. Independent firms specializing in maritime training offer seminars to companies and individuals. The Coast Guard relies on all of this training and assessment in its evaluation of applicants. The system has proven effective, but not without subjectivity, idiosyncrasy and potential for error.

With the recent conviction of the Cosco Busan's pilot gCaptain has received a few requests to explore the legal implecations to our training system. Not being laywers ourselfs I ask that you download and read (link) the latest Safe Voyages article titled "Liability Exposure of Maritime Trainers and Assessors (found on Page 7) then answer the following poll:

[JP]

I look at doing the assessments just like taking the driving test. The person who goes in the car with you is not held liable if you get in an accident 10 years down the road- why should the onboard assessor? You are signing off that you saw that person do that thing at that one point in time. Thats all. I do not think anyone should ever be held liable for some accident down the road. The whole assessment thing is unecessary IMHO and we should have stuck to our old system of training people onboard as they worked thier way up. There are too many problems with the system now to go into on this particular post. I will vent later on another!
JP

[tengineer]

The assessments only mean you watched that person do a particular task on a particular day. In the engine room the wipers perform these tasks as routine part of their job so once a person has been on the job for a while it's just a formality. I have seen engineers refuse to do assessments claiming they were worried about the liability. That just doesn't wash. I think they are either 1. Lazy 2. Afraid of the competition. 3. Didn't know enough to assess. 4. Had not properly trained their wiper.
Therefore, I've always recommended the dismissal or transfer of any engineer who refuses to complete an assessment claiming to worry about liability.

[Jones Act]

John-

I do not see where signing or not-signing makes any change in the law of vicarious liability and/or respondeat superior. If you are in a supervisory capacity of the negligent party (legally referred to as the "tortfeasor"), then you can be sued. The argument simply goes like his: the tortfeasor was negligent and you were charged with the duty of making sure he was not negligent, therefore, you were negligent. As a practical matter, in over 24 years of practice, I have never sued an individual seaman on behalf of another seaman. As the article states, the company has liability for the negligent actions and negligent omissions of a crew member and, since the company has insurance, why sue the individual? The only direct reason to sue on behalf of an injured Plaintiff (be it property damage or for bodily injury) is to recover compensation for the loss. VERY RARELY does a lawsuit actually, besides getting monetary recovery for the Plaintiff, result in changing the behavior of the company in future actions.

Now,I am not commenting on any criminal charges that could be brought only civil liabilities.

Personally, I see no reason to be worried about signing onboard assessments.

[drkblram]

Jones act, the way your post reads still leads to some confusion (and I'm pretty good on legal speak). If I, as an officer, sign on an ordinary seamen's performance assessment, that lets say, he understands the different modes of helm operation (hand, NFU, ironmike). He uses that sign off, along with a bunch more, to go say he is qualified to be an Able Seaman. the coast guard finds him duly qualified as well, and issues him an AB's ticket. a year later, on a different ship, I'm nowhere in the picture now, he screws up and pulls a Kagen (ie, tries to drive the ship while it's in autopilot) or something like that and there is an incident. He is found to have fracked it up, can I be sued over that? (and I know the answer is yes, anyone can be sued, its whether or not a judge will let it see the light of day)

[Jones Act]

Dear DRKBLRAM-

Remember I am not a judge, just a lawyer.

The answer to your inquiry is that a competent lawyer could prepare and file a Motion for Summary Judgment (in State Court) or a Motion to Dismiss for Failure to State a Claim [12(b)(6)]and/or Motion for Summary Judgment (in Federal Court) that there is no legal causation and/or proximate cause from any negligent actions and/or omissions on your part and the part of the trainee's actions and any damages suffered by the putative Plaintiff that would create liability to you; If you lost these motions, a competent counsel could urge a Motion for Directed Verdict at the close of Plaintiff's counsel's case-in-chief; if that lost, then a Motion for Judgment Non Obstante Veridicto if a Jury actually found you negligent and,if that lost, you should win in an appeal.

The point I am making in my post is that signing an assessment or not signing an assessment does not make any more or less negligent in your hypothetical scenario.

I hope you are no longer confused.

I Wish You Calm Seas

[jdcavo]

...If I, as an officer, sign on an ordinary seamen's performance assessment, that lets say, he understands the different modes of helm operation (hand, NFU, ironmike). He

Take a look at the RFPNW assessments. It is not asking you to attest to knowledge or proficiency. It is descrtibing a very specific demonstration performed (once) in a very specific manner. If you saw the mariner do exactly what is writen, you are only describing something you witnessed, you are not opining on competence.

In a previous thread a while back I explained that this distinction of witnessing a demonstration vice opining on competence is why it is important that you not deviate from the criteria noted on the assessment "Control Sheet." Perhaps Mr. Gordon has some thoughts on the distinction between witnessing a single demonstration as noted on the Control Sheet vice offering an opinion or signing a Control Sheet if the candidate did not perform what was noted on the sheet in the prescribed manner. If he's still with us after that, maybe he has some thoughts on the TOAR versus the STCW Control Sheet.

[Jones Act]

LOL Dear JDCAVO....You'll Not Get Rid of Me That Easily!!!

"...distinction of witnessing a demonstration vice opining on competence is why it is important that you not deviate from the criteria noted on the assessment "Control Sheet." Perhaps Mr. Gordon has some thoughts on the distinction between witnessing a single demonstration as noted on the Control Sheet vice offering an opinion or signing a Control Sheet if the candidate did not perform what was noted on the sheet in the prescribed manner. If he's still with us after that, maybe he has some thoughts on the TOAR versus the STCW Control Sheet..."

(1) Not deviating is a good thing;
(2) deviating is a bad thing for many reasons but, under drkblram's fact scenario, I believe I will stand upon my response (response may be different if the "deviated" training date and accident date are "real" close in time but, again, it would depend upon relationship);
(3) I think instead of the word "vice" you meant "versus". If this assumption is correct, I still believe that, as long as the candidate's failure to perform the function you were charged to observe was noted by you, then you have done what you were suppose to do. However, I would like to know more of the relationship between the candidate and the "observer" and the particular facts being observed and what is the method followed as the "failure to successfully perform" worms its way up the food chain. In other words, (a) is it acted upon by the company by not letting the candidate perform this function until he later successfully completes it, etc.?; (b) is/are their any ramifications of the failure to protect the public?, etc.
(4) As to the TOAR and STCW sheets, if you could efax them to me at (713) 715-4983, I would like to read them and then comment. I plead specific ignorance and I apologize.

I Wish You Calm Seas.

[drkblram]

HAHA, Jones Act, thats exactly what I was asking... After all, anyone can sue anyone for anything, its just a matter of whether or not they have a case.

I do remember officers refusing to sign check-offs when I was sailing. Really frustrated some SIU trainee's/apprentices. The union expected them to accomplish X, Y and Z assessments on this hitch, and the Old Man says NO, and none of my officers will either.

[New3M]

Maybe I'm missing something here, but these are the control sheets, like for OICNW that say "Calculate the gyro error by calculating an azimuth of the sun." right? I know there are a ton more of them, and I remember about a dozen specifically for celestial.

So what's the big deal about signing them off? If someone is trying to get the gyro error sheet signed off, they do an azimuth of the sun, I do the azimuth of the sun, and they get the same answer that I do (without my or anybody else's help), why not sign it off? (Before anyone says it, I know I can't sign them off as a 3M, but if I were the CM someday.) They completed the task, they deserve the signature. If, a year down the road, the ship runs aground because the azimuth that guy did was 2 degrees off and there was a bunch of gyro error that nobody realized, is the CG inspector that comes onboard really going to ask "who let this guy stand watch, because obviously he doesn't know how to do an azimuth?"

And anyway, does the CG even keep these control sheets? Are they filed away in our 'files' somewhere, so that if we are involved in some incident, they're going to look up who decided that I was proficient in some subject, and then go after them? What about the kids that go to an academy, and never step foot on a commercial ship until they are an officer? Their control sheets are singed off by their instructors for whatever class that was for. All that means is that they earned a 70 average for that class - and that they had to pass a test for that control sheet. Doesn't mean they're proficient in it, could just mean they got lucky that day.

Like I said, maybe I'm missing something.

[cmjeff]

HAHA, Jones Act, thats exactly what I was asking... After all, anyone can sue anyone for anything, its just a matter of whether or not they have a case.

It's not about having a case, it's about the money. Lawyers would sue you if you had enough money to make them and their clients happy but, unless you have a very large umbrella policy, your not worth their time.

[Jones Act]

Dear CMJEFF-

Other than to get the maximum amount of money possible for an injured Jones Act client, what other reason is there to sue?

How many companies do you know that stand in line to write you a check that fully compensates you for all your loss (economic, physical, mental, familial, etc.) when you are injured?

How many companies have their own "go to" doctors that side with the company and release a person as fit-for-duty prematurely without performing all the tests they should to fully explore and/or develop all the possible injuries a seaman might have?

Sure, it would be nice to sue and also change the unsafe ways some companies operate but, in reality, that does not happen in 99.9% of cases.

It's all about the money.

With all due respect, you can poo poo the lawyers and the legal system but it is the best in the world. Bad apples?....sure there are. Lawyers that lie and fabricate evidence....yes they exist too. But there are bad and good seaman, bad and good companies and on and on.

I guess I am a bit biased but I think the more money you get for a client as opposed to another lawyer getting less that you did your job better. A lawyer should maintain candor to the judicial system and zealously represent their client. In other words, kick the other sides' butt (fairly mind you).

I Wish You Calm Seas

[todd.harter]

Slightly off topic - but still on topic. If there is anyone out there looking to go through the Chief Mate/Master classes who is not affiliated with a union and has a choice - go to the AMO Star center - at the end you will have all of the assessments signed off (if you pass). I don't want to talk down MITAGS - it is an outstanding facility, with great instructors and courses, and I have learned plenty, but they have truly dropped the ball with including all of the assessments. Going though MITAGS you will will still be left with several assessments which in their own letter states "must be completed at sea". Included in these are several which state "On a Radar/ARPA simulator which meets the standards of 33 CFR 164.38". Does anyone know of a ship that has an arpa simulator on board meeting these standards? When I asked about getting at least the assessments requiring a simulator signed off I was told yes- if I took ARPA again (this, after having put well over $15,000 on my credit card with plans to put another $15,000+) And - if, as is becoming more common in this global maritime industry, you work with an international crew - you will not be able to get ANY signed off at sea. Again - I do not want to put down MITAGS, but I do want to save someone from the extreme frustration I have faced for having chosen MITAGS over Star.
Also if anyone out there has a vessel with a simulator and can use a 2nd Mate DPO for a few weeks please let me know. The highly competant Norwegian Captain I have served under for two years is not allowed by the USCG to sign off my assessments because they do not have the jurisdiction to put him in jail since he is not American (That is not a joke - it is actually what the Coast Guard told me) SO WHAT DOES THAT TELL YOU ABOUT LIABILITY?