Unleash the Kraken

“The more corrupt the republic, the more numerous the laws,” wrote Tacitus in his Annals. He knew, writing long ago, that the virtuous did not need laws to force them to behave properly. As morals declined, however, legislation could be introduced to help, as it were, right the ship. Thus, laws became necessary and more numerous, as society’s standards weakened – like a crutch.

The same insight holds true in our era, as witnessed by a study by two researchers at the University of Turku, Finland, in 2013. “If a company and its personnel are motivated and committed to safety,” concluded the authors, “detailed regulations are not necessarily needed. In other words, self-regulation seems to be the most effective way to improve maritime safety in the future.” 

The Regulation Monster

As if in response to every conceivable problem, the scope and invasiveness of regulation keeps growing.  Does modern society, in fact, see every risk as a behavioral lapse that demands legislation?

Many point the finger at lawyers, but the truth is lawyers are happiest in the wild grey areas. Faced with statutes, treaties, checklists and forms, even lawyers can feel like a government appendage. It’s easier to make arguments and find solutions in a flexible case law and contract-based regime. 

Indeed, many regulatory efforts, like the International Ship and Port Facility Security (ISPS) Code, actually go back to governments coming together to collectively impose order on perceived oceangoing risks. To some extent, these high-level concerns are warranted and yield a benefit. But of course the day-to-day burden on seafarers, who end up having to slog through all this, is greater still. Whether such command-and-control, top-down policies are worth the added hassle remains an open question.

While governments automatically assume that each new law or rule will be studied, understood and obeyed, they may be mistaken. There’s a limit to how much regulation can be absorbed and implemented by a small crew on board a seagoing vessel. Likewise, company staff only have so many hours that they can devote toward satisfying regulatory demands. There are also customer demands to consider and, in general, those should take priority. 

As this saturation point is reached, regulations become subject to triage. Only the most essential rules, or the ones which carry the harshest non-compliance penalty, will probably be observed. Other rules, which may be legally important but operationally dispensable, could be treated as perfunctory “box-ticking.” The rest, namely the rules that are neither legally important nor operationally significant, are ignored. 

Bullying and Harassment

A prime example of the third kind of rule is conveniently near at hand: Behold the 2016 Amendment to the Maritime Labor Convention (MLC) 2006 relating to Regulation 4.3, which entered into force on January 8, 2019. This amendment is suggested as being a step forward because, until now, bullying and harassment on board ships had supposedly not been addressed. 

The International Chamber of Shipping (ICS) in its 2019 guidance on this topic offered the following insightful summary: “All seafarers have the right to work without suffering harassment and bullying. Unfortunately, however, there are seafarers that are victims of harassment and bullying on board ships.” 

By urging seafarers to report incidents of bullying and harassment and by asking companies to develop – you guessed it – “policies and plans to eliminate harassment and bullying on board ships,” the dream of creating a bullying- and harassment-free vessel will finally be achieved.

As for bullying and harassment, the ICS guidance handbook asks, inter alia, “Do you raise your voice at others?” and “Do you criticize minor non-safety critical errors and fail to give credit for good work?” While the former may be necessary when a strong wind is blowing and the latter may be regarded as being, at least, longstanding custom for German sailors, the amendment to Regulation 4.3 asks us to regard such behavior as a reportable offense which, in turn, requires multiple levels of management to conduct a proceeding and formulate a decision. 

So did you answer “yes” to either of the two preceding questions? Then you could be a bully or guilty of harassment.

But wait, there’s more: “Do you consider that your way of doing a job is always right?” asks the ICS handbook, perhaps unwittingly echoing the words of practically every captain who has ever set sail.

The ICS guidance comes close to proposing a single, unified cultural approach to bullying and harassment that may even unduly constrain the captain’s interactions with his subordinates. After all, a gruff order or criticism of a job poorly done, necessary for ensuring safety and order on board, could lead a faint-hearted or sensitive crewman to trigger a retaliatory paper chase. 

As shipping was the first globalized industry, the ICS must at least try to ensure that its guidance is applicable to all possible cultures of a ship’s crew rather than advocate a narrow vision. What is bullying or harassment is very much in the eye of the beholder. But it would not be surprising if the attitude were widespread – even across cultures – that such interpersonal issues ought to be dealt with interpersonally, by talking it out, rather than by taking recourse to a written, formalized, bureaucratic grievance procedure. 

There is value in off-the-books resolution of potential personal issues or differences in communication styles without prescribing a rigid, regulated camaraderie. In any case, the contribution of this new MLC rule to life on board is, at best, ambiguous.

CO2 Emissions

Meanwhile, the environment cries out for protection – and finds defenders. In the E.U., the Monitoring, Reporting and Verification Regulation 2015/757 mandates that all ships of greater than 5,000 gross tons, regardless of flag, which call at an E.U. port (be it an outgoing, incoming or intra-Europe voyage) must submit a CO2 report to the flag state authorities, itemized by each ship for which they are responsible. 

By June 30, 2019, each of those ships must, in turn, carry on board a valid “certificate of compliance.” To satisfy the requirements of this new regulation, ships will need to keep track of their CO2 emissions, time spent at sea, all distances travelled and any cargoes carried.

It bears noting that recording CO2 emissions does not, in fact, reduce them. Also, do we want the government to know so much about ships, where they’re going and what they’re moving?

The Relevance Test

While examples of “good” maritime regulation abound, e.g., the International Convention on the Safety of Life at Sea (SOLAS) or the International Safety Management (ISM) Code, these largely reflected established industry best practices and helped bring laggards up to speed. There can be no doubt that the Hague-Visby Rules are another example of a multinational effort that provided a stable framework for shipowners and sailors to go about their work. 

Nevertheless, in the fullness of time, it appears that regulations have become less relevant to life on board and more about addressing specific political trends or demonstrating allegiance to certain interest groups. The worst of the new rules even edge out the common sense and good judgment of experienced sailors. 
Fabienne Knudsen, writing in Safety Science in 2008, finely anticipated that concern: “Recent efforts to improve safety have entailed an increasing volume of regulations, control, and administrative work, such as checklists, workplace assessments, and risk assessments. However, those demands are viewed by many seafarers as imposed by some people who do not understand anything about […] seamanship.”

Leaving aside using force and threats to ensure adherence to new regulations, any new rule is more likely to be effective if it is embraced and seen as being sensible. In fact, it is the freely given cooperation of the maritime industry that gives life to the bulk of regulations. 

Day by day, government mandates are implemented by mariners, shipowners and all the many professionals involved in shipping – often at great expense and after a lot of head-scratching. They are the ones on the front line, filling out checklists, ticking boxes and making sure each report reaches the right desk.

The human cost of all this compliance – fatigue, frustration – is often overlooked. It engenders hope that the IMO has taken notice: “The vast amount of administrative requirements, seen as a whole, together represents a huge administrative burden for the company and the crew on board.” This was also correctly identified as a safety risk since crews “spend considerable time on bureaucratic tasks, rather than actually manning and operating the ship[…].” Unfortunately, this report originated back in 2013 – and there is hardly less regulation now.

Whither Seamanship?

A study from the same year by the Danish Maritime Authority suggested that exercises and drills were regarded as the least useless of administrative requirements, “possibly because [crews] can see clearly how they contribute to the safety of the ship.” 

Seafaring is a practical art. It is passed down person-to-person and supplemented by training and education at the world’s maritime academies. Seamanship is learned not by filling out the proper form but by doing the job, again and again, until it is done well. That element of common sense and good judgment has no regulatory substitute.
And until such time as we can fully rely on seamanship, I will – perhaps with a hint of guilt – continue to stand before my classes of merchant marine officer cadets and teach them to document every step of their voyage, photograph every broken cargo and follow every single policy and procedure.

After all, I wouldn’t want them to get into trouble.