Nominalismo y conceptualismo

The name of captain or master is given according to the kind of vessel the person is in charge of. Captain - as a denomination is applied to those who govern vessels that navigate the high seas or ships of large dimensions and importance, although they be engaged in the coastwise trade. Master – are those who command smaller ships engaged exclusively in the coastwise trade. Nevertheless, for the purposes of maritime commerce, the words “captain” and “master” have the same meaning; both being the chiefs or commanders of ships.

B. Qualifications

Art.609 of the Code of Commerce states that “Captains, masters or patrons of vessels must be Filipinos, have legal capacity to contract in accordance with this code, and prove the skill, and qualifications necessary to command and direct the vessel, as established by marine and navigation laws, ordinances, or regulations...”

C. Powers and Function

A captain commonly performs three (3) distinct roles: (1) he is a general agent of the shipowner;

(2) he is also commander and technical director of the vessel; and (3) he is a representative of the country under whose flag he navigates

Of these roles, the most important role is being the commander of the vessel--- operation and preservation of the vessel during its voyage and the protection of passengers, crew and cargo. In his role as general agent of the shipowner, the captain has authority to sign bills of lading, carry goods aboard and deals with the freight earned, agree upon rates and decide whether to take cargo. He has legal authority to enter into contracts with respect to the vessel subject to applicable limitations by statute, contract, or instructions and regulations of shipowner.

Transporation Law Notes | Kate Kimberly Delos Santos

33 D. Discretion of Captain or Master

A ship's captainmust be accorded a reasonable measure of discretionary authority to decide what the safety of the ship and of its crew and cargo. The captain is held responsible for such safety, presumed to be knowledgeable as to the specific requirements of seaworthiness and the

particular risks and perils of the voyage he is to embark on.

Indeed, if the ship captain is convinced that the ship owner's or ship agent's instructions will result in imposing unacceptable risks or loss or serious danger to ship or crew, he cannot casually seek absolution from his responsibility, if a marine casualty occurs, in following such

instructions. E. Pilotage

Pilot - in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certain waters.

States possessing harbors have enacted laws or promulgated rules requiring vessels approaching their ports to take on board pilots licensed under the local law. This is known as compulsory pilotage.

In this jurisdiction, compulsory pilotage is being implemented in the Port of Manila.

A pilot shall be held responsible for the direction of a vessel from the time he assumes his work as a pilot thereof until he leaves it anchored or berthed safely. However, his responsibility shall cease at the moment the Master neglects or refuses to carry out his order.

a. Master and Pilot

Generally, the pilot supersedes the master for the time being in the command and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. He becomes the master pro hac vice and should give all directions as to speed, course, stopping and reversing, anchooring, towing and the like.

b. Shipowner and Pilot

In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel, and to third parties for damages sustained in collision. Such negligence of the pilot in the performance of duty constitutes a maritime tort.

The owners of the vessel are responsible to the injured party for the acts of the pilot. c. Pilot and His Association

The fact that the pilot is a member of an association does not make the association jointly and severally liable. It is because there is no employer-employee relationship.

F. Code of Commerce Provisions on Captains

A shipowner would only be liable for contracts made by the captain (a) when duly authorized or (b) even when authorized, for ship repairs, or for equipping or provisioning the vessel when the proceeds are invested therein.

Transporation Law Notes | Kate Kimberly Delos Santos

34 III. OFFICERS AND CREW OF VESSELS

Art. 648 of the Code of Commerce provides that “the complement of a vessel shall be understood all the persons on board, from the captain to the cabin boy, necessary for the management, maneuvers, and service....”

The officers who are named in the regulation issued by MARINA in connection with safe manning for international trade are: Master, Deck Officer, Chief Engineer, Engineer Officer, Radio Officer, Ratings Man.

Memorandum Circular No. 148 issued by MARINA for domestic trade specifies the following officers: Officer, Master, Chief Mate, Deck Officer, Chief Engineer Officer, Second Engineer Officer, Engineer Officer, Medical Practitioner, Radio Officer, Paramedic, Major Patron, Minor Patron, Boat Captain, Marine Diesel Mechanic,Electrician, Ratings Man.

A. Regulation of Merchant Marine Profession

The practice of marine profession is now governed by special laws and pertinent rules issued by MARINA and the Board of Marine Deck Officers and Board of Marine Engineer Officers. In particular, the “Philippine Merchant Marine Officers Act of 1998” was passed in order to regulate Merchant Marine Profession in the Philippines.

The law declares that “it is the policy of the State to promote and insure the safety of life and property at sea, protect and serve the marine environment and ecology...”

B. Minimum Safe Manning

It is not enough that the officers manning the merchant vessel have all the qualifications imposed by the Philippine Merchant Marine Officers Act and other special laws or regulations. It is also required that there is sufficient number of officers and crew that are serving in the vessel.

No foreign officers shall be allowed on board unless approved by the administration. C. Security of Tenure

Every worker in the Philippines has a constitutionally protected right to security of tenure.

Consequently, an employee cannot be dismissed without just or lawful cause and without affording the employee with due process.

The Labor Code provisions apply to officers and crew of merchant vessels engaged in domestic trade or coastwise shipping.

Transporation Law Notes | Kate Kimberly Delos Santos

35 CHAPTER 9

CHARTER PARTIES