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100Ton Licensed Captain - Not Hired as captain

Discussion in 'Licensing & Education' started by boatingetc, Jun 28, 2013.

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  1. Bamboo

    Bamboo Senior Member

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    I ate a bag of popcorn while reading this thread. :)

    I've told my owner he can fire me anytime he wants but I'm in control of the vessel until it's tied up at the dock.
    If I were hired as a boat cleaner then I'll be cleaning the boat. I highly doubt if when I'm cleaning the boat and the driver of the boat crashes the USCG will be looking to hold me responsible- just as Marmot posted.
  2. saltysenior

    saltysenior Senior Member

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    Betcha that if you cuff the owner you'll be fired..:D


    but seriously, to be what everyone calls "captain", don't you have to be signed on some how....do the present documentation papers have a space for someone to be declared as master...
  3. NYCAP123

    NYCAP123 Senior Member

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    Betcha that if I've cuffed an owner I've already quit effective when the boat reaches the dock.:D

    In 26 years of running thousands of boats I've never seen an employment contract nor had anyone sign me on. However, I'd have one hell of a time claiming not to have been hired as the master unless the owner stated it, which is unlikely to happen subsequent to an incident.

    All that said I've never heard of a small boat captain "cuffing" an owner or guest and I'd strongly recommend against that action same as I'd recommend against a citizen performing a "Citizen's Arrest" unless they are very sure about being able to prove cause.
  4. saltysenior

    saltysenior Senior Member

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    so, on a vessel that is not inspected, it would be one's word against another's... I never signed anything or was asked to...but in this modern world w/ million $ boats and million $ lawsuits ect. , it seems foolish to me that legal papers of some sort are not drawn up to specify who is responsible and who has what powers as discussed in this thread, for the benefit of both the owner and the paid operator .....
  5. olderboater

    olderboater Senior Member

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    Draw up legal papers yourself then. They don't have to be fancy. But if found in that situation, just a simple statement: It is agreed that John Doe has been hired by the M/V Crazy on February 30, 2014 as a deck hand and is not Captaining the boat in any manner nor is his license being used for any purpose. If you have an attorney, have them review your proposed agreement.

    I agree in the event of problems, having nothing would put one in a tenuous situation both with the CG and Insurance wise. I could easily see it being an uninsured boat if the owner's insurance has a clause requiring a Captain. Going the other way, I could see the insurer wanting to hold you as the Captain responsible. Various devices and means we come up with often fall apart when an insurer gets involved trying to determine a means not to pay.
  6. saltysenior

    saltysenior Senior Member

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    let's get away from the ''deckhand''........when the insurance requires a licensed operator,should there be a document that gives the paid operator full responsibilities for the operation of the vessel.....98% of the boat ''captains'' I know are not in a financial position to be the main target for a lawsuit ,whereas most owners are...
  7. Capt J

    Capt J Senior Member

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    The responsibilities ultimately fall on the owner regardless of what paperwork you have. If you employ a tractor trailer driver to run your tractor trailer and he hits someone, it ultimately falls on the owner of the tractor trailer. If you're worried about being sued for something that happens on your yacht, get the appropriate amount of insurance. He is given the full responsibilities, if he is the one the insurance is covering as the licensed operator......
  8. NYCAP123

    NYCAP123 Senior Member

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    There is such a document. It's covered by the word "MASTER" on our license. He is not the Master of the stewards or deckhands or the Master when the owner isn't there. He's Master of the vessel. That means that he is in charge. Financial responsibility will always fall to the owner however, because the master is his employee as well as the owner being the deep pocket. You're hiring experience, not financial protection, although his experience is pretty good financial protection.
  9. saltysenior

    saltysenior Senior Member

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    you tell the owner that because you have license in your pocket, you are now in charge of his vessel and see how far you get.
    as far as i recall , if the vessel had a document, and a person was named in the space provided for as master of said vessel, then he was the master.
  10. bernd1972

    bernd1972 Senior Member

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    It´s a simple matter. As a qualified and licensed captain you´re probably not resonsible under civil right towards the boat owner in case of accident if he claims to be the captain in charge of his vessel while you´re on board as deckie or guest, but when it comes to the danger of injuries or third parties damages due to oviously insufficient competence of the skipper in comand you´re obliged to take over command as the higher qualified person aboard. Same as with a medical doctor showing up at an accident and not assisting because the rescue staff (no doctors) are allready doing their job. The special resposiblity for these situations comes with the higher formal qualification. You´re not automatically in charge simply because you´re there and you´re qualified, but you´ll certainly have to explain why you didn´t take over if it could have saved the day.
  11. NYCAP123

    NYCAP123 Senior Member

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    I'm afraid you actually have that backwards. Your responsibility comes into play when, after the incident, the owner and his lawyer say he was depending on you. That's why he hired a captain. The owner was depending on the professional to keep him safe. IOWs he hangs you out to dry.
    As to taking command of sombody's boat, that's called mutiny. You better have a very good reason, like the owner passed out and the boat was heading for a pontoon boat filled with orphans.
  12. bernd1972

    bernd1972 Senior Member

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    Well, obviously as the most qualified person aboard you´re allways in a liability trap, except when you´re obviously too drunk to take responsiblity before you left the dock. But that doesn´t look like a proper solution to me...
  13. bernd1972

    bernd1972 Senior Member

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    Concerning the mutiny topic: Beeing the most qualified person in a critical situation legally brings you in a guarantor position. It´s like beeing a MD at an accident site, a capable swimer at the shore of a lake with kids drowning, a certified event technician on an event with significant safety problems that are obvious to a pro (you´d have to inform the responsible authorities in order to solve the issues or make them cancel the event, even if you´re just there for private reasons) or just as we have it here, a qualified captain supporting an amateur skipper. In case that your skills are required to prevent accidents that may be harmful for other people aboard or elsewhere, you have the obligation to take actions to prevent damage. If that means to request the skipper to hand over command if a critical situation is obviously over his head you have to do so. Be it mutiny, but even that can be your duty by moral and law if required.

    In case of our collegue here it´s obvious that he has to consider hinself as the poor guy with all responsibilities but without the formal authority to fulfill them against his skipper if required. But even then, in case it´s required he definitelly has to request the owner to hand over command to him. A task that can only be handled with respect and diplomacy from both sides.
  14. NYCAP123

    NYCAP123 Senior Member

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    Ever try to take the car keys away from a drunk who feels he's fine to drive? Now add in that the drunk is your employer. Request or suggest? Absolutely. Take command of a person's vessel without their OK? No. The one time I've been in a similar situation, after going nose to nose with the owner, I went to the seat furthest away from the helm and let there be no doubt that I was taking no responsibility. The OP needs to have it made perfectly clear, preferably in an email, that he has no responsibility for the operation of the vessel.
  15. K1W1

    K1W1 Senior Member

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    Under whose jurisdiction is an e mail a legally recognised document?
  16. NYCAP123

    NYCAP123 Senior Member

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    Emails are used as evidence in U.S. courts all the time. Is it better than a signed contract? No. Is it better than he said/she said? Hell yeah.
  17. K1W1

    K1W1 Senior Member

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    Interesting, I was asking because I have recently been involved in a contract negotiation with a US based supplier and even if we said yes we will proceed they wanted a faxed note confirming this not an e mail with the original to follow by courier.
  18. olderboater

    olderboater Senior Member

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    Either:

    a) Supplier is old fashioned and behind the times

    or

    b) Supplier recognizes the ability to alter any digital form of communication including email histories.

    Probably a bit of both. While the email can subsequently be altered, the copy received can't be. And hard copies can be altered as well. Email is continuing to replace faxing, especially now that most people can scan and then email. Scanned gives the advantage of actually having a signature rather than an electronic one. The only reason to want an original to follow by courier is to have further assurance of a real signature, although that's a bit an illusion as if one was going to forge a signature on a fax, they would have done so on the original as well and unless you have one to match it to, then you'd never know.

    Not just emails are becoming very frequent as evidence in court, in personal court battles, text messages are as well. People forget sometimes that along the way they texted "I'll pay you what I owe you when I can" and then later claim they never owed anything.

    We do not use faxes anymore and don't have a fax machine. Even when someone faxes us, it is converted to a pdf file and we're notified by email. Now to have the preserved history does mean I must have emails well backed up and/or printed. I remember the resistance years ago when we got rid of typewriters. Now it's fax machines. What next?

    One caution on emails and faxes. Always require verification it was received if it's a contract.
  19. NYCAP123

    NYCAP123 Senior Member

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    Sounds like he wanted a signature, although that can be handled with the right computer program which are often used by the government. My home program (or me) aren't capable of that. So if I needed a signature I'd also ask for a fax. Technoloriies are rapidly changing, and the courts are trying to catch up. The legal standards for contracts can be very different depending what it is. Nothing beats a signed, witnessed and notorized signature, and that's required in most morgages and such, but he said/she said is fine in small claims court. Depending on how complex the document and the amout of money involved the standard of proof needed will vary. Situations like the OP's are generally not done in writing. It's more likely to be just a conversation saying here's what I want you to do and here's what I'll pay you. Such should always be followed up with an email. If they respond confirming, all the better.
    A few years ago I was asked to lend a large (for me) sum of money to an attorney friend. It was very awkward, and I couldn't ask him to sign a formal note. If I handed him cash, good luck to me. So I gave him a check with "loan" marked in the memo. Good. When I got home I sent him an informal email that confirmed the loan. Better. He responded, confirming the loan and thanking me. Much better. I was adequately protected for the situation. Meanwhile, when I bought my home it was a sitdown with witnesses, signed and notorized contracts.
    Since contracts are construed against the author, it's up to them to decide how much protection they need.
  20. olderboater

    olderboater Senior Member

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    Real estate falls in it's own separate world. Verbal agreements are not binding, only written ones. In most other areas, verbal agreements are valid and binding. The only problem is proving the agreement. And if there doesn't appear to have been a meeting of the minds (parties perceive it differently), then there is no contract. Email, fax, signed correspondence are only methods to show the agreement in an undisputed manner. It memorializes the agreement.

    Now in the case of an international contract, one gets potentially into laws of multiple jurisdictions so covering all bases may be more complicated. Actually, in the US we get into this between states. Many states were very slow in allowing digital records to be used in court.

    But this has changed. In 2000, the Electronic Signatures in Global and National Commerce Act (E-sign Act) was passed in the US.

    a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

    States also have adopted the Uniform Electronic Transactions Act (48 states and the other 2 have similar laws).

    The EU has a Signature Directive but it has different categories and the term "Qualified Electronic Signatures." So the issue is that signatures valid in the US may not be in other countries.

    Now as to electronic communication. It was often excluded as "hearsay" evidence since it wasn't the original and could be altered. However, a change in US law was made in 1995 which stated that hearsay evidence cannot be automatically excluded. Still in a criminal case it likely will be but in a civil case more often allowed in. The entire issue on anything electronic is that it can be altered. Still this is all evolving. Tax returns in the US are signed electronically and submitted electronically.