Crimes Against Order And Discipline On Board Of Ships

CRIMES AGAINST ORDER AND DISCIPLINE ON BOARD OF SHIPS

SARKIS IONICA

Faculty of Law and Administration, “Ovidius” University of Constanta, Officer of the court – Constanta, Romania

ABSTRACT

Taking into account the efforts made by Romania to integrate into the European Union structures, the transition to a market economy, benefiting from the support of the international organizations in the field, our Government has initiated the creation of drafts bills for carrying out shipments in normal conditions and aligning the Romanian legislation to the European one.

So, there have been adopted a series of laws that served for creating a climate of safety in civil navigation, such as the Ordinance no. 42/1997 on civil navigation amended by the Law no. 412/2002 and Ordinance no. 48/2003, the Decision no. 245/2003 for the approval of the Regulation of implementing the Government Ordinance on naval transport, the Decision no. 441/1995 for establishing and setting the appropriate punishments for the offences regarding the infringements of the rules of transportation on the national navigable waters and ports.

Keywords: naval laws, naval transport, safety of the vessel, naval offences, civil navigation.

1. INTRODUCTION

The offense of refusing to carry out an order regarding the official duties for the safety of navigation and of the vessel is regulated by the lawmaker as actionable negligence offence in article 23 paragraph 1 of the Law no. 191/2003, and as aggravated offence in article 23 paragraph 2 of the same law. In article 23 paragraph 1 is stipulated the actionable negligence form of the offense, namely: the refusal to execute an order regarding the official duties for the safety of navigation and of the ship.

The offense has as its special legal object the social relations on the discipline and order on board, involving the just and timely execution of orders of the superior officers regarding the official duties. This offense is a version of the offense of abuse of office against public interests stipulated in article 248 of the Criminal Code and is similar (The action of a public employee, who during the exercise of his duties, and being aware of his/her actions, does not comply with or improperly observe his/her duties and thus he/she causes a significant disturbance to the proper management of a state authority or institution or of any unit that is stipulated in article 15 or it causes a damage to its patrimony, shall be punished with imprisonment from 6 months to 5 years), almost identical with the insubordination offence, namely its basic version, as it is provided in article 334, paragraph 1 of the Criminal Code (The refusal to execute an order regarding the official duties is punishable by imprisonment from 6 months to 2 years. This type of offence has no material object).

The refusal to execute an order can be committed by any criminally liable person whose his/hers job duties concern safety of the ship and of navigation, so the active subject of this offence is a qualified subject (who can be a person that is part of the crew or who is responsible for its safety while dry docking). If the active subject of this offence is the master of the ship, the offense is more serious, according to paragraph 2 of the article 23. The passive subject is the State as holder of the protected social value (safety of the ship and / or of navigation).

As regarding the objective side of the offence, there should be a prerequisite condition consisting in giving an order. To be executed, the order must be received from a supervisor or a person vested by law with the right to give such orders or to be received from an appropriate authority and it must concern the necessity to take measures for the safety of navigation and must have a legal content and a legal form (it must be issued in compliance with the legal provisions)[1]. When the order is issued in violation of the law or if it is issued by an incompetent person or authority, it shall not generate the obligation of execution; therefore, the refusal to execute such an order shall not constitute an offence because no one can be held accountable for having refused the execution of an order which is against the legal provisions[2].

To fulfil the objective aspect of the offense, the order must relate to the official duties of the crew of a ship or of a person responsible for the safety of navigation while dry docking; otherwise this action is not an offence.

The provisions of the order must relate to the safety of the ship and of navigation or otherwise this action does not represent such an offence.

The offense is generated by the refusal to execute an order concerning official duties. The refusal means the action of not accepting something, not consenting to something, not wanting to do something. The order means a provision given by an authority or by an official person to other authority or to other person to be executed exactly as it is given. The refusal to execute the received order shall not constitute a more serious offense[3], this offense having an alternative character, namely that it will be taken into account only if the action does not contain the elements of a more serious offense (for example, the offense stipulated in article 10 of the Law no. 191/2003).

We are not facing such an offense if the perpetrator previously refused to execute the order, but who carries it out in due time or if the given order, which has not been executed, has been withdrawn or if such an order is impossible to be carried out[4].

Execution of the order after its deadline is a mitigating circumstance which shall be taken into account while individualizing the punishment.

If several operations provided in the same order have not been executed, we are in the presence of a single offense, but if the perpetrator repeatedly refuses executing two or more orders given by the same authority or by different authorities, even if they refer to the same event, then we face a recurrent offense or real multiple offences if there are several criminal intentions[5].

The immediate result is the state of a real danger against the safety of the ship and of navigation. As the offense creates a state of danger, it is not necessary to prove the causal relation, this relation resulting from the substantially of the facts. The offence is committed with direct or indirect intention. The perpetrator is aware of the issued order made and although he/she could and should carry it out, he/she does not do it, pursuing or accepting the immediate result of the offence.

The attempt is not possible. The offense is instantly consumed when perpetrator, although being aware of the order given, refuses to execute it, thus being generated the dangerous consequence of the action. Taking part in this kind of crimes can mean abetment and complicity.

The refusal to execute an order on concerning the official duties regarding the safety of the ship and of navigation is punishable by imprisonment from 3 months to 2 years.

Pursuant to paragraph 2 of article 23 of the Law no. 191/2003, the offence is more serious if the action is committed by the master of the ship. The aggravated offense relates to the subject of the offence, which must be the master. If the one who refuses to execute an order concerning the official duties regarding the safety of navigation or of the ship is the master we are in the presence of an aggravated offense because the master must do everything possible to sail and take the ship safely[6] to the port of its destination. The aggravated form of the offense is punishable by imprisonment from 6 months to 3 years.

2. THE OFFENSE OF COMMON ASSAULT OF A SUPERVISOR BY A LOWER RANK CREW

The common assault offense of a supervisor by a lower rank crew member is regulated by the lawmaker pursuant to the provisions of the article 24 paragraph 1 of the Law no. 191/2003, namely its basic version and the aggravated forms are stipulated in the same article in paragraphs 2 and 3. This offense is a special form of the common assault criminal offence, stipulated in article 180 paragraph 1 of the Criminal Code and they resemble the offense of common assault or insulting a supervisor stipulated in article 335 paragraph 1 of the Criminal Code. Common assault or any violent actions causing physical pain are punished by imprisonment from one month to three months or by fine.

Thus, whenever the constitutive elements of the two different offences are observed there is no circumstance of multiple crimes but rather a cumulation of different legal provisions, in such being applicable the special legal provision, pursuant to the Latin adage specialia generalibus derogant.

The offense has as special legal object, namely the social relationships concerning the discipline and order on board involving a respectful and dignified attitude towards the supervisors.

The offense also has a secondary legal object consisting in the social relationships that protect the persons against violence which causes physical injuries, such offences are produced by inflicting violence.

In article 24 paragraph 1 is stipulated the basic form of the offense, "common assault of a supervisor by a lower rank crew member ". The offense always has a material object the body of the victim. The offense of common assault of a supervisor by a lower rank crew member can be committed only by a crew member (a criminally liable person) who has a lower rank than the injured party; thus we are in the presence of a qualified active subject.

According to article 32 of the Ordinance no. 42/1997 amended by Law no. 412/2002, in terms of hierarchy, the crew is divided as it follows: master; first officer; deck officers; chief engineer; engineer officers; other officers; certified personal: boatswain , fitter, helmsman, boat master, machinist's mate, electrician, pump man, fireman, motorman, sailor; supporting staff. The main passive subject is the state, and the secondary passive subject is a crew member who has a higher rank than that of the perpetrator, and thus secondary passive subject is also a qualified subject.

In its aggravated form the secondary passive subject must be master or him to be exercising his job duties.

Although the incriminating legal provisions do not specifically refer to the place of the offence, the doctrine refers to it as being the shipboard[7].

For the existence of objective aspect of the offence there must be committed an act of violence; the violence must be carried out on board of the civilian ship or in connection with an activity on board of the civilian ship; the violence must take place between the crew members of the same ship. In terms of the objective aspect, the offense is achieved by committing violent actions against a crew member by another lower rank crew member. Hitting a person means carrying out any kind of violence on the body of a person causing physical suffering to that person without causing injuries requiring medical care for healing.

The violence may be due to physical energy of the perpetrator (by direct application of a hit which can be applied with the palm, with the fist, with a hard object etc., the law making no indication to this effect) or due to other forces which he can generate (e.g. pitting a dog to bite the supervisor, oiling the stairs on which the victim slips and injures himself etc.); thus the violence can be the direct result of the action of the perpetrator or the indirect consequence of his actions (as in the second example)[8].

Also, the action may be committed, and using psychological means (e.g. the perpetrator can scare its supervisor in order to determine him to fall and injure himself), not only material means. The material element of the offense can be achieved both by an action but also by an omission even if the offense is a comissive crime (e.g. when the perpetrator, although having the obligation to warn his superiors not to enter into a room, not perform a specific action, intentional breach his obligation, so that his supervisor to undergo that injury).

The violence has to inflict physical suffering to the victim. These sufferings are presumed because the violence cannot be inflicted without physical suffering.

If the offense produces physical injuries or damages the health and the victim requires medical care for healing more than 20 days (period which is stipulated in article 180 paragraph 2 of the Criminal Code) or any of the consequences provided by article 182 of the Criminal Code or the victim's death, we are dealing with ideal type of multiple offences common assault against a supervisor by a lower rank crew member and, if applicable, with the offense provided by articles 181, 182 or 183 of the Criminal Code.

If the crew members have equal ranks, the criminal action shall not constitute the offense stipulated in article 24 of the Law no. 191/2003, but it refers to the offense provided in article 180 of the Criminal Code as the essential requirements of law are not met, namely the different ranks of the crew members.

Having two secondary legal objects the offense generates two dangerous consequences: a state of danger for the discipline and order on board and the physical suffering caused to the victim. This last result sets conditions for the danger created to the state of discipline and order on board. If the suffering inflicted upon the victim refer to moral sufferings, the constitutive elements of the crime are not observed (as there is missing the result required by law). Therefore, although material, the result is assumed, not being necessary to establish and prove its existence (any blow can cause physical suffering).

The causal link between the violent action and the outcome is obvious and it is assumed at the direct infliction of violence and it must be proved only when exercising indirect violence. The offense is committed with direct or indirect intent. At the time the offense has been committed, the perpetrator must have been aware that the person on which violence have been inflicted is his supervisor. If the perpetrator was confused about the position of the victim the criminal liability shall be determined according to article 180 of the Criminal Code (imprisonment from one month to three months or a fine for the basic version of the offence or imprisonment from 3 months to 2 years or a fine for the aggravated version).

Attempt is possible for this type of crime, but the law does not punish it. The offense is carried out after creating physical suffering to the victim. Criminal participation is possible in the form of abetment and complicity.

Regarding the extrapolation of the offence of common assault or insulting a supervisor provided by article 335 of the Criminal Code the association for committing a crime is not possible. The idea that I shall always support is that, in general, it can be determined with certainty which of the participants produced each of the result of their actions, so each will answer for their actions as authors.

The battery of the supervisor by a lower rank crew member is punishable by imprisonment from 3 months up to 2 years or by fining.

According to paragraph 2 of the article 24 of the Law no.191 / 2003 the offence is more serious if the action is committed against the ship's master[9].

The aggravated form refers to the passive subject of the crime who must be the master. It is only normal to have an aggravated form of the offence if the one against whom the criminal action is directed is the master, as he is the one who represents the authority on board of the ship. The aggravated form of the offense is punishable by imprisonment from 6 months to 2 years.

Pursuant to article 24 paragraph 3 of the Law no. 191/2003 the battery of a supervisor by a lower rank crew member is more serious if the master is actually performing his job duties; Performing the job duties means exercising a profession, occupation, position. According to these conditions the criminal action has a higher degree of social danger. This represents an aggravating form of the aggravating form first provided by the article 24 paragraph 2.

For the existence of this form the place where the offence takes places is irrelevant, it is essential that the passive subject to be in the line of duty, and the perpetrator to be aware or to could have been aware that the passive subject was performing his duties, thus according to article 28 paragraph 2 of the Criminal Code – "the circumstances that refers to the criminal action are reflecting on the participants only if they were aware of them or could have foreseen them." The aggravating form is punishable by imprisonment from 6 months to 3 years.

3. THE OFFENCE OF COOMON ASSAULT ON A LOWER RANK CREW MEMBER BY A SUPERVISOR

The offense of common assault on a lower rank crew member by a supervisor is regulated by the Law no. 191/2003 in article 24 paragraph 4 for the basic version, as the law does not stipulate any aggravating circumstances for this offense.

This offense is also a variant of the offence of common assault or other type of violence provided by article 180 paragraph 1 of the Criminal Code and is very similar to the offence of battery or insulting of a supervisor stipulated in article 336 paragraph 1 of the Criminal Code. The common assault or other type of violence causing suffering shall be punished with imprisonment from one month to three months or by fine. Battery of the lower rank crew member by a supervisor or by the hierarchical manager is punishable by imprisonment from one month to one year.

As in the case of the previous offense, the provisions of the law shall be applied if the constitutive elements of the two offenses are met.

The offense has as special juridical subject the social relationships regarding the order and discipline on board of the ships which exclude the use of any means of humiliating the lower rank crew member by a supervisor.

The secondary legal object is the social relationships concerning the health or the physical condition of the person. In the interest of maintaining the discipline and order on board, the lawmaker stipulated in article 24 paragraph 4 the “common assault of a crew member by another crew member”.

The offense always has as material object the body of the person that was assaulted, a lower rank crew member[10].

The offense of assault of a lower rank crew member by a supervisor can only be committed by a higher rank crew member (with criminal liability) than the injured party; so we have a qualified active subject.

The main passive subject is the state, and the secondary passive subject is the crew member who has a lower rank than that of the perpetrator, and therefore the secondary passive subject is also a qualified subject.

The material element of the objective aspect of the offence is achieved by the battery of a crew member by another higher rank crew member.

If a supervisor assaults in the very same circumstances (time, place, etc.) several lower rank crew members, there will be a real multiple offence according to how many people were assaulted, and not a single recurrent offence because there are created as many criminal law juridical relation as many individuals have been harmed. If among the assaulted people there are both supervisors and lower rank crew members there will be no real multiple crimes among the criminal offences mentioned in article 23 paragraph 1 and article 24 paragraph 4 of the Law no. 191/2003.

If the offense is repeated in different circumstances (time, place) there is a recurrent offense (which runs out at the last committed act of violence) or there is real multiple crime, as there are one or more criminal intentions.

The offense is committed with direct or indirect intent. It is also necessary the offender to be aware of the lower rank of the assaulted crew member. If the perpetrator was mistook the rank of the victim, the criminal liability will be determined according to the provisions of article 180 of the Criminal Code.

When the offense is committed by fault there can be another type of crime (namely the one provided by article 184 – deliberate bodily injuries, or article 178 – manslaughter of the Criminal Code, as appropriate).

In the case of this offence, the law does not punish the attempt of committing the crime. The crime is completed when the supervisor hits the lower rank crew member. Criminal participation is possible in the form of abetment and complicity in committing the offence.

The assault of the lower rank member crew by a supervisor shall be punished by imprisonment from one month up to 1 year. The law does not provide any aggravating circumstances for this crime.

4. ILLUSTRATING EXAMPLE

In this case we mention that the indictment 1 / PMF / 1996 of the Prosecutor's Office attached to Constanta Tribunal was used to open the trial against the defendant Vasile Grosu for the offense provided by the article 119 of the Decree no. 443/1972. The defendant, an officer on the ship named Lapus, was charged with assaulting without reason Mr Crintea Daniel, a lower rank crew member on the same ship. Pursuant to the Criminal sentence no. 34 / MF / 1998 pronounced by Constanta County Court in the case no. 13 / MF / 1996, the defendant was sentenced to six months imprisonment[11].

5. CONCLUSIONS

After analysing the legislation on punishing the offences on board of the ships it can be concluded that the Romanian judicial practice in maritime law is poor as there are no specialized courts of law to operate courts autonomous with a material legal competence, which would mean that people could appear before them in case of dispute.

Due to the current legislative deficiencies, in most of the case the contracting parties enter into the charter agreements or transportation agreements a clause stating that in case of any dispute the jurisdiction for solving these cases is of a foreign court.

It is therefore correct to state that the legal provisions regarding these legal matters are poor and need improvement.

6. REFERENCES

[1] CAPATANA, O., The commercial transportation agreement, Lumina Lex Publishing House, 1995

[2] UNGUREANU, A., CIOPRAGA, A., Legal provisions against the offences stipulated by Romanian special laws (reviewed and annotated with jurisprudence and doctrine case), Lumina Lex Publishing House, 1996

[3] STOICA, O. A., Civil navigation offenses, 1976

[4] DONGOROZ, V., KAHANE, S., OANCEA, I., FODOR, I., BULAI, C., ILIESCU, N., STANOIU, R., ROSCA, V., Theoretical explanations of the Romanian Criminal Code, Special Part, Academy Publishing House, 1971

[5] CHIRICA, D., Civil law – special contracts, Lumina Lex Publishing House, 1997

[6] OANCEA, I., Treaty of criminal law – general part, Academy Publishing House, 1994

[7] ALEXANDRESCU, A., ONAC, D. C., ALEXANDRESCU, C., Maritime and river navigation specific offenses, Publishing House of "Andrei Saguna" Foundation, 2000

[8] ALEXANDRESCU, A., Legal liability in maritime collision, CN APM S.A. Publishing House, 2002

[9] Collection of bills (31.03-30.06.1990), Tome II, Ministry of Justice, 1990

[10] MITRACHE, C., Criminal Law – General Part, Bucharest University Press, 1995

[11] Maritime Jurisprudence Gazette, 1st year, no. 111 999, Ex Ponto Publishing House, 2000.