In terms of the administrative law, disposal right refers to the administrative subject's power to arrange and deal with the specific affairs according to law. As for the emergency disposal right, it is a special administrative power beyond the conventional boundaries of law, which involves the protection of rights, interests, orders and other elements. In the exercise of this specific power, efficiency, justice, freedom and other values are included. From its content, this kind of right has dual characteristics. The first one is the right performed by the law enforcers. The second one is the duty restraining people's behavior.
In the maritime law system, the captain's emergency disposal right has unique characteristics. Due to the special functions of ships (especially the international sailing ships) and the special environment, the captain is generally endowed with a wide range of powers, some of which are not possessed by other people. These two aspects, private law and public law, embody a captain's power and duty. In emergency situations, the captain can exercise the emergency disposal right to deal with the incident and the property in terms of the duty in public law. In a long time, people are often used to holding a narrow view of the captain's power, the power of dealing with the affairs of ships, cargoes, sea accidents and marine pollution from the maritime transport law. However, the recent outbreak of coronavirus on Diamond Princess and World Dream has forced us to consider more seriously on how the captain should exercise such power in such a situation of emergency outbreak onboard. It is well known that ships, especially passenger carriers and international cruise ships, have relatively smaller internal spaces and more intensive human activities compared with on-land spaces. Moreover, in a long route with many ports of call, once an epidemic occurs onboard, the competent authorities of the ports will prohibit the personnel on board from going ashore according to the health law. In this situation, the measures taken by the captain are crucial to control the epidemic. Hence, we should re-examine the captain's duty from a broader perspective.
1. Legal basis for the captain to exercise the emergency disposal right.
From the aspects of the laws, regulations and administrative rules, the captain has the disposal right due to his administrative functions. Details are as follows.
Law aspect: Article 35 of Chinese Maritime Code stipulates that the captain is responsible for the ship management and navigation, while the crew, passengers and other personnel onboard must carry out the order issued by the captain within his scope of power. For a long time, people have been used to understanding the definition of this power from the technical level, and regard it as the technical management of the ship and the navigation affairs. However, in the current situation, this kind of explanation seems to be partial. During the ship's voyage, the relevant authorities can't manage the whole ship, while the captain, the top leader of a ship, should take the responsibility of managing all the affairs onboard including epidemic control. In other words, the captain has to make orders and instructions to epidemic prevention and control routine onboard.
Regulation aspect: Regulations of the people's Republic of China on Seafarers (hereinafter referred to as the Regulations) have made more specific provisions on the captain's power. Article 24 of the Regulations stipulates that:" According to the new situations that may arise under modern navigation conditions, the captain shall have independent decision-making rights and ultimate responsibility for the safety of persons and property, the ship security and the pollution prevention on maritime affairs”. From the perspective of the textual meaning, this article extends the responsibility of the captain to ensure the maritime safety. In this sense, maritime accidents should not be limited to the narrow scope of transport accidents such as ship collision, grounding, hitting rocks, etc., but should include all incidents that endanger the safety of personnel and property onboard (including the epidemic outbreak). Therefore, according to the Regulations, the captain has the disposal rights to deal with all incidents that endanger life and health of people on board.
Administrative rules aspect: China's Ministry of Communications and Ministry of Health jointly issued the Traffic Emergency Provisions of the People's Republic of China on Public Health Incidents (hereinafter referred to as the Provisions) in 2004 in response to the impact of SARS outbreak on China's economic and social life. The Provisions are formulated in accordance with the Law of the People's Republic of China on the Prevention and Treatment of Infection Diseases, Measures for the Implementation of Law of the People's Republic of China on the Prevention and Treatment of Infection Diseases, Regulation on the Urgent Handling of Public Health Emergencies and Regulations on Domestic Communications Health Quarantine. The first article of this Provisions clearly points out the purpose of formulating this normative regulation, namely to effectively prevent, timely control and eliminate the hazards of sudden public health events, prevent the epidemic of major infectious diseases from spreading through vehicles, ships and their passengers and goods, ensure the health and life safety of passengers, ensure the timely transportation of emergency materials for sudden public health events and maintain normal social order. The Provisions also provide specific explanations on special terms such as "sudden public health events", "outbreak of major infectious diseases", "traffic health quarantine" and "quarantine of infectious patients", define the ships to which the regulations apply (including passenger carriers, cargo ships and passenger ferries engaged in water transportation activities), and specify the measures that the captain should take while dealing with public health events onboard. By studying the structure and content of the Provisions, we can see that the significance of formulating this regulation. It not only expands the captain's responsibilities on the basis of the traditional concept, but also enables the captain to have rules to follow when carrying out his duties.
In brief, with the emergence of new situations in the maritime industry, the captain's disposal right has been expanded and embodied, which includes conventional maritime affairs management, pollution prevention and public health emergency treatment onboard.
2. Specific requirements for the captain to exercise the emergency disposal right.
According to article 26 of the Provisions, when the captain finds infected patients, suspect infected patients, patients who should take emergency control measures according to the regulations of the health administrative department under the State Council, or close contact people, the captain should exercise the disposal rights. Under the above circumstances, he shall organize relevant personnel to take the following temporary measures according to law:
1)Firstly, the forward port of call should be notified as quickly as possible. Secondly, the captain should report to the owner or the operator of the vessel and the departure passenger terminal (if the patient were found on a passenger transport vessels or cruise ships), thereby enabling the forward port of call and departure port to take full quarantine measures against persons in contact with the vessel.
2)Emergency medical treatment and temporary isolation measures for relevant personnel onboard or on land should be carried out.
3)The contaminated or potentially contaminated area onboard shall be sealed off and the discharge of dirt to the water, port area and outside of the ship shall be prohibited.
4)The captain should navigate the ship quickly to the port and place designated by port authority and health and quarantine department and ask the passengers to fill out the passenger health declaration card, then submit it to the transport administrative department of the local government at or above the county level, together with the list of passengers.
5)Corresponding medical treatment should be carried out according to the requirements or arrangements of the health and quarantine department.
3. The relationship between the captain's emergency disposal right and the policing right.
The policing right refers to the power granted by law to maintain public order within a specific scope. According to the police law, the duty of maintaining public security only belongs to the police. However, due to the limitation of objective conditions, it is impossible for the state to extend the police force onboard (especially on cargo ships). When a ship is sailing on the sea, the police can't exercise effective jurisdiction and control over the cases onboard, so the responsibility of maintaining public security on the ship naturally falls on the captain's shoulders. However, the captain is not a police officer after all and his actions to maintain public order must be authorized by law. Therefore, article 36 of Chinese Maritime Code and article 24 of the Regulations stipulate that the captain has the right to take confinement or other necessary measures against those who commit illegal activities onboard to prevent them from hiding, destroying or falsifying evidence in order to ensure the safety of the personnel on board and the ship. From the traditional concept, people's understanding of illegal and criminal activities is basically limited to the category of perpetrator's illegal invasion of other people or their property. However, judging from the battle against SARS epidemic in 2003 and the ongoing COVID-19 epidemic, it seems that the illegal or criminal activities should include the activities interfering with the epidemic prevention and control. When an epidemic occurs onboard, like to those engaged in illegal activities, the captain shall take confinement or other necessary measures for those who refuse to obey the captain's orders of carrying out the isolation, disinfection, and other medical measures, which may result in the spread of the epidemic.
4. The captain's emergency disposal right during sailing.
Though endowed with some power in public law, the captain is, after all, a servant of the ship-owner legally. Therefore, he has to follow the orders and commands of the ship-owner during the sailing. In order to avoid the inconsistency between the law and the captain's execution of the ship-owner's order, the Regulations stipulate that the captain has the right to refuse to execute the illegal order issued by the employer or the ship-owner under two circumstances: The first one is when the order may endanger the safety of the persons, property and the ship (see article 24 of the Regulations). Considering the current situation in the fight against the epidemic, if the ship-owner orders the captain to carry the cargo with the virus, the captain has completely right to refuse. The second one is when the ship is ordered to sail to the epidemic area without the consent of the crew. In such a case, not only does the captain have the right to refuse to execute the order, but also does the crew have the right to request for leaving (see article 31 of the Regulations). Besides, the captain shall promptly convey the crew's reasonable claim to the ship-owner or the employer.
Conclusion
It is more difficult to prevent and control the epidemic on ship than on land. It is not only because of the small space and limited facilities onboard, but also because for ships engaged in international navigation, its prevention and control measures are subject to the laws of the country where the port is located, and even involve issues of international law. Therefore, the measures taken by the captain must obey the relevant law. As a result, it is necessary to popularize the law and educate the captain and the crew to master the connotation of the relevant legal system, so that they can't go beyond the law to exercise their power and don't have to worry about the limitation of their own power while taking measures, so as to delay the best time-window of epidemic prevention and control.