Bread and Water

by Nicholas Walsh, PA

Until 2019, the commander of a ship in the United States Navy had the authority to order a lower ranking enlisted sailor (E-3 and below) confined to the brig on a diet of bread and water, for up to three days. The punishment had to follow a “captain’s mast”, known to the services as non-judicial punishment, which is a sort of minimal due process hearing in which the accused has an opportunity to state his case. A medical officer certified that the punishment would not harm the sailor. The amount of bread and water offered was to be unlimited, and it was to be served at regular meal times.

Although the punishment was rare it was hardly unknown. Just a few years ago one Pacific Fleet ship became known as the “U.S.S. Bread and Water”, because her captain seemed overly fond of the punishment.

Strange as it may seem, in the merchant fleet the authority of a master to impose bread and water continues, including aboard fishing boats. At Section 11501, Title 46 of the United States Code states “for continued willful disobedience to a lawful command or continued willful neglect of duty at sea” the master may confine the seaman, “on water and 1,000 calories, with full rations every 5th day, until the disobedience ends.” There are additional provisions allowing for forfeiture of pay.

This law applies to all US. seamen, including commercial fishermen. Elsewhere in Title 46, the term “seamen” is held to exclude a short list of persons who may be on board (scientific personnel, sailing school instructors, sailing school students), but that’s it. In short, the master of a fishing boat may enforce his or her orders by use of this provision.

The law is particular in requiring that a log entry detailing the infraction and the punishment be made, that the entry be read to the offender and a copy given to him, that his reply be logged, and that the chief mate or another sailor sign the entry, with the master. (The procedure itself is known in the merchant shipping world as a “logging.”) There are other requirements. If you ever find yourself in the position of invoking this law, heed every requirement.

As I have observed time and again in this column, over the millennia the sea has not changed, ships and seafaring remain in their essence unchanged, and that for those reasons the law of the sea is at its heart equally unchanged, century after century and millennium after millennium. The law of maritime liens and of seaman’s personal injury are examples, and so is the federal law allowing a master to impose discipline on a sailor by confining him with a diet of bread and water.

From time to time land-law tries to force its way on board ship in contravention of maritime custom and law. The attempt is generally repelled. For example, federal law provides that if an employer wants to interview a union employee concerning possible wrongdoing, the employee must, if he or she wishes, be allowed a union representative at the interview. Several courts have examined whether the labor law requires that a seaman undergoing a logging must be allowed a union representative. Here’s what one court had to say:

“During the course of a voyage the normal employer-employee relationship is suspended. In a sense the captain is a representative of the employer. But his predominant role at sea is that of master of the ship. He is charged with responsibility for the safety of ship, cargo and crew. To discharge this responsibility Congress has seen fit to give him authority to maintain strict discipline. We know that some activities protected under the National Labor Relations Act in the ordinary industrial setting, e.g., a strike to protest what is conceded to be an unfair labor practice by the employer, are not protected and can even constitute the crime of mutiny when they occur aboard a ship away from its home port.”

That’s right, mutiny! The offense still exists and is occasionally charged. The law reads “Whoever, being of the crew of a vessel of the United States . . . endeavors to make a revolt or mutiny on board such vessel, or combines, conspires, or confederates with any other person on board to make such revolt or mutiny, or solicits, incites, or stirs up any other of the crew to disobey or resist the lawful orders of the master or other officer of such vessel, or to refuse or neglect his proper duty on board thereof, or to betray his proper trust, or assembles with others in a tumultuous and mutinous manner, or makes a riot on board thereof, or unlawfully confines the master or other commanding officer thereof, shall be fined under this title or imprisoned not more than five years, or both.”

Stay out of trouble.

Nicholas Walsh is an admiralty lawyer practicing in Portland. He may be reached at 772-2191, or nwalsh@gwi.net.