In a recent Forum post, Dockwalk.com member rrsails asked the question: “What accidents should yachts report? Who to? When?”
The duty to report an accident depends on two sets of laws: the country in which the yacht is registered (the “flag state”) and the country in whose territorial waters the yacht is in when the accident happens – if any – (the “port state”).
Here, we’ll look by way of example at the United Kingdom flag and port states, as the model is followed by other Red Ensign and non-Red Ensign states. Relevant laws are the Merchant Shipping Act 1995 and the Merchant Shipping (Accident Reporting and Investigation) Regulations 2005. The UK’s Maritime & Coastguard Agency has made a useful summary of these in Marine Guidance Note (MGN) 289.
When a reportable “accident” takes place, the captain (or senior surviving officer if the captain is dead or incapacitated) must send an initial report to the Marine Accident Investigation Branch (MAIB) as soon as is practicable and by the quickest means available. The owner (or manager responsible) must make sure that the captain or senior surviving officer has reported the accident, or report it him or herself. The report must include all the details listed in Annex C of MGN 289. There’s a useful reporting form, and copies of MGN 289 and relevant Regulations, on the MAIB’s website at www.maib.gov.uk.
As far as is “reasonably practicable,” the captain must ensure that the circumstances of every accident are examined and make a follow-up report. The owner (or manager) or captain must also provide the MAIB with a report when asked to do so – stating the findings of examinations carried out, and all measures taken or proposed to prevent a recurrence.
“Accident” in this scenario has a wide but particular definition, which is set out in Annex B of MGN 289. Notably, “major injuries” are accidents and have be reported right away, while “serious injuries” are not “accidents” as such (!) but still need to be reported within 14 days.
Following a reportable accident, the captain or next surviving officer and the owner (or manager) must – so far as it is practicable to do so – ensure that all charts, log books, recording equipment and all other pertinent documents are kept and that no alteration is made to any recordings or entries.
There is no duty to report when an accident, serious injury or death occurs to a shore-based worker if this occurs in a port or shipyard in the United Kingdom, but note that the employer must still report these to the UK’s Health and Safety Executive (HSE) – a kind of MAIB for land-based incidents.
Remember that the MAIB’s role is only to investigate accidents in order to prevent future similar accidents. It’s not there to apportion liability or blame, although some element of inferred blame may be inevitable. Neither does it prosecute anyone.
It’s important to understand that the duty to report is on the captain, manager and owner. These parties therefore need to make sure that all crewmembers are obliged to report all incidents matching the statutory requirements. This is most easily done through the captain’s standing orders and the International Safety Management (ISM) Code or Large Yacht (LY2) Safety Management System.
Benjamin Maltby is a lawyer with Palma-based consultants MatrixLloyd, providing impartial guidance on all aspects of yacht employment. Contact him at email@example.com.
In Harm's Way (31/07/2009)