Life and Death: What's Your Liability?

Feb 4th 10
By Andrew Mescolotto

You are the first mate on board a busy charter yacht on the eighth day of a two-week Caribbean charter. So far it has been uneventful. After breakfast, the captain assigns you and a deckhand to take four members of the group on a snorkeling excursion. You are in command of the tender. Avery, the deckhand, helps the guests with their equipment and then helps them into the water. You have followed the yacht’s procedures: the dive flag is flying, each guest is wearing a snorkeling vest, a recovery line is deployed astern and you are maintaining a watch for boat traffic.

Suddenly, you hear screaming from the water. The wife is yelling, something is wrong with her husband. He looks like he is struggling and having a difficult time staying afloat. You maneuver the tender toward the husband. Avery takes a buoy and dives into the water, but struggles to swim back to the tender with the guest. One of the other guests assists with the rescue.

With much effort, you manage to pull the distressed guest onto the deck of the tender. Something is wrong, he is not breathing. Avery starts CPR. You recover the other guests and race back to the yacht. The guest is still not responding. The captain is waiting with the ship’s AED. The machine shocks the guest repeatedly. Nothing works. After minutes that seem like hours, the captain stops CPR and turns off the AED. Your guest has died. There is talk of him having a heart attack, but nothing is certain.

That evening you cannot sleep. You go over everything in your mind. The captain said that you did everything right, “by the book,” were his exact words. You can’t help but wonder, "If I had done something differently, would this man still be alive?" Suddenly, you break out in a cold sweat thinking, "Could I be sued for this?"

The short answer is that you could very well become part of a lawsuit related to this incident. The mere fact that your rescue attempt was ultimately unsuccessful could be the basis for a suit claiming negligence. The good news is that you, as a crewmember, likely are not the deep pocket that the plaintiff is looking to for a recovery. If a lawsuit is filed, it will be against the owner and the yacht.

Speaking generally, marine protection and indemnity insurance considers paid crewmembers acting in service of the yacht as insured persons under the vessel’s policy. In the event of a lawsuit, stemming from the events above, the yacht’s insurer will appoint maritime counsel to defend the claim and by extension defend you as a member of the crew.

In order to recover in that lawsuit, and assuming suit is filed in U.S. Court, the plaintiff must prove the traditional elements of a negligence claim in admiralty: (1) the existence of a duty of care owed; (2) breach of that duty; (3) proximate causation and (4) injury or damages.

As a member of the yacht’s crew, you owe a specific duty of care to your guests. It is a well settled principle of maritime law that a shipowner (and crew) owe a duty of exercising reasonable care toward those lawfully aboard the vessel.

In a rescue situation, this duty of care compels you to use your best efforts to assist a guest in distress. In the situation above, standing by and taking no action would be seen as breach of the duty of care owed to your guests. It is important to remember that your conduct will be measured against the actions of a reasonable person acting under like circumstances. This duty of care would not require you to put yourself in grave danger, such as jumping in the water during a shark attack. It would require you to provide the best assistance possible under the circumstances.

Crewmembers frequently ask about Good Samaritan laws and whether they provide a defense in a suit brought by an injured guest against a crew member involved in a rescue. In most cases the answer is no. Good Samaritan laws only apply in rescue situations where no duty is owed to the person in distress. In the above situation, the guest who assisted with the rescue may be able to utilize a Good Samaritan defense.

It should be noted that crew may utilize the Good Samaritan defense when engaged in the rescue of persons who are not their guests, such as persons aboard a sinking yacht encountered at sea. In a Good Samaritan situation, a rescuer would be held liable only (1) for negligent conduct that worsens the position of the victim or (2) for reckless and wanton conduct in performing the rescue.

The article is for informational purposes only. Please consult a maritime attorney with your specific questions as each situation turns on its own set of facts.

Andrew Mescolotto is a maritime attorney at the law firm of Fertig & Gramling in Fort Lauderdale. He can be reached via email at anm@fertig.com or at 954-763.5020.

Related Topics:

When Sharks Attack

Sudden Death

Top Two Onboard Medical Emergencies

 






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5 Comments
  • Why not highlight a case with negligence ? Not long ago on Dockwalk a case was recounted of a yacht owner who jumped into the yachts tender intoxicated and had an accident. Questions were asked about any crew liability for allowing the owner to operate the tender. It would be much more informative to have a lawyer speak about this case. Or scenarios in which the yachts crew allows quests to go ashore unaccompanied into an area of known high crime. Or liability cases involving Legionnaires' infection from polluted yacht air conditioning duct work. Very few yachts sterilze the air handling systems. These are real and right before our eyes.
    As for training crew . You try...but Easier said than done. Normally you perform book standard maneuvers and teach crew the simplest solution "A" procedure over and over. The problem is that you as captain know a half dozen different variations of the same maneuver. You may never teach your crew these techniques . Have you ever taught a deckhand how to handle a runaway winch ? or let the anchor run in a gale ? Probably not because its dramatic and you seldom put yourself into that situation....but you never know. And when it does come time to performing a non standard maneuver crew will be working, untrained, unsupervised and out of sight. When you snag your anchor in the harbour, will you send a crew down to clear it or call a pro ? When your bow thruster picks up a plastic sheet and is disabled will you send your crew into the tender to act as push boat to clear the berth. Untrained, out of your sight... its dangerous... Liability ?
    Posted by junior_1 09/02/2010 13:27:30

  • I thought it was well written and accurate. In this situation as stated, there were no apparent negligent acts. Just because one does everything correctly in a situation does not guaranty a positive outcome, nor does it prevent a suit from being filed. I find the example quite on track because it shows what is in fact a common occurrence of death, especially in diving, where no one does anything wrong, there is no negligence, yet one finds oneself named in a suit.

    Junior, in regards to the situations you mention, the answer is "quite possibly". If you order an unqualified and untrained person into harms way and they die, yeah, you're in a jackpot. If you haven't trained the stew on line handling and she loses her hand, yes you hold liability. The question becomes, "How much training is enough?" and that is something that gets settled in court.
    Posted by Henning_1 09/02/2010 03:52:15

  • When considering negligence I'm most worried about my liability towards crew, not guests. . In the above case.... the deckhand dove in to rescue the disabled swimmer. You used the term DECKHAND not lifeguard or rescue swimmer. If this ordinary STCW95 deckhand drowns during the rescue, would I as captain be negligent for authorizing a non rescue swimmer to jump into the sea? When I send a crew of unknown skill up the mast at sea and something goes wrong...AM I negligent ? When I authorize a stewardess, non deck crew,to handle a spring line as we work off the dock, she looses control of the dockline and has her fingers pulled thru the bollard , am I negligent for allowing this crew to be in harms way ? Perhaps you would help us all by explaining this type of negligence.
    Posted by junior_1 08/02/2010 10:09:37

  • YOU ARE ONLY NEGLIGENT IF YOU ACT IN A NEGLIGENT MANNER. IN THE CASE DESCRIBED ABOVE, ACTION WAS TAKEN TO REVIVE A PATIENT WHO APPARENTLY DIED FROM A HEART ATTACK. YOU ARE NOT ABLE TO PREVENT ANOTHER HUMAN BEING FROM SUFFERING FROM MEDICAL CONDITIONS SUCH AS THESE...YOUR EXAMPLE IS A LITTLE OFF TRACK ETC...
    Posted by GuyEngineer 06/02/2010 12:13:03

  • I fail to understand this article. Can you please sight an example of a negligence lawsuit brought against a yacht for a situation similar to what you describe.

    Please clarify
    (1) the existence of a duty of care owed; (2) breach of that duty;
    I know of no yacht which advertises that they carry a full CPR ,Emergency First responder , Paramedic Crew. I know of no yacht which advertises, medical facilities or AED. If these services are not offered how can negligence be brought before a court. I fail to understand your example.
    Posted by junior_1 04/02/2010 17:24:11

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