Emergencies bring out the best in people. Everyone
wants to do the right thing and help others. But what if you hinder rather than
help? What if you act with more speed than accuracy? What if you don’t listen
properly to coordinating authorities? Are you obliged to help — and will you be
liable if things go wrong?
Of course, in an emergency situation, the legal
consequences of what you’re doing will be the last thing on your mind. But as
with all critical decisions and actions, there will be pre-existing rights, responsibilities
and legal consequences. The death of Janet Richardson in late April 2011, was a
grim demonstration of how a simple procedure can go wrong. Having fallen ill,
Mrs. Richardson was being transferred from a cruise ship to a small rescue craft for
transfer ashore when she was dropped into icy waters.
As a captain or crewmember, your actions are governed
by the law of the vessel’s flag state. If you’re in international waters (normally
more than 12 nautical miles out to sea), these will be the only laws to think
about. If you’re within 12 miles, however, there’ll be port state regulations
to consider, too.
The laws of all countries differ, but one theme is
consistent. Whereas on land there’s usually no obligation to help someone in
distress, at sea you normally must take reasonable steps to assist. This is
enshrined in numerous international treaties. The United Nations Convention on
the Law of the Sea and the Salvage Convention both require captains to help
only “so far as he can do so without serious danger to [his own ship]”, while SOLAS
states that there is no need to help where the captain “considers it
unreasonable or unnecessary to proceed to their assistance”. What’s deemed a
reasonable or unreasonable level of assistance is simply a question of facts in
There are times to think about legal consequences and
there are times to act. The laws of many countries, therefore, make volunteer
rescuers immune from negligence suits. The last thing the law wants to do is to
make captains have to think twice before attempting a rescue.
Where a salvage contract has been agreed — even in
haste and perhaps over VHF — the rescuer is no longer a volunteer and
will owe the casualty vessel and the crew a duty of care. More than that, the
rescuer also will owe contractual duties, which must be fulfilled to the
letter. It’s vital to make sure that captains have procedures in place so that
they know whether they are authorized to engage in salvage if the owner cannot
be contacted, and, if so, on what terms. Such plans must be compatible with
employment contracts. All crewmembers should be entitled to a payout in the
event of successful salvage operation.
Finally, it’s sometimes forgotten that casualties also
owe rescuers a duty of care, as long as it’s
foreseeable that rescuers may try to intervene. So there’s all the more the
reason to make sure that your own vessel’s safety systems and equipment are up
Benjamin Maltby is Principal Consultant at matrixLloyd™,
the world’s leading superyacht consultancy. The firm provides advice and
assistance on all aspects of the purchase and management of new-build and
existing superyachts. Contact Benjamin Maltby at email@example.com.