Rescue and Responsibility

Jun 21st 11
By Benjamin Maltby

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 each case.

 

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 to scratch.

 

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 post@lawyer.com.



Tags: Essentials Legal 



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