Safety

Are Captains Legally Required to be the Last One off the Vessel?

22 September 2022By Kate Lardy
Costa Concordia
iStock/dvoevnore

Written by

Kate Lardy

Based in Fort Lauderdale, freelance writer Kate Lardy got her start in the yachting industry working as crew. She spent five years cruising the Bahamas, Caribbean, New England, and Central America, then segued that experience into a career in marine journalism, which has included stints as editor of Dockwalk and ShowBoats International.

“Vada a bordo, cazzo!” or “Get on board, dammit!”

It’s a line that became famous in Italy following the Costa Concordia disaster when the official transcript of a conversation between a Coast Guard commander and the ship’s commander, Francesco Schettino, were made public. The phone call was recorded about four hours after the cruise ship came to rest on a headland after hitting a rock off the Giglio coast, which caused it to partially capsize. Twenty-seven passengers and five crew perished.

The Coast Guard official clearly couldn’t hide his anger and frustration with the captain, who left his stricken vessel before the passengers were evacuated and refused to re-board it, despite the Coast Guard order. In court, Schettino gave an odd explanation of the ship turning and he falling into a lifeboat. And the transcript shows him hemming and hawing about the darkness and the lifeboat not moving, not giving the impression of a captain who was doing everything he could to save the passengers. It’s hard to know exactly what he was thinking or what the situation on the ground was, but the fact that he left and never re-boarded the ship made it easy for him to be vilified in the public’s eye.

Call it lore, call it maritime tradition, or, as The Guardian newspaper did, “the ancient code of the sea,” but are captains legally required to be the last one off the vessel?

It’s now been a decade since the accident and he is paying the price, serving a 16-year jail sentence, which includes one year for abandoning his passengers.

The incident begs the question: does the captain always go down with the ship?

There are many examples of such, from the Titanic to a sinking in Broward County, Florida, a few years ago when, after evacuating the crew, the captain decided to re-board his clearly foundering vessel to see if anything could be done; it rolled when he and the chief engineer were on board and they did not make it out.

Call it lore, call it maritime tradition, or, as The Guardian newspaper did, “the ancient code of the sea,” but are captains legally required to be the last one off the vessel?

Yes and no, for every country has its own laws. In Italy, a captain can face up to two years in prison for not leaving last. But it’s not a requirement under UK and U.S. law.

“In English law, there is no law which states that the master must be the last to leave a ship in peril,” says lawyer Benjamin Maltby, partner at Keystone Law in London.

However, that comes with a big caveat: “All masters are employees of the owner. All employees owe a duty to their employer to exercise reasonable care in performing their duties. The owner, in turn, has a duty to take reasonable care of the health and safety of all its employees. In practice, the owner’s health and safety duties are outsourced to the yacht’s manager (if any) and master. So, if a situation arose where the captain was considering abandoning the vessel, it is likely that other crewmembers’ safety has also been compromised. If those crewmembers are injured or killed, then the claim could be passed on to the captain.

“For this reason, it’s not just a matter of honor that the captain is the last to leave a sinking yacht: it’s his duty as an employee in the role of master and he’ll be personally liable if he fails in this duty,” says Maltby.

His liability doesn’t end there. “He will also, of course, be liable to the owner where the captain’s negligence leads to the vessel being damaged or lost — and also further liable in respect of lost charter payments where charters are interrupted or canceled.”

In Italy, a captain can face up to two years in prison for not leaving last. But it’s not a requirement under UK and U.S. law.

Indeed, after an accident, all eyes will be on the captain. “There is absolutely no hard-and-fast rule that requires the captain to go down with the ship,” says Michael Moore, a U.S. maritime attorney at Moore & Company in Coral Gables, Florida. “But I think that, inevitably, the captain will often go down with the ship metaphorically because everything that is said about the sinking is going to be looked at with 20/20 hindsight, and his behavior is going to be the test of whether the vessel is liable and so forth: what did he do that was appropriate, what did he do that was wrong, all this kind of stuff.”

There is some latitude in this scrutiny, explains Moore. “Your duties are always in light of the circumstances as they present themselves at that time, not in retrospect, but at that time, and you’re actually given broad latitude in making mistakes because you’re in extremis. The standard of behavior is actually lowered; your decision-making is not going to be as good as it would be if it’s just an everyday sort of thing.

“The way these captains get into trouble is a lot of times it comes out that they haven’t practiced their drills. They haven’t done what they should have been doing as captains and this becomes their negligence. It was completely foreseeable in the event of an emergency that neither they nor the crew would be organized enough to get off the ship in the proper fashion,” Moore says.

He points out that during an emergency, a captain’s job would be to check that the crew have performed their duties. Since the captain has oversight over everyone on board, they naturally would be the last person off the vessel.

“The end result [might be] he went down with the ship,” Moore says. “But he didn’t exactly plan it that way. He was really doing what his duties required him to do…unlike Schettino, who just bailed.”

This article originally ran in the May 2022 issue of Dockwalk.

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