Safety

Who is Liable in Maritime Accidents?

26 August 2021By Kate Lardy
iStock/Rattankun Thongbun

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.

When a maritime accident causes serious injury or death, a captain and other ship officers can be held liable, not only for damages in civil court, but also in criminal court.

In one of California’s deadliest maritime incidents, 33 passengers and one crewmember perished when the 75-foot dive boat Conception went up in flames in the middle of the night. Her captain is currently facing 34 counts of manslaughter in U.S. federal court.

On the other side of the country, a captain is serving 33 months in prison for reversing the engines of a 91-foot beached motor yacht in Miami while two charter guests were in the water, which killed one guest who was caught in the props.

In Southampton, a RIB driver was sent to jail for four months after hitting an unlit navigational buoy at 33 knots in the darkness of night, seriously injuring five of the six passengers.

In Lorient, France, a 2015 Vendée Globe skipper received a six-month suspended sentence and €25,000 fine after his trimaran struck a RIB on the way to the start line, which resulted in the amputation of a woman’s leg.

When a maritime accident causes serious injury or death, a captain and other ship officers can be held liable, not only for damages in civil court, but also in criminal court. “When a case gets into the criminal arena, it’s usually because there are so many things that went wrong or there’s such an indifference to protecting lives and safety, that the authorities feel compelled to prosecute,” says U.S. maritime attorney James Stroup of Stroup & Martin, P.A. in Fort Lauderdale, Florida.

Each jurisdiction has its own criminal laws, but, as these examples from around the world show, the result can be the same: imprisonment.

In the first two cases, the captains were indicted under Title 18, Section 1115 of the United States Code, called “Misconduct or Neglect of Ship Officers” and commonly known as the Seaman’s Manslaughter Statute. Born in the steamboat era in the 19th century, it requires a lesser degree of negligence than common law manslaughter in order to convict. For common law manslaughter, mens rea(a mental state of gross negligence or heat of passion in absence of malice) must be proven beyond a reasonable doubt, while a seaman’s manslaughter conviction can come from proving simple negligence, which can be a breach of duty.

When a maritime accident causes serious injury or death, a captain and other ship officers can be held liable, not only for damages in civil court, but also in criminal court.

“Courts have long held — for more than 150 years — that ‘[a]ny degree of negligence is sufficient to meet the culpability threshold,’” write attorneys Philip H. Hilder and Paul L. Creech in Seaman’s Manslaughter: The Criminalization of Death by Negligence.

Prosecutors in the Conception dive boat case cited three safety violations: failing to have a night watch; failing to conduct sufficient crew training; and failing to conduct sufficient fire drills. In the case of the Miami yacht that backed down on a guest, the breach of duty was not accounting for all the charter guests before engaging the engines. It was also proven in court that the captain had been using cocaine heavily during his tenure running the yacht.

In the UK, it doesn’t even take a death or injury to invoke criminal law. “Throughout most Commonwealth countries, a captain is personally responsible in law for compliance with all kinds of safety regulations. Even if no one is killed or injured, if the yacht is simply dangerously unsafe, the master can face a fine of up to £50,000 and/or up to two years in jail,” says Benjamin Maltby, partner with Keystone Law in London.

“While the punishments for lesser breaches of safety regulations can be relatively trivial, matters take a different turn should anyone be injured or killed,” Maltby says. “Where a death has been caused by an unlawful act, the master will be guilty of manslaughter if any reasonable person would recognize that act as exposing someone to the risk of harm.”

It takes even less to hold a captain accountable in U.S. civil court than criminal, just a “preponderance of the evidence” as opposed to the “beyond a reasonable doubt” of the criminal statutes, explains Stroup. “When the injured party or the party that loses personal property decides that it is someone’s fault and then they sue, what they sue for is negligence. That’s the civil remedy that says they owed a duty to protect me or my property, or not damage me or my property, they breached that duty and I have an injury and I want them to pay for my damages. Essentially, those are the elements of a negligence cause of action that would have to be proven in a civil court to the standard of a preponderance of the evidence.”

It’s not so different in Commonwealth countries. Under English civil law, Maltby says, “The master will be personally liable to pay damages to anyone injured or to the estate of anyone killed as a result of the master’s negligence or misconduct. The master is also answerable personally to the yacht’s owner for any damage caused to, or loss of, the vessel where such damage or loss is caused by the master’s negligence or misconduct, or where the master acted without the owner’s express or implied authority.

“Negligence is the failure to exercise such care as the circumstances demand,” Maltby continues. “What amounts to negligence depends on the facts of each particular case. It may be failing to do something which ought to have been done, or doing something which should have been done differently or not at all.”

In the end, it seems the only time a maritime accident is considered just an accident with no liability is, as Stroup says, “when all the parties involved can see that it’s an accident and no one should bear responsibility.”

This column is taken from the March 2021 issue of Dockwalk.

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