A recent forum discussion on swimmer safety (“Ahoy Captains!”) raised some interesting issues, namely whether captains can legally demand that crewmembers place themselves into potentially dangerous situations.
First, it’s important to note that all actions undertaken by anyone on board will be governed by the law of the country where the yacht is registered – known as the flag state law – and the law of the country in whose waters the yacht is moored or cruising – the port state law. Only the former will apply when the yacht is in international waters. So the following is only a rough guide as to what the situation would be on board Red Ensign yachts – ignoring port state laws.
The short answer to the question is that captains cannot order any crewmember to do anything that would breach the captain’s, or the employer’s or manager’s, duty of care towards that crewmember. Which means we need to understand these duties a little better….
When it comes to crew safety, employers and managers bear the heaviest burden of responsibility. The captain may be responsible as a manager, especially where there is no shoreside management, and particularly where (although increasingly rare nowadays) the captain is also the crewmembers’ employer. Captains, of course, have a general duty of care towards everyone on board. But what is often overlooked is that they may have an express or implied contractual duty to ensure that their employer is not exposed to unnecessary liability through the captain’s failure to implement the employer’s or manager’s safety policies and/or systems. As the employer’s ultimate duties are not delegable, the employer may well look to the captain for compensation where the captain’s failures have led to liability on the part of the employer.
As a matter of law, every employer owes a duty to take “reasonable care” to ensure the health and safety of its employees. This is pretty much as far as the law goes on the matter. So, it is very difficult to say, before someone is actually injured – or worse – whether this duty is being breached or not – unless a similar situation has occurred in the past. A court can only say that the duty has been breached, following an accident and a claim, if the crewmember proves that:
- The injury was caused by the breach
- It was reasonably foreseeable that injury would result from the breach
- The crewmember has suffered loss as a result
For guidance, the court may to look at, for example, the UK Marine & Coastguard Agency’s Code of Safe Working Practices for Seamen (copies must be carried on board all chartered yachts). It’s likely that on commercial and private yachts alike, it will be used as a detailed standard as to what the courts should regard as safe working practice. Another guide would be the ISM Code Safety Management System – in waters where one is in force.
As for the crewmembers’ own duties, he or she must perform any or all of the services expressed in his or her contract of employment, unless to do so would be illegal or unreasonably dangerous. Implicitly, crewmembers must also perform services other than those specified in his or her contract of employment, where these are “reasonably incidental to a seafaring life.” In the context of commercial ships, this has included assisting with cargo – so it’s reasonable to assume this would extend to assisting guests on a yacht. And while handling cargo can carry huge risks, so too does the crewmember undertaking swimming lifeguard duties in the forum discussion. If the crewmember is a qualified lifeguard, then it is reasonable to assume that he or she is capable of undertaking lifesaving duties safely.
If a crewmember is dismissed for leaving a situation where he or she believed there was serious and imminent danger that could not reasonably be avoided, such dismissal will automatically be unfair.
Incidentally, the law requires every employer, unless exempt, to insure against liability for bodily injury or disease sustained by his employees in the course of their employment, and to maintain this insurance, and to keep the certificate of insurance displayed to the crewmembers (unless the owner has cover with a P&I Club).
Benjamin Maltby is a lawyer with Palma-based consultants MatrixLloyd, providing impartial guidance on all aspects of yacht employment. He began his career as a lawyer with an International Group P&I Club. Contact him at info@matrixlloyd.com.