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Life and Death: What's Your Liability?

4 February 2010By Andrew Mescolotto

You are the first mate on board a busy charter yacht on the eighth day of a two-week Caribbean charter. So far it has been uneventful. After breakfast, the captain assigns you and a deckhand to take four members of the group on a snorkeling excursion. You are in command of the tender. Avery, the deckhand, helps the guests with their equipment and then helps them into the water. You have followed the yacht’s procedures: the dive flag is flying, each guest is wearing a snorkeling vest, a recovery line is deployed astern and you are maintaining a watch for boat traffic.

Suddenly, you hear screaming from the water. The wife is yelling, something is wrong with her husband. He looks like he is struggling and having a difficult time staying afloat. You maneuver the tender toward the husband. Avery takes a buoy and dives into the water, but struggles to swim back to the tender with the guest. One of the other guests assists with the rescue.

With much effort, you manage to pull the distressed guest onto the deck of the tender. Something is wrong, he is not breathing. Avery starts CPR. You recover the other guests and race back to the yacht. The guest is still not responding. The captain is waiting with the ship’s AED. The machine shocks the guest repeatedly. Nothing works. After minutes that seem like hours, the captain stops CPR and turns off the AED. Your guest has died. There is talk of him having a heart attack, but nothing is certain.

That evening you cannot sleep. You go over everything in your mind. The captain said that you did everything right, “by the book,” were his exact words. You can’t help but wonder, "If I had done something differently, would this man still be alive?" Suddenly, you break out in a cold sweat thinking, "Could I be sued for this?"

The short answer is that you could very well become part of a lawsuit related to this incident. The mere fact that your rescue attempt was ultimately unsuccessful could be the basis for a suit claiming negligence. The good news is that you, as a crewmember, likely are not the deep pocket that the plaintiff is looking to for a recovery. If a lawsuit is filed, it will be against the owner and the yacht.

Speaking generally, marine protection and indemnity insurance considers paid crewmembers acting in service of the yacht as insured persons under the vessel’s policy. In the event of a lawsuit, stemming from the events above, the yacht’s insurer will appoint maritime counsel to defend the claim and by extension defend you as a member of the crew.

In order to recover in that lawsuit, and assuming suit is filed in U.S. Court, the plaintiff must prove the traditional elements of a negligence claim in admiralty: (1) the existence of a duty of care owed; (2) breach of that duty; (3) proximate causation and (4) injury or damages.

As a member of the yacht’s crew, you owe a specific duty of care to your guests. It is a well settled principle of maritime law that a shipowner (and crew) owe a duty of exercising reasonable care toward those lawfully aboard the vessel.

In a rescue situation, this duty of care compels you to use your best efforts to assist a guest in distress. In the situation above, standing by and taking no action would be seen as breach of the duty of care owed to your guests. It is important to remember that your conduct will be measured against the actions of a reasonable person acting under like circumstances. This duty of care would not require you to put yourself in grave danger, such as jumping in the water during a shark attack. It would require you to provide the best assistance possible under the circumstances.

Crewmembers frequently ask about Good Samaritan laws and whether they provide a defense in a suit brought by an injured guest against a crew member involved in a rescue. In most cases the answer is no. Good Samaritan laws only apply in rescue situations where no duty is owed to the person in distress. In the above situation, the guest who assisted with the rescue may be able to utilize a Good Samaritan defense.

It should be noted that crew may utilize the Good Samaritan defense when engaged in the rescue of persons who are not their guests, such as persons aboard a sinking yacht encountered at sea. In a Good Samaritan situation, a rescuer would be held liable only (1) for negligent conduct that worsens the position of the victim or (2) for reckless and wanton conduct in performing the rescue.

The article is for informational purposes only. Please consult a maritime attorney with your specific questions as each situation turns on its own set of facts.

Andrew Mescolotto is a maritime attorney at the law firm of Fertig & Gramling in Fort Lauderdale. He can be reached via email at anm@fertig.com or at 954-763.5020.

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