Emergencies bring out the best in people. Everyonewants to do the right thing and help others. But what if you hinder rather thanhelp? What if you act with more speed than accuracy? What if you don’t listenproperly to coordinating authorities? Are you obliged to help — and will you beliable if things go wrong?
Of course, in an emergency situation, the legalconsequences of what you’re doing will be the last thing on your mind. But aswith all critical decisions and actions, there will be pre-existing rights, responsibilitiesand legal consequences. The death of Janet Richardson in late April 2011, was agrim 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 fortransfer ashore when she was dropped into icy waters.
As a captain or crewmember, your actions are governedby the law of the vessel’s flag state. If you’re in international waters (normallymore than 12 nautical miles out to sea), these will be the only laws to thinkabout. If you’re within 12 miles, however, there’ll be port state regulationsto consider, too.
The laws of all countries differ, but one theme isconsistent. Whereas on land there’s usually no obligation to help someone indistress, at sea you normally must take reasonable steps to assist. This isenshrined in numerous international treaties. The United Nations Convention onthe Law of the Sea and the Salvage Convention both require captains to helponly “so far as he can do so without serious danger to [his own ship]”, while SOLASstates that there is no need to help where the captain “considers itunreasonable or unnecessary to proceed to their assistance”. What’s deemed areasonable or unreasonable level of assistance is simply a question of facts ineach case.
There are times to think about legal consequences andthere are times to act. The laws of many countries, therefore, make volunteerrescuers immune from negligence suits. The last thing the law wants to do is tomake captains have to think twice before attempting a rescue.
Where a salvage contract has been agreed — even inhaste and perhaps over VHF — the rescuer is no longer a volunteer andwill owe the casualty vessel and the crew a duty of care. More than that, therescuer also will owe contractual duties, which must be fulfilled to theletter. It’s vital to make sure that captains have procedures in place so thatthey know whether they are authorized to engage in salvage if the owner cannotbe contacted, and, if so, on what terms. Such plans must be compatible withemployment contracts. All crewmembers should be entitled to a payout in theevent of successful salvage operation.
Finally, it’s sometimes forgotten that casualties alsoowe rescuers a duty of care, as long as it’sforeseeable that rescuers may try to intervene. So there’s all the more thereason to make sure that your own vessel’s safety systems and equipment are upto scratch.
Benjamin Maltby is Principal Consultant at matrixLloyd™,the world’s leading superyacht consultancy. The firm provides advice andassistance on all aspects of the purchase and management of new-build andexisting superyachts. Contact Benjamin Maltby at post@lawyer.com.