Member Article

Captains of private and commercial yachts (and owners) have civil and criminal law duties most of which are concerned with the safe operation of the vessel. As the captain is regarded in law as being the owner’s agent, he is the person unfortunately on the spot. It is the captain who becomes personally liable in the first instance for any fine imposed on the vessel. Owners or charterers have no legal obligation to compensate him even though the offence may have occurred due to their fault. The offending yacht can be detained and the captain imprisoned until the fine is paid or breaches corrected. Port State Control inspect in the UK. Outside the UK, the fate of 69-year old Captain Apostolos Mangouras, detained in Spain and under investigation some 15 months after the sinking of the oil tanker “Prestige” is a sad testimony to the fact that liability is highly personal. Criminal Liability It is the owner, operator, charterer and/or captain who may be prosecuted for a particular breach. The captain is vulnerable because he is on the vessel at the material time and within the territorial jurisdiction. The court considers matters such as pollution, breaches of SOLAS, Safe Manning Regulations, STCW, Hours of Work, harbour rules and indeed the captain could be prosecuted following a collision with the ultimate sanction under UK law of up to two years imprisonment! In the UK, MCA/MAIB may pay you a visit if you are in breach! The owner, master and officer of the watch could all be held accountable but there is a defence if it can be shown that they took all reasonable precautions to avoid committing the offence. The range of fines and sentences depend on the nature of the offence. By way of an example, in 2004 a yacht captain was fined £400 for a minor breach of the collision regulations, whereas another was fined £14,000 for sailing for 14 miles against the flow of traffic in the Dover traffic separation lane! Following the “Herald of Free Enterprise” disaster the company which operated the vessel, was prosecuted under a new criminal offence of corporate manslaughter. Civil Liability Whilst Criminal law is confined to incidents occurring within the territorial boundaries of a state and is constrained by the requirement to bring a defendant before the Court. Civil law proceedings are not so constrained. A claim for damages (compensation) may be initiated in the court of any country that accepts jurisdiction (with caveats). For example a foreign seaman employed and injured on board a UK yacht may pursue a claim in some country other than the UK and not necessarily in his own country. In the UK civil liability for collisions and incidents on board ships are dealt with by the Admiralty Court and general principles of negligence apply. Reasonable care is the watch word and reasonable care has to be taken. This means guarding against all reasonably foreseeable dangers. The buck stops with the captain. The civil court is permitted to take judicial notice of a criminal offence such as breaches of regulations noted above and will do so. A captain or owner has to ensure the health and safety of crew and a breach of this duty could result in a negligence suit with damages awarded against him although insurance policies protect to some extent. On UK flag yachts this is governed by the Code of Safe Working Practices for Merchant Seaman. There are a host of further Regulations governing health and safety, protective equipment, means of access and so forth. Inspectors can come on board, issue improvement or even prohibition notices if there is a serious breach of safety or risk of personal injury. Whilst inspectors have the power prosecute, on the civil law front, be prepared to pay damages if there has been an injury associated with breaches of the law or Codes. The Regulations are really a common sense approach to safety and with safety management (ISM), the risk of accidents should be minimised. The Captain’s Duties The basic duty of the captain involved in an incident is similar to that of someone involved in a car accident. That is to stop, help, save life and report. Whilst it may be preferable to sail away, particularly when some lunatic has clobbered you, a UK flag yacht has a legal duty to render assistance to another in distress. Failure to do so is a criminal offence punishable by fine or two years in prison. The Merchant Shipping Act 1995 stipulates for example that in case of a collision, the captain has a duty to render assistance to the other ship, crew and passengers, so far as he can without endangering his own ship. You must stand by the other vessel until advised that there is no need for further assistance. Each captain must inform the other of the name of his vessel, her port of registry, the ports from which she came and the port where she is bound. It is a criminal offence to fail to comply. SOLAS imposes a duty to respond to a distress call and to make all good speed to the scene of an incident to assist persons in distress. Most captains would do this in any event and the SOLAS provides some protection to owners, who suffer contractually. The captain should, alert the appropriate authorities when he responds. Vessel Safety The ISM Code was developed to provide an international standard for the safety, management and operations of ships and for pollution prevention. It introduced a designated person system whereby one person should have access to the highest levels of management. This means that yacht owners should no longer be able to hide behind a “corporate veil” of ignorance that their yacht was unsafe. It aims to shift responsibility for safety back up the corporate chain and in this respect it is a useful tool to protect the captains. Notwithstanding the above, the captain has a duty to protect his owners’ interests (and his own). Following a collision for example he should advise his owners and managers and involve his insurers/ P&I Club. Just like a car accident, one should not admit liability and would be well advised to serve a formal notice holding the other vessel at fault. As much information as possible should be collected, including photographs, log books, crew statements, print outs (including course recorder and chart) whilst facts are fresh and memories vivid. It is contemporaneous evidence that will be of most use to the solicitors appointed to investigate and establish or defend liability for the incident. In our experience evidence collected too long after the event is often collected with hindsight and becomes defensive rather than objective… If in doubt seek advice… The buck unfortunately stops with you at least in the first instance. This whistle stop tour of the Captain’s responsibilities is not exhaustive by any means but may however provide food for thought. If in doubt seek advice, there any many places to turn not least your Class IV/Master Yachts notes.