When disaster strikes, who is liable and what protections are truly in place for the crew?
August was a rough month for yachts in the Med. In one week alone, three made headlines for all the wrong reasons. Flames engulfed 154ft Atina, which sunk off Sardinia; two days later an intense storm in Formentera washed ashore 100ft Wally Love, which was left lying on her side; and just two days after that 86ft Manta hit a reef and sank in Corsica with 11 people requiring rescue.
The worst worst-case scenario, though, was the sinking of Bayesian. One minute the 184ft sailing yacht was secure at anchor in northern Sicily, and a few minutes later, she lay on her side on the bottom, 160ft below the surface. Accounts tell of a violent, unforeseen weather event, the yacht listing 45 degrees and then suddenly being knocked on her side, crew and guests getting thrown in the water. The yacht’s chef, the owner, the owner’s daughter and four guests perished.
When anything goes awry on board, the captain and crew are put under a spotlight, and the Bayesian sinking, in particular, highlights the serious liability issues. During an August 24 press conference, chief prosecutor Ambrogio Cartosio said, “For me, it is probable that offences were committed — that it could be a case of manslaughter.” The captain, the crew member on anchor watch and the chief engineer are under investigation for manslaughter and negligent shipwreck, although no charges have been filed.
“The trauma to the crew plus the agonizing wait to have their names cleared will make many superyacht sailboat crew wonder if it’s worth it,” says one sailing yacht engineer who prefers to remain anonymous.
“Liability and takeaway lessons certainly are circulating,” says Captain Jonathan Kline. “Do skippers and chief engineers need to carry their own liability insurance, over and above what the vessel’s P&I [Protection and Indemnity] policy affords? Should we seek legal advice to interpret the fine print on these policies — i.e. what protections are in place if criminal liability is raised? Are we under the umbrella or left out in the cold? Certainly rising chief officers will be wanting to learn more about this area of yacht administration before stepping into the hot seat.”
Those in the “hot seat” carry all the responsibility. In the eyes of the law, the buck always stops with the captain. “Seaworthiness is a non-delegable duty,” explains maritime attorney Michael Moore of Moore & Co in South Florida, speaking generally about liability and not specifically about the Bayesian case.
“Who would be the one trying to delegate it? The answer would be the captain. They are in charge,” he continues. “They’re the one that walks around and says, ‘Hey, pick up that oily rag, somebody’s going to slip on that. That door is dangerous because the hinge is defective’ or something like that. They’re the one that is ultimately charged with noticing these things, even though crew members down the line are going to be more directly involved in keeping things squared away. So at the end of the day, it’s the captain who gets in trouble.”
Exactly how much trouble may depend on the jurisdiction. In common law countries, such as the US and UK, convictions are based on legal precedent and interpretation of written law, giving some leeway. In civil law countries, such as Italy, it’s what is written down in codes and statutes. It’s more black and white and perhaps easier to convict.
Captains and crew aren’t left high and dry though. All yachts carry liability insurance for bodily injury and property damage (P&I) — they can’t get into marinas and ports or employ crew without it — and this insurance protects captains and crew when they are carrying out their duties, explains Nancy Poppe, the North American yacht practice leader for WTW Marine Superyachts. She notes that every marine insurance policy can be different, but generally speaking, this is true for P&I insurance from one of the reputable yacht underwriters.
She doesn’t recommend that captains obtain a separate liability policy for themselves. “Insurance policies have ‘other insurance’ clauses, so you might find yourself without protection, or at least limited in the protection of the yacht’s larger-limit P&I policy which you otherwise could have had, if your policy has to come first,” Nancy says.
Jonathan’s question about criminal liability protection is more difficult to answer as, Nancy points out, there can be a lot of variables. “By virtue of using the word ‘criminal’ doesn’t mean that you’re not covered, but drilling into the specific situation would be required.”
For every yachting catastrophe, there is a flag state investigation. Eventually reports will be published for each of these August incidents, bringing valuable lessons for fellow captains and crew — those who were lucky enough not to be in the wrong place at the wrong time.