View from the bridge: Prevent incidents and protect owners against liability

Owners, captains and managers have a duty of care to protect their staff on board vessels.

Several incidents in the past couple of years have focused attention on the employer’s duty of care, writes captain Iain Flockhart. I am writing this to raise awareness of avoidable accidents and incidents and to help owners protect themselves against liability by  checking that their managers and captains are taking all reasonable measures.

Listed below are some of the tragic incidents which happened aboard superyachts. After this, I will share some simple tips that will help prevent things going wrong in the first place and, potentially, help mitigate liability thereafter.

• A female crew member was recently awarded $70m in damages after being raped by a drunken fellow crew member
• A crew member lost her life while attempting to reboard a yacht after a night out
• A stewardess lost her life when she fell down an internal companionway while drunk after a night out
• Crew member presumably lost at sea after returning to his anchored vessel after a night out
• A junior engineer died after falling into the sea without a lifejacket while working over the side
• Crew member died after falling from the mast
• Suicide onboard.

It is a disturbingly long and tragic list. In the aftermath of any such serious incident, a court will examine whether the employer, directly or through a management company, representative, and/or the captain has been adequately aware of all foreseeable risks. Courts will check that  risks have been assessed appropriately and  that employees have received adequate training. They will also examine whether procedures and policies are in place to ensure the risks are mitigated as much as possible to help prevent incidents from occurring. Additionally, owners and managers are required to demonstrate that they have taken all reasonable measures to ensure the safety of the crew at all times.

Owners, managers and captains could be  more proactive in ensuring that clear policies are in place and that they are properly understood and enforced. That is key to  preventing incidents and accidents and to reducing liability. Any competent master should understand the risks, responsibilities, and the potential financial consequences for the vessel’s owner. However, I know there is not as much awareness as there ought to be, especially among younger inexperienced captains who are becoming  more commonplace.

Alcohol is clearly a major factor

Alcohol is clearly a major factor in many such incidents. I mitigate the risk of both occurrence and potential liability as follows.

I run a dry boat and have done for many years. I have tightened this policy even further in recent years for the protection of myself, my crew and employers. My alcohol policy now states that when crew go ashore and have more than a couple of drinks, they must stay ashore until they are no longer impaired by alcohol.

This may seem harsh, but I’ve seen crew seriously impaired by alcohol after only few drinks: especially females who statistically have fared worse in terms of number of incidents/casualties.

In the rape incident mentioned above, the employer was deemed to have “failed in their duty of care”, which raises additional pointers that should be heeded. I believe that given the size of the vessel and that it only had five or six crew, it’s difficult to fully justify the ruling of failure in duty of care with such substantial punitive damages being awarded. Had the boat been much larger, then the size of the damages would have been easier to understand due to larger number of crew and the expectation that better security and safety measures would have grown somewhat organically.

Potential consequences of negligence

However, an important precedent has now been set. Owners need to be aware of the potential consequences of negligence.

The court found that the victim endured an hour-long ordeal in her cabin and was unable to summon help. There  was no operational means available to her to alert  other crew members to  the attack.

My standing orders  state that crew radios are to be carried and used by ALL crew at ALL times while onboard, with charging points in their cabins so they are ready for immediate use day or night. Various digital radios are also now available with an integrated alert system.

Another common failing that may find owners at risk of liability, is lack of maintenance due to inadequate funding or time. If such a failing is found to have led to a serious incident,  this may constitute a failure in duty of care through negligence. In the rape case mentioned above, the ruling was that the employer “failed to keep the employee safe in her place of work”. A similar finding could easily be applied to an incident resulting from lack of proper maintenance.

Training, maintenance, procedures and policies, and ensuring that they are properly implemented and policed are all critically important for prevention and protection.

The potential financial consequences for owners of failing to ensure their duty of care is fully enacted have now been proven to be serious. Yacht managers and captains could avert the tragedies listed above and  save much time, trouble and ultimately, lots of money, by ensuring they have done everything possible to prevent their occurring in the first place.

Meanwhile, Iain will be taking part in a panel session dedicated to crew safety and development at our London Conference 2020 on February 6th. Read about this session alongside the full conference agenda here.

About the author

Iain Flockhart is a highly-experienced yacht captain with more than 250,000 nautical miles experience in the role of professional captain since 1996. He grew up on sailing vessels but chooses now to work on motor yachts. He enjoys simple pleasures such as using his seven-metre RIB to go exploring and wild camping in his native Scotland. Iain is currently looking for new opportunities to command a superyacht. Contact him at [email protected]

Captain Iain Flockhart runs a dry boat.