Captain Courageous

It is a popular expectation and a folklore tradition on the high seas that the captain of a ship should always go down with it, risking their own life in order to ensure the safety and welfare of their passengers. But in the modern shipping world is this still the case? For family and friends who lost loved ones on the passenger liner, Costa Concordia off the coast of Italy the answer to this question has a significant emotional impact however, it also has complex legal implications due to the myriad of civil and criminal laws that govern this area. In effect there being a tension between moral and legal responsibility.

So what are the responsibilities of the Captain?

The captain is virtually responsible for everything to do with the running of the ship; its crew, passengers and even stowaways that are found. In essence, this is a question that may be more simply answered by asking the question: what is the captain not responsible for?……not much.

When considering the floundering of the Costa Concordia, the ship’s captain would have been responsible for the rescue process from sending mayday signals and sounding the relevant distress warnings through to readying the passengers and crew to disembark. This would include instructing the crew to prepare and man the life rafts and the search for passengers to minimise the loss of life and injury. It appears, according to media reports that Captain Schettino of the Costa Concordia failed in his duty to sound the relevant signals and more importantly warn the passengers at the earliest possible time, if this is true it will certainly be argued by the Italian prosecution as a relevant factor in relation to the question of manslaughter.

The time for a captain to abandon the ship varies depending on the circumstances at the time of the disaster, the ship’s manifest, the laws that regulate the waters through which the ship passes being either international or national. Ignoring circumstances for the moment, the variation in national laws may be seen where under Italian law it’s the captain’s duty to be the last to leave the ship but under American law this is not necessarily the situation. However, from a moral perspective, given the captain’s station, it’s not unreasonable to expect that most would consider their decision a question of pride and there are many examples where the captain has stayed with the ship.

One notable example is the Titanic in 1912. While the Captain, E.J. Smith was criticised for placing the ship in the dilemma in the first place, he fulfilled his moral duty by organising the abandonment of the ship and staying at the helm until he finally met his watery grave. Italian Captain Peiro Caalmari also showed maritime bravery when in 1956 the Andrea Doria, a passenger ship became stricken and while all passengers were rescued the captain refused to leave the ship until the tugs arrived and only then left when his crew refused to leave without their captain.

But not all Captains have shown this moral backbone when in 1991 the Greek Cruise Ship M/V Oceanos started taking on water due to an engine room explosion. The Ship was heading to Cape Town and while all the people on board were rescued the Captain Yiannis Avranas abandoned the ship on the first available helicopter, reportedly stepping ahead of an elderly passenger. In 1965, the Captain of the Yarmouth Castle was guilty of a comparable offence to that alleged of Captain Schettino, being forced to return to the ship by the captain of the Bermuda Star that had come to the rescue of the sinking ship.

In fact the separation between moral and criminal culpability is often blurred with criminal laws being guided by the moral compass. In the Costa Concordia’s case the ship was governed by Italian criminal law as it was passing through this state’s waters. According to Italian law, it is a criminal offence for a captain to fail to remain on his ship in an emergency. Hence, Tuscan authorities moved quickly to arrest Captain Schettino on charges of failing to stay with the ship and that could be as serious as manslaughter. This raises an intriguing question, at what point should the captain abandon the ship? With the threat of criminal punishment and punitive damages, it is a question that boat owners through to the owners of cruise ships and alike should seriously consider.

When does it start to get complicated?

It starts to get complicated when you move beyond what is the captain’s moral responsibility and criminal culpability to civil liability. This tension is no better exemplified than where Italy is signatory to The International Convention for the Safety of Life at Sea (or SOLAS), which requires that the shipowner, or any person who has responsibility over the vessel (the “Company”), establish a safety management system under the International Safety Management (ISM) code. Interestingly, it states that the captain has an “overriding authority and responsibility to make decisions with respect to safety”, and it is the ship owner’s responsibility to set out the captain’s duties and ensure he is “properly qualified for command” however, it does not specify as to whether the captain should stay or go down with the ship. Moving beyond the international conventions of safety, limiting liability then becomes the focus of shipping parties when determining who was in the wrong and who should pay.

In essence civil liability is about payment of compensation for loss of life and injury, which primarily is governed by the contract entered into when the ticket for passage is purchased. As with many contracts of this nature the shipper or charter party limits its liability and it appears according to media accounts that the passenger contracts of the Costa Concordia were no different, limiting the maximum compensation for claims. This limitation is further extended to shippers or charter party’s who’s governments are party to the Hague Visby Rules.

The Rules apply to situations such as that involving the Costa Concordia, where countries are a signature to the Convention. The Rules set out a series of immunities which protect the owner of a vessel from loss or damage arising from certain “perils of the sea”. These perils include any act, neglect or default on the part of the master of the ship, any act of God, loss or damage caused by any inherent defect of the goods being carried, and any other cause arising without the actual fault or knowledge of the owner or an agent or servant of the owner. These immunities will protect the owner in respect of claims made in contract or tort, however a ship’s captain may still be liable under the common law tort of negligence. Therefore, where the blame lies is not only a question of who pays but also who assumes responsibility. The tort of negligence requires that the captain has a duty of care over all passengers on the ship; a duty to minimise loss of life and injury. If the court finds a breach of this duty, it will result in the payment of compensation to the injured party or a family member.

What does this mean for boat owners?

The Costa Concordia ship disaster has taught us that, above all, boat owners and captains have a responsibility to ensure the safety and welfare of their passengers at all times and especially in the event of an emergency. This does not imply that the captain must go down with the ship, but rather must do everything in their power in order exercise control over the vessel. In essence, they have the overriding authority and responsibility to make decisions with respect to safety. Additionally, boat owners must also ensure that the captain of their vessel is properly qualified for command. The following check list may assist you in checking that safety is up to scratch:-

  1. Is there an Emergency Plan for the vessel? Have passengers been made aware of emergency procedure before embarking.
  2. Does the ship have an up to date manifest that covers all areas of the vessel, its crew and officers?
  3. Are fully serviced safety devices (such as life rafts, life jackets, flares, radios, etc.) in place and readily accessible?
  4. Captains must be aware of safety standards such as ensuring that maximum capacity of person/s for the vessel is not exceeded.
  5. Boat owners should also ensure that their captains are properly qualified, most importantly, that they are the holder of a boating or the relevant licence.
  6. Ensure that emergency radio instruments are in place (such as mobile phones, radios, EPIRB, etc.) in order to contact the authorities.

In the modern shipping world the question as whether a captain should go down with the ship is really answered by who is responsible and liable to pay compensation. In respect to the Costa Concordia, it would appear the shipping company is trying to sheet the blame on the captain. But either way for those who lost love ones whether the compensation paid is enough can only be answered by each individual, especially if those payments are limited. And if the captain is sentenced to a prison sentence will that be enough to satisfy the grief felt. While, ultimately the captain is fully responsible for the ship and all who sail aboard her. The ship’s owners are also responsible and can be found equally liable. The lesson for all mariners of the sea regardless of the size of vessel they sail is that the safety of crew and passengers is paramount and it’s up to all captains to ensure that the requisite guide lines are followed. For a derelict captain faced with the reality of prison due to manslaughter they may have wished they had gone down with the ship.