A Skipper's Responsibilities - RYA Legal

[alant]

Following on from the recent discussion regarding HL etc, I contacted RYA Legal Dept & asked them for some input


"Hi,
There are many, who are following the 'Liquid Vortex' trial with interest, with a variety of postings/opinions on boating website forums.

Because this obviously involves a "commercial" vessel, with all its implications, many leisure sailors assume that they are exempt from the responsibilities that a 'commercially endorsed' Skipper would have to satisfy.

Could you please advise, other than Solas & Marpol, what the legal responsibilities are for a leisure Skipper, particularly in regard to any crew (by crew, one assumes non fee paying, but could involve family members & also cost sharing friends). Also, should an accident occur to any crew member (even loss of life), what are the repercussions. Does the leisure vessel owner, if aboard automatically become 'Skipper' for legal arguments?

Thanks
AlanT"


RYA Legal Reply -

"Below is general advice on the duty which you may owe crew members and/or guests aboard your vessel:

In the absence of, and at times in addition to, contractual relations between those on board a vessel, the skipper/owner of the vessel will owe a duty of care towards the crew and guests on board. Broadly speaking you must take “reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour. In this instance your “neighbour” being crew and guests aboard your vessel and “reasonable care” in this context is a question of fact to be determined by the court.

In the event of a breach of an owed duty of care, the ordinary standard being one of “reasonable care,” you may be liable if damage is incurred as a result of your breach of duty and provided there was no intervening event which broke the chain of causation.

I also attach an RYA link which outlines the regulations which govern pleasure craft users, which includes COLREGS, SOLAS V, MARPOL, manning and equipment regulations:

http://www.rya.org.uk/infoadvice/regssafety/pleasurecraftregs/Pages/PleasureCraftRegulations.aspx

Kind regards
Joanna Welch
Legal Advisor
Royal Yachting Association
T: 02380 604225 | E: legal.advisor@rya.org.uk
RYA House, Ensign Way, Hamble, Southampton, Hampshire, SO31 4YA
www.rya.org.uk T: 02380 604100 F: 02380 604299

 

[Cardo]

I wonder if the liability is civil or criminal, though? If civil, then I would hope any third party/personal injury insurance held for the boat would cover any claims that arise from injured parties?

 

[Tomahawk]

I bave tried reading that page from the RYA before.. I have to observe it is a TWOT... total waste of time..

In essence it says,,,, "regulations may apply to boats sepending on size and a number of other factors."..

What it needs to say is..

Boats up to 10m ... inshore you need , coastal you need , ocean you need.
Boats up to 20m .. ... Etc

 

[alant]

I wonder if the liability is civil or criminal, though? If civil, then I would hope any third party/personal injury insurance held for the boat would cover any claims that arise from injured parties?

Have asked RYA for a view on that & will post any reply.

 

[prv]

It's a few years since the short law course I did, but the duty of care he describes sounds like the standard situation that applies to life in general. Same as if you're trimming your front hedge you owe a duty of care to passers-by on the pavement not to carelessly behead them with a scythe or electrocute them with bare wires to your hedgetrimmer. There are then a whole set of principles to guide courts in deciding what was reasonable to forsee, and whether what you did or didn't do actually caused the harm.

It's Common Law stuff, not statute.

Pete

 

[jimi]

http://en.wikipedia.org/wiki/Breach_of_duty_in_English_law

http://www.e-lawresources.co.uk/Breach-of-duty.php

http://www.e-lawresources.co.uk/Gross-negligence-manslaughter.php


my understanding is that if someone suffers loss as a consequence of the duty of care being breached then they can sue to recover that loss or be suitably compensated.

If the breach of the duty was sufficiently reckless and caused injury .eg death then the person can be charged with a criminal offence.


R v Adomako [1994] 3 WLR 288 Case summary

Following Adomako it was necessary for the prosecution to establish that the defendant:
Owed a duty of care to the victim
Was in breach of duty
The breach of duty caused death
The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion to a crime.



Agree with PRV

 

[TimBennet]

It's a few years since the short law course I did, but the duty of care he describes sounds like the standard situation that applies to life in general. Same as if you're trimming your front hedge you owe a duty of care to passers-by on the pavement not to carelessly behead them with a scythe or electrocute them with bare wires to your hedgetrimmer. There are then a whole set of principles to guide courts in deciding what was reasonable to forsee, and whether what you did or didn't do actually caused the harm.

It's Common Law stuff, not statute.

Pete

Exactly. It's been the situation since about the 13th century. It doesn't get any more well defined than 'you are responsible for both your actions and omissions which in all ordinary circumstances someone else could either expect you to do, or not to do.

If you don't want that onerous responsibility in life, I suggest you top yourself because that's the only way you can escape from it. It's the very underpinnings of our common law.

This 'duty of care' has been formalised in maritime law, of which a tiny amount is applicable directly to recreational sailors in small boats and mainly revolves around being able to show that you did exercise a duty of care in the way you planned and executed any trips onto the sea. This is no more than keeping a log boat in which you make some notes before and during the trip which can corroborate any account of the care you took, and behaving in a reasonable and prudent manner.

 

[prv]

Exactly. It's been the situation since about the 13th century. It doesn't get any more well defined than 'you are responsible for both your actions and omissions which in all ordinary circumstances someone else could either expect you to do, or not to do.

If you don't want that onerous responsibility in life, I suggest you top yourself because that's the only way you can escape from it. It's the very underpinnings of our common law.

Agree so far...

This 'duty of care' has been formalised in maritime law, of which a tiny amount is applicable directly to recreational sailors in small boats and mainly revolves around being able to show that you did exercise a duty of care in the way you planned and executed any trips onto the sea. This is no more than keeping a log boat in which you make some notes before and during the trip which can corroborate any account of the care you took, and behaving in a reasonable and prudent manner.

...but not with this bit. Sure, it might be useful if you ever ended up in court to be able to produce such writings in evidence, but the principle of duty of care towards your neighbour certainly doesn't demand them.

I'm not aware of any specific requirement to keep a log; I'm happy to be proved wrong but preferably in the form of a link to http://www.legislation.gov.uk/ please

There is a requirement to plan passages; that comes from the SOLAS convention that was incorporated into UK law via the Merchant Shipping Regulations. Whether the plan on a private pleasure vessel must be in writing has not been settled definitively as far as I know, but those likely to enforce it currently seem to accept that it need not. But this is entirely independent of your obligations towards people on your boat (or off it) so no more relevant to this discussion than the rules on disposal of garbage.

Pete

 

[lw395]

....
What it needs to say is..

Boats up to 10m ... inshore you need , coastal you need , ocean you need.
Boats up to 20m .. ... Etc

I don't think that's the way to go, because you would end up requiring people to equip/act for the worst case.

For instance, if you are not ever so skilled, but you only go out in benign weather with a good forecast, you are taking adequate care in that direction.
If you know your limitations and act within them, that should be OK as an amateur.
To categorise everything and define what was required would be a very long document, easier to just prohibit a lot of things.

You quickly get to the point where what's needed most is competence, not gadgets.
How can you prove competence other than by certification?
Do we want that?

 

[TimBennet]

There may not a specific requirement to keep a log on a small yacht, but it is well established in court that a boat's log represents contemporaneous evidence of what occurred. There is a difference between standing there to defend yourself and saying "I did this and that, and you'll just have to believe me" and saying; "I did this and that, as can be seen recorded in the log".

But we're not talking about some fancy Morocco bound tomb. Any systematic record of facts (tides, weather, distances, alternatives, etc) you considered before the trip together with some records along the way. Don't tear pages out and keep it sequential.

 

[jimi]

Yes, but that is just a form of evidence of the passage plan. A statement on oath is also evidence.

 

[prv]

There may not a specific requirement to keep a log on a small yacht, but it is well established in court that a boat's log represents contemporaneous evidence of what occurred.

Sure, that's not at issue. However, it is a different assertion to:

This 'duty of care' has been formalised in maritime law, of which a tiny amount is applicable directly to recreational sailors in small boats and mainly revolves around being able to show that you did exercise a duty of care

I am not aware of any statute law (I assume this is what you mean by "formalised") which requires you to be able to show that you took care.

Pete

 

[prv]

Yes, but that is just a form of evidence of the passage plan. A statement on oath is also evidence.

Not disagreeing, but passage plans are a red herring here. The question is about responsibilities to your crew; complying with the MCA's rules on passage planning is unrelated to that (except tangentially in that pointing to a passage plan would be one way of helping demonstrate that you took care).

Pete

 

[Tranona]

I bave tried reading that page from the RYA before.. I have to observe it is a TWOT... total waste of time..

In essence it says,,,, "regulations may apply to boats sepending on size and a number of other factors."..

What it needs to say is..

Boats up to 10m ... inshore you need , coastal you need , ocean you need.
Boats up to 20m .. ... Etc

That is the approach taken in other countries that have a more prescriptive approach to controlling peoples' activities. There does not seem to be any evidence that it results in greater "safety". That is based on observation rather than any systematic facts. It is however, the argument used by the authorities in UK (and the RYA) in resisting any form of prescriptive rules, and will no doubt be used again if the current proposal to include EU wide controls on the use of leisure watercraft in the forthcoming revision of the RCD go any further. See latest press release from the RYA.

BTW read the MSA because it does indeed say what the regulations are according to size and type of usage. However, virtually none apply to private boats under 20m, so of no relevance to most of us. The ones that are might be for example the differing requirements for lights with boundaries at 7m and 12m.

 

[jimi]

Not disagreeing, but passage plans are a red herring here. The question is about responsibilities to your crew; complying with the MCA's rules on passage planning is unrelated to that (except tangentially in that pointing to a passage plan would be one way of helping demonstrate that you took care).

Pete

Yep, think the point is that existence of a passage plan will show that part of the duty of care has been exercised. Next question is , how good was it? Next, was it followed or just a bit of fiction.

Nothing will matter unless something goes very wrong IMHO and you are in court for manslaughter or similar.

 

[Tomahawk]

I don't think that's the way to go, because you would end up requiring people to equip/act for the worst case.
.....
How can you prove competence other than by certification?
Do we want that?

Sorry
i don't think I explained myself very well... I would like the RYA site to set out what, if any, are the legal regulatory requirements for different types of boats in diffent locations...

The reason being at least to have a succinict document to give to a little policeman in Portugal if he demands you have something which is not a legal requirement for a UK registered vessel...

I don't want to see sailing by numbers with tickbox monitoring targets Etc..,

 

[Uricanejack]

Sorry
i don't think I explained myself very well... I would like the RYA site to set out what, if any, are the legal regulatory requirements for different types of boats in diffent locations...

The reason being at least to have a succinict document to give to a little policeman in Portugal if he demands you have something which is not a legal requirement for a UK registered vessel...

I don't want to see sailing by numbers with tickbox monitoring targets Etc..,

I am a little confused about what you are asking.
Do you want to know if there is a leagaly recognised qualification for a skipper?
Its called ICC.
Do you want to know what the leagal responsabilityies of uncertified skipper?

Actualy they are the same.

As skipper. Be it a kayak or a cruise ship.

You are responsible for the safty
Of the vessel.
The passengers "Non sailing friends" (yes you can have a passenger in a kayak)
The crew.
Other vessels
The enviornment. "dont drop your anchor on an endangered crab"

In practice the degree to which you could be held civily liable varries depending upon what happened. bash another boat while atempting to park expect some liability. this is why its a good idea to have some kind of insurance.

As for criminaly liable. the chances are extreamly remote a pleasure craft skipper could be successfully prosecuted unless the actions were extreem.

The most likly risk of prosecuction would be polution regs. which are getting tighter all the time.

There is a concept which I am not sure exactly how it aplies in english law. "Due Dilligance" roughly translates as what would a resonable person be reasonabaly expected to do.

 

[Tranona]

Sorry
i don't think I explained myself very well... I would like the RYA site to set out what, if any, are the legal regulatory requirements for different types of boats in diffent locations...

The reason being at least to have a succinict document to give to a little policeman in Portugal if he demands you have something which is not a legal requirement for a UK registered vessel...

I don't want to see sailing by numbers with tickbox monitoring targets Etc..,

See my answer above. There are no "requirements" for pleasure yachts under 20m - so the list would be short and even a Portuguese policemen could understand it.

 

[duncan99210]

Oh, and don't forget the 'duty of care' lies under common law - therefore there's no specific legislation, if I understand things aright.

 

[wotayottie]

I wonder if the liability is civil or criminal, though? If civil, then I would hope any third party/personal injury insurance held for the boat would cover any claims that arise from injured parties?

Civil liability under the common law of torts, assuming you dont do something like poking someone in the bum with a marlin spike.

In deciding what is reasonable the court will take into account your level of experience and skill. They will have a higher standard of care expected from someone with a YM ticket than someone who has never been near an RYA course. And they will also take into account the qualifications and age etc of the person injured - you have a much stricter responsibility towards minors than you would towards their parents.