Cheeki Rafiki deaths: Yacht firm boss guilty

[Fr J Hackett]

Going through this thread there seems to be two sides (obviously) One which considers the aspects of the law no matter how much they may have been flouted in the past and the build up of events that were in control of Mr Innes that are deemed to have ultimately lead to the loss of the boat. On the other hand there are those that take the view that Mr Innes is being made a scapegoat for the MCAs alleged failings in pursuing things that it has ignored in the past but now relies on coupled with the obvious expertise and abilities as a yachtsman and person of Mr Innes.

I have no doubt that Mr Innes is a very accomplished sailor, a good guy nor did he deliberately set out to send an unseaworthy vessel to sea. He did however through a series of omissions and management decisions designed to reduce costs in all likelihood set the stage for the eventual loss of the vessel.
It is indeed unfortunate that there was the loss of life and that he is going to pay the cost for the rest of his industry to change which will undoubtedly see costs rise to the consumer, some businesses fold but it will also see an increase in inherent safety and more attention paid to the duty of care by organisations and close loopholes that have been left open not the least is the questions surrounding the operation of vessels under ISAF regulations and this may have some impact on "races" and organisations like the ARC.
A sad series of events indeed.

 

[lpdsn]

MAIB reports lost a lot of credibility in my eyes after reading that report. Given the public interest this one particularly should have been perfect.

I wouldn't go that far. To err is human. In the end the boat was never going to be Cat 0 coded nor, I presume, had the school seriously contemplated it, so it wasn't that significant.

 

[Fr J Hackett]

I can't see that being an issue if they're within their coding (if UK flagged). With the CR case the issue is that the voyage which, as I understand it, would've been perfectly legal (assuming UK flagged) for a private boat, or a commercial boat on a non-commercial trip (even with lapsed Cat 2)* or a commercial boat with Cat 0, but not for a commercial boat with cat 2 (or lapsed cat 2). So it gets down to whether this was a commercial trip. Jury says it was, but the consequences of that are more far reaching than a lot of people yet realise.

*Commercial boat on non-commercial voyage is the bit that is still wooly, even after this case. I suspect some will avoid the risk by re-flagging.

Whilst you are spot on about the commercial verses non commercial aspect and the delivery regardless of that and it is clear that in every sense it was a commercial voyage, the problems arise in that this has become custom and practice and thus operators have assumed accepted, they have just been lucky! There are other aspects though in that Stormforce owed a duty of care to the users of the vessel and that is what is deemed lacking.

 

[lpdsn]

Going through this thread there seems to be two sides (obviously) One which considers the aspects of the law no matter how much they may have been flouted in the past and the build up of events that were in control of Mr Innes that are deemed to have ultimately lead to the loss of the boat. On the other hand there are those that take the view that Mr Innes is being made a scapegoat for the MCAs alleged failings in pursuing things that it has ignored in the past but now relies on coupled with the obvious expertise and abilities as a yachtsman and person of Mr Innes.

I have no doubt that Mr Innes is a very accomplished sailor, a good guy nor did he deliberately set out to send an unseaworthy vessel to sea. He did however through a series of omissions and management decisions designed to reduce costs in all likelihood set the stage for the eventual loss of the vessel.
It is indeed unfortunate that there was the loss of life and that he is going to pay the cost for the rest of his industry to change which will undoubtedly see costs rise to the consumer, some businesses fold but it will also see an increase in inherent safety and more attention paid to the duty of care by organisations and close loopholes that have been left open not the least is the questions surrounding the operation of vessels under ISAF regulations and this may have some impact on "races" and organisations like the ARC.
A sad series of events indeed.

A bit of a biased summing up, but you have been consistent in your views.

The causes are far more wide ranging than just pinning the blame on one scapegoat. A boat, one of many, has been built down to a cost by having bonded internal frames. You could accuse Beneteau of cost-cutting, but they have to stay in business and the method is strong enough as built and most other production builders are doing it. However it is vulnerable to damage and far more importantly the steps to discover and repair and prove that repair aren't sufficiently well known in the industry.* Beneteau and the industry in general are therefore not entire free of blame in this. The manufacturers should be more pro-active in getting the knowledge to repair their boats out there. And the trade bodies and various surveyors institutes should be pushing that knowledge via their CPD schemes.

Then comes the issue of coding and commercial/non-commercial voyages. The MCA have knowingly allowed this sort of voyage to go on for decades, and if they didn't know they are negligent because it was hardly done in secret - most yachtsman reading YM twenty years ago will have seen the adverts. Therefore the MCA have to take part of the blame.

That isn't the end of it, the general training/RYA attitude to light groundings was also a factor, but the key thing is that there were quite wide-ranging systematic failings for which one man has been unfairly made the scapegoat.**

*I need to be fair to the 2011 surveyor. He did spot the de-bonding at that time. However, my reading of the report is that no one knew if the repair covered the entire extent of the de-bonding at that time.

**And particularly as I felt some of the significant arguments against him were non-factual. A key one being the alledged pub crawl showing he didn't give a damn. Read the reported prosecution case then read again the sequence of messages and timings detailed in the MAIB report.

 

[lpdsn]

Unfortunately, this isn't a unique inconsistency. There are glaring incompetency issues in certain quarters.

An interesting comment. Maybe something for another thread. I would say that I consider the MAIB a league - or many leagues - better than the MCIB here in Ireland and I have certainly resolved to have my accidents in UK waters.

 

[JumbleDuck]

If the entire crew's hobby was laying moorings and they were unpaid and nobody was paying the company to lay the moorings then I think it would certainly count as a pleasure trip.

Yes, good point, and that might well apply to a sailing club's moorings team. Not for a commercial operator though.

In the CRs case from the crew perspective the boat was being "used only for sport or pleasure" - they were doing the trip unpaid as a holiday/adventure.

The skipper was a paid employee and the mate was an unpaid employee. Both were undertaking the trip as a directed part of their employment. The other two crew members didn't pay, but it's arguable that they were in fact being rewarded to the extent of the usual cost of a month (or however long) of sailing time with Stormforce. Leaving them aside, I really don't think it can reasonably be claimed that employees of a company moving a boat around as part of their duties and as part of the commercial operations of the company were undertaking sport or pleasure. That was clearly the view of the MCA beforehand and of the jury afterwards.

 

[JumbleDuck]

Jury says it was, but the consequences of that are more far reaching than a lot of people yet realise.

Those consequences wouldn't be the jury's concern, though.

A vaguely similar issue exists in gliding. Lots of people fancy a trip in a glider, but to give joyrides would require a commercial glider pilot's licence, and although those have in theory existed for decades, nobody has every got one. Anyway, gliders are not certified or insured for fare-paying passengers. So the fiction has arisen that clubs give "trial lessons", for which they charge typically ten times what a club member would pay for the same flight and during which the customer - sorry, pupil - may decline to take the controls.

It's a complete fiddle, and one day there is going to be an accident to someone whose surviving relatives will kick up a fuss and bring the whole edifice crashing down. I know of one case already in which someone very narrowly escaped serious injury or death during a "trial lesson" - it was lucky for the club concerned that he did not create a fuss.

 

[JumbleDuck]

An interesting comment. Maybe something for another thread. I would say that I consider the MAIB a league - or many leagues - better than the MCIB here in Ireland and I have certainly resolved to have my accidents in UK waters.

I've read a fair few MAIB and AAIB reports. The AAIB ones are definitely better - fewer inconsistence, more detailed research, less tendency to preach irrelevantly - but the AAIB have been doing it a lot longer and I suspect have a lot more money to spend. For a relatively new organisation, the MAIB seems pretty good.

 

[Mark-1]

Not for a commercial operator though..

It would be fine in the example I gave. You can use a commercial boat purely for pleasure and if you do, you are not on a commercial trip.

Both were undertaking the trip as a directed part of their employment.

Is that true? If so it would be conclusive AFAIC. I took it for granted that any Stormforce employees were doing it on a voluntary 'take a few weeks off, here's a free holiday' basis.

The other two crew members didn't pay, but it's arguable that they were in fact being rewarded

Yes, on reflection, you could easily argue they were being paid in kind.

 

[Tranona]

For years it has been common for flotilla companies to have "delivery cruises" at start and end of season. I did one from Gouvia on Corfu to Lavrion near Sounion & Athens. The yachts were going further, to the Sporades. I wonder if the delivery aspect has ever been used to challenge the pure charter aspect of the deal...

The only reason for the use of the words "delivery trip" is to indicate that the itinerary is defined - that is the charter does not offer unrestricted use of the boat. Otherwise it is a normal charter and the boats are coded. The charterer in return gets a lower price because of the restriction in use.

 

[JumbleDuck]

Is that true? If so it would be conclusive AFAIC. I took it for granted that any Stormforce employees were doing it on a voluntary 'take a few weeks off, here's a free holiday' basis.

If that was the case, it sounds awful like a fiddle. I wonder what would have happened if they had said "no thanks" to the free sailing holiday and gone off hill walking instead.

 

[Fr J Hackett]

A bit of a biased summing up, but you have been consistent in your views.

The causes are far more wide ranging than just pinning the blame on one scapegoat. A boat, one of many, has been built down to a cost by having bonded internal frames. You could accuse Beneteau of cost-cutting, but they have to stay in business and the method is strong enough as built and most other production builders are doing it. However it is vulnerable to damage and far more importantly the steps to discover and repair and prove that repair aren't sufficiently well known in the industry.* Beneteau and the industry in general are therefore not entire free of blame in this. The manufacturers should be more pro-active in getting the knowledge to repair their boats out there. And the trade bodies and various surveyors institutes should be pushing that knowledge via their CPD schemes.

Then comes the issue of coding and commercial/non-commercial voyages. The MCA have knowingly allowed this sort of voyage to go on for decades, and if they didn't know they are negligent because it was hardly done in secret - most yachtsman reading YM twenty years ago will have seen the adverts. Therefore the MCA have to take part of the blame.

That isn't the end of it, the general training/RYA attitude to light groundings was also a factor, but the key thing is that there were quite wide-ranging systematic failings for which one man has been unfairly made the scapegoat.**

*I need to be fair to the 2011 surveyor. He did spot the de-bonding at that time. However, my reading of the report is that no one knew if the repair covered the entire extent of the de-bonding at that time.

**And particularly as I felt some of the significant arguments against him were non-factual. A key one being the alledged pub crawl showing he didn't give a damn. Read the reported prosecution case then read again the sequence of messages and timings detailed in the MAIB report.

And you have been consistent in your views.

As for Beneteau they manufactured a boat that met the relevant criteria of the day and subsequently had the design tested which showed compliance in most areas when standards were issued in 2012. They issued repair guidelines for matrix detachment issues so I fail to see what else they could do. It is a relatively old design.
In the small world of class racing issues surrounding matrix detachment or delimitation seem well known and repairers are familiar with the proscribed method although some don't adopt it. The very strange thing is that whilst it is accepted that delimitation or detachment is difficult to detect because of the clamping of the keel bolts and surveyors and repairers thought that dropping the keel was required when necessary they failed to conclude that by removing the keel and clamping effects detachment would become much easier. Now was this a sop to keep costs down?
The issue of coding and commercial v non commercial voyages and the MCA not pursuing this earlier I have commented on but will say ignorance or non compliance of the "law" because it is not generally enforced or others do it is no defence.
The MAIB report discusses briefly the point about the RYA instructor / examiners attitude to groundings but that I think is superfluous to the case. What is relevant is the vessels history and use coupled with a lack of external independent interim survey or documentation of internal survey. This is particularly relevant when considering the boat had undergone a major repair which could have been monitored more closely and professionally over subsequent years.
I have also addressed the competence of Mr Innes and without doubt he was competent and did everything within his power as soon as he was told of the problems. The records of conversation between Innes and the skipper actually do not show the skipper an Ocean Yachtmaster in too good a light with Innes actually directing him in terms of searching for the leak and possible methods of controlling the water level plus making the life raft ready and crew donning lifejackets. His seamanship is not in question it's his management of the business and its failings that are in question and how they may have led to the loss of the vessel.

I take my position from a purely legalistic standpoint and compare duty of care and omissions that are required in industry with those displayed in the management of Stormforce, I suspect that is exactly what the judge did. I have seen too many repentant managers that have been lacking in their duty of care when "accidents" have shed light on their failings so I tend to recognise the attitude.

 

[Resolution]

. Taken with other evidence it all points to a deliberate attempt to reduce costs in returning the vessel to the UK and does not paint a good picture of the practices of Stormforce .

For the majority of commercial businesses generating revenue, minimising costs and maximising profits are fundamental objectives of the business and good practice. The bad practice here would seem to be that they were ignoring operational regulations.

 

[Mark-1]

The skipper was a paid employee and the mate was an unpaid employee. Both were undertaking the trip as a directed part of their employment.

Is that true? I took it for granted that any Stormforce employees were doing it on a voluntary 'take a few weeks off, here's a free holiday' basis.

If that was the case

Sounds like you're not sure.

 

[Simondjuk]

MAIB reports lost a lot of credibility in my eyes after reading that report. Given the public interest this one particularly should have been perfect.

How? The vessel wasn't recovered to allow detailed examination...

MAIB reports lost a lot of credibility in my eyes after reading that report. Given the public interest this one particularly should have been perfect.

I wouldn't go that far. To err is human. In the end the boat was never going to be Cat 0 coded nor, I presume, had the school seriously contemplated it, so it wasn't that significant.

Without intending to speak for him, I believe the point Talulah is making is that what the YDSA surveyor says in his report at Annex 1 is paraphrased such that is has an entirely different meaning in the narrative of MAIB report. If that is what he means, like him, I find such misrepresentation of the information damaging to the credibility of their reports.

 

[Fr J Hackett]

For the majority of commercial businesses generating revenue, minimising costs and maximising profits are fundamental objectives of the business and good practice. The bad practice here would seem to be that they were ignoring operational regulations.

I would say they did not do all in their power to minimise risk but yes they ignored operational regulations, advice and the motive for doing that was financial.

 

[Mark-1]

The records of conversation between Innes and the skipper actually do not show the skipper an in too good a light with Innes actually directing him in terms of searching for the leak and possible methods of controlling the water level plus making the life raft ready and crew donning lifejackets.

A harsh interpretation. AFAIR the CR crew had done and were doing all the right things and would be well aware of how to remove the relvant bits of the interior since they'd all done it at least once and some more than once. Seems to me that any external advice they recieved was purely belt and braces.

 

[Fr J Hackett]

Without intending to speak for him, I believe the point Talulah is making is that what the YDSA surveyor says in his report at Annex 1 is paraphrased such that is has an entirely different meaning in the narrative of MAIB report. If that is what he means, like him, I find such misrepresentation of the information damaging to the credibility of their reports.

The worrying thing about the MAIB report is that it is no longer available from links to the government website and the copied report of the au. site lacks the appendices. If anyone has a link or copy of the appendices or the full report it would be useful to the discussion.

 

[Fr J Hackett]

It would be fine in the example I gave. You can use a commercial boat purely for pleasure and if you do, you are not on a commercial trip.



Is that true? If so it would be conclusive AFAIC. I took it for granted that any Stormforce employees were doing it on a voluntary 'take a few weeks off, here's a free holiday' basis.



Yes, on reflection, you could easily argue they were being paid in kind.

Sounds like you're not sure.

There is no doubt in law regardless of whether they were being paid or not that the skipper and the intern were members of Stormforces staff i.e. they were employees. There is case law regarding the status and rights of volunteer and unpaid workers in UK law. ergo the vessel was on a commercial voyage.

 

[JumbleDuck]

Sounds like you're not sure.

Not having access to Stormforce's leave records system, no, I don't know for sure, but it seems outrageously implausible. You may upgrade my previous reply to "Even if ..."