Cheeki Rafiki deaths: Yacht firm boss guilty

[Uricanejack]

not a sailor but interested in this case, can anyone provide any insight on the following;

- As the boat was not coded / not of a suitable code at the time of the accident during what is considered a commercial operation, is the companies indemnity insurance invalidated?
- when will the re-trail likely be if CPS take that route?
- i presume there is no civil case to answer after any retrial, as it was a company?
- Will the MCA formally clarify / make a statement on the issue of MCA code requirements to and from races / charter areas, as seems as though other charter companies commonly do the same thing? how would they be able / want to enforce it?

Basic Insurance Law.

You a can not insure an ileagle act. So If you break the law you may find you are not covered.
Even if its not in the small print, (it usually is) it is an implied clause.

Intersting question in this case. What kind of insurance and what did the insurance co know.

I would expect there was insurance in place, as a commercial vessel. When it was acting as a commercial vessel.
So this would mean it is not possible to insure a boat to make a commercial voyage its is not coded for or with lapsed coding.

The information has not been released did he change the type of cover or not.
Problem for storm force
If you change the conditions you must inform the insurance co and get the OK. If not you are in breach of your insurance contract.
If commercial insurance the lapsed code would be a breach.
If pleasure use insurance, The commercial use would be a breach.

The insurance company could possibly refuse to cover Storm Forces loss. Of the boat, The boat insurance may be a problem.
But it was not owned by Storm Force. Just managed By Storm Force so its entirely possible the owner did nothing wrong.

Problem for insurance company.
Even if the insured person or company does something ileagle. or breaches the insurance contract.
The insurance company cannot refuse to pay out liability.

So the liability portion of the insurance will be paid out.

Afterwards the insurance company can sue the insured for thier loss. The Chances D Innes or Storm Force will be able to pay. Not high

The conviction of both D Innes and Storm Force. Make the insurance companies case pretty close to a sure thing.
Without a conviction.
The Insurance Co would have a hard time.

The simplest example is the drunk driver. A drunk driver has an accident, he is insured. The conviction proves he was in breach of his insurance, The Insurance Co will not pay for his car to be repaired or replaced. The insurance company still has to pay the liability to the car and drivers he hit.
The insurance co can sue the drunk driver to recover the cost of the liability.

 

[Uricanejack]

Which authority? I guess the UK has a better chance of having a quiet word with ISAF (or WS as they're now known) than other countries, but in general the ARC is outside their jurisdiction and the exemption about racing is quite clear. Remember also that racers are excluded from the RCD.

The UK does not have to talk to any other organisation. It is part of the UK regulations. The change would be to remove the race exemeption from the UK regulation. Or put limits on it. What kind of races and what length.

It would never be a pleasure trip, the question is whether it would be a legitimate delivery which is also exempt.

It might be a legitimate delivery, But odds are now high the MCA would regard it as a commercial voyage, If the boat is being delivered from one area of operations to another, regardless of who is doing the delivery.

Unless I bought it cheep from a charter co and decided just for the hell of it to sail to the UK.

PS If you happen to have a cheep CAT 2 boat stuck in the Caribean. If the price is right.

 

[Uricanejack]

How did other operators bring similar boats back this Spring?

The million dollar question.

 

[Uricanejack]

The only real certainty would be a case argued all the way to the Supreme Court, however firm counsel's opinion.

I don't think it has to go all the way.
If it goes unchallenged. The verdict stands as is and is accepted.
It could be used as precedent the "next" time.

I don't think this would prevent the "next" defendant from challenging the verdict on a error in law.

My slight under standing of the appeals. Is its all about the Law and how the law was applied.
Unless there is some new compelling evidence which could have changed the verdict.
This appeal would have to be about an error in Law.
This would mean an error in law by the Judge in his rulings or instructions.

This particular verdict may have established how the law applies in this particular circumstance.
You would need real deep pockets to challenge it.
I doubt an organisation the size of Storm Force has deep enough pockets.

The RYA might but why would they challenge the ruling? Pressure from their training establishments.

Each step up the appeal court system gets harder because the can only argue about how the law applies not the facts.
Most appeals end prior to reaching the Lords when the next higher court refuses to hear the case.

 

[Uricanejack]

Thinking a bit more about it, suspect the MCA will do nothing. The wording of the rules has been the same for years, and when asked in this case their specific advice related to this passage was clear. Now the court has effectively agreed with their interpretation.

Given that they are never going to "approve" every single passage they will rely on operators being aware of the ruling and acting accordingly. Given that the specific case was typical of how a number of others seem to interpret the law, it would be difficult to argue against it. Logically the practice would die out as there is a pretty good chance of a prosecution should another disaster occur. However there could equally be a prosecution under S100 even if the boat was properly coded.

It would appear the MCA already did something.

The MAIB findings, interesting as they are, do not blame anyone. And there recomendations are just recomendations
they are not binding.
The MCA can conduct a parallel investigation, Its is relatively unusual(except for commercial yachts). They can decide if the error's identified by their investigation(MAIB cannot be relied on as evidence) are the result of negligence or some other wrong doing to prosecute.

This particular case the big questions were the commercial aspect of the voyage. The codeing of the vessel. and the apst history of use and damage.
You are probably right they don't need to do anything else about the law, but they do need to do some education.

I think they should do something about the race entry loop hole, which is still legal. This case does not change the ability for a CAT 2 boat to be exempted from the CAT 0 or CAT 1 to enter a race.

It was just a case of luck the keel did not drop of on the ARC.

There is currently no reason in law why, Charter companies could not get together and organise a Race from Antigua to Cowes every spring. Which could be entered by all their CAT 2 boats.

 

[Fr J Hackett]

I wonder what it must be like to be as self righteous as you are?

Similar to you I guess. I would also guess that you have never been responsible and criminally liable in a H&S sense for the activities of both yourself, others (employees) and systems designed to comply with law and regulations to protect people from themselves and the actions of others. It's a remarkably sobering experience.

 

[capnsensible]

As I said in post #135, if CR wasn't conducting RYA courses at the time of the incident, therefore the RYA wasn't in a position to do anything about the status of Stormforce until the court reached a verdict.

Consequential penalty, happens everywhere. If a RTC is in breech of maritime law, the overseeing body can pull the licence. Referring to the operators I mentioned earlier, one certainly had his recognition removed as soon as he was charged, not after a guilty verdict.......

 

[Uricanejack]

This is exactly the problem.

I take paying guests on my coded yacht on a trip to a harbour 20 miles away. I leave the yacht there for a few weeks.

We get some nice weather so some friends ask if they can come with me to sail the yacht back to it's home harbour because I'll have some more paying guests at some stage who will leave from that harbour?

Commercial trip?

Tough one. It might be.
You would not have a problem so long as your boat was properly crewed equipped and coded insured.
Since you could have done it as a charter but chose to take friends for free. It wouldn't be an issue. even if something went wrong.

The problem would occur if you entered a race to a harbour further away than your code limits. And left it there.
I would say that would be a situation to avoid.

 

[Mark-1]

You would need real deep pockets to challenge it.
I doubt an organisation the size of Storm Force has deep enough pockets.
The RYA might but why would they challenge the ruling? Pressure from their training establishments.

I know nothing of how this all works but perhaps it's just possible DI has insurance to cover his legal costs in cases like this or if/when his business collapses he can get legal aid. I'd no idea if the case meets the conditions to appeal at all, let alone get legal aid for it.

I remember in the past the Government themselves funded an appeal to clarify the law. (S152 about identifying drivers IIRC.) Personally I can't see that happening in this case because I don't think the law is especially unclear. I think it won't happen, but I still hope there is an appeal and three judges spell out what the rules mean in this case, even if few of us will be suprised by their opinion.

 

[Uricanejack]

Similar to you I guess. I would also guess that you have never been responsible and criminally liable in a H&S sense for the activities of both yourself, others (employees) and systems designed to comply with law and regulations to protect people from themselves and the actions of others. It's a remarkably sobering experience.

While I may not agree with Minn.
I think he has said he works in commercial shipping industry. Which means. He does and he is.
And subject to whole lot of other regulations which can bite one on the but.
The whole ISM code is intended to prevent him for pointing at one of his Captain's and saying it was him.
If his ships ever wander into Amercian waters I'm sure he is very aware of it. God forbid one of his ship spills oil and contaminates a migratory duck.

 

[Mark-1]

Consequential penalty, happens everywhere. If a RTC is in breech of maritime law, the overseeing body can pull the licence.

That's my guess, the RYA can do it any time they choose whether the accident happened on a course or not. Why they waited for a trial in this case is anyone's guess. Perhaps they were unsure if CR really was in breach of maritime law but there could be all kinds of alternative explanations. Sometimes there's no logical reasons why big organizations do things. Perhaps different people considered it or the same people had a different gut feel on a different day.

If the RYA ever state a reason I'd be interested in reading it.

 

[Uricanejack]

That is the nature of our law. It is interpreted with regards to the facts before us, bearing in mind any previous interpretations by the courts. The problem with precedent is that it is only valid if the facts are essentially the same.

So, as I pointed out earlier there seem to be many situations where the facts are essentially the same - that is charter boats undertaking ocean passages between charters, but without paying charterers on board. So, one assumes if a prosecution was brought against those operators they would be found guilty, following this precedent. However the court is free to hear any argument and another court may well find differently, giving reasons for not following the precedent.

So, not surprising that there are different interpretations here, just as there is likely to be amongst proper lawyers, even if given the same facts.

The day when proper Lawyers agree with each other the whole legal system will collapse

 

[lw395]

....
This particular case the big questions were the commercial aspect of the voyage. The codeing of the vessel. and the apst history of use and damage.
.......

I'm not actually sure that's the case.
The significant things are:
Surveys etc fell short of industry norm and regulation.
The boat was faulty
The keel fell off
People died.

I don't think it's relevant that the boat was in the middle of the pond, except that lives might have been saved. The negligence and offense would be the same had the keel fallen off in the RTIR.
Even if the boat had a valid coding, the same offence would be committed if a commercial operator should reasonably doubt the integrity of his boat but does nothing because his coding is still in date.

In other industries, we get audited to ensure everything is in order, without waiting for the worst to happen.

 

[Mark-1]

I'm not actually sure that's the case.
The significant things are:
Surveys etc fell short of industry norm and regulation.
The boat was faulty
The keel fell off
People died.
I don't think it's relevant that the boat was in the middle of the pond, except that lives might have been saved. The negligence and offense would be the same had the keel fallen off in the RTIR.
Even if the boat had a valid coding, the same offence would be committed if a commercial operator should reasonably doubt the integrity of his boat but does nothing because his coding is still in date.
In other industries, we get audited to ensure everything is in order, without waiting for the worst to happen.

Who knows. We know from scant details of the judges summing up reported by YBW that lack of appropriate coding was one of several things the prosecution brought up, incuding three surveys. (Also including the fact DI was in a pub, which we can all agree is irrelevant.)

What we'll never know and are legally preventing from ever being told is what weight the jury attached to each factor. Personally, I (and most of us on this thread) think the lack of appropriate coding was far and away the biggest factor in the case and all the other stuff was just padding by the prosecution, but the jury may not have.

That's why I find these cases unsatisfactory. Most likely (IMHO) this case means charter yachts need to be appropriate category for the voyage they undertake and all the other issues are side issues. But equally it could mean charter yachts have to have a survey every time they touch the bottom and all the other issues are side issues. Or that boat operators are banned from pubs while their boats are out. Or any combination of the factors the prosecution mentioned in any ratio.

Be much better if there's an appeal and judges actually explain the reason for their decision.

We can at least be 100pc sure the jury thought the CR *was* on a Commercial Trip.

 

[Uricanejack]

True, but that's not really my point, which is whether they were really on a holiday and free to do whatever they wanted with their time or whether they were expected by their employer to bring Cheeki Rafiki back to the UK.

Just for the sake of argument.
In the distant past when I worked for a sailing school as an instructor. I occasional delivered boats back from a one way charter.
It was a pretty nice perk.
I didn't get paid, But I didn't pay a charter fee. My wife and went and had a long weekend sailing for free.
I also used to be able to use a school owned boat if it was not in use for free.
I was able to charter at last minute any of the other boats in the charter fleet for just the owners parte of the fee.
I even opted not to get paid and get a free course instead or put it towards a charter.
I used to take paying passengers out to see the fireworks and took my wife instead of getting paid.
I did quite a bit of work for nothing.

All of the boats were insured and equipped as required.

I think it would be pretty hard to argue any of those were not commercial trips. Even taking the sailing school boat out for an afternoon just as a perk was a benefit of working.

 

[Uricanejack]

One could argue that because the coding had lapsed, the boat was no longer a commercial vessel. Further to that, one could say that seeing as the crew were not paying customers, the voyage was not commercial.

Therefore one could surmise that a tragic accident happened on a non commercial vessel on a non commercial voyage.

Just sayin, not opinin.

You may be the owner of a taxi in, say London. Fully licensed. You decide to move to Glasgow and re apply for a licence there. You ask a mate to drive it there. Is it still a taxi? He takes a couple of friends who dib in a bit for petrol. Is it still a taxi?

What is my opinion is that there seems no SCV experience or advisory at the Big Ship MCA. Perhaps there is a real lack of understanding in house. The Maritime Labour Convention tends to bear that out to a large extent. Not practical targets for little boats......

I suspect D Inness Lawyer expressed a remarkably similar opinion. Unsucessfully.

Did your pals taxi have a valid MOT. If so only the tax man will give a rats ass. Might be a problem if he makes to much from his friends and your mates drivers licence doesn't include taxis. if he has an accident.

You might be right in saying there is a disconnection between small craft and the big ship MCA. Possibly due to the funny nature of the way the UK chooses to deal with small craft. Much of it is delegated to the RYA. I think only certification of crew not the vessels.

 

[Uricanejack]

That was, I think, the defence case. They lost. I just felt that rather than losing on the facts they lost on insinuations that Doug Innes was an uncaring money-grabbing b'stard who'd rather go on a pub crawl than worry about the people on his boat.

But then, we go back to the first page or two and start again...

I suspect this court case is not the final word on the interpretation of commercial voyage.

I might be a bit naïve but I have a bit more faith in my fellow man and woman. I think most people who are selected for juries try and do it right. A few may not.

In any event the pictures I saw of D Inness he looked rather broken than anything else. The pub bit probably wasn't good.
I think the Jury would be more intrested in the call content than Inness location when he got the call.
The first call leaking cant find leak but no urgency, He gives some advice and stays in Pub.
The second call still leaking tried his suggestion still cant find leak. He leaves pub and starts to act calls coast guard.

But it sounded good in the tabloids.

 

[lw395]

Who knows. We know from scant details of the judges summing up reported by YBW that lack of appropriate coding was one of several things the prosecution brought up, incuding three surveys. (Also including the fact DI was in a pub, which we can all agree is irrelevant.).....

We can at least be 100pc sure the jury thought the CR *was* on a Commercial Trip.

But the lack of coding indicates a negligent approach to managing the boat. As perhaps does going to the second pub when a problem is occurring. If I'm phoned up about a problem a few thousand miles away, I'm expected to drop what I'm doing and do everything I possibly can to sort it.

There are separate sections of the law about having the correct coding. These were not used, it was the catch-all section.
It might have made no difference had the boat had a 'just about in date' cat zero coding, with no survey since the last grounding.
There are other things too. The arrangements for comms seem a bit shapeless. Not a crime in itself but yet another indication of not being adequately on top of things.

The jury would not have been split had the only issues been
Was it a commercial cat zero trip : Yes
Was the boat coded for it : No.
People get fined about ten shillings for that.

 

[westernman]

The million dollar question.

Foreign operators just charter it out cheap to some one who wants to sail it back for them.

Hence my belief that overall safety would be improved if MCA Cat 0 made a little easier to get, and then the rules on commercial operation were tightened up to ensure that charter yachts crossing oceans were coded to Cat 0 and properly manned (CR was properly manned IMHO and not an issue) instead of the present situation.

Otherwise, it seems that the rules on commercial operation are going to be more rigorously enforced and that many UK charter operators are going to end up as foreign companies running foreign registered boats to get around the Cat 0 coding difficulties. This does not make anything safer for anyone.

 

[mjcoon]

Did your pals taxi have a valid MOT. If so only the tax man will give a rats ass. Might be a problem if he makes to much from his friends and your mates drivers licence doesn't include taxis. if he has an accident.

Or gets stopped by the police. In either case the insurance may be fussy about whether "plying for hire".

Mike.