Cheeki Rafiki deaths: Yacht firm boss guilty

[lpdsn]

I have to say I'm struggling to.

The idea that a yacht that is managed by a charter company, skippered by one of it's skippers and crewed by another employee and being relocated for the purpose of continuing to be used by that company is not taking part in a commercial voyage is, at the very least, not really acting within the spirit of the rules.

And of course one of the impacts of the boat conforming to category zero would have been to mandate float free life rafts. Of course we cannot know for sure, but given the activation of the PLB it seems reasonable to surmise that a float free life raft might well have saved at least 1 life, even if any coding inspection had missed the potential damage to the keel area.

I'd agree with you if other sailing schools/charter companies were coding their boats Cat 0 to cross the Atlantic and he was the rogue, but what he was doing was just what lots of others were doing quite openly without the MCA clamping down on it.

I do feel he has been hard done by in being held solely responsible for something where the culpability and failings were far wider spread and even in some areas systematic.

 

[Fr J Hackett]

Because I've read the MAIB report and formed judgements based on that. I wish you would read it for your information rather than basing your opinion on a scandal sheet. The damage was such that whether the weakened floors dated back to the original 'repaired' damage or to the subsequent light groundings or a combination of both they would not be spotted by a diver inspecting the bottom. In fact they would only be spotted by removing the keel whereupon it would've become apparent that the floors weren't correctly bonded, or as suggested by other posters some form of ultrasound or other appropriate NDT. I believe neither of the latter are common practice for light groundings of yachts.

The damaged remnants of the hull were never inspected so there can be no conclusive proof that the damage sustained in the groundings was undetectable and not the cause of the loss of the keel. It would have been prudent given the yachts history to have it lifted and surveyed. Then we come to the matter of coding the coding had expired but the yacht could have been reinspected and issued with the relevant code in the WI. Both these omissions paint the picture of negligence and commercial interest over safety. If the boat had been inspected wether damage was not found or found and repaired and recoded even with the loss of life Innes would not be in the position he is now

 

[Fr J Hackett]

I'd agree with you if other sailing schools/charter companies were coding their boats Cat 0 to cross the Atlantic and he was the rogue, but what he was doing was just what lots of others were doing quite openly without the MCA clamping down on it.

I do feel he has been hard done by in being held solely responsible for something where the culpability and failings were far wider spread and even in some areas systematic.

Because others flout the law it is no excuse for a person to do the same. However that is not the sole issue there were other failings which all point to negligence.

 

[mainsail1]

From first hand experience I have to say there is a very simple way to check the keel fixings. Lift the vessel in slings and give the keel a running kick from the side. If there is a problem the keel will wobble.
I had exactly this issue on a 4 year old Bavaria 44. The hull had delaminated around the keel bolts. None of my skippers owned up to ever having touched bottom.
In any event I strongly hold the view that all sailing boat keels should be strong enough to take serious groundings without failure and production boat manufacturers have a lot to answer for.

 

[JumbleDuck]

I've made several crossings, in both directions, and never considered going so far as to drop my keel in order to inspect the keel bolts and keel attachment areas.

How many times had you run hard aground?

That said, the is a vast difference between assessing a risk to yourself and doing it for paying customers. Your family and friends know what you're like and can decide how much to trust you to be sensible. Commercial clients can't do that and so reasonably expect that the operator of a boat adhere to the proper legislative framework.

 

[bedouin]

Because others flout the law it is no excuse for a person to do the same. However that is not the sole issue there were other failings which all point to negligence.

But if he is just following industry standards, and MCA are aware are hadn't taken action - it ought to be hard to prove gross negligence.

Not having the boat coded, or the coding having lapsed are not negligent (IMHO) unless the process of having the coding renewed would have revealed a serious issue that doesn't seem to have been the case here.

 

[Kukri]

I'd agree with you if other sailing schools/charter companies were coding their boats Cat 0 to cross the Atlantic and he was the rogue, but what he was doing was just what lots of others were doing quite openly without the MCA clamping down on it.

I do feel he has been hard done by in being held solely responsible for something where the culpability and failings were far wider spread and even in some areas systematic.

Yes, that is what I have in mind when I say that I have a good deal of sympathy for him. The manufacturers will lawyer up and walk away, in part because we are getting rather used to keels falling off boats, now, and Mr Innes gets the book thrown at him for doing something that many sailing school proprietors consider quite normal, because the CPS want a maritime corporate manslaughter case on the books.

The plain truth is that keels ought not to fall off and yachts ought to withstand repeated groundings.

 

[flaming]

But if he is just following industry standards, and MCA are aware are hadn't taken action - it ought to be hard to prove gross negligence.

Not having the boat coded, or the coding having lapsed are not negligent (IMHO) unless the process of having the coding renewed would have revealed a serious issue that doesn't seem to have been the case here.

From the MAIB report.

It is possible that any indications of a potential structural problem might
have been identified had the annual examinations required by the SCV Code been
conducted by an authorised person.

Plenty of caveats, but in the traditionally mild and non judgemental tones of a MAIB report I think you can probably read that as "a decent surveyor would probably have spotted it".

And on the subject of the MCA being aware and not having taken action. That is also covered by the MAIB report.

On 26 March 2014, the MCA stated in an email to YDSA ‘…not sure how it got
to the Caribbean from the UK on a Cat 2 Certificate, especially as they are using
it commercially out there?’ This email was forwarded by YDSA to Stormforce
Coaching, who responded directly to the MCA on 27 March 2014 ‘…Just to
clarify, the yacht crossed the Atlantic in the racing division of the ARC under ISAF
regulations. She will not be carrying any paying passengers for the way home…’
On 28 March 2014, the MCA responded, stating ‘Paying passengers are only
one element of the definition. If the voyage is a relocation voyage for commercial
purposes, the vessel is almost certainly not being used as a pleasure vessel.’
The definition of a ‘pleasure vessel’, a copy of which was attached to the email,
is provided in The Merchant Shipping (Vessels in Commercial Use for Sport or
Pleasure) Regulations 1998 and is reproduced at Annex F. On 31 March 2014,
the principal/director telephoned the MCA to discuss the issue but the content and
outcome of the conversation were not documented and cannot be verified.
Subsequent to the accident, the MCA has stated that for the return crossing of the
Atlantic Ocean ‘the vessel should have been appropriately coded or complied fully
with the relevant merchant shipping legislation that would otherwise have applied’.

So the view of the MCA is clear. Whether or not the MCA were aware that the practice is widespread or not is another question, as is what steps they have taken to stop the practice since.

 

[Fr J Hackett]

But if he is just following industry standards, and MCA are aware are hadn't taken action - it ought to be hard to prove gross negligence.

Not having the boat coded, or the coding having lapsed are not negligent (IMHO) unless the process of having the coding renewed would have revealed a serious issue that doesn't seem to have been the case here.

As I have said the coding issue is only one aspect there were others that point to negligence lack of duty of care. We do not know if the inspections would have shown anything but we do know that if there were no inspections they definitely wouldn't show anything.

The questions to ask are what prompted him not to get the boat recoded? Money? What prompted him in the knowledge of both groundings and a problem with at least one "minor" keel bolt? Money? or was it just pure negligence and indifference.

 

[lw395]

Y
The plain truth is that keels ought not to fall off and yachts ought to withstand repeated groundings.

Yachts could be made to withstand groundings better, indeed there are many more robust designs available, but people choose to buy competitive deep fin designs in preference.
Yachts like the 40.7 are fairly much optimised for inshore racing. That seems to be what people want.
They are also built down to a price.
It's never been safe to ground a competitive racing yacht at speed and then assume it's fit for an ocean crossing. Not in the days of wooden boats and not now.
CR was built in 2006. It had over 7 years of intense commercial use.

 

[lpdsn]

The damaged remnants of the hull were never inspected so there can be no conclusive proof that the damage sustained in the groundings was undetectable and not the cause of the loss of the keel. It would have been prudent given the yachts history to have it lifted and surveyed. Then we come to the matter of coding the coding had expired but the yacht could have been reinspected and issued with the relevant code in the WI. Both these omissions paint the picture of negligence and commercial interest over safety. If the boat had been inspected wether damage was not found or found and repaired and recoded even with the loss of life Innes would not be in the position he is now

But the prosecution should have had to prove it was detectable rather than the other way around. Also, as I understand it, they had as a defence witness a surveyor who said the keel would not have been checked as part of a coding survey.

There was certainly a photo at one stage that showed the skipper inspecting the keel bolts and the hull around them, but that wouldn't have allowed them to detect the de-bonding (IIRC neither the post repair surveyor nor anyone subsequently did).

I presume he intended to have the vessel re-coded when it reached the UK.

I realise that a the prosecution successfully painted him as some get rich quick owner but I imagine he wasn't a great deal different from other sailing school owners. It is I believe a very marginal business in general. I'm sure there are people on the forum who could check just how profitable his particular business was before this.

Cap'n Sensible has already said he'd use a diver after a light grounding (and I don't consider him negligent or fly-by-night). Charter companies seem to do that or use an underwater camera after a bareboat charter where there's probably a significant risk of a bareboat charterer not reporting a light grounding (or even knocking the keel off in the Scillies).

 

[Kukri]

Ho hum; the practice of treating a commercial vessel as a yacht for a voyage or two to get out from under the regulations is nothing new; Tilman did it with the crayfishing schooner PATANELA for the Heard Island expedition . I certainly don't see anything wrong with it. The boat wasn't being used to make money. Beware of regulatory creep.

I spend a good part of my working life dealing with the MCA and there are times when they have to be put back in their box. This to my mind is one such.

 

[Kukri]

But the prosecution should have had to prove it was detectable rather than the other way around. Also, as I understand it, they had as a defence witness a surveyor who said the keel would not have been checked as part of a coding survey.

There was certainly a photo at one stage that showed the skipper inspecting the keel bolts and the hull around them, but that wouldn't have allowed them to detect the de-bonding (IIRC neither the post repair surveyor nor anyone subsequently did).

I presume he intended to have the vessel re-coded when it reached the UK.

I realise that a the prosecution successfully painted him as some get rich quick owner but I imagine he wasn't a great deal different from other sailing school owners. It is I believe a very marginal business in general. I'm sure there are people on the forum who could check just how profitable his particular business was before this.

Cap'n Sensible has already said he'd use a diver after a light grounding (and I don't consider him negligent or fly-by-night). Charter companies seem to do that or use an underwater camera after a bareboat charter where there's probably a significant risk of a bareboat charterer not reporting a light grounding (or even knocking the keel off in the Scillies).

+1.

 

[flaming]

The plain truth is that keels ought not to fall off and yachts ought to withstand repeated groundings.

Keels should certainly not fall off where there has been no damage, the surviving of groundings is a different matter. Naturally a cruising boat with a fairly short, fairly long, fairly thick keel ought to. But should a cruiser racer with a modern keel be expected to shrug off a "dead stop" grounding? I'd say no... I'd say dealing with that damage is an operator issue.

And then we get to the real nub... The 40.7 design was over 15 years old in 2014. It was a big sales success, and a large number of them were in the hands of charter companies. A significant number of them had been the subject of heavy groundings - to be expected with race charters unfortunately - and had been repaired. The difficulty of diagnosing damage, and the issues surrounding repairing it were fairly well known. Now I agree that Beneteau have questions to answer here on how they communicate with owners of their boats any potential issues that should be investigated, but I think if you are operating a boat that is well known for concealing keel damage, you should be a little more rigorous in your inspections than you would if you were running a boat with a very different keel type. Especially if it has been on charter and you have the slightest suspicion that it has suffered a heavy grounding in the past.

 

[lpdsn]

So the view of the MCA is clear. Whether or not the MCA were aware that the practice is widespread or not is another question, as is what steps they have taken to stop the practice since.

I'd forgotten that bit of the report. Still, such trips have been widely advertised since at least the 1990s. Plenty of time for the MCA to have put the word out or even issued an MGN to say they considered it illegal.

Their view now would, for example, stop Sunsail or similar re-locating a charter boat from the Med to the Carribean (another widespread practice they were turning a blind eye to). I imagine there'll be a few charter companies thinking of re-flagging.

 

[Tranona]

How many times had you run hard aground?

That said, the is a vast difference between assessing a risk to yourself and doing it for paying customers. Your family and friends know what you're like and can decide how much to trust you to be sensible. Commercial clients can't do that and so reasonably expect that the operator of a boat adhere to the proper legislative framework.

The problem is that the legislation in this case is not clear - or rather the practice in the past did not follow the subsequent interpretation by the MCA. They have taken no action in the past and there could be many reasons for this. Perhaps they are hoping that this conviction will allow a clarification of the law. If it does change the rules it will have a devastating impact on this sector of the charter/sailing school business. With a bit of luck it might spread to the delivery of charter vessels, particularly from S Africa which have an annoying habit of not arriving!

 

[lpdsn]

... but I think if you are operating a boat that is well known for concealing keel damage, you should be a little more rigorous in your inspections than you would if you were running a boat with a very different keel type. Especially if it has been on charter and you have the slightest suspicion that it has suffered a heavy grounding in the past.

I agree entirely. I'd say it wasn't well known prior to this incident, but it is now.

 

[Tranona]

I imagine there'll be a few charter companies thinking of re-flagging.

Many are flagged specifically for delivery, or not even flagged at all. That has been a long running problem, recognised by HMG as effectively there is no jurisdiction covering the delivery passage. Well discussed in relation to Reliance Marine cases.

 

[lpdsn]

Many are flagged specifically for delivery, or not even flagged at all. That has been a long running problem, recognised by HMG as effectively there is no jurisdiction covering the delivery passage. Well discussed in relation to Reliance Marine cases.

Is that possible? I thought that if unregistered the nationality of the boat was the nationality (or country of incorporation) of the owner. Although that may vary between countries.

 

[steveej]

so my understanding of the case.......

The boat didn't need to be covered by the MCA coding on the basis it would have been covered by ISAF rules whilst racing and the passages too and from the race.

Lots of boats do the crossing that are only coded to Cat 2 (60 miles from a safe haven) for reasons stated above and the difficulty in carrying all the safety kit specified in Cat 0.

This is why lots of commercial school boats doing the arc, effectively have to hug the coast all the way around Biscay until they get down to the Canaries whilst they are coastal hopping, with the final passage to the canaries covered by ISAF.

The defect in the keel matrix may or may not have been found in the coding survey.

The passage back west to east routed via the north is the standard return passage to pick up the better trades, rather than beating all the way back across the East - West milk route.

A commercially endorsed delivery skipper being paid to bring a boat back home is not regarded as a commercial activity on the basis there are no paying customers (even though the skipper may be getting paid). This is clearly stated in the legislation. I believe the crew were made up of two stormforce employees and two non paying crew. Seems pretty black and white to me when you read the legislation, but I can understand why others would struggle to not see it as a commercial operation. The MCA need to revise their guidance in this area.