Cheeki Rafiki deaths: Yacht firm boss guilty

[Fr J Hackett]

I think that the MCA Enforcement people may have been encouraged by the CPS to take a shot at a corporate manslaughter charge in order to try and get a conviction on the record to serve as a precedent and thereby to scare the living daylights out of merchant ship owners and managers. They tried and failed with the Herald of Free Enterprise and subsequently and they may well have thought that a sailing school would be a softer target than a lawyered up shipowner backed by his P&I Club.

I feel a good deal of sympathy for Mr Innes.

Edited to add - I should declare an interest - I work in commercial shipowning.

I don't disagree. Indeed I frequently refer to and cite aviation examples and I even dragged my colleagues off for a week at Gatwick Airport, to understand "cockpit resource management".

But I think you will find that corporate manslaughter convictions are rare in any field.

Here are some links:

http://www.telegraph.co.uk/finance/...of-corporate-manslaughter-five-key-cases.html

(note - the law changed in 2008)

http://blog.cps.gov.uk/2011/02/tuesday-15-february-afternoon-update.html

https://www.out-law.com/en/articles...-manslaughter-sentencing-under-new-guideline/

The conviction for corporate manslaughter will rely on two things: That Innes was the controlling mind in the business, of that there is no doubt. Secondly that his actions constituted gross negligence, that is the debatable point was it simple negligence an oversight or was it systematic of the way Innes ran the business. I take the view that he cut corners and sailed close to the wind in order to maximise revenue, that others may have done the same is no defence or excuse.

 

[duncan99210]

Don't think Stormforce was charged with corporate manslaughter, rather Innes was charged with manslaughter by gross negligence. Less of a hill to climb than the corporate charge.

 

[Uricanejack]

I don't know why you would think that. It's often easier to convict on the lesser charge(s).

It seems pretty clear cut that Doug Innes/Stormforce Coaching were guilty of failing to ensure the safety of Cheeki Rafiki, and failing to operate the vessel in a safe manner.

It's far harder to prove that he and/or the company were guilty of manslaughter. The truth is that Doug Innes is going to have to live with the death of those four people for the rest of his life. No other punishment will come close to this.

I do have a personal interest in this trial. Both of my daughters did their Day skipper and Coastal skipper certificates with Stormforce, and both of them knew at least one of the people on board, and Doug too. My younger daughter did her coastal skipper, plus a week of mile building on Cheeki Rafiki with Andrew Bridge in June 2013, during which time they sailed through some abysmal weather. Every time I think of this disaster, it's at the back of my mind that it could have been my child.

I thought it was unusual. After convicting on the lesser charge, its the first time I have heard the more serious charge did not get a not guilty verdict. Maybe its not unusual.
Doug Innes. Was a frequent poster here. I contacted Storm Force myself. Their reputation was good. I am sure a lot of people knew him and his company which is or was one of the best known on the Solent. Quite a few are former students.
A lot of people put their trust and faith in him and his company.

The boat was unsafe was probably easy to decide. Negligence is very difficult to prove, Gross Negligence?
It must have been a very difficult deliberation. After finding guilty on the lesser charge, It would have been so much easier to
find not guilty. I guess there must have been a lot of hold outs for guilty. And not guilty.

 

[Fr J Hackett]

I think that the MCA Enforcement people may have been encouraged by the CPS to take a shot at a corporate manslaughter charge in order to try and get a conviction on the record to serve as a precedent and thereby to scare the living daylights out of merchant ship owners and managers. They tried and failed with the Herald of Free Enterprise and subsequently and they may well have thought that a sailing school would be a softer target than a lawyered up shipowner backed by his P&I Club.

I feel a good deal of sympathy for Mr Innes.

Edited to add - I should declare an interest - I work in commercial shipowning.

Don't think Stormforce was charged with corporate manslaughter, rather Innes was charged with manslaughter by gross negligence. Less of a hill to climb than the corporate charge.

In view that he was Stormforce it amounts to the same thing the burden of proof is whether he displayed gross negligence.

 

[lpdsn]

I take the view that he cut corners and sailed close to the wind in order to maximise revenue, that others may have done the same is no defence or excuse.

Do you have any information that he was maximising profits compared to other sailing schools? It would be very interesting if anyone has access to the accounts at Companies House. Sailing schools tend to be marginal businesses so I'd be surprised if he were getting rich.

Only corner cut seems to have been delaying the Cat 2 survey. How practical is it to get one carried out in the Carribean anyway?

 

[Fr J Hackett]

I thought it was unusual. After convicting on the lesser charge, its the first time I have heard the more serious charge did not get a not guilty verdict. Maybe its not unusual.
Doug Innes. Was a frequent poster here. I contacted Storm Force myself. Their reputation was good. I am sure a lot of people knew him and his company which is or was one of the best known on the Solent. Quite a few are former students.
A lot of people put their trust and faith in him and his company.

The boat was unsafe was probably easy to decide. Negligence is very difficult to prove, Gross Negligence?
It must have been a very difficult deliberation. After finding guilty on the lesser charge, It would have been so much easier to
find not guilty. I guess there must have been a lot of hold outs for guilty. And not guilty.

How do you differentiate between negligence and gross negligence, for me when you do something even by omission that you know you should do and especially for financial expediency when it has a health and Safety aspect it becomes gross negligence. I am sure the judge must have given some direction in his summing up it would be interesting to know what it was.

 

[Fr J Hackett]

Do you have any information that he was maximising profits compared to other sailing schools? It would be very interesting if anyone has access to the accounts at Companies House. Sailing schools tend to be marginal businesses so I'd be surprised if he were getting rich.

Only corner cut seems to have been delaying the Cat 2 survey. How practical is it to get one carried out in the Carribean anyway?

No the corner cut was in not having a survey. As to comparing his practices with other schools that is irrelevant nor his whether he was getting rich. I have said before if he had a survey done that was inconclusive or negative he would not be in the position he is in.

 

[steveej]

Innocent until proven guilty.

Absolute Rubbish, I suggest you read up on the Enron disaster and their suppliers who went down even though they were found to have done nothing wrong after the trial

 

[steveej]

CR was a charter vessel being operated without an in date survey as well as being brought back across the Atlantic after the MCA had advised that they would consider the voyage to be commercial. That, as I understand it, is the basis of the conviction for operating the vessel in an unsafe manner. The keel being unsafe and failing was a symptom of the company's attitude to the regulations and that is why the conviction succeeded. The debate as to whether a survey would have discovered the damage to the keel is moot: the conviction is because the survey never took place. The failure of Stormforce to comply with fairly basic rules about surveys is, to me, evidence of a lack lustre approach to safety which was only reinforced by reports of Innes' failure to engage with the crew and skipper with any degree of urgency.

again absolute rubbish. the legislation is the legisaltion. It is either commercial or non commercial it is pretty black and white in the legislation, but sailing schools and the MCA interpret it in different ways. which is why the rules should have been changed

 

[lpdsn]

No the corner cut was in not having a survey.

That's what I said, delaying the survey. There's no evidence that he intended not to have a survey when the boat was back in the UK. And I've seen none (although evidence may have been presented) that he could've had a survey in the Carribean.

As to comparing his practices with other schools that is irrelevant nor his whether he was getting rich. I have said before if he had a survey done that was inconclusive or negative he would not be in the position he is in

Accepted practice elsewhere is entire relevant. That's where the MCA can't escape some responsibility for this as they allowed the industry in general to do what he was doing. Otherwise I could just turn up tomorrow and lock you up for not practising your archery on a regular basis, even though the authorities have allowed the English population to get away with that for quite some time now.

 

[Uricanejack]

How do you differentiate between negligence and gross negligence, for me when you do something even by omission that you know you should do and especially for financial expediency when it has a health and Safety aspect it becomes gross negligence. I am sure the judge must have given some direction in his summing up it would be interesting to know what it was.

That's what makes it hard.
The Judge will have given some direction, according to the article the Judge summed up to be found guilty the Jury had to decide the negligence amounted to a gross negligence. After that I suppose its a subjective question left to the Jury.
Was he negligent, The lesser conviction suggests the jury thought so.
Was it Gross? They were not able to agree.
Part of this must have been the severity of the charge. Manslaughter. Pretty serious.

It would be a hard decision. It would not be hard to convince me he was negligent. Convincing me it was Manslaughter. Would be tough.

 

[Fr J Hackett]

That's what I said, delaying the survey. There's no evidence that he intended not to have a survey when the boat was back in the UK. And I've seen none (although evidence may have been presented) that he could've had a survey in the Carribean.

The survey should clearly have been done BEFORE the boat left the Caribbean it is not the back of beyond and there are surveyors there his delay if it was delay was clearly designed to reduce costs by having it done in the UK.

Accepted practice elsewhere is entire relevant. That's where the MCA can't escape some responsibility for this as they allowed the industry in general to do what he was doing. Otherwise I could just turn up tomorrow and lock you up for not practising your archery on a regular basis, even though the authorities have allowed the English population to get away with that for quite some time now.

Accepted practice is no defence and he was advised by the MCA that his actions were not compliant further more the charge of manslaughter was brought under criminal law and whilst codes of practice and marine law will have had some bearing the question that it hinged on was one of negligence in failing to have the survey done.
The chestnut about archery practice is as valid as shooting a Welshman or Scotsman from the castle walls or whatever, long since redacted from the statute books.

 

[Uricanejack]

again absolute rubbish. the legislation is the legisaltion. It is either commercial or non commercial it is pretty black and white in the legislation, but sailing schools and the MCA interpret it in different ways. which is why the rules should have been changed

I wouldn't say it was rubbish.
The rules have a loop hole. People have been driving busses through. Some companies are still exploiting the same loopholes.

It would appear there is a good case for changing the rules to close the loopholes.

So the question now is
What are the MCA, RYA and ARC going to do about it?

 

[Fr J Hackett]

That's what makes it hard.
The Judge will have given some direction, according to the article the Judge summed up to be found guilty the Jury had to decide the negligence amounted to a gross negligence. After that I suppose its a subjective question left to the Jury.
Was he negligent, The lesser conviction suggests the jury thought so.
Was it Gross? They were not able to agree.
Part of this must have been the severity of the charge. Manslaughter. Pretty serious.

It would be a hard decision. It would not be hard to convince me he was negligent. Convincing me it was Manslaughter. Would be tough.

I disagree and you can see my definition and thats why the Jury failed to convict. The reason that I am so fixed on this is that for many years I held a section 98 appointee and lately a section 1 under the Mines and Quarries acts responsible for making appointments and providing the resource to manage, both had go to jail cards attached if you were negligent in your duties. Negligence was very clear cut.

 

[Elessar]

Or already completed an unsafe east to west crossing perhaps?

The blame is already largely pinned on Stormforce, they stand convicted of not running the boat safely. The question is, does that constitute manslaughter?

I have to say I feel some blame attaches to the skipper. Once you have leak in a grp boat and it's not the plumbing, it seems to me that the keel has to be suspect. An older, more experienced skipper might have either nursed the boat to a safe refuge or abandoned it? Or at least made some preparations for the possibility?
I've sailed with a couple of skippers who are not really skippers, they are told what to do on a daily or even hourly basis by owners and agents.
None of that lessens the tragedy, but I think people are forgetting that the ocean involves an element of risk, and being skipper is supposed to be about taking a very high level of responsibility.

I crossed biscay in a blow with that skipper as my mate. We got through some scrapes.
I gave him a job in my business when we got back.
Despite his age he had more experience, more tenacity, more ability, more inventiveness, and more intuitive reasoning than most of the posters here.
No one will ever know how he was overwhelmed, but he was better placed to get out of any situation than most.
Yes you may have sailed with some skippers who are not really skippers, but Andy was not one of those. I resent the implication that he was when you didn't know him.
I would have been happy for him to take my daughter on an ocean crossing.

 

[Kukri]

We are looking at an uncomfortable relationship on which the regulation of yachting in the UK is built - the MCA- RYA relationship. This is very delicate ground. I am not at all comfortable with extending regulation on grounds of "safety" or anything else.

 

[englishrobs]

I have absolutely no connection with the company whatsoever, so please dont think I am defending them, but what I find hard to believe is that for the last three years they have continued to run as business, Instructors and skippers have continued to work for them, the RYA has continued to send YM examiners down there. If there had been something going on outside of the industry norms, people and the RYA would have distanced themselves a long time ago. They all knew this court case was coming up and would have distanced themselves in droves

I'm not entirely convinced the RYA has acted consistently here. I can think of another Southampton based training school that lost its licence to train when two members of staff were taken to court by the MCA. There was no loss of life involved. The business collapsed unsurprisingly without any cash flow to support it. When the case came to court it was dismissed.

The tragedy here is the loss of life and the difference of opinions here possibly reflects the deliberations the jury went through. The MCA does need to clarify the rules.

 

[Uricanejack]

I think that the MCA Enforcement people may have been encouraged by the CPS to take a shot at a corporate manslaughter charge in order to try and get a conviction on the record to serve as a precedent and thereby to scare the living daylights out of merchant ship owners and managers. They tried and failed with the Herald of Free Enterprise and subsequently and they may well have thought that a sailing school would be a softer target than a lawyered up shipowner backed by his P&I Club.

I feel a good deal of sympathy for Mr Innes.

Edited to add - I should declare an interest - I work in commercial shipowning.

I have quite a lot of sympathy for D Innes as well.
Law or not. He was not the only yacht charterer or sailing school engaged in these practices. He was the guy running the company where the accident happened. The Guys running the other companies got lucky.

There is at least 1 Cowes based company currently advertising similar oppertunities on similar CAT 2 vessels. Even Yachtmaster Traineeships. This coming season.

If so it would be quite foolish. Trying to create law by precedent. You best have a damn good case or you will create the wrong precedent.
It was an individual manslaughter charge not the company.
The commercial shipping world has a long and very poor history of commercial gain for those at the top being more important than the safety of the vessel.
Going back to the early days of Lloyds. The Classification of ships was to protect the insurance underwriter. Not the ship or the crew.
Samuel Plimsol and his load line rule.
The Titanics life boats, She fully complied
The no of FOC ships lost with their crews over the last 3 decades.

The men with the money pulling the strings are almost never held accountable.

There is a Law here in Canada Bill C 51. result of the Westray Mine Disaster. So far a case never been pursued.

I think the MCA has been very agresive for some reason with the yacht segment. there have been a quite few prosecutions.

 

[steveej]

I disagree and you can see my definition and thats why the Jury failed to convict. The reason that I am so fixed on this is that for many years I held a section 98 appointee and lately a section 1 under the Mines and Quarries acts responsible for making appointments and providing the resource to manage, both had go to jail cards attached if you were negligent in your duties. Negligence was very clear cut.

the rules are the rules as written in the legislation. Do you have a commercial endorsement? If you do then you should know the basics. They seem very black and white to me about what constitutes a commercial passage and what does not. Im afraid to say that mining quarries is a different industry and what applies to one does not necessarily apply to the other.

Even then, some of the rules around what constitutes operating the vessel in a safe manner are very grey to say the least, as there are no explicit rules around how often you have to have a survey. Coding is irrelevent in this case as it was not a commercial voyage according to the law.

If companies/schools are operating in a manner that the MCA do not agree with then the MCA need to lobby government to get the rules changed and/or tightened up. Being disatisfied and waiting for decades for an accident to happen and then pursue a scapegoat does not seem to me to be the moral and best way to go about things.

I fail to see how gross negligence can be proven in this case when all the other operators are doing exactly the same thing. This is because to prove gross negligence you need to have behaved in a way that was not what other reasonable individuals involved in the industry would have done.

 

[Tranona]

Though not, of course, as devastating an impact as the Stormforce approach to the rules had on four families.

However the coding issue was not a direct contributory factor to the loss.

As you can see from the discussion here and the MAIB report there is still confusion as to where the line is drawn. Some suggest it is clear, but practice over the years plus the lack off clarification from either the MCA or the RYA suggests it is not.