Cheeki Rafiki deaths: Yacht firm boss guilty

[Fr J Hackett]

Yes.

Hence lack of survey is a complete red herring from a legal POV and, for different reasons, probably from a moral POV.

Nope the lack of survey and failure to code according to MCA recommendations showed a disregard for safety of the vessel and crew that's why he was found guilty.

 

[Fr J Hackett]

Probably the only difference is getting 60 miles before breaking the law.
I have been told that the proper loophole used is to have the boat returned by a delivery company under a business to business arrangement so that they are not your employees and are not paying passengers. How that works regarding the crew being employees of the delivery firm I'm not sure!
But the owning/managing firm avoids 'operating' the boat for the crossing.
Other boats make the passage crewed by owners and non-paying guests.
Some are freighted. Some are coded cat 0.

The deciding factor in whether it was a commercial venture was that it was still on charter to Stormforce and the MCA are quite clear about the ISAF exemption it is from the start line to finish it does not include a return trip after being on subsequent charter.

 

[lw395]

The deciding factor in whether it was a commercial venture was that it was still on charter to Stormforce and the MCA are quite clear about the ISAF exemption it is from the start line to finish it does not include a return trip after being on subsequent charter.

"The Code MGN 280 has been developed for application to United Kingdom (UK) vessels up to 24 metres load line length which are engaged at sea in activities on a commercial basis, which carry cargo and/or not more than 12 passengers, or provide a service in which neither cargo nor cargo are carried, or are UK pilot boats of whatever size. Information can be found on the MCA website: http://www.mcga.gov.uk/c4mca/mcga07-home.htm
"
A boat being delivered by a separate firm is not carrying freight, paying passengers or providing a service. Therefore the boat does not need to be coded.
AIUI, there are lots of firms that will deliver anyone's boat without it being coded.
I'm not sure what the rules really are in this area!

A boat being delivered by the same firm that operates it carrying freight or paying passengers seems to be deemed to be moving as part of that commercial activity. I.e if my business is yacht charter in Med and Antigua, moving from Antigua to Med, without passengers is seen as part of that trade.

 

[Kukri]

One can see just how easy it is to punch holes in the argument that because the boat was being delivered whilst on charter to Stormforce she was "operating commercially" whereras had her owner redelivered her to Stormforce and contracted with El Cheepo Yot Delivery Ltd to get her back she would not have been altough in the latter case money would have changed hands.

It's a nonsense, and the MCA could be challenged on it.

 

[Mark-1]

Nope the lack of survey and failure to code according to MCA recommendations showed a disregard for safety of the vessel and crew that's why he was found guilty.

Yeah. I've read further and changed my mind. (Just like you!) If YBW report of the summing up is correct it does look like not being code zero was just one factor and that the prosecution were arguing that the lack of survey before departure was part of the case. As was lack of survey after two previous groundings.

We'll never know how much weight the jury gave the lack of survey before departure given the defence claimed the survey was of equipment only, but it was certainly part of the case.

 

[lpdsn]

One can see just how easy it is to punch holes in the argument that because the boat was being delivered whilst on charter to Stormforce she was "operating commercially" whereras had her owner redelivered her to Stormforce and contracted with El Cheepo Yot Delivery Ltd to get her back she would not have been altough in the latter case money would have changed hands.

It's a nonsense, and the MCA could be challenged on it.

It'll be interesting to see if there's an appeal in that area. As it currently stands after this case it effectively stops charter companies moving boats, although they may well start to find ways around it.

In the end, it's nothing to do with the keel falling off, which is the much more important thing.

 

[Fr J Hackett]

"The Code MGN 280 has been developed for application to United Kingdom (UK) vessels up to 24 metres load line length which are engaged at sea in activities on a commercial basis, which carry cargo and/or not more than 12 passengers, or provide a service in which neither cargo nor cargo are carried, or are UK pilot boats of whatever size. Information can be found on the MCA website: http://www.mcga.gov.uk/c4mca/mcga07-home.htm
"
A boat being delivered by a separate firm is not carrying freight, paying passengers or providing a service. Therefore the boat does not need to be coded.
AIUI, there are lots of firms that will deliver anyone's boat without it being coded.
I'm not sure what the rules really are in this area!

A boat being delivered by the same firm that operates it carrying freight or paying passengers seems to be deemed to be moving as part of that commercial activity. I.e if my business is yacht charter in Med and Antigua, moving from Antigua to Med, without passengers is seen as part of that trade.

One can see just how easy it is to punch holes in the argument that because the boat was being delivered whilst on charter to Stormforce she was "operating commercially" whereras had her owner redelivered her to Stormforce and contracted with El Cheepo Yot Delivery Ltd to get her back she would not have been altough in the latter case money would have changed hands.

It's a nonsense, and the MCA could be challenged on it.

That is the view that was presented to Innes he chose to ignore it, that is what the judge would have made hi summing up on not the MCA interpretation but the cumulative actions of Innes specifically designed to save costs. The only ponderable is whether his actions amounted to gross negligence or simply negligence. if the latter he will be found not guilty of manslaughter. There are 4 criteria that need to be taken into account:

1. the defendant owed a duty to the deceased to take care;
2. the defendant breached this duty;
3. the breach caused the death of the deceased; and
4. the defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.

​It is point 3 that is debatable if it is answered in the affirmative 4 follows.
That is where the jury had misgivings the judge apparently did not.

 

[Fr J Hackett]

It'll be interesting to see if there's an appeal in that area. As it currently stands after this case it effectively stops charter companies moving boats, although they may well start to find ways around it.

In the end, it's nothing to do with the keel falling off, which is the much more important thing.

Indeed if Innes had followed advice there is the possibility that nothing would have been found the keel would have fallen off and he would not have faced court action. There is also the probability that the life raft would have self launched or been able to be launched and at least some of the crew would have been able to board it and would have survived.

 

[lw395]

Already been addressed the likelyhood is that the companies that had their accreditation were offering RYA backed courses others including Stormforce were not.

Eh?
Being an RYA training operation and flogging their courses are pretty much the same thing.

 

[sarabande]

Unpalatable though it may be to read LW395's post that the skipper alone has responsibility for the conduct of the boat, not some chap on the end of an intermittent satphone in an office 2000 miles away, I recall numerous RYA and Board of Trade courses where that suggestion was presented and underlined in relation both boat and crew management.

A prudent, supportive, and experienced office might have said, "Oh, by the way, probably a good idea if you get the liferaft and grab bag ready) but nothing absolves the skipper (by many personal accounts on the forum a competent and effective master) from taking whatever actions he regards as necessary for the best conduct of his vessel. It is not impossible to think that his mindset to defer to the office was preconditioned by management relationships with StormForce in their previous employment and relationship.

 

[bedouin]

1. the defendant owed a duty to the deceased to take care;
2. the defendant breached this duty;
3. the breach caused the death of the deceased; and
4. the defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.

​It is point 3 that is debatable if it is answered in the affirmative 4 follows.
That is where the jury had misgivings the judge apparently did not.

I don't believe 4 follows directly from 3. I think he must reasonably have been able to foresee that his breach could have led to the accident.

 

[lpdsn]

Indeed if Innes had followed advice there is the possibility that nothing would have been found the keel would have fallen off and he would not have faced court action. There is also the probability that the life raft would have self launched or been able to be launched and at least some of the crew would have been able to board it and would have survived.

That wouldn't have got him Cat 0, so no reason to believe that. You could say that if he hadn't been down the pub and hadn't been fat and maybe a little shifty looking (I've never met him, but the photos show his appearance probably didn't help) he may not have been found guilty.

And yes, the crew may have been able to swim after a float-free liferaft in a F6 and catch it.

 

[lw395]

Unpalatable though it may be to read LW395's post that the skipper alone has responsibility for the conduct of the boat, not some chap on the end of an intermittent satphone in an office 2000 miles away, I recall numerous RYA and Board of Trade courses where that suggestion was presented and underlined in relation both boat and crew management.

A prudent, supportive, and experienced office might have said, "Oh, by the way, probably a good idea if you get the liferaft and grab bag ready) but nothing absolves the skipper (by many personal accounts on the forum a competent and effective master) from taking whatever actions he regards as necessary for the best conduct of his vessel. It is not impossible to think that his mindset to defer to the office was preconditioned by management relationships with StormForce in their previous employment and relationship.

Thank you.
Minor point, I never said 'the skipper alone'. Or never intended to. To the extent that the bloke in the office can influence things, I think they have to bear responsibility for that.

 

[lpdsn]

The only ponderable is whether his actions amounted to gross negligence or simply negligence. if the latter he will be found not guilty of manslaughter. There are 4 criteria that need to be taken into account:

1. the defendant owed a duty to the deceased to take care;
2. the defendant breached this duty;
3. the breach caused the death of the deceased; and
4. the defendant's negligence was gross, that is, it showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment.

​It is point 3 that is debatable if it is answered in the affirmative 4 follows.
That is where the jury had misgivings the judge apparently did not.

Point 3 is very debatable. There's good reason to suspect that the damage that caused the keel to drop off persisted through the repair from the hard grounding and subsequent survey and therefore the main cause may well have been as a result of the design and lack of industry knowledge of managing that design after damage.

 

[Kukri]

I don't believe 4 follows directly from 3. I think he must reasonably have been able to foresee that his breach could have led to the accident.

I agree. The foreseeability of the consequences of his actions is critical.

 

[Fr J Hackett]

Eh?
Being an RYA training operation and flogging their courses are pretty much the same thing.

Nope Stormforce and others do not offer or were not offering RYA validated courses therefore there was no action that the RYA could take.

 

[Fr J Hackett]

That wouldn't have got him Cat 0, so no reason to believe that. You could say that if he hadn't been down the pub and hadn't been fat and maybe a little shifty looking (I've never met him, but the photos show his appearance probably didn't help) he may not have been found guilty.

And yes, the crew may have been able to swim after a float-free liferaft in a F6 and catch it.

A recognised category surveyor has indicated to the MCA that with modification and the life raft position and securing plus the addition of a second life raft were major items, would enable CR to attain Cat 0 certification.

 

[Fr J Hackett]

Point 3 is very debatable. There's good reason to suspect that the damage that caused the keel to drop off persisted through the repair from the hard grounding and subsequent survey and therefore the main cause may well have been as a result of the design and lack of industry knowledge of managing that design after damage.

You have to take into account the internal interim inspections clearly used to by pass external ones which ultimately lead to the certification lapsing. Reading the MAIB report would indicate that industry surveying knew of reasons that delamination and keel problems might be masked so there is no reason why a well informed and competent surveyor would not have delved deeper.

 

[Fr J Hackett]

I don't believe 4 follows directly from 3. I think he must reasonably have been able to foresee that his breach could have led to the accident.

I agree. The foreseeability of the consequences of his actions is critical.

The words to look at are disregard for life and safety of others, that was effectively proven with the guilty verdict under section 100 of the Merchant Shipping act 1995.

 

[Fr J Hackett]

Unpalatable though it may be to read LW395's post that the skipper alone has responsibility for the conduct of the boat, not some chap on the end of an intermittent satphone in an office 2000 miles away, I recall numerous RYA and Board of Trade courses where that suggestion was presented and underlined in relation both boat and crew management.

A prudent, supportive, and experienced office might have said, "Oh, by the way, probably a good idea if you get the liferaft and grab bag ready) but nothing absolves the skipper (by many personal accounts on the forum a competent and effective master) from taking whatever actions he regards as necessary for the best conduct of his vessel. It is not impossible to think that his mindset to defer to the office was preconditioned by management relationships with StormForce in their previous employment and relationship.

The diver inspection found that the life raft was ready to deploy insomuch as the fastenings had been loosened as advised by by Innes in one of his last telephone calls advising to prepare for abandonment. So the actions had been taken but it seems clear that the vessel was overwhelmed so quickly that the crew were not able to release it from under its seat. Much is made of this in the MAIB report and the fact that if the vessel had been prepared to cat 0 then it would have been able to float free and auto inflate.