Liability - any experts?

[ShinyShoe]

I'll just get all my visiting mates to sign a disclaimer!

What are you asking them to disclaim? Liability if they trip and break an ankle on the pontoon? Or liability because the lifejacket you supplied has been at the bottom of a locker for 5 years, hasn't been tested and probably doesn't work?

The first - they would have struggled to be your fault (see the reference to the "Ordinary Man on the Clapham Omnibus" - a legal test of what is reasonable behaviour). I'd expect a half decent defence lawyer to be saying to a judge or jury - look here are 20 photos of pontoons. They all clearly have trip hazards. This one is no different. They didn't need a sign to say "trip hazard" they are obvious, they didn't need a sign to say "slippy surface" its near the sea what would the man on the Clapham Omnibus expect. The disclaimer need never be waved

The second I'd expect a decent lawyer for the claimant to be saying no man on the Omnibus would sign away his rights to be owed a common sense duty of care like being provided a lifejacket that can be expected to work. You can't disclaim all liability...

The argument it usually about duty of care and whether that has been breached. Normally it is difficult to show duty of care in social situations such as mates sailing with you unless you specifically ask somebody to do something that goes wrong - the jumping off the boat being a good example. It changes if there is a professional relationship such as under instruction where the instructor owes a duty of care.

I think the examples to OP posted are not about asking someone to jump off. They are about equipment failure. Would a court feel you had a duty of care to have working life jackets on board a yacht for everyone carried... I suspect so. If you were moving from pontoon A to pontoon B and said "Jim can you give me hand" and then when he came aboard said "Oh no - I've left the lifejackets at home - and Jim says - I can swim I'll be fine..." I think you have a defence that he was aware of the risks and was happy to continue. If you are moving from Plymouth to Portsmouth - I don't think you can defend making the journey. I may be wrong.

That is not the view of the courts. A deliberate act is recklessness, not negligence, and is specifically excluded by my insurance policy. To successfully sue for the tort of negligence you need to establish 3 things, on the balance of probabilty.
1. That a duty of care was owed. This is a very broad concept and is often cited as a duty owing to a neighbour, famously defined by Lord Denning as the man on the Clapham omnibus, i.e. anyone you come into contact with.
2. That a loss was incurred.
3. That a reasonably competent person, in this case the skipper, would not have caused the loss.

So returning to the OP's examples. He provides a life jacket but it fails. The test will be did he did the duty of care include ensuring the life jacket was functional. The jury will decide (and every jury is different). But I'd fully expect guidance on Sea Safety Checks etc to be brought into court. A "reasonably competent" skipper would presumably check his life jackets at least annually with an inflation test and check cylinders more often. If you've done that... it is hard to see there would be liability if there is it doesn't sound reckless.

On the other hand. If the OP went out last week with a different friend who lent against the guard wire, it snapped and he fell in. The friend is fished out and says "The life jacket didn't inflate. I had to blow it up by mouth". In the following week the skipper 'repairs' the guard wire with some 3mm cord he has lying in a locker. He washes off the lifejacket and gives it a quick examine and says "Oh the cylinder was loose and tightens it, then folds it all up and puts it away" and then his fresh mate joins him this weekend and is issued same lifejacket. Asked to sign a disclaimer or not - if he goes out falls against the 3mm cord which snaps because it only had a breaking strain of 800N and the fall was an 80kg guy hitting it. He then falls in the water and surprise surprise the life jacket fails and he drowns...

There would certainly be a discussion of "recklessness" to be considered. But even if your insurer was prepared to cover the financial costs - can you convince me that there wouldn't be a case for manslaughter gross negligence?

There does seem to be more of an appetite for this sort of charge recently. The guy doing the Shoreham Air Show for instance...

Not an expert but I think there is a difference between the man on the clapam omnibus and the man driving the clapam omnibus.
Certificate or not you are in charge of a boat you have a duty of care to anyone who comes with you.

If the test is "reasonably competent person" it doesn't matter in terms of the test.
BUT the punishment may be higher... ...you see it in driving cases... professional drivers get punished harder. Plus loose future job prospects.

I may be wrong - but I think a Jury is likely to frown on things that are seen to be "cost saving" more than things that are poor skill. So you provide a 15 year old lifejacket from the bottom of the locker you are stuffed. You misjudge a manouvre and jibe - you might be OK. Put yourself in the Jury's shoes: you can assume all Yachty types have money! So in your shoes they have money and they'd buy new lifejackets. But they couldn't have sailed any better than you.

If you have insurance - my worry would not be "liability" in terms of ££££. It would be liability in terms of criminal prosecution - that can not be insured against if it has a prison sentence...

 

[Tranona]

If you have insurance - my worry would not be "liability" in terms of ££££. It would be liability in terms of criminal prosecution - that can not be insured against if it has a prison sentence...

Criminal prosecutions are extremely rare, and very difficult to make stick as the example I gave earlier shows. The criminal prosecution failed as did subsequent civil proceedings, although that (from memory) did not go to court. There are numerous other examples of failed criminal prosecutions related to boating incidents, not least the current Cheeki Rafiki case where a jury failed to agree a verdict and there is currently a retrial.

Most of these cases involve some sort of commercial operation or at least "professional" involvement and often follow an official investigation where the findings highlight failings of some sort or other that lead to a criminal investigation. I can't recall any cases that involve only private people, but no doubt a proper search may reveal some.

 

[Graham376]

What are you asking them to disclaim? Liability if they trip and break an ankle on the pontoon? Or liability because the lifejacket you supplied has been at the bottom of a locker for 5 years, hasn't been tested and probably doesn't work?

Many years ago, I was involved with the BGA in the rewording of indemnities used by gliding clubs. Legal advice stated these indemnities which basically said "if you maim or kill me, its not your problem" were useless as IIRC (thinking back 30 years or so) whereas you can sign away your rights as far as property damage is concerned, you can't be asked to do that for injury or death through negligence. My recollection is a bit hazy, maybe someone else has better knowledge?

 

[penberth3]

...So you provide a 15 year old lifejacket from the bottom of the locker you are stuffed...

Another thread seems to be full of people who do exactly that!

 

[ShinyShoe]

Criminal prosecutions are extremely rare, and very difficult to make stick as the example I gave earlier shows.

That was the reason I gave a far fetched example of re-using a failing life jacket etc.

There are numerous other examples of failed criminal prosecutions related to boating incidents

Most of these cases involve some sort of commercial operation or at least "professional" involvement and often follow an official investigation where the findings highlight failings of some sort or other that lead to a criminal investigation. I can't recall any cases that involve only private people, but no doubt a proper search may reveal some.

I'm not sure about for manslaughter. Bear in mind that in a large proportion of cases the skipper goes down with the others and that leaves no-one to prosecute. That perhaps explains why a business can be held to account after the fact, as does variations in legislation for commercial vs pleasure sailors.

But if you want an example of a private sailor being charged take a look at these two:
https://www.theguardian.com/uk-news/2013/oct/25/skipper-fined-cowes-week-collision (No commercial element to the activity)
(Guilty of failing to keep a proper lookout and impeding the passage of the tanker in a channel)

http://www.dailyecho.co.uk/news/15174644.Tears_as_boat_driver_is_cleared_of_manslaughter/
(Not guilty of manslaughter)

Neither involved a commercial element.

Rare - but does happen.

The Shoreham Air Crash - again one of those exceptionally rare incidents where the pilot survives and others don't, and even rarer that people not involved in the flight are injured/killed. Hard to imagine a similar incident on a boat. Causing another boat to hit something by avoiding you perhaps?

 

[Tranona]

That was the reason I gave a far fetched example of re-using a failing life jacket etc.



I'm not sure about for manslaughter. Bear in mind that in a large proportion of cases the skipper goes down with the others and that leaves no-one to prosecute. That perhaps explains why a business can be held to account after the fact, as does variations in legislation for commercial vs pleasure sailors.

But if you want an example of a private sailor being charged take a look at these two:
https://www.theguardian.com/uk-news/2013/oct/25/skipper-fined-cowes-week-collision (No commercial element to the activity)
(Guilty of failing to keep a proper lookout and impeding the passage of the tanker in a channel)

http://www.dailyecho.co.uk/news/15174644.Tears_as_boat_driver_is_cleared_of_manslaughter/
(Not guilty of manslaughter)

Neither involved a commercial element.

Rare - but does happen.

The Shoreham Air Crash - again one of those exceptionally rare incidents where the pilot survives and others don't, and even rarer that people not involved in the flight are injured/killed. Hard to imagine a similar incident on a boat. Causing another boat to hit something by avoiding you perhaps?

Neither of those are particularly relevant to the issues that are raised by this thread. The first was a straightforward Co Regs case and the second in a sense the fact that it involved a boat was not really an issue.

I had in mind examples such as the one already quoted which involved a sailing school, the current one that involves a charter management company, the Ouzo incident which involved a ferry and a small yacht, others involving delivery companies, crew coming to harm on commercially operated vessels such as the recent one where are crew member fell from high up a mast.

Difficult to recall any cases that reflect the concerns raised initially about duty of care owed by skippers to other crew members or guests on private leisure vessels that do not involve a commercial element.

Does not mean that there are no incidents that potentially fall into this category, just that they don't seem to escalate to either criminal or civil proceedings in court that may then contribute to case law.

 

[wotayottie]

Would anyone be able to give me a brief summary of a private yacht owner's liability for claims made by guests if something terrible, or even not so terrible were to happen aboard?

Assume perhaps that I invite a friend, give them a lifejacket that fails to inflate, or a guard wire breaks and they go for a swim but don't bob back up to the surface....etc....that sort of thing.

I asked a friend along the other day for a delivery trip of sorts...I said that I did not vouch for any equipment or the boat as I had no experience of it (in fact it was a new to me, but old, boat)....he seemed happy enough but I was a little embarrassed to have said it and I am interested to know the legal position.

You have a lot of replies and I havent read them all so what I am about to write might well have been covered already. Be very careful where children are involved - there is an age below which they have to be supervised by a responsible adult and you cannot rely to the same degree on trying to cover your backside by warnings , exclusion clauses etc. Personally I will not take a child on board unless its parent is on board too.
The other issue is that in judging your negligence, the court will take your background into account. So what is expected of a yachtmaster with 30 years under his belt is a lot more than what is expected of a beginner day skipper. Not unreasonable really.

 

[[3889]]

You had better tell the police and other emergency services that, they must all be wrong in not calling a pile up an accident, they are road traffic "incidents".

Not my experience after a 25 year career in the Fire Service, including lecturing on the legal responsibilities of incident command. There's a reason that the vehicle extrication instructors course at the National Fire Service College is called the RTAI, not the RTII.

 

[Sea-Fever]

Many fine replies to my original question, thanks all.

There doesn't appear to be a firm consensus on the liability you face as a private skipper in respect of injury of crew whilst aboard. However I think it's fair to say that any resulting court proceedings are relatively few and far between. The moral case for keeping a yacht and equipment in good order is clear, but the legal boundaries are not. The extent of any maintenance and safety provision will be largely dependent on budget. I suppose we should be glad that there isn't tighter regulation. No doubt as I move on with my own boaty fun I'll think less about safety and the 'have I done enough' worries and concentrate more on what pint might be available at my destination.

 

[Uricanejack]

Sort of but not quite

While I think mostly about enjoying the trip and the pint at the end.
I do think about safety and I think take it quite seriously. It’s just become part of what I do so it’s part of the routine. Nothing special about it. You will probably find with experience you will worry less as a result of being more confident what you are doing is safe.
If you are not sure it’s safe don’t do it. Sound simplistic doesn’t it.
I believe as a person in charge of a boat I have taken on a responsibility for anyone who comes with me.
I also face liability for people who ride in my car and even visit my home. It’s just part of life.
Probably the responsibility for someone else I found the most daunting. Was when I first became a parent.
Looking back fortunately despite my utter incompetence. It worked out so far.
Taking them sailing . Never mind liability. I would have had to explain it to my wife which was a far greater concern.

 

[Biggles Wader]

Not my experience after a 25 year career in the Fire Service, including lecturing on the legal responsibilities of incident command. There's a reason that the vehicle extrication instructors course at the National Fire Service College is called the RTAI, not the RTII.

Yes but the Fire (and rescue) Service may have updated its name from Brigade but it is apparently yet to get up to speed with the 21st century. They are definitely RTCs nowadays. It might be worth skipping a couple of fashionable name changes and jumping back on the bandwagon for next season. I'm told they will be called Serious Hard Impact Traumas.:encouragement: