Skipper meaningless

[Guest]

Re: Just to complicate matters

[ QUOTE ]
Actualy just thinking about it it might be that.
1. The owners were knowingly negligent in employing a person who they should have or did know was incompetent for the job.
2. The person in charge of the helm 'skipper' was negligent in causing the circumstance surrounding the accident.

[/ QUOTE ]

As mentioned before it's a matter of recklessness, not negligence. But you couldn't commit manslaughter just by recklessly employing someone who wasn't very competent, unless perhaps you knew that that person was a psychopathic lunatic whose speciailty was murdering peopoe by deliberately sinking boats.

Your proposition 2. is quite possible: as I say, whether he is called 'skipper' or not is not really the point. If it was the person in charge of the helm doing some really stupid things, then he could be prosecuted.

 

[Das_Boot]

Re: Just to complicate matters

Trying to work out the reasoning behind it is difficult without all the evidence. You are right the word negligent and reckless are not the same and have completley diffiernt outcomes when it comes to culpability. Just lazy thinking on my part.

 

[Guest]

Re: I thought, but I might be wrong!

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My understanding so far is that because there is no requirement in British law for someone in charge of the size boat they were on to have any formal qualifications there is no recognition of a skipper. Therefore as the prosocution put it ''in charge of the helm''.
Because there is no recognition of the term skipper or of the concept of skipper the owners and the person in charge of the helm are equaly responsible.
If there was recognition of someone beeing soley in charge (skipper) He/she and only he/she would have been charged.

[/ QUOTE ]

The court would recognise the concept of skipper if it was one used on the boat. They won't really be into technicalities, it is just trying to work out, on ALL the facts WHO was reckless. It may be relevant that one person was thought of as skipper, and that another was Ship's Cook, or it may not. There is no magic about the title of skipper, but it it would probably be a relevant fact. The court is not going to say that there was no skipper just because there is some technical argument about there being no legal requirement to have a qualified skipper, or whatever. They are interested on the ACTUAL situation on the boat.

 

[Das_Boot]

Re: I thought, but I might be wrong!

Ships Masters are charged with the conduct of their ship they sign articles it would be a departure from common practice if the owners were charged. Unless there was an issue of seaworthyness.
I suppose there would be a difference if the owners were on board. Anyway like I say I will wait for the facts I might have it completely wrong.

 

[kimhollamby]

Marchioness case

Might be worth a look at this:

Taylor Wessing commentary

The Marchioness case is going to be cited ad infinitum now I suspect...it certainly looked at the role of owners as well as skippers.

I suspect owners will always be culpable to some degree if it can be proven that they didn't select the right skipper and/or they didn't have the right procedures/equipment in place for intended activity.

Bit of a scary message in that of you as an owner decide to lend your boat to a best mate, for example, and something goes wrong.

 

[Guest]

Re: I thought, but I might be wrong!

I'm sorry to be pedantic about all this, but there is a tendency for people to treat the subject as something rather mysterious and difficult, that it is all a bit of a black art and a grey area. But it isn't, the basic principles are pretty simple (for each defendant separately it has to be proved beyond reasonable doubt: (i) "was he reckless as to causing grave injury or death", and (ii) was death caused as a result?) and the court does its best to apply the principle using common sense.

If there IS either a question of seaworthiness or if they were on board there would be nothing odd in them being charged, and the same goes for anyone else on board. I had understood from what you said that they WERE on board, so them being charged is not, on the face of it, very surprising.

As you say, we don't know the particular facts in this case and can only wait and see what happens. But that is pretty much irrelevant to the rest of us - what matters to other skippers and owners is the general principles involved: ie. in what circumstances can skippers and owners (and other crew members) be prosecuted. These general principles are something that we already know, because they are fixed by the law.

Of course, then there's the world of civil liability, which is a different ball game. It's easier to prove, but the same approach is taken. Instead of asking "was he reckless as to causing grave injury or death", they ask "was he negligent?" (delete the words about grave injury or death). Then: did the negligence cause the loss (delete the bit about death). Then: is it proved on the balance of probabilities? (instead of "beyond reasonable doubt").

And Bob's your uncle.

 

[Das_Boot]

Re: I thought, but I might be wrong!

I get what you are saying however recklessness must imply control you can only be reckless about things within your control.
One would assume that a skipper is in control and therefore all culpability rests with him.
If he is not in control then the word skipper has no meaning.

 

[Guest]

Re: Marchioness case

Interesting, but:

1. it's about passenger carrying/charter vessels. A whole raft of legislation applies to them that don't apply to private leisure boats. Such ships have to establish many procedures and carry lots of equipment etc. that are not required of private yachts. For example, one of the key recommendations of the report is "application of the International Safety Management Code to domestic passenger ships". The only recommendation to come out of the report that looks particularly relevant to us is the recommendation that a law should be adopted making being in command while drunk a criminal offence.

2. This is not a criminal investigation: they are rather trying to work out who blame can MORALLY be pinned on and what legislation is necessary to allow such blame to be pinned. They are not describing the current law. That is why they say "there is a real need for this legislation, with appropriate criminal sanctions". That in itself tells us that they think that the existing criminal law is not enough to convict those they blame.

It would be interesting to know who was actually locked up after the Marchioness disaster, and why. Captain Henderson, I would guess, and who else (if anyone) and on what basis?

 

[Guest]

Re: I thought, but I might be wrong!

The control concept doesn't really enter into it, except insofar as a person is hopefully normally in control of his own actions.

The helmsman doing a gybe for a laugh is one example: it's his action and his recklessness, not the skipper's. The exception is if the skipper has done something stupid (ie. reckless), like give the controls to a three year old while running goose-winged in a gale.

I'm not saying that being skipper doesn't carry responsibilities, which may make you liable if you bugger them up, but you yourself still have to be personally reckless/negligent ie. you DO have to bugger up your responsibilities

 

[Das_Boot]

Re: I thought, but I might be wrong!

I am begining to see the point. The skipper unless he has some sort of sanction cannot control the actions of others.

Where you have no minimum requirement of knowledge about what you are doing it is unreasonable to think that the skipper should have known that the boat was overloaded however it is reasonable for the boat owners to know that the boat was overloaded. Maybe the so called skippers recklesness was in handing over the helm to a 12 year old and this contributed to the accident?

 

[Guest]

Re: I thought, but I might be wrong!

Could be - was the allegation that the boat was overloaded and that the helm was given to a 12 year old? Sounds like the skipper and/or owners aboard could well have been reckless if that were the case.

 

[Das_Boot]

Re: I thought, but I might be wrong!

Those were the circumstance as I understand it or should I say as was reported in the times.
It is difficult when one persons guilt seems to absolve the very people he is charged with.
I await the outcome it should be interesting.