This parish hymnal that is my monthly missive should convey something helpful to the sailor. It’s not legal advice, but it aims at issue spotting and sparking a synapse. Nothing would make me smile more broadly (aside from watching my daughter snap her Opti around a mark like she’s on rails) than having this column light up a lively cockpit discussion. And so onward, Christian soldiers as we examine the murky world of picking up crew for voyages. That’s right, let’s talk about the criminal case that was brought (unsuccessfully) against the captain of a 42-foot sailboat transiting south along the East Coast when a crewmember allegedly jumped overboard. It’s a hell’uva fact pattern and I don’t have the space to unfold all the issues, but I believe the outcome was correct.
What I understand is the sailboat’s captain contends he took aboard a crewmember during a voyage from Maine to the Virgin Islands. At some point somewhere off the mid-Atlantic region, the crewmember is alleged to have become mutinous, struck the captain and ultimately jumped off the vessel. The allegation is that the crew struck his head and sank.
At any rate, the sailboat gets to the Virgin Islands and how I understand the chronology is that the United States charges the sailboat’s captain with “Seaman’s Manslaughter” pursuant to 18 U.S.C. § 1115 titled: “Misconduct or neglect of ship officers.” In pertinent part, the statute reads as follows:
Every captain, engineer, pilot, or other person employed on any steamboat or vessel, by whose misconduct, negligence, or inattention to his duties on such vessel the life of any person is destroyed, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
In reviewing the Court’s docket, it appears the indictment contended that the captain’s alleged failures to stop and render assistance, deploy his EPIRB, make use of his VHF or deploy a search and recovery pattern caused the death of the crewmember. Now what we need right now is good ol’ Saul from the Bible because if you don’t know (and, as Biggie Smalls would rhyme, now you know), he liked his cursing. All I can offer is a few F-bombs. This is crazy time.
There was testimony hither and thither and I haven’t unfolded who said what about this or that, but my opinion is that the facts favored the captain. In my view, the captain and crew did make efforts to determine if the crewmember had surfaced. Whatever the case, assuming the allegation that the captain was pummeled and choked by this crewmember is correct, this wasn’t in my opinion a normal situation. This was something out of a horror movie. A scriptwriter would have to work hard to find a more terror-filled plot than being trapped aboard a small sailboat, far out at sea with a crewmember who’s become completely unhinged.
Ultimately, the captain moved to dismiss the charges against him based on three waypoints. First, the captain argued the statute he was charged under only applied to commercial vessels. That is, because he wasn’t carrying passengers or cargo for hire, he argued he wasn’t subject to the simple negligence standard set forth in the statute. Next, the captain contended there wasn’t sufficient evidence that he’d directly caused the crewmember’s death. Here, the captain pointed to prior case law requiring a direct connection between the captain’s conduct and a crew’s death. There was zero evidence, the captain asserted, that a rescue effort would have saved the crew’s life because there was no evidence the crewmember had ever surfaced. And thirdly, the captain quoted from an 1864 case for the point that he owed no duty to the crewmember. In other words, the captain argued that the crewmember’s actions made him a mutineer and a pirate. The duty to rescue a man overboard, he alleged, is limited to those instances where a rescue can be made without endangering the safety of the ship and lives of the crew.
On January 16, 2019, the Court granted the captain’s motion to dismiss and a judgment of acquittal was entered. I don’t know why this lawsuit was brought because, frankly, I don’t well understand the workings of the criminal justice system. If it was as a warning to underscore what’s expected of sailors, I’d pay attention. I don’t know what was done or wasn’t done by the captain and crew of the s/v Cimarron, and it’s hard against the alleged fact pattern to distill a takeaway.
For me, I would consider just documenting the stuffing out of the event and what resources were expended. I’d probably also terminate the voyage, as the weather and seas allowed, and get myself into the nearest port so I could report the incident, etc. The arguments as to this manslaughter statute applying only in the context of commercial voyages is interesting and might be something to keep on your mind should you be inclined to accept payment for carrying passengers or cargo aboard.The Boating Barrister
In deference to my Christian anchoring, let me say something else in closing. It’s not hard to feel terrible for all parties involved here. I don’t know what drove the man who allegedly jumped overboard, but it’s tragic. The captain and the other crew, no doubt, were anguished and deeply scarred by the incident. And the captain, he alone carried the angst and worry of the indictment.
Give it some thought. They’re plenty of news articles you can plumb for more information. Share your opinion on how you see the matter. I’d be curious.
This article is provided for your general information, is not legal opinion and should not be relied upon, but feel free to use any of the maritime expressions I’ve shared in this column! Always seek legal counsel to understand your rights and remedies.
Underway and making way.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or john@saltwaterlaw.com, or visit his website at saltwaterlaw.com.
