Is the master of a leisure craft obliged to observe good seamanship? - International Law Office

Facts
Supreme Court decision
Comment


The Supreme Court recently issued a significant precedent regarding the requirement to observe good seamanship on non-merchant vessels.(1) Pursuant to Chapter 20, Section 2 of the Maritime Code, if a master, chief engineer, chief officer or other person who is responsible for safety at sea fails to discharge his or her obligations as a good seaman for the prevention of accidents, he or she shall be liable for failure to observe good seamanship. As a starting point, Chapter 1, Section 9 of the code stipulates that its provisions apply to non-merchant vessels only if the respective provision can be held to apply to the vessel in that particular case.

Facts

Thomas V – the defendant – conducted a leisure craft with 22 passengers onboard in the waters off Helsinki. The craft was over 17 metres long and had a 894.5 kilowatt engine. At the time of the accident it was dark and V was navigating using only a chart plotter (ie, a device used in marine navigation that integrates Global Positioning System data with an electronic navigational chart). Despite the fact that interference was hampering the effectiveness of the chart plotter, V continued to sail without referring to the radar or the navigational chart. As a result of a lack of attentiveness, the vessel passed a red lateral mark on the wrong side and the vessel grounded. Fortunately, all the passengers were rescued and none were injured. The prosecutor charged V with failing to observe good seamanship.

The Helsinki Maritime Court acquitted V of the charges, finding that the area in question was difficult to navigate, particularly in the dark, because several fairways crossed the area. Furthermore, other vessels had previously grounded in the same area but the prosecutor had made no charges in respect of these groundings.

The appeal court convicted V. The court found that he had failed to navigate properly in the dark and had neglected to use the radar and the navigational chart. He had proceeded even when the functioning of the chart plotter deteriorated. The damage to the craft was severe and the vessel could have sunk quickly had there not been an island close to the site of its grounding.

Supreme Court decision

The Supreme Court granted leave to appeal and acquitted V of the charges. The court found that Chapter 20, Section 2 of the code could be applied only to masters of merchant vessels, chief engineers, chief officers or other persons responsible for performing tasks relevant to safety at sea. The court held that the wording of the section made it clear that it could not be applied to persons conducting leisure craft. The court reasoned that the crew requirements for leisure craft are different from those for merchant vessels and the tasks and liabilities of the crew of leisure craft are not defined sufficiently as to create a presumption of criminal liability. The court declared that the criminal provision of Chapter 20, Section 2 of the code did not demonstrate sufficiently that it should apply to leisure craft. Thus, the court dismissed the charges on the basis of the legality principle.

Comment

This case deviates from previous case law – in an earlier case a yacht owner who attended a sailing trip was held to be the master of the yacht.(2) Although the case was a tort case and no far-reaching conclusions should be drawn from it on questions of criminal liability, in its decision the court appears to equate the definition of the 'master of a vessel' with the occupational title 'master mariner'. Consequently, the question arises as to whether a master mariner who conducts a leisure craft is then criminally accountable, pursuant to the code.

The maritime safety authorities are naturally concerned that the latest precedent will result in the creation of two distinct categories of seafarer: one which must obey the code and the International Regulation for Preventing Collision at Sea, and one which must obey only the water traffic rules. A further cause for concern is the fact that the owners of large, powerful vessels tend to be those with the poorest navigational skills. Thus, this development may be seen to be detrimental to maritime safety.

For further information on this topic please contact Matti Komonen or Herman Ljungberg at Hammarström Puhakka Partners, Attorneys Ltd by telephone (+358 9 474 2207), fax (+358 9 474 2247) or email (matti.komonen@hpplaw.fi or herman.ljungberg@hpplaw.fi).

Endnotes

(1) KKO 79:2010.

(2) KKO 126:1980.