Vineyard Race

Going Down to the Sea, But Not with the Ship

By John K. Fulweiler

The lore of a captain going down with the ship is well known, but what’s the legal consequence? Are civil, criminal or professional penalties meted out to the ship’s master who scoots clear leaving passengers and crew fending for themselves? 

The concept of a captain as somehow being obligated to go down with the ship is likely anecdotal. It’s no doubt hyperbole of a design encouraging the person with the greatest potential of helping lives to hang around and render aid. There’s a certain awe, I think, people possess for those in the command of a vessel.   

During the heyday of transatlantic shipping, New York City hosted a ticker tape parade for a ship’s captain who stayed alone aboard his sinking cargo vessel. Lauded as an international hero, the 1950s black & white newsreel recounts Captain Kurt Carlsen’s efforts to save the doomed Flying Enterprise with heavy emphasis on courage and heroism. Why, the narrator explains, the captain lived on pound cake and warmed his hands over a candle while the gale roared on around him. Although ultimately plucked from the sea having leapt from the ship’s funnel, there’s an indelible sense that forgiveness for the salty sin of losing one’s vessel requires such heroics.  

Undoubtedly the ship’s captain who exits stage left leaves passengers and remaining crew in an awful spot, but the criminalization of this abandonment is sort of sparse.  There’s little law on the books. Apparently, Ethiopian law makes it a crime for a ship’s captain to abandon the ship in times of distress, with the penalty being “simple imprisonment” not to exceed one year. Likewise, news reports suggest authorities charged the captain of the Costa Concordia under an Italian law for his reported shore-side as opposed to bridge-side management of the disaster. To the extent there’s a criminal penalty for a Master’s early departure, it’s country-driven and there’s no codified international law treating the issue. 

In the United States, there’s no specific federal statute prohibiting a captain from clambering off a vessel before the passengers. Still, much of this country’s maritime law is judge-made and they’re cases finding that the crew owe a unique duty to their passengers. One case is particularly gruesome and splays open the rawness of being huddled together aboard an overloaded lifeboat in the ice-strewn waters of 19th Century Newfoundland. Without an emergency beacon’s electronic chirp to warm their hope and with less than a foot of freeboard, the survivors of the vessel William Brown lived through the horror of the vessel’s crew electing to toss the lifeboat’s male passengers into the sea. When manslaughter charges were later brought in Philadelphia against the only crewmember located stateside, the Court’s revulsion is palpable. It wasn’t the fact that some had to die to save the others that bothered the Court; it was the crew's election to spare themselves. It was the crew singling out the passengers instead of drawing lots (‘sortation’) that the Court found untenable. The Court’s decision makes clear that the master and crew have a duty to the passengers and that duty went horribly awry in this instance. A scenario exists where the foundations of this case and the seaman’s manslaughter statute could be used to bring charges against a captain who left the vessel before the passengers. 

On the civil side of the ship, a captain abandoning the vessel when efforts otherwise might have had a reasonable chance of saving the day could give rise to liability. That liability, however, may not extend to the owners. The Safety of Life at Sea Convention imposes a duty on the owner to draft procedures for handling emergencies and if that was done adequately, it could be tough to hang liability on the owner for the captain’s early departure. What that means practically is the claimants would be left gunning at the captain, who likely doesn’t have the financial resources to satisfy any kind of big judgment. But civil liability is not the only concern as the maritime law encourages passing ships to intervene and render salvage services to vessels in distress. A captain who leaves the ship early could expose the vessel’s owner to a much more robust claim of salvage because the rescuer is going to argue the ship was essentially lost when the captain left, and the award given a salvor is measured by the degree of danger.

It maybe seems odd in an era of air travel to speak about a sea captain going down with the ship. It maybe makes you wonder whether the Captain Scullys of our day are a product of their fate being inextricably bound to the passengers? Whatever the case, the sea plays fickle with the fates of those in distress and it’d be nice to believe there was some overriding legal obligation imposed on a ship’s captain. Maybe it’s time. 

This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies. 

Underway and making way.

John FulweilerJohn K. Fulweiler, Esq. is a licensed captain and a Proctor-In-Admiralty. His legal practice is devoted to maritime law and he represents individuals and marine businesses throughout the Atlantic and Gulf Coasts. He does not represent insurance companies. He may be reached anytime at 1-800-383-MAYDAY (6293), or at his Newport, Rhode Island desk at 401-667-0977 or john@saltwaterlaw.com.


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