By John K. Fulweiler

When I raced weekend club races, we’d sail our keeled machine in tight to the shoreline. You’d see the bottom alright, and occasionally it’d reach up and give us a thump and we’d tack away pleased we’d snuck a little more yardage out of the effort.  A great aunt would thunder us kids across darkened Maine waters and nearly every time, the outboard would clunk to a stop and there’d be cursing and flashlights and flash of fillet knife as the prop was cleared. The thing is though, in those scenarios we’d invited the hazard aboard. The thump or clunk might’ve been a surprise, but the hazard itself wasn’t. I mean it’s not like we were sailing a prestigious global race and smacked into a charted reef. Uh-oh, did I offend? Sorry, folks, but I’m pretty shocked by the Team Vestas Wind grounding.

Now first up, I’m more of a Joshua Slocum as opposed to a Dennis Conner, Ted Turner or Charlie Enright so there’s a certain amount of perspective I’m potentially missing which I concede. For instance, the toll on a nine-member crew punishing themselves to place well on a race that continues day in and day out is worthy of consideration and something I haven’t experienced. Still, that an endeavor of this caliber could ground itself so miserably on the shoals of disaster (all puns intended) is incredible to me. I would give my eye teeth to be involved in the forensic investigation of how Team Vestas Wind’s multimillion dollar racing yacht fetched up at speed on shoals in the middle of the Indian Ocean. My eye teeth, darn it, and I don’t even know what they are!

From a liability perspective, the general maritime law of this country (which I don’t see applying in this instance) would raise two goalposts (unseaworthiness and negligence) that’d likely drive my investigatory endeavors. First, I’d want to know whether an unseaworthy condition aboard the vessel caused the grounding. An owner’s warranty of seaworthiness covers all parts of a vessel from the hull and machinery to gear and equipment. For instance, I’ve read commentary about how electronic charts may require a zooming action to fully display certain navigational hazards. If that’s the case (and I’m merely proposing the hypothetical), does that requirement rise to the level of making the vessel unseaworthy? Was this hypothetical the crux of what caused the grounding?

On the negligence front, the questions pile up around me like a freshly recovered spinnaker. For instance, with respect to the electronic charts hypothetical, were there warnings accompanying these electronics and did the crew understand the warnings?  Relatedly, what sort of navigational redundancy was employed aboard? That is, was the crew using a paper chart or another navigational aid to double-check their location? I’d also be keen to know whether the weighty burden of plotting one’s way across 28.4 million miles of Indian Ocean is shouldered only by the navigator or is there a “co-pilot” of sorts lending a second set of eyes to calculations and assumptions?

I could spend a whole morning asking questions about watch standing. How does the crew aboard one of these modded sailing Hoonigans set up for watch? In the midst of all the pressures I’m sure associated with clawing your way into a good finish, is there a crewmember specifically designated to keep watch? On that point, and appreciating how the metronome sounds of wind and water at night can be almost hypnotic, I’d be deeply interested in learning whether any of the crew perceived the hazard before the grounding? If not, why not? Are these sailing steeds equipped with lowly depth sounders? Was there no warning?

Look, I know asking questions from my armchair is rife for criticism, but this grounding could have ended very differently with people hurt and lives lost. Right now, it seems aside from bruised egos it’s just money that’s been lost, which presents the right circumstances for a bullish investigation. Indeed, with as much racing as there is left to do in the Volvo Ocean Race, it’d be nice to share some lessons from this incident with the rest of the fleet. Lessons, no doubt, us Joshua Slocum-like sailors might benefit from as well.

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 K. FulweilerAdmiralty attorney John K. Fulweiler, Esq. practices maritime law on the East and Gulf Coasts. As a former partner of a Manhattan maritime firm, John now helms his own practice located in Newport, Rhode Island where he helps individuals and businesses navigate the choppy waters of the maritime law. John can be reached anytime at 1-800-383-MAYDAY (6293) or via e-mail at john@fulweilerlaw.com.