Operators and maritime accidents

A maritime accident always has a cause. We sometimes ascribe it to “an act of God,” but, in fact, virtually all accidents on the water have a human element, and the identification of that element can often affect the lives of those involved.

Boat operators are trained to deal with accidents in physical terms, with contingency plans and emergency drills, but there are some rarely considered aspects of an operator’s reaction to an accident that may have dramatic effects on his and his company’s liability and, in some cases, on his career and even his freedom. For example, a boat operator may mistakenly and with honest intent admit error after an accident even when the cause was more complicated than he realized. Unfortunately, however, this admission will almost certainly find its way into court.

An operator’s first reactions to any accident should be to stabilize the situation, prevent further damage or injury, treat any injuries, and report the incident to his superiors. However, he may also be confronted by others, either by those involved or onlookers, and his words at the time, even though he was understandably upset and confused, will be held against him. There’s an old saying among lawyers: “There is no truth in court, only testimony and evidence.”

The prudent boat operator will always follow his office’s instructions in such a situation unless they are counter to his morality or to law or regulation. However, in the absence of, or before receiving, such instructions, he should think for himself. One way to prepare is to review mentally, before an accident, the proper procedures.

First, he should never admit error at the scene. Even when accosted on the radio by the other vessel — “Why did you turn in front of me like that?” — he should avoid discussing the events that preceded the incident. The proper response is, “Skipper, let’s deal with that later. Right now, is there anything I can do to assist you?”

Second, as soon as the emergency has passed, he should immediately document in writing or otherwise the events that preceded the accident. No matter how clear they may seem at the time, they will inexorably fade into obscurity as time passes and conflicting stories emerge. The names and telephone numbers of all witnesses should be obtained. If there is any difficulty with this — for example, the master of the adverse vessel refuses to give his name — that should be documented as well.

Third, he should take as many photographs as possible of his vessel, the adverse vessel, and any other structure, dock or vessel that may have been involved. Take photographs of adverse parties and any witnesses for future reference. If the camera has a video feature, a video of the adverse vessel, even after the incident, may reveal significant maneuvering characteristics. Video of the people involved could also reveal impairment or a personality trait with a bearing on the accident.

Lastly, he should make sure that no member of his crew repairs or alters any part of his vessel that may have been involved except to prevent further damage or injury. To allow such alteration could spark an accusation, even if unfair, that the crew attempted to conceal the cause of the incident, which could later lead to criminal charges.

There is no maritime commerce without vessel movement, and there is no vessel movement without accidents. It’s an inescapable part of our business, and the law is structured to deal with that. As vessel operators, we need to realize that an accident is not the end result of its causes but is instead the opening act of a drama with consequences that may be more far-reaching than the event itself.

About the author

Capt. Max Hardberger

Max Hardberger is a maritime attorney, flight instructor, writer, and maritime repo man. He has been a correspondent for WorkBoat since 1995. His memoir, Seized: A Sea Captain’s Adventures Battling Scoundrels and Pirates While Recovering Stolen Ships in the World’s Most Troubled Waters, was published by Broadway Books in 2010. He’s appeared on FOX, The Learning Channel, National Public Radio and the BBC, and has been the subject of articles in Fairplay Magazine, the Los Angeles Times, Men’s Journal, Esquire (UK), and the London Sunday Guardian.

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