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OCEAN LAW SCAPEGOAT OR SCOUNDREL? BY JUSTINE INNS The Costa Concordia in Malta C aptain Francesco Schettino had command of the 290m cruise liner Costa Concordia when she struck a rock off the Italian coast of Tuscany on January 13. Seventeen people were confirmed dead and a further 15 were still unaccounted for as of February 15. The news of the event has focused on reports of Captain Schettino's actions before and during the emergency, and in particular of him abandoning ship before many of his 4200 passengers and crew could do so. Italian maritime law makes it an offence for a captain to abandon his ship before her evacuation is complete, and Captain Schettino is reported as being under house arrest while that and other offences are investigated. The idea that the captain should be the last to leave the ship – or even go down with her – is deeply embedded in the public psyche, though it is not supported by any specific rule in international or New Zealand maritime law. The "women and children first" rule occupies a similar position in most people's minds, but has no status in law. Section 19 (1) (a) of the Maritime Transport Act does, however, make the master of a ship directly responsible for the safety and well-being of all the passengers and crew on his ship. The master's responsibility does not suddenly come to an end in an emergency once the order is given to abandon ship. As an aside, the responsibilities of a ship's master were first articulated in the 12th century Rolls of Oléron, which make interesting reading. (See www.admiraltylawguide.com/documents/ oleron.html) It's unlikely the job of ship's pilot would be an attractive one these days if article XXIII still applied: "If a pilot undertakes the conduct of a vessel, to bring her to St Malo, or any other port, and fail of his duty therein, so as the vessel miscarry by reason of his ignorance in what he undertook, and the merchants sustain damage thereby, he shall be obliged to make full satisfaction for the same, if he hath wherewithal; and if not, lose his head…" Captain Schettino is reported as having told the court he accidentally tripped and fell into a lifeboat while assisting passengers to board it and was unable to get back onto the ship. The transcript of a telephone call between him and a Coast Guard officer also proves illuminating. In the call, Schettino claimed to be co-ordinating the rescue from the lifeboat and that his first officer was with him. The Coast Guard commander demands the captain return to his ship and provide numbers of people remaining aboard. Had Captain Schettino been subject to the Maritime Transport Act, it is difficult to see how he could meet his responsibility to provide for the safety of all passengers and crew from a lifeboat. It has been argued that the captain might, conceivably, have been able to oversee the evacuation effectively from the relatively safety of the lifeboat. The fact that he could not tell the Coast Guard how many passengers and crew remained to be evacuated suggests that is not what happened, however. Looking at other aspects of liability for such an incident under New Zealand law, the Costa Concordia is reported to have diverted from her planned line of passage, being taken close to the island of Giglio, where she struck a rock and subsequently sank. The Maritime Transport Act makes it an offence to operate a ship in a manner which causes unnecessary risk to any person or property, irrespective of whether or not injury or damage occurs. This is a catch-all offence carrying a penalty for an individual of up to 12 months imprisonment or a fine of up to $10,000. The master of the Rena was reportedly charged with this offence after her grounding and it is difficult to see how someone in Captain Schettino's position would escape it. The failure to perform duties imposed by the Maritime Transport Act would also seem to support the laying of a charge of manslaughter under the Crimes Act. Given the crucial role played by the master of a vessel, both at law and in the public mind, it is not surprising to see Captain Schettino receiving a great deal of negative attention in the media. In the days since the tragedy, however, attention has increasingly turned to the role played by the cruise line's head office. There seems little doubt that the unfortunate captain made mistakes which had terrible consequences, but it remains possible he might be as much a scapegoat as a scoundrel. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 54 Professional Skipper March/April 2012 PHOTO: SEAPIXONLINE.COM/RAY ROUTLEDGE