U.K.: Marine Casualties And Manslaughter

June 2003

(Sea Venture Volume 21)

Shipowners were able to breathe a small sigh of relief last autumn when the United Kingdom Government announced that it would not proceed with its manifesto commitment to overhaul the law of manslaughter in line with its draft Corporate Homicide Bill¹. This legislation would, among other things, have created a new offence of corporate killing and have made it easier to secure convictions for manslaughter against companies in circumstances where there was felt to be a general sloppiness, from Boardroom level downwards, and failure to ensure safety which resulted in death in the workplace.

That is the good news. The bad news is that Authorities still appear keen to prosecute wherever possible.

There is no statutory definition of corporate homicide in England but the offence undoubtedly exists at common law. A corporation is an artificial legal entity and there are obviously problems in attributing acts to it, let alone intention. Nevertheless, the prosecution may succeed in obtaining a conviction if it can persuade a Court that the person in control of the company should be identified with the management and operations of that company to such an extent that he can be considered the alter ego or directing mind of the company. One of the leading cases is R. v P&O European Ferries (Dover) Limited. This arose from the loss of the "Herald Of Free Enterprise" in 1987 when her Owners, and a number of others, were prosecuted. The acquittal of the company showed how difficult it is to make the necessary identification in a large company with a complex management structure.

The outcome was rather different in R. v Kite and OLL Limited. This was the prosecution that followed the Lyme Bay Canoe tragedy when four young people on an activity holiday, canoeing across Lyme Bay, were drowned. The company that organised and operated the activity holidays, OLL Limited, was a small private company and its Managing Director was intimately involved in all aspects of management and operations and had personal knowledge of the company's safety failings. Both the company and Mr. Kite were convicted of manslaughter. The company was fined £60,000 plus costs and Mr. Kite was imprisoned for three years, reduced to two years on appeal.

If a bigger target is not in practice available the Authorities may not be deterred from prosecuting an individual lower down the management chain; in March 2003 the prosecution of the Second Officer of the "Dutch Aquamarine" took place in Lewes Crown Court. He was charged with manslaughter following a collision two years earlier with the "Ash", when he was Officer of the watch, which resulted in the sinking of the "Ash" and the death of her Master. He was recently convicted and sentenced to twelve months in prison.

Members are strongly advised to notify the Club urgently in the event that one of their vessels sustains a casualty involving a death or serious injury. It is almost certain that in such circumstances the Authorities (which in the United Kingdom will be the Marine Accident Investigation Branch, the Marine and Coastguard Agency, the Health and Safety Executive or the Police on behalf of the local Coroner, or any combination of them) will wish to investigate and may attend promptly in order to gather evidence. The Club can advise how best to protect the Members' interests in relation to such enquiries and investigations and may be able to cover the provision of legal assistance.

 

With thanks to John Strange of Thomas Cooper & Stibbard for preparing this article.

1. At the time of going to Press, the Government has announced that an offence of corporate homicide is again on the agenda, and there is an intention to include it in a Bill currently being debated by Parliament and aimed at restricting a Defendant's right to Jury Trial in certain circumstances. Precise details of the offence have not been published at this stage.