While the liability of private skippers and owners may not be so obvious, it is potentially an everyday problem for yacht charter companies

While the liability of private skippers and owners may not be so obvious, it is potentially an everyday problem for yacht charter companies

EXPERTS: Are you liable?

Stephanie Pritchett looks at the potential liability of skippers and owners

Wednesday April 21st 2004, Author: Stephanie Pritchett, Location: United Kingdom

As a skipper of a yacht are you going to be held legally liable if one of your crew members has an accident on board? Is the position different if you are a paid skipper on someone else's yacht? What steps do the competition authorities take to limit your liability? Do liability waivers really work? This article looks at some of the key issues involved in skippers' liability and should be read by all those (paid or unpaid) skippers setting sail to take part in a race or even just to take a few friends out for a casual Sunday sail.

Can the Skipper be legally liable if sued by a crew member?

Liability under the law of negligence

It is a well established principle of marine law that a skipper's primary responsibility is the safety of the crew and the vessel. In the event of an accident on board resulting in personal injury to a crew member, that crew member could bring an action under the law of negligence against a number of different people including the yacht skipper, the yacht owner, or the skipper of another boat involved (let's call these people the 'defendant').

To establish a negligence action the injured party would have to prove:

- that they were owed a duty of care by the defendant and;
- that the defendant was in breach of that duty of care and;
- that a particular injury in question arose as a result of that breach.

As it is the skipper's responsibility to ensure the safety of the crew, any negligent action on their behalf may give rise to a potential action against them if the defendant can argue the points above.

Liability under the Occupiers Liability Act 1954

Under the Occupiers Liability Act 1954 persons occupying or having control over any fixed or moveable structure, which would include any vessel, have a duty to take reasonable care to see that the visitor will be reasonably safe in using the vessel for the purposes for which he is invited or permitted by the occupier to be there. This Act applies to yachts and boats as a "vessel" and a skipper could be deemed to "have control".

A skipper's duty under this Act could be discharged by taking reasonable steps to give his crew members warning of potential dangers or by discouraging crew members from taking risks. Good skippers will normally do this anyway and it is taught on the RYA's Day Skipper and Yachtmaster courses. Additionally, it is worth bearing in mind that by not taking these steps, skippers could be opening themselves up to potential personal liability.

Liability under the Health and Safety At Work Act 1974

Under the Health and Safety At Work Act 1974 there is also potential criminal liability for skippers who are paying or hiring their crew. This Act imposes a duty on an employer and persons who have "control of premises" to take reasonable measures to ensure that premises are safe and without risk. To date, there are very few useful examples of skippers being sued under this Act. However, the Health Safety Executive are continuing to extend their scope of prosecution and skippers' should continue to bear this legislation in mind. Criminal liability brings a higher standard of proof. Consequently, a skipper would be required to show they actually did take measures to prevent the injury.

Can crew members also sue the event organising authority?

In many competition situations boat owners, skippers and even crew are required to sign individual limitation of liability and exclusion clauses. Such clauses are often found on the entry form or the notice of race and provide a means for charter companies, sailing clubs or other competition organisers to try and limit or exclude their liability for negligence.

Sailors taking part in events usually recognise the inherent risk of the sport and so these clauses are an attempt by event organisers to avoid a large number of negligence claims and can be very useful. However, most of the case law concerning waivers of liability confirms that event organisers should not rely solely on these exclusion clauses.The Courts will not always uphold them and adequate insurance arrangements should be in place to cover them as a matter of course. Depending on the circumstances, it is therefore possible that a crew member could have a potential negligence claim against the event organisers even if they have signed an exclusion of liability.

It is much more likely that injury sustained by a crew member will be the result of negligence by either their own skipper, or the skipper of another boat. It is therefore likely that a skipper would be held responsible for any injury sustained.

Can skippers limit or exclude their liability by getting their crew to sign a liability waiver?

It is clear that skippers are potentially at risk. An obvious solution to this risk would seem to be for skippers to get each of their crews to sign a waiver of liability before setting sail.

Whether or not such waivers would be enforced by the Courts following an accident at sea remains a grey area and there are very few examples of this.In our opinion it is unlikely for the following reasons:

- firstly, the possibility of a skipper being able to disclaim all liability for any negligence which causes injury to his crew through a waiver is not an idea that sits well with the general principles of marine law. To do so would be similar to a motorist getting his passenger to sign liability waivers and then disclaiming all liability for any injuries sustained by his passengers following an accident. The courts would not uphold such an agreement;
- secondly, it is usual for a crew member to placehis or her faith and safety in the hands, knowledge and experience of a skipper. It would not appear just and equitable if the Skipper was able to disclaim all responsibility for their negligent actions;
- finally, it is likely that the protection of the Unfair Contract Terms Act may apply to any waivers of this nature, and would invalidate any clause in a business contract (such as where skippers and/or crew members are paid for their services) which attempts to exclude liability for death or injury.

As waivers sit uncomfortably with fundamental principles it would seem unlikely that waivers will be considered acceptable by the Courts and so until this argument is tested skippers need to ensure that they are as well protected as they possibly can be by other methods.

So, what is the best method of protection for skippers?

The best way for skippers to offset or to minimise legal liability risks are as follows:

- to be aware of the inherent risks of the sport – both when cruising and when racing;
- not to hold themselves out as being more qualified than they actually are as they will be expected to show a duty of care commensurate with their level of qualification;
- not to take unnecessary risks – they should be sensible and remember that it is their decision as to whether it is appropriate to take their crew sailing bearing in mind a number of factors such as the state of their yacht and equipment, the insurance inplace, the weather, the experience of their crew and so on;
- ensure that their crew are properly briefed before leaving shore - including on safety procedures, the weather, the risks associated with the nature of the trip (in-shore or offshore sailing, racing etc.);
- get their crew members to sign a statement of understanding acknowledging their awareness of the risks and any potential dangers and confirming that they have been shown safety procedures etc. The statement of understanding would require positive actions on the skipper's behalf (for example, safety demonstrations) and cannot be simply a signature on a piece of paper. Although a statement such as this is not a waiver of liability, in the event of a claim being brought against a skipper, such a statement would go some way in proving that a skipper did everything that was reasonably practicable to forewarn and to safeguard their crew;
- ensure that they take further advice if they are sailing or participating in competitions in countries outside the U.K. and that they are aware of the inherent risks and obligations on them in doing so;
- and finally skippers should ensure that they take out insurance to cover themselves, their yacht, their crew, third party yachts and the crew of other yachts against all potential risks and losses. The insurance policy should correspond with what they are actually doing in practice. For example, they should consider with their broker what insurance policy is appropriate depending on:

- whether they use their yacht for cruising or racing?
- whether they will be staying inland or heading out of UK coastal waters?
- whether theyor their crew are being or will be paid?

Their insurance broker should be able to give more detailed advice on the types of insurance available and applicable premiums. They should then ensure that their insurance premium is carefully reviewed to ensure that it continues to cover all potential liability or loss and that it is kept up-to-date. They should also be alert to ensure that they do not jeopardise the terms of their insurance cover. For example, if their insurance policy covers them as a pleasure boat, the acceptance of payment from a crew member could cause them to be considered as a charter boat and invalidate their policy;

This article sets out some of the potential risks involved in skippering a yacht but should not be read as a substitute for specific legal advice in your particular circumstances. Burges Salmon are very keen to advise any sailors who are either entering into or are established within the world of professional or amateur sailing. Any enquires should be directed to Stephanie or Jonathan at 0117 939 2000 or via email at stephanie.calvin@burges-salmon.com or jonathan.oddy@burges-salmon.com. To find out more about Burges Salmon - click here.

If you have any experience of this you wish to share - please let us know

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