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Builder fights keel failure conviction

Jury in Australia acquits a welder but convicts his boss for the tragedy that claimed four lives

An executive in an Australian boatbuilding firm is appealing his manslaughter conviction in the deaths of four sailors whose racing yacht lost its keel and capsized in the Pacific in 2002.

Australian forensic police document the hull and keel of Excalibur after it was hauled in 2002. Four crewmembers died when the keel failed and the boat capsized.

Alexander Cittadini had been charged with either knowing the stainless-steel keel on the 51-foot aluminum sloop, Excalibur, had been improperly built or failing to apply sufficient quality-control measures. A jury in New South Wales criminal court found him guilty by majority vote. He faces 25 years in prison.

“Mr. Cittadini intends to appeal,” says his current attorney, Simon Mitchell. “We will argue that the verdict is unreasonable. The evidence at the trial showed that he had expressly prohibited the cutting of the keel, the act which ultimately led to the deaths of four persons on Excalibur. To make him responsible for that act, done in secret, constitutes a miscarriage of justice.”

A co-defendant, Adrian Presland, a welder, was acquitted by the same jury. “He [Presland] always maintained that he knew nothing whatsoever of the keel being cut across horizontally and welded back together,” says Peter Gray, Presland’s attorney. “His view always was that someone else must have done so, behind his back.”

Pat Barrett, crown prosecutor in the case, says he is “pleased with the result from the point of view that it will now make the ‘industry’ sit up and take notice and work towards the setting of some useful standards for production quality in yacht construction.”

Excalibur was only four months old when, returning to Sydney from a race in northeastern Australia, the crew hove-to in rough conditions to raise a storm jib. The skipper was alone on deck, and the other five crew members were below when the keel broke off near the hull and Excalibur capsized. The skipper and one crewmember survived. Four others drowned, but only one of the bodies was recovered.

According to a court document, “Manslaughter by criminal negligence is committed where an accused causes the death of a person by an act or omission which so far falls short of the standard of care required by a reasonable person, that it goes beyond a matter of civil wrong and amounts to a crime.”

Further, the document states, “Where it is alleged that the accused is guilty of manslaughter by reason of an omission, the crown must prove that the accused owed a personal legal duty of care to the victim and failed to carry out that duty to such a high degree that it could be viewed as ‘wicked’ negligence.”

Unchallenged is that someone at Applied Alloy Yachts, Cittadini’s company, cut the metal pieces for each side of the keel — port and starboard — horizontally in two, bent the pieces separately and welded them together. The yacht was recovered after the tragedy, and the keel was broken along those welds.

In his closing argument, Cittadini’s trial attorney, Stephen Odgers, told the jury his client not only was unaware the cut had been made but had in place a seven-part quality control system that included hiring qualified tradesmen and foremen, providing them with detailed instructions and with explicit orders not to cut the keel, as was done.

Odgers also told the jury that Cittadini’s customer had not required the company to institute any specific quality control system, a requirement that would have increased the cost of the yacht.

“I have to say to you it is far from clear what they [the prosecution] have said a reasonable person in the position of Mr. Cittadini would have done by way of a system of construction,” Odgers told the jury. And he quoted his client as telling police during an investigation that, “There were no particular standards operating in respect of the construction of yachts in 2000-2001” when Excalibur was built.

The same jurors who disregarded Odgers’ arguments and voted 11 to 1 to convict Cittadini found Presland, the welder, innocent of all charges.

In his closing arguments, Presland’s attorney, Gray, told the jury the prosecutor “has not come within a bull’s roar” of proving its case. Gray reminded the jury that expert witnesses had said the cut in the keel and the rewelding had probably been done in connection with a problem involving a hydraulic ram used in the yacht’s keel-centerboard mechanism. That problem was addressed after Presland had fabricated the steel keel, Gray noted, adding that a dozen or more individuals had the keys to the shop and the ability to make the cut and perform the welding — perhaps after hours in an attempt to avoid detection.

Witnesses testified that Presland was a perfectionist in his welding, Gray told the jury, while experts had maintained that the welding to rejoin the severed keel was substandard.

Even if the jury believed Presland had made the changes to the keel, Gray argued, the evidence indicated the welder was not familiar with yachts and had no comprehension that such changes could be lethal. That ignorance, he claimed, absolved Presland under the ‘wicked’ negligence standard.

“There is a good deal of discussion here in the wake of the verdicts as to what significance the case may or may not have by way of precedent,” says Gray. “Certainly there have been very few cases in this country which have raised comparable questions about the liability of a manufacturer for gross criminal negligence.”

This article originally appeared in the June 2009 issue.