Must the captain go down with the ship?

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The notion of a captain going down with the ship is well known, but what's the legal consequence if he or she does not? Are civil, criminal or professional penalties meted out to the ship's master who scoots and leaves passengers and crew fending for themselves? It's a ripe query, considering the reports of late where captains allegedly left the watery scene without so much as a goodbye.

The so-called “obligation” of the captain to go down with the ship is likely anecdotal. It's no doubt hyperbole of a design encouraging the person with the greatest potential of helping lives to hang around and render aid. Whether it's issues of vessel stability or the mechanics of lifeboat launching, the career ladder for a ship's captain is usually neatly linear, meaning he or she has worked all sorts of shipboard jobs.

This aggregated knowledge is what it takes to find fixes, develop workarounds and otherwise make the best of a bad situation. If I'm aboard a vessel in distress, whether it's flooding or on fire, the person I'm relying on to “MacGyver” our way to safety is the captain. They know the boat, and they know the sea.

In the heyday of trans-Atlantic shipping, New York hosted a ticker-tape parade for a captain who stayed alone aboard his sinking cargo vessel for two weeks. Capt. Kurt Carlsen is lauded as an international hero in the 1950s black-and-white newsreel that recounts his efforts to save the doomed Flying Enterprise off Falmouth, England, with heavy emphasis on courage and heroism. The captain lived on pound cake and warmed his hands over a candle while a gale roared on around him, the narrator explains. Although plucked from the sea having leapt from the ship, there's an indelible sense that forgiveness for the salty sin of losing one's vessel requires such heroics.

Undoubtedly, the captain who exits stage left leaves passengers and crew in an awful spot, but the criminalization of this abandonment is sparse. There's little law on the books. Apparently Ethiopian law makes it a crime for a ship's captain to abandon the vessel in times of distress, with “simple imprisonment” not exceeding one year being the seeming penalty. Likewise, South Korea found a basis to obtain a warrant for the arrest of the ferry Sewol's captain after it capsized in April on apparent grounds of negligence and abandoning people in need.

And when the Costa Concordia's captain reportedly sought to manage his maritime disaster from the safety of the shoreline, news reports explain that Italian authorities charged him with abandoning incapacitated passengers and failing to inform maritime authorities. To the extent there's a criminal penalty for a master's early departure, it appears country-driven, and there's no codified international law specifically treating the issue.

In the United States there's no specific federal statute prohibiting a captain from clambering off a vessel before passengers. Still, much of this country's maritime law is judge-made, and there are cases finding that the crew owe a unique duty to their passengers. One case is particularly gruesome and splays open the rawness of being huddled together aboard an overloaded lifeboat in the ice-strewn waters of 19th century Newfoundland. Without an emergency beacon to warm their hope and with less than a foot of freeboard, the survivors of the William Brown lived through the horror of the vessel's crew electing to toss the lifeboat's male passengers into the sea.

When manslaughter charges were brought in Philadelphia against the only crewmember located stateside, the court's revulsion was palpable. It wasn't the fact that some had to die to save others that bothered the court; it was the crew's election to spare themselves. It was the crew singling out the passengers instead of drawing lots (“sortation”) that the court found untenable.

The court's decision makes clear that the master and crew had a duty to the passengers and that duty went horribly awry in this instance. A scenario may exist where the foundations of judge-made maritime law, coupled with this country's criminal penalties, could be used to bring charges against a captain who scurries over the rail before passengers.

On the civil side of the ship, a captain abandoning a vessel when efforts otherwise might have had a reasonable chance of saving the day could give rise to liability. That liability, however, may not extend to the owners. The Convention for the Safety of Life at Sea imposes a duty on the owner to draft procedures for handling emergencies, and if that was done adequately, it could be tough to hang liability on the owner for the captain's early departure. What that means practically is that the claimants would be left gunning at the captain, who likely doesn't have the financial resources to satisfy any kind of big judgment.

But civil liability for damages is not the only concern, as maritime law encourages passing ships to intervene and render salvage services to vessels in distress. A captain who leaves the ship early could expose the vessel's owner to a much more robust claim of salvage because the rescuer is going to argue that the ship was essentially lost when the captain left, and the award given a salvor is measured by the degree of danger.

Perhaps it seems odd in an era of air travel to speak about a sea captain going down with the ship. Maybe it makes you wonder whether the Sully Sullenbergers of our day are a product of their fate being inextricably bound to their passengers? Although there are certainly scores of captains who voluntarily stayed too long in the aid of others, it would be nice to know there was some overriding legal obligation encouraging the scared skipper to remain aboard until all reasonable hope is gone. Maybe it's time to consider such a mandate.

John K. Fulweiler is a proctor in admiralty who runs his own maritime legal practice based in Newport, R.I. He is admitted to the federal and state bars of several jurisdictions, including Florida, New Jersey, New York and Rhode Island.

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Look for more on the captain’s responsibilities in the July issue of Soundings.