By Captain E. S. Geary
In personal injury law, the phrase “joint and several liability” describes the responsibility each person has when two or more people caused the same injury. The phrase is a combination of two types of liability: “joint liability,” in which every person responsible for the injury is responsible for the full cost of the injury, and “several liability,” in which every person responsible for the injury is only responsible for the amount of the injury they personally caused.
The parties that are found responsible for the accident or incident are known as tortfeasors. Under the joint and several liability rule, a single tortfeasor can be held responsible for the total amount of damages even if he or she is only responsible for the plaintiff’s injuries to a small degree. If the plaintiff collects from only one jointly and severally liable defendant, that defendant can pursue the other responsible parties for contribution. Usually, the defendants’ liability for damages is reduced to the extent that the plaintiff was negligent.
In May 2014, Skipper Andrew Bridge, 22, and crew James Male, 23, Steve Warren, 52, and Paul Goslin, 56, died when the Cheeki Rafiki lost its keel 720nm east-southeast of Nova Scotia. Their bodies have never been found. The 40-foot (12m) Beneteau managed by Stormforce Coaching was returning to Southampton from Antigua Sailing Week.
While four charges of manslaughter were filed by the Crown Prosecution Service against Douglas Innes and his company Stormforce, many believe that the same charges should have been brought against the surveyor association that was responsible for her coding inspection. A number of legal pundits and Queen’s Counsel believe that Stormforce and the surveyor association had joint and several liability, having been negligent and disregarded their responsibilities in revealing the unseaworthiness of the Cheeki Rafiki. The case has been the subject of a jury trial in Winchester Crown Court.
As a result of incompetence, the surveyor association’s reputation has been tarnished and burdened due to negligence that led to the preventable loss of the Cheeki Rafiki. Whilst the surveyor association may have evaded prosecution for its connection and complicity in the loss of the Cheeki Rafiki, it has led to the maritime community losing faith and confidence in the reliability and expertise of its surveyors.
Following the loss of the Cheeki Rafiki and the death of its four crew it appears that the report of the surveyor who conducted the MCA coding inspection of the Cheeki Rafiki, irrespective of coding under Category 0 (unrestricted service) or Category 2 (up to 60 miles from a safe haven) failed to indicate (past or present) whether the keel bolts had been inspected to confirm their condition and structural integrity.
The court transcripts show that another reportedly qualified surveyor told the jury that in spite of the dangers of keel separation, it’s not required nor necessary to confirm the condition of keel bolts during coding inspections. The Maritime and Coastguard Agency’s Small Commercial Vessel Document of Compliance (SVC DoC) only makes reference to the keel/hull joint but every qualified and trained surveyor knows that the condition and integrity of the keel bolts influences seaworthiness because if the keel falls off, the yacht will capsize. If the keel bolts haven’t been properly inspected or are found to be defective, this should be noted on the MCA’s SCV DoC and is the sole responsibility of the certifying authority and its authorized surveyor.
Tight keel bolts don’t fail – rusted and loose keel bolts do fail, which is why in turbulent seas and parametric rolling in the North Atlantic the Cheeki Rafiki’s 3700kg keel swung free and eventually separated from the hull.
As first reported in the January/February 2015 issue of the RINA’S Ship and Boat International Magazine the loss of the Cheeki Rafiki was not an accident but the result of keel bolt failure. The publication of “Keel Bolt Failure – The Hidden Killer” included a detailed analysis of the loss and received worldwide attention. The article also addressed the issue of proximate cause as a result of gross or criminal negligence.
Criminal Negligence is defined in law as recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences). During the trial I was contacted by a number of reporters who asked for my views on the court proceedings.
“From what I’ve seen from the media reports much like a skilful artist Nigel Lickley QC is doing a great job in painting a picture of Innes in terms that the jury can relate to. The picture shows an incompetent manager apparently motivated by greed who appears to have had a total disregard for the safety of the yachts he managed and for the persons on board. The loss of the Cheeki Rafiki has proven that both organizations (Stormforce and the Certifying Authority) had the opportunity to ensure that the Cheeki Rafki was safe and seaworthy, but were grossly incompetent and in my opinion criminally negligent. In accordance with Section 100 of The Merchant Shipping Act, Douglas Innes the yacht’s manager, had a legal responsibility to maintain the Cheeki Rafiki in a seaworthy condition especially when considering her frequent groundings. As a result of sloppy oversight an incompetent coding surveyor failed to carry out a comprehensive survey when the Cheeki Rafiki was inspected for MCA Coding. Had Innes and the Certifying Authority done what they should have done the Cheeki Rafiki wouldn’t have been lost in the North Atlantic in May 2014 and the four sailors wouldn’t have died.”
The purpose of a comprehensive survey of a recreational sailboat or one coded under the MCA Code of Compliance is to ensure a yacht is compliant with flag regulations, and is safe and seaworthy. The transcript of the trial included the testimony of a surveyor who told the jury of laypersons that a reassessment for the Cheeki Rafiki‘s Category 2 code certification, “It (keel bolt testing) would not have been structurally tested during the inspection,” is absurd, but explains why the jury was unable to reach an affirmative verdict on the manslaughter charges.
His statements confirm and prove that some certifying authority surveyors lack the skill and knowledge to conduct comprehensive and reliable surveys. Any experienced and trained surveyor knows that the confirmation of the condition and integrity of keel bolts is a simple task. While the vessel is sitting on the hard and resting on its keel, the keel bolt nuts are sprayed with WD-40 (or similar solution) and loosened to ensure they’re free. Then using a calibrated torque wrench, they are tightened to the manufacturer’s specifications. If they are tight and don’t turn, the keel bolts would be considered sound; if a keel bolt or bolts continue to turn, they’re loose and must be replaced. Unless the vessel has sustained one or more previous groundings, keel bolt condition and integrity should always be confirmed at five-year intervals and recorded in the vessel’s Log Book.
The guilty verdict and conviction of Doug Innes prove that because of keel bolt failure four sailors died as a result of the gross negligence of Stormforce and a certifying authority surveyor who during its Coding survey may not have possessed the experience or knowledge to confirm keel bolt integrity. The records indicate that the Cheeki Rafiki had experienced a number of previous groundings and as a result her keel bolts were defective and loose. Failing to confirm the condition of the keel bolts before she sailed to Antigua led to the loss of the Cheeki Rafiki and the death of her crew.
With a record of frequent and known groundings and irrespective of whether these groundings were hard or soft Stormforce and the certifying authority had an inalienable responsibility to confirm the condition of the keel bolts, but didn’t.
Four sailors died as a result of gross negligence and noteworthy that the international print and electronic media has and continues to give extensive coverage to this tragic and preventable incident.
Articles in The Superyacht Report and the editorial in the current issue of the RINA’s Ship and Boat International magazine serves as an alert to warn other sailors of the hidden dangers of keel bolt failure and to be wary of incompetent organizations whose unqualified and/or inexperienced members produce unreliable surveys that fail to reveal and report issues of unseaworthiness.
A number of silks QCs (Queen’s Counsel) who have been following the case believe that after considering proximate cause, proof of negligence, wrongful death and the conviction of Doug Innes, the court will consider the provisions of Joint and Several liability and the apportionment of damages between Stormforce Coaching, the coding surveyor, the certifying authority’s scrutinizer, and the surveyor association and its officers and directors, which in this case is the Yacht Designers and Surveyors Association.
Capt E.S. Geary, P.Eng (UK) RICS Chartered Surveyor (Admiralty & Maritime)