By Dorie Cox
Three years ago, a brutal crime changed the life of a yacht stew forever. Last month, many pondered whether it would change the yachting industry forever as well.
The woman, who is in her early 20s, was violently raped while living and working on board M/Y Endless Summer, a 150-foot Feadship. The Triton is not naming the victim because of the nature of the incident. The assailant was a deckhand, also living and working on board. The yacht’s project manager was the only other person on board as the yacht was undergoing refit at Universal Marine Center in Fort Lauderdale on Feb. 25, 2015. The assailant was arrested and sentenced to two years in jail, then deported home to Poland. That part of the case is closed.
In February 2016, the stew filed a civil lawsuit against the yacht and project manager for damages. That suit was soon amended and the project manager was dismissed as a defendant, leaving the owner of the yacht, Island Girl Ltd., as the sole defendant. The company was sued under the Jones Act on the basis of negligence, unseaworthiness, and denial of maintenance and cure by the vessel after the attack.
The jury found that the woman was “acting as a crew of a vessel in navigation” and that Island Girl was negligent in “failing to adopt and enforce an alcohol control policy” and “failing to determine the sobriety and health of the crew before the crew boarded the vessel.” Further, it found that the vessel was unseaworthy because of an “inadequate security system” and “a non-functioning telecommunications system which made it impossible for [the woman] to call for help.”
Attorneys for the owner had denied the claims, instead claiming the woman “failed to exercise ordinary care, caution or prudence for her own welfare,” according to court records.
On Jan. 30, the jury in the Broward County, Florida, courtroom awarded the stew more than $70 million for damages. That included about $4.27 million for lost wages, about $300,000 for medical expenses and more than $66 million for physical pain and suffering, mental or emotional anguish, inconvenience, discomfort and loss of capacity for enjoyment of life.
The future earnings number was based on the stew’s testimony that although she worked as a stew, she wanted to become a yacht engineer, according to her attorney Adam Horowitz, trial attorney with Horowitz Law in Fort Lauderdale.
Those numbers hit hard. Yacht captains, yacht managers, maritime attorneys, insurance companies, training facilities and others took note. Conversation varies, but most agree with Capt. Gregory Clark of M/Y D’Natalin IV.
“No crew member, male or female, should be subjected to abuse or harm of any kind from fellow crew members,” Capt. Clark wrote in an email to The Triton. “My heart goes out to the stewardess who was raped. She is certainly deserving of full medical compensation, lost wage compensation and a reasonable amount of punitive damage for ‘pain and suffering’ as rape is a crime of violence and it can take a long time for a victim to overcome or even cope with the outcome of such an experience.”
But many also agree with Capt. Clark that the award against the yacht owner is troubling.
“The ‘safe working environment’ in any company, be it a shoreside business or a yacht, is determined by policy, established and declared in various rules and regulations published by the employer or manager,” Clark wrote. “If a co-worker in an office-based business decides to violently assault another co-worker, how is that the company’s responsibility? Are we to hire security guards to be present at all times and to supervise all crew, day and night? And who is to attest or guarantee the security guards’ good character? How can you make everyone safe from everyone else all the time?
“I encourage my crew to report inappropriate activity, and on several occasions they have and I have taken action, but in truth, sometimes they don’t want to say anything or rat out a fellow crew member, and in any case, it’s after the fact,” Clark wrote. “The yacht can have a policy, talk about it, have it in writing in the SEA [Seafarer’s Employment Agreement] or handbook, but if someone decides to ignore the policy and act inappropriately toward another crew member, how should that be the owner’s responsibility?”
From inside yachting, most think things run well. But many believe there is room for improvement. To that end, captains are using the incident as an opportunity to talk with crew, increase awareness and review standard operating procedures on board. Many captains, including Capt. Herb Magney, are making changes.
“I will have to beef up our sexual harassment clause,” Capt. Magney said. “If I don’t take action, in any eyes, I am negligent. And I am the agent for the owner, or it could be the charterer. The captain is responsible for the culture onboard. At the end of day, there is only one person responsible ‒ the captain.”
“This underscores that captains have a huge responsibility,” said Michael Moore, a maritime attorney with Moore & Company in Miami. “They run an entire ecosystem, an entire building that crosses international borders. The No. 1 thing to look for in a captain is good judgment. They literally have life and limb in their care.”
“This is a big number, it gets a lot of attention. My advice is to be careful, use good judgment in how you can protect people. Juries will hold you accountable. Judgment starts with who is hired and who is on board,” he said.
Crew need to be hired based on their profile and need to be guided by the senior crew to have mutual respect for each other, said Rick Buell, director of U.S. yacht management for Camper & Nicholsons.
“It comes down to understanding crews’ personalities before and after hiring,” Buell said. “It is important for the captains, officers and heads of department to work closely with them and monitor and analyze their behaviors. A few clients request psychological and personality evaluations as well as background checks. It is important to understand the regulations in your country regarding privacy and background checks.”
Because of the incident, Buell said, the company is working on plans to minimize risks for their fleets, and he is talking with colleagues and captains on what prevention policies to implement.
“The captains and owners need to make sure they operate their yachts professionally at all times,” Buell said. “When hired to an office on land, there are strict human resource regulations. If someone makes someone feel uncomfortable or touches someone inappropriately, they are immediately dismissed.”
Key to the award was the issue of safety onboard.
“This attack should be a wake-up call to vessel crews, managers and agencies that the safety of crew needs to be addressed as part of the safety plan for the vessel,” said Capt. Ted Morley, COO and academic principal of Maritime Professional Training (MPT) in Fort Lauderdale. “The safety of vessel crews is the single most important consideration for owners and operators. That cannot be compromised or undermined for any reason.”
This is accomplished through means other than required courses, he said.
“This goes way beyond a training issue; the STCW Code and the ILO address this issue quite extensively so adding more training isn’t the answer,” Capt. Morley said. “Captains and managers have expressed interest in developing more extensive background check policies and personal evaluations for crew members. This was a horrific attack, and the industry needs to take every step possible to ensure that it does not happen again.”
Current training requirements meet just the minimum standards, said Brian Luke, president of Bluewater Crew Training in Fort Lauderdale.
“The IMO sets the minimum certification and training requirements to work on board a ship,” Luke said. “Typically, crew only educate and train to these requirements.”
STCW 2010 (Standards of Training, Certification, and Watchkeeping) consists of the required basic training elements and includes PSSR (Personal Safety and Social Responsibility), Luke said. PSSR is basic induction training in safety procedures and accident prevention, and familiarizes novices with the employment conditions and working environment of superyachts. Sexual harassment is a small part of this element, he said.
“I would like to see more elements related to rape and personal attacks addressed in this course,” he said. “Our PSSR is an approved course from the U.S. Coast Guard and MCA (Maritime and Coastguard Agency) – we can’t just add or take away from the course contents as we desire.”
Any adjustments must be approved, he said, so in the meantime, Bluewater will offer an elective course on personal safety and self defense. He hopes that the crew will take the initiative to go above and beyond required training.
“A few years back, many were touting the need for additional leadership skills training,” he said. “We offered this additional training. Many were saying that leadership skills were very important and lacking in professional yachting for those holding leadership positions. But at that time, who took an extra leadership course? Hardly anyone.”
Another area of minimum requirements are in vessel manning, Buell said.
“The requirement for minimum safe manning of a vessel is exactly that: minimum,” he said. “Issues may arise during rotations, vacations or when in dry dock or layup that yachts reduce crew size.”
Often this is done to reduce payroll and to give the crew their required time off, or for crew changes, Buell said. But such changes may require a second look.
“It is important to understand the dynamics of ages, gender and experience before allowing crew to work as a skeleton staff,” Buell said. “It is traditionally not a good thing to have only two or three crew working in a shipyard, for safety issues as well as for oversight.”
Yacht insurance coverage could see some changes, but it is too early to know, said John Jarvie, vice president of Oversea Yacht Insurance in Fort Lauderdale.
“I have been contacted by many concerned owners asking for advice,” he said. “For the moment, all we can do is to review coverage on their current insurance policy and promote best business practices, like in any other business. … We are not the insurance company involved, but this case will certainly have an impact on all marine insurance providers.”
All policies exclude illegal activities such as rape, Jarvie said, but most extend to cover the owner’s liability for their paid crew.
“There would certainly be exclusions for owners engaging in such behavior, but when the crew are involved in sexual assault there may or may not be coverage depending on the specific insurer and their policy language,” Jarvie said.
The insurance industry aims to be proactive, but this may be a case where it reacts like cyber coverage, he said.
“Cyber liability was not a major yachting issue until recent years when vessels started getting hacked,” he said. “Insurers have reacted and are beginning to offer cyber coverage for their owners.”
Similarly, after last year’s hurricane season, we saw a major reaction from insurers with more strict hurricane prevention requirements and, in some cases, increased premiums/deductibles, he said. Although owners expect to see premiums decrease when they don’t file claims, insurance companies constantly have to take on added exposure as society changes, he said.
Capt. Jack Haney is one of many yacht captains “having deep discussions with the owners” about whether the yacht has sufficient insurance coverage, including professional indemnity insurance (PI) for defense and damages. The conversation was triggered when M/Y Endless Summer was arrested by U.S. Marshals after the rape case award.
“For example, say you have a $14 million boat and you only have $5 million in PI coverage,” Capt. Haney said. “Then someone gets awarded above the policy value. Next thing is the asset gets seized, even in an LLC. If the only asset is the boat, there goes the boat.”
Yacht captains are on the front line of what many describe as a wake-up call. Conversation continues among yacht captains online, including on superyachtcaptains.com, a membership site of 1,400 subscribers run by Colin Squire, founder of YachtFile and Yachting Matters. Captains offer ideas to each other, but often come to a similar conclusion.
“However many checks are made on crew before employment – and during, with drug tests, etc. – some bad apples will always make it through,” Squire wrote in an email.
Some industry veterans, such as Jeff Erdmann, think that although this will bring positive change, the industry may face serious consequences. He experience includes decades as a yacht broker, currently with Denison Yacht Sales, and 10 years on the board of directors with Florida Yacht Brokers Association, now International Yacht Brokers Association.
“Hiring a foreign crew member that had not been properly vetted with background checks is inexcusable and careless,” Erdmann said. “It will be a wake-up call to owners to be more cautious, which is good, but I’m afraid it may cause some owners to get out or stay out of yachting, which will injure an already fragile industry.”
Capt. Clark shares Erdmann’s concern for the yachting industry overall.
“This is exactly the sort of abuse of the legal system that will destroy yachting,” Capt. Clark wrote. “Yachts are toys for the wealthy. If the risks of ownership outweigh the reward of ownership, guess what will happen. Owners all accept a certain amount of risk, but this case brings things to a whole new level. Now a yacht owner’s entire fortune can conceivably be held hostage to a crew member’s claim that they were not kept safe – what, from their fellow crew members? Where will this end?”
Dorie Cox is editor of The Triton. Comments on this story are welcome below.