Strongly enforced alcohol limit laws has led to a clampdown on professional mariners sailing under the influence of drink and drugs, yet legal loopholes for leisure vessel sailors have seen regulation drift into murkier waters, Terry Donaghy writes
Former UK Transport Minister Stephen Ladyman recently announced that the Department for Transport is to introduce an alcohol limit for non-professional mariners. This appears to be causing some consternation in leisure boating circles, and will also be of interest to yacht and pleasure craft insurers.
The legal alcohol limit for professional mariners has been enforced since March 2004 and is the same for motorists: 35 micrograms of alcohol in 100 millilitres of breath; 80 milligrams in 100 millilitres of blood; and 107 milligrams in 100 millilitres of urine (around a pint and a half or two pints of ordinary strength beer or two small glasses of wine).
The existing legislation S.78 Railway and Transport Safety Act 2003 makes it an offence for professional masters, pilots and seamen to exceed the prescribed limit while on duty. A separate provision, the S.58 Merchant Shipping Act 1995, also makes it an offence for any master or seaman to cause damage to his ship, another ship or structure, or cause the serious injury or death of any person while under the influence of drink or drugs. In both cases conviction can lead to a fine and/or maximum imprisonment of two years.
The Maritime and Coastguard Agency has become increasing zealous in prosecuting merchant seamen who infringe these regulations. In February 2006, the cargo ship Kathrin grounded on the Goodwin Sands after narrowly missing the East Goodwin light vessel. The Romanian master had fallen asleep on the bridge having consumed alcohol and was later sentenced to 11 months imprisonment. In another case, emergency towing vessel Anglian Sovereign caused pollution after it ran aground in September 2005 on the island of Oxna in the Shetlands. The skipper was breathalysed and subsequently sentenced to eight months in prison. More recently, in March 2006, the Greek master of the Leader was found over the limit when the vessel docked at Immingham and later sentenced to four months.
The DoT will be consulting on draft regulations for non-professional mariners later this summer. The new legislation will apply to anyone navigating a vessel more than seven metres (22.9ft) long and/or capable of a maximum speed of more than 8 knots (about 8mph).
However, there is a potentially serious loophole in the proposals, which will not extend to cover jet-skis. The current regulations apply to 'ships', defined under the Act to include "every description of a vessel used in navigation". The DoT has expressly acknowledged that jet-skis will not come within the existing rules because of the 2006 Court of Appeal ruling in the R v Goodwin case.
In May 2004, Mr Goodwin was riding a Yamaha Waverunner jet-ski at Bowleaze Cove, Weymouth, where he collided with another stationary jet-ski and seriously injured its rider. He was prosecuted under Section 58 of the MSA on the basis that while on board his craft, he negligently caused serious injury to another person. Mr Goodwin was convicted at the Crown Court and sentenced to six months imprisonment.
On his appeal, however, the Court of Appeal while accepting that the nature of the jet-ski's construction did not preclude it from being a vessel, it ruled that a vessel used in navigation meant a vessel used to make ordered progression over the water from one place to another. Crafts that were simply used for having fun on the water without the object of going anywhere, such as jet-skis, were not used in navigation, and were accordingly excluded from the definition of ship or vessel.
Clearly the onus is on the DoT to plug this loophole. There have been a number of serious fatalities and injuries involving jet-skis in UK and international waters and it would be regrettable if, in a future incident involving alcohol, a culpable party escaped prosecution under the loophole.
So what are the insurance implications for leisure sailors and their insurers? Like motorists, leisure mariners should bear firmly in mind that the consumption of alcohol may jeopardise their insurance cover should they be involved in an accident. Most UK yacht and motorboat insurance policies already contain an exclusion clause, whereby the insurers will not pay any claim arising from circumstances where a person in control of a vessel was under the influence of alcohol or drugs. Yacht insurers may no doubt be contemplating amending their policies to strengthen such exclusions with specific reference to the new laws.
Clearly in a serious alcohol related incident causing death or injury to another party, the consequences for an uninsured individual could be very severe. They would have no liability cover against third party claims, and would also not obtain an indemnity from insurers for any loss of or damage to their craft or other property in the incident.
Individuals engaged in chartering vessels may also run into difficulties if claims arise from an alcohol related incident. Their insurance cover may be jeopardised if they are at fault, or even possibly if the incident has been caused by a crew-member they have engaged for the vessel. Under the terms of the chartering agreement, the vessel owner may also be entitled to claim in full for any loss or damage to the vessel in such a situation.
With the situation under review its an area that water pleasure seekers and their insurers should be keeping a firm eye on.
- Terry Donaghy is partner in the marine and transit team at Weightmans solicitors.
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