Hit and Miss?: An Elementary Analysis of Domestic Criminal Statutes and Involuntary Manslaughter in Fatal Maritime Collisions and near Miss Incidents
| Published date | 01 February 2014 |
| Author | Chaynee Hodgetts |
| Date | 01 February 2014 |
| DOI | 10.1350/jcla.2014.78.1.890 |
| Subject Matter | Comment |
COMMENT
Hit and Miss?: An Elementary Analysis of
Domestic Criminal Statutes and Involuntary
Manslaughter in Fatal Maritime Collisions
and Near Miss Incidents
Chaynee Hodgetts*
Keywords Maritime; Collisions; Manslaughter; Seafarers; Criminalisation
Marine criminal law is all at sea. Indeed, even the very definition of a
‘ship’ is a matter of considerable judicial and academic debate.1 There are
numerous possibilities in criminal charges following a maritime incident,
but very little research or case analysis on the nature of, or approach to,
maritime matters in criminal law. This is arguably partly due to their fre-
quency being somewhat less than ‘traditional’ crime, but also as a result
of such cases being heard routinely in the lower courts, at a local level,
and so being unreported. As a result, it is arguably difficult to predict the
verdict or sentence in cases which arise. Nevertheless, when a serious
incident does occur, both traditional and maritime criminal offences and
charges may be considered, and even international collision regulations
may be enforced by means of domestic criminal law. The problem remains,
however, of a lack of reported cases, or of any focused academic analysis
of domestic maritime criminal law, and the effect that this may have upon
such cases in practice.
It is possible that this Comment may be the first to consider this specific
area in any depth, with most existing literature being of only peripheral
relevance to analysis here. The lack of critical evaluation of this area of law
places both practitioners and mariners in an awkward predicament, as the
law may not be particularly certain, and many practitioners may be
unacquainted with the criminal law for mariners, or how to advise a client
in this respect following an emergency incident. Furthermore, there are
considerable evidential issues at sea, caused mostly by shipboard evidence
being gathered by crew members in less than ideal conditions, but used in
cases. It is, however, a matter of admissibility and evidence, which is
outside the scope of this Comment as it is more relevant to cases of ship-
board incidents of a shore-similar nature. This Comment is on the applica-
tion of domestic criminal statutes to maritime collisions and near miss
incidents, where evidence, though still an issue, is not the main matter to
discuss.
The application of domestic criminal statutes to serious maritime
incidents will be considered below by reference to black letter law. For the
1 B. Grant, ‘What Is a “ship”: R. v Goodwin in the Court of Appeal’ [2006] 2 Web JCLI.
The Journal of Criminal Law (2014) 78 JCL 27–42 27
doi:10.1350/jcla.2014.78.1.890
28
The Journal of Criminal Law
purposes of this Comment, consideration of a relevant incident will be
where charges of causing death results, from an incident of maritime
origin (for example, collision, near miss or grounding incidents, rather
than ‘traditional’ crime as ashore). The Comment will examine the present
offences used in cases of incidents of maritime origin, evaluate the
relevance and application of present statutory law, but also consider other
statutory and common law possibilities, and examine present problem
areas in the application of the domestic criminal law to mariners. Though
this is primarily a statutory review, the common law on involuntary
manslaughter has been integrated, as it is intrinsically interlinked to
criminal charges in cases of maritime fatalities, and may be indicted with
the relevant statutory sections. The areas examined include the application
of criminal law to fatal collisions and near miss incidents in domestic
criminal law, and thus consideration will be made of: gross negligence
manslaughter; constructive manslaughter; the Merchant Shipping Act
1995, ss 58 and 92; the Health and Safety at Work Act 1974; and the
International Regulations for Preventing Collisions at Sea 1972 (IRPCS),
implemented by the Merchant Shipping (Distress Signals and Prevention
of Collisions) Regulations 1996 (SI 1996 No. 75). The examination includes
a broad range of relevant statutes in order to provide an original perspective,
analysis of the law and its potential application.
Jurisdiction
To begin, it is perhaps appropriate to deal with the matter of jurisdiction in
the domestic application of criminal law in maritime cases. The issue of
jurisdiction is often flagged as being a pressing point in any case where
maritime law, or matters pertaining thereto, may be implicated. While this
is a most valid line of inquiry, particularly in terms of prosecutions, it is
likely to be relatively simple to satisfy the jurisdictional requirements in
UK law as to the application in a criminal context.
The relevant statutory definition is s. 282 of the Merchant Shipping Act
1995, ‘Offences committed by British seamen’:
(1) Any act in relation to property or person done in or at any place (ashore or
afloat) outside the United Kingdom by any master or seaman who at the time
is employed in a United Kingdom ship, which, if done in any part of the United
Kingdom, would be an offence under the law of any part of the United Kingdom,
shall —
(a) be an offence under that law, and
(b) be treated for the purposes of jurisdiction and trial, as if it had been done
within the jurisdiction of the Admiralty of England.
(2) Subsection (1) above also applies in relation to a person who had been so
employed within the period of three months expiring with the time when the
act was done.
(3) Subsections (1) and (2) above apply to omissions as they apply to acts.
The provisions of this section could be more encompassing than the section
heading suggests. If, as it seems, the section applies to all seamen employed
in British ships, and not just those of British nationality, this opens up
quite a set of questions. If correct, could this potentially imply that, as long
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