Master or Servant: A Corporation's Liability for the Activities of a Ship's Master
| Published date | 01 December 2008 |
| Author | Trevor J. Douglas |
| Date | 01 December 2008 |
| DOI | 10.1350/jcla.2008.72.6.535 |
| Subject Matter | Comment |
COMMENT
Master or Servant: A Corporation’s Liability
for the Activities of a Ship’s Master
Trevor J. Douglas*
Keywords Corporate manslaughter and homicide; Maritime industry;
Corporate seniority of a master of a vessel; Liability under the Inter-
national Safety Management Code; Corporate liability avoidance
On the evening of 6 March 1987 the Herald of Free Enterprise left
Zeebrugge harbour. The ferry had sailed with her bow doors open and
the sudden inflow of water caused her to list to port and sink. Despite
rescue craft arriving within 15 minutes 193 passengers and crew lost
their lives. Following the disaster, charges of manslaughter were
brought against eight defendants, including P & O European Ferries
(Dover) Ltd (‘the company’) as owner of the vessel. In R v P & O
European Ferries (Dover) Ltd1it was accepted that a corporation could be
convicted of manslaughter. Turner J stated:
If it was to be accepted that manslaughter in English law was the unlawful
killing of one human being by another human being (which had to include
both direct and indirect acts) and that a person, who was the embodiment
of a corporation and acting for the purposes of the corporation, was doing
the act or omission which caused the death, the corporation as well as the
person might be found guilty of manslaughter.2
Turner J further stated that a company could also be deemed guilty of
the offence of manslaughter provided that it was possible to find some-
body within the company, who was controlling the relevant activities
leading to the death, equally responsible.3
The prosecution was dropped due to lack of evidence. The main
reason for the collapse was the fact that P & O had no director in charge
of safety and no clear safety policies, particularly in relation to open-
door sailings. The cause of the capsize and deaths were due to the lack of
coordination between the crew as the result of an absence of safety
policies. As Clarkson4points out, ‘that despite clear blame being directed
* LLB; e-mail: trevor.douglas@sunderland.ac.uk. The author is an associate lecturer in
law at Sunderland and Durham Universities. He has been a mariner for over 30
years and a master mariner since 1995.
1 (1991) 93 Cr App Rep 72.
2 Ibid. at 89.
3 Ibid. at 84.
4 C. M. V. Clarkson, ‘Corporate Culpability’ [1998] 2 Web JCLI 6.
497The Journal of Criminal Law (2008) 72 JCL 497–518
doi:1350/jcla.2008.72.6.535
at the company, the identification doctrine5precludes any successful
prosecution of the company’.
The identification doctrine appears to have been invalidated by the
provisions of the Corporate Manslaughter and Corporate Homicide Act
2007 (hereafter ‘the 2007 Act’) which, for all intents and purposes,
favours the aggregation doctrine.6This doctrine can be seen in s. 1(3) of
the 2007 Act by which an organisation will be guilty of the offence only
if the way in which its activities are managed or organised by its senior
management is a substantial element in the breach. Section 1(4)(c) goes
on to define ‘senior management’ as those persons who play significant
roles in (1) the making of decisions about how the whole or a substantial
part of the organisation’s activities are to be managed or organised, or
(2) the actual managing or organising of the whole or a substantial part
of those activities. This would lend itself to the actions of the crew
aboard the Herald of Free Enterprise and allow for the fact that the
corporation stood liable for the actions of the crew and, more im-
portantly, the actions of the senior management on board the vessel,
namely the captain, chief bosun and bosun. This comment will seek to
discover if this premise is true.
Following on from the Herald of Free Enterprise tragedy, the Marchion-
ess7disaster occurred on the River Thames in London on 20 August
1989, when the pleasure boat Marchioness sank after being run down by
the dredger Bowbelle.8The two boats collided under Cannon Street
Railway Bridge and 51 of the 132 passengers on the Marchioness were
drowned.
The disaster was found by the Marine Accident Investigation Branch
to have been caused by the poor visibility from each ship’s wheelhouse,
the fact that both vessels were using the centre of the river, and that no
clear instructions were given to the look-out at the bow of the Bowbelle.
The skipper of the Bowbelle, Douglas Henderson, was tried for failing to
keep a proper look-out, but after two juries were deadlocked, he was
formally acquitted. A coroner’s inquest on 7 April 1995 found the
victims had been unlawfully killed. Neither Tidal Cruises, who were the
owners of the Marchioness, nor East Coast Aggregates or South Coast
5 The traditional method by which companies are held criminally responsible in
English law (at least, for crimes involving mens rea) is under the identification
doctrine. If an individual who is sufficiently senior within the corporate structure as
to represent metaphorically the ‘mind’ of the company commits a crime within the
course of his or her employment, that act and mens rea can be attributed to the
company: see Tesco Supermarkets Ltd vNattrass [1972] AC 153.
6 Under the aggregation doctrine, known in the USA as the collective knowledge
doctrine, all the acts and mental elements of the various relevant persons within
the company are aggregated to ascertain whether in total they would amount to a
crime if they had all been committed by one person. Under the aggregation
doctrine the actions and culpability of several senior persons within the company
are therefore taken into account.
7 See R vBow Street Stipendiary Magistrate, ex p. South Coast Shipping Co. Ltd [1993] 1 All
ER 219; The Bowbelle [1990] 3 All ER 476; Marchioness/Bowbelle Formal Investigation
under the Merchant Shipping Act 1995, 2 October 2000, Clarke LJ (see n. 9 below).
8 See The Bowbelle [1990] 3 All ER 476; Ross v Bowbelle (Owners) [1997] 1 WLR 1159,
[1997] 2 Lloyd's Rep 191; Dallagio vBowbelle, unreported, 4 July 1995; Smith v
Marchioness/Bowbelle (1993) 27 LS Gaz R 36, [1993] NLJR 813.
The Journal of Criminal Law
498
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