Peter Binning and Charles Elton comment in The Times Online on the continuing difficulties of prosecuting companies for corporate manslaughter , despite the new 2007 Act.
Corporate Manslaughter on the High Seas – Why prosecuting companies has not got any easier
This article first appeared in The Times Online on 28 October 2010.
As a result of a collision with a British owned ship in the English Channel on 20 December 2009, a British fishing boat sank and Chris Wadsworth, one of her four British crew, lost his life. Despite an investigation revealing evidence of serious wrongdoing by certain individuals no prosecution is to take place in England. The case highlights the challenges remaining for prosecutors in cases where death results from the activities of companies despite the new law on corporate manslaughter which came into force in April 2008.
The ship called the Alam Pintar, registered in Singapore but owned and managed by British companies, collided with the fishing boat, Etoile des Ondes, in international waters, 15 nautical milesnorth of the Cherbourg peninsula. The UK MAIB (Marine Accidents Investigations Branch) report states that the master and officer of the watch of Alam Pintar were aware of the collision but failed to stop; made no attempt to confirm if Etoile des Ondes and her crew were safe; and failed to report the incident. In addition, the report identifies evidence suggesting that “the crew of Alam Pintar subsequently attempted to alter recorded contemporaneous data to mask the vessel’s involvement in the accident.”
A report in The Times on 27 September 2010 said that: “…although the ship [Alam Pintar] is owned by a London-based company, British authorities have no power to prosecute the captain or crew for breaking maritime law as it was in international waters under the flag of Singapore.” The conclusion reached by the Devon and Cornwall police and the Crown Prosecution Service was that no prosecution could be brought in England on the evidence obtained by them. Jurisdictional reach of the Corporate Manslaughter Act
The case raises a serious issue about the jurisdictional reach of the Corporate Manslaughter and Corporate Homicide Act 2007 (“CMCHA 2007”), a piece of legislation designed to make it easier to prosecute corporate wrongdoers where deaths occur as a result of gross breaches of duty of care by an organisation.
Although the country under whose flag the ship is sailing (in this case, Singapore) may have jurisdiction to prosecute, it does not necessarily follow from this that a prosecution under the CMCHA 2007 would not be possible subject to the evidence available. An English fisherman died in the English Channel having fallen from a UK registered fishing boat as a result of a collision with a ship owned and managed by UK companies. Subject to sufficient evidence, common sense would dictate that a prosecution in England would be the most appropriate forum, although the CMCHA 2007 would not paradoxically provide jurisdiction where a UK registered ship runs down a foreign ship in international waters and causes death.
The English courts do have jurisdiction under the CMCHA 2007 if the harm resulting in death is sustained on a UK ship registered under Part 2 of the Merchant Shipping Act 1995. The MAIB report confirms that Etoiles des Ondes was UK-registered. The fact that when Mr Wadsworth drowned he would no longer have been on board the fishing boat provides no defence under CMCHA 2007.
Section 28(3)(b) of the CMCHA 2007 provides that jurisdiction can be established by reference to the country of registration of the ship which suffers the harm even if that harm is suffered outside UK territorial waters as a result of the action of a foreign registered ship.
Causation and gross breach
For a company to be guilty of an offence under CMCHA 2007 (the Act does not create any new offence for individual directors or managers), it is necessary to prove that the way in which its activities were managed or organised caused the death and amounted to a gross breach of a relevant duty of care owed by the company to the deceased. It is not necessary for the company to be a UK company. If a foreign company’s activities were involved, it could face prosecution in the English courts.
Proof of causation is not straightforward because there must be evidence that the way in which a company’s activities are managed or organised by its senior management is a substantial element in the breach of duty. Senior management may often be very remote from the events immediately surrounding the death. A chain of causation must be traced from the accident to those persons with a significant role in making decisions about the management or organisation of a company’s activities or actually taking part in the management or organisation of those activities.
In the case of a ship run on a day to day basis by the master and crew, the senior management of the ship owning and managing company are a long way down the chain of causation. It is very likely they will never have set foot on the ship and may have quite properly delegated its day to day functions to professional seafarers.
For the purposes of a possible offence of corporate manslaughter, it is certainly arguable that the facts related in the MAIB report, including the failure to render assistance after the collision, the failure to report the incident or to heed the mayday messages could have constituted a material and effective cause of Mr Wadsworth’s death. The question then arises as to whether, in addition to the failures of those on the ship, the way in which the ship owning and managing companies’ activities were managed or organised also caused the death and amounted to a gross breach of a duty of care
to the deceased. If there was evidence that the companies were responsible for failing to have in place and execute satisfactory safety/rescue and/or training procedures (see below) such a gross breach might be established.
The final two conclusions drawn in the MAIB report reveal that:
“15. Safety management system non conformities, with respect to the formation of effective bridge teams and the use of lookouts, had not been identified during internal audits on board Alam Pintar. […]
16. PACCShip (UK) did not have a system of formal appraisal for its masters. […]”
Only further investigation could show whether these breaches could be proved to a criminal standard and would qualify as “gross” breaches.
In addition to a prosecution of the ship owning and managing companies under CMCHA 2007, a further question arises as to whether it would be possible to bring individual charges against the crew members aboard Alam Pintar directly involved in the decisions not to respond to the mayday call and/or to tamper with the ship’s Voice Data Recorder. None of the crew were British citizens so they could not be prosecuted in England for causing the death of a British citizen in international waters. However, if there was sufficient evidence for the prosecution in England of the ship owning
and managing companies, the crew might be individually liable for perverting the course of justice and could be prosecuted in England for that offence even if a charge of manslaughter could not be brought against them.
To date there have been no successful prosecutions under the CMCHA 2007. The first case, involving a relatively small company, is still awaiting trial early next year. Some of the difficulties with the new offence, particularly in cases where a death occurs at sea, are illustrated above but it remains unclear whether the law overall has been improved in this area or merely rendered more complex than it was before.
Article by Peter Binning and Charles Elton
Peter Binning is a partner and Charles Elton a paralegal at Corker Binning, the London law firm which specialises in fraud, regulatory and general criminal litigation.