Fishing News – WHAT HAPPENS AFTER A PERSONAL INJURY OCCURS ON BOARD? Part 1
Fishing News has been the voice of the fishing industry since 1913, bringing the latest news and features about the UK and Irish commercial fishing to the industry. Bartons Marine Department were delighted to be invited to write a number of legal based articles for the publication, which we are pleased to reproduce one of them below:
“Statistically fishing is an inherently dangerous job. With so many moving parts and variables to take into consideration, it is not always surprising that accidents happen. There is an industry-wide collective effort to reduce accidents at sea as far as possible and it is worth mentioning the Home and Dry commercial fishing safety campaign launched in 2020, which focuses on reducing the number of serious accidents due to health and safety issues.
In this and two subsequent articles, we will run through some of the key considerations for owners/skippers and their insurers when an accident has occurred on board. Naturally, the priority is to make the situation safe and treat the casualty, organising an evacuation as necessary. When it is safe and convenient to do so, taking photographs of the accident location, showing the equipment involved, will be helpful, as well as ensuring any CCTV is retained and copied.
Brokers should be notified as soon as reasonably possible, so that they can alert P&I insurers. Depending upon the severity of the accident, solicitors may be instructed to meet the boat as soon as it returns to port. Solicitors will have been instructed to represent insurers’ interests; whilst these will usually align with owners/skippers’ interests, owners/skippers can instruct their own solicitors.
If the boat is met by solicitors, their job will be to meet with the owners and skipper, liaise with officers from the MCA or other interested body, meet with any surveyor appointed on behalf of insurers, take copies of relevant documents and take witness statements from the crewmembers. Their instructions will be to investigate all the circumstances of the accident and provide insurers with a report considering the prospect of any blame for the injury being found against the owners/skipper. The report will assist insurers in determining what action to take, should a claim be presented on behalf of the injured party.
Owners are responsible for providing the skipper with the necessary resources and facilities, i.e. the boat and its equipment, properly installed and maintained. Owners must also set the health and safety policy, in order that the skipper is clear what is expected. The skipper is responsible for the safety of fishermen on board the vessel and the safe navigation and operation of the vessel. In many cases risk cannot be completely eliminated; it should be satisfactory to evidence that risks have been reduced to the lowest possible acceptable level, where the exercise of good seamanship should be sufficient to allow crewmembers to carry out their duties.
If there is evidence that risks have not been reduced to the lowest level, there may be liability against owners, who will usually also be liable for any negligence committed by the skipper they appoint. P&I policies will typically cover any liability to pay damages for personal injuries suffered by crewmembers or third parties.
It is important to ensure that solicitors and insurers are aware of all the relevant facts from the outset, whether they assist or hinder the defence of a claim, so that an early decision can be made regarding any potential liability.
Once solicitors have reported to insurers, if a decision is made to concede liability there is unlikely to be any requirement to investigate the circumstances of the accident any further. Instead, solicitors will focus upon the value of the claim put forward and whether it is considered reasonable and can be evidenced by the injured party. Owners would be expected to provide evidence regarding the injured party’s earnings since joining the vessel. Consideration may also be given to the injured party’s career prospects, dependent upon the size of the loss of earnings claim put forward.
If liability is to be denied and the claim defended, you should expect to dedicate some of your time to assisting in the defence of the claim. At certain points throughout the litigation process, this is likely to require a sizeable amount of your time. If proceedings are issued, these will be issued against you/your company/your skipper individually and not against your insurers, who are providing you with an indemnity only. As the named defendant, you will be required to approve and sign off on a range of documents relevant to the litigation process.
In our next article, we will consider the scope of documents you will be asked to disclose to the solicitors appointed. Our final article will look at the requirements for taking witness statements from you/your crew and the process once the injured party has appointed their own solicitors.”
For more information about anything contained in this article please contact our Marine Law Team
