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Criminal law also in watersports

On a beautiful summer evening, B. is sailing with a number of friends on the Vecht near Maarssen. It is a very pleasant evening, the alcohol flows in streams and after a pub visit one of his friends wants to take over the helm of B’s robust speedboat. While driving under a bridge at too high a speed, the friend misjudges the height and hits his head against the stone edge of the bridge. He dies on the spot.

B. was prosecuted. In short, he was charged with involuntary manslaughter with the description that he, as the driver of a fast motor boat under the influence of alcohol, allowed another person to drive that boat. And this while this person did not have a boating license and he knew or could suspect that this person was under the influence of alcohol and did not have sufficient knowledge and experience to drive this boat. In addition, he gave the other person inadequate instructions, causing him to culpably hit his head on a bridge while driving underneath it and die as a result.

Quite a hunk, but then, what had happened was really violent. Crucial to the criminal case was answering the question of whether B. could be considered the boat’s skipper at the time of the accident. His lawyer argued that he could not because his friend had been at the helm and was therefore the captain. The Binnenvaart Politie Reglement (BPR) does not define the term “skipper” and the court looked at the provisions in the BPR where the term occurs for an explanation.

Articles 1.02 through 1.04 require the skipper, in the absence of express regulations, to take all precautions required by good seamanship or by the circumstances in which the vessel finds itself.

Actual skipper or helmsman?
Past judgments show that there is a difference between the de facto skipper (driver), who actually determines the course and speed of the vessel, and the person who acts as master in charge. Both can be skippers within the meaning of the CPD, without these two functions necessarily being combined in the same person. In 2004, a special provision was added to the CPD that makes the skipper of a fast motorboat responsible, in particular, for compliance with Articles 8.05 and 8.06. This provision was deemed necessary because the skipper is not always the same person as the person driving a fast motorboat.

For the question of whether B. can be considered as a skipper, the court considers it crucial whether the actual management of the motorboat was expressly and completely transferred to the other or not. In this case, it must be clear that the other party must ensure navigation and compliance with the applicable rules. The Court finds that there is no question of such a transfer, so that from the moment the victim took his place behind the wheel of the motorboat when he left the cafĂ©, B. was still considered the responsible person and/or responsible skipper. B. may have resigned as “de facto skipper” and the victim may have acted as “de facto skipper,” but D. was still “Captain in Command” within the meaning of the CPD, thus making this part of the charge proven. In addition, the court ruled that the level of alcohol consumption was such that both had to be considered incapable of properly steering the boat. Finally, the court concludes that B’s actions must be considered substantially negligent. He was convicted of involuntary manslaughter, but received neither jail time nor community service. The court found him already sufficiently punished by the death of his friend. He had to pay damages to the family and his boat was confiscated.

The prosecution disagreed and appealed. According to the attorney general, the boat had been driven too fast. Both the suspect and the victim had drunk too much alcohol. In addition, the boyfriend did not have a boating license and had not been instructed on how to operate the boat.

The appeals court nevertheless imposed a community service of 100 hours on the owner and a driving ban (as responsible skipper).

Boating with alcohol: rules as with the car.
So you (almost) always remain responsible for your crew! Just like behind the wheel of a car, the maximum alcohol level at the wheel is 0.5. Driving under the influence of alcohol can result in a fine. In a serious case, the driver’s license can also be confiscated. Incidentally, partial culpability applies in the event of an accident from as low as 0.3 per mille. This is also regulated as in road traffic.

Even without alcohol: If the driver does not have a boat license, although it is required for the boat in question, and there is damage, the chances are very good that you as skipper/owner will have to bear the consequences.

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Frits Hommersom met groene bril

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