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Skipper or mate?

On a beautiful summer evening B. is sailing with some friends on the Vecht near Maarssen. It is a pleasant evening, the alcohol flows richly and after a visit to the pub one of his friends wants to take the helm of B’s sturdy speedboat. While speeding under a bridge, the friend misjudges the height and bumps 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 driver of a fast motorboat under the influence of alcohol, allowed another person to drive this boat. And that while this person did not have a license and he knew or could have suspected that this person was under the influence of alcohol and did not have sufficient knowledge and experience to drive this boat. In addition, he did not give the other person sufficient instructions, so the other person culpably collided head on with a bridge while driving under it and died as a result.

Quite a stretch, but what had happened was really violent anyway. Crucial to the criminal case was the answer to the question of whether B. could be considered the skipper of the boat 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 Inland Waterways Police Regulations (BPR) do not define the term “skipper” and the court looked at the provisions in the BPR where the term appears to find an explanation.

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

True skipper or mate?
Previous judgments have shown that there is a difference between the actual skipper (machinist), who actually determines the course and speed of the vessel, and the one who acts as captain. Both can be skipper within the meaning of the CPD without these two functions necessarily being united in the same person. In 2004, a special provision was added to the CPD making the skipper of a high-speed motor vessel specifically responsible for compliance with Articles 8.05 and 8.06. This provision was considered necessary. This provision was deemed necessary because the skipper is not always the same person as the person driving a high-speed motorboat.

For the question of whether B. can be considered the skipper, the court considers it decisive whether or not the actual control of the motorboat was explicitly and completely transferred to the other person. In that case it must be clear that the other party must ensure navigation and compliance with the applicable rules. The court is of the opinion that there can be no such transfer, so that from the moment the victim took his seat behind the wheel of the motorboat when leaving the café, B. was still considered the responsible person and/or the responsible skipper. B. may have stepped down as “de facto skipper” and the victim may have acted as “de facto skipper”, but D. was still “captain” within the meaning of the CPD, so this part of the charge was deemed proven. In addition, the court found that the alcohol consumption was so high that both should be considered incapable of properly steering the boat. Finally, the court concluded that B’s actions should be considered grossly negligent. He was convicted of involuntary manslaughter, but received no jail time or community service. The court found that he had already been sufficiently punished by the death of his friend. He had to pay compensation 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 defendant and the victim had drunk too much alcohol. Moreover, the friend did not have a boating license and had not received instructions on how to drive the boat. The Court of Appeal nevertheless imposed a community service of 100 hours and a driving ban (as a responsible skipper) on the owner.

Boating with alcohol: rules just like in the car.
This way you remain (almost) always responsible for your crew! Just like behind the wheel of a car, a maximum alcohol level of 0.5 applies. Driving under the influence of alcohol can lead to a fine. In a serious case, the driver’s license may also be confiscated. By the way: the partial culpability in an accident applies from 0.3 promille. This is also regulated as in road traffic. Even without alcohol: If the driver has no license, although it is required for the boat in question, and an accident occurs, there is a good chance that you as skipper/owner will have to pay for the consequences.

Specialized in legal matters relating to water sports: Frits Hommersom.

 (https://www.stegfunk.de/recht-kolumne-schiffsfuehrer-oder-steuermann/)

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