This section usually discusses topics related to the so-called civil law obligations between parties. This time we see how criminal law can also have its consequences in water sports.
Sailing on a beautiful summer evening on the Vecht near Maarssen with some friends. It is very pleasant, the alcohol flows richly and after visiting a pub one of his friends would like to take the helm of D’s sturdy speedboat. When going under a bridge at too high a speed the friend misjudges the height and hits his head against the stone bridge edge. He dies on the spot.
D. was criminally prosecuted; in short he was charged with culpable homicide with the description “that he, as skipper of a fast motorboat, under the influence of alcohol, allowed another person to drive that boat while that person did not have a license and he knew or could have suspected that he was under the influence of alcohol and had insufficient knowledge and experience to drive that boat, whereby he gave the other person insufficient instructions, as a result of which it was his fault that he hit his head against the bridge when going under a bridge and died as a result.”
Quite a mouthful, but what had happened was not nothing either. Essential in the criminal case was the answer to the question of whether D. could be considered the skipper of the boat D. at the time of the accident. His lawyer argued that he could not, because the friend had been at the helm and was therefore the skipper. The BPR does not give a definition of the term ‘skipper’ and the court looked for an explanation at the provisions in the BPR in which the term occurs.
Articles 1.02 through 1.04 impose the obligation on the skipper, in the absence of explicit regulations, to take all precautionary measures which are required according to good seamanship or by the circumstances in which the ship finds itself.
Actual or authority?
The parliamentary history shows that there is a distinction between the de facto skipper (driver) who actually determines the course and speed of the vessel and the person who acts as the captain in authority. Both may be skippers within the meaning of the BPR without these two capacities necessarily being united in the same person. In 2004 a special provision was added to the BPR making the skipper of a fast motorboat responsible for compliance with the BPR.
In 2004 a special provision was added to the BPR making the skipper of a fast motorboat responsible for compliance with Articles 8.05 and 8.06 in particular. That provision was deemed necessary because the skipper is not always the same as the person driving a high-speed motorboat.
For the question of whether D. can be regarded as skipper, the court considers it decisive whether the actual management of the motorboat was explicitly transferred in full to the other person or not. In that case it must be clear that the other party must take care of navigation and compliance with the sailing instructions. The court finds that there was no question of such a transfer, so that D. was still regarded as the person in authority and/or responsible skipper from the moment the victim took his place at the wheel of the motorboat when he left the café. D. may have stepped down as “de facto skipper” and the victim may have behaved as “de facto skipper”, but D. was still “captain in authority” within the meaning of the BPR, with which that part of the charge is deemed proven. In addition, the court ruled that there was such a history of alcohol consumption that both should be considered incapable of properly steering the boat. Finally, the court concludes that D’s actions can be assessed as considerably careless. He was convicted of culpable homicide.
Pleasure boating and alcohol sometimes go hand in hand. However, always keep in mind that as a skipper you are responsible for your passengers, even if you are not at the helm. It is comparable to letting someone without a driving license drive a car: if there is no driving license while this is required for the vessel in question and damage occurs, there is a very good chance that you as skipper/owner must bear the consequences. However, contrary to the demand of the public prosecutor, the court did not impose a punishment on D. A punishment, according to the judge, would not serve any purpose and would therefore have no added value. In doing so he took into account to a large extent the specific character of this case, the circle of people involved within which the accident had taken place and the enormous impact for all people involved, including the defendant himself.
More information or download old articles: https://www.anwb.nl/kampioen/algemeen/digitaal-archief