Charles R. Lipcon

Charles R. Lipcon is the firm's founding attorney and has been handling personal injury, cruise line sexual assault and wrongful death claims for over 40 years.Read More »

Jason R. Marguiles

Jason R. Margulies is an experienced maritime lawyer and an active trial attorney handling personal injury, cruise line sexual assault and wrongful death claims.Read More »

Ricardo V. Alsina

Ricardo V. Alsina is an active trial attorney, handling personal injury, cruise line sexual assault and wrongful death claims.Read More »

Michael A. Winkleman

Mr. Winkleman is an active trial and appellate attorney handling all personal injury, cruise line sexual assault and wrongful death claims, as well as complex business disputes.Read More »

Published on:

When is a captain allowed to abandon ship?

“The captain is last to leave a sinking ship”: A legally binding rule, or a nautical myth? Last Friday’s cruise ship accident off the coast of Italy has once again raised the question.

August 3, 1991: An explosion shakes the engine room of the Greek cruise ship, Oceanos, as it sails off the South African coast. With hundreds of people on board, the ship springs a leak, then begins to list and slowly starts to sink.

At this point, the crew was supposed to jump into action and implement a rescue plan. In the case of the Oceanos, however, most of the crewmembers were the first to leave the ship in the lifeboats, leaving around 200 passengers behind.

Helicopters came to the rescue, and one of the first lifted out of danger was Captain Yiannis Avaranas. Meanwhile, dozens of men, women and children still trapped on the ship were left fearing for their lives.

Later, Avaranas apparently said, “When I give the order to abandon ship, it doesn’t matter what time I leave. Abandon is for everybody. If some people want to stay, they can stay.”

Chain of command

With his actions, Avaranas was accused of breaking an ancient seafaring law: “The captain is always last to leave a ship in an emergency.” But is this an actual regulation, or simply a legend?

Uwe Jenisch, an expert on international maritime law and a professor at the University of Kiel in northern Germany, says there’s no clause in any law that specifically states this.

But, he adds, the rule could be deduced from other regulations: “On every ship, one person is in charge. There is a prescribed hierarchy on all ships. The captain alone is responsible at the top. He assumes command. He must direct the evacuation; so long as the ship exists, he is responsible.”

Aside from that, it’s simply good seamanship for the captain to steer his ship like a father would his family – and that’s how the rule developed historically, Jenisch explains. “You can almost speak of customary law. However, it’s not written down anywhere,” he said.

The International Maritime Organization in London regulates ship security worldwide, but Jenisch says individual countries are responsible for implementing these regulations. In the case of the wrecked Costa Concordia, the Italian government must hold itself to international standards, he adds.

Better by helicopter?

Willi Wittig, vice president of the Federation of German Captains and Ship Officers, also thinks the captain carries the ultimate responsibility for his ship.

But, as Wittig pointed out on German public broadcaster Deutschlandfunk, admittedly this responsibility does not have to be executed from the bridge.

There could be situations, he said, “where perhaps in order to gain perspective, it really would be appropriate to [conduct operations] from off the ship.”

Wittig adds, however, that for a captain to leave his ship early, even if it doesn’t necessarily make him legally liable, would be highly unusual. In such cases, experts usually refer back to the sailors’ code of honor.

In the end, where a captain decides to exercise his duty to his passengers, crew and ship, is up to him. Avaranas, one of the first to be saved by the rescue helicopter, argued this decision allowed him to better conduct the rescue operation.

Though criticized for his decision, Avaranas was acquitted by a London court, and he eventually returned to work as a cruise ship captain.

Holding out for insurance

Abandoned passengers aside, a ship’s insurer would be another party that wouldn’t be too happy about a captain’s early departure. If a ship in distress at sea is abandoned by its crew, then it belongs to those left aboard.

An old seaman’s yarn tells of Hendrik Kurt Carlsen, the Danish captain of the US freighter Flying Enterprise, who in 1951 held out all day as the last man on board his ship, which was sinking in the English Channel.

Allegedly, Carlsen stayed on his ship to ensure that the vessel remained the property of the shipping company, a fact still reported by the media decades later.

Cruise ships ‘out of control’

Experts today doubt that a captain could direct a cruise ship evacuation by himself, with vessels at their current scale. Speaking to the news agency AFP, Wittig said accidents where cruise ships are involved are so complex that an evacuation can’t be controlled by a single person.

Jens Peter Hoffmann, a ship security expert, thinks a smooth evacuation would even be impossible under certain circumstances. “When a ship suddenly tilts 30 to 40 degrees, nothing works anymore,” he said recently on the German news program Tagesschau, referring to the Costa Concordia.

In addition, there are often hundreds of personnel on a ship, but generally only 30 to 40 are actual seamen, trained to handle emergencies.

Maritime law expert Jenisch thinks the cruise ship industry today is out of control – ships have simply gotten too big. “It would require a Herculean effort to organize a prompt evacuation of 4,000 to 5,000 people,” he said.

Ships with promenade decks, which aid in evacuations, are today in the minority. Cabins are now more likely to have their own balcony, a design feature which impedes access to lifeboats. Larger ships also tend to have many floors, which can further slow an evacuation.

No lessons from Titanic?

Molly Brown honors Titanic captain Jenisch thinks shipbuilding codes need to be reviewed, as current ship designs don’t reasonably allow for effective evacuation.

“One notch smaller, one notch saner, one notch more human, that’s what’s needed,” he said.

Jenisch points out that a ship suffering from a big crack in its side, like the Costa Concordia, should not tip over so easily. He says ships should be built to prevent water from spreading throughout the entire vessel.

“Haven’t we learned anything from the Titanic?” he asked.

In the case of the infamous “unsinkable” Titanic, which in 1912 struck an iceberg in the North Atlantic, an estimated 1,500 of its 2,200 passengers died in the icy waters. Including, incidentally, Captain Edward J. Smith.

He stayed till the end – and went down with the ship.