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Down with the Ship – Costa Concordia Settled?

Down with the Ship – Costa Concordia Settled?

“Captain Francesco Schettino [was] found guilty for 32 counts of manslaughter when he abandoned the sinking Costa Concordia in January 2012.”

It has long been an idiom and tradition of the sea that responsibility for a ship and everyone on board falls into the hands of the captain. Old romantic ideas of a captain going down with the ship have existed for centuries, perhaps most famously in the case of Edward Smith and the tragic Titanic.

Last week saw Captain Francesco Schettino found guilty for 32 counts of manslaughter when he abandoned the sinking Costa Concordia in January 2012. The sentence marks the end of a 19 month long trial, which has seen the captain branded as a coward and a traitor.

Schettino was originally accused of a sail-past of Giglio, sailing incredibly close to the island’s perilous rocky shore in an attempt to show-boat and impress passengers and crew alike. This led to the cruise liner being negligently crashed into rocks.

In his trial Schettino argued that most cruise liners carry out such stunts, and a decision not to would damage the marketability of the liner. It is arguable Schettino has been made a scape goat for an industry where disaster was just waiting to happen. Although reports suggest that no one died on impact, the disaster later claimed the lives of 32 people.

This was never a trial about Schettino’s guilt. The facts are clear, unambiguous and cutting. Upon crashing, Schettino failed to orchestrate an evacuation, and left the ship himself before all of the passengers were rescued. His farcical admission of ‘falling into a rescue boat,’ and being ‘unable to get back to the main ship’ appears to belong to a comedy movie. This is however no comedy. 32 people tragically lost their lives, and justice must be served.

What is most interesting perhaps in this case is the legal perspective. Although the idiom that the captain must be the last person off the ship is a phrase engrained into popular culture, its enforceability under law is another matter.

In theory, Schettino could be prosecuted under either International or national law. International law itself requires the captain and his crew to employ the principle of prudent seamanship. Although this is not legally binding on the captain, a legal responsibility lies in the SOLAS Treaty.

“Did Schettino break the law leaving the ship when he did?”

The history of this treaty lies in 1914, with the Titanic triggering its creation. Over the last century it has seen numerous changes, with the most recent being seen in 1974. Although the act states that the captain does not strictly have to remain on the ship as it goes down, there is a strong expectation that the captain will not remain until all the passengers are safely evacuated. Much like how it would be expected for a teacher to ensure that all their children had left the classroom in the case of a fire.

So if the only thing that obliges a captain to remain with their sinking ships is a strict moral code, where does that leave the law? More interestingly, how have Italy managed to prosecute an individual for saving his own skin with his only crime in abandoning a moral principle?

The answer lies in the Italian national law itself. Italian maritime code has directly criminalised the act of abandoning your ship. Article 1097 of Italy’s Maritime Law states that any captain or commander in charge who abandons his ship before passengers, can receive jail time of up to two years. If the boat itself is lost, the sentence can vary between two and eight years. If people subsequently die as a result of the crash, the captain can be sentenced to between three and 12 years.

The question for the court was: did Schettino break the law leaving the ship when he did? From his sentence, Schettino clearly left too early and evidence has been flagged showing a conversation with life guards whom expressed the need for him to return to the ship to help the rescue effort. He promptly refused.

“It seems somewhat unjust the responsibility should lie squarely on Schettino’s shoulders…”

It is interesting to note the media’s current reporting of the case, with many citing that the sentence handed to Schettino is due to him jumping ship. Put simply, this is not true. The majority of the sentence lies in charges of manslaughter. The charge for manslaughter, however interesting, only arose out Schettino’s decision to delay the order of evacuation for more than an hour.

In the trial, the prosecution raised evidence suggesting that had Schettino immediately ordered an evacuation every person on board would have survived. The defence were seen to dispute this with some force, suggesting that the malfunctioning of doors and rescue protocols being the major cause, thus breaking the chain of causation attributing blame to the captain.

The equivalent charge in England would be a charge of gross negligence manslaughter. In England, this is a charge that is notoriously difficult to prove. With a requirement to provide a duty of care, a breach of that duty, a causal link and conduct must be serious in all circumstances as to amount to a crime in the eyes of the jury.

This raised the question, if Schettino had not ‘fallen into a lifeboat,’ would he still have been sentenced to a mere six months per death? A sentence that seems startling when broken down. However, the other members of the crew will never see trial for their part in the tragedy. It seems somewhat unjust the responsibility should lie squarely on Schettino’s shoulders irrespective of his behaviour, purely due to a position of ‘Captain.’

The full verdict itself is not available for at least a further 90 days, meaning Schettino will not face jail time until at least this date. Indeed, it is likely he will not see jail bars for a few years, if ever, due to the lengthy appeal process in Italy. Schettino maintains his innocence, insisting that other parties be put on trial for their part in the disaster.  With such an incomplete conclusion to this case it must be asked: has justice really been served here?

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