The Ship Masters Special Relationship to Passengers: Lessons from the 1841 William Brown Episode

Written by Craig Allen

Even while they mourned for those who perished in the Costa Concordia disaster off Italy’s Tuscan islands on January 13th, many who watched the story unfold expressed shock and outrage at the conduct of the ship’s captain, Francesco Shettino.  Transcripts of a heated exchange between Shettino and Italian Coast Guard Captain Gregorio De Falco demonstrate that Shettino did not simply suffer a momentary panic before regaining his composure and resuming his professional duties. He apparently continued to cower ashore in defiance of Captain De Falco’s demands to return to the ship and assist in evacuation of the remaining passengers and crew members. 

The Costa Concordia incident brings to mind a similar display of cowardice by the captain of the passenger ship Oceanos, which foundered off the coast of South Africa in 1991.  In that case, the master actually forced his way in line ahead of an elderly passenger and demanded to be hoisted off by the rescue helicopter — even though some 160 passengers remained on the sinking vessel he commanded.

Both incidents raise questions regarding the captain’s legal duty on an imperiled ship.  Once the “abandon ship” order is given, does the jungle rule of “every man for himself” control, or do the ship’s master and crew have a continuing obligation to their passengers?  History is a great teacher, and a page from the Age of Sail provides a poignant and memorable lesson.

On March, 13 1841, the American sailing ship William Brown sailed from Liverpool for Philadelphia, with a crew of 17. The ship carried 65 Scotch and Irish passengers immigrating to the New World.  On the night of April 19th, when the ship was still 250 miles southeast of Newfoundland, she struck an iceberg and began to sink.  The ship’s two boats were cleared away and lowered.  The captain, the mates and all of the crewmen climbed aboard the boats. They permitted 33 of the 65 passengers to also board.  Then, deeming the two boats loaded to capacity, they abandoned the 31 remaining passengers to meet their fate on the sinking ship. 

The crew’s disregard for their passengers did not end there.  When it became obvious that one of the two boats was dangerously overloaded for the sea conditions, 16 of the remaining passengers (14 men and 2 women) were dispatched overboard.  Rescue eventually came.  The ships officers and crew survived.  But 47 of the ship’s 65 passengers perished in the icy North Atlantic.

Following rescue, one of the seamen, Alexander William Holmes, returned to Philadelphia, where he was charged with murder (the only one who faced prosecution).  At Holmes’ trial, his attorney invoked the defense of “necessity,” but Holmes was nevertheless found guilty of violating the seaman’s manslaughter statute.  In the course of the trial, U.S. Supreme Court Justice Henry Baldwin, presiding over the case as circuit justice, instructed the jury on the legal relationship between a ship’s officers and their passengers:

The passenger stands in a position different from that of the officers and seamen.  It is the sailor who must encounter the hardships and perils of the voyage.  Nor can this relation be changed when the ship is lost by tempest or other danger of the sea… for imminence of danger can not absolve from duty.  The sailor is bound, as before, to undergo whatever hazard is necessary to preserve the boat and the passengers...  The sailor (to use the language of a distinguished writer) owes more benevolence to another than to himself.  He is bound to set a greater value on the life of others than on his own.  And while we admit that sailor and sailor may lawfully struggle with each other for the plank which can save but one, we think that, if the passenger is on the plank, even 'the law of necessity' justifies not the sailor who takes it from him. 

In the coming months, as the case against Captain Shettino progresses, we should be alert to see whether, at least in the Italian court system, maritime law holds any less solicitude today for those entrusted to the master’s and crew’s care than it did in Justice Baldwin’s time.  If Alexander Holmes, an ordinary seaman, was “bound” to set a greater value on the life of the passengers than his own, how much greater is the master’s obligation to both passengers and crew?

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The author is a retired Coast Guard officer and cutterman and the Judson Falknor Professor of Law at the University of Washington who is now serving as the Distinguished Visiting Professor of Maritime Studies at the U.S. Coast Guard Academy and a Resident Fellow in the Academy’s Center for Maritime Policy and Strategy