What happens when one dies or goes missing while onboard a ship?

Have you ever wondered whether crew members can get lost or die while as the sea? Obviously, people can die just about anywhere, but no, it is not a dumb question. I’ve also wondered at some point whether such incidents happen at sea, and guess what, they do!

I previously wrote a short Instagram post about this and I’ve now decided to improve and supplement it with more information simply because by far, this is one of the saddest cases I encountered in practice. It is not just legal, it is also personal and requires emotional intelligence especially when dealing

with the family of the deceased or missing crew member. Unfortunately, while we’ve been taught the IPAC method (Issue, Principle, Application, and Conclusion), we were never taught emotional intelligence in law school especially when dealing with sensitive cases, or perhaps I'd rather I say “I don’t recall being taught emotional intelligence in law school”, I cannot be confidently making general statements.

Nonetheless, it is tragic that casualties of this nature actually do happen at sea. Crew members do get lost and some die while at sea and often the events surrounding the cause of death or how the member went missing are a mystery that leaves the surviving family and loved ones bereaved without any closure.

But what happens if one dies or gets lost at sea? No you silly, we don’t call AVBOB or Clientele Life.

In the event of death, God forbid, the deceased will have to be medically declared dead, this will normally be done by a qualified medical doctor. Regulation 4.1(4)(b) of the Maritime Labour Convention, 2006 provides that: in the event where a ship is carrying 100 or more persons and ordinarily engaged on international voyages[trips] of more than 3 days duration, such a ship should carry a qualified medical doctor on board. However, in voyages where a medical doctor is not required to be on board, I assume the deceased will medically be declared dead when the ship gets to the nearest port. Honestly, I am not sure why it is important for one to be declared medically dead, but I know for sure the declaration is important sometimes because of survivorship clauses in a Will – some which are conditional upon the testator dying first before a "specific" beneficiary, failing which the property will be donated to some museum or institution.

This may come as a shock, but most of these huge vessels are equipped with a mortuary, imagine traveling on board with a corpse. Therefore, the deceased will be temporarily placed in a mortuary until the ship can get to the nearest port. Upon arrival, various authorities will attend to the vessel and collect statements and evidence, then the body will be taken in for an autopsy. It is imperative to know what was the cause of the death in case there was foul play and someone needs to be prosecuted for murder or premeditated murder. In South Africa, the South African Police Service (SAPS) as well as the South African Maritime Safety Authority (SAMSA) are normally the authorities that will attend to such incidents.

Maritime lawyers are also consulted to attend onboard, normally by the shipowner who is probably somewhere in another country, to represent their interest in the entire investigation. What lawyers do when they get onboard is to interview the crew and ascertain the chain of events and possibly the cause of death while carefully not interfering with the authorities’ investigation. The involvement of lawyers is quite critical because it is important to assess the shipowner’s liability, if any, and to liaise with marine insurers on behalf of the shipowner should they be found liable.

Therefore, as soon as the autopsy is done and all the answers regarding the death of the crew member are answered, and depending on where the ship was docked, arrangements for the repatriation of the dead body will be made and paid for by the shipowner i.e. the employer of the deceased.

However, what happens when a crew member gets lost at sea? Say, for example, John was last seen smoking a cigarette on deck but a few minutes later he is nowhere to be found, what should happen in that scenario? Well, the first thing would be to report the incident to the Shipowner as well as to the relevant authorities. The same procedure of collecting evidence in a form of interviewing crew members as stated above would apply. The difference here is, there is no physical body where one would satisfy themselves that indeed "X" has passed on. The authorities would then deploy the Search and Rescue team to look for the missing person using a search pattern. This normally involves going over the route in which the ship was traveling and the surrounding areas.

Thereafter, Maritime lawyers will be consulted to bring an Ex Parte Application called ‘Presumption of Death Application.' This is when lawyers need to refer to all the evidence collected, including the missing person’s expertise and the fact that following an intensive search party, the body was not found.

In these kinds of Applications, the family of the missing person is normally consulted and required to depose to a Confirmatory Affidavit which will be used in support of the main Application.

In my article titled “what on earth is the significance of Ships and the Maritime Industry in our lives?” I mentioned that this industry is more economical than anything. All of the above procedures are not only for purposes of bringing closure and serving justice, there is an element of financial consideration involved which relies on the findings of those investigations. In the event of the death being due to the unseaworthiness of a ship, the insurance might not cover any costs arising from that incident as such might have been expressly excluded from the insurance policy. Remember most ships are owned by corporations and unfortunately, you cannot physically arrest a company, therefore, they have to pay money/penalty fee as punishment.

However, when a crew member goes missing, in addition to closure and justice as mentioned above, there are life insurance and employee benefits that can only be paid out when one is declared dead. Now, because there is no physical body to declare dead, the High Court will have to presume the missing person dead after considering the contents and contentions of the Presumption of Death Application and only after a court order has been granted, would the family or appointed beneficiaries be in a position to get the deceased’s monies.

I have found that in most of these cases where a crew member goes missing, the family usually suspects foul play. There was a case where the mother of the deceased went as far as to allege that her son was murdered because he was intentionally pushed into the sea. This is where emotional intelligence comes to play; as a lawyer, while you sympathize with the bereaved, you have to make sure you do not entertain such allegations unless there is evidence which indicates otherwise. Even so, you need to bring that evidence to the attention of the prosecutor or police services.

The last thing you need is to give false hope and fail to see the matter through. Always remember, you are a lawyer and not a psychologist, should you feel that the expectations from the family are for you to tend to their emotions beyond what is considered ethical and acceptable in the legal fraternity, kindly direct them to consult with a social worker or a psychologist.

On that note, I would like to acknowledge the significance of seafarers and to send a special shout out to the work they do.

I wish you more safe and fulfilling trips.