Barry Donald Henderson has pleaded guilty to knowingly or negligently conveying passengers for hire on the Sun Runner when the boat was unsafe.
He was fined for $750.
The Sun Runner capsized 7 April, 2006, when there were 55 passengers on board.
Defence Attorney Lee Freeman told Magistrate Margaret Ramsay-Hale the boat’s capacity was 90.
He said Henderson, 23 at the time, had been working for Kirk Sea Tours as a dive instructor. Because of his overall competence and possession of a captain’s licence from his native South Africa, he had been functioning as captain of the Sun Runner for three weeks.
Court lists show that the same charge of conveying persons for hire in an unsafe conveyance has been laid against Kirk Sea Tours Ltd. and Bradley Potgeiter. Both have pleaded not guilty and their trial is set for 9 May. A third man was also charged, but he left the island before the matter went to court in September.
Crown Counsel Trevor Ward summarised the case against Henderson.
He said Kirk Sea Tours has contracts with several cruise lines to take passengers to Stingray City and other tourist attractions.
On 7 April the Sun Runner set out on an excursion to the Sand Bar. En route, the vessel was observed to be sitting rather low in the water at the bow. It was listing toward the port side, so much so that water was accumulating on that side of the main deck. Passengers observed that the engine did not appear to be running properly.
Another boat captain, who observed the Sun Runner, tried to alert its crew but got no response.
At the Sandbar, passengers got into the water for about 40 minutes before re-boarding. There was nothing to suggest that any steps were taken during that time to assess the problem.
As the Sun Runner departed the Sandbar and headed for deeper water, the vessel was observed to be heavily listing to its portside and aft. Water was seen rushing over the stern and into the boat.
Passengers were asked to move to the starboard side in an effort to balance the boat, but within seconds it capsized and sank. It eventually came to rest on its port side. The sinking occurred about 200 feet northwest of the Sandbar.
Mr. Ward said greater tragedy was averted because of the prompt response of nearby vessels whose crews assisted in the rescue operation. Four passengers received minor injuries, while another attended George Town Hospital exhibiting shock symptoms.
Later that day the Cayman Islands Maritime Authority carried out an initial underwater inspection of the boat. The next day it was re-floated and taken to Harbour House Marina for further inspection.
Mr. Ward said it was concluded that there was evidence of neglect in maintenance and the omission of duties by staff and crew that contributed to the capsizing.
In particular, it was found that the removal of a macerating pump by the staff of Kirk Sea Tours Ltd. a few days before, which resulted in the valve leading to the through-hull fitting being left open, was a major contributing factor to the rapid intake of water.
Henderson was later interviewed under caution. He admitted seeing water on the deck, but did not consider it serious. He realised something was wrong when he observed the vessel starting to lean a couple of times, but he attributed this to the weight distribution of the passengers.
In mitigation, Mr. Freeman said Henderson was pleading guilty on the basis that the buck stops with the captain, who has overall responsibility for the safety of the boat.
He said the captain’s pre-trip checks did not reveal any problems. The amount of water coming onto the deck on the way out did not cause concern because Henderson was used to water coming on deck and going out through the pumps.
There was no suggestion that the Henderson knew about the faults or that they were discoverable, Mr. Freeman said. Henderson believed the boat to be seaworthy.
He quoted from the statement of a man who had examined the boat. This man had reported no evidence of sabotage by someone opening the valve to the pump. He said it was not visible from normal inspection of the engine room.
Mr. Ward replied that the witness quoted was discounting sabotage. That did not mean the problem was not readily discoverable during a proper check. Further, Henderson was aware that the pump had been removed and when it was removed.
Apart from that, negligence became obvious when water was coming on deck and the listing of the vessel was a cause of concern. When the boat entered shallow water at the Sandbar, the captain ought to have assessed the problem, Mr. Ward said.
The magistrate expressed sympathy for Henderson because she thought he might have been given more responsibility than he was ready for. She said so, not because he was negligent in checking the pumps, but because the taking on of water would have signalled to a more experienced captain that there was trouble.
Mr. Freeman said the offence carries a maximum sentence of two years imprisonment, but submitted that the threshold for custody had not been reached.
The magistrate agreed and said that left her with the option of a fine. She could not impose a fine that was such a burden that he would end up in custody in lieu of payment.
But a real sentence had to be imposed so that the public would know that if you’re going to carry people for profit, your vessel must be safe. The sentence had to deter other persons who might put an inexperienced person in charge or, being captain, not take full measures to ensure safety.
Mr. Freeman said Henderson had spent his savings and had been assisted with living expenses by friends and family since the incident. He had worked part time at the Turtle Farm cleaning tanks for $13 an hour.
The maximum fine for the offence is $2,000. The magistrate said this was not the worst case or even the medium worst, because some defects are more easily discernible than others.
Henderson’s guilty plea had shortened matters considerably, she said in imposing a fine of $750 or four months in jail in lieu.