Even while rescue efforts were ongoing, many who have watched the Costa Concordia tragedy unfold off Italy’s Tuscan islands have now turned their attention to the master’s conduct --particularly his hasty departure from the capsized vessel and his later defiance of coast guard orders to go back aboard the ship and assist in the evacuation.
Most of the questions I have been hearing concern his legal obligation as the ship’s master to his passengers and crew. Few asked about his moral obligation as a captain. Perhaps it is a sign of the times.
As I struggle to put the Concordia episode in perspective, both as a teacher and a retired professional mariner, I looked back to two historical cases that stand out for me.
The first is an 1841 criminal case arising out of the sinking of the sailing vessel "William Brown' while transporting 65 immigrant passengers to America.
The second is a 1980 case involving William Flores, a 19-year-old crewman on the U.S. Coast Guard cutter Blackthorn on the day it collided with the tanker Capricorn in Tampa Bay.
These “two Williams” serve as bookends for me as a teacher of future Coast Guard officers and future lawyers and, perhaps, judges.
The first one defines for me the professional mariner’s legal obligation, while the second serves for me as a shining example of a mariner whose extraordinary character impelled him to make the ultimate sacrifice so that his shipmates might live.
The William Brown and the Prosecution of Seaman Alexander Holmes
In 1841, the American sailing vessel William Brown set sail from Liverpool en route to Philadelphia with a crew of 17. The ship carried 65 passengers, mostly Scottish and Irish immigrants.
After striking an iceberg, the vessel sank 250 miles off the coast of Newfoundland. The master and crew escaped in the ship’s two boats, leaving behind 31 of the 65 passengers. Another 16 passengers were forced out of one of the boats when the crew became concerned that it was overloaded. The discarded passengers joined the other 31 on the “lost at sea” rolls.
Only one crew member was ever brought to trial. An ordinary seaman, Alexander Holmes, was charged with murder for his role in forcing one of the passengers from the boat.
U.S. Supreme Court Justice Henry Baldwin, who was sitting as circuit justice in Pennsylvania, presided over Holmes’ trial. After the evidence was presented, Baldwin instructed the jury on the relationship between a ship’s crew and its passengers under such circumstances:
The sailor … 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.
Holmes was convicted of manslaughter after the jury rejected his “necessity” defense.
The Cutter Blackthorn and the Heroism of Seaman William Flores
On the evening of January 28, 1980, the Coast Guard Cutter Blackthorn, a 180-foot coastal buoy tender, was outbound in Tampa Bay en route to its homeport in Galveston, Texas, after an extensive overhaul in a Tampa shipyard.
As the ship approached the Sunshine Skyway Bridge, Blackthorn collided with the inbound tanker Capricorn. The Capricorn’s anchor lodged in the Blackthorn’s port side, tearing the vessel’s hull open. Blackthorn sank almost immediately.
One of the 49 crewmen aboard the Blackthorn that night was 19-year-old Seaman Apprentice William Ray Flores -- “Billy” to his friends.
As the Blackthorn began to sink, Flores and another crewmember remained aboard to throw lifejackets to their shipmates who had jumped into the water.
Even after his companion abandoned the ship, Flores remained behind. He used his belt to strap open the lifejacket locker door, allowing additional lifejackets to float to the surface, and turned his attention to assisting trapped shipmates and comforting those who were injured and disoriented.
Tragically, William Flores was among the 23 Coastsguardsmen who perished that night.
Legal obligations are virtually never completely commensurate with our moral obligations, much less our personal aspirations.
The legal rule exposited by Justice Baldwin at the Holmes’ trial arguably sets a high standard, yet it still leaves something to be desired.
While as professional mariners we must ensure we at least meet the legal standard described by Justice Baldwin in the William Brown episode, we hope that if disaster strikes we will find the inner courage and strength to rise to the William Flores standard.
Like James Thurber’s Walter Mitty character in the short story "The Secret Life of Walter Mitty," later played on screen by Danny Kaye, we can all imagine ourselves responding to the call like the now legendary surfer-lifeguard Eddie Aikau, whose heroics are still celebrated on "Eddie would go" bumper stickers and T-shirts throughout Hawaii.
As we reflect on the Costa Concordia episode in the coming weeks, we should look to the example of William Flores. I say this with more than a little bit of father’s pride. My son serves as the first commanding officer of the Coast Guard Cutter William Flores, named to honor the quiet young man from Benbrook, Texas.
Craig Allen is a retired Coast Guard officer and cutterman and the Judson Falknor Professor of Law at the University of Washington. He is presently 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.
Craig H. Allen is Judson Falknor Professor of Law at the University of Washington. Professor Allen joined the UW School of Law and School of Marine Affairs faculties in 1996, following his retirement from the U.S. Coast Guard.