More than ten months after the FarrX2 Nexba lost its keel and capsized off the Australian east coast we are still no closer to a confirmed explanation of that structural failure, or why it took more than 12 hours for the crew to be rescued.
As a hard news story, the incident has now drifted into the distance. Meanwhile, the local offshore community is growing understandably impatient for answers. There must be useful safety lessons to be learned from the loss of Nexba and its aftermath. Any sailor who ventures to sea surely deserves to have the benefit of that knowledge.
So why are we still waiting? Lawyers. Or more accurately, lawyers acting on behalf of insurance companies.
SA has repeatedly sought comment from all the parties involved but no one is yet prepared to speak on the record. We can, however, assemble an outline of how this unfortunate impasse has developed.
It’s important to understand that there are two separate areas of concern here. The first relates directly to the cause – or causes – for the loss of the yacht; the second is an investigation into the safety aspects and the long delay before the search and rescue operation began.
Farr Yacht Design has been quite open about their modifications to the keel-fixing system on the X2 following the incident. That would seem to indicate an implied admission of possible fault. But establishing actual liability is another matter.
The owner of Nexba (who was not aboard when it capsized) insured the yacht with the local agency of an international company. His claim for total loss was denied on the grounds that the hull/keel failure was evidence of inherent flaws in the design, construction, or assembly of the yacht. In their view that absolves them of liability.
The consequence of that position is that no other insurer involved – that is, for the designers, manufacturers, specialist component makers, certifiers, importers or brokers – will accept liability either. Stalemate.
The owner then had no option but to commence legal proceedings against the importer and broker under the terms of his Contract of Purchase. Various legal Statements of Claim have been lodged as the owner seeks to recover his minimum $250,000 loss.
In the end it’s likely that rather than face each other in a long court battle the lawyers for all parties will negotiate a settlement in which they each agree to accept a proportion of the total liability. But that could take some time.
Meanwhile, the more immediate question is why we are still waiting for the report of the independent panel’s review into the Nexba incident announced by the Royal Prince Alfred Yacht Club way back in July last year.
At the time the sport’s national body, Australian Sailing, said they would “provide all necessary support to the club and those involved throughout this process” and would also “provide updates regarding the review through our Safety in Focus communications”.
Since then, nothing. Not a word. Almost a year later we are no wiser as to why the keel fell off, why the liferaft wasn’t deployed, why one of the two-person crew wasn’t wearing their lifejacket, or why the boat EPIRB and neither of the crew’s personal EPIRBs were activated.
Offshore sailing, at least at the Corinthian level, has largely been guided by a sense of the ‘common good’. We share our experiences – good or bad – so that the lessons learned are to the benefit of all, and help save lives.
There can be little doubt that the panel’s investigation into the Nexba incident must have concluded some time ago. The safety issues are unrelated to insurance. It should not be beyond the wit of those involved to produce a factual report that avoids any legal implications or apportions blame.
But the RPAYC is yet to release its findings, and they now don’t even acknowledge inquiries on the matter.
– anarchist David
