Record of Investigation into Death
Coroners Act 1995
Coroners Regulations 1996
I, Stephen Raymond Carey, Coroner, having investigated the death of
Ross Donald CUBIT
WITHOUT HOLDING AN INQUEST
Find That :
(a) The identity of the deceased is Ross Donald CUBIT ("Mr Cubit") who died on 17 September 2010 in water off Nebraska Beach, Bruny Island.
(b) Mr Cubit was born on 9 September 1954, was a self employed occupational health and safety consultant and was divorced.
(c) Mr Cubit died as the result of salt water drowning, a probable significant contributing factor was ethanol (alcohol) intoxication.
Circumstances Surrounding the Death :
Mr Cubit regularly participated in yacht races. On 17 September 2010 he was a crew member aboard "Storm Bay", a catamaran style cruising yacht in the "Pipe Opener" being a series of yacht races over the weekend in the D’Entrecasteaux Channel area organised and conducted by the Derwent Sailing Squadron. "Storm Bay" was crewed by co-owner and skipper Steven Laird, Kim Creak and Mr Cubit. The first race commenced at 1940 hours from the start line off Castray Esplanade, Hobart. As the field of yachts entered the D’Entrecasteaux Channel weather conditions deteriorated significantly. The Bureau of Meteorology had issued a coastal waters forecast at 1615 hours on Friday 17 September 2010 in which is issued a "Strong Wind Warning" for all coastal areas including the D’Entrecasteaux Channel. Winds of 35-45 knots and seas of 4-6 metres were predicted for the south east of the State. "Storm Bay" experienced winds up to 30 knots entering D’Entrecasteaux Channel and at approximately 2200 hours the skipper Steven Laird made a decision to retire the yacht from the race because they were closing on the shore, being only 500 metres from Nebraska Beach which is just south of Dennes Point on Bruny Island. The crew then set about dropping the sails, with the intent to use engine power to motor away from the beach.
Mr Laird started the motor, Mr Creak took down and centred the main sail and Mr Cubit took the starboard helm to put the vessel on a port tack into the wind. After a very short period of time had elapsed Mr Laird noticed that Mr Cubit was missing. A search of the vessel occurred and then the "man overboard" alarm was raised on VHS marine radio and also by telephone. After a period needed to bring "Storm Bay" under control they then commenced a search of the area looking for Mr Cubit in the water.
Mr Peter Driessen, skipper of the yacht "Audacity" heard the marine radio message and shortly afterwards one of his crew members called out "there he is". He, together with others, then identified a person in the water about 10 metres away on their starboard side. This person was screaming out to them. They took the boat around and came back but failed to get hold of him. It was noted that the person’s wet weather jacket was puffed up around the shoulders and it was assumed that this was a personal flotation device that had been activated. They took "Audacity" around again and had crew acting as lookouts so that they could maintain visual contact with the person in the water. As ‘Audacity" came within 2-3 metres of this person they were hit by a wind gust and large wave and the boat was knocked over and pushed away from the person. At this stage Mr Driessen describes that wind waves were almost 2 metres and the wind had picked up to about 50 knots. The decision was made to take the sails down and start the engine on "Audacity". All crew on board were then involved in dropping sails and attempting to maintain visual contact of the person in the water. Due to wind gusts they had difficulty dropping the head sail which went overboard and the engine had to be placed into neutral to avoid fouling the prop. When these difficulties were sorted out and they were under motor power they resumed the search in the area they had last seen this person but saw and heard nothing. "Audacity" continued searching until the police vessel and helicopter arrived at which time they abandoned the search to return to their berth at Lindisfarne due to crew members suffering seasickness and the effects of exposure to the cold. It was assumed by those on board "Audacity" that given the prevailing weather conditions the person would be blown ashore given that they believed he was wearing a personal flotation device.
Two police vessels conducted a water search whilst the police rescue helicopter conducted search using its high intensity light and also thermal imaging equipment. Other yachts from the race were also searching in the area.
Senior Constable Barber who was relieving as the Officer in Charge on Bruny Island was called to the incident and attended the scene by land arriving at Dennes Point jetty at approximately 2345 hours. He assessed from the weather conditions, wind and wave direction that the person fallen overboard would most likely be washed ashore south of Dennes Point. He therefore walked along the beach finding the body of Mr Cubit on the beach with waves breaking over him at a point 1 km south of Dennes Point jetty. At the same time the police helicopter identified Senior Constable Barber on the beach and also noted Mr Cubit on the waterline. Senior Constable Barber was unable to drag Mr Cubit up the beach out of the water but was then assisted by a local member of the public and together they managed to do this. It was noted that Mr Cubit had approximately 50 kg of sand inside his wet weather clothing, this probably being as a result of wave action whilst he was on the beach.
The issue of concern in relation to this tragic accident was that at post mortem Mr Cubit was found to have a blood alcohol concentration of 0.164 g/100ml (0.164%) of alcohol in his blood. At the time that he fell overboard Mr Cubit was at the helm and exercising control over "Storm Bay" and this area of the yacht did not have full height and continuous safety railing. It is a reasonable inference to determine that in rough weather conditions Mr Cubit’s balance and co-ordination would have been adversely affected by his blood alcohol concentration which could have significantly contributed to the mechanism by which he fell overboard.
Comments and Recommendations :
"Storm Bay" was a modern catamaran yacht equipped with all the requisite safety equipment required in the circumstances. There is no indication that there was any failing in the yacht’s condition that contributed to this accident. I am satisfied based upon enquiries made that "Storm Bay" was able to be safely sailed by a crew of three, especially the members who were on board on 17 September 2010 who were all highly experienced yachtsmen.
The Derwent Sailing Squadron race organisers conducted the race in accordance with the "Yachting Australia Racing Rules of Sailing". I am satisfied that appropriate monitoring of weather forecasts occurred and that appropriate details were properly considered. Although the weather conditions were forecast to involve rough weather I am satisfied that it was not to an extent that ought to have initiated the cancellation of the activity. Previous races in that area I am advised have continued in worse weather conditions than those encountered on 17 September 2010.
I am satisfied, save for one qualification, that the skipper and person in charge of "Storm Bay" acted appropriately at all times during this race. I must comment however that in my view he did not apply the requisite degree of attention required in ensuring that Mr Cubit was wearing a personal flotation device. The conditions of the Notice to Race amended the standard safety regulations by providing;
"- Boats without rails, all crew must wear PFDs for full race duration together with a personal locating light."
Mr Cubit took such a PFD aboard but did not wear it. During a recorded interview between police and Mr Laird, the following exchange took place;
"Q Altogether, alright. So in the notice of race, they talk about number 5, paragraph 5, safety regulations. Yachts competing in the Pipe Opener Series must comply with the safety regulations of the AIF. I won’t read out all of the numbers and then it gets to category five with the following alteration: boats without rails, all crew must wear PFD’s for the full race duration, together with a personal locator light.
Q Now your vessel, is it a boat without rails?
A It’s not a boat without rails but it has discontinuous rails.
Q So the helm, as I understand it, there’s two helms -
Q One on either side because it’s a twin -
Q - hulled vessel. And in the area around the helm are there any rails?
A There is but there’s a gap. There’s two gaps in those areas leading down to the stern.
Q Well I guess my question is, does this, in your opinion, does this rule apply to you as far as their rule to wear PFD’s and a personal locator light?
Q Are you aware if Ross was wearing those things during the race?
Q Who was the skipper of the vessel at the time?
A I was.
Q So was it your responsibility to ensure that he was wearing a PFD?
A Yes I suppose."
Later in that interview Mr Laird appears to suggest he mistook the red waterproof jacket Mr Cubit was wearing for a PFD as the following exchange indicates;
"Q What was he wearing up until the point that he went overboard?
A All I remember he was wearing is grey bottoms, on the boat. I honestly can’t remember what he had on top. He usually uses, wears a red top.
Q Right. Well it was red top when he was located.
A Which is the same colour as our PFD’s.
Q Yes, does he normally have s Stormy Seas PFD:
A Yes. Yes.
Q The top that he had on was a red top with reflector tape on it. I think it was a silver and grey coloured tape that lights up quite brightly when you put a light on it.
Q And that has a similar appearance to his usual PFD does it?
A Yes. What, they’re nearly identical."
I note from the photographs of the deceased showing the clothing he was wearing that the red waterproof jacket may have had the appearance of the commonly used "Stormy Seas" style PFD’s but it is clearly distinguishable from such a PFD by grey/black contrasting around the shoulders and across the back of the jacket. I consider that a cursory glance may have given the impression that Mr Cubit was wearing a PFD but other than that I do not accept that it would give that impression to someone experienced in the use of such PFD’s. In addition, this interview with police took place after Mr Laird had made his initial statement to police. During that process no direct reference was made to the altered safety requirements nor the possible failure of Mr Laird to ensure that Mr Cubit was wearing a PFD. In that context Mr Laird states in his affidavit that;
"Ross was the helmsman for the race. We were dressed in matching wet weather equipment, Ross was wearing grey wet weather pants, I’m not sure what else he was wearing. I did not see Ross wearing a life jacket. Both Kim and I were wearing Stormy Seas jackets, with lights………I knew Ross had a Stormy Seas jacket on board."
Given that Mr Cubit was the helmsman and that this required him to be located on an area of the yacht where there was a gap in the safety rail, I consider that Mr Laird ought to have positively determined whether Mr Cubit was wearing his PFD and if not to have required him to do so. The extensive knowledge and experience of the crew members as yachtsmen does not displace the overall responsibility of a skipper or person in charge of a boat to ensure that all safety requirements have been complied with.
The performance of Messrs Laird and Creak in managing and manoeuvring "Storm Bay" whilst shorthanded and in poor weather conditions in order to search for Mr Cubit is to be commended.
The level of alcohol in Mr Cubit’s blood at post mortem raises the clear possibility that his alcohol consumption in the period before the race played a material role in his death. The fact that a highly experienced yachtsman would consume alcohol to the extent that he obviously did prior to this race is a matter of real concern. Licensed yacht clubs that provide alcohol for consumption to persons involved in yachting events need to address their procedures and responsibilities in this regard. I accept based on the evidence that no-one associating with Mr Cubit in the period immediately before the start of the race realised that he was affected by alcohol. However he was recognised by a number of associates as a "seasoned drinker" who did not exhibit signs of being affected despite drinking alcohol, and given this those involved ought to have made more endeavour to determine how much alcohol he had consumed given he was seen by many to consume some alcohol prior to the race and whilst on the yacht. I am aware that considerable publicity attended the imposition of blood alcohol limits to persons operating recreational vessels but this publicity did appear to target smaller runabout and other motor vessels. It may well be opportune to ensure that all those persons involved in operating vessels, be they a tin dinghy right through to a luxurious motorboat or expensive racing yacht are made aware of the application of the Marine Safety (Misuse of Alcohol) Act 2006. I strongly recommend that Tasmania Police and MAST ensure, by policing activities and education programmes that the wider boating community are aware of the wide ranging coverage of this legislation.
I wish to conclude by conveying my sincere condolences to the family of Mr Cubit.
DATED: 22 June 2011 at Hobart in the State of Tasmania.
Stephen Raymond Carey