Concordia News: Please Post Here

Someone seems he!!-bent on trying to make the ship responsible for the hole in its side rather than the Captain that set the course to disaster.

There is a greater probability that had the ship sailed its normal course it would have arrived safely to its next port. That the Captain ordered the change, either with or without Costa approval, does not matter at this point. What matters is he or another officer changed course and seemingly did not follow up on the route set and the speed to get there. He left the Bridge and returned with no time to correct the error that was made. As Master of the ship, it was his responsibility to check that everything was set properly before exiting the Bridge.

Note: I am not letting Costa off the hook with my above statement. Their part will come out in court.

Again, I await more known facts. Hypothetical game playing is of no importance unless one is looking for ways to s-t-r-e-t-c-h the facts.

I can't "play along" when your premise is contrary to law. Coroner's verdicts have NO affect on Criminal Investigations and Prosecutions. I explained all that in my prior post but you edited those out when you quoted me. So,I think I'll repost them.

 

 

Based upon my legal education, training and experience I know I could grab any 12 people off the street and put them in the box and send Captain Death for an all expense paid vacation for at least a decade.

 

Do you want me to get you some law shool applications, so you might learn these things in a few years?

OK...so basically you are not prepared to place yourself hypothetically into the position of prosecutor or defence lawyer in a case of similar nature to Concordia.

You are playing dodgeball.

If the INVESTIGATORS find that there is NO single human or mechanical/technological causal factor and the deaths were concluded to be either misadventure and/or accidental as a result of a combination of many facets...YOU would not be able to say one way or the other, in all good faith, how YOU would react as either the prospective prosecutor OR as the lawyer representing the company, officers and/or captain of the vessel?

That says quite alot....

You have made your own personal thoughts crystal clear....death penalty or at least life in prison without any chance of parole.

Yet you skirt around the hypothetical position that the investigation comes back as accidental death and/or death by misadventure...which means no-one is at fault individually, that it was the fault of many parties, equipment failures and other safety/training related issues.

I would have thought that as a lawyer who worked on both sides of the legal fence, that you would be more than happy to give your legal standing and opinions - ie without personal feelings or emotions attached.

But obviously that fixation of your's is too deeply seated and that is a shame cos with your legal background, it would be nice to have an unbiased & experienced legal perspective from both sides - prosecution and defence - in the event of an accidental or misadventure finding at the conclusion of the investigation into the deaths of these people.

Oh well.....

Someone seems he!!-bent on trying to make the ship responsible for the hole in its side rather than the Captain that set the course to disaster.

There is a greater probability that had the ship sailed its normal course it would have arrived safely to its next port. That the Captain ordered the change, either with or without Costa approval, does not matter at this point. What matters is he or another officer changed course and seemingly did not follow up on the route set and the speed to get there. He left the Bridge and returned with no time to correct the error that was made. As Master of the ship, it was his responsibility to check that everything was set properly before exiting the Bridge.

Note: I am not letting Costa off the hook with my above statement. Their part will come out in court.

Again, I await more known facts. Hypothetical game playing is of no importance unless one is looking for ways to s-t-r-e-t-c-h the facts.

At least you are WILLING to look at the wider perspective that it was a combination of factors and failures and not the actions or inactions of just one individual.

You are absolutely right...if the ship was on the wrong course/speed and whoever did that was not corrected...then both the person setting the course/speed AND the one(s) who did not point out the problem and correct it themselves or speak out a warning to get it corrected are ALL equally to blame for what came next.

Let's hope it's not the next millenium! ;):p

Domani, Domani ...

David/Balf ... Until they get Concordia back to a yard and put it into drydock they will not know what damage other than the hole there is to the ship, there is a possibility that the damaged areas could be rebuilt and the ship used under another name.

it has already been decided - quite some time ago - that the ship would be dismantled and scrapped.

OK...so basically you are not prepared to place yourself hypothetically into the position of prosecutor or defence lawyer in a case of similar nature to Concordia.

 

You are playing dodgeball.

 

If the INVESTIGATORS find that there is NO single human or mechanical/technological causal factor and the deaths were concluded to be either misadventure and/or accidental as a result of a combination of many facets...YOU would not be able to say one way or the other, in all good faith, how YOU would react as either the prospective prosecutor OR as the lawyer representing the company, officers and/or captain of the vessel?

 

That says quite alot....

 

You have made your own personal thoughts crystal clear....death penalty or at least life in prison without any chance of parole.

 

Yet you skirt around the hypothetical position that the investigation comes back as accidental death and/or death by misadventure...which means no-one is at fault individually, that it was the fault of many parties, equipment failures and other safety/training related issues.

 

I would have thought that as a lawyer who worked on both sides of the legal fence, that you would be more than happy to give your legal standing and opinions - ie without personal feelings or emotions attached.

 

But obviously that fixation of your's is too deeply seated and that is a shame cos with your legal background, it would be nice to have an unbiased & experienced legal perspective from both sides - prosecution and defence - in the event of an accidental or misadventure finding at the conclusion of the investigation into the deaths of these people.

 

Oh well.....

I'm not playing dodge ball. You continue in your persistant plan to muddy the waters, hoping the readers will become distracted from the true issues with inapplicable, irrelevant and immaterial facts, ficitions, and fatasies.

I will now instruct you for the last time. To be convicted of Homocide, it doesn't matter if there was "NO single human or mechanical/technological causal factor". That may help sway a Coroner but it is of NO import in a criminal case. To convict of Homocide all you must show is premedidated, intentional, reckless, or grossly negligent conduct that was one of the causes of the death of another. It does NOT matter if there were other causes involved as well.

Your hypothetical question assumes a Coroner's verdict has some authority and power that it does not have. I don't play mind games with the law with non lawyers who spout law they learned from "HMS Pinnafore" or "Alice in Wonderland".

I still want to know if your being paid by any entity of Costa or the Cruise Industry.

 

I'm not playing dodge ball. You continue in your persistant plan to muddy the waters, hoping the readers will become distracted from the true issues with inapplicable, irrelevant and immaterial facts, ficitions, and fatasies.

 

I will now instruct you for the last time. To be convicted of Homocide, it doesn't matter if there was "NO single human or mechanical/technological causal factor". That may help sway a Coroner but it is of NO import in a criminal case. To convict of Homocide all you must show is premedidated, intentional, reckless, or grossly negligent conduct that was one of the causes of the death of another. It does NOT matter if there were other causes involved as well.

 

Your hypothetical question assumes a Coroner's verdict has some authority and power that it does not have. I don't play mind games with the law with non lawyers who spout law they learned from "HMS Pinnafore" or "Alice in Wonderland".

 

I still want to know if your being paid by any entity of Costa or the Cruise Industry.

Uniall....all I asked is for your honest and unemotional thoughts of the processes open to both a prosecutor and the defence representatives in the event of the investigation concluding death by misadventure and/or accidental death.

A coroner will at some point cast a judgement in the Italian court as to the reason or method of death, he or she can go with the investigative conclusions and place accidental death or death by misadventure onto those 32 death certificates.

What I want you to explain is the options open...for instance, if the conclusion of the investigation of the accident does not lay blame onto an individual or individuals, where would that leave the potential criminal litigation?

Would a criminal litigation still go ahead despite the findings of accidental death and/or death by misadventure or would the criminal action be moot and unworkable?

In a similar vein, if the defence lawyers are given the accidental death and/or death by misadventure, would that mean that the only means of relatives getting any form of justice would only lie in the civil courts via independent lawsuits for punitive damages?

I cannot believe that you haven't come across such a hypothesis like this in the decades that you have worked in the law profession.

As for working for Costa or the industry...I wish I did, cos then I wouldn't have to scrimp and save for my cruises. If I was able to I would love to work on a cruise ship...but not front of house cos working with the public is largely a thankless task and somewhat frustrating too.

No...I am medically retired and enjoying life as best I can...and I happen to like digging about in accidents to see what ramifications there are for the industry concerned...aviation mainly, but on occasions like this, my other "love", that being shipping. Accidents like these always have knock-on effects, its just a case of identifying them and then taking preventative action to stop a repeat sometime later on.

At least you are WILLING to look at the wider perspective that it was a combination of factors and failures and not the actions or inactions of just one individual.

 

You are absolutely right...if the ship was on the wrong course/speed and whoever did that was not corrected...then both the person setting the course/speed AND the one(s) who did not point out the problem and correct it themselves or speak out a warning to get it corrected are ALL equally to blame for what came next.

Don't get to excited about my post. It doesn't negate my belief that the Captain has the majority of the blame. He is the Master of the ship and it was his responsibility to see the ship went from Point A to Point B without incident or accident.

He failed.

Uniall....all I asked is for your honest and unemotional thoughts of the processes open to both a prosecutor and the defence representatives in the event of the investigation concluding death by misadventure and/or accidental death.

 

A coroner will at some point cast a judgement in the Italian court as to the reason or method of death, he or she can go with the investigative conclusions and place accidental death or death by misadventure onto those 32 death certificates.

 

What I want you to explain is the options open...for instance, if the conclusion of the investigation of the accident does not lay blame onto an individual or individuals, where would that leave the potential criminal litigation?

 

Would a criminal litigation still go ahead despite the findings of accidental death and/or death by misadventure or would the criminal action be moot and unworkable?

 

In a similar vein, if the defence lawyers are given the accidental death and/or death by misadventure, would that mean that the only means of relatives getting any form of justice would only lie in the civil courts via independent lawsuits for punitive damages?

 

I cannot believe that you haven't come across such a hypothesis like this in the decades that you have worked in the law profession.

 

As for working for Costa or the industry...I wish I did, cos then I wouldn't have to scrimp and save for my cruises. If I was able to I would love to work on a cruise ship...but not front of house cos working with the public is largely a thankless task and somewhat frustrating too.

 

No...I am medically retired and enjoying life as best I can...and I happen to like digging about in accidents to see what ramifications there are for the industry concerned...aviation mainly, but on occasions like this, my other "love", that being shipping. Accidents like these always have knock-on effects, its just a case of identifying them and then taking preventative action to stop a repeat sometime later on.

Don't you get it? Corner's Verdicts HAVE NO AUTHORITY. They are irrelevant, inconsequential, immaterial, imcompetent, inadmissable, inappropriate, inanything IN A CRIMINAL INVESTIGATION & PROSECUTION.

Once in a while, they are used to shame the police & prosectuor into action if they refuse to charge a bad guy BUT they have NO power or authority to determine if a crime has been committed.

At least I now know you are not being paid by Schittino's legal defense team. They'd demand their retainer be refunded after reading your musings about the law.....LOL

Don't you get it? Corner's Verdicts HAVE NO AUTHORITY. They are irrelevant, inconsequential, immaterial, imcompetent, inadmissable, inappropriate, inanything IN A CRIMINAL INVESTIGATION & PROSECUTION.

 

Once in a while, they are used to shame the police & prosectuor into action if they refuse to charge a bad guy BUT they have NO power or authority to determine if a crime has been committed.

 

At least I now know you are not being paid by Schittino's legal defense team. They'd demand their retainer be refunded after reading your musings about the law.....LOL

Without the criminal act being proven, there can be no criminal case.

In Europe (which, afterall is where the current investigation is taking place and therefore US law or legal process has no part or comparison) in a case where a death by misadventure and/or an accidental death is the conclusion of full and thorough investigation, the criminal aspect against any individual(s) is removed, thus prosecutors are not in the equation.

So no pound of flesh can be sought through the legal channels.

But a relative can, if they wish proceed through the civil courts to obtain punitive damages for the loss of a loved one with a death by misadventure or accidental death conclusion.

As I said, all I wanted to know is what the legal stance would be for both sides of the fence looking at it from the US legal point of view. Obviously in your opinion its no such possibility of an accidental death or a ruling of misadventure...its clear cut guilt of killing someone regardless of whether there was premeditation, misadventure or accident.

It's like in the UK we have murder, manslaughter....over in the US is aggravated murder, murder 1, murder 2, man 1, man 2...what is all that about...what is the difference...no need to bit the head off, I am curious about the huge variations in charges that are available over there compared to Europe.

Don't get to excited about my post. It doesn't negate my belief that the Captain has the majority of the blame. He is the Master of the ship and it was his responsibility to see the ship went from Point A to Point B without incident or accident.

He failed.

Excited...nah...I stopped getting excited about anything years ago....cynical, oh I am VERY cynical about most things, hence my digging around in the shadows to find details that would otherwise be overlooked or ignored...but excited...nope...not me...

Hell..I haven't even bothered with the Olympics, haven't a clue who has won what in where...let alone getting all buzzy about it...

Without the criminal act being proven, there can be no criminal case.

 

In Europe (which, afterall is where the current investigation is taking place and therefore US law or legal process has no part or comparison) in a case where a death by misadventure and/or an accidental death is the conclusion of full and thorough investigation, the criminal aspect against any individual(s) is removed, thus prosecutors are not in the equation.

 

So no pound of flesh can be sought through the legal channels.

 

But a relative can, if they wish proceed through the civil courts to obtain punitive damages for the loss of a loved one with a death by misadventure or accidental death conclusion.

 

As I said, all I wanted to know is what the legal stance would be for both sides of the fence looking at it from the US legal point of view. Obviously in your opinion its no such possibility of an accidental death or a ruling of misadventure...its clear cut guilt of killing someone regardless of whether there was premeditation, misadventure or accident.

 

It's like in the UK we have murder, manslaughter....over in the US is aggravated murder, murder 1, murder 2, man 1, man 2...what is all that about...what is the difference...no need to bit the head off, I am curious about the huge variations in charges that are available over there compared to Europe.

But, Coroner's inquests have no involvement in criminal cases........... what part of that don't you understand?

DUH ????........................................

But, Coroner's inquests have no involvement in criminal cases........... what part of that don't you understand?

 

DUH ????........................................

Who determines the cause of death? Is it the police investigator, fire investigator, medical examiner or someone else?

If it is determined that a person died in a fire and a person is charged with setting the fire who testifies (if anyone) to what the cause of death was?

But, Coroner's inquests have no involvement in criminal cases........... what part of that don't you understand?

 

DUH ????........................................

Sorry but yes they do...at least on this side of the pond.

If a coroner (medical examiner) cites a death is non accidental and not by misadventure or suicide it is classed and recorded as a murder or manslaughter and that decision is then applied to the death certificate before the body is released for burial or cremation.

Equally if the coroner/medical examiner, upon receipt of the investigation from a fatacc (fatal accident inquiry), can cite whether the death(s) are due to accident, misadventure or murder/manslaughter/suicide according to that investigator(s) conclusions as to the cause(s).

If a death is deemed to be due to non accidental injury, the case is passed to the police and the prosecution service in the country concerned...in the UK its the Crown Prosecution Service, who will look at the coroner's report and any investigative files attached to that death and they will decide if the case is to be dropped due to insufficient evidence or if the person who is known to have caused the death is themselves dead. If the person who is cited as the primary or partial cause of the death is alive, the CPS will take the case forward and prosecute that person. During the case, the coroner/medical examiner will be called as a prosecution witness to confirm their findings under oath.

They might have no bearing in the US, but the coroner/medical examiner's opinion and findings are very much a part of the judicial review in an accident leading to deaths.

So before diving down someone's throat, perhaps you need to stop considering the Concordia case from the POV of the US legal system only, which obviously has stark differences in procedures to that of the European legal system.

Just to clarify as to what "death by misadventure" actually implies in law....

MISADVENTURE

 

An accident by which an injury occurs to another. When applied to homicide, misadventure is the act of a man who, in the performance of a lawful act, without any intention to do harm, and after using proper precaution to prevent danger, unfortunately kills another person. The act upon which the death ensues, must be neither malum in se, nor malum prohibitum. The usual examples uuder this head are, 1. When the death ensues from innocent recreations. 2. From moderate and lawful correction in foro domestico. 3. From acts lawful and indifferent in themselves, done with proper and ordinary caution.

So if that definition is taken in its literal sense in regard to the Concordia, the end result could potentially be 32 cases of death by misadventure...meaning that the accident happened during a legal act without premeditation or intention to do those 32 people harm.

Not murder or manslaughter.

http://www.lectlaw.com/def2/m119.htm

Smurfette, if you're not working for schettino legal defense, you should be.You're well read and a great writer. Have u went to your bosses boss and attempted to throw your boss under the bus? How'd that work out for you? Why are trying to blame schettinos subordinates? How do u know some of them never complained about schettino? Because they are still employed by Costa?

How do u know no one complained last Aug when Concordia obviously just missed the Giglio rocks? Shettimos defense could be "did I hit anything? Maybe that's why I'm captain and he's not. Maybe he's just paranoid, maybe he shouldn't be on the bridge if he's that nervous. These are possible scenario s

If a truck driver is showboating and kills 32 people maybe your friends, would you consider it a truck driver learning experience that may make him a better driver?

I'm on my Droid and very difficult to type, I'll check back late. Are you on his legal team?

Who determines the cause of death? Is it the police investigator, fire investigator, medical examiner or someone else?

 

If it is determined that a person died in a fire and a person is charged with setting the fire who testifies (if anyone) to what the cause of death was?

The cause of death is detirmined by the trier of fact (judge in bench trial or jury in jury trial).

The police gather gather evidence thru their own evidence techs or employees of the Medical Examiner's office. Now days, Appointed Medical Examiner's Offices have replaced elected Coroners. Where elected Coroners still exist they have have a Medical Examiner's Department.

Physcial evidence (like CSI on TV) is processed by techies at either a Police Crime Lab or the Medical Examiners office.

The autopsy is performed by Doctors who have varying degrees of expertise ranging from GP pill pushers to Board Certfied Pathologists. They can be employees of the Medical Examiner or contractors paid by the autopsy.

The Medical Examiner, in concert with the police investigators and CSI techies, issue a preliminary "COD" Cause of Death. But, it is not admissable in court to prove anything. Then the Medical Examiner or Coroner (where they still exist) issue a death certificate which (regardless of any verbiage) is only good to prove the person died.

If the cause of death need be proven, all the techies, investigators, and Docs will testify in criminal court as to what activites they performed. Then, a medical expert(s) will be called to give his opinion as to the COD based upon all the results of the other personell. The Medical expert may or may not have been involved in the investigation. There may be a court room battle of dueling experts for with both sides calling multiple experts. But this is rare because as I've tried very hard to explain, the prosecutor only has to prove the defendant's conduct was "A Cause" not "The Cause." It is very rare for a defense expert to testify "within a reasonable degree of medical certainty" that the prosecutor's expert is wrong in concluding the defendant's conduct had any "casual connection with the death."

Finally, the Judge or Jury will decide the legal cause of death.

In jury trials, the Judge will instruct the jury that the prosecutor does not have to prove the defendant's conduct was the only COD but only has to prove the conduct was a COD.

The grade level of the criminal conduct determines the grade level of the punishment. In some jursidaictions they still use the original:

Murder (with sub degrees depending in circumstances: e.g. cop victim, torture killing, etc)

Manslaugter: varying degrees: 1st: Intentional (intended the conduct to injure but not kill) Involuntary (sub degrees: Reckless Conduct, Gross Negligence, Vehicular Homocide etc)

Some jurisdictions use the old headings Murder & Manslaughter with sub degrees, while others dropped the main headings and use the old sub heading degrees on a stand alone basis.

I hope this answers you query.

...Room for speculative discussion, absolutely, but it has to be remembered that one mistake did not cause this accident....it goes alot deeper and broader than that and it starts alot earlier than January 13, 2012.....there has been a catalogue of errors made and missed...both human and with the ship.

In your statement "there has been a catalogue of errors made and missed...both human and with the ship" I understand the human part but could you elaborate on the "catalogue of errors made and missed with the ship"? Besides the documented black box problem, what were the other "missed" things with the ship? You pointed out a possible electrical problem but has this be substantiated? Do you have documentation regarding this? Were there other mechanical problems we are not aware of?

I completely understand how Schettino's blowhard, kamikaze-style attitude regarding the sail-by may have gotten him into deep sh*t (there is a new phrase out there, I kid you not, "to be in deep Schettino") re the wreck, to begin with, but don't you think if, after saving his own skin, he would have carried out his duty and stayed and helped out with the passengers in his charge, then perhaps, just perhaps, blaming it on a mechanical error and /or other crew, as bad and incredulous as it may have sounded, might have at least given him an ounce of credibility? Sorry, but as soon as he tripped and fell into the lifeboat and refused to go back on board, or at least take charge and coordinate the evacuation from whatever rock he was on, all bets were off as far as I'm concerned.

Quote from CostaSmurfette:

A coroner will at some point cast a judgement in the Italian court as to the reason or method of death

I am pretty sure they drowned. To my knowledge none of the victims were found in the swimming pool, hot tubs, bathtubs or showers. Kind of rules out accidental death to me.

Interesting. I lived in the UK for several years when I was younger and acquired a taste for British Mysteries. I have seen many characters such as Dr. George Bullard, Dr. Laura Hobson, Max, and McCallum playing the forensic pathologists, so I am making a connection here. They are are always key players that have sometimes determined whether or not the DCI can proceed against a favorite suspect. Silly, perhaps, to equate these fictional characters to the real world that we are discussing, but it is the only point of reference that I have, so please forgive me. Are these the types of individuals under discussion here, or do they have superiors who actually provide these types of findings? I suppose, in this case, that it is a whole investigative team such as those who have compiled the Marine Investigative Report at http://www.seereisenportal.de/fileadmin/Downloads/Italian_Maritime_MSC90_Presentation_Costa_Concordia.pdf

Regards,

MorganMars

Just to clarify as to what "death by misadventure" actually implies in law....

 

 

 

So if that definition is taken in its literal sense in regard to the Concordia, the end result could potentially be 32 cases of death by misadventure...meaning that the accident happened during a legal act without premeditation or intention to do those 32 people harm.

 

Not murder or manslaughter.

 

http://www.lectlaw.com/def2/m119.htm

Looking again at the legal definition of misadventure...

Hypothetically speaking, if a decision IS reached that the 32 died as a result of misadventure, there is little or no room for any prosecution of any of those involved being possible under the law.

The ship was off course and that contributed to the deaths...but to make a criminal case stick, the prosecution have to prove that the course setting was intentionally wrong and not just a genuine mistake made by a distracted crewman or officer.

Add in the perfectly feasible possibility that the autopilot was incorrectly programmed which led to the collision, then again, the prosecution still cannot prove intentional, they can only prove it to be a mistake on the part of the operator.

I can just imagine the furore if the conclusions are drawn towards misadventure cos there is no way that any formal charges can be brought against anyone without affirmative proof of intention to run the ship onto the rocks on purpose in order to kill people on the ship.

Even the best prosecution team in the world couldn't prove intention to cause the accident...cannot be done. Negligence, yes...intentional, no.

The pundits wanting to see those who they feel caused or who are allegedly responsible for the accident put away for life for a criminal act might get a shock if misadventure is ruled on those deaths and injuries.

There is no jail time for misadventure unless it can be proven without a shadow of a doubt that there was an intention to cause injury or death. Negligent death goes to civil litigation and punitive damages, any punishment usually comprises of heavy fines for the companies and authorities involved, but rarely the individuals.

Least that is the European way....don't know if this is the same situation in the US or elsewhere.

Just to clarify as to what "death by misadventure" actually implies in law....

 

 

 

So if that definition is taken in its literal sense in regard to the Concordia, the end result could potentially be 32 cases of death by misadventure...meaning that the accident happened during a legal act without premeditation or intention to do those 32 people harm.

 

Not murder or manslaughter.

 

http://www.lectlaw.com/def2/m119.htm

That is sooooo old and out of date. It goes back to the Common Law when it had to be proved the denfendant had "mens Re" (evil intent).

Those concepts have been erased by your Parliament and our legislatures. I know this because I was schooled and practiced primarily in Illinois and we adopted and followed English Common Law as it stood in 1607 (the founding of the Jamestown colony in Virginia because what is now Illinois was considered the western wilderness of Virginia)

Concepts of Misadventure, Mens Re, Malum Prohibitum, Malum per se, are all but gone now. But, I have used them from time to time. In one case I used that very arguement to convince a judge to give my client probation instead of 5 years because the law still allowed the use of the old concepts in the punishment stage of the case even though they had disappeared in the guilt or innocence stage. I argued that modern law provided that he intended to perform the acts that did the harm and therefore was guilty of a crime and stupidity. I sucessfully got the judge to convict him of the crime but sentence him to probation for the stupidity.,

Don't forget the olde Adage: "A little knowledge is a dangerous thing."

Quote from CostaSmurfette:

A coroner will at some point cast a judgement in the Italian court as to the reason or method of death

 

 

I am pretty sure they drowned. To my knowledge none of the victims were found in the swimming pool, hot tubs, bathtubs or showers. Kind of rules out accidental death to me.

Misadventure covers a multitude of sins and grey areas...including drowning in a semi-submerged ship as a result of an unintentional legal act (aka accident).

Someone will have to prove that the "accident" wasn't an accident at all and that it was an intentional act with premeditation.

That is sooooo old and out of date. It goes back to the Common Law when it had to be proved the denfendant had "mens Re" (evil intent).

 

Those concepts have been erased by your Parliament and our legislatures. I know this because I was schooled and practiced primarily in Illinois and we adopted and followed English Common Law as it stood in 1607 (the founding of the Jamestown colony in Virginia because what is now Illinois was considered the western wilderness of Virginia)

 

Concepts of Misadventure, Mens Re, Malum Prohibitum, Malum per se, are all but gone now. But, I have used them from time to time. In one case I used that very arguement to convince a judge to give my client probation instead of 5 years because the legislature had not banned the use of the old concepts in the punishment stage of the case.

 

Don't forget the olde Adage: "A little knowledge is a dangerous thing."

Misadventure might not be used in the USA but it IS still used in Europe and the criminal case (if it ever gets that far) will be in Europe, using European laws and statutes.

So you cannot keep dismissing procedures just cos the USA no longer identify them.

CostaSmurfette Quote:

Misadventure covers a multitude of sins and grey areas...including drowning in a semi-submerged ship as a result of an unintentional legal act (aka accident).

Someone will have to prove that the "accident" wasn't an accident at all and that it was an intentional act with premeditation.

The Captain left the planned route intentionally and premeditated. He contacted people on the island well in advance to tell them to watch for the sail by.