Malta’s unrivalled climatic conditions makes it an optimal year-round destination for swimming. Some may enjoy a refreshing dip in the relatively clean Maltese coastal waters any time an opportunity may arise, even during the winter season, but most swim in the summer season.

In fact, for most people in Malta, when they think of summer, the first thing that comes to mind is swimming. Jumping in the water is the ideal way to cool off on blazing days. If you live or work in Malta, when you are not swimming in the summer, you will probably be thinking of the next time you will be.

In recent years, the Maltese Transport Authority launched several campaigns promoting responsible behaviour and safety at sea. Such campaigns do not only target those making use of sea vessels but also swimmers. In fact, the Maltese Transport Authority, in order to ascertain that everyone at sea enjoys himself responsibly without putting himself or others in danger, installs designated swimming zones between May and October of each year. These are marked by red and yellow buoys in order to restrain seacraft from entering inside said zones and so that bathers can enjoy themselves without any worries.

Whereas bathers are encouraged but not legally obliged to swim within these swimming zones, Maltese legislation prohibits any bather to swim in any area which is beyond 20 metres of any part of the water’s edge in the Grand Harbour and Marsamxett Harbour. This summer, a total of 56 swimming zones have been set up by Transport Malta.

At the same time, shipmasters are legally compelled to use reasonable skill and care when operating a craft. If a person suffers from involuntary homicide or bodily harm at sea, and from the evidence collected it appears that such accident occurred due to lack of skill or care, the police may decide to institute proceedings against the master of the vessel.

This was the matter decided by the Court of Magistrates (Gozo) as a Court of Criminal Judicature on September 14 in the case  Il-Pulizija vs Matthew Grech.

Grech was principally accused that on June 19, 2016, at around 11.30am while navigating his boat near Ħondoq ir-Rummien Bay, through imprudence, carelessness or unskillfulness in his art or profession, or through the non-observance of regulations, caused the death of Allan Michael Stanley. 

The court explained that the crux of criminal negligence consists in the possibility of foreseeing the event which has not been foreseen

Medical practitioners confirmed that the victim died after being struck by the accused’s boat propeller while swimming outside of the swimming zone at Ħondoq ir-Rummien.

The Court of Magistrates presided over by magistrate Joseph Mifsud heard the victim’s wife testifying that it was customary for her husband to swim outside of the swimming zone although she repeatedly advised him not to do so since he suffered from heart conditions and it was not safe to swim outside of the swimming zone due the constant marine traffic in the area.

Another eyewitness of the incident, who was also present with the couple on the day of the tragic event, confirmed what the victim’s wife had testified earlier and claimed that the victim used to swim far away from the water’s edge without any signalling buoys.

Another witness who was kayaking in the same area on the same day affirmed that the sea was rough that day and he could barely notice the victim swimming without any signalling buoys. The witness also confirmed that no other bathers were accompanying the swimmer at that time.

Criminal liability can only be attributed by appraising the actions of the accused within a framework of circumstances which he personally anticipated at the time in question. The court explained that the crux of criminal negligence consists in the possibility of foreseeing the event which has not been foreseen.

The accused could only be convicted if it was proven beyond reasonable doubt that the event complained of could have been foreseen by the reasonable prudent person.

Consequently, if the accused had to be found guilty for the involuntary homicide of Stanley, there must exist a chain of causation between a negligent act on his part having failed to foresee that which was foreseeable to the ordinary prudent man.

From the wording of the law, it is quite clear that the offence must be a result of imprudence, carelessness, professional unskillfulness or non-observance of regulations, being therefore involuntary in nature.

However, the prosecution does not need to prove that the accused was careless and imprudent and unskillful and in breach of regulations, in that any one of such circumstances would be enough to satisfy the required elements of this offence.

In its factual analysis, the court noted that the accused was navigating his boat around 50 to 70 metres away from land and 100 metres away from the swimmers’ zone. The court also pointed out that the victim, despite swimming outside of the swimmers’ zone, failed to take any precautions to ensure safety at sea, including the use of marker buoys.

While making extensive reference to a safety investigation report issued by Transport Malta, the court specified that “swimming or snorkelling outside a swimmers’ zone is neither illegal nor prohibited.

However, the close proximity to boats transiting the area increases the risk to snorkellers and swimmers who venture outside the established (safe) zone”.

The court observed that there was not a shred of evidence that the accused was wrong in his assessment of the situation and concluded that the victim was totally responsible for the tragic accident and consequently acquitted the accused from all charges brought against him.

The attorney general may appeal this judgment.

Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.