HOMICIDE BY NECESSITY WITHIN PROFESSIONAL BOUNDARIES

(Project submission towards partial fulfilment of the assessment in the subject of Law of
Torts, MV Act & Consumer Protection )

Submitted by: Submitted to:

ANIKETA JAIN & HARSHA MENON MR. ROHAN THOMAS
Roll number – 1611 & 1616 FACULTY OF LAW
Semester II
Section A
B.B.A. LL.B. (Hons)

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION
 TABLE OF CONTENTS

EXECUTIVE SUMMERY ................................................................................................... 1

RESEARCH METHODOLOGY .......................................................................................... 2

CHAPTER I: WHAT IS NECESSITY IN CASES OF HOMICIDE? .................................... 3

CHAPTER II: HOW IS NECESSITY APPLICABLE WITHIN PROFESSIONAL ASPECTS?

............................................................................................................................................. 6

CHAPTER III: MID-FLIGHT EMERGENY-PILOTS .......................................................... 8

CHAPTER IV: FIRE EMERGENCIES – FIREFIGHTERS ................................................ 14

CONCLUSION................................................................................................................... 18
 EXECUTIVE SUMMERY

The objective of this project is to analyze the duties and obligations of a pilot and a firefighter
in situations of emergency mid-air on a flight and the break out of fire in a household. We
aim to research on the amount of negligence that a pilot and a firefighter shall face if they have
to leave a person behind in order to save themselves, out of necessity.

PILOTS

Pilots under the cabin safety circular published by the civil aviation department, government
of India, are under the duty of the safety of their passengers. Our objective is nullify the tortious
liabilities to the maximum extent and reach a conclusion to the final liabilities of a pilot of a
commercial airplane.

FIREFIGHTERS

Firefighters, under the fire safety acts of various states, are under the duty to ensure safety of
the civilians in the areas that have fire outbreaks or the fire prone areas. Our objective is to
minimize the tortious liability that a firefighter has and reach the conclusion to the final duties
and obligations and liabilities of firefighters. For this, the fire safety acts and manuals of
various states of India will have to be taken into consideration. A compilation od the statutory
duties of the firefighters must be made and then a conclusion has to be reached regarding the
final obligation faced by the firefighters.

1
 RESEARCH METHODOLOGY

Doctrinal method of research has been adopted for this project. Data has been collected from
various sources and the data so collected has been analysed. Majority of work has been done
through online articles and database, and works by learned authors have also been referred.

2
CHAPTER I: WHAT IS NECESSITY IN CASES OF HOMICIDE?

Article 27 of The Penal Code of Puerto Rico states as follows:

“State of Necessity- Shall not be liable person any right to protect himself or someone else
from imminent danger, unprovoked by it and otherwise inevitable, infringe a duty, or cause
damage to the legal interests of another, whether the harm done is considerably less than
avoided and does not involve death or serious injury and permanent physical integrity of a
person. This justification does not benefit who by virtue of his office, trade or business is
required to bear the risk and its consequences.”1

The premise of the state of necessity is a "conflict between two goods, the salvation of one
requiring sacrificing the other. This means that the legal good to save is in imminent danger of
being destroyed.”2 Necessity is a very important defence in torts because it legitimizes
technically illegal conduct that common sense, principles of justice, and/or utilitarian
considerations convinces us is justifiable, but which is not dealt with -neither authorized nor
disallowed- by any other recognized justification defence.3

The Spanish Criminal Law professor Muñoz Conde summarizes the concept as follows: 1) the
harm done cannot be greater than that which is to be avoided (acknowledging the difficulty of
weighing the conflicting legal interests), 2) the situation of necessity should not be provoked
intentionally by the subject, and 3) the one claiming necessity, cannot, by reason of holding a
position, be under a duty to sacrifice.4

1
Exception And Necessity: The Possibility Of A General Theory Of Emergency, William
Vázquez Irizarry
https://law.yale.edu/system/files/documents/pdf/sela/VazquezIrizarry_Eng_CV.pdf
2
Id.
3
Id.
4
Id.

3
Classical legal maxims emphasize the pre-eminence of necessity over the letter of the law:
necessitas non habet legem; necessitas vincit legem. Necessity was once viewed as a natural
ex- culpatory force. It (or, later, the irresistible passions of self-preservation and self-
preference) caused the action, not the agent.5 This view survived longer than the dubious
psychology upon which it was based, finally being reflected in the now obsolete legal
presumption that actions done 'under the influence of pressing danger' are involuntary.6

Criminal law professor Dressler identifies the conditions for necessity defence as follows: 1)
the actor must face a clear and present danger, 2) should expect as a reasonable person, that
his/her actions are effective in controlling the danger to be prevented (there must be a direct
causal link between his action and the harm to be controlled), 3) there is no other effective legal
mechanism to control the hazard, 4) the harm that the defendant would cause breaching the law
should be less serious than that which seeks to avoid, 5) the legislature should not have
anticipated the choice of evils and selected in advance between the competing values, and 6)
the actor must come with clean hands (cannot be responsible for creating the emergency).7

In the present situation, we have considered the scenario of a pilot leaving behind a passenger
on-board during a mid-flight emergency, in order to save himself, as if he would have attempted
saving the passenger, he would have been killed as well. We understand that the pilots are
under the oath of protecting their passengers form each and every harm that occurs mid-flight,
and are obviously must be under the competence of the pilot in charge.8 The pilot, obviously
cannot be held liable for harm to passengers by the method of factors which are completely out
of pilot’s anticipation and expertise, and a fine example would be food poisoning due to bad
flight-offered-meal or even hijack.

The other situation that we shall be dealing with is a very prominent case of firefighters in
where they are under the obligation to make sure that every person undergoing such a disastrous
peril and facing the wrath of the fire, is saved from it and at the end of the day, rescued.
However, the firefighter might have to leave someone behind in an unwanted situation in order

5
The Defence of Necessity, Jerome E. Bickenbach, Canadian Journal of Philosophy, Vol. 13,
No. 1 (Mar., 1983)
https://www.jstor.org/stable/pdf/40231302.pdf?refreqid=excelsior%3A5d4e231472842abada
9d530a53eed43e
6
Id.
7
Id.
8
http://www.grandflying.club/wp-content/uploads/2016/03/Copy-of-The-Pilot’s-Oath.pdf

4
to save himself, because even if he attempts to save himself and the person, they both will
succumb to fire. Hence, it is to be analysed whether such an act of the firefighter can account
for negligence on his part when it was really just necessity of time and place.

5
CHAPTER II: HOW IS NECESSITY APPLICABLE WITHIN PROFESSIONAL
ASPECTS?

The code of conduct is an overarching statement of ethics, based upon behaviours and therefore
focus on the individual, as opposed to group or organisational culture.

A school of thought believes that acting to save one’s life is a behaviour due to a law of
nature.9Thomas Hobbes believed that one should be excused totally for acts compelled by
terror of present death because no law can oblige a man to abandon his own preservation. Law
cannot deter people from acts performed under threat of imminent death. The Supreme Court
of Canada found a necessity defence based on "normative involuntariness" when a person's
behaviour was "compelled by normal human instincts."10

Lord Denning in Southwark LBC v. Williams [1971], Smith and Hogan, Criminal Law, 1996,
stated regarding necessity that:
“Probably it is now the law that if the taking or the entry was necessary to prevent death or
serious injury through starvation or cold there would be a defence of duress of circumstances
(necessity); but if it were merely to prevent hunger, or the discomforts of cold or homelessness,
there would be no defence.”11

In United States v. Holmes, a shipwreck case, several crew members and a number of
passengers were in one lifeboat. Because the overcrowded boat was unlikely to survive an
oncoming storm, the crew threw several male passengers overboard. While the court did not
directly reject the defence of necessity, the judge instructed the jury that the crew had a duty to
the passengers to sacrifice themselves first, except for those crew members necessary to operate
the boat, and then lots should have been drawn among the passengers. The lack of a reasonable
alternative warranted some method of selecting who would be sacrificed. The judge noted it
would have been unreasonable to sacrifice all the crew members.12

9
Joel H. Levitin, Putting the Government on Trial: The Necessity Defense and Social Change,
33 Wayne L. Rev. 1221, 1256 (1987)
10
Perka v. The Queen, 13 D.L.R 4th 1, 15 (1984)
11
Southwark LBC v. Williams [1971], Smith and Hogan, Criminal Law, 1996, p253
12
United States v. Holmes, 18 U.S. 412 (1820)

6
In this situation, the only reasonable method that the crew members could have undertaken to
save themselves was the sacrifice of a few passengers in order to save the others. However, as
Thomas Hobbes had believed, it was impossible for people to give up their lives. Thus, it was
decided fairly with the use of lots.

In R v. Willer13, the defendant had driven recklessly to escape from a crowd of youths who
appeared intent upon causing physical harm to the passengers in his car. The Court of Appeal
ruled that the defendants should have been permitted to put the defence of necessity before the
jury, given the apparent threat of death or bodily harm created by the circumstances.
Thus, even though harm is being cause by the reckless driving of the driver, the circumstances
of the driver act as mitigating factors. The alternatives available to the driver were: a. not take
any action and allow his passengers and his own body to be hurt and b. drive in whichever way
possible so as to escape the crowd and save his own body and that of his passengers. The
imminent threat to one’s life would make it very difficult to analyse the situation carefully and
take the required recourse. However, it also does not mean that it can be used as a way out for
crimes that are committed. Necessity can only be used as a defence when the threat is imminent
and would potentially put the life of the perpetrator in grave danger.

13
(1986) 83 Cr App R 225

7
CHAPTER III: MID-FLIGHT EMERGENY-PILOTS

At present, we have taken the situation of an unfateful emergency occurring mid-flight, and
where the pilot has to leave behind a passenger in order to save himself, since if he progressed
with saving the passenger, it would have been a futile attempt. It would have resulted in the
death of the passenger and the pilot rendering it as a fruitless attempt, and hence because the
urgency of the hour requiring quick and immediate action, the pilot decides to leave behind the
passenger. Can such an act be constituted as negligence on part of the pilot since he is bound
by the oath undertaken by him before being bestowed upon the responsibility of a pilot, or
could he simply escape the liability under the wings of necessity, will be discussed further.

As previously indicated, a person acting under a state of necessity must perform a balancing of
the harm it seeks to prevent and the one to be caused by his conduct. A decision is expected in
favour of the lesser harm. Sometimes evils can appear to be relatively equivalent, increasing
the risk that the path chosen eventually could be considered a wrong one by a court of law.14

There is a six-prong test for someone to invoke the necessity defence. The defendant must
prove “(1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted
to prevent imminent harm; (3) that he reasonably anticipated a direct causal relationship
between his conduct and the harm to be avoided; and (4) that there were no other legal
alternatives to violating the law.” The fifth prong is that “the Legislature has not acted to
preclude the defence by a clear and deliberate choice regarding the values at issue.” Finally, a
sixth prong generally has been held to require that the circumstances occasioning the necessity
were not caused by the negligent or reckless acts of the defendant in the first instance.15

A pilot’s responsibilities, duties and qualifications have been laid down under various statues
around the world, they however convey the same thing:

Civil Aviation Authority :

“As you would expect this area of aviation has the highest levels of safety requirements and

14
Exception And Necessity: The Possibility Of A General Theory Of Emergency, William
Vázquez Irizarry
https://law.yale.edu/system/files/documents/pdf/sela/VazquezIrizarry_Eng_CV.pdf
15
Homicide By Necessity, John Alan Cohan, 119-186 Cohan.Doc
http://www.chapmanlawreview.com/archives/1240

8
regulatory oversight. All aspects of these flights – the airlines, pilots, maintenance, air traffic
controllers and so on all have to hold the highest level of licences and approvals.”16

Airline Pilots Association, International:

“An Air Line Pilot will keep uppermost in his mind that the safety, comfort, and well-being of
the passengers who entrust their lives to him are his first and greatest responsibility.”17

The Aviators Model Code Of Conduct:

“Safety lies at the core of an aviator’s responsibilities and is a primary expectation of

passengers and the public. In the larger sense, safety is a major determinant of the viability of
aviation– not only as a transportation mechanism, but the social acceptance of aviation is
totally dependent on safety.”18

Legal Information Institute, Cornell Law School:

“Each pilot in command of an aircraft is, during flight time, in command of the aircraft and
crew and is responsible for the safety of the passengers, crewmembers, cargo,
and airplane.”19

The legal standard of care to which any given pilot is held is that of a “reasonably prudent pilot
in like circumstances”. In a litigated case, whether a pilot satisfied the standard of care is
determined by a judge or a jury – nearly always non-pilots – after the fact. The pilot’s legal
liability is determined in a courtroom far removed from the realities of actual flight. In
determining the pilot’s liability, the court may allow consideration of countless factors that
someone contends the pilot should have thought about and weighed during flight and that

16
Aviation safety, Civil Aviation Authority, https://www.caa.co.uk/Consumers/Guide-to-
aviation/Aviation-safety/
17
Code Of Ethics, Advancing Aviation Safety And Security Since 1931,
http://www.alpa.org/en/about-alpa/what-we-do/code-of-ethics
18
Commentary To AMCC I.A – General Responsibilities,
http://www.secureav.com/Comment-AMCC-I.a-General-Responsibilities.pdf
19
14 CFR § 121.533 - Responsibility for operational control: Domestic operations.
https://www.law.cornell.edu/cfr/text/14/121.533

9
should have dictated wholly different conduct. This is one reason that ethical conduct is so
important.20

We would, like to drive your attention to the philosophy proposed by John Harris, The Survival
Lottery.21 This theory talks about how harm taken by a person cannot stand as a substantial
ground for commission of tort if the harm was inflicted in order for a greater good. An example
follows:

Let us suppose that organ transplant procedures have been perfected; in such circumstances if
two dying patients could be saved by organ trans- plants then, if surgeons have the requisite
organs in stock and no other needy patients, but nevertheless allow their patients to die, we
would be inclined to say, and be justified in saying, that the patients died because the doctors
refused to save them. But if there are no spare organs in stock and none otherwise available,
the doctors have no choice, they cannot save their patients and so must let them die. In this
case we would be disinclined to say that the doctors are in any sense the cause of their patients'
deaths.22

This philosophical theory can very well be applied to the situation at present, since in the
present situation sine the pilot is faced with a dilemma, and has to choose between losing his
life along with the passenger or can chose to leave the passenger behind and save himself. With
the application of this theory, the pilot is very well justified in saving himself and letting the
passenger go, since it will not fetch anything if performed otherwise.

Another important concept which justifies such an action by the pilot is the concept of
Homicide by Necessity. Many case laws also deal with the concept of homicide by necessity,
a situation in where a person has to let go of a person or let a person be killed in order to prevent
greater harm or establish greater good. It is very well understood that no two lives can ever be
valued in front of law, however depending on the circumstances and the dire need to act fast
can lead a person to initiate such an action, which might result into death of a person. Some
examples are as follows:

20
Ibid 12
21
http://history.as.uky.edu/sites/default/files/The%20Survival%20Lottery%20%20John%20H
arris.pdf
22
Supra Note. 16

10
A seventeenth-century account of cannibalism in connection with a shipwreck was reported
by Dutch physician Nicholaus Tulpius. The ship, carrying seven Englishmen, had set sail from
the Island of St. Christopher in the Caribbean for an overnight cruise to a nearby island. A
storm drove them so far out to sea that they could not get back to port for seventeen days, and
they had inadequate provisions. After eleven days, the men agreed to draw lots to decide who
should die to satisfy the hunger of the others; lots were also cast to select an executioner. The
man who had suggested the idea turned out to be the victim once the lots were drawn. He was
killed; the crew drank his blood and ate his body. The boat was cast on the shore of the Isle of
St. Martin after seventeen days at sea. Upon their arrival, the Governor pardoned the survivors
without any trial.23

In 1899, the Drot foundered in a hurricane on the Mississippi River. Six of the crew constructed
a raft from the wreckage and cast themselves adrift. One crew member went mad and threw
himself overboard. Another, apparently dying, was killed and his blood drunk, and the same
fate befell a third man shortly afterwards.” The three remaining men then agreed to cast lots
and the loser accepted his fate and bared his breast to the knife. After the two survivors were
rescued, the German consul later sought to extradite them for murder, but the United States
authorities delayed and then dismissed proceedings.24

Another situation involving the killing of a person who is an innocent threat is a chilling
account from the Nazi holocaust. A group of Jews was hiding from the Nazis. They sought to
prevent the Nazis from discovering their hiding place, but a crying baby jeopardized their
safety. The group smothered the baby to death in order to prevent the Nazis from discovering
their hiding place and killing them all. A rabbi was asked to analyse the facts, and rendered the
opinion that the action was permissible “since the baby would have been killed along with all
the others if the Nazis had found them.” The rabbi added that the action was not required, but
permissible (i.e., excusable) and that it would have been an act of holiness not to kill the infant
under the circumstances.25

23
John Alan Cohan, Homicide By Necessity, 119-186 Cohan.Doc
http://www.chapmanlawreview.com/archives/1240
24
A Defense of Abortion, in Rights, Restitution, And Risk 1 (William Parent ed., 1986).
25
Self-Defence and Defence of Others in Jewish Law: The Rodef Defence, Marilyn Finkelman,
33 WAYNE L. REV. 1257, 1278–79 (1987).

11
The necessity defence is inherently flexible, adjusting to general shifts in societal norms. This
raises the prospect of unfairness where disagreement may exist on the extent to which a value
is relative or absolute, that is, where the value question is not clear. Perhaps the most delicate
question a judge has to determine is whether the defendant’s choice of evils and the action
taken was in fact a reasonable choice, or whether the action conflicts with some higher value.
The judge will also determine whether the defendant’s belief of necessity was reasonable or
unreasonable under the circumstances. The judge may decide that the defendant’s value choice
was wrong and refuse to allow the matter to go before the jury. Yet the value choice is an
ultimate question of fact that would be decided by the jury if it were allowed to hear the
defence. A jury will revisit what the circumstances were and decide if the action was therefore
necessary.

Under the Federal Aviation Act, commercial airlines and air carriers are held to extremely high
standards of care for their passengers. Though passengers are not automatically insured upon
the purchase of a ticket, airlines are responsible for even the slightest acts of negligence. Each
airline has a duty to its passengers to exercise extreme vigilance in all aspects of air travel,
including operation, maintenance and inspection, loading, and boarding of the plane.

However, just because an individual injures him or herself while traveling by air does not mean
that the airlines are automatically responsible. If you sustain an injury during flight or boarding,
you must still prove that the airlines’ employees demonstrated some act of negligence that lead
to your injuries.

Furthermore, there are some plane defects that even the most skilled inspection crew cannot
know about, such as manufacturer’s defects. An airline cannot be held responsible should there
be something seriously wrong with one of the plane’s innermost parts; the manufacturer, seller,
or repairer, on the other hand, can be. Additionally, while it is the pilot’s duty to familiarize
him or herself with the route’s weather conditions, they cannot be held responsible for
unexpected acts of nature, such as extreme turbulence, or a gaggle of geese that fly into the
propellers.26

It is very important that each candidate wishing to become a cabin crew would understand how
big the responsibilities of this job are. It is far more than romance. Flight attendant is

26
Supra Note. 18

12
responsible for passengers’ and all the crew lives during the flight, so they have to be well
trained to take the proper actions in emergency situations, and be self-confident while making
the decisions. Sometimes, there are only 30 seconds to make such decisions, which could save
or cost hundreds of people lives.27

It is hence laid down, that even though law is very strict about liability that arises when a person
is killed, the law always has exceptions laid down for a person to escape this liability. It is true
that death of a person by homicide can never be held as a mere sacrifice and let go, because
this might encourage people to weigh law as an easily changing authority, and hence the power
it grants can be abused. However, if a person had to undergo the mental trauma of acting in a
manner which could result in the loss of a life when it was entirely against his will, that person
should not be held liable since the principle of necessity clearly lays down the such a person in
such a situation acts what he feels is best and hence should not be held liable if it is for the
purpose of greater good.

27
Cabin Crew: Safety Comes First, https://www.baatraining.com/cabin-crew-safety-comes-
first/

13
CHAPTER IV: FIRE EMERGENCIES – FIREFIGHTERS

City fire departments may be staffed with volunteers, fulltime paid firefighters, or a
combination. Cities may also collaborate or contract with one another or another governmental
entity (such as a township) for fire services. Each of these options presents a unique set of
management and liability issues.

The Code of Ethics serves to remind firefighters of moral and ethical obligations to the
profession as well as to the people they serve. The broad scope of the Code of Ethics is to
mitigate and negate situations that may result in embarrassment and waning of public support
for what has historically been a highly respected profession.

Among other ethics are,

“be respectful and conscious of each member’s safety” and
“welfare and exercise professionalism, competence, respect and loyalty in the performance of
duties and use information, confidential or otherwise, gained by virtue of my position, only to
benefit those who are entrusted to serve.”

In their pledge, they swear

“not to compromise safety and job performance by drinking or using drugs” and
“to remain vigilant about the welfare and safety of their fellow firefighters.”28

This is the code of ethics laid down by United States Fire Administration, a division of the
Federal Emergency Management Agency.

The situation at hand is that of a resident of a building, that has faced a mishap and is now on
fire. The fire has reached its later stages and the resident is in grave danger. The firefighter has
now faced a dilemma. He can either choose to save the resident but as a result but will end up
losing both his life and that of the resident. Alternatively, he can leave the resident behind and
save his own life along with the other residents he has successfully saved.
To understand this issue, we will be using case laws of various countries and we will also
attempt to understand the interpretation of laws in these cases.

28
Firefighters Code of Ethics, USFA

14
In India, every state has a fire service act or a fire force act such as that of Karnataka or Delhi.
However, there is no specific obligation or duty that has been specified for firemen or
firefighters. Thus, we will resort to foreign acts and judgements. In Minnesota, the state law
suggests that a city is immune from liability for “any claim based upon the performance or
failure to exercise or perform a discretionary function or duty whether or not the discretion is
abused,” as a practical matter, the more you show you exercised your judgment or applied
discretion, the more likely a court will be able to determine that immunity from liability
exists.29

Under the act of USA no volunteer of a non-profit organization or governmental entity can be
liable for harm caused by his act or omission on its behalf if:
1. he was acting within the scope of his responsibilities at the time of the act or omission;
2. he was properly licensed, certified, or authorized by the appropriate authorities in the state
where the harm occurred;
3. the harm was not caused by wilful or criminal misconduct, gross negligence, reckless
misconduct, or a conscious flagrant indifference to the rights or safety of the person harmed by
the volunteer; and
4. the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft or other
vehicle for which the state requires the operator or owner to possess a license or maintain
insurance.30

There are exemptions to this immunity. However, none of them will apply in this case.

The Southland Court flatly stated that there is an absence of a statute or “legally cognizable
special relationship,” thus, one did not owe another a duty to aid or rescue.31 Thus, there is no
“special relationship” in this case. It is true that by virtue of the profession of the fireman, he
owes a duty to the victim. However, there is no “special relationship” that is legally cognizable.
Furthermore, to circumvent the legal obligation that the fireman owes to the victim, the defence
of “self- defence” can be used. In this case, the fireman knew that if he went to save the resident
he would definitely have lost his life. Homicide by necessity, refers to the killing of innocents

29
League of Minnesota Cites, Fire Department Management and Liability Issues, 17, 15-12-
2017
30
George Coppolo, Chief attorney, Firefighter liability, 1999
31
Southland Corp. v. Griffith, 633 A.2d 84, 88 (Md. 1993)

15
in order to produce a greater good or avert a greater evil—usually to save a greater number of
lives.32 In this case, by sacrificing the life of that resident, at least one life, that is that of the
fireman, is being saved. This can be counted as a greater good. Thus, it can be used as a defence.

A famous painting in the Louvre, Radeau de la “Méduse” (The Raft of the Medusa), by
Theodore Gericault depicts a historic event. The captain of Medusa was De Chaumareys.
During the course of events in this case, there were instances when the injured and somewhat
abled men were thrown off the raft to keep it afloat and to keep the other passengers alive. A
rebuttal to this argument would be that during the trial, the captain was held liable and he had
to face death penalty. However, he reasoning given by court for this was that the captain was
incompetent, callous and a coward. In five instances, the captain had attempted to save the gold
on board and the ship rather than the passengers.33 In the case at hand, this is not the situation.
The fireman has successfully saved all other residents and is unable to save one of the residents
due to fear of loss of life.

However, the above case has been used to prove that the court did not hold the captain liable
for his decision of throwing the injured passengers overboard. The court took into consideration
the myriad circumstances that forced the captain to make the decision. Similarly, in this case,
the fireman decided it would definitely cost him his life if he were to enter the fire. It must also
be kept in mind that the fire had almost consumed the house and was at its last stages.

In 1987, an incident occurred during the sinking of the ferry Herald of Free Enterprise at
Zeebrugge, during which an army corporal and dozens of other passengers were trapped on the
sinking ferry. A rope ladder was the only means of escape. A man, frozen in panic, was stuck
on the ladder and was thus blocking it. The corporal gave orders that the man be thrown into
the water as he was jeopardising the safety of others as well. The coroner reported that the
killing appeared to be “a reasonable act of what is known as self-preservation ….……that also
includes in my judgment, the preservation of other lives; such killing is not necessarily murder

32
120, John Alan Cohan, Homicide By Necessity, 119-186 Cohan.Doc
http://www.chapmanlawreview.com/archives/1240
33
129, John Alan Cohan, Homicide By Necessity, 119-186 Cohan.Doc
http://www.chapmanlawreview.com/archives/1240

16
at all.” No criminal charges were brought.34 Thus, in the case at hand as well, the fireman
should be discharged of any criminal or tortious liability.

34
133, John Alan Cohan, Homicide By Necessity, 119-186 Cohan.Doc
http://www.chapmanlawreview.com/archives/1240

17
 CONCLUSION

It is hence concluded that with the application of various case laws and theories proposed by
learned scholars such as the Survival Lottery by John Harris and the principle of Doctrine by
necessity, along with application of code ethics of various professions around the world, we
conclude that the priority given by a person to his life when professing as a pilot or a firefighter,
is justified in doing so and all tortious liability stands discharged.

Even though such professionals are under various obligations and oaths undertaken during their
training period, the peril that strikes upon them is of an extreme nature which requires decisions
to be taken up in a matter of seconds. Such decisions can decide upon matters of life and death,
and if the pilot or the firefighter believes that his action of saving the left behind passenger of
victim of fire will not help the situation in any way, then they are very much justified in placing
their life over the ones they have the onus to protect. Such an action of them attempting to save
both himself and the victim will result into a guaranteed death of both the persons.

18