OP-ED
29 June 2021
“It is a sad fact that, under the present system of many marine investigations and failures to identify the guilty and prosecute, seafarers are being deprived of one of the most essential components of Human Rights; Justice.”
London.UK. Human Rights at Sea Advisory Board member, Captain Michael Lloyd, RD**, MNM, CMMar, FNI, provides a new OP-ED and insight into the issue of marine accident investigations, their intent, conduct, and outcomes in protecting, or not, the individual seafarer.
[First published by Captain Lloyd on Linkedin 25 June 2021 and reproduced with kind permission. Image credit: Shutterstock].
“In the MARS publication No 343 May 2021, there is the edited report from the AIBN (Norway) into yet another death in an enclosed space.
The purpose of any accident investigation should be twofold. One, to identify the causes of the accident and produce a document from which those reading it can learn what mistakes were made and from that learning process avoid making such mistakes themselves.
The second is, or should be, to investigate if there were any failures by those involved or in the equipment, machinery, or in the legislation. Then, if required, apportion blame, and pass the information on to those involved in the inquest process and the prosecution services to ensure that formal charges could be made against anyone found guilty of any act which may have caused or assisted towards the accident.
I accept that in many flag states there is no legal requirement for such investigations to pass any suspected criminal case to the police authorities but if those responsible for investigation of marine accidents don’t do this, then who will?
IMO resolution MSC.255 (84) States: ANNEX 4
23.2 States involved in marine safety investigation under this Code should ensure that any marine safety record in its possession is not disclosed in criminal, civil, disciplinary or administrative proceedings unless:
.1 the appropriate authority for the administration of justice in the State determines that any adverse domestic or international impact that the disclosure of the information might have on any current or future marine safety investigations is outweighed by the public interest in the administration of justice; and∗
.2 where appropriate in the circumstances, the State which provided the marine safety record to the marine safety investigation authorises its disclosure.
While this supports the non-disclosure of information, it also supports the disclosure of information in the pursuit of Justice. However, even in this it leaves it to the Flag State to decide. This is a strange clause. It states one aim and then opens the door to ignore it, making it rather pointless.
These investigations initially depend on the resolve of the Flag State and this, as we well know, is very variable, and dependent on the degree of interference by the Maritime Authorities of that State. That was very apparent in the Costa Concordia investigation. A pity those interests involved in the disaster did not read and comply with chapter 11 of IMO RESOLUTION MSC.255 (84) as follows;
11.1 Marine safety investigating State (s) shall ensure that investigator (s) carrying out a marine safety investigation are impartial and objective. The marine safety investigation shall be able to report on the results of a marine safety investigation without direction or interference from any persons or organisations who may be affected by its outcome.
Truth, in marine investigations, is a rare commodity. Ship owners and managers are not used to hard inquiries and questions with many flag states looking first towards the health of their registries with investigations too often designed to appease the governance of the investigation service while avoiding the possibility of management failure rather than provide justice for the victim or families.
This case was no exception.
In all our discussions of such reports, there is a reluctance to name ships or their owners. The ship was called the Nordstar and belonged to Nordenes AS. Nordstar was built in 1969 at Aukra Bruk and has been modified several times since. The vessel has an overall length of 75.5 metres, a breadth of 13.0 metres and a gross tonnage of 2,053 tonnes.
They issued the report in March 2020 and the incident occurred at sea on the 10th of June 2018 almost two years before they issued the report.
The inquiry was opened on the 14th of June 2018.
“The investigation showed that methane gas as well as toxic hydrogen sulphide gas had probably formed as a result of a decomposition process in the silage tank. It is likely that the fisherman was quickly exposed to immediately lethal levels of gas as he climbed down to the bottom of the tank. It was a demanding job to get the fisherman up from the tank.
The risk of gas being formed during the production and storage of silage had not been identified as a hazard in the shipping company’s safety management system. The hazards associated with gas formation were not mentioned in risk assessments, checklists or work procedures. Tanks with contents that represented a potential gas hazard were not sufficiently labelled, and equipment for detecting hazardous gas was lacking. This contributed to a situation where personnel carrying out work on storage tanks and those responsible for approving such work were unaware of the potential risks to which they were exposed.
The crew lacked sufficient emergency preparedness training and training in how to rescue people from a tank. It was somewhat unclear where the rescue equipment was located, and nor was the equipment adapted to efficient efforts to rescue personnel from a tank.”
This is a strange comment to make. It is as if the investigators expected the crew to adapt rescue equipment intended for other purposes, to attempt a rescue from an enclosed space and then criticise them as the rescue attempt failed. The correct comment should have been that there was no rescue equipment fit for purpose on board.
Several parties took part in a project to establish a full-scale pilot plant for silage production on board Nordstar in 2015. The investigation has shown that knowledge of the hazards associated with the formation of gas when fish waste/silage decomposes was not transferred in an effective manner from the other parties in the project to the shipping company, and nor were they identified by the shipping company or the supervisory authority (the Norwegian Maritime Authority) during the operating phase of the project.
Hordafor AS was one party that sold and delivered equipment to the shipping company in connection with the silage plant. Herder’s core activities are handling and processing by-products from the fisheries and aquaculture industries. The company uses specialist vessels to collect silage from fish farms, harvesting plants and fish landing and processing facilities along the entire coast of Norway. Herder has stated that it provided information about the risk of gas formation, and that this information was communicated to the shipping company both orally and in writing in a memo on ‘safe production of high-quality silage’, which was sent to the shipping company in 2017. This memo stated that it was important that the shipping company carry out a risk assessment of the plant and maintain good control of tank cleaning and ventilation.
The discrepancy between the Shipping Company claims of no knowledge of the dangers and the claim by the manufacturers that the information was given was not investigated. This was one of the main factors that led to the accident. Nordstar has a checklist for rescuing casualties from cargo holds/enclosed spaces, but no training needs were described. The AIBN had found no documentation showing that drills have been carried out for entering of tank.
That the fact the crew had no training in rescue is normal. We are probably the only industry in the world where there is no legislation for formal training in either entering or rescue from enclosed spaces, yet the ships we work on have more enclosed spaces than any factory ashore.
‘The factory manager measured the oxygen level in the tank by lowering an oxygen detector on a string. The oxygen detector did not sound an alarm, and the factory manager therefore deemed it safe to enter the tank if necessary, in order to place the fan correctly. Before the factory manager went down into the pump room, he left the oxygen detector with one of the two fishermen who took part in the work.’
The oxygen detector in use at the time of the accident was of the type Unitor OXY- MATE C. This measured oxygen only, not gases.
The oxygen detector had last been serviced in October 2015 by a manufacturer’s representative. The service included calibration of the meter. According to the certificate issued after the service, the next calibration of this instrument was scheduled to take place within a year (16 October 2016). The O2 detector had not been serviced since 2015.
‘When the equipment was ready, the fisherman who had the oxygen detector said that he would go down into the tank to place the fan correctly. He had a torch and a portable oxygen detector with him when he entered the tank. After climbing part of the way down, the fisherman shouted to his colleague who remained on deck that there was a lot of silage residue left in the tank; he then proceeded down to the bottom of the tank. His colleague has stated that he could tell from the look on the face of the fisherman inside the tank that something was wrong, before he said that ‘there is no air here’. The fisherman inside the tank jumped back onto the ladder and climbed a few steps before he suddenly fell backwards and landed at the bottom of the tank, where he lay face-down in the silage residue.’
The AIBN has been informed by the shipping company that the O2 detector was functioning on the day of the accident, but it has not carried out its own examination of the instrument.
This was a vital factor in the incident. Based on the belief that this equipment was working, an oxygen test was carried out and, because the alarm did not sound, they presumed all was satisfactory and the seaman entered the tank. As he proceeded down, no alarm sounded, so he thought that all was well. Considering the importance of this evidence, it is impossible to understand why the AIBN took the Company’s word that it was functioning and failed to examine it themselves.
The crewman who witnessed the accident estimates that he donned a smoke-diving breathing apparatus and entered the tank in about four minutes.
The time again is critical. It is estimated that, without oxygen, brain damage begins after 4 minutes. If the ship had been equipped with a resuscitator that could have been taken down, there is a very good chance that this man would be alive today, however despite repeated appeals to the IMO over many years, there is still no legislation requiring ships to be so equipped.
He turned over the seaman who was lying face-down in the fish silage. Then he shouted up to the crew gathered at the hatch to throw down the end of a fire hose that he planned to use to hoist the casualty up. Another crewman wearing a smoke-diving breathing apparatus soon entered the tank, and the two of them attempted to fasten the hose around the casualty without succeeding.
This is reminiscent of another incident some years ago on a British owned ship off the African coast where three dead seamen were pulled out of a tank on a length or rope. Marine industry safety technology has now moved on to using a firehose.
When the vessel’s lifting equipment was lowered into the tank, the first fisherman ran out of air and had to go up. A third crewman wearing a smoke-diving breathing apparatus came down into the tank and, together with the second man, tried to secure the strop around the injured person. It was a very challenging task, and the injured person repeatedly slipped out of the strop because he was unconscious.
It was also very challenging that the ladder cage on the entry ladder obstructed the hoisting operation. Another 20 minutes passed before they finally managed to get the injured person out of the tank.
Again, we see how design of these spaces allow no consideration for those having to enter work in them, and, occasionally, be rescued from them
- Rescue equipment
The vessel had prepared hoisting equipment for rescuing persons from confined spaces or other relevant spaces, such as the cargo hold. It comprised a ‘helicopter harness’, ropes, block and tackle, torches and some first aid equipment.
- There was no lifting eye in the ceiling above the silage tank’s access hatches. On the day of the accident, the crew therefore used extra rope and pipes in the room where the hatches were located to attach the hoisting equipment.
- The lifting strop was of a type intended for hoisting persons who are conscious and capable of keeping their arms by their sides. The fact that the person was unconscious made it challenging to securely attach the lifting strop, and it consequently took several attempts for the crew to get him out of the tank. They have also described that the ladder cage complicated the rescue effort.
It is not unusual for inappropriate equipment cobbled together by the ship to provide some form of rescue equipment when specialist equipment is readily available from suppliers but not provide as ‘It is not required by legislation.’
A final statement from the AIBN states;
‘The shipping company has informed the AIBN that it has changed its procedures so that, every time silage has been unloaded, the tanks are to be cleaned before the vessel’s next voyage, regardless of what it will be fishing for. This is amongst a list of other changes the company has made to its management procedures.
‘Based on the above, the AIBN does not make any safety recommendations aimed at the shipping company.’
‘The investigation of the accident on board the Nordstar on 10 June 2018 has not identified new areas in which the Accident Investigation Board Norway deems it necessary to propose safety recommendations for the purpose of improving safety at sea.’
On 4 February 2011, a work accident occurred on board the chemical tanker Solstraum. During tank cleaning work while the ship was sailing to Rotterdam, the pumpman died when he entered one of the cargo tanks before it had been cleaned and ventilated.
Based on the shipping company’s follow-up after the accident, the AIBN did not deem it necessary to make any safety recommendations.
On 1 September 2018, a work accident occurred on board the oil/chemical tanker Key Fighter, which was registered in Malta and on route from Averøy in Norway to Erith in the UK. Two crew members involved in cleaning a cargo tank died after falling inside a tank.
Based on the shipping company’s follow-up after the accident, the Maltese Marine Safety Investigation Unit did not propose any safety recommendations.
Has anyone else spotted the pattern? So, you can rob a bank and then when you are caught, give the money back and walk away? Such reporting does nothing to deal with the cultural problem in the offices ashore which is more important and probably worse than that at sea.
While owners can, despite the SMS intentions, continue to avoid blame by hiding behind the IMO failures in legislation, they seem to be supported by this kind of investigations on which inquests are based.
If we have to accept the continuous statement that there is no legislation for upgrading the obsolete safety equipment required or training for the use of the same, it does not stop such accident investigators from stating that there should be training; the manning is insufficient; the safety equipment is obsolete and other management factors that contributed to the accident. This rarely happens.
Yet in IMO Resolution msc.255 (84) (adopted on 16 may 2008) adoption of the code of the international standards and recommended practices for a safety investigation into a marine casualty or marine incident (casualty investigation
code) there are provisions for this.
16.5. Scope of a marine safety investigation: Proper identification of causal factors requires timely and methodical investigation, going far beyond the immediate evidence and looking for underlying conditions, which may be remote from the site of the marine casualty or marine incident, and which may cause other future marine casualties and marine incidents. Marine safety investigations should therefore be seen as a means of identifying not only immediate causal factors but also failures that may be present in the whole chain of responsibility.
Why then, in the investigation of the Costa Concordia sinking, was there no investigation by any authority why passengers died trapped in lifts? Why the crew decided not to use the inflatable rafts but instead, take passenger places in the lifeboats? Why did the davits failed for two of the lifeboats? Why did lifeboats fail to launch properly with the ship only listing to 17 degrees when they are supposed to launch at 40 degrees? Why did the Company claim they knew nothing about the ships making these close passes to land when they allowed it? Why did they change the bridge language to Italian when most of the ratings did not understand this, leading to confusion on the bridge? The unanswered questions go on yet the IMO could have launched its own inquiry but chose not to do so.
Obviously these failures contributed to the deaths on board and some were directly responsible, yet with no investigation of these, the Captain was found to be completely responsible for all the deaths on board. His human rights to a fair trial were completely ignored yet there is no protest from the IMO or any other marine authority. If justice is ever to be accorded to this disaster, there should be a fresh investigation and a retrial where those also having responsibility should join the Captain.
It is not just the AIBN; this kind of investigation is widespread; designed more to satisfy the Flag State authorities than provide those dependants of victims with resolution and justice. There seems to be a concentrated effort to avoid any blame being apportioned to either the IMO, or the management ashore, especially if there may be criminal behaviour involved. Instead, as usual, it is convenient to blame the ship and those on board.
There is another avenue however, and that is ‘Duty of Care’. This is a legal term that refers to a business employer’s or service provider’s obligation to put reasonable measures in place to ensure that everyone associated with them is fully protected from any physical or psychological harm.
Whether this legal term is recognised depends on the flag state of the ship. For example, in the UK, all employers have a common-law duty of care to their employees. In addition, under the Health and Safety at Work Act 1974 (HASAWA) every employer has a duty to ensure that, so far as is reasonably practicable, the health, safety and welfare of employees are protected.
The IMO has no specific legislation or guidance regarding duty of care as a specific subject, however at sea, flag states have the duty to actively secure fundamental human rights.
This duty was reiterated by The European Court of Human Rights at Strasbourg On the 23 February 2012 and rectified on the 16th of November 2016, with Hirsi Jamaa v Italy.
It stated;
“special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention [the European Convention on Human Rights] which the States have undertaken to secure to everyone within their jurisdiction” (Hirsi Jamaa v Italy para 178)’
It is recognised that this judgement is by the European Court of human rights and the question remains as to if such judgement is accepted by those flag states outside the EU zone of responsibility. If there is no law that dictates the legal position of Duty of Care, the duty of care is determined by the company influenced by the social norms of that company and the senior management together with their judgement as to what is their moral duty. Providing Duty of Care to a global workforce requires plans, procedures and resources tailored to an organisation’s specific risk exposure.
For a company to consider how to assume such a Duty of Care, the risk assessment is critical and will require continuous update owing to the constant evolving nature of seagoing circumstances. Then there is the culture of the senior management, as attentiveness to this depends on them. Equally, this culture must pervade into all who are responsible for the safety and care of the workforce at sea. This can only be done by training, both of the senior management ashore and those at sea. If both management sides are singing from the same hymn sheet, the choir has a better chance of harmony.
While nothing provides immunity from risk, appropriate systems prepare organisations and companies for the challenges they face operating internationally and lay the foundation for effective Duty of Care.
Maybe while this pattern of marine accident reporting continues with no attempt to prosecute those responsible, whether at sea or on land, then the Court of Human Rights may be the place where these reports should be sent, rather than the files of the Flag States.
There are two types of marine accident investigation. There is the independent investigation service as in the United Kingdom. This can provide an oversight for the regulators and recommend changes in the legislation. The second is an imbedded investigation regime which many flag states find more convenient to influence. Most operate in flag states where there is no requirement for the investigators to pass on to coroners or prosecutors their findings. In an international industry where the Law of the Sea as applicable to the treatment and responsibility for those on the ships is mainly ignored, an urgent change of regulation for all marine investigation services is required making the passing of possible criminal involvement in any serious accident or death at seas mandatory. Where manipulation of accident reports by Flag State authorities are suspected, this should be a subject of investigation by the IMO and appropriate sanctions against the Flag State applied.
The IMO requires all flag states to investigate all serious accidents by properly qualified investigators and forward copies of their investigation reports to the IMO for scrutiny and central publication within a defined time period.
It is as if there is a separate culture grown up around marine investigations that leans towards avoiding difficult political and financial consequences for the flag state and taking the easiest path, which is of course, to constantly blame those on board, then the responsible companies’ pay-out with non-disclosure agreements signed and justice conveniently buried.
The IMO has tried with appropriate resolutions to determine how accident investigations should be conducted but as with all IMO resolutions, you can cherry pick what supports your argument and leave the rest. In an organisation with no teeth or desire to deal with the current registration disorder, any resolution can be safely ignored with little if any consequences.
The only way the industry can achieve a trusted independent accident investigation service would be for the IMO to establish its own, to which appeals can be made regarding those of the Flag States. Very few delegates would be allowed to vote for that.
Either way, in an international industry, this lenient attitude to accident investigation must stop. Where shipping company reputations and political convenience of Flag States are placed before justice for the victims and their Human Rights, and the Law of the Sea is constantly ignored, seafarers will continue to be injured or die without proper investigation.
It is a sad fact that, under the present system of many marine investigations and failures to identify the guilty and prosecute, seafarers are being deprived of one of the most essential components of Human Rights; Justice.”
ENDS.