Legislative priorities

One of the main reasons for carrying out a Formal Investigation into a shipping disaster is to determine its causes so that safety lessons can be learned and action taken to prevent similar tragedies re-occurring. Following the Gaul and Derbyshire inquiries we have found out, however, that this is not really the case: the protection of the financial interests of a few political and corporate operators have primacy over all other considerations, including safety.

In the run up to the 2004 Gaul and 2000 Derbyshire formal investigations, and subsequently, a lot of public money was spent and a lot of work was carried out in order to determine the causes of these two maritime disasters and to propose new measures that would improve safety. The causes for the tragedies were well obscured and, as for the safety measures recommended during those two inquiries, when it came to the final stage - the implementation or concrete action stage – matters, somehow, fizzled out.

Trawler Gaul lost in 1974 with all 36 crew

It is doubtful whether the four safety recommendations that came out of the Gaul 2004 Re-opened Formal Investigation (RFI) will ever come into effect. They had not been implemented in January 2007 when we first raised this matter [link] and they have not been implemented since.

The fact that the four safety recommendations, put forward by Justice Steel (the Wreck Commissioner in the Gaul RFI), are based upon false premises, are inappropriate and will therefore not be effective in preventing future loss of life, may be one of the reasons why the Government prefers them to be shelved and quietly forgotten.

OBO MV Derbyshire lost in 1980 with all 44 persons onboard

The Formal Investigation into the loss of the MV Derbyshire concluded in 2000 and its final report was published on 8 November of that year. The principal finding and recommendation to come out from the Derbyshire RFI was that the regulations for hatch cover strength were seriously deficient and that the International Convention on Load Lines (1966) needed to be amended urgently to rectify this shortfall.

The regulations of the Load Line Convention were thus redrafted at IMO to include requirements for specially strengthened hatch covers to be fitted to the forward cargo holds of all new cargo ships (not only bulk carriers). The new amendments were finalised at IMO [*] in 2002 and came into force Internationally in 2005.

However, they did not legally come into force for UK flagged vessels at the same time because the UK’s own Merchant Shipping legislation had not been amended to give legal force to the new Load Line Convention requirements for hatch covers. Today, the legislation still has not been revised.

The relevant UK rules are contained in Statutory Instrument (SI) 1998 No. 2241: The Merchant Shipping (Load Line) Regulations 1998.

There is no reason why these rules could not have been amended in a timely manner; in fact, the UK Load Line regulations were recently modified by Statutory Instrument (SI) 2005 No. 2114, so as to implement the following changes:

“……… in the definition of "pleasure vessel" or "pleasure craft", as the case may be, for each reference to "husband or wife" substitute "spouse or civil partner".

Now, that was extremely important - and also revealing of our government’s legislative priorities as regards Maritime safety.

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[*] International Maritime Organisation

Safety and Profitability

On the 18th of February 1974, in an interview with ITN News, David Shenton, the National Fisheries Officer for the Transport and General Workers Union, said that lack of evidence [1] about what had happened to the Hull trawler Gaul on the day it disappeared could cost the families of her 36 crewmen as much as £312,000 each [2] .

His statement [3], made just 10 days after the loss of the vessel, managed to crystallise, in a few words, the crux of the matter, which, for the next 35 years, would deny the general public the facts behind the vessel’s loss, and the families of the crew the right to know what happened to their loved ones.

It is now evident that it was not a submarine, a cold war spy-ship encounter, official secrets or hijack and capture by the Russians that had prevented the truth about this tragedy from emerging (these were just convenient ‘red herrings’ made up for the excitement of the public); it was money - purely and simply - and the British Establishment’s unwillingness to pay what amounted to a considerable sum, even though this was proper, fair and legally due to the victims’ families.

The reluctance of both governments and private companies to pay legal damages to injured parties is well-known, and has a long and colourful history in the maritime business world; what is particularly sickening, however, in the Gaul and other recent cases is the shoddiness of the tactics employed to circumvent the law: the cynical setbacks, the unnecessary delays, the long and costly legal battles, the blatant lies and, despite the recent disclosures, the persistent suppression of the truth, all of which go far beyond reasonable prudence and concern for the interests of shareholders and taxpayers.

But what is, perhaps, even more disturbing is the ease, the audacity and the extent to which the ‘cartel’ of politicians, businesses, insurers, civil servants, law firms and the judiciary are nowadays prepared to collude in order to prevent the payment of lawful compensation to those who have suffered such terrible losses.

In the Gaul case, this collusion led to a dubious but costly public inquiry, which, contrary to the available evidence, laid the blame for the tragedy with the crew.

A decade ago, in the debate about the limitation of liability for the maritime industry, justice David Steel placed himself firmly on the side of the shipping and insurance industries, whose financial interests he considered more important than fair compensation to claimants for damages caused by shipping mishaps.

The same justice Steel was then appointed to chair the 2004 Re-opened Formal Investigation into the sinking of the Gaul, which, surprisingly, found no fault with the vessel and, therefore, no grounds for subsequent compensation claims by the victims’ families.

Of course, a fine balance between safety and profitability has to be struck, no one wants the shipping or the insurance industries to go bust, but “at no time should any innocent party be expected to subsidize any business by their personal loss”, [4] nor should a formal legal process to be turned into a farce.

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[1] Simply put, as long as there was no firm evidence concerning the loss of the Gaul, liability could not be established and there could be no compensation for the dependents.

[2] About £3.5million in present day worth

[3] Unfortunately the families were soon to lose their champion as Mr Shenton passed away shortly thereafter. Mr James Johnson paid the following tribute to Mr Shenton in the House of Commons on 5 April 1976: “The late David Shenton, National Fisheries Officer for the Transport and General Workers' Union—whose untimely death is a great loss to the industry—did a great deal for the fishermen in Hull.”

[4] Serge Killingbeck, SCU Law Review Volume 3 November 1999

Why no search for the Gaul?

Although the approximate position of the Gaul had been well known, both in official and unofficial circles, in the 23 years that preceded its discovery, successive governments were reluctant to survey the area in question, and to locate and identify the wreck.

It was only in 1997, when TV producer Norman Fenton chartered a vessel and launched a search in the Barents Sea, that the position and identity of the wreck could be confirmed. Finding the wreck took him no longer than six hours. His discovery triggered an obvious question: why had a search for the wreck not been carried out earlier, this would have put an end to much of the speculation and rumours that had surrounded the vessel’s loss and, more importantly, would have helped to ease the grief, frustration and anger felt by the families and friends of those who had perished with the Gaul.

The discovery of the wreck obliged the Government to answer this question; hence, in April 1999, the Deputy Prime Minister, John Prescott, asked Mr Roger Clark, Head of Shipping Policy in the DETR, to conduct an ‘independent’ [1] investigation into why there had been no search for the Gaul after her disappearance in 1974.

Mr Clark applied himself to the task and, a year later, his findings were published in a 60 pages DETR report (see Annex 1).

In brief, the Government’s justification, presented within Mr Clark’s report, claimed that:
Initially we didn’t really know where the vessel was and it would have cost too much to find her and, even if we were to find the vessel, the expense of carrying out an underwater survey of the wreck could not be justified in terms of the benefits it would bring for marine safety.

John Prescott lauded Mr Clark’s conclusions and expressed his total confidence in their soundness and objectivity.

During the 2004 Re-opened Formal Investigation, in response to the victims’ families’ dissatisfaction with Mr Clarke’s explanations, justice David Steel, the Wreck Commissioner, re-examined the arguments, then endorsed, in his turn, Mr Clarke’s earlier conclusions (see the final report of the RFI [2]).

While the official reasoning may appear quite plausible, we have reasons to believe that, in fact, the Government had never been too keen to discover the location of the wreck, not on the grounds advocated by Roger Clarke, but for an entirely different reason: i.e. because a survey of the wreck and an analysis of the evidence that it revealed would have raised questions as to the adequacy of her design. The DfT’s marine experts, it now appears, had long suspected that the arrangement of the duff and offal chutes on the Gaul were a weakness in her design and that this weakness might have been a causal factor in her loss.

(Further details to follow)

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[1] As head of the DfT’s shipping policy section, Roger Clarke could hardly be considered independent of the government whose actions he was asked to investigate

[2] “We accept the Department’s submission that its actions were solely directed to balancing the interests of those immediately affected by the loss of the GAUL with the wider public interest and the resources available”

Meanings

Some of those who have read our previous POST may wonder whether the definitions used in the 2004 Gaul RFI were tailored to suit the conclusions of the investigation or whether they were just an unfortunate mistake that, it so happened, had a serious impact upon the outcome of the inquiry.

We cannot provide an answer in this respect, but we can supply some additional information:

- The definitions for ‘watertight’ and ‘weathertight’ are common knowledge amongst marine professionals, so it would be unreasonable to assume that the panel of experts in the Gaul RFI were not familiar with these classifications.

- Justice David Steel, the Admiralty judge, who conducted the formal investigation into the loss of MV Herald of Free Enterprise (1987), seemed, at the time, to be well aware of the correct meanings of the terms:

“[the term]…Watertight is applied to doors and bulkheads where there is the possibility of water accumulating at either side. Weathertight applies to doors or openings, which are only required to prevent the ingress of water from the side exposed to the weather.”[1]

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[1] David Steel Q.C., mv Herald of Free Enterprise, Report of Court No.8074

Silent justice

In the period between 17 and 24 January, two emails were sent to justice David Steel (the Chief of the 2004 Re-opened Formal Investigation into the sinking of the FV Gaul) and two emails were received from the judge's office in reply.

These items of correspondence were concerned with the very same question that had not quite made it to the Parliament Question Book earlier this year, and which was now addressed to the judge:

Was any evidence of design inadequacies in the construction and arrangements of the duff and offal chutes on the Gaul, specifically relating to:

a. The non-return flaps and their possibility of malfunction (i.e. to open under the action of the sea)
b. The strength of the inner covers when subjected to direct sea loading,

presented to you prior to the publication of your final report on the Investigation on 17 December 2004?"

A simple ‘yes' or ‘no’ from the judge, who acted as solicitor on behalf of the Insurers back in 1978, then as Chief of the Investigation in 2004 and was therefore in the best position to know the answer, would have sufficed.

Sadly, however, we were not meant to get either.