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

Objectivity Constrained

In their 30 year-long search for truth, the relatives of the trawlermen who lost their lives on the Gaul had to compete against a number of adversaries whose interests would not have been best served if the reasons for the tragedy had become known.

The victims’ relatives were not aware of the nature of the fight they were in, nor did they know the identities or the motives of their adversaries. All they knew was that they were not being given straightforward answers to their questions, and that the facts were somehow eluding them.

Although, in theory, meant to provide an explanation as to the most likely causes for the tragedy, the 2004 Gaul Formal Investigation, like a number of other public inquiries, became, in fact, nothing more than a case of ‘shadow commercial litigation,’ organised and controlled by the very parties whose interests would have been adversely affected by an impartial verdict. The Gaul RFI was therefore an unequal fight - dressed up as an expert and unbiased analysis - a fight the outcome of which was both pre-determined and inevitable.

Concerns have already been raised that, due to their legalistic and adversarial nature, many formal inquiries, instead of pursuing the truth, provide in fact a platform from which opposing parties, flanked by their legal representatives, can pursue their specific interests, and that, when the ‘adversaries’ are not evenly matched, it is usually the interests of the mightiest that prevail.

It is evident to us that improvements in respect of the rules by which formal inquiries are conducted are necessary and important.

However, above and beyond any rules and safeguards that may be applied, what is most important is the professionalism and personal integrity of the individuals involved - the principal guarantee that the results of an inquiry will be meaningful and sincere.

(More details to come)

Legal advice

On the 20th of May I had a most interesting conversation with Mr Max Gold, the solicitor who represented the families of the Gaul crew in the 2004 RFI.

Mr Gold admitted that it did come out during the formal inquiry that the duff and offal chutes on the Gaul had a design defect, which meant that, in certain sea conditions, the vessel could take water on into the factory deck, loose stability and sink.

So, the families’ solicitor admitted that he knew all along that the loss of the Gaul had not been due to crew error, but due to a design defect.

As regards the compensation for the families of the deceased, Mr Gold made some extraordinary assertions:

1. That, during the inquiry, the bereaved families had in fact been informed that the most probable cause of the tragedy was a design defect. (?!) (Obs. However, it appears to me that not all of them were informed.)
2. That only a few of the families were "interested" in suing for compensation. (?!)
3. That those who were interested in suing for compensation were advised by their barrister (Mr Tim Saloman, QC) that they stood no chance of getting any because of the limitation rules that exist on such claims. (?!) According to Mr Gold’s recollection, Mr Saloman’s expert opinion was that no action for compensation could be brought after the expiration of 15 years from the date of the victims’ death, no matter if the cause of the tragedy was only ‘discovered’ in 2004.
   (Obs. This opinion, as far as I have learned from independent advice, does not appear to be correct, the law being pretty straightforward in this respect.
   And, in any case, this could not have given any justification to the RFI panel to manipulate the results of a public inquiry.)
4. That Mr Saloman’s written advice is confidential and I am therefore not entitled to receive a copy of his counsel. (?!)

I had more questions for Mr Gold, but he was in a hurry and promised to call me back towards the end of the week (i.e. last week.). Unfortunately, he never managed to.

(To be continued…)