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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Fishing boat: director convicted

Fishing boat: director convicted
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New Zealand

A company and its sole director have each been convicted as principals under the HSE Act for failing to take all practicable steps to prevent harm to two deckhands on the company's fishing vessel, the Easy Rider. One of the deckhands drowned when the vessel overturned, while the other survived by clinging to a plastic jerrycan for 18 hours. The remaining seven people on board - the skipper and six passengers - all drowned.

AZ1 Enterprises Ltd and its director, Gloria Davis, were also convicted on two other charges laid under the Maritime Transport Act 1994. The prosecution was brought by Maritime New Zealand. A date has yet to be set for sentencing (Invercargill DC, 18 March 2014).

The prosecution is a rare example of a company director facing charges under the HSE Act, and helps to clarify the circumstances in which directors - who routinely claim they are remote from day-to-day operations - nevertheless have a clear duty to act.

Davis and her husband, William Karetai, purchased the Easy Rider in 2011 from his uncle with the intention of becoming self-employed commercial fishers. Davis formed AZ1 Enterprises to own and operate the vessel (though in its Safe Ship Management manual she was listed as the owner). Much work was done to bring the boat up to commercial fishing standard.

To obtain the required SSM Certificate they nominated another skipper who had the requisite Inshore Launch Masters Certificate. Karetai, who held only a Deck Hand Certificate, was to be enrolled in an ILM course with the intention to get certificated. However in reality it was Karetai who skippered the vessel - the other man was never used.

On the evening of 14 March 2012 the Easy Rider, skippered by Karetai, left Bluff with two deckhands and six passengers on board with the intention of dropping the passengers at the Muttonbird Islands and then to carry out commercial fishing. The two deckhands were to be paid with a share of the catch.

Just after midnight the vessel was struck by a large wave and overturned. Only one person - a deckhand - survived.

Regarding the s18(1)(b) charge laid under the HSE Act, Judge Strettell in his decision noted that s2A(2) of the Act makes it clear that a person is only required to take steps regarding circumstances which they know or ought to know about. He said Karetai represented the company on board the boat, and on the day was a contractor, an employee, and a person who controlled the place of work. Davis was also a person in authority with respect to the company who had specific responsibilities for "establishing and maintaining" procedures concerning safety, as per clause 7 of the Ships Manual. The actions of both could be attributed to the company.

Regarding the charge against AZ1, the judge found three practicable steps Karetai - as the company's representative - did not take. He chose to take Easy Rider to sea when he knew he did not hold an ILM certificate and was thus unqualified, and he was unfamiliar with the waters on the intended route. He chose to travel down the western side of Stewart Island in the face of a deteriorating weather forecast rather than take the longer but more protected passage to the east. And he chose to leave port with eight people on board despite knowing the Easy Rider was not certified to take passengers and that it lacked a SSM and safety audit.

In addition, he placed one of the deckhands - the survivor, as it happened - in further harm's way by not providing sufficient lifejackets.

The court found Davis had documented responsibility for safety compliance on the vessel, and was certified in the Ship Safe Manual as the 'fit and proper person', and thus had responsibility under the HSE Act. He pointed out that in reality she did not fulfil those roles, as Karetai was the skipper and made the operational decisions.

"Regrettably, that is not an excuse. A person with such responsibilities ... cannot abdicate [them] and suggest ... that she fulfilled only clerical functions."

As principal, Davis was required to take steps to avoid harm to contractors regarding circumstances that she knew about, or ought to have known about. She knew of the proposed voyage and that Karetai was not qualified to act as skipper. She could have arranged for a qualified skipper to take over and/or stopped the vessel from sailing. She was also aware that six passengers were on board, and that the survey certificate stated no passengers were to be carried (a passenger-carrying vessel requires a more extensive survey); and that, at the least, the surveyor should have been contacted to see if the addition of six passengers was safe.

Davis was also aware that a scheduled safety audit of the Easy Rider had commenced earlier on the same day of the fateful voyage. When the auditor asked Karetai to show him his Skipper's certificate, he phoned Davis on speaker phone and they had a conversation, in front of the auditor, that suggested his certificate was at home - though both of them knew that was not the case.

The auditor told the court that had he known of Karetai's intention to sail to the Muttonbird Islands that night he would have detained the vessel because "a lot of important stuff was missing".

Later that day, when Karetai asserted to Davis that the boat had passed its audit (it had not), she should have enquired - as an agent of the company - who was to be the skipper and how the boat had passed its audit.

"Ms Davis failed to ask the relevant questions and consciously ignored the issue when she needed to make an enquiry," wrote the judge.

Regarding the two charges under the Maritime Transport Act, the judge made an observation about the responsibilities of directors.

"... given the obligations that arise from the undertaking of such responsibilities, as a matter of principle it is important that others in similar circumstances may understand that, by accepting positions of responsibility, obligations follow that are not able to be acknowledged in the breach."

People Mentioned:
Gloria Davis; William Karetai
Organisations Mentioned:
AZ1 Enterprises
Reference No:

From Alert24 - Safeguard Update

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