The MV Derbyshire final report and a self-congratulatory re-write of history

As we have revealed earlier on the MV Derbyshire blog, the 2000 Re-opened Formal Investigation (RFI) into the sinking of the 173,000 tonnes bulk-carrier failed to acknowledge the fact that the vessel’s hatch covers did not meet the minimum strength criteria applicable at the time she was built – a fact highly relevant to the stated cause of her loss.

Apart from circumventing the fact that the Derbyshire did not comply with the applicable standards, via the final report to the Derbyshire RFI, the officials also tried - in a self-congratulating, orgulous manner - to re-construct the history of the events connected with the introduction of the 1966 Load Line Convention.

We were already aware that the Department for Transport had a knack for avoiding the slightest whiff of blame or criticism, but now it appears that, no longer satisfied just with evading trouble, the Department also sought to cast themselves - unduly - in a commendable posture.

The article published today on the MV Derbyshire blog reveals that the account given in the Derbyshire RFI final report as to the UK delegation’s role at the 1966 Load Line Convention Conference was different from actuality. The report tells us that, in the name of maritime safety, the UK delegation fought for increased strength standards for hatch-covers as well as for the introduction of 'tanker freeboards' for ore carriers with steel hatch covers.

The truth, however, is somewhat different: the UK delegation’s primary objective was to obtain backing for a major reduction in freeboards for ore carriers, even smaller than the 'tanker freeboards' that had been allowed under the previous Convention; their proposal for enhanced hatch cover strength was only of secondary importance – merely a concession offered in exchange for the deeper loading they sought.
When the majority of the delegates at the Conference did not accept the UK delegation’s arguments for deeper loading, the Labour [*] government’s envoys lost interest in pursuing enhanced strength standards for hatch-covers. The Derbyshire RFI report erroneously implies that the UK’s proposal for improved hatch cover standards was a mere consolidation of UK’s standard practices prior the 1966 Convention. It was not.

The Derbyshire report also states that "the UK government cannot be criticised for failing to secure an agreement to its proposals" for increased cover strength.

As we have explained in detail HERE we do not agree with this statement. The government could certainly be criticised for the manner in which those proposals were made.

Furthermore, it can also be criticised for subsequently failing to implement the Convention’s provisions for hatch cover strength in their entirety, as well as for misinterpreting the Convention’s minimum requirements for hatch cover strength.

So, at the end of the Derbyshire investigation, there should have been someone to blame - the UK government.

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[*] The Labour government under Harold Wilson

The MV Derbyshire – re-visited

These are my mates, that make their wills their law. (William Shakespeare, The Two Gentlemen of Verona. Act V, scene iv)

In the four and a half years that we’ve been running this blog, we have highlighted and commented on a multitude of serious ‘anomalies’ associated with the re-opened official inquiries into the sinkings of the trawler Gaul (36 lives lost), the OBO MV Derbyshire (44 lives lost) and most recently in the FV Trident investigation (7 lives lost).

Our studies over the years have exposed a number of common themes running through each of these inquiries, from which, in fact, a clear and recurring pattern has emerged:

1. Evidence presented in court that could lead to a finding of fault or blame (and which could lead to litigation) was suppressed, while evidence supporting the government’s preferred outcome was promoted. Nonetheless, the possibility of negligence or errors on the part of the crew (who obviously could not defend themselves) was always a theme that the court’s official investigators were happy to explore.
2. Over many years, public officials have treated the families of the deceased in an offhand, uncaring manner and actively thwarted their aspirations to learn the truth of what had happened and what caused those tragedies.
3. A number of personnel/experts/organisations have been repeat players in two or more of these public inquiries, while in the field of physical and computer modelling and tank testing the same overseas research facility has always been chosen to deliver crucial technical input to each investigation.
4. The government (the DfT), although responsible for setting and enforcing safety standards on UK ships, has been effective in distancing itself from even the slightest hint of criticism in each and all of these public inquires

With the above points in mind, and being slightly more cynical now, we thought we would re-visit the Derbyshire 2000 RFI.

On page 17 of its final official report we find that:

the UK Government cannot be criticised for failing to secure agreement…

On page 21 we find that:

This report does not recommend that the UK Government should act unilaterally…

On page 24 we read that:

The long delay […] in organising an underwater survey cannot be the basis of any criticism of the UK Government

And from page 151 we learn that:

…the UK Government cannot be criticised for reaching this solution. The Ministry of Transport and the UK delegation did all that reasonably could be done to obtain agreement to enhanced hatch cover strength.

So that’s it then, the inquiry judge has told us that the DOT, MOT, DETR (or whatever the DfT was known as at that time) cannot be criticised for anything associated with the Derbyshire tragedy.

We are now going to check up on one or two of these points.

Unfinished Business

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

More about MV Derbyshire

This is to wish you all a Happy New Year and to let you know that we have just published a new post on the MV Derbyshire blog [1].

In this latest commentary we show that the hatch covers on the Derbyshire complied neither with the minimum strength requirements of the International Load Line Convention 66 nor with the standards of Lloyd’s Register of Shipping that were in force at the time of the vessel’s build. These non-compliances, which could have been a crucial factor in the loss of the vessel, were ‘overlooked’ during 2000 RFI, the final report of which stated: “7.16 At the time of the DERBYSHIRE’s last voyage her hatch covers complied with the minimum strength requirements of ILLC 66 and of the Lloyd’s Register of Shipping Rules”, and concluded that it was a severe deficiency within those standards that allowed the vessel’s hatch covers to be built with inadequate strength, thus making their failure and the subsequent loss of the vessel in heavy seas possible.

However, independent strength calculations (presented in detail on the MV Derbyshire blog), carried out both through classical methods and by means of finite element analysis, show that the strength of the hatch covers fell short even of the minimum requirements that were set in those “deficient” 1966 standards.

Whether or not the vessel would have been lost if the construction of the hatch covers had conformed to the rules applicable at that time - insufficient as they were - is, furthermore, debateable. Placing the blame on the ‘regulations’, however, as the 2000 RFI so kindly did, made further debate redundant and removed the risk of subsequent commercial litigation for the vessel’s Shipbuilders and the Classification Society.

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[1] The Derbyshire Re-opened Formal Investigation bears many similarities with the Gaul Re-opened Formal Investigation – not the least of which is the fact that both investigations were presided over by judges who were acknowledged experts in the field of maritime commercial litigation.

Why was it that these two public inquiries, supposedly aimed only at finding the truth, were set up in this way?

MV Derbyshire

Recent events have compelled us to re-visit the MV Derbyshire shipping disaster, its causes and the ways in which the British Government conducted both the investigation and the re-investigation of the tragedy and to what effect.

We have therefore decided to dedicate a separate blog to the MV Derbyshire case, and this can now be visited at the following link: http://mv-derbyshire.blogspot.com/

As with the Trawler Gaul, we shall progress matters one step at a time, make the necessary disclosures, analyse and present the evidence piece by piece.

Possibly, with time, the number of our blogs will increase. Our government, certainly, offers enough scope for that.

The sure thing

In our post of 20 August 2008 we revealed the content of a Freedom of Information request that had been sent to the Department for Transport and the response received from them. This response confirmed that “no specific technical justification [of the Secretary of State’s decision not to re-open the FV Gaul Investigation] recorded in any form” was held by the DfT.

Consequently, we sent back a reply and also lodged another FOI request asking the Department to provide us with “a full account of the reasoning (of whatever kind and however held or expressed) behind the Secretary of State’s decision not to re-open the Gaul Formal Investigation)”. (See the full text at this link: http://www.whatdotheyknow.com/request/justification_for_the_decision_n.)

The deadline for Mrs Kelly’s reply was 9 October 2008 and we were waiting with feverish anticipation for the arrival of that day, knowing that, whatever faults Ruth Kelly might have had, dishonesty was not one of them.

Alas, Mrs Kelly is to quit her post before that date. Who the next person to take over this 'poisoned chalice' will be, it is not yet known, but his/her identity, when revealed, will provide us with a clue as to whether the Prime Minister wants the cover-up to continue (and whether indeed he has a stake in it), or whether things will finally be resolved in a correct and honourable fashion.

So far, those with an interest in keeping the scandal under wraps have been quite lucky. But – as an old maxim warns us - the only sure thing about luck is that it changes.

Clues and toggles

In continuation of our post of March 09, we are now publishing a DOCUMENT, which points to some differences and similarities in the ways in which the re-opened formal investigations (RFIs) into two major marine accidents: the MV Derbyshire and FV Gaul have been conducted and the reasons why the first was able to deliver better quality results than the second.

We considered the formal investigation into the loss of the MV Derbyshire, in which, initially, the Assessors wrongly concluded - on the basis of a rope seen emerging from the Bosun’s store hatch opening and of a simple examination of the disposition of that hatch’s toggles - that the loss of the vessel had been due to crew error.

In a curiously similar manner, the Gaul RFI also put the blame for the loss of the trawler on the crew, who, the RFI panel claimed, had neglected to close the inner covers to two openings in the hull - this time on the basis of a ligature apparently holding the vessel’s duff chute inner lid in the open position.

However, as the Derbyshire Assessors’ report had been made public two years prior to the RFI court hearings, their findings were openly examined and contested when appropriate and this allowed the court to arrive, in the end, at a set of different and more robust conclusions.

What is worthy of note here is that, in the Derbyshire RFI, it was the subsequent examination by independent experts of the condition and position of the Bosun’s hatch cover’s toggles that led to the rebuttal of the Assessors’ initial verdict of crew error.

Finally, the court concluded that the crew had not failed to secure the hatch lid and that the rope emerging from the Bosun’s store hatch opening was nothing more than post-casualty debris.

Unfortunately, despite the precedent provided by the Derbyshire inquiry, during the Gaul inquiry no external, independent examination of the case was allowed.

In the Gaul Investigation, the report of the Assessors, the retained experts and the court was presented at the end of the RFI as one final document, ‘set in stone’. Nonetheless, a mere glance at the position of the toggles, as shown by the underwater survey footage, suggests that the inner lids of both chutes on the Gaul had been initially closed.

Surprisingly, during the court hearings, neither the strongback bar (which, in conjunction with two toggles, secured the offal chute cover) nor the condition of the toggles was even mentioned.
In addition to and more intriguingly than this oversight is, however, the creative, ‘non-figurative’ manner in which the retained experts produced the drawings of the duff and offal chutes, in their supposedly ‘as found’ condition.

The toggles, which in the underwater survey video footage are clearly shown to be in the ‘hatch closed’ position, appear on the experts’ drawings to be in the ‘hatch open’ position.

The unfortunate effect of these inaccuracies is that it can mislead subsequent examiners into concluding that, since all the toggles were found in the ‘open’ position on the wreck, the court’s finding that the crew had left the hatches open prior to the loss of the vessel is most likely correct.

More about it HERE

‘Prejudice with a halo’

The RFI into the sinking of the FV Gaul, after many months spent looking at the available evidence, including the results of the 2002 underwater survey, concluded at the end of 2004 that the loss of the vessel had been caused by crew and shore staff negligence. (Obs.)

Yet, five years earlier, in 1999, John Prescott, in a flash of visionary prescience, had already anticipated its results: ”Returning to the Gaul and the Derbyshire, I don't want to prejudge the formal investigation. Indeed, I must not.” our Deputy Prime Minister said humbly; “But already the signs are that the water integrity of the vessels may have been breached, not only by the weather, but also by inadequate attention to good seafaring practice.” he, nevertheless, pressed on.

John Prescott’s statement was later condemned by the International Transport Workers' Federation, who argued that: “It is too early to say what the cause was”. [1]

The Deputy PM was subsequently proven wrong in the Derbyshire case, and as to the Gaul…
Moral: for a visionary to stay in business, his visions should, occasionally, come true.

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[1] Source of information: ‘Casualties: Poor seamanship may have caused Derbyshire loss’, David Osler, Lloyd’s List, 6 July 1999

When history repeats itself

In an article published in Lloyd’s List, almost 13 years ago[1], John Spruyt, was reflecting on the possible winners and losers of another well-known sea tragedy: the sinking of the MV Derbyshire in 1980, which cost the lives of 44 seafarers.
Having read his article, we could not help drawing an analogy between the Derbyshire and the Gaul cases.

We’ve heard it often said that history repeats itself because no one was listening the first time and that a wrong, if not rectified, only increases. Looking back at the unfortunate similarities and differences between the ways in which these accidents have been investigated, these apothegms seem very true, indeed.

In the Derbyshire case, the 1987 formal investigation reached its conclusion “without any factual evidence”, refusing “to take into account earlier research on behalf of the DoT[2] into the possibility of structural failure as the cause of bulker tragedies[3]”, and invoking a force majeure event as the cause for the loss of the vessel and her crew[4].

At the time when John Spruyt’s article was published, the Derbyshire case had not reached its final act, and the re-opening of the formal investigation had not yet taken place.[5]

It was in that context that the author of the article was considering the impact of a re-examination of the case: “[the re-opening of the investigation] would, if it confirmed the frame 65 hypothesis, create a new selection of losers from the [Derbyshire] tragedy”; apart from the primary ones: the victims and their families together with the owners of the vessel and their insurers, a new class of losers could emerge, which could include, we were told, the original formal inquiry team, the secretary of state who convened it and, ultimately, the taxpayer on behalf of the shipbuilders who had been privatised and passed over their liabilities to the government.
The Classification Society who certified the vessel and the ship designers might also get caught in the line of fire, the warning went on. Does this sound familiar?

Unlike the Derbyshire case, however, which was ultimately re-examined, the chance of re-re-opening the Gaul investigation has been, sadly, complicated by the subsequent cover-ups and cover-ups of the cover-ups, which have constantly added new groups and prominent figures to the class of potential losers.
In such circumstances, a re-opening of the Gaul investigation could taint the credentials of some quite reputable organisations and discredit parts of our legal system and of the civil service etc.– institutions once independent, but which are now tied in to the political food chain.

Consequently, very few have an appetite now for pursuing the truth in the Gaul case. If that were to happen, it is feared, it would not only bring to light a previous miscarriage of justice, but it may also unravel a series of other unpalatable facts - some with potentially criminal implications.

Another difference between the Derbyshire case and the Gaul, this time working in favour of the latter, is that the design and arrangement of the duff and offal chutes on the Gaul, which were the most likely cause for the loss of the vessel, can be more definitively categorised as a design defect rather than a mere design weakness, as the design and construction of the hatches on MV Derbyshire was described during the 2000 inquiry.

Thus, while in the Derbyshire case, suing for compensation (after the RFI) might have required some legal mastery on the part of any legal team appointed by the bereaved families, establishing negligence and culpability, in the Gaul tragedy, should be a lot more clear-cut.
Nonetheless, or perhaps for this reason also, there is yet another difference between the two histories: since the publication of John Spruyt’s article, the Derbyshire investigation has been re-opened and has reached a more or less satisfactory conclusion, whereas the Gaul families are still being denied justice.

Bearing all these factors in mind, we fully concur with the author of the article when he argues that: “a few more apparent losers will be worth the lessons to be learned and may, who knows, help to prevent further loss of ships and life.”
We equally agree with the conclusion of the article that the re-opening of a previously failed investigation could serve as a long overdue “time of catharsis in which violent forces do injury to some of the players, so that reconciliation can pave the way to a benign end” that, we would add, could then allow trust in the roles and effectiveness of the ‘system’ to be rebuilt.
And thus, let us hope, justice to the families of the Gaul victims would be finally delivered, helping them to forgive and forget.

(For more comments on the 2004 Gaul RFI please see the FULL TECHNICAL REPORT)

[1] Winners and losers in the five-act ‘Derbyshire’ tragedy, Lloyd’s List, September 26, 1994

[2] Department of Transport
[3] Comment attributed to the ITF (International Transport Federation)
[4] Later on, the accident assessors stated that the loss of MV Derbyshire had been caused by crew negligence leading to structural failure, but the 2000 RFI eventually absolved the crew of any responsibility by concluding that the ship had sunk due to structural failure and as a result of inadequacies in the legislation in force at the time of build.
[5] We wish to emphasize that the parallel we are drawing here is between the 1987 Derbyshire FI and the 2004 Gaul RFI. The Derbyshire investigation was eventually re-opened in April 2000.