Falling Asleep and Falsifying the Records

By The Maritime Executive 09-30-2014 06:47:00

Op-Ed by Erik Kravets and Audrey Kravets, founders of legal firm Kravets & Kravets

Maritime law is, perhaps, at its most dramatic when it comes to ship collisions. Often, "ship collision" refers to one ship hitting another ship. Other times, however, it refers to ships hitting inanimate objects, e.g. piers, the shore or even lighthouses. Quite recently, a small bulk goods hauler under management by a company based in Cuxhaven, Germany, had a serious accident off the United Kingdom coast which saw it crash headlong into Longstone Island. Technically, this is a "grounding", but the lessons we can learn here are applicable to collisions as well.

Any captain would cringe at the prospect of being responsible for such an accident. But brace yourself and keep reading - after all, it is better to learn from other people's mistakes than to make one's own. The report issued by the Marine Accident Investigation Branch (MAIB) of the United Kingdom Department for Transport, in this particular case, offers a wealth of valuable information which could certainly be of use in averting similar future accidents.

In the following, I will discuss general safety deficiencies which contributed to the accident, red flags to avoid in everyday ship management, international and national safety rules and give some more generalized housekeeping advice related to evidence.

Fact Pattern

The vessel, 1,499 GT, 80.25m long, crew of six, was travelling from Perth, Scotland to Genk, Belgium with a cargo of lumber, heading 147', speed 8 knots, on 14 March 2013. The last logbook entry was at 01:00 hours, the collision took place at 03:30 hours - i.e. two and a half hours after the chief officer fell asleep on the couch of the ship following an administration of a dose of eye drops. After hitting the rocky shore of Longstone, the master gave the order to set the engines to half astern (i.e. to back up the ship off the island) - when this failed to dislodge the ship from the island, the decision was made to fully ballast the ship to keep it immobile. On 28 March 2013, the ship was salvaged and towed to Blyth.

Safety Management System (SMS) Deficiencies

All in all, the UK Secretary of State's representative's inspection revealed six breaches of the SMS with respect to navigation. We list the individual breaches here as a point of reference:

• Minimum safe manning was not provided for, as only one III/4 navigation watch rating was on board;

• The magnetic compass was not readable from the conning position;

• No tidal stream information was contained in the passage plan;

• Navigation records were defective, as logbook positions, chart positions and electronic records did not tally (i.e. add up);

• There was defective monitoring of the passage plan, as plot charts and paper charts were only cross-checked every two hours, but also because no visual radar or echo sounder was used to verify positions provided by GPS;

• Use of single-handed night time and coastal watch.

Red Flags to Avoid

A "red flag", in English, means "a glaring problem". Avoiding red flags means that glaring problems are being avoided; of course, this can be done honestly, i.e. by not causing the problems to begin with, or dishonestly, i.e. by covering up the problem after the fact.

One red flag is apparent above, namely the navigational records that did not tally.

The MAIB report contained the following truly ridiculous additional red flag:

“The practice on board Danio was to retrospectively enter the hours of work and rest onto a spreadsheet (Figure 4) which had built-in macros to calculate if the ILO requirements had been complied with. If the hours entered were in excess of the allowed limits, the spreadsheet cell would change colour to red, indicating an alarm. The crew would then adjust the recorded hours to clear the alarm, before transferring the information to another report that was then signed, dispatched to the office and filed on board.”

This was apparently standard operating procedure on board. In April 2009, a port state inspection carried out at Blyth indicated a problem related to "falsification of records". Clearly, this problem was not ultimately rectified and would become relevant again later.

Conformity with International Treaty Law

Other issues existed as well with respect to watchkeeping compliance. The International Regulations for the Prevention of Collisions At Sea (1972, COLREGS) state:

“...every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”

The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1978) provides discretion to masters with respect to the implementation of this rule with reference to weather, traffic density and visibility. However, this discretion only exists during the day, not at night, which is when this collision took place.

A breach of flag state regulations also applied in this case. Specifically, in Antigua and Barbuda, a lookout is required in addition to the watch officer - but no lookout was ever assigned to assist the watch officer. And UK law was also breached, specifically Regulation 11 of Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) Regulations 1997. Obviously, an additional lookout would have helped, especially "in light" of the fact that Longstone island has a lighthouse.

And here is a look at the watch plan which clearly shows that only one individual was looking out at any given time, instead of one plus a back-up as foreseen by statutory requirements:

According to a 2004 MAIB study, a third of all groundings involved a single, fatigued bridge officer at night; two thirds of vessels involved in collisions were not keeping a proper lookout. Fatigue, watch officers accidentally falling asleep and the failure to post two simultaneous watch officers were identified as significant factors contributing to nighttime accidents.

Manipulation of Evidence

Akin to "red flags" but not quite identical is the manipulation of evidence. In this case, the chief officer added a leg to the Electronic Chart System (ECS) after the fact. Leaving aside for now that an ECS is not permissible as a sole means of navigation, in this case, the passage plan plotted out on the ECS was transferred manually to a paper chart collection. This allowed the chief officer to perform a manipulation on the paper chart by inserting an additional (fake) leg of the journey which the ship in question here had, in fact, never completed.

Such falsifications always fall under the rubric: "it seemed like a good idea at the time" - the word "seemed" implying, of course, that it was not a good idea. No matter how intense the pressure may be from the owner of the ship, it is always important to remember that any falsifications can lead to criminal penalties - and who wants that hanging over their head?