Marine, Ports & Offshore. Alex Penberthy, Partner Laura Baxendale, Associate

Transcription

1 Marine, Ports & Offshore Alex Penberthy, Partner Laura Baxendale, Associate

2 The cast David Foster, Marico Marine The Insurer/Club Oscar Egerström, TT Club The Lawyers- Alex Penberthy, Laura Baxendale, Keoghs

3 Overview COFPS, Regulators and Investigators Memorandum of Understanding between MAIB, HSE and MCA. First Response Mock Trial

4 The scenario - Incident at Port Scene setting Incident involving passenger from the Ice Princess and an employee driving a forklift

5 First steps? Contact Insurers. Notify them of the incident at the earliest opportunity. Offer support in appointing experts and lawyers as appropriate, noting that each incident will be assessed on its own merits. The port authority should continue to act as a prudent uninsured with a view to minimise any potential exposures relating to the incident. The port authority should have an established crisis management plan in place. Media management.

6 Who is who? COPFS [Crown Office and Procurator Fiscal Service] Regulators HSE MCA MAIB - Investigators Memorandum of Understanding

7 Crown Office Procurator Fiscal Service The COPFS prosecutes criminal proceedings in Scotland. Regulators investigate and report to the COPFS. Regulators do not have the power to prosecute.

8 The Police Often first on the scene. Identify, secure, preserve and take control of the scene, and any other relevant place: - supervise and record all activity; - inform a senior supervisory officer; - enquire whether the HSE/MCA has been informed; - contact and discuss the incident with HSE (or other enforcing authority)

9 Maritime & Coastguard Agency [MCA] The MCA is an Executive Agency of the Department for Transport. Its main functions are: 1. To prevent loss of life and injury at sea and along the coast; 2. To produce legislation and guidance on maritime matters; 3. To provide certification to seafarers. ENFORCE all merchant shipping regulations in respect of occupational health and safety, the safety of vessels, safe navigation and operation (including manning levels and crew competency).

10 Health & Safety Executive Executive body sponsored by the Department for Work and Pensions (DWP). Aim to secure the health, safety and welfare of people at work and to protect the public from dangers arising from work activities. Responsible for the inspection and regulation of occupational health and safety, and major accident hazards, associated with work activities. Includes offshore oil and gas exploration, production and storage and offshore renewable energy structures. For offshore oil and gas exploration and production, HSE works in partnership with the Department for Business, Energy and Industrial Strategy (BEIS) as part of the Offshore Safety Directive Regulator (OSDR).

11 Marine Accident Investigation Branch Investigate and produce publicly available reports. Before they do so they circulate a draft report normally to the owners of the vessel who can then comment on any factual inaccuracies or analysis. HSE, MAIB or MCA?

12 Memorandum of understanding [MOU] What happens when there is an incident which could involve all three bodies? Aim of the MOU is to ensure effective collaborative working between the MAIB, MCA and HSE where their duties for health and safety enforcement and accident investigation overlap. This will normally be at the water margin, offshore and on inland waterways in and around the United Kingdom.

13 MOU Summary of responsibilities

14 Overarching Principle If the accident related activity is under the control of the Master of the vessel, or not covered by the Health and Safety at Work Act, then the MCA or MAIB will take the lead.

15 Overarching Principle If the activity is not under the control of the Master of the vessel, and the activity is covered by the Health and Safety at Work Act, then the HSE will take the lead. ALL offshore oil and gas installations, wind and wave energy farms and ALL diving activities covered by HSE.

16 EMERGENCY RESPONSE

17 Rapid Response what will we do? Preserve key evidence - where possible but when a fatality the locus will be a scene of crime. Assist and advise in liaising with the MCA, MAIB, Police and media. Support for insured generally throughout the initial stages and beyond. Minimise potential exposure to costs and liabilities. Establish a trusted channel through which insured client s can feed information as claims develop. Human face of the insurer at a time when it is most needed.

18 Preserve key evidence Memories fade rapidly post-accident and where there has been a serious casualty it is human nature to rationalise. Presence of a co-witness contaminates memories always interview separately. CCTV was the forklift fitted with CCTV? Were any of the vessels fitted with CCTV that might have captured the collision? We will need to preserve footage before it is deleted? Weather conditions visibility - signs and lights? Shipping forecast / Wunderground. Automatic Identification System (AIS) tracking data needs to be downloaded. Port Authority radio transcripts and any ship based voice recording systems need to be preserved.

19 Conclusion First Response Crucial in terms of dealing with regulators / authorities / media but also think about subrogated recovery actions

20 Prepare for trial

21 The Trial

22 Port Authority Trial HIGH COURT OF JUSTICIARY AT GLASGOW PORT AUTHORITY PLC a company under the companies acts with register umber SC and whose registered office is at SOMEWHERE PORT, SOMEWHERE, SCOTLAND You are indicted at the instance of Her Majesty s Advocate and the charge against you is that: On 10 August 2016, at Port Somewhere, being an employer within the meaning of the Health And Safety At Work Act 1974 and having a duty in terms of Section 3 of the aftermentioned Act to ensure, so far as is reasonably practicable, that persons not in their employment who may be affected thereby are not exposed to risks to their health or safety, and having duties in terms of the Management of Health and Safety at Work Regulations 1999 and in particular a duty to make a suitable and sufficient assessment of the risks to the health and safety of persons to which they were exposed whilst attending Port Somewhere, did fail to ensure so far as reasonably practicable, the health, safety and welfare at work of your employees and members of the public, in particular Andrew Smith now deceased, and you did; (a) fail to make a suitable and sufficient assessment of the risks to the health and safety of persons which arose when goods were being transported within your premises (b) fail to provide and maintain a system of work that was, so far as reasonably practicable, safe and without risks to health and you did fail to have a safe traffic management system in place ensuring that pedestrians were safely segregated from vehicular traffic as it operated at the north side of your premises And as a consequence of the failures set out in sub paragraphs (a) and (b) on 10 August 2016 when items were being transported by fork lift truck within your aforesaid premises, the forklift driver's visibility was so restricted, he did not see said Andrew Smith who was in the vicinity and consequently Andrew Smith was struck and run over by said forklift truck, as a result of which, he received injuries from which he died. Contrary to the Health and Safety at Work etc Act 1974 Section 3 and 33 (1) (a) and (c).

23 Criminal Prosecution Operations Manager Examination in Chief Cross Examination