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Case review of The Flying Phantom – Clydeport case by independent expert Mark Capon

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Regs4ships Director and Master Mariner, Mark Capon, is renowned for his knowledge of the Port Marine Safety Code and its practical application. For over five years Mark has been engaged in the Flying Phantom – Clydeport case as an independent expert for the Crown Court. See an exclusive case review written by Mark below.

The Flying Phantom – Clydeport fined £650k

Written by Mark Capon

Nearly seven years ago, the “Flying Phantom” was bow tug to the large bulk carrier “Red Jasmine” on passage up the Clyde. In thick fog the tug girted and tragically three of the four crew were killed.

Nearly a year ago the tug owners were fined £1.7M for failing to assess risks and provide a safe system of work. Yesterday, the harbour authority was fined £650,000 for failing to assess risks and provide a safe system of work. Reliance on the skill, training and experience of professionals involved in marine operations is not sufficient. There must be a formal system which is kept up to date, generates records and is fully audited.

For the harbour authority this formal system is wrapped up in compliance with the Port Marine Safety Code (PMSC). The PMSC does not have the force of law but this case has demonstrated that it does not dilute its importance.

Sound bites should be treated with caution and with that in mind I provide the following:

Lord Turnbull, sentencing statement HMA v Svitzer Marine:-

"…the company had still failed to make a suitable risk assessment of the risks to the safety of its employees so as to ensure, so far as reasonably practicable, the safety of its employees arising out of the risks of grounding, girting and collision while engaged in acts of towage in darkness and in conditions of restricted visibility due to fog."

"Separately, the company had failed to provide a system of work that was, so far as reasonably practicable, safe for its employees serving as crew engaged in acts of towage in darkness and in conditions of restricted visibility due to fog."

Lord Kinclaven, sentencing statement HMA v Clydeport Operations Limited:-

"The charge before the Court relates to failures on the part of Clydeport to adequately assess risks and provide a safe system of work."

"It was Clydeport’s duty under the Health and Safety at Work etc. Act 1974 to conduct their undertaking in such a way as to ensure, so far as was reasonably practicable, that persons not in their employment (my emphasis) who may be affected by the conduct of Clydeport’s undertaking were not exposed thereby to risks to their health or safety – including persons serving as crew of tugs."

(Clydeport ) …"did fail to provide a safe system of work in that:-

(it) did fail to have in place an adequate contingency plan if conditions of restricted visibility due to fog were encountered during an act of towage of a vessel.

(it) did fail to provide a Safety Management System to reduce to a level as low as reasonably practicable the risks associated with marine operations in the Clyde Harbour Area, in terms of the Port Marine Safety Code, and fail to appoint a suitable individual or individuals to share the function of ‘Designated Person’ to provide (Clydeport) as the duty holder with independent assurance that (the) Safety Management System was working effectively and to audit compliance with the Port Marine Safety Code".

  • "In spite of the reports and collaborative meetings (after a previous similar accident), the manner in which towing operations were planned and carried out changed very little…
  • A ‘suitable and sufficient’ risk assessment should have addressed the issue of large vessels encountering thick fog during transit.
  • Clydeport’s marine risk assessment was not ‘suitable and sufficient’ in that it failed to consider, in a structured and systematic manner, how unwanted events occur and it failed to critically review whether the risk control measures in place to prevent and mitigate the effects were both functioning and effective.
  • Clydeport failed to systematically track the risk assessment actions and properly review their risk assessments.
  • The Work Instruction current at the material time did not address any situation where fog was encountered east of Bowling Jetty and was not fit for purpose.
  • There is no record of the work instruction ever having been reviewed or monitored between inception and the Red Jasmine incident in accordance with the requirements to do so.
  • Contingencies for transit of vessels such as Red Jasmine should have been properly assessed and spelt out.
  • The appointment by Clydeport of the ISO9001 Quality Management System as a ‘Designated Person’ resulted in there being no independent scrutiny of Clydeport’s Safety Management System. There was no mechanism or ability to subject the system to critical review to ensure that it was effective in the control of marine risks – and quality was assumed to be synonymous with safety."

The lessons to be learned by all Harbour Authorities are stark. A Harbour Authority must:

  1. Comply with the Port Marine Safety Code.
  2. Manage risks associated with marine operations by way of a risk based Safety Management System.
  3. Appoint a Designated Person to provide the duty holder with independent assurance that the Safety Management System is working effectively and to audit compliance with the Port Marine Safety Code.
  4. Keep records.

This is the bottom line as I see it; provided the Designated Person fulfils their functions all should be well, because if they are not they should be reporting to the Board. If the Board does not act on their reports they deserve to answer to the Judge.

  Click here to see the full sentencing report for Clydeport

  Click here to see the full sentencing report for Svitzer

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