HMA v SVITZER MARINE

At the High Court in Edinburgh Lord Turnbull imposed a fine of £1.7 million on Spitzer Marine after they pled guilty to breaches of the Health and Safety Act.

On sentencing Lord Turnbull made the following statement in court:

“On the evening of 19 December 2007, the lives of Stephen Humphreys, Eric Blackley and Robert Cameron were lost when their Tug the Flying Phantom was sunk during the course of a towing operation in fog on the River Clyde. Their fellow crewmember Brian Aitchison was able to jump into the river and survived a harrowing ordeal.

All of the men who whose lives were lost had loving families, who have had to endure the grief of their loss over all of the years which have passed until now and who will have to face an entirely different future from the one which they had looked forward to spending with their husbands, fathers and grandfathers.

The incident leading to the sinking of the Flying Phantom involved the inherently hazardous operation of towing. Towing in thick fog is, and always has been, recognised as increasing the level of risk already present. On the evening of 19 December 2007 the Flying Phantom was engaged as the Bow Tug in towing the cargo vessel The Red Jasmine, the largest vessel to have visited the Clyde in the previous 20 years. Due to the time of year and the time of the planned transit, fog was anticipated and was encountered.

As the transiting party reached the narrow part of the Clyde channel in the vicinity of the former John Brown’s Shipyard, the fog was so thick that it was not possible to see known reference points on the bank of the river, or for the crew members of the Flying Phantom to see the bow of the vessel being towed behind them. The Flying Phantom may have grounded on the bank of the river, with the result that the vessels were no longer in proper alignment with each other. As a consequence The Red Jasmine was able to get ahead of the towing tug and the process of “girting” then occurred, which led to the small tug quickly being pulled over onto its side, coming into contact with the hull of the large vessel and then being pulled under.

Girting is a well-known risk in the process of towing. However, for the Flying Phantom and its operators it was a risk which was not just theoretical. It was a risk which had been observed to come into play in similar conditions when towing the large cargo vessel The Abu Egila in the Clyde almost exactly seven years earlier.

On that occasion the Flying Phantom was towing in darkness and in thick fog, to the extent that it became, as it would be again seven years later, impossible for the crew to see the vessel they were towing. On this occasion the Flying Phantom grounded in the fog and in taking action to prevent being girted was then struck by the cargo vessel being towed. Although minor injuries were suffered and substantial damage done to the vessel, there was no loss of life on this occasion.

In the aftermath of the collision between The Agu Egila and The Flying Phantom significant investigations were conducted by the tug’s then owners. In particular reports were commissioned from the then Regional and Operations Managers.

The Regional Manager’s report noted, amongst other things, that harbour towage in dense fog was “extremely dangerous”, especially for the lead tug where there was a high risk of it girting due to the close proximity that it has to be to the vessel under tow in order to be effective.

The Operations Manager’s report noted that operations in fog were always hazardous and that “a high risk of girting existed when the fog was so thick that the head tug could not see the bow of the ship it is towing”. He instructed that in situations where tug masters considered their vessel to be in extreme danger due to the risk of girting or being run down they must not hesitate to slip the tow. 

The Operations Manager recommended that the company’s Operations Manual be amended to provide clear instructions to tug masters in circumstances where they consider their tug to be at risk of being girted or being run down. In addition, he recommended that his report be used as a basis for discussing with port authorities an agreed set of procedures to be adopted for towing in fog. No such amendments to the Operations Manual were made and no such procedures were developed. 

The authors of these reports were both experienced former Royal Naval officers, one at least of significant rank. It is sufficient to say at this stage that the accused company’s operating procedures were not altered in the aftermath of the Abu Egila collision to adequately take account of the risks which its own senior managers had identified.

As a consequence, by the time of the loss of the Flying Phantom seven years later, 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.

This is not to say that the company did nothing after the Abu Egila collision. That would be entirely unfair. However, by their plea of guilty in this case, the accused company now recognises that it should have taken pro-active steps in light of the reports commissioned from its own specialist managers.

In circumstances where death or injury has resulted as a consequence of a breach of Health and Safety obligations by a company employer, the only penalty which the court can impose is a monetary fine. In cases such as the present, where those breaches of duty result in deaths and misery for so many, the imposition of a financial penalty may seem entirely inadequate.

Nothing which the court has the power to do can undo the harm already done. However it is right that a financial penalty is imposed. That step will have the effect of reflecting the company’s responsibility and it will assist in bringing home to all employers the importance of abiding by the duties of care owed to their employees. It will also serve to highlight the terrible price, paid by others, which can so easily result when employers fail to abide by their own responsibilities.

I would like to make it abundantly clear though that in identifying the particular level of fine which I consider to be appropriate in the present case, I am not seeking to identify the level of the worth of the individuals who lost their lives. Nor am I seeking to reflect in financial terms the measure of the loss suffered by their families.

In the end of the day any sentence imposed by me will likely seem insignificant compared with the sentence which they have had imposed on them.

It is also right that I take account of the submissions made to me on the company’s behalf by Mr Gray.

In the first place, I recognise that the company and those responsible for its running are genuinely remorseful over what has occurred.

It is fair and right to acknowledge that the company has a good safety record and it can be seen from the training schemes and reviews, described to me by Mr Gray, that it has a responsible and appropriate attitude in general to issues regarding the health and safety of its employees.

It is also right to acknowledge that the breach of duty in the present case was not deliberate, in the sense of a shortcut designed to improve profitability at the expense of risk to an employee, and that robust and appropriate steps were put in place after the loss of the Flying Phantom.

Finally, in this regard, I also accept that the company did participate in discussions with other interested parties in the aftermath of the Abu Egila incident which were designed to address the issues of risk which were seen to be present. However it is clear that those discussions did not bring into proper focus how to cope with the risk of girting and collision which existed for a lead tug whilst towing in conditions of restricted visibility due to fog.

In these circumstances I will recognise, as invited to do, that there are a number of mitigatory features which require to be taken account of on the accused company’s behalf.

Against these though it seems clear to me that the enduring failure to take proper account of the level of risk reported by the company’s own expert managers is an important feature of this case and one that ought to influence in a significant way the level of penalty imposed.

Of course any penalty imposed must take account of the accused company’s resources and the effect on its business.

In this regard I note that the financial reports and statements provided to me for the years ending December 2009 to December 2011 disclose that the accused company had an annual turnover of between 55 and 60 million pounds and gross profit figures of between 9, and more recently, 20 million pounds.

The operating profit for these years was in the range of 5 to 14 million pounds.  Even taking the lowest figures available, reflecting profit after tax, brings out sums in the region of 9 million and 6 million pounds over the last two years. It is clear that the company is in a healthy position and in a position to pay a fine at a level commensurate with its responsibility for the events which occurred.

Mr Gray has also invited me to restrict the level of penalty which would otherwise have been appropriate in order to recognise the utilitarian value present in the plea of guilty by the accused company. This is a course which I am bound by statute to consider taking.

It is of course difficult to think of a plea of guilty, tendered to the court in October of 2013, as being an early plea of guilty, since the guilt which is recognised in that plea crystallised in December of 2007.

I find it difficult to understand why it has taken so long for these proceedings to make their way to court. I also noted that in one of the victim Impact Statements which I was asked to consider it was pointed out, quite understandably, that the investigations had taken what seemed like an incomprehensible length of time, and that the passage of so much time had added to the stress and strain which the family had been required to endure.

However, it is clear from what I have been told, that the accused company co-operated throughout in the enquiries which were conducted. It also seems clear that, whatever the explanation for the passage of time is, it has not been added to by the company.

These were the submissions made in court on this point, in some detail, by Mr Gray and they were not contradicted by the crown.

However, in assessing the level of discount which, in my discretion, I ought to permit, I have kept in mind the guidance given by the then Lord Justice Clerk in the case of Gemmell v HM Advocate 2012 SCCR 176 at paragraph 77 of his opinion where he said:

     “..I consider that the court’s discretion to allow a discount should be exercised sparingly and only for good reasons.”

 

I have also taken account of his observations concerning the allowance of a substantial discount and the risk that this may lead the sentencing decision of the court to lose credibility and thus erode the authority of the court generally. It seems to me that in drawing attention to this risk the Lord Justice Clerk had in mind the concern that a simple percentage based discount would carry with it the risk that an otherwise well-deserved large fine, or other sentence, might be disproportionately diluted.

Accordingly I do not intent to approach the matter of sentence discount on a percentage basis. Instead I will seek to identify a sum by way of deduction which appears to me to adequately reflect the utilitarian value in the accused company’s plea of guilty. 

In the present case the degree of risk to the towing vessel in conditions of restricted visibility was high. The extent of the danger to which the crew members were exposed as a consequence of that risk could not have been higher – death would be the obvious likely outcome of girting.

These features alone plainly disclose that the breach of statutory duty present in this case is very serious. The fact that death in fact occurred as a consequence is automatically an aggravating feature.

However the accepted breach of duty in fact resulted in the death of three men and the exposure to that risk for a fourth, aggravating the matter further.

Two further features are significant in this context:

1. The accepted breach of duty which finally had these consequences was one which had been on-going throughout a period of almost seven years; and

 2. The breach of duty which led to these deaths, and which exposed Mr Aitchson to such a risk, was a breach which was on-going over this period of years despite the warnings which had been given to the company by its own expert managers whom the company had tasked with the very responsibility of reporting on what needed to be done in the aftermath of the Abu Egila collision.

In all of these circumstances, and despite the mitigatory features which I have recognised, it seems right that a very significant financial penalty ought to be imposed.

Had it not be for the plea of guilty tendered I would have considered the appropriate fine to be £2,000,000. 

For the reasons which I have given already I will restrict that to a fine of £,1,700,000”.

 

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