HMA v CLYDEPORT OPERATIONS LIMITED

At the High Court in Edinburgh today, 29 September 2014, Lord Kinclaven fined Clydeport Operations Limited £650,000 after the company pled guilty to contraventions of the Health and Safety at Work Act 1974 following the deaths of three men who drowned when their tug boat sank in the River Clyde in December 2007.

On sentencing, Lord Kinclaven made the following statement in court:

“This is the adjourned diet for sentence in the case of HMA v Clydeport Operations Limited ('Clydeport'). I would like to say a few words by way of background before proceeding to sentence.

In selecting the appropriate sentence, I have borne in mind the agreed narrative and the various factors highlighted by Mr Keen during his plea in mitigation at the diet on 23 September 2014.

Mr Keen informed me that Clydeport takes its responsibilities as Harbour Authority for the Clyde very seriously. On behalf of those involved in Clydeport’s operations he expressed their upset and concern at the tragic events in December 2007 – which involved the girting and the sinking of the combi tug the Flying Phantom. 

Mr Keen emphasised that, in terms of Clydeport’s plea and the agreed narrative, the tragic loss of three lives was 'in consequence of' the breaches of duty committed by Svitzer Marine Limited ('Svitzer') – the owner and operator of the Flying Phantom and the employer of the crew. The words 'in consequence thereof' had been expressly removed from the charge against Clydeport.

It was also a matter of agreement that the 'gob rope' (or bridle) on the Flying Phantom had not been maintained in a tight position, and that the towline had not been disconnected. Subsequent investigations disclosed that the tow release mechanism had a six to eight second delay. Although the Mate, Mr Aitchison, pressed the tow release button, it did not operate to release the tow before the tug girted. The tow line was later found to have snapped.

Mr Keen highlighted differences between the charges and the agreed narratives in the cases against Clydeport and Svitzer respectively. 

On 14 October 2013 Svitzer pled guilty to breaches of the Health and Safety at Work etc Act 1974 involving contraventions of Section 2(1) and Section 33(1)(a). In terms of that indictment it was expressly accepted by the Crown and Svitzer that the Flying Phantom had girted and sunk as a consequence of those breaches of duty by Svitzer. On that basis, on 13 November 2013, Svitzer was fined £1.7 million pounds – discounted from £2 million on account of the plea of guilty.

In contrast, it was a matter of agreement in the narrative in the present case that:

'The charge before the Court relates to failures on the part of Clydeport to adequately assess risks and provide a safe system of work. The present charge is not that Clydeport was the proximate cause of the December 2007 incident by their failures. It is that the Abu Egila and Red Jasmine incidents brought to light these contraventions of section 3(1) of the 1974 Act.' That is the gravamen of the present charge. 

There is little doubt that the introduction of Work Instruction 19/15 ensures a more robust safety regime for those engaged in towage on the Clyde.

I was also informed that a suitable 'Designated Person' has now been appointed by Clydeport.

This was not a case where advice had been tendered to the accused and ignored. Nor were safety regulations flouted for reasons of economy or profit.

I had regard to Scottish Sea Farms Ltd v HMA 2012 SLT 299 (which was also referred to in Dundee Cold Stores and Others v HMA [2012] HCJAC 102) and to the Definitive Guideline issued by the Sentencing Guidelines Council in relation to 'Corporate Manslaughter & Health and Safety Offences Causing Death' – particularly paragraphs A.2(c), B.5, and D.22 to D.25.

As set out in the agreed narrative Clydeport has two previous convictions.  They were in 2000 and 2001, both at sheriff court level, and resulted in fines of £7,500 and £5,000 respectively. Both convictions related to shoreside as opposed to maritime activities.

I was also provided with copies of the Clydeport accounts for the years ending 2011, 2012 and 2013. Mr Keen made it clear that in light of the substantial profits he was not seeking to mitigate or reduce any penalty on financial grounds or inability to pay. He simply sought 28 days to pay.

I was provided with details of the timing of the plea of guilty – which had been foreshadowed by the Crown at a preliminary hearing on 28 August 2014 in relation to an earlier indictment. The plea was agreed shortly before what would otherwise have been a lengthy trial – which was due to commence on 22 September 2014 to run for eight weeks (but may well have lasted 12 weeks). That agreement was reflected in a fresh section 76 indictment, witnesses were cancelled, the narrative was agreed and the plea of guilty was formally tendered on 23 September 2014. I propose to modify my sentence to make an appropriate allowance for Clydeport’s plea of guilty – which the Crown agreed had utilitarian benefit.

In short, I have taken into account everything that was said by Mr Keen by way of mitigation on behalf of Clydeport and in relation to discount.

However, there are other factors that I require to take into account as well.

The fact remains that Clydeport has accepted responsibility for a serious contravention of Section 3(1) and Section 33(1)(a) of the Health and Safety at Work etc Act 1974 – all as set out in the indictment and in the agreed narrative.

I do not propose to rehearse the full terms of the indictment, as amended.  It extends to 4 pages. Suffice it to say that inter alia:

  • Clydeport’s offending took place between 29 December 2000 and 19 December 2007 both dates inclusive. That covered a lengthy period of time extending to almost seven years. That period started in 2000 with the Abu Egila incident – 'a serious incident' in terms of the agreed narrative. It ended in 2007 with the Red Jasmine incident. 
  • The capacity in which Clydeport offended is set out on page 1 of the indictment. Clydeport was Statutory Harbour Authority and Competent Harbour Authority for the Clyde Harbour Area. As Mr Keen pointed out, the Clyde is an important waterway of national significance. Clydeport are correct to take its responsibilities as Harbour Authority for the Clyde very seriously.
  • 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 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 were aware of the various matters set out in paragraphs (i), (ii) and (iii) on page 2 of the indictment. In general terms Clydeport knew, inter alia:

(i) that on 29 December 2000, during the hours of darkness and in fog, the Abu Egila collided with the Flying Phantom when it was engaged as lead or bow tug - to the danger of the lives of the crew of the tug which was severely damaged;

(ii) that (as a result of investigations and reports into the Abu Egila incident) there were risks of grounding, girting and collision in darkness and conditions of restricted visibility, that manoeuvring in dense fog was extremely hazardous especially for the lead tug, and that the risk was increased when in a long narrow channel such as that present on the River Clyde east of Number 1 buoy; and

(iii) the 'Clydeport Estuary Control Pilotage Directions and Guidelines'.

The charge against Clydeport continues (reading short from pages 3 and 4 of the indictment) along the following lines:

'… during said period of time at said places of business and within the Clyde Harbour Area you CLYDEPORT OPERATIONS LIMITED did fail to conduct your undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in your employment who may be affected thereby were not thereby exposed to risks to their health or safety, including persons not employed by you and serving as crew of tugs and in particular those persons serving as crew of lead or bow tugs engaged in acts of towage within the Clyde Harbour Area east of the Number 1 buoy and including the crew of the Flying Phantom namely Stephen Humphreys, Master, now deceased, Eric Joseph Blackley, General Rating, now deceased, Robert Cameron, Engineer, now deceased and Brian Aitchison, Mate, all persons not in your employment and then engaged in an act of towage within the Clyde Harbour Area east of the Number 1 buoy on 19 December 2007, in respect that during said period of time, you CLYDEPORT OPERATIONS LIMITED did:-

(a) fail to make a suitable and sufficient assessment of the risks to the health and safety of persons not in your employment but who may be affected by the conduct of your undertaking including those persons serving as crew of tugs and in particular …. [as detailed in paragraphs (a) of the indictment];

(b) you did fail to provide a safe system of work … [as detailed in paragraph (b) of the indictment] in that:-

(i) you 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 … [as detailed in sub-paragraph (i)];

(ii) you 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 you as the duty holder with independent assurance that your Safety Management System was working effectively and to audit your compliance with the Port Marine Safety Code … [as detailed in sub-paragraph (ii)];

and on 19 December 2007 at an area of the River Clyde near the confluence of the River Clyde with the River Cart and the River Gryffe at Clydebank being within the Clyde Harbour Area, the Flying Phantom, a combi tug was engaged as the lead or bow tug in an act of towage of a vessel known as the Red Jasmine, with a length overall of 224.94 metres and a draft of 8.6 metres, in darkness and conditions of restricted visibility due to fog when the occurrence and density of fog restricted visibility to less than 0.25 nautical miles and to the extent that the crew of the Flying Phantom could not see the Red Jasmine then under tow, and the Flying Phantom was overtaken and girted by the Red Jasmine and sank and the said Stephen Humphreys, Eric Blackley and Robert Cameron were drowned and the said Brian Aitchison was exposed to risks to his health or safety: 

CONTRARY to Sections 3(1) and Section 33(1)(a) of the Health and Safety at Work etc. Act 1974.'

Turning to the agreed narrative, I do not propose to rehearse its detailed terms. It extends to some 43 pages and it was read out in full on 23 September 2014. Suffice it to say, inter alia, that:

  • In spite of the reports and collaborative meetings mentioned in the agreed narrative, the manner in which towing operations were planned and carried out changed very little following the Abu Egila incident.
  • 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 – as they now are in Work Instruction WI 19/15; and
  • 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.

These are serious failures viewed individually and cumulatively.

Against that background, I turn now to the question of sentence.

I appreciate that there is nothing that I can do, or say, in this court that can compensate for the tragic deaths of the late Stephen Humphreys, Robert Cameron, and Eric Blackley – or for the ordeal suffered by Brian Aitchison. 

For present purposes, I require to select a sentence in relation to the single charge before me having regard to the whole circumstances of this particular indictment and this particular agreed narrative – and I shall do so. 

Health and safety offences embrace a wide level of culpability – from the minimal to the very grave.

On the basis of the plea tendered and accepted, the proximate cause of the loss of life was the offending of Svitzer and I require to proceed on that basis.

Although Clydeport has two previous convictions they relate to shoreside as opposed to maritime activities.

I have borne in mind everything said by Mr Keen in mitigation.

However, I also have to bear in mind that Clydeport has committed a serious offence over a substantial period of time. It began with the Abu Egila incident in 2000 and it ended with the Red Jasmine incident in 2007 – all as set out above and in greater detail in the current indictment and the agreed narrative.

The court requires to mark the seriousness of that offending by imposing a substantial fine on Clydeport – albeit a fine which falls to be significantly lower than the one imposed on Svitzer who accepted responsibility for causing three fatalities.

In the whole circumstances of this particular case, and taking into account everything that was said to me by counsel on 23 September 2014, the sentence of the court is a FINE in the sum of SIX HUNDRED AND FIFTY THOUSAND POUNDS (£650,000) STERLING.

That fine will be payable to the Sheriff Clerk of Glasgow and Strathkelvin at GLASGOW.

I shall allow 28 days for payment. 

I should add that if Clydeport had not accepted their responsibility, by tendering its plea of guilty as and when it did, the fine would have been in the order of SEVEN HUNDRED AND FIFTY THOUSAND POUNDS (£750,000) STERLING.

That is all.”

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