No. 04-02: Master`s Responsibility for Safety of Surveyors

Loss Prevention Circular No. 04-02
Master's Responsibility for Safety of Surveyors

Introduction

A recent judgment of the High Court of the Hong Kong Special Administrative Region highlighted the responsibility of Masters for the safety of surveyors boarding their vessel. The dangers of entering enclosed spaces have previously been highlighted in Gard News 154 and in the Gard Guidance to Masters, paragraph 2.8.5.7 (see the Guidance to Masters on the Gard Services website at www.gard.no).  Nevertheless, surveyors can be at risk whilst performing surveys aboard ship and every effort should be made to prevent their injury or death. This circular highlights this and particular steps that should be taken by a Master to protect surveyors.  A more detailed report of this case and associated decision will appear in Gard News 167.

The course of events

A bulk carrier entered with an International Group P&I Club (not Assuranceforeningen Gard) called at the port of Chiwan, China in 1997 to discharge a cargo of bulk soyabeans.  The shipowners appointed a survey company (‘the Survey Company’) to check the condition, quality and quantity of the cargo and the seals of the holds, for the purpose of protecting them against possible claims by the cargo owners for damage or short delivery.  The Survey Company was based in Hong Kong and one of their marine surveyors (‘the Surveyor’) attended on board during afternoon following the vessel’s arrival.  The Master offered him the assistance of the vessel's Chief Officer to carry out his inspection but the Surveyor advised that this was not necessary and that he only needed the help of an Assistant Bosun.  The Master therefore delegated the duty AB to accompany the Surveyor.

The hatch covers of the No 1 hold were opened and the Surveyor was observed taking photographs of the cargo inside the hold from the deck.   The hatch covers of the No 1 hold were then closed.  The hatch covers of the Nos 2 and 3 holds were opened and the Surveyor was observed taking photographs of the cargo inside these holds from the deck.  Following this inspection the hatch covers of these holds were left open.  The duty AB then advised the Master by portable radio that he and the Surveyor would be taking samples from the forward holds.  There were no witnesses to what transpired thereafter. 

At 4:00 pm that afternoon there was a change of watch with the Chief Officer and a different AB taking over.  Some 20 minutes later the Chief Officer advised the Master that the relieving AB had not been able to locate the duty AB when taking over the watch.  The Master ordered the crew to search for the Surveyor and the duty AB.  Shortly thereafter the Surveyor and the duty AB were observed lying at the foot of the ladder leading to the access hatch of the No 1 hold.  Both of them had died as a result of oxygen depletion.

The judgment on this case

Following the accident, the administrators of the estate of the Surveyor instituted proceedings in the High Court of the Hong Kong Special Administrative Region against the Survey Company, as the employers of the Surveyor, for breach of the contract of employment and negligence and against the shipowners and bareboat charterers of the vessel ('the Shipowners') for breach of statutory duty under the Occupiers' Liability Ordinance and negligence.  The Shipowners before trial settled the claim of the administrators and the judgment was concerned only with the apportionment of liability between the Survey Company as employers, the Surveyor (contributory negligence) and the Shipowners.

Although there was no direct evidence of this, the assumption was that the Surveyor had requested the duty AB to go down into No 1 hold first in order to obtain samples and that, after the duty AB had collapsed due to oxygen depletion, the Surveyor had followed the duty AB into the hold and suffered a similar fate.  It is unlikely that the Surveyor was the first one to enter the hold as, if he had done so and had collapsed, the duty AB, who was in possession of a portable radio, would most probably have reported the incident to the bridge.

The evidence was that the Surveyor had 14 years experience at sea followed by 6 years working as a marine surveyor for the Survey Company.  He held a number of Certificates of Competency, including a Certificate of Competency as Chief Officer and a transitional Certificate of Competency as Master.  The latter document was issued by Panama and most of the other documents were issued by Liberia.  No evidence was produced of the examinations sat and passed by the Surveyor to obtain these Certificates of Competency.  The evidence of the Survey Company was that the Surveyor had carried out numerous surveys on their behalf based on which they were satisfied as to his competence.

The court found that it was not sufficient merely for the Survey Company to rely on the Certificates of Competency produced by the Surveyor as evidence of training.  They should have done more to ensure that he was kept up to date with information about dangers on board ship, was fully aware of such dangers and knew how to deal with them.

As for the Surveyor himself, the court found that he must have been aware of the dangers of entering enclosed spaces, particularly when dealing with cargoes such as soyabeans that cause oxygen depletion, and he was therefore to some extent the author of his own misfortune.  Notwithstanding these findings against both the Survey Company and the Surveyor, the court apportioned their degree of blame for the accident at only 30 per cent and 20 per cent respectively.

A harsher criterion was applied to the conduct of the Master who was found to be 50 per cent to blame.  The court started from the premise that the Master is in overall charge of the vessel and responsible for the safety of all persons on board, including lawful visitors.  The relevant safety codes provided for a planned entry into any enclosed space with a competent officer or other person appointed specifically for that operation.  There was no such operation planned in this case. The fact that the Master had offered the services of the Chief Officer whose presence might have avoided the accident, and that the Surveyor rejected this offer, did not detract from the overriding responsibility of the Master.

The most important finding of the court was on the question of whether the Master was entitled to assume that the Surveyor was qualified and competent to carry out the tasks expected of him and to follow safety procedures, in particular those relating to entry into enclosed spaces.  The court held that the Master was not in possession of sufficient information to make a decision about the ability of the Surveyor to deal with any dangerous situation that might arise.  The Master could make no assumptions in this respect.

This judgment confirms the general trend of courts everywhere to impose more responsibility on the Master.  Shipowners and Masters should be guided accordingly.

Recommendations

It s clearly impractical for the Master to check the qualifications and training of every surveyor who comes on board his vessel and satisfy himself that the surveyor is competent to carry out the tasks expected and follow safety procedures.  The Master should make no assumptions about the qualifications and training of a surveyor no matter how experienced a surveyor may appear or claim to be.  In some cases he may not even hold the qualification claimed.  Therefore:

1. whenever possible, the Master should insist on surveyors being accompanied at all times by a deck or engine room officer, depending on the type of survey.
2. before commencement of the survey, the scope of the survey and a plan to deal with any potentially dangerous situations, such as entering enclosed spaces, should be agreed with the surveyor and the appropriate safety equipment provided.

Whilst shipowners have no control over the choice of surveyors appointed by charterers, cargo interests and other third parties to attend on board their vessel, the same is not true of surveyors appointed by the P&I Club, the hull & machinery insurers or their correspondents.  Therefore, it is recommended that:

3. before selecting a survey company to perform work on behalf of Members or insureds, correspondents should ascertain from that survey company not only the qualifications and experience of their staff but also what ongoing in-service safety training is provided.
4. the safety culture of a survey company should be one of the criteria applied by correspondents in deciding which survey company to appoint.  It is not sufficient merely that surveyors have in the past undergone training as such matters need constant reminders.  It should be requested of the correspondent to ascertain this information from survey companies.