THE KINGFISHER TRAGEDY AND THE ROLE OF MARINE COURTS OF ENQUIRY
The Kingfisher was a wooden squid fishing vessel based in Port Elizabeth. The vessel capsized and sank in rough seas brought on by heavy weather on 22 December 2008. Of the 19 crew, only five including the captain survived. The Minister of Transport convened what is called a ‘court of marine enquiry’ to investigate the circumstances of the loss of the vessel. The judgment of the court of marine enquiry was published on 23 January 2017 and raises several concerns about the manner in which courts of marine enquiry are convened and their lack of power to mete out punishment or order compensation to victims or their surviving families.
Shortly after the incident, a preliminary enquiry (which is usually an immediate investigation and often a pre-cursor to a court of marine enquiry) was held where statements were taken and interviews conducted. The report was submitted and the recommendation was that a court of marine enquiry be convened as a matter of urgency.
The legislation enabling courts of marine enquiry is contained in the Merchant Shipping Act and the concomitant regulations were promulgated in 1961. A court of marine enquiry is generally convened where there has been a major casualty and if the Minister of Transport considers that a deeper investigation is necessary and in the public interest.
Considering the huge loss of life on the Kingfisher, one would have thought that urgency would have been a primary factor. However, the court was eventually only convened for the first time on 28 September 2015 and, after three hearings over a period of time, only completed its deliberations on 7 April 2016. In the interim period since the incident had occurred, it seems inevitable that memories would have faded and the families of those who perished were left without answers as to cause of the tragedy.
A court of marine enquiry has no jurisdiction to impose criminal sanctions or to award civil damages. It does have the power to impose an administrative fine not exceeding R 2000 on a master or crew member, but that does not have the effect of a criminal conviction. It can also in certain circumstances suspend or cancel the certificate of competency of a South African captain or crew member of a vessel involved in the incident concerned.
The court found that the Kingfisher was in possession of valid certificates issued by the South African Maritime Safety Authority (“SAMSA”) – these included safe manning and a general safety certificate. The vessel was also found to be seaworthy. Further, the planking, anchor and life-raft were found to be in working order. In addition, the crew underwent training at a SAMSA accredited institution. (It might be worth adding at this point that SAMSA was established on the 1st April 1998 under the SAMSA Act 5 of 1998 and that their primary mandate is to ensure the safety of life and property at sea.)
On the date of the incident, severe weather warnings were issued warning of gale force winds and expected wave heights in excess of 5 metres. Despite the warnings, the captain threw anchor in order to mark a squid nest. The court found that the vessel should not have anchored and that his duty was to heed the weather warnings and head for safe waters. The court found further that the captain ought to have ensured that all doors on the vessel were closed and that the vessel was indeed watertight when leaving the area. Finally, once the vessel found itself in distress, the mayday call was not complete or adequate in the circumstances.
While the court does not have the power to exercise criminal sanctions over a seafarer, it does have unlimited powers to make recommendations to the Director – General of the Ministry of Transport with the aim of preventing a recurrence of such an incident.
Apart from the tragic loss of life, the grieving families also endured severe financial hardship as a result of losing their breadwinners. The Merchant Shipping Act (Seafarer Compensation) Regulations of 1998 provides for very modest compensation for loss of a fisherman’s property in the event of a seaman losing his life. The definition of seaman would also appear to exclude most of the crew of a fishing vessel. While the court did not have the power to order that financial compensation be paid to the dependants of the crew, they did recommend a system of compulsory insurance for crew to provide for life and personal injury insurance. That said, the draft Merchant Shipping Accident Insurance Regulations of 2005 sought to remedy this gap in the law but the regulations for some or other reason are not yet in force. The court also recommended that ex gratia payments be made to the dependants from the Maritime Fund administered by SAMSA.
In a move to be emulated and applauded, the court recommended that the Ministry of Transport “…considers the provision of psychological, psychiatric or other professional mental health support for surviving families and victims of maritime casualties. It is rather sad that the families and victims impacted by the sinking of the Kingfisher did not enjoy any such assistance”.
The other issue to be bemoaned is that, despite SAMSA attending to the report of the preliminary enquiry very soon after the casualty and recommending the convening of a court of enquiry as a matter of urgency, there was an unexplained delay of six and a half years. (This is an unfortunate pattern which had occurred in several prior courts of marine enquiry.) Consequently, the court recommended that start and end dates for casualty investigations be legislated to ensure the timeous investigation of casualties.
Other recommendations made by the court included the review of the role and conduct of SAMSA in preliminary maritime investigations and casualties, that the provision of legal representation to seafarers subjected to maritime investigations be facilitated, that the training of crew members be improved and that SAMSA emphasizes the need to heed weather warnings.
The court is to be commended on a reasoned judgment, demonstrating due regard to the families of those who perished and in formulating recommendations aimed at preventing another tragedy. It is to be hoped that the powers that be in government take heed of the recommendations and act swiftly to ensure that the relevant laws are in place as soon as possible.
In passing, I mention that SAMSA has for some years been exploring other possible changes to the legislation to streamline and make the proceedings of courts of marine enquiries more effective, but to date their initiatives have unfortunately not borne any fruit. It is our hope that the Kingfisher judgment will facilitate meaningful change in such enquiries.
Article by Anisa Govender, senior associate in our Shipping Practice.