Tail failure and mooring incidents are all too common: but how best to deal with the legal ramifications and subsequent investigations?
In a recent Riviera Maritime Media webinar, Tanker mooring: the trouble with tails, two aspects of the consequences of a failure of a mooring rope were examined. Hill Dickinson LLP’s partner and Master Mariner, Ian MacLean covered the legal aspects, and UK Marine Accident Investigation Branch (MAIB) inspector of marine accidents, Howard Flegg described lessons learnt.
Following a tail failure, what are the legal challenges faced by crew and shipowner? Mr MacLean’s first piece of advice was: “If possible, and this will be surprising coming from a lawyer, we do not suggest that people actually go to court, but rather do the best to negotiate a settlement.”
This will involve collecting evidence and looking at two aspects: the duty of care and the exercise of due diligence.
“In the case of an accident where personal are injured, we would be looking at the duty of care,” said Mr MacLean. “Have we got procedures in place to prevent that accident from happening? In the context of contractual relationship – seaworthiness the vessel – we are looking at the exercise of due diligence.”
“When things go wrong, they can go wrong pretty badly”
In both instances, this would be examined from the point of view of what a qualified individual who was responsible for the safety would have done at the time. The investigation can take several different forms:
Mr MacLean advised that it is important to know which role the HSE plays in a particular investigation. Under section 20 of the act governing the HSE, it is a criminal offence not to answer HSE questions. “But the trade-off for that is that it would not be admissible in proceedings against you,” he said. He added it is important to establish this as part of the preparation for the HSE interview and that you can say that you will only answer questions under Section 20.
The coroner’s role concerns any body that is brought into the UK. That includes those that died in international waters. The coroner’s investigation ahead of the inquest is usually conducted by the police.
Prosecutions are brought by the police, the MCA, and in some instances, the port authority. The flag has a role in ascertaining what went wrong. “The P&I club will probably send someone like me on board for a major incident, because I will be collecting evidence in order to defend claims or advanced claims against other parties,” said Mr MacLean.
Lastly, there may be insurance against loss of hire, and an investigator will board the ship to investigate that aspect.
“A line snapping back can achieve half the speed of sound and is unlikely to be seen by those who are injured”
The likely claims run from personal injury, damage to shore infrastructure, pollution, cargo claims and liabilities under charterparties, to name a few.
“Generally, in a contract, you have six years to make a claim, but the contract can vary that period,” warned Mr MacLean. In the case of some oil majors, the time period to present a claim is limited to 90 days by a clause in the charter party, which, Mr MacLean said, was a very short time to gather the necessary documents and evidence.
The documents and evidence required in respect of the tails includes the Safety Management System (SMS) requirements. Evidence will be required to show crew competency in the use of winches, including training, certificates and original supply documentation.
Other vital evidence includes the inspection of tails and a record of use and contemporaneous documentation from the actual operation, class reports, damage reports and any self-drafted statements by crew and consulting expert reports.
Mr MacLean added that a consulting expert report is normally privileged, but under a 90-day rule, the court will expect that to be made available to all.
He noted that 90 days is not a long time to gather all the possible sources of evidence, such as an SMS review, documents from the vessel, safe berth review, AIS data (did the wake from a passing vessel cause the tail to part), transcribe the VDR and instruct experts.
The role of Marine Accident Investigation Branch (MAIB) is to help improve the safety of life at sea. It undertakes investigations of marine accidents and publishes the results, helping satisfy the general public and the maritime community that accidents are properly investigated, with the aim of preventing similar accidents.
MAIB also takes in international events with specific aims. For example, after the publication of a relatively recent gas carrier moving line failure report, MAIB undertook discussions at IMO on improving the design of moving decks to reduce crew injuries from moving line and tail failures.
MAIB’s Mr Flegg discussed issues concerning the use and maintenance of mooring ropes.
“If we look at the materials for various mooring lines and tails, we can see a wide difference in elongation properties between them,” he said. He added that the older, more traditional synthetic materials have higher elongation properties than steel wire ropes and the relatively newer high modulus materials.
The key issue he said, was that using a low elongation mooring line usually means using a high elongation tail to manage the dynamic forces. “As the mooring line has little in the way of stretch, the tail provides an important role,” he said. He added that the weight of wire-based ropes produces a catenary effect and provides some damping. High modulus materials are lighter and act like a rigid bar with little dampening, which produces a higher requirement on the tails.
Have you experienced mooring line/tail failure and snapback on your ship/s?
MAIB has found that complex high modulus materials have not previously been well understood. “More complex materials require consideration of the mooring arrangement, such as the deck layout and the deck fittings,” said Mr Flegg.
“Getting the right combination of low elongation mooring line and high elongation tail is important,” he added.
There is a considerable amount of energy stored in the combination of mooring line and tail in keeping a vessel on the berth. The sudden release of energy by the mooring line or tail can cause snapback to occur. “This is when vessel crew or shore personnel can be injured or even killed,” he said. “A line snapping back can achieve half the speed of sound and is unlikely to be seen by those who are injured,” he added.
He warned against the myth that a low elongation mooring line will not snap back. Such a mooring line is likely to be paired with a high elongation tail and should this part, it would transfer the energy to the line.
Mr Flegg observed that as vessels become larger and locations change, the number and length of mooring lines has increased. “11 m-, 22 m- and even 33 m-long tails are in use,” he said, and this influences the amount of stored energy in the mooring arrangement.
Should a line part, the longer tails increase the variability of where the line will snapback and the distance and route it can travel. Maintaining an equal load on 20 lines is difficult and increases the risk of overload. When one line parts the load is transferred to the remaining lines and tails, increasing the stored energy in those lines.
“Without tension monitoring of the line loads, the other lines can follow, like a zip unzipping,” said Mr Flegg.
Another issue is the increased danger that occurs with complex moving decks which are more prevalent these days. More often, lines are criss-crossing the deck and going around deck-fittings. “The mooring deck can be a dangerous place to be for the crew,” said Mr Flegg. “The snapback of a failed mooring line has been found to travel considerably beyond the danger zone marked on the deck.” He added: “The code of safe working practices has now been amended to include the whole of the mooring deck as being within the snapback zone.”
If your ship/company operates with a line management plan, do you believe it effectively minimises crew injury on the mooring deck?
Hill Dickinson’s Mr MacLean said: “Be aware that when there is an incident, be very careful about documents: emails sent to the owner, to the charterer or to the terminal. All of those in the context of a civil case will have to be disclosed to the opponents. Take advice from your company, from your legal advisors, from your P&L club, before sending anything. That would be my first point.”
His second point is that keeping good records onboard the ship shows the court there is due diligence and a duty of care. “My experience as a lawyer is actually the records on board do more to protect the vessel than they do to harm it,” he said.
His third point relates to the forms Port State Control or a port authority might present to the Captain after an incident. These might ask, ‘Why did the accident happen?’ or ‘What are your recommendations to prevent recurrence?’. “My recommended answer to both of those questions is “under investigation”, he said.
He added: “I have never, in 20 years of casualty investigation, seen a port or a flag come back and say the words ‘under investigation’ are not enough. The danger is, if you put an answer in there, that will be disclosed to your opponents. They will see what it was the Master thought was the problem. If it turns out to be something completely different, that particular Master can expect to have a very tricky time in the witness box when he is being cross examined by opposing counsel.”
Mr Flegg’s takeaway was to always treat incidents seriously: “When things do go wrong, they can go wrong pretty badly,” he said. He noted that understanding why a line failed, even if there were no consequences, is important.