RITCHIE AND OTHERS v. THE UNITED KINGDOM
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The 16 applicants are the widows and children of seven fishermen who died at sea in 1974 whilst fishing in Scottish waters in their trawler called the Trident. A list of the applicants is set out in the attached appendix. 2 3. The Trident was built in 1971-3 and handed over to its owners, Mr David Tait and Mr Alexander Ritchie (the latter of whom died in the accident), on 31 March 1973. The construction of the ship was financed by a loan from the White Fish Authority, a public authority established to reorganise, develop and regulate the white fish industry. Although the contract required that the Trident should meet the stability standards recommended by the Inter-Governmental Maritime Consultative Organisation (IMCO) and that on completion it should undergo an inclining test to establish this, no such test was carried out. 4. From 31 March 1973 onwards, the Trident was engaged in group fishing in all weathers off Scotland. Later in 1973 the captain of another trawler, the Silver Lining, which had been built by the same firm with a similar, but not identical, design to the Trident, reported his concerns about the “rolling” motion of his vessel to the White Fish Authority. He was issued with a stability booklet by the White Fish Authority advising that further ballast be used to improve stability, as was the captain of the Trident. 5. On 3 October 1974 Trident disappeared without having given any distress signal. An exhaustive search was carried out of the area where, based on the last radio contact, it was assumed that it had run into trouble, but no trace of the crew or any wreckage, save for a quantity of fish boxes and a few other loose articles, were found. 6. Following the loss of the Trident, the Silver Lining was withdrawn from service and given a stability test. It was found to be fractionally below the minimum stability recommendations and modifications were made to its structure before it was returned to fishing. 7. A formal investigation under the Merchant Shipping Act 1894 into the loss of the Trident was held by a sheriff and two assessors in June 1975, with the report published on 12 September 1975. The Department of Trade; the White Fish Authority, the liquidator of the company which had built the Trident, the ship’s designer, Mr Tait (the part-owner), and the personal representatives of Mr Ritchie and the other deceased crew members were parties to the investigation and legally represented. The court proceeded on the basis that the Trident had been lost in an area where, at the time in question, there had been no significant weather problems. It concluded that the lack of any distress call indicated that the Trident must have foundered suddenly, probably as a result of a large and unexpected wave depositing a heavy weight of water on deck. The inquiry considered whether any other factor might have contributed to the casualty and identified inadequate stability as the only likely cause. Evidence was taken from the parties and other witnesses, including experts, based on what was known about the stability of the Trident’s sister ship (the Silver Lining) and of hypotheses about the amount of fuel and ballast likely to have been carried by the Trident at the time of the accident. Having reviewed all the evidence, the court reached the conclusion that: “reliance cannot be placed on the soundness of the design of the Trident; that she was probably of inadequate stability; that the last radio conversations with her indicated that in her then state of loading and in the prevailing weather conditions, her deficiencies were showing up markedly; that in all the circumstances it would be unrealistic to conclude that her loss was due solely to the action of the sea; and finally, that inadequate stability is the factor most likely to underlie her foundering in conditions which would not normally have overwhelmed a ship of her size. In the course of the Inquiry, attempts were made to suggest that one or others of the parties should be held responsible for the loss of Trident. None of these cases was established. In particular, the Court is entirely satisfied that no case was made out against Mr Tait, part owner of the vessel. His experience of Trident at sea gave him no reason to suppose her at risk ... An attack was also made on the White Fish Authority, but this was based on an erroneous view of their interest and function (no doubt encouraged by the terms of their letters). Lastly, the builders ... were criticised for their failure to carry out an inclining test. While this undoubtedly led to great difficulty at the Inquiry in investigating the characteristics of Trident, no attempt was made in evidence to show that at the time in question it, or any aspect of the design of Trident, involved ‘wrongful neglect’. The Court cannot embark on this subject without evidence. The problem of standards of stability of trawlers generally is under active consideration and it is understood that the design of Trident and Silver Lining will be the subject of detailed tests. This Inquiry can contribute nothing new to these studies.” 8. On receiving the results of the formal investigation the applicants took legal advice as to whether it would be possible to bring civil proceedings for damages for negligence against any person. In 1977 the son of one of the crew members who died on the Trident applied for legal aid to bring a case against the Department of Trade, but his application was refused. 9. As part of the investigation into the loss of the Trident, the National Maritime Institute (NMI) was requested by the Department of Trade to carry out experiments with models in an effort to discover whether there were any obvious hydrodynamic reasons for the casualty. The experiments were carried out in a water tank with a wave-maker using two model boats, one of which was similar in design to the Trident and the other of which was different in that it had a round stern. The results of the tests were published in the NMI report, dated 22 October 1976. It found that once circling manoeuvres were attempted in breaking waves of modest severity, the model similar to the Trident was immediately at risk of capsize whereas the comparison model did not capsize. The report concluded that the Trident-type vessel had insufficient stability at rest and that even boats of this type constructed to comply with the IMCO minimum standards (see paragraph 3 above) were at risk of capsize. The applicants were not made aware of the NMI report at the time it was published. 10. In June 2001 amateur divers found the Trident intact on the seabed. The Marine Accident Investigation Branch of the Department of Transport commissioned a video survey by a remotely operated vehicle. The survey was completed early in August 2001. 11. On 28 March 2002 the Secretary of State ordered a rehearing of the formal investigation into the loss of the Trident, as required under section 269(1) of the Merchant Shipping Act 1995 where new and important evidence which could not be produced at the original investigation was discovered. The applicants were invited to become parties to the investigation and the Department of Transport agreed to make public funds available to cover their reasonable and necessarily incurred legal costs and expenses, including representation by solicitors and counsel, and by a QC from February 2010. A preliminary hearing at Aberdeen Sheriff Court was held in 2002 and a Joint Panel of Experts (JPE) appointed to assist the court. The JPE consisted of independent technical experts appointed by the Advocate General for Scotland and others appointed by the persons who had indicated their intention to appear as parties to the investigation, namely Mr Tait, the Trident’s designer, the Seafish Industry Authority (which had taken over the responsibilities of the White Fish Authority) and the applicants. 12. For the purposes of the investigation, a detailed underwater survey was undertaken in June 2006, which involved cutting open some parts of the wreck. The applicants had requested that the Trident be lifted so as to enable an inclining test for stability to be carried out, to preserve the evidence and to recover the remains of the crew, but the request was refused by the Department of Transport. It was planned to use a video camera mounted on a remotely operated vehicle to film inside the wreck, but problems with the equipment rendered this impossible, with the result that no information was obtained as to the settings of the various controls on board or the existence and position of any human remains. In addition to the underwater survey, an independent expert report on the wind and sea conditions operative at the site of the wreck on the day in question was prepared and the Maritime Research Institute in the Netherlands was asked to carry out physical scale model tank tests and computer simulations to attempt to determine what caused the ship to capsize. 13. A first draft of the JPE report was submitted on 14 May 2009 and a final draft was agreed by the JPE on 4 September 2009. The expert instructed by the applicants disagreed with some of the JPE’s findings and filed a separate report. 14. A copy of the NMI report (see paragraph 9 above), which had not previously been provided to the families of the Trident’s crew, was sent to the applicants’ solicitor on 13 May 2004. Further copies were provided to the JPE in 2006 and lodged by the Advocate General for Scotland as part of the court file in September 2009. Also in September 2009, the applicants lodged their written submission, in which they alleged that the Trident was built in breach of IMCO recommendations on stability and that an inclining test which would have discovered this was not undertaken (see paragraph 3 above). The applicants further alleged that the Trident’s designer, its partowner and the White Fish Authority were at fault. 15. The substantive court hearing commenced on 19 October 2009 before the Sheriff Principal of Grampian, Highland and Islands and two assessors with backgrounds in the fishing industry. The investigation sat for a total of 55 days over four sessions, with the final session taking place on 14 July 2010. Following the first session, the applicants changed their legal representatives. The NMI report came to the attention of the applicants themselves for the first time when one of them saw it in the internet file of material for the reopened formal investigation shortly before the start of the third session on 25 May 2010. On that date, the applicants challenged the view taken by their legal representatives that the NMI report was unimportant and did not need to be brought to the court’s attention. The applicants’ counsel then withdrew from the case and the applicants addressed the court directly. They expressed the view that the NMI report provided the complete answer as to why the Trident sank and that the reopened formal investigation had, in consequence, been a waste of time and money. The applicants then withdrew from the hearing. They subsequently lodged a letter with the court, urging the sheriff principal to take the NMI report into account and to find that the Trident had capsized because of a structural lack of stability. 16. In June 2010 the applicants lodged a freedom of information request with the Department of Trade and discovered that the first draft of the NMI report, together with a file of data used to prepare it, entitled “intact stability in relation to the Trident”, had been destroyed in February 2005 as part of a routine exercise to dispose of old documents. 17. The report of the rehearing of the formal investigation was published on 21 February 2011. The sheriff observed that the position of the wreck showed that the Trident was lost some eleven nautical miles south-east of the position estimated at the original formal investigation, and nearly an hour later. The prevailing sea and wind conditions were, therefore, different from what had previously been assumed; in particular, the evidence suggested that the waves were much higher. During the tank tests, the model designed to replicate the Trident capsized suddenly on a number of occasions when it encountered a deep trough followed by a large wave. Both the tank tests and the computer simulations indicated that the Trident had “specific seakeeping characteristics” that resulted in a measurable and significant probability of capsize in the prevailing weather conditions. 18. Based on the JPE report and the evidence taken during the hearing, the sheriff took the view that the Trident had complied with most, but not all, of the IMCO stability criteria (see paragraph 2 above). In any event, even if it had fully complied with these criteria, this would not have affected the outcome. In particular, in order to counteract the strong capsizing forces, a righting mechanism far greater than that required for compliance with the IMCO recommendations would have been needed. What had happened to the Trident on the day of her loss was not reasonably foreseeable to anyone in the light of the knowledge and understanding of the construction of seagoing vessels available at the time and still was not fully understood. The accident could not be attributed to the fault or omission of any person. The sheriff added that, while he could understand the disappointment of the family members who might have expected the JPE to identify precisely what it was about the Trident that caused her to capsize, he could also understand why the JPE did not embark on such a study, given that “even now the precise considerations that bear upon the dynamic stability of a vessel at sea appear not to be fully understood, and much high level research needs to be done before this gap in understanding can be filled”. 19. The sheriff observed that, in the course of preparing his written reasons, he had noticed that the figures used by the NMI report and the JPE respectively, in relation to the Trident’s metacentric height (the measurement of the initial static stability of a floating body), were significantly different and that he could not find any explanation for this. He then continued by expressing the view that NMI report was of no assistance in explaining the loss of the Trident, since the manner in which the waves were generated in the NMI tank test was crude and haphazard in comparison with the methodology used in the tests carried out under the oversight of the JPE and since the NMI’s conclusions were based on visual observations rather than precise measurements. Finally, the tests carried out for the rehearing of the formal investigation were designed to mirror exactly the conditions which obtained when the Trident was lost, including in particular the sea state, the vessel’s loading condition, speed and course relative to the direction of the waves. By contrast, in the NMI tests the vessel was seen capsizing several times when carrying out circling manoeuvres, which was not what the Trident was doing when it was lost. 20. The Merchant Shipping Act 1995 did not provide for any appeal against the sheriff’s findings. 21. In 2011 the applicants approached a number of solicitors to ask whether they would be prepared to act for them on a no-win no-fee basis in a civil claim against the persons they considered at fault for the capsize of the Trident (see paragraph 14 above). None of the solicitors approached by the families were prepared to take on the case. 22. The applicants sought legal advice as regards grounds of challenge by way of judicial review in respect of the proceedings before the sheriff and his findings. In advice dated 28 February 2011, senior counsel concluded that it might be possible to found an argument based on the absence of material evidence before the sheriff and the absence of opportunity for the applicants properly to present their case as a result of failures by their legal team, but underlined that he needed more information about the underlying facts before he could give a more definite assessment. Additional advice was sought. The counsel instructed on this occasion expressed the view that it might be possible to challenge the rehearing of the formal investigation on the ground that the sheriff did not give adequate reasons for his conclusions. She identified two issues, the absence of an incline test on completion of the Trident and the fact that the NMI and JPE reports used different measurements of metacentric height to calculate the initial static stability of the Trident, as relevant considerations which the sheriff should have addressed. Counsel concluded, however, that “it may well be that the relevant court may not find these matters sufficiently persuasive to grant a review”. 23. In May 2011 the first applicant sought legal aid to bring an application for judicial review of the findings of the investigation. This application was refused on 25 July 2011 on the ground that counsel’s opinion did not adequately address the issue of prospects of success or the practical benefit to the applicant in seeking judicial review. The applicant appealed against this decision in September 2011. Her application was again refused on 22 December 2011, on the following grounds: “The test of reasonableness is not met. The letter from the Office of the Solicitor to the Advocate General for Scotland dated 30 June 2011 advises that the total cost of the investigative process and the re-hearing of the formal investigation including the legal and technical costs of all the parties throughout the process of the joint panel of experts and during the course of the re-hearing of the formal investigation cost approximately £6m all funded by the Department of Transport. It is not known what the position is likely to be in relation to further costs in the event of the judicial review being successful and the matter being referred back for further investigation and reporting. It is not known whether funding will be made available to the applicant. The legal costs of a judicial review are not insubstantial. £30,000 has been mentioned by the applicant’s solicitors. It is not satisfactorily demonstrated that a privately funded person of modest means would reasonably be advised to pursue this matter further. It is suggested on review that in the event of eventual success the applicant will then have the opportunity of pursuing avenues of compensation for her losses. The applicant is 71 years of age. She was 34 years old when her father and husband died. There is no indication about the possible value of any claim she may have in the event that it is eventually determined that any individual or body is at fault. It is not possible to assess whether the potential costs involved in bringing any future claim to a conclusion from the present position can be justified. It should be noted that even if the two principal grounds for judicial review are eventually addressed (the tribunal’s failure to address itself to the failure of the White Fish Authority to ensure that an incline test was conducted on the Trident and the failure of the formal investigation to consider the discrepancy in various figures relating to the stability of the Trident) there is nothing to demonstrate that had the Trident been constructed in a manner compliant with best practice at the time the accident would not have occurred.”