ECJ rules marine casualty body is not independent

ECJ rules marine casualty body is not independent
The sunset over the pier during the 40th anniversary of the Betelgeuse disaster at the Whiddy Island pier in Bantry, Co Cork. Picture Dan Linehan

THE European Court of Justice has ruled the State’s marine incident investigating body is not independent due to the presence of two civil servants on its board.

In a judgment issued late last week, the European Court of Justice (ECJ) said the Marine Casualty Investigation Board’s (MCIB) independence is “not guaranteed” and has awarded costs against Ireland.

Its ruling takes issue with the fact that the five-person MCIB board includes the Department of Transport secretary-general, or his or her deputy, and the Marine Survey Office (MSO) chief surveyor.

The ECJ ruling says that “in view of the functions performed simultaneously” by the two civil servants, Ireland is not fulfilling its obligations under Article 8(1) of Directive 2009/18” governing the investigation of accidents in the maritime transport sector.

International maritime lawyer Michael Kingston has called for an “immediate public inquiry” into all investigations by the MCIB.

Mr Kingston, whose father Tim died in the Whiddy island Betelgeuse explosion 41 years ago, has already called for a “root and branch review” of the Department of Transport’s maritime safety directorate.

The Department of Climate Action, Communications and Transport said it is “examining the judgment in the case and is seeking legal advice to address the court findings and the concerns of the EU Commission”.

The MCIB is responsible under the Merchant Shipping Act and the Merchant Shipping Regulations for conducting safety investigations and for drawing up reports and recommendations.

It is a non-prosecutorial body which does not enforce legislation, and its investigations do not apportion blame or fault.

However, its reports are made public, with recommendations to the Minister for Transport.

It has issued almost 300 reports since its establishment almost 20 years ago on commercial fishing and recreational casualties, and incidents involving ferries, merchant shipping and other vessels.

In taking the case against Ireland, the European Commission said the MCIB was not independent, on the basis that the responsibilities and activities of both the Department of Transport and the MSO could conflict with the investigative task.

The MSO holds administrative and enforcement functions in relation to ships and fishing vessels, related equipment, and the competence of mariners.

In its defence, Ireland argued that the MCIB reports are independent.

Mr Kingston says he has commissioned a formal report by Capt Neil Forde of Marine Hazard Ltd to carry out a review of the investigations, reports and recommendations of the MCIB.

Earlier this year, he made a submission to Garda headquarters seeking a Garda inquiry into the State's role in investigating marine accidents. He was accompanied by Independent TD Mattie McGrath and Anne Marie O’Brien, whose brother John O’Brien and his friend Patrick Esmonde drowned in 2010 off Helvick Head, Co Wexford.

Mr Kingston, who has worked as a consultant to the International Maritime Organisation, also claims that the State had been alerted to malfunctioning of emergency position indicating radio beacons (EPIRBs) before the deaths of Paul (49), Kenny (47) and Shane (44) Bolger from Passage East, Co Waterford in Tramore Bay in June 2013.

All three brothers had been wearing lifejackets when their punt capsized. Their emergency position indicating radio beacon (EPIRB) signals alerting rescue agencies to their location were not picked up.

The year after the incident, the manufacturer issued a product recall for EPIRBs manufactured between January 2005 and February 2008.

The Department of Transport subsequently confirmed that in 2010 it had contacted the manufacturer over false alerts and battery failures.

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