Record of Investigation Into Death
Coroners Act 1995
Coroners Regulations 1996
I, Stephen Raymond Carey, Coroner, having investigated the death of
David James COLSON
AFTER HOLDING AN INQUEST
Find That :
David James COLSON ("Mr Colson") died on 8 October 2007 in the sea off Perkins Island near Smithton in Tasmania. Mr Colson was born in New South Wales on 28 April 1983 and was aged 24 at the time of his death. He was a single man who was employed in the commercial fishing industry, more recently as an abalone diver and deckhand assisting other abalone divers.
I find that Mr Colson died as the result of hyperthermia due to cold water exposure after a boat sinking incident.
At the time of Mr Colsons death he was not being treated by a medical practitioner.
Circumstances Surrounding the Death :
Mr Colson resided at 143 Bligh Street, Warrane and on numerous occasions throughout 2007 he had performed duties as a deckhand for Mr Tony Burton on the dinghy "Too Easy", a 4.7 metre open aluminium dinghy built in 1994 by Midnight Marine, Hobart. Given favourable weather indications, Mr Burton and Mr Colson had arranged to travel to the North West of Tasmania in order to conduct abalone diving operations on Monday 8 and Tuesday 9 October 2007. They travelled to the North West on Sunday 7 October and next morning at approximately 9.00 am they left in "Too Easy" from the Smithton Duck River boat ramp, travelling to Black Reef which is located approximately two nautical miles off the Port of Smithton with the intention of undertaking abalone fishing. At this time the skies were clear and the water was still. Mr Burton commenced diving for abalone at about 9.30 am and after approximately three hours he had recovered three plastic storage bins of abalone fish. Dependant upon how tightly the fish are stacked in the bins, each bin would hold approximately 50kgs of abalone. After this first session of three hours Mr Burton boarded the vessel for lunch, he noted at that time that the wind had increased to approximately 10-15 knots with some squalls. He also noted an amount of water in the vessel, however he did not consider this unusual as this occurred when the bags of abalone were brought to the surface and also when he had boarded the vessel. There was discussion between Mr Burton and Mr Colson about the increase in wind strength during the morning, however neither person appears to have been concerned or surprised by this. After this break the men decided to recommence the operation closer to Black Reef and on route to this area the vessels rear bung was removed and water was drained from the vessel. Mr Burton recommenced diving at approximately 1330 hrs and worked this area. He then resurfaced and got back on board the vessel and was taken back to the initial start point and then commenced another dive along that area. Upon boarding the vessel at that time Mr Burton noticed once again that the vessel had taken on water but he did not consider this out of the normal and Mr Colson was not concerned about the amount of bilge water on board at that time. The vessel returned to the initial drop off point and Mr Burton entered the water for a third time and continued fishing. Over a two hour period Mr Burton brought on board the vessel another three plastic storage bins together with 2-3 catch bags of abalone. Mr Burton resurfaced just after 1500 hrs and when he did so he noticed the vessel contained "more bilge water than he was expecting". When Mr Burton boarded the vessel via an external rear dive step attached to the transom of the vessel, the transom dipped below the waterline allowing an unspecified amount of water to enter the vessels hull. Both men were aware at this time that the vessel did contain a significant amount of water. Mr Burton advised that he and Mr Colson estimated the weight of the catch on board at this time to be approximately 600 kgs, whereas when later recovered the amount was 744 kgs. The men then decided to move closer to Perkins Island to get into the lea of weather which consisted of winds up to 10-15 knots south westerly with a choppy sea of 1-2 foot waves. The intention was then to complete the post dive clean up of the vessel. Once they started motoring towards Perkins Island and attempted to get the vessel up on the plane the bilge water in the front of the vessel ran to the back and it then became apparent that the hull contained significantly more bilge water than they had estimated. The usual practice to clear bilge water from a vessel such as this is to travel with the vessel "on the plane" and then remove the water bung from the transom, thereby allowing bilge water to exit the vessel. On this occasion Mr Colson was operating the vessel and he was using both the main outboard motor (60 horse power) and the auxiliary outboard motor (30 horse power) but with maximum power he was unable to get the vessel up on to a plane. Mr Colson then reduced the power on the motors and commenced operating the hand operated bilge pump whilst Mr Burton used a bucket to bail bilge water from the vessel. The weight of the water shifted to the rear of the vessel as the men were manually trying to empty the vessel, it was heavy in the stern and additional water slopped over the transom. With the additional water entering the vessel, the transom slipped lower in the water allowing more water to enter the vessel with every sea swell. The situation was reached where the men could not stem the flow of water entering the vessel by their efforts in bailing and operating the bilge pump. A realisation obviously then occurred that the vessel was floundering and Mr Burton commenced jettisoning the catch and had thrown one bucket overboard before the vessel floundered.
At this time Mr Colson was attempting to make a call on a mobile phone but was unable to contact anyone before the vessel filled with water and rolled with both men being thrown into the water. This was at approximately 1530 hrs and the vessel was then upturned with only the bow sticking out of the water. Mr Colson was perched on the bow and attempted to initiate a parachute flare but it appears that it was incorrectly activated and the flare failed. He then asked Mr Burton how to set the flares off and was advised to look at the instructions on the side of the flare canister. Mr Burton recalls that Mr Colson did ignite a red flare. The men then tried to roll the vessel over but were unsuccessful. Mr Colsons endeavours to ignite flares from his position on the bow of the vessel were being hampered as the sea swell kept knocking him off the bow. He then attempted to pass the container of flares to Mr Burton who was in the water but they spilled out of the container and sunk to the bottom. They then searched for another container which contained the Emergency Position Indicating Radio Beacon (EPIRB) but this could not be located. The men then discussed their situation and Mr Burton realised that they were not going to be missed until at least 1630 hrs as this was the time that he had arranged with the abalone processing factory (Tasmanian Seafoods Pty Ltd) as the pickup time at the Smithton boat ramp for the catch. Having estimated the distance to Perkins Island at approximately 500 metres the men made a decision to swim to the island and set off at approximately 1600 hrs. Mr Burton at this time was still wearing his dive wetsuit and Mr Colson was wearing a tracksuit and fleecy top shirt covered by wet weather trousers and jacket together with a PFD 1 yoke that was partially inflated to assist him to stay afloat during the swim. After approximately two hours it became apparent to both men that they had seriously misjudged the distance to Perkins Island.
In the meantime on shore Mr Greg Spinks from Tasmanian Seafoods Pty Ltd had driven a truck to the agreed pickup point at the Smith Duck River boat ramp at approximately 1630 hrs awaiting the arrival of the "Too Easy". At 1810 Mr Spinks phoned Miss Alison Smith who was at that time employed as an Administrative Officer with Tasmanian Seafoods Pty Ltd whose responsibility it was to organise the transport of abalone from the site where they are landed to the processing plant at Smithton. She thereupon attempted to contact Mr Burtons mobile phone but was diverted to his messagebank. She then made enquiries trying to ascertain the identity of the deckhand working on the vessel that day. She contacted a Mr Roger King who advised that the deckhand was probably Mr Colson who he had made attempts to contact on his mobile phone but once again calls were diverted to messagebank. Ms Smith during this time travelled to the lookout at Smithton in order to see whether any vessel had entered the Duck River and was travelling towards the boat ramp. At 1839 hrs, after discussions with Mr King who stated that he had been unable to contact either Mr Burton or Mr Colson, Ms Smith rang 000 to report the men missing.
At about this time Mr Colson was starting to succumb to the effects of the cold water and was becoming increasingly tired. Mr Burton was doing what he could to assist him by dragging him through the water, having grabbed the straps on the back of Mr Colsons yoke. At 1930 hrs it was becoming dark and the men noticed a boat in the distance heading down Perkins Island. Attempts were made to contact this boat without success. Mr Colson then commenced acting irrationally, trying to climb on top of Mr Burton and yelling out for help. Mr Burton was becoming fatigued and he turned Mr Colson around, wrapped his legs around him and attempted to keep both moving in the direction of Perkins Island. Mr Burton believes that Mr Colson died some time between 2000 and 2100 hrs. Mr Burton continued to tow Mr Colson and at approximately 2215 hrs he touched bottom on a sandbar. He was able to rest and checked Mr Colson who did not display any signs of life. After resting, Mr Burton set off again towards Perkins Island, dragging Mr Colsons body and eventually made it to Perkins Island. At approximately 2400 hrs he saw a helicopter which was using search lights but he was unable to draw the crews attention to himself. He pulled Mr Colsons body clear of the water and then walked to the western end of Perkins Island to an area where he determined he could be seen by searchers at daylight. Mr Burton was rescued on the morning of 9 October 2007, and at that time reported the location of Mr Colsons body which was also recovered at that time.
After the police received the report of the overdue men, certain steps were taken to activate search and rescue capabilities including a police vessel, police helicopter and a fixed wing aeroplane from Victoria. The police vessel was unable to reach the search area due to deteriorating weather conditions and the use of the helicopter and fixed wing aircraft was also curtailed due to darkness and weather conditions. The search activity was therefore ceased at approximately 0200 hrs on 9 October and resumed again at 0600 hrs with Mr Burton being located shortly thereafter.
Comments and Recommendations :
A number of issues were raised during the course of the inquest and I will deal with each of those in turn. The first matter concerned the relationship between the fish processor (quota holder) and the crew of a vessel gathering abalone on behalf of that quota holder.
Given that the diver and deckhand were in effect carrying out a function for the quota holder that would lead to a dollar benefit to the quota holder and in return the quota holder would pay a dollar amount to the diver, it was suggested that the quota holder ought accept a duty of care in respect of those engaged for their benefit. Mr A Hanson, the Managing Director of Tasmanian Seafoods Pty Ltd, the entity that held the quota entitlement used by Mr Burton on this occasion, was adamant that a diver engaged to fish a quota was a sub-contractor and that they independently decided how they went about achieving the catch and that no duty of care existed between the quota holder and the diver as the environment in which the diver operated was out of the control of the quota holder. Ms Alison Smith agreed that divers were not employees but rather sub-contractors and that the diver, as the skipper of the vessel, was the only one able to control the workplace. She pointed out that she knew nothing about the conditions in which divers and their deckhands were operating and it was not for others to tell them how to perform their business. Those industry representatives who gave evidence confirmed that in the main a diver owned and operated the vessel and equipment and he employed, or engaged as a sub-contractor, the deckhand. The lawful authority to harvest abalone is split between the quota holder, having the authority to harvest and sell the abalone, and a dive license, being the authority to collect the abalone. Each quota unit authorises the taking of a certain weight of abalone of a certain type and from certain zones. The holder of a dive license can only take abalone in accordance with a quota entitlement which may be owned by that person or he may be taking abalone upon the authority of a quota owner. It follows that on many occasions the quota owner authorises a licensed diver to take abalone on his behalf and for his benefit. The quota owner pays the diver a dollar price per kilogram of landed abalone and the diver pays for all costs associated with taking that abalone, including the engagement of the deckhand. A deckhand is required in all circumstances to operate the vessel whilst the diver is under water and to assist in all matters required for the operation of the process. The usual industry practise is that the diver pays to the deckhand a dollar amount per kilogram out of the payment he receives from the quota holder.
I agree that apparently there is no employer/worker relationship between the quota holder and the holder of the dive license in the manner in which the industry now operates. At best there appears to be a principal/sub-contractor relationship. It is of concern however that Mr Hanson and others suggested that because of this relationship the principal had no occupational health and safety responsibilities at all for the manner in which the diver conducts his operation. This is not the basis upon which industry operates on dry land and this apparent gap in responsibility is justified on the basis that what happens at sea could only be controlled by those on the vessel. Mr Yovich, Senior Inspector at Workplace Standards Tasmania, highlighted that although a fishing vessel was a workplace and thereby controlled by the Workplace Health and Safety legislation, there was in practice no capacity for his organisation to police these workplaces. In this case it was concluded that the control of this workplace was best done by use of marine compliance legislation. Although the marine legislation is prescriptive as to vessel standards and equipment and as to the training and qualifications of the operators of vessels, I am concerned with the apparent lack of any operating standards within the industry dealing with commercial vessels as a workplace. The various industry representatives who gave evidence were adamant that there should not be any prescriptive control, but rather matters to do with the safe operation of vessels should be left to the operator of that vessel. Although this is the first fatality within the industry occurring in this manner that I was made aware of, it was clear from the evidence that over the years there have been numerous near misses. I am not satisfied that it is in the public interest to allow the current situation to continue, especially in light of other comments to be made by me about the marine legislation and the general lack of oversight of abalone harvesting operations. It is my strong recommendation that the Minister for Workplace Relations and Director of Industry Safety investigate and consider the creation of a Code of Practice pursuant to Section 22 of the Workplace Health and Safety Act 1995 and/or directives pursuant to Section 39 of that Act to control the manner in which abalone taking and harvesting is conducted in order to ensure the safety of those engaged in this industry and upon vessels which are workplaces for the purposes of that Act.
Concern was raised as to the perceived delay in reacting to the non return of "Too Easy" at the time arranged. The evidence was that Ms Alison Smith at Tasmanian Seafoods was advised by Mr Burton that his expected time of return was approximately 1630 hrs. She instructed a factory truck driver, Mr Spinks, to be at the launch area at that time in order to pick up the catch from "Too Easy". By 1800 hrs he had become concerned by the non return of "Too Easy" and telephoned Ms Smith to advise her. Ms Smith made her own enquiries before notifying police at 1839 hrs. Senior Constable Radford attended and took details from Ms Smith as to the identity of the missing persons and that they were due back between 1600 and 1630 hrs and that they most likely had been working in the area of Black Reef. Although Ms Smith had not been given this location, based upon her own knowledge she concluded this to be the most likely location given the vessel had launched at Smithton. Senior Constable Radford then conducted further enquiries and contacted the police Marine Services at 1908 hrs to appraise them of the situation. He continued endeavours to contact the missing persons on their mobile phones before then contacting the duty Police Inspector at 1940 hrs. The initial response was to recall to duty police officers in the Marine Division in order that a police vessel could be launched from Stanley and also to task Mr John Hammond who was about to leave Robins Island to proceed past Black Reef and look for the missing vessel. Endeavours were then made to identify a suitable civilian vessel to be tasked from Smithton but this was not successful. The police vessel Polsar II was launched at Stanley at 2050 hrs, the delay due to police having to travel to Stanley. They were tasked to travel across Perkins Bay to the mouth of Duck River and to check that area and Perkins Island. At 2030 hrs the police rescue helicopter was authorised to be deployed. Sunset was at 1930 hrs and by this time the weather had deteriorated significantly with winds up to 30 knots and sea swells at 2-3 metres. At 2045 hrs the Australian Search and Rescue Authority was contacted and arrangements were made for a fixed wing aircraft to be deployed from Victoria. At 2240 hrs the police vessel aborted its mission due to the weather conditions. The fixed wing aircraft also aborted at 0120 hrs due to conditions. The helicopter conducted a search of the area from 0030 hrs until 0300 hrs. During the night planning continued with the intent to conduct a combined air, land and sea search at first light which was calculated to be approximately 0645 hrs. At 0738 hrs the upturned dinghy was located and at 0840 hrs Mr Burton was located on Perkins Island.
Two matters need to be considered, firstly the delay in raising the alarm and secondly, whether or not there was delay in initiating a formal search once police were notified. As to the first matter, Mr Spinks became concerned by 1800 hrs as in his experience with Mr Burton he was usually on time and never more than 10-15 mins late. Mr Hanson stated that there was no safety response procedure in place for an overdue vessel. He considered that this responsibility within his organisation had been delegated to Ms Smith as she was the link between the diver and the factory and it was she who had agreed with the diver as to the planned pickup time. However Ms Smith had no idea that such responsibility fell to her and I am quite sure Mr Hanson in no way delegated this responsibility as there was no procedure established. Neither she nor Mr Spinks were aware of any established procedure to be followed in the case of a late arrival of a vessel. I make no criticism of either Mr Spinks nor Ms Smith as to their response given their lack of knowledge and instruction as to what they were to do in these circumstances, being circumstances they had never encountered before. I recommend that the Industry develop an operational requirement that after an established time (say 30 mins) of the non arrival of a vessel at the agreed time there be a formal response initiated by those awaiting the return of the vessel. This response would be graded and standardised across the State, applicable to all operators. Given Mr Spinks evidence that Mr Burton had never been longer than 20 mins late in the past and that other operators had not been later than 30 mins, this was the time when the alarm should have been raised. This would have at least provided the opportunity to deploy search and rescue assets before sunset.
At first glance the time between the notification of police at 1839 hrs and the deployment of the first asset at 2050 hrs appears excessive. I am satisfied however that based upon the information, or lack of information, at the time this matter was one of "alert" within the classifications for response set out in the National Search and Rescue Manual. Such a classification called for a measured response which is what occurred. There was time involved in recalling to duty the crew of the police vessel and in the meantime attempts were made to acquire a civilian asset but this did not eventuate. The use of a civilian asset would have been the quickest response but even if this had occurred by say 1930 hrs then it still would have been dark in the search area and the chances of locating the men in the water at that time in those conditions would have been slim.
However it is apparent from the time-line from the initial contact with police to the formal notification of Police Search and Rescue Squad that the requirements of s220.127.116.11 "Initial action - Marine operations", in the Tasmanian Police Manual was not complied with on this occasion. In particular the attending police officer after ascertaining the general facts concerning the incident did not take action to report to the Duty Inspector until 1945 hrs and did not discuss the matter with him until 2000 hrs. The local Officer In Charge of the Western District Search and Rescue Squad was not advised until that time. Although there was a need to ascertain the general facts of the incident and ensure that this was a matter involving missing persons at sea or in distress at sea, sufficient factual information was available to Senior Constable Radford well before 2000 hrs to have enabled him to make a report. Of additional concern was the apparent failure to initiate a local response and the overall lack of knowledge of sub paragraphs (4) and (5) that would authorise such an immediate local response. The manual provides:-
"(4) Depending on the locality and circumstances of the incident, it may be possible for local station personnel to deal immediately with the situation, but, in any event, the notification procedure shall be followed.
(5) Members in charge of stations where lake, river, harbour or close offshore Marine Search and Rescue operations are likely to occur, to which fast and effective assistance may be rendered from available local resources, shall maintain Search and Rescue plans of action to be taken by police when required. Where immediate action is necessary, the member in charge of the station is to put such plans into action, and continue control of the operation as a Police Forward Commander until relieved of control by the Operations Commander when appointed."
Constable Wotherspoon, who was acting Officer in Command of the Western District Search and Rescue Squad at the time, conceded in his evidence that there was a lack of knowledge by initial attending police of these requirements of the Tasmania Police Manual. He opined however that this lack of knowledge had not negatively impacted upon the execution of the search. I do not accept this because as explained earlier a timely local response initiated by those at the scene was probably the only chance that this tragedy could have been avoided. I noted from Constable Wotherspoons evidence that training for police in the Western District was undertaken to ensure better knowledge and understanding as to the role and duties of the initial attending police in a search and rescue scenario. I recommend to the Police Department that this training be conducted Statewide. I also recommend that Tasmania Police ensure that up to date search and rescue plans are in existence as provided by Sub Section 5 to allow for timely local response to incidents such as this.
The critical factor that may well have increased the chances of Mr Colsons survival would have been a distress notification at the time that the boat floundered. Computer modelling at the time by police estimated that immersed in water Mr Colson had a functional time frame of 2.8 hours and a survival time of 5.1 hours. Any response subsequent to the agreed return time would be prejudicial to a person who had already been in the water for some time Timely emergency response is totally dependent upon communications and this must not be reliant upon mobile phones. An obvious aid in this regard is the fitting and use of VHF radio which was not compulsory at the time. I note that this has become a requirement since this incident. However I recommend that procedures be established within the Industry requiring communications to be maintained throughout a trip. In addition, it must also be a requirement that not only an EPIRB be carried but that it be fitted to the hull of the vessel in accordance with the manufacturers recommendations or alternatively carried in a flotation container attached by lanyard to the vessel.
The final matter is the Marine Safety Legislation and in particular its application to commercial vessels under 7.5 metres. It is of concern that two men apparently with a significant amount of experience in the handling of small boats allowed the situation in which they were in to escalate in the manner that it did. The following matters are of concern:
- Allowing so much water to enter and remain in the vessel so as to make it unstable.The lack of knowledge as to how to use distress flares.
- The unsatisfactory storage of EPIRB and distress flares which led to them being lost and unable to be used.
- Failure to carry two coastal life jackets in accordance with legislative obligation. Such life jackets would have been fitted with lights and whistles. The wearing of these jackets would have provided increased visibility of the men at night.
- Lack of any organised and structured response to the situation which apparently led to an initial "panic".
Mr Burton completed a Coxwain Limited Certificate of Competency in 1991 and Mr Colson his in 2002. This Certificate was replaced by the Coxwain Restricted Certificate of Competency in 2003. This later Certificate required persons to undertake an extensive course in the elements of shipboard safety which included:
- Comply with emergency procedures on board a vessel.
- Observe safe working practices and procedures on board a vessel.
- Fight and extinguish fires on board a small vessel.
- Survive at sea in the event of a vessel abandonment.
- Minimise the risk of fire and maintain a state of readiness to respond to emergency situations involving fire.
No obligation is placed upon those who hold the limited certification to upgrade to the restricted certification. This omission is unsatisfactory and does not ensure that persons engaged in the commercial fishing industry have the best possible training as to matters of safety in their workplace. I recommend that Marine and Safety Tasmania ("MAST") immediately address this training shortfall and in consultation with the industry establish a program to upgrade the minimum level of certified competency to Coxwain Restricted to ensure the safety of those within the commercial abalone fishing industry.
The loading of "Too Easy", a 4.7 metre open aluminium dinghy, with over 700 kgs of abalone seems excessive and dangerous. However, testing conducted by MAST after the incident illustrated that the vessel in still water was capable of remaining afloat with 1000 kgs on board. Evidence from others in the industry was that a load of 700 kgs of abalone was not unusual. A key limiting factor however was the weather with heavy loads not suitable in poor weather conditions. In fact the evidence provided to the Inquest was that a certain load increased the stability of such a dinghy, however the advisability of increasing the weight in the dinghy needed to be considered in relation to the likely weather conditions. At this stage such decisions are left to the crew based upon their experience, training and overall seamanship. The industry appears opposed to arbitrary restrictions of the loading of these commercial vessels, stating that they are able to be used safely with such heavy loads and no doubt monetary considerations apply with smaller loads returning less income to the operators of the vessel, the quota holder and the processor. However it is of considerable concern that loading of vessels to such a high degree occurs without any legislative or scientific basis and MAST has apparently done nothing to establish a workable limit, nor to police or control such an established safe load limit for commercial abalone vessels such as "Too Easy".
The role played by MAST in overseeing the requirements of marine safety legislation in this industry is unsatisfactory. "Too Easy" was the subject of an initial survey upon construction in 1995. However more recent surveys have not addressed the following alterations occurring since then:
- Replacement of portable fuel tanks with an inbuilt 95 litre fuel tank.
- Replacement of a 25 horse power auxiliary outboard motor with a 35 horse power outboard motor.
- Installation of an external dive step on the transom.
These alterations increased the vessels weight from 270 kgs to 363 kgs. In addition the condition of and extent of fitted internal floatation has not been verified since the initial survey. If the increased weight of the vessel and a likely deterioration of fitted buoyancy foam had been considered at more recent surveys it would have been determined that due to the increase in the vessels weight it required additional fitted buoyancy foam and if the existing foam had been inspected some would have been identified as needing replacement. I recommend that MAST ensure that at all surveys of commercial vessels that any alteration that is likely to increase the weight of the vessel will require a recalculation of the amount of fitted buoyancy required. I further recommend that at regular intervals (the 3 year audit period) the condition of a vessels internal buoyancy foam be determined and any rectification required be carried out.
It is of further concern that although Marine Safety Legislation (in particular Marine and Safety (Vessel Safety Standards) By-Laws 2000) makes specific provision as to the load limits of vessels less than 7.5 metres, these are not applied to commercial dinghies. The by-laws provide:
"168(1) the maximum loading conditions for any vessel less than 7.5 metres in length is to be determined in accordance with;
(a) Australian Standard AS1799; or
(b) the calculations and recommendations submitted to, and approved by the Authority, by a qualified naval architect; or
(c) the requirements of any standards of an equivalent jurisdiction or authorised society.
(2) a vessel owner must submit the maximum loading condition calculations to the Authority for approval.
Penalty: Fine not exceeding 200 penalty units."
It is clear on the evidence that MAST do not enforce this by-law with respect to the static loading of fishing vessels less than 7.5 metres. No official exemption is provided, the application of the provisions having been apparently deemed inappropriate for commercial vessels. Apparently AS1799 specifically deals with recreational vessels and is therefore deemed not to apply to commercial vessels. The weight limitation in AS1799 relates to a moveable load whereas the weight in a commercial vessel is considered to be fixed. This in itself is debatable given that stacked fishing boxes can obviously move, but more importantly the non application of one provision, presumably based upon science, to establish a safe load limit has left a vacuum with no limit applying to commercial vessels. That is a clear abrogation of the controlling Authoritys obligation to impose and police requirements that ensure the safe operation of commercial vessels.
In any event ignoring AS1799 does not relieve the owner of a commercial vessel from providing a safe load limit, nor does it relieve MAST from requiring this. If AS1799 is not to be applied then the alternate means of calculating a maximum load limit must be applied, these alternate means being capable of taking into account the static load condition that is:
"(b) the calculations and recommendations submitted to, and approved by the Authority, by a qualified naval architect; or
(c) the requirements of any standards of an equivalent jurisdiction or authorised society".
In addition, the obligation of By-Law 168(2) remains unaffected. No reason has been provided as to why these alternate means of calculating load limits were not used or why By-Law 168(2) was not enforced.
Notwithstanding this practice of non enforcement of load limits by MAST, I was informed that subsequent to this incident Mr Burton had a load limit placed upon "Too Easy" that was calculated in accordance with AS 1799. This has in effect forced him out of the industry as it is claimed to be uneconomic to operate with such a limitation. Mr G Alway, an employee of MAST, advised that there had been (he thought) three further incidents where similar weight limitations have been placed upon commercial dinghies after overloading incidents. One must question the legality and fairness of imposing these legislated limits on particular vessels and not all vessels. There is no justification in imposing a limit on some but excluding with no legal justification the imposition of the limit upon other vessels. I recommend that MAST immediately apply By Law 168 in calculating maximum loads for commercial dinghies and that in liaison with Tasmania Police such limits be enforced.
Finally is the issue concerning the accepted practice of emptying bilge water via an open rear bung. It was submitted by Mr Alway that this practice creates a risk to the vessel. The free surface movement of water can have a serious effect on the vessels stability. In this case the removal of excess water via bilge pumps and bailing rather than reliance on this practice to drain via the rear bung may have avoided the vessels floundering. I recommend that it be a requirement that commercial dinghies such as "Too Easy" be fitted with an automated bilge pumping system capable of removing the amount of water normally expected in these dinghies during abalone diving trips. This automated system should activate upon the presence of a predetermined level of water. Such a system must ensure that the amount of water in the dinghy never gets to a level capable of putting the vessel at risk.
Summary of Recommendations:
The Minister for Workplace Relations and Director of Industry Safety investigate and consider the creation of a Code of Practice pursuant to s22 of the Workplace Health & Safety Act 1995 and/or directives pursuant to s39 of that Act to control the manner in which abalone taking and harvesting is conducted in order to ensure the safety of those engaged in this industry and upon vessels which are workplaces for the purposes of that Act.
The abalone industry develop an operational requirement that after an established time of the non arrival of a vessel at the agreed time there by a formal response initiating by those awaiting the return of the vessel.
Tasmania Police conduct periodic training Statewide in relation to the initial action requirements set out in the Tasmanian Police Manual of the roles and duties of attending police officers in cases of marine incidents.
Tasmania Police ensure that up-to-date search and rescue plans are in existence and are able to be implemented as provided by s18.104.22.168(5) of the Tasmanian Police Manual.
That the abalone industry and any developed Code of Practice ensure that VHF radios are not only fitted to commercial dinghies but also that procedures are in place to ensure periodic contact is maintained with operators throughout a trip.
That EPIRBs be fitted to the hull of the vessel in accordance with the manufacturers recommendations or alternatively carried in a floatation container attached by lanyard to the vessel.
Marine and Safety Tasmania after consultation with the abalone industry establish a program to upgrade the minimum level of certified competency of those operating a commercial dinghy to Coxwain Restricted to ensure the safety of those within the abalone fishing industry.
Marine and Safety Tasmania ensure that all surveys of commercial dinghies where an alteration has taken place which is likely to increase the weight of the vessel will require a recalculation of the amount of fitted buoyancy required in that dinghy.
Marine and Safety Tasmania ensure that at regular intervals the condition of a commercial dinghys internal buoyance foam be determined and any rectification be required to be carried out.
Marine and Safety Tasmania immediately apply By Law 168 in calculating maximum loads for commercial dinghies and that in liaison with Tasmania Police such limits be enforced
Marine and Safety Tasmania impose a requirement that commercial dinghies be fitted with an automated bilge pumping system capable of removing the amount of water normally expected in dinghies during abalone diving trips.
Before I conclude this matter I wish to convey my sincere condolences to the family of Mr Colson. This matter is now concluded.
Dated 7 day of January 2010 at Hobart in the State of Tasmania