Skip to main content

Owner And Master Liable In Respect Of Dangerously Unsafe Ship

Volume 130: debated on Wednesday 30 March 1988

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Amendments made: No. 15, in page 22, line 11, after `ought', insert 'reasonably'.

No. 35, in page 22, line 35, leave out from 'sea' to end of line 36 and insert

`shall, in a case where the service for which a ship is intended consists of going on voyages or excursions that do not involve going to sea, be construed as a reference to going on such a voyage or excursion.'. —[Mr. Channon.]

I beg to move amendment No. 1, in page 22, line 41, at end insert

`The provisions of this section and of sections 30 and 31 below shall apply to all cases where, after 1st January 1987, investigators of marine accidents appointed by the Secretary of State have found owners or masters liable as specified in those sections'.
I am grateful to the tenth of our parliamentary number who have supported this amendment, although they do not all appear on the Order Paper. I want to make it clear from the start that we are dealing with retrospective legislation. This is an important matter, and if I had not wanted to appear serious about it, I would not have tabled the amendment. I do not move the amendment vindictively. I know that I am not Sir Jeffrey Sterling or of his ilk, but I know people who have lost loved ones in the terrible disasters of the past 12 to 18 months, and I know people who are constantly in fear of their loved ones going to sea. Especially now, with the horror stories of the ro-ro ferries, I am conscious of the responsibility that we have.

I know that people will raise eyebrows and say that restrospective legislation is just not on, but in a brief that I have received from the Library, I note that the Acts of Parliament (Commencement) A.ct 1793 in no way prevents Parliament from making an Act retrospective if the intention to do so is apparent. The intention of this amendment to do so is apparent. It is stated:
"'It is obviously competent for the legislature, in its wisdom, to make the provisions of an Act of Parliament retrospective,' said Lord Ashbourne in Smith v. Callander4 2 and 'No one denies,' said Dr. Lushington in The Ironsities,4 3 `the competency of the legislature to pass retrospective statutes if they think fit,4 4 and many times they have done so.'"
On eight occasions since 1980, the Government have introduced retrospective legislation, such as the National Health Service (Invalid Direction) Act 1980, the Employment Act 1982, the London Regional Transport (Amendment) Act 1985, the Housing and Planning Act 1986, the Rate Support Grants Act 1986, the Teachers' Pay and Conditions Act 1987, the Local Government Finance Act 1987, and the Local Government Finance Bill 1987–88, clause 113.

Those are eight instances of the Government using retrospective legislation. I am seeking to use retrospective legislation tonight on behalf of people who lost members of their families in the Zeebrugge disaster. As my amendment states, it goes back to 1 January 1987, which would take in the Zeebrugge disaster, and take those people within the province of other sections of the Bill to which we have already agreed tonight.

In Committee we tried to differentiate between the master's liability and that of the owners, but our choice has been limited because of the stonewalling of the Government. To prove that this legislation is necessary, the amendment states:
"the investigators of marine accidents appointed by the Secretary of State have found owners or masters liable as specified in those sections."
We are talking about criminal negligence, unsafe practices of the vessels and allowing unsafe vessels to go to sea. It is still the contention of Opposition Members —despite what the Minister, the Secretary of State and others have said — that the ro-ro ferries are inherently unstable. In that respect, the Sheen report states:
"But a full investigation into the circumstances of the disaster leads inexorably to the conclusion that the underlying or cardinal faults lay higher up in the Company"—
not with the lower ranks of the company, but higher up.
"The Board of Directors did not appreciate their responsibility for the safe management of their ships. They did not apply their minds to the question: What orders should be given for the safety of our ships? The directors did not have any proper comprehension of what their duties were. There appears to have been a lack of thought about the way in which the HERALD ought to have been organised for the Dover/Zeebrugge run. All concerned in management, from the members of the Board of Directors down to the junior superintendents, were guilty of fault in that all must be regarded as sharing responsibility for the failure of management. From top to bottom the body corporate was infected with the disease of sloppiness.
The failure on the part of the shore management to give proper and clear directions was a contributory cause of the disaster. This is a serious finding which must be explained in some detail."
On 18 March 1986, there was a meeting between senior masters and management, at which Mr. Develin took the chair. One topic discussed was the recognition of the chief officer as head of department and the roles of the maintenance master and chief officer. Mr. Develin said that, although he was still considering writing definitions of the different roles, he thought that
"it was more preferable not to define the roles but to allow them to evolve."
Mr. Justice Sheen said:
"It was the failure to give clear orders about the duties of the Officers on the Zeebrugge run which contributed so greatly to the causes of this disaster … The Board of Directors must accept a heavy responsibility for their lamentable lack of directions. Individually and collectively they lacked a sense of responsibility. This left what Mr. Owen so aptly described as, 'a vacuum at the centre' … It is also right to say that the Company has recognised its causative faults. On the eighth day of this Investigation Mr. Clarke"—
he was a representative of the company—
"said 'Townsend Car Ferries recognise that long before the 6th March 1987 both their sea and shore staff should have given proper consideration to the adequacy of the whole system relating to the closing of doors on this class of ship with their clam doors.'"
The Guardian of 28 and 29 April, reporting from the inquiry, said that there were clear signs of the culpability of the company in its running of the ferry service and its inactivity in correcting some of the practices that had come to light during the previous decade.

I wish to deal with three factors. The first is the overloading with passengers, which is criminal negligence on the part of the company. It became apparent from the documents given in evidence to the inquiry that seven different masters had found that, from time to time, their ships were carrying passengers substantially in excess of the permitted number.

The documents revealed that the senior master of the Pride of Free Enterprise, Captain Blowers, sent a memorandum dated not 1987 or 1986 but 16 August 1982, to Mr. A. P. Young, the operations director, with a copy to Mr. Develin. The relevant passages of the memorandum state that on 28 July 1982 there were 250 passengers over the prescribed limit; on 6 August 1982, there were 40 passengers over the limit; on 8 August 1982, there were 100 passengers too many; and on 18 August 1982 there were 171 passengers too many.

That was reported consistently to the company. It consistently broke the law. The overloading of passengers and vehicles on the ferry contributed to the loss of the vessel. Year after year, reports were given to the company, but no action was taken. Through 1982, 1983 and 1984 the inadequacies of the system were reported to the company.

Matters reached such a stage that in 1986, an officer reporting on passenger numbers said :
"This total is way over the life-saving capacity of the vessel. The fine on the Master for this offence is £50,000 and probably confiscation of certificate. May I please know what steps the company intend to take to protect my career from the mistakes of this nature."
Everyone in the company knew about the overloading of passengers. It was part and parcel of the ethics of Townsend Thoresen, like a latter-day railway service in India, pushing the people on and making as much profit as possible no matter how great the risk to the passengers and crew.

In 1986, in reply to Captain Stoker, Mr. Young, for the company, said:
"I accept that the present method of obtaining the correct number of passengers boarding vessels is liable to error but I feel that everyone must accept that, whatever system is operated, there will always be the possibility of human error".
Reports continued to flood in in 1986 and 1987. Everyone was informing the company of what was wrong. At the end of the day, the court reluctantly had to conclude:
"Mr. Young made no proper or sincere effort to solve the problem. The Court takes a most serious view of the fact that so many of the Company's ferries were carrying an excessive number of passengers on so many occasions."
Townsend Thoresen and P and O stand condemned of overloading their vessels with passengers. We believe that the Sheen report suggests criminality on their part and Parliament has a responsibility to act on that.

Indicator lights would have given clear warning that the bow doors on the Herald of Free Enterprise were not closed. Indicator lights were not a new feature, but were part and parcel of an ongoing programme. As far back as 1983 people knew about the defect, but the company did nothing about it.

On 28 June 1985 Captain Blowers of the Pride sent a sensible memorandum to Mr. Develin of the company. The relevant part of it stated:
"In the hope that there might be one or two ideas worthy of consideration I am forwarding some points that have been suggested on this ship and with reference to any future new-building programme. Many of the items are mentioned because of the excessive amounts of maintenance, time and money spent on them."
He spoke about a mimic panel:
"There is no indication on the bridge as to whether the most important watertight doors are closed or not. That is the bow or stern doors. With the very short distance between the berth and the open sea on both sides of the channel this can be a problem if the operator is delayed or having problems with closing the doors. Indicator lights on the very excellent mimic panel could enable the bridge team to monitor the situation in such circumstances."
Since the disaster, the Secretary of State has come to the House and said that action has been taken in that regard. We applaud that, but the company knew about it since 1983 and did nothing about it. Therefore, in respect of the Herald of Free Enterprise, the company should be charged with criminal negligence.

On 9 October 1986, Captain de Ste Croix sent the following memorandum to the senior electrical officer:
"Another incident has occurred to remind me of my request of some time ago for bridge indication of the position of the bow and stern watertight doors. I still feel that although it is the duty of a crew member to check the position of the doors visually prior to proceeding to sea, it is so important to the safety of the ship that they are closed that we should have bridge indication."
The reports were sent in and passed round from one member of management to another. At the end of the day those reports came to nothing. Mr. Develin did not appreciate the importance of the reported incidents and dismissed them as exaggeration on the part of those officers and crew members who reported such inadequacies.

Another important consideration is ascertaining the draughts of the ships and their ballast. On the stability of the vessels, the Sheen report states:
"Mr. Develin did not appreciate that the stability of the Herald could be significantly affected if the ship was trimmed by the head. Mr. Develin is a Fellow of the Royal Institution of Naval Architects and has been a Government Marine Surveyor in Hong Kong. Accordingly he should have appreciated this. Whether the ship had sailed overloaded before the 6th March 1987 is not known, but it seems likely …. In subsequent answers Mr. Develin made it clear that he thought that every complaint was an exaggeration."
In reply to a further question about masters taking ships out in an unstable condition, Mr. Develin said:
"If he was that concerned he would not have sailed."
He washed his hands of responsibility despite requests, and information about the bad practices. He took no action and the company again stands condemned.

1.15 am

It is now necessary to go back in time briefly. In 1982 the passenger ferry European Gateway, which was also owned by the company, capsized after a collision off Harwich. Following that casualty, the company instituted an investigation into passenger safety. As a result of that investigation, on 10 February 1983, Captain Martin sent a report to Mr. Develin. That report was seen by Mr. Ayres. It begins with the words:
"The Company and ships' Masters could be considered negligent on the following points …
  • (a) the ship's draught is not read before sailing, and the draught entered into the Official Log Book is completely erroneous;
  • (b) It is not standard practice to inform the Master of his passenger figure before sailing.
  • (The written comment was 'system informs Master, who often does not agree the truth of the information.')
  • (c) The tonnage of cargo is not declared to the Master before sailing.
  • (d) Full speed is maintained in dense fog."
  • All those features were continually reported to the company but it did nothing about them. Of course, its inactivity over the years was shielded by the Government.

    Mr. Ayres was subjected to 10 questions by the inquiry. The final one was:
    "Would it be unfair of me to suggest that your investigation was pretty superficial?"
    to which he replied:
    "With hindsight it can be said."
    "Mr. Ayres may be a competent Naval Architect,"
    Mr. Justice Sheen said,
    "but the Court formed the view that he did not carry out his managerial duties, whatever they may have been."
    The report said that even the tragic disaster of the Gateway did not result in any immediate improvement. On 7 May 1987, Mr. A. P. Young sent a memorandum to Mr. A. Black, who is a director of P and O, in which he said:
    "Shore loading personnel expect ships' officers to advise if actual ship sinkage is ahead of estimated cargo tonnages. At this stage, the loading personnel will decide the shut-off priorities."
    In other words, the master is aboard his ship, passengers and vehicles are pouring on to it, the figures are being fiddled and the weight coming on is uncontrolled. The log is false, the amount of water on board unknown.

    Later, the masters and those whom they represented applied to have an engine installed to pump out water from the ballast tanks, to make the ship more stable:
    "Mr. Develin was asked whether he thought the suggestion made by Mr. Crone that a powerful pump should be installed was a good idea or a bad idea. He said that he did not think he gave it much thought after having decided that it was not a safety matter. He handed it over as a technical project to Mr. Ridley. In due course an estimate was obtained for the installation of a pump at a cost of £25,000. This cost was regarded by the Company as prohibitive".
    The pump was needed because the ships are given such tight turnround times between ports. It is known that ferries go out to sea cutting into the water because of the excess ballast. With such a pump on board, they could have drained off the water from the ballast tanks quickly, but profits come before people's lives and again the company stands condemned for its inactivity.

    Townsend Thoresen Car Ferries Ltd., at all levels from the board of directors down through managers and the marine department to junior superintendents, stands condemned in the Sheen report as criminally guilty. So I submit that the investigators of marine accidents appointed by the Secretary of State have found the owners of these vessels liable as specified in clauses 29, 30 and 31. If justice is to be done in the case of the 200 people who died on the Herald of Free Enterprise and for their families, who have just celebrated—if that is the word—the first anniversary of the deaths of their loved ones, we have a duty and responsibility to see it carried out.

    As I have said, it is not unusual to introduce retrospective legislation. If the Government are sincere about righting the wrong that has been done in this case, they will support us by accepting the amendment and introducing retrospective legislation in respect of clauses 29, 30 and 31.

    I shall be brief. I have some sympathy for my hon. Friend the Member for Liverpool, Broadgreen (Mr. Fields) on the issue that he raises. Like every hon. Member, I was clearly shocked not only by the manner of the sinking of the Herald and the human tragedy that that involved, but by the comments that were made at the Sheen inquiry about which my hon. Friend has spoken. The company had almost no care whatever for the safety of those who were in its charge.

    Prosecutions may be pending, but it is quite likely that those who were ultimately responsible — the senior managers of the company—are likely to escape penalty. That is particularly galling in the light of the letter written by P and O to those involved in the tragedy. The company advised them that they were not obliged to speak to the police who were inquiring into the whole affair and into whether criminal prosecutions were possible. Obviously, such prosecutions might have been against senior management in the company.

    That letter was self-serving, and it is interesting to contrast it with the advice of the National Union of Seamen which has recently been pilloried for its actions. Its advice to its members was that they should co-operate with the police, and, if they wanted legal representation, the union would provide it. It is worth making the comparison between the two approaches.

    It is on record how I have condemned the company for seeking to frustrate proper action by the police who were investigating the events leading up to the Herald disaster. For those reasons, it is difficult to resist the amendment. The traditional argument against it is that the House has an aversion to retrospective legislation, but during the lifetime of this Parliament the Government have passed such legislation, particularly against local government.

    The Government have sought to act retrospectively and have brought in retrospective legislation. Where necessary, they have changed the rules in such a way as to make sure that what they intended is brought into line with reality. They did that by changing the law and the penalties in relation to local government in a way that has damaged the interests of my constituents both as ratepayers and as consumers of local government services. If they are prepared retrospectively to damage the interests of the people that I represent, who are generally quite poor, I can think of no reason why, on balance, retrospective legislation should not be used to deal with those whose contempt for people in their charge was such that ultimately it led to their deaths. For those reasons, the amendment has a great deal to commend it.

    Does my hon. Friend accept that the Government do not take a principled view against retrospective legislation? That is because they are, for example, introducing legislation of a retrospective nature to allow local authorities to charge administration fees against superannuation funds instead of against ratepayers. The instrument that will apply this will be retrospective to 1986, so the Government do not oppose retrospection in principle.

    My hon. Friend makes a valid point which the Minister should take on board. It is almost certain that my hon. Friend has just destroyed the main thrust of the Minister's speech. The interesting point is that in this case my hon. Friend the Member for Broadgreen wants retrospection only to 1987. We are told that the Government are quite happy to refer matters back to 1986.

    I am following the hon. Gentleman's interesting argument. Does he recognise any distinction between retrospection in civil law and retrospection in criminal law?

    I am sure that there is a very valuable point to be made about that. In some senses, retrospection in civil law has less to commend it than retrospection in criminal law. That may not be the answer that the hon. Gentleman wanted, but I am not sure whether this is a matter of absolute principle if the process of the court is at least to recognise a moral or an acceptable balance. As I am not a lawyer, I might be persuaded otherwise on another occasion. I do not think that I recognise any major difference. I hope that the Minister can satisfy the House in the context of my hon. Friend's remarks.

    I wish to make one brief point before I deal with the substance of the amendment. The hon. Member for Liverpool, Broadgreen (Mr. Fields) asserted that this type of ro-ro vessel is inherently unstable. It is not unstable, provided that it is watertight. It is important that the House should recognise that it is a different situation if one of those vessels, which, apart from this tragedy, have had a good safety record, goes to sea without the doors being closed and therefore is not watertight. It is a matter of the management of the vessel, but I shall not go into further detail now.

    The amendment is not acceptable to the Government. It aims to tighten the criminal law retrospectively. That would be abhorrent in a democratic country, where it is a fundamental principle that people should be found guilty only under the criminal law as it applied when the offence was committed.

    The hon. Member for Bradford, South (Mr. Cryer) referred to restrospection, but none of the legislation to which he and the hon. Member for Broadgreen referred involves criminal acts. The amendment would seek to make that which was lawful at the time criminal, if applied retrospectively. The hon. Member for Bradford, South will realise that that makes a considerable difference to the case.

    The hon. Member for Broadgreen read out large chunks from the Sheen report. All the matters in the report are now with the Director of Public Prosecutions, whose attention was drawn to the formal inquiry report by my right hon. Friend the Secretary of State last autumn.

    There is a principle at stake here. I invite the House without any hesitation to reject the suggestion that we should apply the criminal law retrospectively.

    Question put, That the amendment be made:—

    The House divided: Ayes 11, Noes 126.

    Division No. 247]

    [1.27 am

    AYES

    Banks, Tony (Newham NW)Salmond, Alex
    Barnes, Harry (Derbyshire NE)Skinner, Dennis
    Cryer, BobWise, Mrs Audrey
    Cunliffe, Lawrence
    Davies, Ron (Caerphilly)Tellers for the Ayes:
    Loyden, EddieMr. Bill Michie and
    McKay, Allen (Barnsley West)Mr. Terry Fields.
    Prescott, John

    NOES

    Alexander, RichardHargreaves, Ken (Hyndburn)
    Amess, DavidHaselhurst, Alan
    Amos, AlanHayward, Robert
    Arbuthnot, JamesHunt, David (Wirral W)
    Arnold, Jacques (Gravesham)Hunter, Andrew
    Arnold, Tom (Hazel Grove)King, Roger (B'ham N'thfield)
    Ashby, DavidKnapman, Roger
    Atkinson, DavidLang, Ian
    Baker, Nicholas (Dorset N)Latham, Michael
    Baldry, TonyLennox-Boyd, Hon Mark
    Batiste, SpencerLester, Jim (Broxtowe)
    Beaumont-Dark, AnthonyLightbown, David
    Bennett, Nicholas (Pembroke)Lilley, Peter
    Biffen, Rt Hon JohnLloyd, Peter (Fareham)
    Boscawen, Hon RobertLyell, Sir Nicholas
    Bottomley, PeterMacfarlane, Sir Neil
    Bottomley, Mrs VirginiaMaclean, David
    Bowis, JohnMcLoughlin, Patrick
    Brazier, JulianMans, Keith
    Bright, GrahamMarshall, Michael (Arundel)
    Britten, Rt Hon LeonMartin, David (Portsmouth S)
    Brooke, Rt Hon PeterMawhinney, Dr Brian
    Brown, Michael (Brigg & Cl't's)Maxwell-Hyslop, Robin
    Burns, SimonMeyer, Sir Anthony
    Campbell, Menzies (Fife NE)Michie, Mrs Ray (Arg'l & Bute)
    Carrington, MatthewMiller, Hal
    Cash, WilliamMitchell, Andrew (Gedling)
    Channon, Rt Hon PaulMitchell, David (Hants NW)
    Chope, ChristopherMorrison, Hon P (Chester)
    Clarke, Rt Hon K. (Rushcliffe)Moss, Malcolm
    Coombs, Anthony (Wyre F'rest)Nelson, Anthony
    Cope, JohnNeubert, Michael
    Cran, JamesNewton, Rt Hon Tony
    Currie, Mrs EdwinaNicholls, Patrick
    Curry, DavidNicholson, David (Taunton)
    Davies, Q. (Stamf'd & Spald'g)Nicholson, Emma (Devon West)
    Davis, David (Boothferry)Oppenheim, Phillip
    Day, StephenPage, Richard
    Dorrell, StephenPorter, David (Waveney)
    Dover, DenPowell, William (Corby)
    Dunn, BobRaffan, Keith
    Durant, TonyRathbone, Tim
    Fallon, MichaelRenton, Tim
    Favell, TonyRiddick, Graham
    Field, Barry (Isle of Wight)Roberts, Wyn (Conwy)
    Forman, NigelRyder, Richard
    Forsyth, Michael (Stirling)Sackville, Hon Tom
    Freeman, RogerSainsbury, Hon Tim
    French, DouglasShaw, David (Dover)
    Gale, RogerShaw, Sir Giles (Pudsey)
    Garel-Jones, TristanShaw, Sir Michael (Scarb')
    Gill, ChristopherShepherd, Colin (Hereford)
    Glyn, Dr AlanSmith, Tim (Beaconsfield)
    Gummer, Rt Hon John SelwynSpicer, Sir Jim (Dorset W)

    Stanbrook, IvorWallace, James
    Stern, MichaelWaller, Gary
    Stradling Thomas, Sir JohnWatts, John
    Summerson, HugoWells, Bowen
    Taylor, Ian (Esher)Widdecombe, Ann
    Taylor, John M (Solihull)Wolfson, Mark
    Thompson, D. (Calder Valley)Wood, Timothy
    Thompson, Patrick (Norwich N)
    Twinn, Dr IanTellers for the Noes:
    Waddington, Rt Hon DavidMr. Kenneth Carlisle and
    Wakeham, Rt Hon JohnMr. Alan Howarth.

    Question accordingly negatived.