ECJ rules against Ireland’s marine casualty investigation structure
Ireland has failed to provide for an investigative body into maritime accidents that is ‘independent in its organisation and decision-making of any party whose interests could conflict with the task entrusted’.
The European Court of Justice judgment delivered on July 9 and based on an action taken by the European Commission, states Ireland failed to comply with its obligations under a Directive that establishes the fundamental principles governing the investigation of accidents in the maritime transport sector:
‘Ireland has failed to comply with its obligations under Article 8(1) of Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council.’
Findings
In its findings, the Court noted inter alia that Under Section 8 of Ireland’s Merchant Shipping Act 2000, the Marine Casualty Investigation Board (MCIB) comprises five members including the Secretary-General of the Department of Transport, Tourism and Sport (DTTS) or his or her deputy, and the Chief Surveyor of the Marine Survey Office (MSO).
‘In view of its functions performed simultaneously by both these members, on the one hand within the DTTS or the Marine Survey Office and, on the other hand, within the MCIB, their presence demonstrates that Ireland does not fulfil its obligations under Article 8(1) of Directive 2009/18.
Dáil debates
During a Dáil debate (July 30) reported by KildareStreet.com, Deputy Mattie McGrath (Independent) said an additional requirement for compliant officials was “clearly set out” in the European directive and reflected international law:
“This is a damning indictment of our MCIB. I have raised cases in the Chamber, including cases regarding Whiddy Island and many other places nationwide.
The Judgment also explains that independence is critical “if we are to learn from the tragedies and save other lives…There is a clear conflict in officials investigating their own regulatory framework and supposedly making recommendations to themselves.”
In a second debate (August 14), Deputy Donnchadh Ó Laoghaire (Sinn Féin) said any ECJ Judgment was “weighty and significant” but was especially so in the context of the work of the MCIB.
Since it was established in 2002, the board has issued over 300 reports on marine incidents and casualties.
Noting “significant events and tragedies” and “families left grieving”, Ó Laoghaire added it was vital that incidents were properly investigated and that the people “affected, bereaved and injured” had confidence in the system:
“The fundamental point is quite straightforward. It is difficult to understand why the case was fought by the State given that many commentators were of the view it was bound to fail,” he added.
Government responses
Hildegarde Naughton, Minister of State with responsibility for the maritime sector, said the main issue of concern was the presence of two department officials on the board who were seen as persons whose interests could conflict with the task entrusted with the board.
“There is no finding of impartiality [sic] on the part of the board…” she said.
Deputy Ó Laoghaire acknowledged the minister’s remark but added it seemed “very apparent” that the board was not independent:
“The European Court of Justice has found that in the context of maritime safety, this State is in breach of EU legislation. It matters because the Department [DTTS] is responsible for safety on the water and for the legislation and relevant codes of practice.”
Minister for Transport, Tourism and Sport, Eamon Ryan, said his department was examining the Judgment and had received legal advice on possible next steps “including the likely amendment of the relevant legislation”.
Noting the European Commission’s key concern of potential conflict of interest, Minister Ryan emphasised that the Judgment had no partiality in the actions of the MCIB:
“Nor was there any suggestion of partiality on the part of the MCIB with regard to any case. Accordingly, it is not my intention to seek any form of inquiry into this matter.
Maritime deaths
Deputy McGrath also noted “failed reports” regarding the deaths of two constituents, (John O’Brien and Pat Esmonde, Helvik Head, 2010) as well as “the deaths of all others in respect of whom investigations were carried out while this conflict of interest prevailed.
“I have been reliably told that, due to these fundamental failings, full information was not included in the MCIB report, which had the effect of compromising the Garda investigation. This needs to be investigated,” he said.
“I am happy that the Garda Commissioner [Drew Harris] has directed the Garda National Bureau of Criminal Investigation to reopen this case and look at it again.
“I thank Michael Kingston, the maritime lawyer [and son of Tim Kingston who was killed in the Whiddy Island terminal disaster in 1979] and Ms Anne O’Brien for the sterling work they have done in an effort to get justice for Ms O’Brien’s late brother and his colleague, Pat Esmonde, who died on that beautiful but fateful day ten years ago. Their families, and many others, need justice.”
Michael Kingston said it “defied belief” that the DTTS would try to defend the action brought by the European Commission, “costing the Irish tax payer millions in legal fees”.
This could have been spent on “rectifying our maritime safety framework, knowing the truth about their handling of tragedy investigations and failure to implement safety recommendations”.
The proper analysis of maritime investigations “is the fundamental right of those who die, as is the proper involvement of their families in inquiries, under the European Convention of Human Rights.
“The ECJ Judgment conclusively shows that the Irish State has denied the victims and their families those rights, and there must now be an immediate public inquiry as to how this has been allowed to occur, and all MCIB investigations must be reviewed,” Kingston maintains.
Note:
MCIB website (August 18) Board members
Chairperson: Claire Callanan
Members: Dorothea Dowling | Frank Cronin | The Secretary to the Board, Denise Hyland
