Personal responsibility in Ship/Boatbuilding

Discussion in 'Boat Design' started by Guillermo, Mar 12, 2009.

  1. TeddyDiver
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    TeddyDiver Gollywobbler

    Other commercial vessels up to 24m:
    Requlations are based on ISO standards 6185, 8666, 12217 (and after a short study most of the ISO standards considering boats), SOLAS and NBS-Y 1990. Seems that CS issue the certificate of compliance the very same way as rec boats do..
    Thats anyway what I found in VTT pages..
     
  2. apex1

    apex1 Guest

    For a visit anytime, for business, thanks, no.
    If I tell you that, you´re not amused I suppose. (Turkey)
    Regards
    Richard
     
  3. Guillermo
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    Guillermo Ingeniero Naval

    Thanks Teddy, very interesting.
    If I understood well, there's not needing for a NA to supervise the works. A CS or Notified Body are always involved and issue the corresponding certificates. Is that so?
     
  4. TeddyDiver
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    TeddyDiver Gollywobbler

    Yes..
    I'll send a PM to Terho if he can confirm what I said.
     
  5. mflapan
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    mflapan Junior Member

    Some more thoughts on Guillermo's query regarding personal responsibility in ship and boatbuilding.

    The following is relevant to commercial vessels.

    The National Standard for Commercial Vessels (NSCV) is being developed as a statement of minimum required standards. It does not purport to provide for "adequate safety" in every circumstance.

    Refer to the paragraphs under "Structure" in the preamble to the NSCV that can be downloaded from http://www.nmsc.gov.au/documents/NSCV/PREAMBLE.PDF

    The approach has been to work with the existing Occupational Health and Safety Law and common law that already provides obligations for adequate safety; rather than to duplicate them or even purport to supplant them. The latter would inevitably lead to confusion, and major gaps in coverage. The specified standards in the NSCV provide a safety net below which operation of the vessel is prohibited. It is one thing to reactively require through OH&S the provision of adequate safety; but quite another for a third party to proactively declare 'adequate safety' against a standard. Our commercial vessel standards would have to be much more comprehesive; as would our inspection regimes. The burden of such a proactive regime to verify adequate safety on both government and industry relative to the risk would be unteniable.

    Our approach has been to advise stakeholders of their wider safety obligations under OH&S and the common law in an informative part of the NSCV provided in Part A-Safety Obligations that can be downloaded at: http://www.nmsc.gov.au/documents/NSCV/PARTA.PDF

    While being informative, it provides information that ensures designers, builders, suppliers, owners, operators and crew all have an understanding that responsibility for safety is shared. One's responsibility is only to the extent that one can have control over the risk.

    I have written a paper that discusses some of these points called "The Safety Gap" that can be downloaded at: http://www.nmsc.gov.au/documents/safety_gap.pdf

    This paper considers two sorts of safety gap: the Standards Safety Gap and the Compliance Safety Gap.

    Both these types are safety gap are highlighted in a recent coroner's report into the loss of a vessel called Malu Sara (see file attached). While issues of the peculiar split jurisdiction in Australia are also involved, the inquiry highlights a whole series of matters relevant to this discussion. In particular, it shows the weakness of relying on self declarations. In making a declaration, the person declaring is not only looking at the risks to safety, but also the immediate risks to his/her own business.

    By the way, tomorrow we are releasing for public comment a new issues paper on "Arrangement, Accommodation and Personal Safety" as a precursor to drafting the new NSCV Part C Section 1 for Australian Domestic Commercial Vessels.

    Topics within the scope of this standard that are discussed in the issues paper include:

    6. Application of the International Labour Conference Conventions
    7. Issues pertaining to Guard Rails and Bulwarks
    8. Sanitary arrangements
    9. Escapes and evacuation routes
    10. Minimum deck heights
    11. Minimum deck area requirements
    12. Protection of persons
    13. Berthing of persons
    14. Seating for passengers
    15. Gangways for safe movement on and off the vessel
    16. Dangerous Machinery
    17. Ventilation, lighting and habitability
    18. Noise levels on board vessels
    19. Field of Vision from the Operating Compartment
    20. Access for disabled passengers

    The link to the issues paper is:
    http://www.nmsc.gov.au/documents/Ha...m-Arrange-PSafety/Arrgt Issues Paper v1-7.pdf

    Comments are welcome.

    Regards
    Mori
     

    Attached Files:

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  6. MikeJohns
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    MikeJohns Senior Member


    Precisely
    The government state maritime authorities ( Marine board) approve the plans supervise the construction and sign off on the vessel. They carry all responsibility and liability and are insured. So far there has never been a legal claim against them.

    I hope this helps

    cheers


    PS I'll add that in Australia any inspector or accepting authority would never be held criminally negligent unless they knowingly and wilfully falsified the approval knowing that the construction was deficient. They might face civil damages though.
     
  7. mflapan
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    mflapan Junior Member

    Dear Mike and others

    Yes, there have been successful claims against the marine authorities in Australia. They are just not well known (they have normally been settled out of court). Like any statutory authority that issues a certificate of compliance that others may rely upon, marine authorities are subject to civil claims for damages.

    In at least one state, there have been major structural changes that endeavour to keep liability at arm's length from the Authority by using accredited surveyors, designers and builders who then make declarations on their own behalf (not on behalf of the Authority). However, even that is not a sufficient barrier to avoid claims against the authority for damages as the question that is raised is how the accredited person became accedited in the first place.

    An important part of controlling liability is to have a clear picture about what constitutes compliance. Our intention in drafting the NSCV has been to clarify the standard against which compliance is certified so that:

    1. It avoids subjective terminology such as "seaworthy"
    2. It avoids discretionary clauses such as "to the satisfaction of the attending surveyor"
    3. It promotes criteria for compliance that are tangible and measurable.
    4. It makes clear that the certificate of compliance does not guarantee safety; the standards are minimum required standards and stateholders must take responsibility for the particular characteristics of the vessel or operation that may not been adequately covered by the minimum required NSCV standards.

    These objectives will not be fully realised by one iteration of standards reform, however, we are hopeful that it will take us a good way towards our goal.

    The legislation of the states normally protects Government surveyors from civil liability, but they are not immune from criminal liability.

    Regards
    Mori
     
  8. MikeJohns
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    MikeJohns Senior Member

    Mori

    Presumably civil actions not criminal ?

    Certainly never in Tasmania but NSW is much more litigious.
    I’d be interested in the cases, in my own experience from a claimed personal injury the insurance company was too keen to settle and avoid the courts, but not in our interest. When we resisted and asked for it to proceed to the court we heard no more and it all evaporated.

    cheers
     
  9. Guillermo
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    Guillermo Ingeniero Naval

  10. mflapan
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    mflapan Junior Member

    Mike, I do not feel that I am qualified to go too deeply into cases as I was not involved directly so do not know all the facts.

    However, one went something like this: a watertaxi was surveyed and then shortly after capsized as a result of water entering an inspection port in the well deck. The thread on the plastic cover had stripped allowing the cover to lift; resulting in seawater entering the hull. A woman was trapped inside the vessel. She was rescued and resuscitated but claimed damages as a result of the experience (and presumably the effects). This was, of course, a civil matter.

    To the best of my knowledge there has not been a criminal proceeding against a government marine surveyor in Australia; in the last 30 years at least. But there have been charges laid against government officers responsible for safety in other transport modes; i.e. rail. I believe that prosecution failed.

    As legislated minimum standards of conduct for persons in the private sector become more onerous, it is hard to envisage that those in government will not be subject to similar scrutiny.

    There is a real irony that the safety regime that is largely intended to forgive human error is enforced by a reactive structure that is intolerant of human error.

    Hence, it is important that the standards that are applied are transparent and measurable, and that people's expectations are set and kept realistic. The objective is to control risks to acceptable levels, not to eliminate them entirely. It requires a fine balance between conflicting needs.

    Regards
    Mori
     
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  11. Eric Sponberg
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    Eric Sponberg Senior Member

    Situation in the US

    Guillermo asked me privately to chime in (some time ago--sorry about that, I don't check those PMs too often). Also, no one from the US has replied to date.

    In the US, there is no requirement for professional qualifications for officers or employees of a ship building company from the corporate point of view. Anyone can do anything. The ship building company is responsible for all aspects of design, construction and safe operation of the vessels they build. The builder, mostly as good business practice, will have both personal liability and professional liability insurance to cover itself in case of a vessel loss. In addition, in the commercial field, most vessels are classed by a classification society, and they are reviewed by the US Coast Guard for compliance with US federal regulations. However, for both classification and for USCG review, you do not have to have any professional qualifications such as a degree or a license to carry out the work. If you are smart enough to do the calculations and handle the paperwork, that is all you need. In the end, the boat or shipbuilding company assumes all responsibility. A smart ship builder, of course, will have qualified people with necessary background, because they are competing with other ship builders who are well qualified.

    If in a legal case there is found to be negligence or liability by any person connected with the incident, including an outside naval architect, that person can be held responsible in the form of fines and/or jail time. Whether that occurs is a matter of discovery in the process of the case.

    Eric
     
  12. Guillermo
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    Guillermo Ingeniero Naval

    Thanks a lot, Eric.
    As per the information I'm receiving from this thread and other sources, Spain's case is unique in the world, with NAs asuming in first person the possible liability for the construction works. Even if a Classification Society has supervised the construction, is the NA who has to sign the certificate of compliance with the design and the law, and the judge will call him/her as suspect in first place. Then he/she has to prove liability is not on his/her side. Not a nice thought.

    A group of NAs around here are fighting hard to change that, but it's being quite difficult as we have to convince not only the authorities but also some not practicing (but ruling) people in our very own association. Staggering.

    All the best.
     
  13. Eric Sponberg
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    Eric Sponberg Senior Member

    Certainly not! This begs a couple of questions: First, what is the nature of law in Spain about assessing guilt or innocence? In the US, you are innocent until proven guilty, and it is the job of the plaintiff to prove that the defendant has done something wrong. It is not up to the defendant to prove that he did NOT do something wrong.

    Second, what constitutes qualification for a naval architect? Is merely holding a college degree sufficient? Or do you have to hold a government license? Here in the US, as you may know, I was active in the Professional Engineer licensing program for naval architects. A pre-requisite for a PE license is that you have to hold a college engineering degree. Most boat designers and boatbuilders in this country, including the most famous ones, do not have an engineering degree, so they could not even qualify. Eric Goetz, for example, who owns Goetz Custom Boats and has built some of the most advanced America's Cup racing sailboats, has a degree in anthropology, not engineering.

    Third, how does the government, which ultimately controls the status of the signatory naval architect, assess jurisdiction? Suppose a vessel built in Spain is involved in a collision with a British ship in French waters. What can Spain do to assess liability by the naval architect and what powers does the government have? The accident happened outside it's own jurisdiction.

    These are very serious questions. And here is the US, PE licensing is issued by the separate states, which act like their own little countries. The rules are different from state to state, and vessels can cross jurisdictional boundaries. Therefore, states do not have jurisdiction of accidents that happen outside their own boundaries. This is what caused the state of Florida last year to NOT require PE licensing for naval architects in this state. The same holds true for any engineer of any kind of vehicle that can cross state lines: cars, motorcycles, airplanes and NASA spacecraft. All these types of engineers are not required to be licensed.

    You can read a summary of this issue here in Florida by my letter to the Editor of Professional Boatbuilder, issue #114, which you can see here:

    http://www.proboat-digital.com/proboat/20080809/

    And you can read my editorial on the issue in the Parting Shot column on what happened here in Florida at this link:

    http://www.proboat-digital.com/proboat/e20090203/

    Eric
     
  14. Ad Hoc
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    Ad Hoc Naval Architect

    Eric

    Some interesting points. I fully concur with you about being 'professional', far too many charlatans about posing as 'designers'. But I'm not sure how assessing guilt or innocence will help Spanish NA's.

    I currently live in Japan..the law here is as weak as dishwater, and greyer than an English winter!

    I think it goes to a more cultural understanding that simply innocence or guilt, as in the US and UK.

    In Japan, a very very rough genralisation is that the laws here are based upon customs, not common law. I have just been through a very long and expensive court case here in japan (too long to go into). Bottom line is, the defendant lied and cheated and it is perfectly acceptable. Why because a soon as a 'merchant' engages in business, the merchant is entitled to be 'compensated for their time'..in a nut shell. It says nowt about having to be honest, professional or acting with integrity etc....what is 'said' is irrelevant; just the action of 'doing business' is important, as somone must be 'paid'; that's the custom!!
    (Oh the judge ruled in our favour, that they lied to us..but we still had to pay the merchant for their time..go figure!)

    So I suspect what Guillermo is facing is more an historical custom based law rather than common sense common law. Not easy to over turn.
     

  15. Guillermo
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    Guillermo Ingeniero Naval

    Perhaps I didn't explain myself properly. Here in Spain, as in any other developed country, nobody's guilty unless proven contrary.

    But the public prosecutor or the examining magistrate will call to declare in first place the NA as he/she is the one and only person who signed in his/her own name (mandatory by law) the "building certificate of conformity". Even the NA not being guilty at all, he/she will have a very, very tough time at court, because he/she will be one of the main accused/defendants. Or the main, as the builder himself signs no certificate at all.

    All practicing NAs in Spain are licensed through the "Colegio de Ingenieros Navales" which is a public law entity and the one who gives the right to practice naval architecture in Spain (not the same as the SNAME, I think).

    Even if an accident happens off limits of the building country, the designer, builder, flag authorities and/or the classification society and of course the owner and/or the vessel's operator, can be sued in the building country, the country of flag, the country where the accident happened or in any other interested country with no problems. Let's take as an example the "Prestige", which accident happened in Spain's coastal waters and is being dealt with in courts in Spain, France and the USA, up to my knowledge.
     
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