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The Health and Safety Authority and the Fishing Industry

The Health and Safety Authority and the Fishing Industry by Dermot Conway

In recent times I have been increasingly involved in the Health and Safety Authority (HAS) inspections following accidents and dangerous (occurrences). A number of issues consistently arise in terms of the Fishing Industry.

It is generally believed that when an accident happens on board that the authorities to be notified are the MSO and the Coastguard. That is not correct. The HSA must also be notified and it is an offence in itself not to notify.

Health and Safety legislation deem a fishing vessel and its operations (all of them including loading and unloading of a vessel) a place of work. While Non EEA fishermen are clearly employees, for the purposes of this legislation, Share Fishermen are also deemed ‘employees’.

Unlike the MSO and the Coastguard, a HSA Inspector has extremely wide ranging powers by Statute. It is very easy to find yourself getting into hot water with a HSA inspector because of those powers.

Powers of a HSA Inspector

The following is a short list of those powers (Section 64) (it is not a complete list):

– entering the workplace,

– questioning any person,

– removing or copying records and documents (text messages and emails are documents),

– directing that a place be left undisturbed,

– taking photographs and measurements.

As previously stated it is an offence not to notify but it is also an offence to obstruct or delay an inspector from exercising his/her functions and/or to prevent or attempt to prevent a person from answering an inspector’s questions.

Statements

A HSA inspector has the option of taking a Statement voluntarily or under caution. This is the same as a member of An Gardai Siochana taking a Statement.

While any statement being taken is serious, should an Inspector indicate that the Statement will be taken under caution it should immediately indicate to that person that they are under suspicion of a criminal offence under the Health and Safety Legislation.

It is advisable to take legal advice before giving any statement but when a Statement is under caution it is very much the case that you should consider having a Solicitor present. While it is an offence to refuse to answer a question, you have the right not to incriminate yourself(section 64(9)). It is not a legal option to fail to answer a question on the grounds that you might incriminate someone else. The right of silence only applies to self-incrimination.

It should be noted that in giving a Statement it is an offence to give misleading or knowingly wrong information.

At the end of the interview the interviewee will be asked to sign the Statement. This effectively is confirming that the contents of the note of interview is accurate. Given that this can be used as evidence and that you can commit an offence to give misleading information, it needs to be reviewed with caution, with a Solicitor if under caution.

The interviewee should ask for a copy of the statement once signed. This needs to be shared with the Skipper/Owner afterwards if it is not the Skipper/Owner who is being cautioned.Today, most vessels are owned by Companies (in the main). The process of selecting the person who the Inspector wishes to speak with is usually by determining who had control and possession of the vessel.

A crewmember may be interviewed when the incident is very localised, and the Inspector is trying to ascertain what happened.

Notification

In terms of the issue of notification, when someone is injured (or worse) this clearly is a notifiable event. This would also include an injury to a non crew member.

However there is another classification of event which is a ‘dangerous occurrence’. Under the legislation this capture the following type of events:‘the collapse, overturning, failure, explosion, bursting, electrical short circuit discharge or overload, or malfunction of any work equipment’.

No one needs to be injured but it must be reported. Failure to report is an offence.

The Authorities website is exceptionally informative www.hsa.ie and it contains a precedent Safety Statement for Fishing vessels. At all times great care should be had when interacting with HSA Inspectors.

Dermot Conway

Conways Solicitors

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