Amid a multi-pronged investigation into death and injury among port workers, a major waterfront employer has dodged liability for risking the lives of six of its workers, writes Rebecca Macfie
The events at the Port of Napier on the night of April 30, 2018 might read like a slapstick farce, if not for the potentially fatal consequences for the six workers involved. Thanks only to sheer dumb luck, no-one died.
The workers were employed by stevedoring company ISO Ltd to load logs into a Panamanian-flagged bulk ship, the Nord Yilan. Before docking at Napier, the Nord Yilan had already called at Gisborne, where ISO workers had loaded logs into the vessel.
ISO was working under contract to Ernslaw One, New Zealand’s fourth largest forestry company, and the Nord Yilan was under charter to Ernslaw.
Hold 4 of the ship was half full of the Gisborne logs. Loading of this part of the ship was to continue at Napier. One worker would be operating a digger in the hold, using his machine to pack the logs tightly. Other workers had tasks on the wharf, including operating a crane to lift logs into the hold.
The danger to workers operating in enclosed spaces such as ships’ holds is widely recognised. In one disastrous incident only eight years earlier, two crew members had died within five minutes of entering the hold of a ship containing logs at Marsden Point. They had “lost useful consciousness owning to the combined effects of an oxygen depleted atmosphere and the likely presence of toxic gases, both consequences of the organic decomposition of logs in the closed cargo hold,” concluded the Transport Accident Investigation Commission in its investigation into the deaths of the two seamen, who were Myanmar and Korean nationals. “The dangers of the organic decomposition of logs and other organic cargoes in enclosed spaces are well known in the international maritime community.”
ISO, which employs over 1000 workers and operates at ports throughout the country, knew the risk, and had a “standard operating procedure” (SOP) to manage it. The SOP stated that hatch covers were to be opened “an absolute minimum” of 30 minutes before workers entered the hold, and workers were to “check” the area was property ventilated before entering. According to a summary filed by Maritime New Zealand with the District Court in Napier, this check involved “smelling and looking”.
The Napier ISO workers arrived to start their night shift at 6.30 on the evening of April 30. After a briefing at 6.45, the foreman realised hatch covers had not been opened. He went aboard the ship and asked for this to be done. By 7.10pm the hold was open.
The digger was lifted into the hold at 7.22pm. The digger driver, Iakopo Sagote, then boarded the ship, walked along the deck to the hatch, and made his way down into the hold.
Sagote quickly started to lose consciousness. He was carrying no method of raising the alarm, nor had his employer equipped him with any atmospheric monitoring kit.
Although feeling weak, he managed to climb across the Gisborne logs to the digger, where there was a radio inside the cab. He started up the digger, thinking this was necessary for the radio to work.
He lost consciousness inside the cab, having been unable to alert anyone to the danger he was in.
The crane driver noticed smoke coming out of the hatch and told the foreman, James Oliver. Oliver ran to the hatch and and yelled and looked down into the hold, but couldn’t see Sagote. He climbed down to find his workmate, and quickly lost consciousness.
Others became aware there was a problem. Another ISO worker entered a piece of equipment known as a “paint cage”, and was lowered by the crane into the hold. He tried, and failed, to pull Oliver into the cage. This third worker felt unable to move, and was lifted in the cage back out into fresh air.
Two ISO workers then entered the cage and were lifted back into the hold. This time they managed to haul Oliver into the cage, and the crane lifted them out onto the wharf.
Sagote, meanwhile, was still unconscious in the digger.
Next, four ISO workers decided to return to the hold to mount a rescue. They got inside the cage and were lifted into the hold. They managed to attach the crane to Sagote’s digger, then they climbed on top of the digger. Men and machine were then lifted out.
Sagote had feared he would die in the hold, he later told the District Court in Napier, after ISO was charged by Maritime New Zealand for failing to comply with its duties under the Health and Safety at Work Act and for exposing the workers to the risk of death or serious injury.
Sagote got away with a night in hospital, as did Oliver. All the other workers involved were also taken to hospital, but were discharged that night.
“The medical evidence called before me made it very clear that it was only a matter of luck that one or more fatalities did not occur,” noted Judge Geoff Rea in his ruling, released last week.
ISO faced a fine of up to $1.5 million under the charge brought by Maritime New Zealand.
But Judge Rea dismissed the case against the company, imposing no fine for the staggering near miss.
Maritime New Zealand argued in court that it was “reasonably practicable” for ISO to have adequate systems to ensure ships’ holds were property ventilated before workers entered. Judge Rea concluded this proposition was “driven with the benefit of hindsight”. Similarly, the argument that the workers could reasonably have been given equipment to monitor the atmosphere was a case of “hindsight, and of the regulator trying to impose an obligation that “simply did not exist at the time”. (After the Nord Yilan episode Maritime New Zealand issued ISO with improvement notices requiring it to do atmospheric testing.)
Given that no testing of the atmosphere in the hold was carried out at the time the workers lost consciousness, any attribution as to cause was “only speculation”, according to Judge Rea’s decision.
It was “possible” that Sagote had entered the hold before 30 minutes had elapsed after the hatch covers were opened – in breach of the ISO standard operating procedure – but this couldn’t be proved, said the judge. Although the workers knew there was a waiting time after the hatch covers were opened, “[n]one of them seem particular [sic] definite about what they considered the time to be.”
Judge Rea also rejected Maritime New Zealand’s argument that there were other measures ISO could have taken to keep workers safe: that it was “reasonably practicable” to have given workers sufficient training to ensure ventilation and monitoring policies were effective; to supply adequate equipment to rescue workers from the holds of ships; and to have policies and procedures – such as training in the use of breathing apparatus – for rescuing workers’ from a ship’s hold.
Maritime New Zealand has not yet decided whether to appeal Judge Rea’s decision.
The Napier case is the third time that ISO – owned by Australia-based logistics company QUBE – has avoided court fines following serious health and safety incidents. In October 2020 it entered into an Enforceable Undertaking to make health and safety improvements after a worker fell eight metres from a log ship at the Port of Tauranga. Last year the District Court in Gisborne agreed with ISO that it ought to make improvements under a Court Ordered Enforceable Undertaking – rather than pay a hefty fine to the Crown – over the death of 29-year-old port worker Shannon Rangihuna-Kemp, who was killed by a log falling off a trailer.
ISO’s general manager of health and safety, Chris Bell, declined to talk to Newsroom about the Napier case, saying the company had no comment “about anything”. He hung up before we were able to ask any questions.
Judge Rea’s decision has been released at a time of intense focus on waterfront health and safety, and is likely to be closely scrutinised by the multitude of parties with a stake in the sector.
Michael Wood, minister of both transport and workplace relations and safety, ordered multiple investigations late last month after two waterfront workers were killed in less than a week. Twenty-six year old Atiroa Tuaiti, a worker with stevedoring firm Wallace Investments, was killed at the Ports of Auckland on April 19 after falling from a container; and on Anzac Day a Port of Lyttelton worker in his 70s was buried in coal on the deck of a ship during a loading operation at the port’s specialised coal export facility.
In addition, an ISO worker was injured on April 17 after falling several metres between huge reels of paper aboard a ship at the Port of Tauranga. According to the Amalgamated Stevedores Union, which represents 50 percent of ISO workers, the man had to be extricated by the fire service and suffered a broken leg. Maritime New Zealand is investigating the incident.
Until recently, the Ports of Auckland has taken the brunt of criticism over port health and safety, as a result of three deaths between 2017 and 2020. Twenty-three year old Laboom Dyer died in 2018 when the straddle carrier he was driving tipped over, and 31-year-old Pala’amo Kalati was crushed by a container in 2020. The company was prosecuted and fined $540,000 over Dyer’s death, and both the company and its former CEO Tony Gibson face charges over Kalati’s death. The company was prosecuted and fined $424,000 over the 2017 death of ocean swimmer Lesley Gelberger when he was struck by a pilot boat.
These events triggered a major health and safety review by the Ports of Auckland’s shareholder, the Auckland Council. The resulting report, published in March 2021, revealed “systemic problems at the company in relation to health and safety risk management and organisational culture”, including a perception among workers that the company prioritised profit over safety.
However it’s clear from recent events, including the run of serious incidents at ISO, that the problems go much wider than just the Ports of Auckland. Wood has directed the Transport Accident Investigation Commission to investigate the recent port deaths to see if there are “system wide lessons” to improve safety. Every port has been told to review their procedures and provide assurances that they are fit for purpose. And the Ports Leadership Group – comprised of port chief executives, waterfront contractors, unions and regulators – has been asked to report on any regulatory changes required.
Wood also ordered Maritime New Zealand and WorkSafe to visit all 13 ports and assess health and safety. It’s understood that task had been completed by yesterday.
Charles Finny, who represents the port CEOs, says tripartite work has been underway for several years on “best practice” guidelines on the waterfront, with a focus on interactions between people and machines, working at heights and fatigue.
“Port CEOs as a group are devastated by these last two deaths,” he told Newsroom. He says the waterfront environment is inherently complex because of the huge number of businesses that operate within a port footprint. As the best practice guideline points out, in many cases the port is merely a landlord to port contractors – as in the case of Wallace Investments at the Ports of Auckland, and ISO at ports around the country.
Craig Harrison, president of the Maritime Union of New Zealand, says he understands the two regulators have observed wide discrepancies among contractors and ports in the way they manage the risks of similar tasks. He thinks there needs to be a single enforceable code of practice to impose common standards across the industry. He also argues that the demarcation line between Maritime New Zealand and WorkSafe should be rubbed out, with enforcement of health and safety on the waterfront transferred solely to Maritime New Zealand. Currently the maritime agency has jurisdiction over incidents onboard ships, while anything that happens wharfside falls to WorkSafe.