Result of Appeal Court hearings seem dependent on questionable report issued by Branch of the Korean Maritime Safety Tribunal – which findings against the Hebei Spirit also are in line with the Reasons for Appeal by both Samsung and the Prosecutor’s Office, submitted around 2 months prior to the release of this Report on September 4, 2008
After nearly 3 months of submissions and court hearings in the 2nd trial of the incident involving the VLCC Hebei Spirit and Samsung’s crane barge – there was very little in the way of new evidence introduced by either the Prosecutor’s office or Samsung (found guilty in the first trial but allowed to assist the Prosecutor’s office – to the extent of cross-examining witnesses for the Hebei Spirit team during the Appeal Hearings).
The only difference in the Appeal Court hearings (from the original trial where a Korean court found the Master and C/O and the owner of the Hebei Spirit, innocent of all charges) came from the official report issued by the Incheon Maritime Safety Tribunal (IMST), a branch of the main Korean Maritime Safety Tribunal (KMST).
It appears, that both the Prosecutor’s office and Samsung were aware of the IMST findings beforehand, as their Reasons for Appeal bear very close resemblance to the IMST’s main findings of fault on the part of the Hebei Spirit
This possibility of collusion was fiercely defended by the Korean Consulate in London, but it also difficult to see how the official IMST report could have the same findings – in relation to the IMST’s main findings of fault on the part of the Hebei Spirit - as the Reasons for Appeal submitted by Samsung and the Prosecutor – nearly two months apart. Who copied who??
We will provide readers with a link within the next day or two and they may download and/or read the complete IMST report for themselves – and decide.
The actual IMST report was also issued contrary to IMO regulations. Such investigative reports by flag states are normal procedure, but not issued until legal proceedings have been completed; as they are not meant to influence or be used in any legal proceedings (e.g. Hong Kong, the other flag state involved will not release their report until the criminal charges have been dealt with. Furthermore, under the IMO regulations, such report should have been sent to all parties for review and consultation with owners and flag state (Hong Kong for the Hebei Spirit). This did not happen, at least in so far as the owners and flag state of the Hebei Spirit were concerned.
What did happen was that the Report received a lot of attention and was freely available in Korea - but without all the parties involved having any recourse to explain, comment, correct the details, which were not backed up by facts and relied on assumptions and factual data from the 1st hearing – which was omitted. Not to mention key Korean witnesses (on behalf of the Hebei Spirit) which for unknown and unexplained reasons were suddenly not available to appear at the Appeal Court hearings.
Despite Samsung being the guilty party, the emphasis in the report was on criticising the actions of the Hebei Spirit and her crew – with almost no mention of the defense for the Samsung Marine Spread (MS) and its crew.
As quoted from the introductory summary of findings from the IMST Report :
“ The marine pollution due to the collision of this case (“Marine Pollution”) was caused by the following: The tugboats, “Samsung T-5” and “Samho T-3,” failed to take early actions in response to the weather changes while they were performing the towing operations for the barge “Samsung No. 1.” The marine spread encountered bad weather and lost its towing ability to the extent that it was impossible to navigate the vessels as intended. However, the marine spread continued to navigate without taking any safety measures, such as warning the other vessels nearby or performing emergency anchoring, etc. In the end, the towing line of Samsung T-5 broke under the circumstances where the marine spread had approached too closely to the anchored vessel, M/V “Hebei Spirit,” and “Samsung T-5” drifted towards “Hebei Spirit.” The following contributed to the marine pollution due to the collision: Despite the fact that “Hebei Sprit” was anchored in an area frequented by sailing vessels and had a duty of care, it was negligent in performing its duty and failed to notice the marine spread early. Under the circumstance where it had to belatedly avoid the collision, Hebei Spirit could not help but go dead slow astern because it did not have its main engines fully prepared. In addition, after the occurrence of the collision, it failed to actively perform responsive measures under the Shipboard Oil Pollution Emergency Plan because it lacked understanding of the seriousness of the marine pollution.”
Factual evidence from the original hearing does not support the finding of these hearings. For example:
“ … in the end, the towing line of Samsung T-5 broke under the circumstances where the marine spread had approached too closely to the anchored vessel, M/V “Hebei Spirit,” and "Samsung T-5” drifted towards “Hebei Spirit.”
After nearly 3 months of submissions and court hearings in the 2nd trial of the incident involving the VLCC Hebei Spirit and Samsung’s crane barge – there was very little in the way of new evidence introduced by either the Prosecutor’s office or Samsung (found guilty in the first trial but allowed to assist the Prosecutor’s office – to the extent of cross-examining witnesses for the Hebei Spirit team during the Appeal Hearings).
The only difference in the Appeal Court hearings (from the original trial where a Korean court found the Master and C/O and the owner of the Hebei Spirit, innocent of all charges) came from the official report issued by the Incheon Maritime Safety Tribunal (IMST), a branch of the main Korean Maritime Safety Tribunal (KMST).
It appears, that both the Prosecutor’s office and Samsung were aware of the IMST findings beforehand, as their Reasons for Appeal bear very close resemblance to the IMST’s main findings of fault on the part of the Hebei Spirit
This possibility of collusion was fiercely defended by the Korean Consulate in London, but it also difficult to see how the official IMST report could have the same findings – in relation to the IMST’s main findings of fault on the part of the Hebei Spirit - as the Reasons for Appeal submitted by Samsung and the Prosecutor – nearly two months apart. Who copied who??
We will provide readers with a link within the next day or two and they may download and/or read the complete IMST report for themselves – and decide.
The actual IMST report was also issued contrary to IMO regulations. Such investigative reports by flag states are normal procedure, but not issued until legal proceedings have been completed; as they are not meant to influence or be used in any legal proceedings (e.g. Hong Kong, the other flag state involved will not release their report until the criminal charges have been dealt with. Furthermore, under the IMO regulations, such report should have been sent to all parties for review and consultation with owners and flag state (Hong Kong for the Hebei Spirit). This did not happen, at least in so far as the owners and flag state of the Hebei Spirit were concerned.
What did happen was that the Report received a lot of attention and was freely available in Korea - but without all the parties involved having any recourse to explain, comment, correct the details, which were not backed up by facts and relied on assumptions and factual data from the 1st hearing – which was omitted. Not to mention key Korean witnesses (on behalf of the Hebei Spirit) which for unknown and unexplained reasons were suddenly not available to appear at the Appeal Court hearings.
Despite Samsung being the guilty party, the emphasis in the report was on criticising the actions of the Hebei Spirit and her crew – with almost no mention of the defense for the Samsung Marine Spread (MS) and its crew.
As quoted from the introductory summary of findings from the IMST Report :
“ The marine pollution due to the collision of this case (“Marine Pollution”) was caused by the following: The tugboats, “Samsung T-5” and “Samho T-3,” failed to take early actions in response to the weather changes while they were performing the towing operations for the barge “Samsung No. 1.” The marine spread encountered bad weather and lost its towing ability to the extent that it was impossible to navigate the vessels as intended. However, the marine spread continued to navigate without taking any safety measures, such as warning the other vessels nearby or performing emergency anchoring, etc. In the end, the towing line of Samsung T-5 broke under the circumstances where the marine spread had approached too closely to the anchored vessel, M/V “Hebei Spirit,” and “Samsung T-5” drifted towards “Hebei Spirit.” The following contributed to the marine pollution due to the collision: Despite the fact that “Hebei Sprit” was anchored in an area frequented by sailing vessels and had a duty of care, it was negligent in performing its duty and failed to notice the marine spread early. Under the circumstance where it had to belatedly avoid the collision, Hebei Spirit could not help but go dead slow astern because it did not have its main engines fully prepared. In addition, after the occurrence of the collision, it failed to actively perform responsive measures under the Shipboard Oil Pollution Emergency Plan because it lacked understanding of the seriousness of the marine pollution.”
Factual evidence from the original hearing does not support the finding of these hearings. For example:
“ … in the end, the towing line of Samsung T-5 broke under the circumstances where the marine spread had approached too closely to the anchored vessel, M/V “Hebei Spirit,” and "Samsung T-5” drifted towards “Hebei Spirit.”
The towing line broke after the MS (marine spread) had passed the bow of the Hebei Spirit around 200 Metres and was proceeding away from the Hebei Spirit.
“ … The following contributed to the marine pollution due to the collision: Despite the fact that “Hebei Sprit” was anchored in an area frequented by sailing vessels and had a duty of care, it was negligent in performing its duty and failed to notice the marine spread early.”
The Hebei Spirit was anchored in the area designated by the Daesan VTS the previous evening. Previous evidence showed that the Hebei Spirit C/O noticed the marine spread before the anyone else and were the first to advise the VTS that there may be a problem, asking for clarification – which did not come for some time as the MS was unable to contact anyone from the MS via normal VHF (channel 16) communications.
“ … after the occurrence of the collision, it failed to actively perform responsive measures under the Shipboard Oil Pollution Emergency Plan because it lacked understanding of the seriousness of the marine pollution.”
An assumption and opinion made without any factual evidence – unless they refer to a similar comment made by the Prosecution team during the Appeal hearings that the Master of the Hebei Spirit should not have ..
* immediately after the collision checked on the location and condition of his crew
* investigated the condition of his ship, where the breaches were located, if there was any danger to the integrity of his ship which may leave it vulnerable to further losses
“ … after the occurrence of the collision, it failed to actively perform responsive measures under the Shipboard Oil Pollution Emergency Plan because it lacked understanding of the seriousness of the marine pollution.”
An assumption and opinion made without any factual evidence – unless they refer to a similar comment made by the Prosecution team during the Appeal hearings that the Master of the Hebei Spirit should not have ..
* immediately after the collision checked on the location and condition of his crew
* investigated the condition of his ship, where the breaches were located, if there was any danger to the integrity of his ship which may leave it vulnerable to further losses
* as the report criticized - wasted time pumping inert gas into the breached tanks but rather concentrated on minimizing the leakage of oil from breached tanks (no suggestion as to how?)
The investigation also suggested that we should have transferred oil from the breached tank to other tanks and if they were full, why didn’t we transfer oil to the empty ballast tanks?
Obviously the fact that according to class rules for this type of vessel, the cargo piping system and ballast piping system had been designed to operate separately and with no connecting piping system was either not known to them or did not occur to them?
Next time, we will look at some of the other assumptions and accidental (?) omissions that appear in the IMST (KMST) findings, issued around commencement of the Appeal proceedings, possibly as there was no new factual evidence available.
The investigation also suggested that we should have transferred oil from the breached tank to other tanks and if they were full, why didn’t we transfer oil to the empty ballast tanks?
Obviously the fact that according to class rules for this type of vessel, the cargo piping system and ballast piping system had been designed to operate separately and with no connecting piping system was either not known to them or did not occur to them?
Next time, we will look at some of the other assumptions and accidental (?) omissions that appear in the IMST (KMST) findings, issued around commencement of the Appeal proceedings, possibly as there was no new factual evidence available.
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