Systematic maritime failures exposed once more at Letterkenny inquest into double-tragedy at Malin Head

Systematic maritime failures exposed once more at Letterkenny inquest into double-tragedy at Malin Head, writes Michael Kingston

Department of Transport shame – state sponsored cruelty – systematic maritime failures exposed once more at Letterkenny inquest into double-tragedy at Malin Head – Call for Public Enquiry

 1016 “I need the coastguard, yeah off Malin Head, the boat is sinking, the boat is sinking…”

 17 July 2018 – Mr Dessie Keenan off Portronan, Malin Head – 999 call

 1535 – Dessie Keenan seen in water clinging to a buoy and rescued by fisherman Philip Doherty

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And so it came to this in the latest chapter of the most gross display of deliberate failure, causing death, that the Irish State has ever seen: the failure of the State to provide clear guidelines for pleasure craft users, the failure to put in place simple mandatory measures for pleasure craft users, the failure to investigate maritime tragedies correctly and make proper recommendations, the failure to rescue due to systematic safety management oversight in the Irish Coastguard and Department of Transport, and the failure of the Marine Casualty Investigation Board and Marine Survey Office to turn up at inquests and help with investigations into cause of death, all exposed by the ordinary people of Donegal on jury duty, and a brilliant empathetic humble doctor, Coroner Dr Dennis McCauley, at Letterkenny Courthouse on 4 and 05 May 2022, at the inquest into the death of Thomas Weir (16) and Gerry Doherty (63) off Portronan, Malin Head on 17 July 2018 during an innocent fishing trip, one Gerry Doherty had made 100’s of times before tragedy struck.

Led by Dr McCauley in his meticulous investigation, the four honorable men and three honorable women of the Jury, attentive to the nth degree, did in one foul swoop what all others have failed to do – hold the Department of Transport’s Maritime Safety Division to account for their systematic safety failures, in a Court of law. Although the remit of the Coroner’s inquest is not to find fault or blame, it can clearly be inferred from the facts, arrived at through great diligence in approach by the Coroner, and by the Jury Recommendations that, based on those facts and Recommendations, significant culpability for the tragedy rests at the door of the Transport Department. The Jury’s four recommendations are as follows:

  1. To formally ask the relevant Minister [Transport] responsible to finally take on board previous recommendations asking for the mandatory training of all persons taking vessels to sea;
  2. To educate all seafarers that a mobile phone is not an adequate radiocommunication device on its own (that VHF radios are deemed mandatory in all vessels taking to the sea);
  3. That education programs should continuously highlight not only the possession, but the wearing of life jackets when one is on a vessel; and
  4. To review the Code of Practice to remove any inconsistencies in the document and have it presented in a more user-friendly readable format for the average reasonable person.

Accordingly, Donna Marie Keenan, the daughter of Gerry Doherty, and wife of Dessie Keenan, made this Statement on behalf of their family calling for a public enquiry into how all these failings have been allowed to occur and to fix the system immediately.

At the conclusion of the Inquest, those in the packed Courthouse, in the midst of such harrowing tragedy, almost laughed at the last two sentences of the curt three-line letter from the Marine Survey Office to the Coroner. Having asked them to attend to explain The Code of Practice for the Safe Operation of Recreational Craft, so nonsensical was their letter, Dr McCauley, disgusted by their arrogance, felt compelled to read it out:

“I (MSO Official) wish to advise that it would be inappropriate for the MSO to attend. The Code of Practice for the Safe Operation of Recreational Craft has been designed and laid-out in a manner focusing on ease of use and is self-explanatory”

Yet, earlier in the day the Inquest heard from Mr Roger Sweeney, Acting CEO of Water Safety Ireland, who confirmed what everyone at the inquest was thinking when looking at the 200 page plus monster document exhibited in Court, and what those of us working on these issues and failures for so long already knew. He described it as “in-consistent”, “confusing” and “certainly not user-friendly for the ordinary reasonable member of the Irish public”. It was clear to the Court that it is so confusing that the reader cannot even decipher into what category their craft belongs to know what equipment is required. Even Ireland’s maritime surveyors have this difficulty, so what hope would there be for everyone else, including Dr McCauley, who expressed complete confusion, echoed by everyone else in the Court room, including several barristers, maritime personnel, and of course the Jury.

The Inquest also heard from Barrister Peter Nolan about how pleasure craft tragedy after pleasure craft tragedy had been investigated by the Marine Casualty Investigation Board, and the same regurgitated recommendations made after each one that ‘All owners and users of recreational vessels should comply with the Code of Practice (CoP): The Safe Operation of Recreational Craft which is published by the Department of Transport’ and that ‘The Minister for Transport should consider issuing a Marine Notice to draw attention to the CoP of the Safe Operation of Recreational Craft’

Yet no ordinary members of the public, such as Gerry Doherty (RIP), or Dessie Keenan, who worked as a builder and a lorry driver respectively, would ever have had sight of a Marine Notice. The Court heard that you need to pro-actively register as an email recipient or find such notices on the Department of Transport Website. Many members of the public, and  some politicians, do not even realise that the Department of Transport deals with maritime safety. Indeed many think it is the Department of Agriculture and Marine. So, in the unlikely event that ordinary members of the public were to receive such a Marine Notice, what hope did they too have of deciphering their way through it. It was confirmed to the Court by Dessie Keenan that neither he nor Gerry Doherty, prior to the tragedy were aware of the CoP.

Indeed, and despite this obvious recommendatory failure, this regurgitation was made in the MCIB report into their own tragedy at Malin Head (MCIB 280), published on 09 November 2020.

Worse still, in addition the ill-thought through use of such a recommendation, knowing it to be ineffective with no analysis of that ineffectiveness by the MCIB in their Report, compounded by its re-use as a recommendation in the report, there was no reference to the additional previous recommendations that pleasure craft users should have ‘mandatory basic training’, and the fact that it has not been acted upon by the Department of Transport. For reasons only known to the MCIB and Department of Transport officials  operating on the MCIB until a 09 July 2020 Judgement  of the Court of Justice of the European Union forced their removal because of ‘an obvious potential for a conflict of interest’, the clear necessity for this recommendation has not appeared in any MCIB Reports over the last decade. Mr Nolan informed the Court “that an MCIB recommendation for Mandatory basic training for pleasure craft users was made as far back as 2007, yet 15 years later, with perhaps 60,000 pleasure craft scattered around Ireland’s coast, this recommendation had not been followed through by the Department of Transport, which is their mandate”

It is indeed pertinent that the diligent jury did not just recommend mandatory basic training but added “in accordance with previous recommendations” which highlights the failure of the Department of Transport’s Maritime Safety Division to fulfil their mandate which is to enhance in every way maritime safety in Ireland.

Having read the MSO letter, Dr McCauley went on to say:

“The State bodies are supposed to be here to help us. I think they should get out more because I do not think they have a realization of what is in the real world and I think they should get out and help us more and be seen to be helpful, to listen to people. And that feeds into my last point: There are potentially 60,000 pleasure craft today going to sea in Ireland, and there could be 2-3 or more people on board. Yet there is no mandatory requirement that they have any training in how to manage their boat from a risk assessment or risk reduction point of view. It has been recommended numerous times and I am just wondering why the relevant Department and Minister do not think it is important to pay attention to that. If it is not important, they should tell us why it is not important, why 60,000 people going around the coast of Ireland do not need training in a formal way and I would be interested to know”

So, in analysing the Department of Transport’s performance, and in making their recommendations the Donegal Jury and Dr McCauley have done what the MCIB have failed to do despite it being a critical part of the MCIB’s function to carry out an analysis of the performance of the Department of Transport in relation to the implementation and enforcement of safety recommendations and regulations.

Worse still from Letterkenny for the MCIB and the Department, in addition to the failed analysis in MCIB 280 of previous recommendations and implementation by the Department, the Inquest discovered critical further issues of failure (we, of course, having already learned about the appalling systematic failures regarding Rescue 116 in November 2021) within the safety management structures of the Irish Coastguard which led directly to the failure to respond to Dessie Keenan’s 999 call. Not only does this expose the MCIB Report as utterly incompetent, but renders, as Dr McCauley stated in his closing, the MCIB “at risk of becoming redundant or irrelevant”.

The call from Dessie Keenan went through to Emergency Call Answering Service ( BT ECAS) in Navan at 1016 on the day of the tragedy, in which he said to the BT ECAS operator “I need the coastguard, yeah off Malin Head, the boat is sinking, the boat is sinking…”

However, when the call was transferred to Malin Head Coastguard Operator, Sean Diver, he told the inquest he couldn’t hear anything. This was clearly correct from the recording played to the Court. Mr Diver called Dessie Keenan’s mobile six times between 10.16 to 10.41 but to no avail. Mr Diver could only get through to Mr Keenan’s message minder, and could only establish the position of the mast the original call was received from. He called BT ECAS in Ballyshannon to query the call, when in fact it originated from BT ECAS Navan. Accordingly, when informed, he called BT ECAS Navan. Whilst on the call to Navan, Ballyshannon rang back and because Mr Diver was on the call to Navan, a second Coast Guard operator, Mr Canning, who did not give evidence at the inquest, was told by the Ballyshannon operator, who had looked into it, that the caller said “off Malin Head”. The Ballyshannon operator told the Inquest that she had listened to part of the call only and did not pass on the critical “boat sinking” part of the recording which she did not hear. With so many parties involved confusion prevailed and critically Mr Diver, himself, had no further information to establish what the problem was and the location. He told the inquest he didn’t have enough detail at that point to launch a search and rescue operation due to the lack of information he had. Dessie Keenan remained in the water for almost 6 hours, Gerry Doherty died not long after the call, and Thomas Wier was alive for well over an hour before he succumbed to ‘asystolic arrest as a result of immersion in sea water’.

However, it became clear from evidence of Mr Ciaran Moynihan of British Telecom who oversees  the BT ECAS system that BT ECAS notified the Irish Coastguard of a ‘play back facility’, which Mr Diver did not avail of to allay his concerns. Both Mr Diver, and Mr Derek Flanagan, then manager of Malin Head Coastguard Operation Centre were unaware of the ‘play back facility’ as it had not been brought to their attention nor had any training regarding this option been provided, even though, as Mr Derek Flanagan learnt shortly after the tragedy from a member of An Garda Siochana, that it was commonly used by An Garda Siochana.

This exposed to the inquest a safety management failure by the Irish Coastguard regarding dissemination of critical information to their operators and training, none of which was included in the MCIB report. The MCIB have therefore conclusively failed fundamentally, as it is their sole purpose to get to the bottom of the facts so that we can learn lessons.

Given all these findings of fact Dr McCauley stated that, “The MCIB Report is at variance with what we have found today. The report is not factually correct. There are particular facts that are not in that report. As a result, the analysis’ in that report are not what they should be, which had a huge bearing on the outcome and that is really important to note”

And that failed MCIB report, similarly, cannot find fault or blame. However, inferences are always going to be drawn when factual reports are published.

In failing to establish the facts correctly, and therefore the failings correctly, MCIB Report 280 focused heavily on Gerry Doherty and Dessie Keenan’s failure to comply with the CoP, one that we now know was not brought to their attention through no fault of their own, and which is difficult in any event to follow. Additionally had earlier MCIB recommendations for mandatory basic training been implemented, they would certainly have known about it, and it is “highly likely” as stated to the Inquest by Mr Roger Sweeney, that this incident would not have occurred. For example, a simple point discussed by the Inquest was that the training would have directed Mr Doherty and Mr Keenan to prioritorise mooring the boat from the front in the emergency before concentrating on attempting to restart their engine, which would have prevented the boat from being swamped. Mr Doherty had been out in his boat hundreds of times, and he was regularly accompanied by Dessie Keenan. Dessie Keenan told the Court that Mr Doherty was safety conscious, but that they could not have been aware of things that they did not know about. They employed what they thought was safe practice, referred to at the inquest as ‘common practice’ but which did not represent ‘best practice’ and it was for those reasons that the jury made their sensible recommendations to assist the Irish public in achieving ‘best practice’.

So, several Department of Transport failures were not included in the MCIB Report. This caused an over focus on Gerry Doherty and Dessie Keenan’s interaction with the CoP without highlighting any of the mitigating factors that the Inquest established. The publication of MCIB 280 with these errors and imbalance has had serious consequences for Dessie Keenan and his family. The causative effect of the incorrect MCIB Report 280 resulted in the following media headlines that greeted the Doherty and Keenan family shortly after it was published:

Crew in boat tragedy did not plan sufficiently – probe (rte.ie)

Men who drowned could not effectively indicate distress, investigation finds

As if Dessie Keenan had not been through enough, this had the effect of loading blame on his deceased father-in-law Gerry Doherty (RIP) and himself, which was nationwide, and it has indeed resulted in serious family disruption, including legal consequences, and indeed created extra tension and pressure for the families at the Inquest.

Those of us who work in this area are acutely aware of the fundamental failures of Ireland’s MCIB. Victim blaming is the the order of the day in MCIB Reports, which are riddled with errors, with no focus on Departmental failings. (See Marine Hazard Limited’s Report of 04 January 2021 Report into The Operation and Effectiveness of the Marine Casualty Investigation Board (MCIB)

These families would be better off with no report. Fisherman after fisherman, pleasure boat user after pleasure boat user blamed for errors, with no focus on the regulatory framework that should be protecting them. How are we to learn from this process?

So not only is the MCIB unfit for purpose but the effects of its incompetent work are far-reaching, and in fact catastrophic for people in grief following tragedy.

In not assisting the Coroner and his inquest Dr McCauley said of the MCIB in his closing remarks

“They have shown a complete lack of empathy to the families, and a certain arrogance about themselves and their report, that their report should be taken as ‘plain reading, should be accepted as evidence without any actual questioning”. He went on to say “ They don’t think the families are important; they don’t even think explaining the facts of the death to the family is important, and they don’t respect a Coroner’s Court. And I think that is sad”

That was not the intention when the Merchant Shipping (Investigation of Marine Casualties) Act 2000 was introduced on 27th January 2000 following the enormous work of the Investigation of Marine Casualties Policy Review Group in the 1990’s, whose report was published in 1998, its clear objectives highlighted by Dr Michael Woods[1] when introducing the legislation:

  • The action group, in its deliberations, had particular regard to best practice and ideas in place and being developed internationally to ensure that all water users can enjoy their activities in safety. The group examined the marine casualty investigation systems in various other countries, most notably those in Europe and in Australia, Canada, USA and New Zealand.
  • The review group examined the problems encountered in carrying out previous casualty investigations, and lessons learned, with a view to ensuring that the Department’s procedures, particularly those concerning communication with bereaved families, the industry, media and other State agencies, should become more sensitive, clear and useful.
  • The policy review group strongly indicated in its report that the sole purpose of marine casualty investigations should be to determine the cause of the casualty so as to help prevent the occurrence of similar casualties.
  • I now consider that there is an urgent need to establish the marine casualty investigation board as part of my strategy to enhance safety standards throughout the seafaring community. The number of tragedies in recent years, particularly involving fishing vessels, is a major concern and it is important that the causes of any such future tragedy be determined and a report published quickly, so that the lessons to be learned will have maximum effect.

Contrast the objective to ‘ensure that the Department’s procedures, particularly concerning communication with bereaved families the industry, media, and other State agencies should become more sensitive clear and useful’ with the experience of Dr McCauley, his Jury, those involved in the Inquest, and the bereaved families of Gerry Doherty and Thomas Weir.

The Minister for Transport is acutely aware of the fundamental failures of the MCIB, including a damning CJEU Judgement  against Ireland in July 2020, brought by the European Commission for the lack of independence in the manner that the MCIB has been operating.

But Minister Ryan refuses to hold his officials to account for appalling failure, and failure to fix the system. They simply refuse to do so.

We have now had several critical timelines when all this should have been fixed that make this a never-ending example of the most gross display of deliberate failure, causing death, that the Irish State has ever seen:

  1. First, a proper maritime investigative system should have been put in place following the 1979 Whiddy Island Disaster when the need for regulatory oversight and analysis was obvious given the appalling failures by the regulators.
  2. In 1987 Following the Herald of Free Enterprise Disaster a Public Enquiry took place in the United Kingdom and the independent Marine Accident Investigation Unit was established. We watched as a nation but did not establish an independent competent maritime investigation system in Ireland.
  3. Similarly in 1998 despite the hugely expensive ‘Report of the Investigation of Marine Casualties Policy Review Group’ that recommended international best practice, we ignored its findings and established the MCIB that lacked competence and was not independent, which was doomed form the start.
  4. In 2010 – following a hugely expensive report by barrister Roisin Lacey entitled ‘The establishment of a National Multi Modal Accident Investigation Office to amalgamate the existing Air Accident Investigation Unit, the Marine Casualty Investigation Board and Railway Accident Investigation Unit’, which appended draft Heads of Legislation, we did not act on it, despite a Ministerial Order to do so by Minister Noel Dempsey to set up the Independent ‘National Accident Investigation Office’.
  5. Even following the humiliating CJEU Judgment of July 2020, following a hugely expensive defence of an indefensible position, the Department avoided bringing forward the draft heads of legislation that have been sitting on Department shelves since 2010, and have never been disclosed along with the Roisin Lacey Report.
  6. In July 2021 a further Report has been carried out by Captain Steve Clinch, former head of the UK Marine Accident Investigation Board, into ‘the organisational structures of the Marine Casualty Investigation Board’ but the Department are refusing to disclose it, despite Minister Ryan stating to the Oireachtas that it would be disclosed in the 1st ¼ of 2022, citing that it is “with the Attorney General’s office”.

And small wonder it is with the Attorney General’s office because of what will come down the line, so serious are the failures of the MCIB. Indeed the gravity of the situation has necessitated the involvement of An Garda Siochana. There is an on-going complaint being considered by the National Bureau of Criminal Investigation, for the manner in which reports were being finalized and the failure to disclose critical information by Department Officials operating on the MCIB who were in the conflicting position as identified by the Court of Justice of the European Union, as well as continuing in the conflicting position knowing it to be wrong.

This is a dereliction of duty to Irish citizens. It amounts to active State cruelty to allow an inept MCIB continue to issue reports that are utterly incompetent and that load blame onto Irish citizens.

What is clear following the Inquest is that the State owe Mr Doherty (RIP) several apologies. First for failing to protect him in ignoring previous safety recommendations, second for failing to send out a rescue, third for failing to investigate his death correctly under the auspices of the MCIB, and as a result causing his name to be denigrated in death.

The State owe Mr Keenan the same apology.
And the State owe Thomas Weir and his family similar apologies.

And what of the Malin Head Coastguard Operation Centre Officers who were tasked with dealing with the tragedy and the fall out. Are our Coastguard Officers on the ground (including our helicopter personnel) not under enough pressure without becoming the victims of systematic failure. The Rescue 116 crew paid a terrible price for these failures. It was clear from the conduct of Sean Diver that his vested interest was to save life. He did everything he possibly could to get as much information as possible from BT ECAS, but no further information was provided to him, only the mobile number. And he called it multiple times. Had he known about the ‘play back facility’, it is clear and obvious he would have requested it. Derek Flanagan, the Malin Head Operation Centre Manager at the time was similarly honorable in the witness box. That they should have been there at all due to the systematic failures of the Irish Coastguard overseen by the Department of Transport is shocking. Who is responsible for failing to tell IRCG Operators about the ‘play back facility’? Not only do Irish Coastguard Management owe them an apology, but so does Minister Ryan. They should not have had to experience what they have and did in the Inquest this week. I admire them greatly for their courage and honesty.

Once the Minister for Transport has held his officials to account and apologized for their failures, he can then order a public enquiry, as demanded by the Keenan and Doherty family (the latest of many such demands by citizens and politicians) into how this has happened and order a root and branch review of Maritime Safety, and disclose the Roisin Lacey Report of 2010, and Captain Steve Clinch’s Report of July 2021 immediately.

Dr McCauley, in speaking of the MCIB’s arrogant failure to assist said

“As a Coroner, I have had no option but to come and investigate the whole thing myself. I am a G.P. I have no resources, and I think this approach by the MCIB is nonsense”

Dr McCauley is correct about the MCIB.

In sponsoring State cruelty, utterly at variance with the intended purpose of the Merchant Shipping (Investigation of Marine Casualties) Act 2000, against those in grief, and presiding over such utter systematic, repeated, and deliberate failure, the MCIB, the MSO, other Transport Department Officials involved and the Minister ought to be absolutely ashamed of themselves.

However, thank God for Dr McCauley and the ordinary people of Donegal on the Jury. They have potentially saved 1000’s of lives going forward, through their extreme sense of selfless civic duty for our society. Indeed every one who attended the Inquest carried out their civic duty and are to be commended.

All we have to do now is find a way of holding officials to account for their failures and implement the recommendations, in the Ireland of our dreams.

By Michael Kingston (who attended the Inquest as an advisor to the Keenan/Doherty family).

[1]  https://www.oireachtas.ie/en/debates/debate/dail/2000-01-27/5/

Brian J McMullin Solicitors
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Systematic maritime failures exposed once more at Letterkenny inquest

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