©
1999 The Independent Fact Group
ANALYSIS REPORT
| Subject: | Analysis of IMO Resolution A849 2.0 |
| Type: | Analysis |
| By: | The Independent Fact Group |
| Status: | Preliminary |
| Date: | 1999-10-22 |
| Version: | Preliminary: English |
The Fact Group's aims and objectives:
The Independent Fact Group was formed in early 1999 to clear up the many question marks about the MS Estonia disaster, in a structured and methodical manner. There has been considerable speculation concerning the efforts of the Joint Accident Investigation Commission (JAIC) and the political, legal and media treatment of the accident and its tragic consequences.
The aim is to give those in authority an opportunity, based on the facts of the case, to decide to review this matter, with a view to further action. Our efforts also enable the media and the general public to decide on the basis of the objective information which is available concerning the accident, and the conclusions to be drawn from a technical and civic perspective.
The overall objective is the setting up of a new investigation of the accident which can describe the course of the accident in detail, and its causes, with subsequent assessment of the moral and legal responsibilities, where this is feasible.
We are motivated by the belief that a properly conducted investigation will contribute to maritime safety and by our concern for Sweden's reputation as a nation which upholds safety at sea and the rule of law.
Methodology:
In the course of this task, we have assumed that the solution of a problem is never better than the validity of the basic assumptions. As a result, we have stipulated some methodological principles, of which the following are the most fundamental:
1. All scenarios must be considered to be true until the contrary
is proved.
2. All observations, assumptions or statements on which a scenario
is based must be considered false until the contrary is proved.
We have defined a number of criteria for concluding that an observation, assumption or statement may be considered to be true or false, and processes and routines for the route to be taken in clarifying an observation, assumption or statement. These criteria involve technical, empirical, statistical and/or semantic requirements which, if they are relevant must all be met if the observation, assumption or statement is to be classified as an objective fact.
The materials we have worked with are primarily the documents, audio recordings and films in the Swedish Accident Investigation Commission's Estonia archive, together with supplementary information from other public sources and, in addition documentation from the Meyer shipyard and its independent commission.
Summary
In this [preliminary] analysis report, the Independent Fact Group shows that the States, Sweden, Finland and Estonia are forced by law (IMO Res. A849 2.0) to "reopen" the accident investigation regarding the sinking of M/S Estonia. All three States adopted this resolution 19 - 26 November 1997, which was before the final report was presented.
The JAIC has been widely criticized for its conclusions and for the lack of methodology used in the cause of its task. The Governments of Sweden, Finland and Estonia ordered three objectives:
1. Find out why the accident happened.
2. Find out why so many people lost their lives in the cause of the accident.
3. Give recommendations on actions to prevent a similar accident and losses.
Nothing more, nothing less.
In the cause of the work of Naval Architects like Mr. Anders Björkman and Prof. Anders Ulfvarsson as well as from the Independent Fact Group and many others a number of new facts and conclusions has been raised which stands in direct opposition to the conclusions of the JAIC. All these findings and conclusions will not be presented as evidence herein. However, as a service for the not so initiated reader the following list of deficiencies in the JAIC report and documentation is presented as an indicator of the magnitude of the Estonia issue:
The JAIC final report contain, among other, the following unverified assumptions:
1. Departure time is not verified
2. Speed is not verified
3. Course of headings is not verified (if plotting the JAIC departure time, speed and heading, M/S Estonia must have made a "jump" of approx. 5 NM westward and the visor another mile before they sank. The official and regular plot of the Estonia heading is "lost" for this particular night.
4. Time of the start of the accident is not verified
5. The cause of the accident (heels and list situations) is not investigated and verified
6. Time for eventual alarms and Mayday calls is not verified
7. Time for the sinking is not verified (three credible alternatives exists)
8. Position of the visor not verified (Three official and one unofficial positions exists). Moreover, there is correspondence between commission members stating the location of the visor just beside the wreck.
9. The actual position of M/S Estonia is not verified (three official and, from different diving vessels, three unofficial positions exists)
10. It is claimed that the bow ramp was open during the sinking. The Independent Fact Group has the evidences for the opposite.
11. JAIC states that M/S Estonia was seaworthy. Please see the Independent Fact Group report; "Forgery to hide lack of seaworthiness".
12. Whether the watertight doors were open or closed is not investigated or verified (see our report; "Forgery....")
13. How many people that managed to escape the ship is not investigated or verified (probably 5 - 700 instead of the 237 that JAIC is claiming)
14. Calculations of the drift of debris and corpses from the ship have not been verified (if comparing the calculation with a chart of the area the debris would have drifted approx. 10 miles upon Estonian soil!)
In the JAIC Final report and archive material, among others, the following peculiarities is to be found:
1. Forgery of a Port State Control protocol (see our report; "Forgery....").
2. Forgeries of statements made by witnesses.
3. Censoring of statements made by witnesses (vital parts reduced to one sentence in witness reports compared to the audio recordings).
4. A permanent PSS certificate is printed in the Supplement although the Estonia never had a permanent certificate. She only had a revocable interim PSS (and LL) certificate that was renewed every 5:th month
5. Three different types of deck maps are presented of which none most surely is correctly showing the actual layout of the vessel. On some decks cabin numbers are absent as the 50 percent owner, Nordström & Thulin, have refused to give these details to the commission.
6. The JAIC states "that no other damages than the here presented [bow area and visor] is to be found". In direct opposition to this, the Fact Group has evidence for a major hole in the hull, major structural damage on deck 7 and 8, major damage on the bridge port side as well as a number of uninvestigated damages on the hull and inside the ship.
7. The JAIC states that the investigation divers never were inside the car deck. We have the evidence of the opposite.
8. "Forgeries" of conclusions in ordered expert reports submitted to the JAIC has been found.
9. Correspondence between commission members on how they must find unity in conclusion that is based on arguments without technical, statistical or actual substance.
10. Plots on the rescue ships position during the night that does not correspond with the archive material they have been taken from. They seem to have been searching in the wrong sector, no cooperation were arranged and passenger ships headed back and forth in the area at a speed of eight (8!) knots.
11. The official videotapes have a recorded interference signal added, which severely decreases the viewing quality. (With the interference signal deleted, one can actually see and evaluate the details pretty well).
These findings compose a base for the analysis of the Code for the Investigation of Marine Casualties and Incidents, IMO res. A849 2.0. The code requires a reopening of any investigation if new facts appears "which may materially alter the determination of the circumstances under which the marine casualty occurred, and may materially alter the findings in relation to its cause or any consequential recommendations".
The Independent Fact Group analysis of the IMO Assembly Resolution A.849 (2.0)
Code for the Investigation of Marine Casualties and Incidents
The Code states:
Under "The Assembly" it is noted that:
...the safety of seafarers and passengers...can be enchanted by timely and accurate reports identifying the circumstances and causes of marine casualties...
The Fact Group commentary:
The JAIC report was neither timely, nor accurate.
The Code states:
Under "The Assembly" it is further RECOGNIZED that the ...need for a code to provide...incident investigation with the sole purpose of correctly identifying the causes and underlying causes of casualties...
The Fact Group commentary:
The JAIC report does not correctly identify causes, and does not identify any underlying causes other that those that may contribute to the loss of the visor.
The Code states:
1. Introduction.
1.3 By introducing a common approach to marine casualty investigations and the reporting on such casualties, the international maritime community may be better informed about the factors which lead up to and cause, or contribute to, marine casualties. This may be facilitated by:
1.3.2 Defining a framework for consultation and cooperation between substantially interested States.
JAIC report:
Status
The Joint Commission was set up to find the cause of the accident, to examine the reasons why the loss of lives attained such magnitude and to present proposals for measures that would help to prevent the future occurrence of a similar accident. At the first meeting of the Commission, on 29 September 1994, it was deemed essential that the Commission act as a single unit in drawing conclusions and issuing official reports, but in carrying out the investigation the parties of the three countries were to have an independent status, without any duty to report back to, or to act on the instructions of, the states that proposed their appointment.
The Fact Group commentary:
It is clear that the JAIC has performed in the complete opposite way than proposed under 1.3.2.
The Code states:
2. Objective
The objective of any marine casualty investigation is to prevent similar casualties in the future. Investigations identify the circumstances of the casualty under investigation and establish the causes and contributing factors, by gathering and analyzing information and drawing conclusions. Ideally, it is not the purpose of such investigations to determine liability, or apportion blame. However, the investigating authority should not refrain from fully reporting the causes because fault or liability may be inferred from the findings.
The Fact Group commentary:
Everything should be reported, even if it reveals whom to blame.
The Code states:
5. Conduct of marine casualty investigations 5.1 Where an investigation is to be conducted, the following should be taken into consideration: 5.1.1 Thorough and unbiased marine casualty investigations are the most effective way of establishing the circumstances and causes of a casualty. 5.1.2 Only through cooperation between States with a substantial interest can a full analysis be made of a marine casualty.
5.1.3 Marine casualty investigations should be given the same priority as criminal or other investigations held to determine responsibility or blame.
The Fact Group commentary:
From 5.1.1 it is clear that the investigation should be unbiased. This was not the case in the JAIC. From 5.1.2 it is clear that different investigation groups shall cooperate. This was not the case in JAIC. They were told that they had no liability to share findings or facts with each other.
From 5.1.3 it is clear that the investigation should be given the same priority as criminal investigation. This was not the case. As an example the JAIC could not get the cabin number chart from Nordström & Thulin. They refused!
The Code states:
7. Responsibilities of the lead investigating State The lead investigating State should be responsible for: 7.1 developing a common strategy for investigating the casualty in liaison with substantially interested States; 7.2 providing the investigator in charge and coordinating the investigation; 7.3 establishing the investigation parameters based on the laws of the investigating State and ensuring that the investigation respects those laws; 7.4 being the custodian of records of interviews and other evidence gathered by the investigation; 7.5 preparing the report of the investigation, and obtaining and reflecting the views of the substantially interested States; 7.6 coordinating, when applicable, with other agencies conducting other investigations; 7.7 providing reasonable logistical support; and for
7.8 liaison with agencies, organizations and individuals not part of the investigating team.
The Fact Group commentary:
The lead investigating State [Estonia] has not (nor the JAIC) fulfilled the responsibilities according to 7.1, 7.2, 7.3, 7.4, 7.5 and 7.8 above.
The Code states:
11. Personnel and material resources
Governments should take all necessary steps to ensure that they have available sufficient means and suitably qualified personnel and material resources to enable them to undertake casualty investigations.
The Fact Group commentary:
This has not been done as for example no documentation from the wreck was recovered, the crew at the bridge were not identified, and the MIMIC panel was not recovered. Please, also see the list of peculiarities in the report summary.
The Code states:
13 Reopening of investigations
When new evidence relating to any casualty is presented, it should be fully assessed and referred to other substantially interested States for appropriate input. In the case of new evidence which may materially alter the determination of the circumstances under which the marine casualty occurred, and may materially alter the findings in relation to its cause or any consequential recommendations, States should reconsider their findings.
The Fact Group commentary and report conclusion:
The Independent Fact Group report "Forgery to hide lack of seaworthiness" and the books of Mr. Anders Björkman fulfills all requirements in 13.
Therefore, the States involved have to reconsider their findings and give power to a new investigation regarding the M/S Estonia.