The operators of a trawler that sank off the Canterbury coast with the loss of all three fishermen aboard are being prosecuted under health and safety laws.
The 90-tonne, 16m fishing vessel Jubilee sunk after sending a distress signal in the early hours of October 18, 2015.
All three vastly experienced fishermen on board - Jared Reese Husband, 47, of Timaru, skipper Paul Russell Bennett, 35, of Motueka, and 55-year-old Terry Donald Booth, also from the Nelson region – were lost at sea.
Their bodies were later recovered by Royal New Zealand Navy divers 22km off the Rakaia River mouth.
A Transport Accident Investigation Commission (TAIC) probe concluded the sinking was likely caused by a hose left running – and the men had been trapped inside the wheelhouse without any escape route.
Now, it has been revealed all three crew members could have been asleep immediately before the sinking – and if one of them had been on watch that night, they must have fallen asleep.
The revelations come in the Maritime New Zealand case against the operators of the Jubilee, Ocean Fisheries Limited.
The Lyttelton-based company, of which Andrew Stark is chief executive, has pleaded guilty to one charge, laid under the Health and Safety in Employment Act 1992, of failing to take all practicable steps to ensure no contractor was harmed while doing any work the contractor was engaged to do. The charge carries a maximum penalty of $250,000.
They will be sentenced on September 16. Judge Tony Couch indicated to family members who packed into Christchurch District Court today that Ocean Fisheries would also likely be made to pay emotional harm reparations to the families. The judge said the case had a long and difficult history.
The FV Jubilee – designed and built by Stark Bros Limited of Lyttelton and operated by Ocean Fisheries Ltd, another wholly-owned Stark family company and launched in 2008 - had been fishing in an area southwest of Banks Peninsula for about two days after setting sail from Lyttelton.
They'd spent a day fishing close to another Ocean Fisheries Limited vessel, the Legacy.
Father-of-three Bennett contacted Legacy's skipper and said since the fishing was not good he was going to head towards the coast and try for flatfish overnight.
But just after midnight on October 18, 2015, Bennett changed his mind and said they were going to "park up for the night", drifting to the weather – with wind from the southwest at 25 to 30 knots with little significant swell - while they rested. The Legacy continued fishing while heading south.
At about 4.19am, someone on board the Jubilee tried to contact the Legacy using the vessel's mobile telephone - but the call was not answered.
A minute later, Bennett issued a distress call on the VHF safety and calling radio channel saying the Jubilee was taking on water and they were sinking.
The call was immediately answered by Akaroa Maritime Radio, which requested information on the number of people on board and what assistance was required.
Bennett reiterated the vessel's position and said they were "getting off and getting in the life-raft now".
At 4.22am, Akaroa Maritime Radio issued a mayday relay call - immediately answered by the skipper of the Legacy who thought his was the only vessel in the area and that he was about 26 nautical miles (48km) away. He was starting to haul in his net and would be back at the mayday position in about 3.5 hours.
It was dawn before the Legacy arrived at the mayday position. The large container vessel Lica Maersk had already stopped to help.
The Legacy's crew found an oil slick, some flotsam and the Jubilee's empty life-raft, which had self-deployed.
An extensive air and sea search couldn't find any of the crew.
The Jubilee wreck was discovered on the seabed later the same day by the Frontier, another Ocean Fisheries vessel, using its fish-finding echo sounder.
Several days later, divers positively identified the wreck and the bodies of the three crew members were recovered from the wheelhouse. One of the crew was fully clothed and the other two were dressed in what was probably sleeping attire. None were found wearing lifejackets.
TAIC launched an investigation into the sinking.
The MetService weather forecast issued at 3.16am on that fateful night for the Rangitata sea area was northerly 30-knot winds changing southwest to 30 knots, with 3m southwest swells.
The Legacy skipper told investigators the weather and sea conditions that night had been "offshore wind of about 25 nautical miles per hour [knots] with very little swell" and there would have been no problem sleeping on board.
TAIC said the loss of a relatively new fishing vessel and all of its crew in "moderate weather conditions is unusual and unexpected, more so considering that the crew were all experienced fishermen".
"For a vessel to sink, or capsize and sink, water must enter the vessel in sufficient quantity that it either overcomes the natural buoyancy of the vessel or erodes the vessel's stability to a point where it capsizes," said its 60-page final investigation report released in May 2017.
The Maritime New Zealand summary of facts, obtained by the Herald this week, says: "The precise cause of the vessel sinking is unknown."
However, it seems to agree with the TAIC conclusion that it was likely that flooding of the Jubilee's fish hold was the main factor contributing to its sinking, or capsizing and sinking.
And TAIC found that a deck wash hose that had been left running through an open hatch was the likely cause of the fish hold flooding.
"The rate of water from the deck wash hose exceeded the pumping rate of the automatic submersible bilge pump in the fish hold," the findings stated.
"The bilge pumping system on the Jubilee was not fitted with any means of automatically alerting the crew when the water in the fish hold reached an abnormal level. If the crew had been alerted to the level of water in the fish hold, it is as likely as not that the sinking would have been prevented."
It also raised concerns over the design of ship's wheelhouse and lack of means of escape during any emergency.
"It is concerning that the wheelhouse, where the crew were found, where they were most likely to gather in an emergency, and where the lifejackets were stowed, had no escape route directly to the open deck," the report said.
Maritime NZ's summary of facts also says there were no opening windows or doors in the forward section of the wheelhouse that permitted escape in the event of capsize or sinking. However, the forward escape route had met with design approval.
TAIC was unable to say when and for how long the crew had been aware of their predicament.
The report concluded that the largest-volume compartment on the vessel, the fish hold, did not have any automatic means of alerting the crew to excess water in the space, but relied on manual sighting through the main hatch to determine the amount of water in the hold.
The vessel's hazard register was lost in the sinking.
Maritime NZ says although it is "likely that a crew member was on watch at the time the vessel sank", it is also likely that all crew members "were asleep immediately prior to the vessel sinking given they were unable to abandon in time ..." and if a watch was maintained "the crew member on watch must have fallen asleep".
Ocean Fisheries Limited has since added an additional escape from the wheelhouse of its vessels, with fire axes to smash the windows out, and installed a second pump in the fish room of the Legacy with an alarm to sound if the pump is continuously pumping water for 10 minutes or more. High water level alarms have also been installed while health and safety practices have undergone a "significant overhaul", the summary of facts says.
In April 2017, TAIC recommended that Maritime New Zealand draw surveyors' and vessel owners' attention to the benefits of installing safety mechanisms designed to alert crew to any abnormal rises in water levels in compartments, particularly those compartments that compromise the reserve buoyancy or stability of fishing vessels.
TAIC also issued three key lessons from the tragedy:
• Good watchkeeping includes not only looking after the safe navigation of the vessel, but also being vigilant to the state of trim and stability of the vessel and any factors that could affect either.
• Notwithstanding the minimum requirements set out in Maritime Rules, owners and designers of vessels should take a risk-based approach to designing and providing escape routes from all compartments for all foreseeable emergencies.
• Crews need to assess and pre-plan escape routes from any part of their vessels for all foreseeable emergency situations.