Backgrounder

Safety communications for TSB investigation (M16A0140) into the 2016 fatal capsizing of a fishing vessel near Salmon Beach, New Brunswick

Occurrence

On 16 June 2016, the small fishing vessel C19496NB, with three crew members on board, capsized approximately 0.5 nautical miles from Miller Brook Wharf, Salmon Beach, New Brunswick. The three crew members were thrown into the cold water. None wore a lifejacket or personal floatation device (PFD), but one of them managed to climb onto the overturned vessel where he waited until another fishing vessel sighted the capsized boat. He was the only survivor.

TSB recommendations

The Canadian Transportation Accident Investigation and Safety Board Act specifically provides for the Board to make recommendations to address systemic safety deficiencies posing significant risks to the transportation system and, therefore, warranting the attention of regulators and industry. Under the Act, federal ministers must formally respond to TSB recommendations within 90 days and explain how they have addressed or will address the safety deficiencies. The TSB expects the government of New-Brunswick to follow the same procedure.

Recommendation made on 26 July 2017

The New Brunswick commercial fishing industry is not included under the province's Occupational Health and Safety Act, nor is it included in the WorkSafeNB safety program. The New Brunswick Occupational Health and Safety Act does not require commercial fishermen or fish harvesters to wear PFDs during fishing operations.

The TSB considers that the implementation of explicit requirements for fishermen to wear PFDs would significantly reduce the loss of life associated with going overboard, and has already made similar recommendations to TC and WorkSafeBC.^{Note de bas de page 1} Therefore, the Board recommends that:

Outstanding recommendations

Personal flotation devices

Previous TSB investigations have determined that wearing a PFD increases the chance of survival when fishermen go overboard.^{Note de bas de page 2} Neither TC nor any other provincial workplace safety regulator, apart from the CNESST, has requirements to ensure that fishermen wear PFDs at all times. Despite risk-based regulations and industry initiatives to change behaviours and create awareness about the importance of wearing PFDs, as well as design improvements by PFD manufacturers to address fishermen's concerns about comfort and constant wear, many fishermen continue to work on deck without wearing a PFD.

On 05 September 2015, the large fishing vessel Caledonian capsized 20 nautical miles west of Nootka Sound, British Columbia.^{Note de bas de page 3} At the time, the vessel was trawling for hake with 4 crew members on board. The vessel sank and 3 of the crew members lost their lives. The one crew member who survived had been wearing a PFD. The Board considered that the implementation of explicit requirements for fishermen to wear PFDs, along with appropriate education and enforcement measures, would significantly reduce the loss of life associated with going overboard. Therefore, in 2016, following the Caledonian occurrence, the Board issued the following 2 recommendations:

WorkSafe BC's response to Recommendation M16-04 (April 2017)

We have reviewed the recommendation and offer the following comments.

Occupational health and safety regulations, including those related to fishing safety, are made and enforced by WorkSafeBC. Part 8 of the Occupational Health and Safety Regulation (OHSR) contains regulations related to the general applicability of buoyancy equipment and Part 24 of the OHSR contains regulations related to fishing operations. The regulations under Part 24 apply to all owners, masters, and crew members of licensed commercial fishing vessels.

Section 8.26(1) of the OHSR requires workers working under conditions which involve a risk of drowning to wear a personal flotation device (PFD) or lifejacket. The section is one of general application applying to all workplaces. Commercial fishing vessels are different from fixed or onshore workplaces as they can pitch, heave, roll over or sink with little or no notice.

As part of its 2017 regulatory amended process, WorkSafeBC is proposing a new provision in Part 24 of the OHSR that would require crewmembers of commercial fishing vessels to wear PFDs or lifejackets when they are working on deck. This amendment would be in addition to the requirement under Part 8 and would be tailored specifically to work aboard commercial fishing vessels.

In addition to the proposed amendment, workplace inspections by specially trained Marine based Prevention Officers taking place while vessels are tied to the dock and while actively participating in fishing operations at sea include a continued focus on the use of PFDs in all marine sectors where there is a risk of drowning.

In March of 2017, WorkSafeBC also launched a strategic marketing campaign to get the message out to skippers and fishermen that PFDs save lives. The initiative utilizes Municipal Harbour Authorities as a conduit for the placement of key messages and awareness materials.

TSB assessment of WorkSafe BC's response to Recommendation M16-04 (June 2017)

If WorkSafe BC fully implements the proposed regulatory amendments, vessel inspections and marketing campaigns, then awareness of the importance of wearing a PFD will be raised, increasing usage, and reducing the loss of life associated with going overboard.

Therefore, the response to the recommendation is considered to be Satisfactory Intent.

Transport Canada's response to Recommendation M16-05 (March 2017)

Transport Canada (TC) disagrees with the recommendation to have prescriptive regulatory requirements for persons to wear personal flotation devices, and disagrees with the recommendation to have programs developed to ensure compliance.

TC promotes and encourages the wearing of personal flotation devices (PFDs) or lifejackets through educational initiatives to increase awareness of their importance in reducing loss of life, and through continuing to work with stakeholders and industry on new standards for more wearable flotation devices. Such initiatives include:

• Promoting and supporting innovative performance based standards for more wearable lifejackets. This initiative began with the development of the Canadian Lifejacket Standard, CGSB 65.7-2007, and continues with TC's support of the new bi-national North American lifejacket standard, UL-12402, which will include increased design options for manufacturers to provide more comfortable and wearable devices.
• Ship Safety Bulletin 06/2012, Wearing and Using Flotation Devices, Small Non-Pleasure Craft & Small Commercial Fishing Vessels which allows, in certain situations, the use of more wearable flotation devices in lieu of traditional lifejackets designed for ship abandonment. The Ship Safety Bulletin requires that where this option is used, personal flotation devices must be worn by crew on deck at all times.

TC has consulted extensively with the fishing industry and has determined that education and awareness on the wearing of PFD or lifejackets is the most effective approach and will result in a reduction of fatalities.

The TC compliance and inspection regime is established to verify regulatory compliance while vessels are in port. Only seafarers themselves can ensure compliance while vessels are at sea. It is the Authorized Representative's (AR) responsibility to develop safe operating procedures and confirm compliance on board the vessel. The new Fishing Vessel Safety Regulations require that no person shall operate, or permit another person to operate, a fishing vessel in environmental conditions or circumstances that could jeopardize the safety of persons onboard unless a lifejacket or PFD is worn by all persons onboard, in the case of fishing vessel that has no deck or deck structure, or by all persons on the deck or in the cockpit, in the case of a fishing vessel that has a deck or deck structure.

TSB assessment of Transport Canada's response to Recommendation M16-05 (July 2017)

Transport Canada does not agree with this recommendation, suggesting that a requirement to wear a PFD at all times could not be enforced by TC and that only seafarers themselves can ensure compliance. Further, TC's response focuses on actions already taken to promote and encourage educational initiatives to increase awareness of the importance of wearing a PFD and on their continued work with stakeholders and industry regarding new standards for more wearable flotation devices.

Since 2007 there have been 99 fishing‑related fatalities; approximately 80% of those fatalities resulted from fishermen ending up in the water for a number of reasons including falling overboard and stability issues. The TSB has not seen an improvement in fishing-related fatalities when comparing the two five-year periods, from 2007 to 2011 and 2012 to 2016. Therefore, despite TC's risk-based requirement to wear a PFD for operations on a fishing vessel, initiatives to change behaviour, and recent PFD design improvements, the TSB is concerned that there has not been a significant change in the behaviour of fishermen and many continue to work on deck without wearing a PFD.

TSB is aware that TC's compliance and inspection regime was established to verify regulatory compliance while vessels are in port, however there may be other means to ensure or verify compliance. This may include TC's engagement with other federal or provincial agencies that conduct at sea inspections, such as WorkSafeBC.

Therefore, the response to the recommendation is considered to be Unsatisfactory.

Emergency position-indicating radio beacons

The occurrence vessel did not carry any distress communications device. Between February 2010 and August 2016, there were 9 accidents,^{Note de bas de page 4} including this occurrence, involving fishing vessels that measured less than 12 m and were not equipped with an EPIRB or means of transmitting a distress message. These occurrences involved 24 crew members, 15 of whom lost their lives.

In 1998, while crossing from Les Escoumins to Rimouski, Quebec, the scallop dragger Brier Mist swamped and sank approximately 10 miles offshore.^{Note de bas de page 5} The wreck was never found. Two people were recovered deceased, and the other 3 crew members went missing. The Board considered that all fishermen should have distress alerting capability that should not rely on human intervention. It was further considered that fishermen forced into the water or survival craft should be able to continuously update their location to search and rescue coordinators for more rapid rescue. Therefore, in 2000, the TSB recommended that

The measures in the new Fishing Vessel Safety Regulations do not mitigate the risk identified in recommendation M00-09. Until such time as the regulations include the requirement for all fishing vessels to carry an emergency position indicating radio beacon or other appropriate equipment that floats free, automatically activates, alerts the search and rescue system and provides position updates and homing-in capabilities, the March 2017 reassessment of this rating remains Unsatisfactory.

Clarity of workplace legislation

Provincial governments have the responsibility to ensure that the "business of fishing" is conducted in a safe manner. However, provincial regulatory frameworksas applicable to fishing vessel safetyare not consistent across the country, and some provinces still do not have adequate fishing-sector-specific provisions in place. The TSB has an active recommendation on this subject that was made following an investigation into an occurrence involving the S.S. Brothers.^{Note de bas de page 6}

Only 2 provinces, British Columbia and Newfoundland and Labrador, have workplace legislation that is specific to fishing vessels. For the remaining provinces, workplace legislation is, for the most part, more general and not specific to fishing vessels. Consequently, it may not adequately address the dangers unique to working on a fishing vessel.

Although there may still be some confusion among fishermen as to what aspects of federal or provincial legislation apply to their vessels, the collaborative efforts of the provinces, fishing safety associations, and federal government departments have resulted in a more coordinated approach to improve overall safety awareness on board fishing vessels. It is expected that the ongoing work to create plain-language legislation that is easier to understand, as well as the work of the various fishing safety associations to promote safety, will substantially reduce the safety deficiency associated with this recommendation.

Until all of the remaining provinces ensure that their workplace legislation and its application to fishermen is readily understood and enforced, the October 2016 reassessment of their responses remains Satisfactory in Part.