The EL TORO Tragedy
PART IV: Lessons to be Learned - The Surveyor's Role
by David Pascoe, Marine Surveyor
Lessons to be Learned: The Surveyor's Role At the outset of the CG report considerable issue was made about the insurance surveyor's role in the case. This surveyor was a direct employee of the insurer and was performing the survey for the insurer at no cost to the vessel owner. He had already surveyed the other four vessels owned by Mr. Smith. He found them to be in poor condition and they had already been placed on port risk by the underwriter at the time he surveyed EL TORO. They were not placed on port risk because the surveyor thought they were safe. At that point, it's easy to imagine what the owner's attitude toward the surveyor was.
When he surveyed the EL TORO, Smith accompanied the surveyor to the vessel then left. The surveyor's comments in his report to the insurer was "This is one of the worst Coast Guard inspected vessels that I have ever seen," a comment that is mentioned in the CG report. Although we do not know the exact nature of his findings, we do know that the surveyor did not report them to the vessel owner as he had left the scene. (The CG reports indicates that the surveyor stated that no one of 20 odd defects would be sufficient to condemn the vessel. Yet the implication of the statement, along with the surveyors comments, indicate the cumulative findings were sufficient to condemn it.) Further, the surveyor states that he had been told by Smith that the vessel was laid up for the season, and therefore he did not expect it to be going to sea. Smith, as well we can imagine, denies that, saying that he told him the vessel was still operating and would be operating soon.
Here we have a situation in which the insurance surveyor condemned five
out of five of this operator's vessels. The CG report makes no mention of
any of these other vessels. The interesting question here is whether the
CG gave these other four boats a free pass also?
Legal Responsibility for Notification of Serious Defects
The Coast Guard raises the issue of why the surveyor did not inform them, the CG, or the vessel owner of his findings. Since he condemned the other four boats, and this was the worst of them, we can presume that he intended to constrain this one to port risk also. Again, this is a subtle passing of the buck to the insurance surveyor, saying, in essence, if you had told someone, this wouldn't have happened. Clearly, the writer of the report knows that this will paint the surveyor into a very dark corner indeed.
No doubt the surveyor felt satisfied that the vessel was laid up (as were the other four despite the confinement to port risk, since the rockfish season had already ended.) and therefore he felt he had no need to make an immediate notification. On the other hand, in these situations, there is often a question of whose responsibility it is to make a notification, if any.
With a legal system as muddy as ours, the issue of liabilities in a disaster scatters like birdshot. The surveyor is going to find himself caught up in it no matter how sterling his performance. The issue of notification has not, to my knowledge, ever been clarified. Yet the circumstances in this case clearly points to the answer. Whether required to or not, notification should be given the owner in writing. Obviously, verbal notification would be of little value because the owner was already unhappy with the surveyor, and in the event of an accident, would only deny the verbal notice anyway. Therefore, only notification by certified mail would have sufficed. Chances are that even notification by regular mail would be denied, and there would be no proof that the owner had ever received it.
As to whether the surveyor had an obligation to report adverse conditions to the Coast Guard, my opinion is no, he did not. Nor should he be required to do so, despite the CG recommendation in the report. If the CG undertakes to certify vessels, then it is their responsibility to ensure their satisfactory condition. And, as we know only too well, they fail in this job miserably as is clearly demonstrated in their own report. If surveyors are required to notify the CG, this raises all sorts of legal issues and questions of procedure and responsibility that could never be satisfactorily resolved.
When participating in any investigation, particularly governmental
investigations, the lesson here is to be careful what you say. Anything
you say can and will be used against you. In this case, the CG has a clear
conflict of interest. It was entirely predictable that their investigation
would be completely self-serving. The surveyor would have been best off
had he said nothing to them. Not only did they seek to shift the blame to
him, but should the surveyor be implicated in the lawsuits that are likely
to go on into the next millennium, both his comments and the report will
hurt his defense.
Bias is Always Obvious Another interesting point has to do with the report itself. That the report discredits itself of course was never obvious to the writer, even though it's obvious to any non-involved person who reads it. The principle here to remember is that bias in report writing is always obvious to others, but never the writer. The effort to conceal, misrepresent or omit factual evidence is often unconscious; the fact is that obtaining true objectivity is very difficult for anyone, and there are very few persons who have the capability to be entirely objective.
In all investigations surveyors are hired by someone with an interest. It is a natural inclination to try to assist those who are paying our fees or salaries. At first reading, the inconsistencies, omissions and outright contradictions are not obvious; they only become so upon careful study. But it is important to remember that in a serious casualty, all reports are subjected to extremely detailed study. And if the Coast Guard is being sued in this instance, there can be no doubt but that the plaintiff lawyers will have a field day with this report. it's a plaintiff's lawyers dream because it impeaches itself.
The lesson, of course, is that important investigation reports should never be rushed. The best way to craft as objective report as possible is to refine it over a period of time, say a week or so. There's nothing like proofing a report from a perspective of a time interval from the moment it was written until it is issued. That gives us the time to think about it, digest it, and approach it on another day when our thoughts may be a bit clearer, the faults and inconsistencies more obvious.
Old Boats By now it should be abundantly clear that old wooden vessels should be approached with the maxim, guilty until proven innocent. No one has ever been able to establish an average term of safe life expectancy for wooden vessels because the quality of materials and construction designs vary so much. It is widely known that economically built hulls, such as most pleasure craft, become suspect within 15 years or less. Tens of thousands of Chris-Crafts, Pacemakers, Egg Harbors, Allied and others were built in the 1960's and nearly all of them are gone now. Fastener problems frequently arose after only ten years, and all surveyors know this. Why doesn't the Coast Guard?
For better built craft, we have the examples of Trumphy, Wheeler, Consolidated, Elco and others that had safe useful lives of 30 years or more. Any yet because some of those boats are still around, no one should ever assume that they are safe because they are not. Wood structures and metal fasteners have limited life spans; the older they get, the more deteriorated and suspect they become. To look at the outside or inside and say that 32 year old fasteners are probably okay is irresponsible. This writer decided a decade ago to decline to survey old wooden vessels because his experience was that none of them were safe for open sea conditions and he didn't want to find himself in the position that the insurance surveyor mentioned in this report finds himself. Nor is he alone, as most competent surveyors now decline to survey old wooden vessels. The risk is just too great. Yet the Coast Guard has gone blindly on its way certifying these disasters waiting to happen. And while the CG report states that it knows of no other similar casualties involving wooden vessels, the fact is that there have been dozens in the last decade alone, especially involving uninspected passenger carrying vessels.
It is impossible for a surveyor who knows his business to believe that the hull of this vessel on prior drydockings revealed no evidence of its poor condition. Indeed, there are several mentions in the report about its remarkably "apparent" good condition. This writer has yet to see a 30 year old wooden hull that did not display clear evidence of structurally deteriorated conditions, from open seams, worm damage, cupped planks, loose planks and evidence of corrosion from rust or copper stains in way of fastener heads and bungs. The evidence is always present and the prior CG files and reports prove it.
The CG uses the excuse on one inspection that the bottom was freshly painted. Yes, indeed, but every surveyor knows that one cannot survey a freshly painted bottom effectively unless prepared to pull a lot of fasteners. But it has long been de rigeur for surveyors to pull fasteners on any wooden vessel regardless of age. And while they suggest fault of the insurance surveyor for not providing immediate notice, they do not fault themselves for their own negligence in raising the red flag at this point. Instead, they complete the inspection, knowing that they can't do it effectively, and then give it a clean bill of health. An independent surveyor would hang for this. But here we're dealing with the government. The correct procedure at this point would have been to pull fasteners, or reschedule 90 days hence when the bottom paint would no longer be fresh and the corrosion patterns would reappear through the now-aging paint. It is impossible to believe that a 32 year old vessel with steel fasteners does not show evidence of corrosion at frame intersects or at bung heads.
Old Boats in General All material things in this universe deteriorate, so at greater and some at lesser rates, but deteriorate they do. When it comes to boats and ships, which float in an extremely corrosive substance, age itself is a dangerous factor that should never be treated lightly. Whether it's wood, fiberglass or aluminum all structures deteriorate and weaken over time, as do systems and machinery. To use an old cliche, a book should never be judged by its cover as boat should never be judged by its appearance. To make assumptions when surveying based on appearances can ultimately cost you dearly. The only proper attitude toward older vessels is one of extreme caution. Inspect, verify and explain fully. That means cover yourself with all necessary exculpatory statements and written record.
These are the important lessons for surveyors in the EL TORO tragedy:
1. Whenever any circumstance prevents the full and effective performance of our function, we need to send a red flag up the mast in clear and certain terms. Fortunately, we do not certify, but we are responsible for making notification of any evidence that adversely affects safety.
2. Never make the mistake of downplaying evidence of defects such as saying, "It doesn't affect the structural integrity," unless you absolutely certain of this and would be prepared to defend that statement in court. Nearly every surveyor is guilty of this, including myself, mainly due to the casualness of the pleasure craft business. The case of the EL TORO reveals how a casual comment can turn into a matter of life and death. It is far better not to make a favorable summary judgment than to render a casual opinion.
3. Surveyors are often pressed to render snap decisions and fast reports. This is conducive to serious errors of judgment and may happen frequently. We usually sense it by feeling uncomfortable about it. We should never hesitate to review a situation that doesn't sit right, and never hesitate to amend a faulty decision, particularly one that could have dire consequences.
4. Notify vessel owners of dangerous defects both verbally and in writing, and do it promptly. Don't wait for the insurance company to do it. If something bad happens, the surveyor is going to be on the hook.
5. When tragedy strikes, blame scatters like buckshot.
First posted 5/11/97 at the above David Pascoe's site. Edited for this site.