Evidence of James Martell

D - How did you get your job at Euromin?

JM - I had a phone call to tell me that a Dutch company had a vacancy in Shoreham for a general manager, so I arranged to go for interview.

D - How many full-time employees were there at Euromin?

JM - 7 to 9.

D - Was the company structure (refers to document) in June 1998 the same as it is today?

JM - Similar.

D - Euromin is a subsidiary of a Dutch company?

JM - Yes.

D - How large is the Dutch company?

JM - More than 1000 employees.

D - What is the annual turnover of Euromin?

JM - About £2 million

D - What is the net profit?

JM- Between £10000 and £40000 per year.

D - Why does a Dutch company want a British subsidiary?

JM- Since the enlargement of the EEC, they want a presence on the ground in the UK . The Dutch are very forward-thinking.

D - What would you do on a typical working day?

JM- Around 8a.m. I phone the office, go through daily deliveries of materials. I go to the office about twice a week to go through paperwork, invoices, etc and for one-to-one with staff. If I am elsewhere, like with customers, I will call or phone the office in the afternoon.

D - What if you don't go to the office?

JM - I work on supply agreements with customers, especially around London and the East Coast. I like to keep in touch: the Dutch are very inquisitive about the UK market. I report to the directors each week.

D - How far is from your home to Shoreham?

JM - About 25 miles.

D - Do you report to a particular director?

JM - I report to Mr Hoekman, in writing once a week, and by phone twice a week. He is interested in pricing and distribution of the products we handle, also our competitors' products, from Northern Europe to the UK .

D - What about operational matters, for instance if you need to buy new plant?

JM- I prepare a budget each year, which goes to the director, we discuss it and he decides.

D - What if you wanted new machinery or more staff?

JM - I would go back to him.

D - You would make recommendations?

JM - Yes.

D - Did you have an immediate predecessor at Euromin?

JM - Yes.

D - Did the structure of the company change when you joined?

JM - Yes, I was one step above him, and he left soon after I arrived.

D - What do you earn?

JM - Around £35000 per year.

D - What about in 1998?

JM - A little less than that.

D - Do you have shares or any financial stake in the company?

JM - No.

D - When you joined the company, was there a safety officer?

JM - No.

D - Did you appoint one?

JM - Yes, Roger Grant.

D - Was there in place any programme for training staff?

JM - There was a skeleton plan; my task was to implement a more rigid training programme.

D - How did you contact Neil Hutchinson, the safety consultant, in 1997?

JM - Where I worked previously, all staff were trained by ATB Landbase. I got in touch with them about courses in machine handling, site safety, etc.

D - How did you get in touch with ATB?

JM - I heard about them from the Agricultural Training Board at my previous workplace near Maidstone . I got in touch with them, and they were very co-operative and helpful.

D - They provide training?

JM - Yes. I said we need somebody to assess the site, and they sent Neil Hutchinson.

D - Why was the assessment needed?

JM - I wanted to feel that I was doing everything I needed to do correctly: I was being proactive.

D - (Refers to document) “ M. Brackenby, order confirmation” Was that your contact at ATB?

JM - No, Jane Baker.

D - Was the order based on your instructions?

JM - Yes.

D - Mr Hutchinson carried out an assessment in February 1997?

JM- Yes.

D - He made a large number of recommendations. What did you do?

JM - We set about putting the recommendations into practice. We fitted handrails, etc. Luckily we had Pyecroft Engineering close to us, and they carried out many tasks, including fire extinguishers, fitting handrails around storage areas, doing electrical testing, installing first aid boxes, numerous things.

D - No loading was taking place when the assessment was done?

JM- No.

D - Loading wasn't assessed before April 1998?

JM - No.

D - Why not?

JM - It was a question of time. We set out what work had to be done. Some of it was ongoing; it couldn't be done immediately. So many different things took time to implement.

D - ATB Landbase are continuing their consultancy?

JM - Yes.

D - How much money is involved?

JM - £5000 to £7000 each year.

D - Is it true to say that there was a flurry of activity in February 1997, and then safety was put on the back burner?

JM - No; it is ongoing. We are spending time training staff, and this is increasing year on year.

D - Is this your personal responsibility, or do you delegate?

JM - I appointed Roger Grant as safety officer, and kept in contact with him. There was a two-way flow of information.

D - When you started at Euromin, they had a Liebherr and a Priestman crane?

JM - Yes.

D - Did you buy in more equipment?

JM - Yes, a loading shovel.

D - What about fork lift trucks?

JM - Yes, I bought one a year ago.

D - How often do ships arrive to be unloaded?

JM - We get 200000 to 250000 tonnes per year. Each ship averages 3000 to 4000 tonnes, so it works out as about one and a half ships per week.

D - Was the situation similar in 1998?

JM - Yes.

D - How much notice do you get of the arrival of a ship?

JM - 5 to 7 days.

D - Initially you would know the estimated time of arrival?

JM- Yes.

D - Would ships usually arrive on time, or were they often late?

JM - 75% of ships arrive at a time other than the ETA.

D - Are they usually later rather than earlier?

JM - Yes.

D - How late would they be typically?

JM - From the Mediterranean, 3 to 4 days; from Holland they can be 50% late. There can be head winds, extreme weather…

D - During the voyage, would the ETA be updated?

JM- Yes.

D - When staff are not unloading ships, what are they doing?

JM - Loading lorries, keeping the site tidy, moving products around on the site. Foe export, we receive materials over 2 to 3 days.

D - So there is plenty of work when no ship is in?

JM - Yes.

D - When a ship arrives, would you also recruit casuals?

JM - Yes.

D - Is it practical to avoid doing this by employing more permanent staff?

JM - No

D - You would be permitted to have more permanent staff on standby?

JM - As far as the company is concerned, yes, but it is governed by the design of the ship. An older ship has more holes so you need more staff.

D - What if you said to Mr Hoekman that you need more staff?

JM - I could justify it, but he would have to decide.

D - What are the arrangements for the inspection and maintenance of the Liebherr?

JM - The drivers keep me informed of when they need a 250 hour service, or if there are any problems, and Liebherr will attend regularly.

D - Are the machines well maintained?

JM - Yes, very.

D - What about statutory inspections?

JM - These were done once a year for the insurance company, and they issue a report.

D - If you needed casuals in 1998, how were they recruited?

JM - Roger Grant knew the ETA and the configuration of the ship. If for instance we needed two men, we would use Personnel Selection.

D - (Refers to document) “Master card, Personnel Selection, September 1997” Was this your first contact with Personnel Selection?

JM- Roger Grant was regularly in touch with them at that time.

D - When was your first contact with Personnel Selection?

JM- I don't know; I rarely saw these documents.

D - Who decided who did what job, with regard to unloading a ship?

JM - Roger Grant and I worked with Jim. We would discuss it. Roger would say, for example, we need 2, 3, or 4 extra men.

D - Who decided who went in the hold, who drove the shovel, and so on?

JM - Jim had certain people he had worked with. He had first crack at who he had where. Roger would keep me informed.

D - You were not necessarily on site. How did they keep you informed?

JM - I am available on my mobile phone 24 hours a day. I would talk to Mick Czaja or Roger during the first hour of the working day.

D - (Refers to document) “Stallion invoice 5 Feb 1998. Supplying slings and hooks” Before that, the excavator was used with webbing slings for lifting bags?

JM - Yes.

D - When you joined the company, was there also a hook attachment on site?

JM - Yes.

D - Between 1994 and February 1998, what was the system regarding the use of slings or hook?

JM - If there was a small number of bags, the web and chains were used; if there was a large number, hundreds of bags, the hook was used.

D - Why was the hook only used for a large number of bags?

JM - Jim had been there before 1994. He had a look at other things that needed to be done that day, like lifting the Bobcat into the hold. We used the same arrangement. It was something we inherited.

D - What is the thinking behind using the hook for a large number of bags?

JM - If there are 600 bags, you can unload 60 bags an hour, that's a day's work. If there is a lot of loose aggregate, it is best to use the grab to unload it.

D - This saved the time needed to change between the hook and the grab?

JM - Yes.

D - How long did the changeover take?

JM - An hour. It's a messy operation as well.

D - In 1995, Liebherr fitted shut-off valves to shut off the hydraulics. How is this done, and why?

JM - The Liebherr had quick-release couplings. In a dusty environment, you get grit in the valves, which can cause oil leaks, and the couplings need replacing more often. I asked Liebherr how to get over the problem. They suggested cut-off valves.

D - When are they used?

JM - When changing between the grab and the hook or other attachments.

D - How was it that Stallion came to supply the hooks?

JM - I had mentioned to Roger to have a word with Stallion about how to make a safer way of working.

D - How did you perceive the system as unsafe?

JM - The slings could slip off. It was untidy, this was a grey area, I needed advice.

J - Slipping off was important?

JM - Yes, things could go wrong. It was safer to eliminate the risk of web straps rubbing against angular metal.

D - With the previous system, was the grab open or closed?

JM - Open, as far as I'm aware.

D - Do you know Mr Stallard?

JM - I've met him once or twice. I don't know him personally.

D - Why did you approach Stallion?

JM - They were local. They were experienced with chains and hooks. They had always inspected our chains, and I valued their advice.

D - Did it occur to you to approach Liebherr?

JM - No, because it was to do with chains, a lifting operation. Stallion are specialists.

D - Mr Stallard came in person to the yard?

JM- Yes.

D - Did he normally do this?

M- No, I've seen him on site 2 or 3 times, normally one of his employees came.

D - What transpired between you and Mr Stallard?

JM - I had previously advised Mr Stallard to come down with the hooks. We met in the yard and discussed what we were trying to achieve. He showed me the hooks and told me they were a type used on other plant, welded on and used for similar operations. He showed me where they should be welded. I asked who should do the welding, he said Pyecroft, and he supplied the two hooks.

D - In your discussion, what did you say you were trying to achieve?

JM - A safer and easier way to attach the chains to the grab. That's all I can recollect of the basis of our discussion.

D - Where did Mr Stallard suggest the hooks should be welded?

JM - On the stem of the grab, in the place where they actually were welded.

D - You heard Mr Stallard's evidence. He says he suggested higher up.

JM - He initially suggested higher, but I said it would foul the hydraulic pipes in that position, so he said, how about here, one either side.

D - What would you have done if you had suggested a different position?

JM - If he'd said, weld them there, I'd have done it.

D - Did Mr Stallard express any reservations about safety?

JM - No.

D - Before April 1998, did anyone express any reservations about safety?

JM- No.

D - Did the Health and Safety Executive ever visit the site?

JM - I can't recall seeing the HSE on site.

D - Liebherr were regular visitors. Did they ever express any reservations about safety?

JM - No, not as far as I'm aware.

D - The cargo on 24 April 1998: was it 2719 tonnes of slag and 135 tonnes of rumble stones?

JM - Yes.

D - Had you had cargoes like this in previously?

JM - Yes.

D - 125tons – How many bags is that?

JM - 100.

D - Is that a large or a small load?

M - A small load, about 2 hours work depending on how they were stowed and the state of the tide.

D - Would the excavator sometimes be used to lift the bobcat?

JM - Yes.

D - Would the excavator also be used to assist in discharging bulk?

JM - Yes.

D - How much notice did you have of the arrival of the Cambrook:?

JM - I can't recall.

D - On page 27, was the first contact with Personnel Selection about requiring labour on the 24th April made on the 23rd April?

JM - Yes.

D - Did Grant contact them on his own initiative or did he discuss it with you?

JM - I can't recall but Grant and I were in regular contact 3 or 4 times a day by phone.

D - Do you recall a discussion with Grant on the morning of 24th April?

JM - Yes.

D - By phone?

JM - Yes.

D - What was said?

JM - Grant mentioned that we were 2 men short and he had a word with the master of the Cambrook. All I can recall saying to Roger is “O.K. as long as the master is satisfied that the men are suitable for the job.”

D - Did you have an earlier discussion with Grant?

JM - I can't recall.

D - Was there any later communication?

JM - No not until after the accident. Grant said, “It's serious” and I said, “Do you want me at the office?” and he said, “Yes”.

D - Were you unavailable at any time?

JM - I'm led to believe that Grant tried to call me.

D - As far as you were concerned were you unavailable?

JM - No.

D - Was there any discussion the previous day about using the grab or the hook?

JM - I can't recall any detailed discussion.

D - In your opinion was Jim Harris extremely experienced?

JM - He was a very experienced driver. I respected his ability; he was a man I could rely on. He always came to work; he always did his work to the best of his ability. He had a key role and I was always ready to listen to him. I felt I had a good relationship with all my staff.

D - In Jim Harris' statement he says that on a previous occasion he had changed the attachment without your permission. Did this happen?

JM - I always expected staff to keep me informed if I was not there. Jim was working there before me and I had difficulty in getting him to keep me informed. One day I asked Mick Czaja to tell Jim to change the grab for the hook, as we would be needing it and Mick said, “He's already done it.” So I told him, “ You make him bloody well change it back.”

D - Had he previously done things, which were unsatisfactory without telling you?

JM - There had been occasions. For instance, one day he took it upon himself to move a stockpile from the end to the middle of the quay. Roger informed me; I felt things were going on that I was not aware of. I had a right to know what was going on; as a manager I needed to have control.

D - Whose idea was it to weld on the hooks?

JM - I'm not sure. From memory I think Jim Harris asked me if we could have the hooks welded on.

D - In deciding whether to use the grab or the hook, why would you need to know?

JM- I needed to know everything that was going on to be involved in making decisions.

D - Were there operational considerations when deciding whether to use the grab or the hook?

JM - With the Cambrook, because of the self unload system; I had been advised by the ship's owners that they didn't like the ship to take the bottom as it can change the shape of the sides and distort the carriageway of the self unload system. If the Cambrook was late on the tide and there was a chance of taking the bottom with 1500 tons on board we could assist using the grab.

D - Would this be affected by the time taken to change the attachment?

JM - It could be.

D - What would you have done if you had been asked about changing to the hook that morning?

JM - I would expect to consider many factors and have a two-way discussion. If the bags were in a mess, Jim might say it's best to use the hook, or if there was a lot of aggregate, we could use the grab to help unload some of it. I was in a better position to make a decision if Jim kept me informed. I would come to an agreement with Jim.

J - Does this mean that the decision can't be taken until the hold is open?

JM - That could well be true.

J - If the grab was in place, it could take one and a half hours to change?

JM - It could do.

J - Does that mean that you would not give permission to change it?

JM - It depends; there's no consistency; every shipment is different.

D - Had you spoken to the master of the Cambrook that morning?

JM - No

D - That morning, the system included the use of a Polish banksman. If you had been asked about this directly, would you have had any reservations?

JM - No.

D - If there was difficulty in communication between Jim and the banksman, what would happen?

JM - Jim was a very demonstrative character. He would make it clear very quickly that he was not happy. He was quick to express his opinion.

D - We have heard that Jim shortened the chains that day. Did you know if this had happened before?

JM - No. I still don't know why this was done.

D - Can you see any operational reason for shortening the chains?

JM - No.

D - Would you have approved of shortening the chains?

JM- In hindsight, no. I didn't even know you could shorten them.

D - Is it true that the grab was coming in too low, and Sean Currey had to ask for it to be taken higher up?

JM - Yes.

D - If the grab was too low because of some action by the driver or the banksman, what would happen?

JM - Sean Currey would ask the banksman to raise the chains.

D - In some way, Jim seems to have activated the controls to close the grab. Had you ever known this to happen before?

JM - No.

D - Did you ever receive a report of such an incident?

JM - No.

D - Can you understand why or how this could have happened?

JM - No.

D - Had you ever considered the possibility of an accident, such as the one that occurred?

JM - No.

D - It was put to you in your police interview that you could see that the grab was capable of closing with a man under it. Why had this never occurred to you before?

JM - I trusted Jim, and I cannot understand to this day how it happened. I was totally confident of his ability, and I never expected him to accidentally operate that lever.

D - If he did operate the lever, would you expect there to be a man within range?

JM - No.

D - What clearance would you expect there to be?

JM - At least 5 feet.

D - You were interviewed in August 1998, and the jury has the transcript. You have no previous convictions?

JM - No.

D - Euromin's safety record was clean before this accident?

JM - Yes, it was good.

D - What environment did the police interview take place in?

JM - It was somewhat frightening. There was a person there with an alcohol problem, and he was shouting abuse. I was locked in a room with Mr Bartlett, Ms Barringer and my solicitor. It was like a cell.

D - You answered all the questions, and were co-operative?

JM - Yes.

D - The HSE and the police have visited your premises to collect documents?

JM- Yes, on a number of occasions. I was always fully co-operative.

D - Did you always provide all that you were asked for?

JM- Yes.

D - Is it correct that a summons was issued in February 2001 and your interview took place in August 1998?

JM - Yes.

D - Mr Martell, do you have any children?

JM - Yes, I have two sons, aged 32 and 30, and a daughter aged 22.

 

P - You wouldn't have put them to work in that hold under those conditions on 24 April 1998, would you?

JM - I'm sorry. I didn't hear the question.

P - You wouldn't have put them to work in that hold under those conditions on 24 April 1998, would you?

JM - I'm rather hard of hearing. Could you repeat that?

P - You wouldn't have put them to work in that hold under those conditions on 24 April 1998, would you?

JM - Yes.

P - Is that the truth?

JM- Yes.

P - You have been at Euromin since 1994?

JM- Yes.

P - You are the most senior person in the company in this country?

JM - Yes.

P - Shoreham is the only premises of the company in this country?

JM - Yes.

P - There have been no directors of the company since 1994 who are not Dutch?

JM - As far as I am aware.

P - The picture of the company structure was the same in April 1998 as in May 1998?

JM - Yes.

P - You do not have a deputy?

JM - No.

P - We have heard evidence from Mick Czaja. Does he still work at Euromin?

JM - Yes.

P - You agree that you do 2 relatively full days per week at the site, 2 part days, and for 1 or 2 days you are not at the site?

JM - Yes.

P - You have 2 sales staff?

JM - I did have then.

P - Do you agree that you had full control of working procedures?

JM - Yes. I was kept informed.

P - You said, “I felt things were going on that I was not aware of, and as a manager I felt that I had to retain full control.” Is that accurate?

JM - Yes.

P - In your police interviews, you said, “I don't have a deputy as such”, “Mick answered directly to me”, and “Roger Grant would liaise directly with me.” When you were asked who supervised unloading, you said, “It's a bit split, Grant would liaise with the chaps on the ground.” Is this accurate?

JM - Yes.

P - (Refers to document) You refer to Harris' and Grant's roles. “I would, having liaised with Roger….came back to me……I would give yes or no….all fed through from me to Roger to Jim”. You were in close control of specific tasks with respect to the discharging of cargo?

JM - I was informed.

P - Answer the question. Are you in control?

JM - As close as I can be on the phone.

P - You're the general manager. You get cross if something happens contrary to your instructions?

JM - Yes.

P - With regard to health and safety: your initials are at the bottom of page 77 of the document to show that you would take action on the recommendations of Mr Hutchinson?

JM - Yes.

P - You signed page 93 and 94 of the Health and Safety policy document drafted by Mr Hutchison on 23 May 1997?

JM - Yes.

P - On page 81 of the policy statement drafted by Mr Hutchinson in February 1997, the name of Mr Hoekman has been typed. Did he sign it?

JM - Not to my knowledge.

P - Have you signed a similar document, dated June 1998?

JM - Yes.

P - You told the police that the parent company has no input on health and safety matters. Is that correct?

JM - Yes.

P - In carrying out your responsibilities, you were aware that if you didn't do your job properly, workers could be injured or killed?

JM - Yes.

P - Did you feel that it was your duty to avoid the dangers of injury and death?

JM - Yes.

P - Is there a recognised Trade Union at your workplace?

JM - No.

P - Do you accept that Personnel Selection trusted you to look after casual workers?

JM - Yes.

P - With regard to your improvised hook arrangement, you didn't ask anyone else for advice, which was your responsibility?

JM - I asked Mr Stallard.

P - Did you ask anyone within Euromin?

JM - No.

P - Within Euromin, it was your decision and no-one else's?

JM - It was suggested by Jim Harris.

P - It was your decision?

JM - With advice from Mr Stallard, yes.

P - Nobody else within Euromin made the decision?

JM - No.

P - In the witness box, you were asked if you had a health and safety officer, and you said, “I appointed one…. Roger Grant.” Is that correct?

JM - Yes.

P - In your police interview, you were asked if you hadn't considered delegating health and safety. What was your reply?

JM - “I don't have a specific health and safety officer.”

P - Which is the truth?

JM - I called in Neil Hutchinson because of the inadequacies of Roger Grant. I felt he wasn't giving me the support I needed.

P - Did you appoint somebody else?

JM - I was using ATB Landbase. They recommended Neil Hutchinson.

P - Did you appoint anyone within Euromin, with responsibility for health and safety?

JM - Not appointed, no.

P - Mr Hutchinson was not a health and safety officer within the company?

JM - No.

P - Why did you not appoint a health and safety officer before April 1998?

JM - I didn't know I had to.

P - Why did you not tell your counsel, “I didn't have one between February 1997 and April 1998”?

JM - I had Roger Grant, but he was completely inadequate.

P - Between February 1997 and April 1998, you had no health and safety officer?

JM - Mr Hutchinson was on site, not once but several times.

P - You had no designated health and safety officer?

JM - Appointed in writing, correct.

P - Appointed at all?

JM - The only person on site was Grant, and the staff told me he was totally inadequate. He was the health and safety officer, but not appointed in writing.

P - Was he still health and safety officer in April 1998?

JM - He was not of the calibre I expected to have.

P - “I don't have a health and safety officer.” The truth?

JM - It's a question of terminology. What do you describe as a safety officer? I felt he wasn't competent.

P - You said that in February 1997, you wanted to be proactive?

JM - Yes.

P - Did you know that you had a legal obligation to do the assessment?

JM - Yes.

P - You were not being proactive; you were complying with your legal obligation?

JM - Yes.

P - You knew it was important to have your operations assessed?

JM - Yes.

P - On pages 93 and 94 of the document, which refers to the Health and Safety at Work Act, you signed?

JM - Yes.

P - It is a criminal offence to conduct your operations without an assessment?

JM - Yes.

P - You were in breach of the criminal law in February 1994?

JM - If you could prove that.

P - You had made no assessment?

JM - No.

P - Why did you leave it for 3 years before making an assessment?

JM - I can't answer that question.

P - Do you take the criminal law seriously?

JM - Yes.

P - So why did you not comply with the criminal law for 3 years?

JM - I can't answer that.

P - The key operations at Euromin are loading and unloading?

JM - If you say so, yes.

P - (Refers to document) The vessel discharge procedures, May 1998, signed by you at page 119?

JM - Yes.

P - It summarises your operations: “loading and unloading of vessels…vehicles…despatch of goods”?

JM - Yes.

P - So why did you not give me a straight answer two minutes ago?

JM - I was trying to think of a quick enough answer.

P - You didn't know there are two key operations?

JM - There are lots of operations.

P - To comply with the law, an assessment must include the 2 key operations?

JM - Yes.

P - Not just key operations economically, but with respect to health and safety?

JM - Yes.

P - Any assessment that didn't cover these 2 key operations was next to useless, wasn't it?

JM - I can't support that.

P - It was a major defect in the February 1997 assessment, wasn't it?

JM - Yes.

P - You knew that when you arranged for the consultant?

JM - Yes.

P - You knew that to be effective, you had to include loading and unloading?

JM - Yes.

P - Why did you not arrange for loading and unloading to be included in the assessment in February 1997?

JM - I can't answer. I don't know.

P - There is a difference between not knowing, and not having a sensible answer. Give me a sensible answer.

JM - I don't know.

P - Did you make any effort to ensure that Mr Hutchinson saw the 2 key operations?

JM - I can't remember.

P - Do you think you made some effort?

JM - I knew we'd move on to the second report.

P - That's irrelevant. I'm talking about February 1997. You knew in advance if a ship was coming?

JM - I could have done, yes.

P - No. You would have done.

JM - I can't remember. It was 4 years ago.

P - A ship arriving unannounced: it never happened, did it?

JM - No.

P - You would know in advance whether a ship would be there?

JM - Yes.

P - Mr Hutchinson made an appointment to arrive on a certain day. Was a ship due?

JM - I can't recall if a ship was due on that particular day. I didn't specifically make an appointment for when a ship wasn't there.

P - Have you finished your answer?

JM - Yes.

P - You have heard Mr Hutchinson's evidence. He was flexible, and could have come on any day. The 7th of February wasn't fixed by him. You could have got him to come when a ship was being discharged. Why didn't you?

JM - I don't know.

P - Mr Hutchinson points out in his report that “at the time of assessment, no lorries were being loaded and no ship being unloaded.” Is that correct?

JM - Yes.

P - Why didn't you arrange for him to come back within days or weeks, to carry out that part of the assessment?

JM - I don't know.

P - You could have done these things at any time between February 1997 and April 1998?

JM - Yes.

P - You accept that there is no excuse for not doing so?

JM - In hindsight, I can understand your question, but I don't know why I didn't get him to come in earlier.

P - (Refers to document) At page 81, “the document should be shown to staff….refers to safe working practices….hazards will be assessed, documented and reviewed….I will distribute the findings of the assessment” This is effectively a promise to your staff?

JM - Yes.

P - A broken promise?

JM - It was an ongoing process.

P - Making the working procedure safe couldn't start until there had been a full assessment, could it?

JM - No.

P - It wasn't ongoing; it was frozen.

JM - No, it's still going on.

P - (Refers to document) “Above points need action by James Martell….hard hats, totectors, high-viz jackets…no evidence of effective use of equipment”. Correct?

JM - Yes.

P - What you actually did was to put up a notice, which said, “All staff must wear hard hats”. This was just window dressing, wasn't it?

JM - No. On numerous occasions, I have spoken to staff, saying, “Why aren't you wearing a hard hat?”

P - Including Mr Currey, Mr Taylor and Mr Harris?

JM - Yes.

P - What was Mr Harris' excuse?

JM - It was too hot, and he'd never worn one before.

P - Mr Harris was still working at Euromin until he died?

JM - Until 2 months before he died.

P - The rule wasn't strictly enforced, then, was it?

JM - I tried to enforce it. It was difficult.

P - You knew the reality in your police interview. On page 212, you said, “Who is responsible for enforcing safety? Well, at the end of the day, I suppose I am….There's no- one specifically responsible. You were asked, “Did employees wear protective equipment?” Did you ever answer that question?

JM - No.

P - Why not?

JM - I'm supposed to tell the police every time someone doesn't wear a hat? I'm not a person to tell lies. I am trying to get people to understand that we're living in a health and safety conscious environment.

P - You were not on site all the time, but no- one was responsible for safety. Why not?

JM - Staff had it written into all their contracts, that they were responsible for their own health and safety.

P - (Refers to document) “Page 215-6….hats off….can't watch everybody all the time…don't know how you can do that.” Is that correct?

JM - Yes. I put up 3 signs to say this is a hard-hat area, and to wear high-viz jackets. I saw a lorry driver on site last week, and asked him, “Did you see those signs?” He said, “I didn't read that, guv.” How can anyone monitor that 24 hours a day?

P - The answer is, you do your best, and you appoint someone, with responsibility to enforce the rules. Isn't that right?

JM - I haven't had an HSE enforcement notice saying I have to do that.

P - Before you worked at Euromin, you worked with a different company at Shoreham Harbour for 10 years?

JM - Yes.

P - You are familiar with the harbour, and the water conditions?

JM - Yes.

P - You heard Mr Chichomski's evidence about the bumping of the ship in rough water?

JM - Yes.

P - Was Mr Chichomski right in describing those conditions at the quay?

JM - From time to time, it depends on the wind and the tide.

P - Were you aware that the ship sits higher or lower in the water as it is being loaded or unloaded?

JM - Yes.

P - Were you aware that bags could be displaced during a voyage?

JM - Yes.

P - Were you aware that the surface of the bags was uneven?

JM - Yes.

P - Were you aware that the bags were slippery when they were damp?

JM - Yes.

P - Were you aware that if the bags were in layers, the workers would have to walk on top of the bags?

JM - Yes.

P - You would agree that the Liebherr is not a machine for finesse?

JM - Yes.

P - The primary function of the grab is to grab and lift loose materials?

JM - Yes.

P - It's not a machine for finesse, and sometimes it needs to be used more carefully than at others?

JM - Yes.

P - You can't make safe assumptions about distances?

JM - Agreed.

P - It's not like using a fork-lift in IKEA, with a stable platform?

JM - No.

P - You had a Liebherr machine at your previous workplace?

JM - Yes.

P - It was an excavator with a grab and a hook?

JM - Yes.

P - You knew it was a powerful, heavy grab, which could close silently, and that the other machinery was very noisy?

JM - Yes.

P - You knew the joystick was fairly sensitive?

JM - Yes.

P - You saw the former system at Euromin in operation?

JM - Yes.

P - You saw the new system in operation?

JM - Yes.

P - Do you agree with Mr Stallard, when he said, “You don't operate under an open grab unless you're absolutely certain that it's not going to move”?

JM - Yes.

M - You knew that workers would be under an open grab?

JM - Yes, at times.

P - Were you absolutely certain that it wasn't going to close?

JM - I never expected it to close in a million years.

P - Were you absolutely certain that it wasn't going to close?

JM - Yes.

P - That is your evidence? Remember you are on oath.

JM - Yes.

P - You have been a manager for a very long time?

JM - Yes.

P - You knew that workers are not perfect?

JM - I would never expect that grab to close.

P - You knew that workers are not perfect?

JM - I would never expect that grab to close.

P - You knew that workers are not perfect?

JM - Some are not as good as others.

P - You knew that workers are not perfect?

JM - I can't answer that question.

P - Yes you can, you can say yes or no. You knew that workers are not perfect?

JM - You're trying to put words into my mouth. I would never knowingly put people in danger.

P - You know that the basis of health and safety regulations is that people do make mistakes?

JM - I can't answer that question the way you want it answered.

J - Even experienced workers can make mistakes?

JM - Sometimes.

P - You knew Jim Harris was not perfect, and could make mistakes?

JM - Anybody could make a mistake.

P - Here are 3 references to Harris doing potentially wrong things: “Harris had suitability assessment…can get into bad ways…did things you didn't approve of”

JM - Those weren't mistakes; they were actions he took. He knew exactly what he was doing.

P - You were never aware of the 2 incidents of the partial closing of the grab?

JM - It's the first I've heard of it.

P - You were concerned about the safety of the old system in February 1998. You had operated for 4 years with a system you thought was unsafe. Why?

JM - That system was rarely used.

P - Why use it at all?

JM - Jim was happy with that system, that's how he'd always done it.

P - Why allow a system, which you are telling the jury was unsafe, to continue for 4 years?

JM - The new system was safer; I didn't say the old one was unsafe. There was a degree of error that could happen, and make it unsafe.

P - At page 234, you say, “There was a danger of loads being dropped.” That's unsafe, isn't it?

JM - Yes.

P - So why did you continue to use an unsafe system?

JM - I don't know when I recognised that it could be unsafe. I must have looked at it at some point.

P - The whole time, you had the Liebherr hook attachment?

JM - Yes.

P - The complete answer to the unsafe system is to use the Liebherr hook, isn't it?

JM - To lift the Bobcat, we had to use this system.

P - Not just to lift the Bobcat, but also to lift loads?

JM - The Bobcat is a load.

P - The system was used to lift the Bobcat, or to lift loads?

JM - It could be either: regularly for the Bobcat; occasionally for loads of bags.

P - Were bags ever dropped?

JM - Not to my knowledge.

P - You were warned in writing that you would need to test the welded hooks?

JM - So I'm led to believe.

P - What did you do about it?

JM - There is an annual inspection, arranged by the insurance company. That would tell me if anything needed doing.

P - You were aware of the need to test the hooks?

JM - Yes.

P - You did nothing between February 1998 and April 1998: for 2 months you used untested hooks?

JM - Yes.

P - You were going to wait for the annual inspection?

JM - Yes, in June or July.

P - With the previous system, was the grab open or closed?

JM - Open.

P - You have always said that the chains were wrapped round the central stem of the grab, and sometimes the chains would hang outside the jaws of the grab?

JM - No, that would get in the way of the hydraulic pipes.

P - The chains always hung between the jaws?

JM - Yes.

P - Were the jaws open or closed?

JM - Partially open, as the chains had to hang inside.

P - You are the general manager and you keep in close control. What was supposed to happen with the old system?

JM - The chains were wrapped round the central column, then shackled, and hung through the grab.

P - And this system was unsafe and insecure?

JM - Yes, that's why I changed it.

P - You let it happen for 4 years, didn't you?

JM - I didn't like it.

P - Is it common practice among other firms to use an excavator for lifting?

JM - Not that common, but I have seen it at other ports.

P - Where have you seen it?

JM - Shoreham Port Authority.

P - Is that the only place?

JM - No, I've seen it at Great Yarmouth: a different excavator, but a similar grab.

P - Anywhere else?

JM - No.

P - Have you seen either kind of excavator used as a lifting machine with the grab open?

JM - Yes, at Shoreham.

P - Where was the load suspended?

JM - From memory, 2 pins were locked into a metal frame, and the chains were suspended from those.

P - How long were the chains?

JM - 10 to 12 feet.

P - When did you see this system in use?

JM - 7 to 10 years ago.

P - I suggest that your new system created four risks. Are you an engineer?

JM - No.

P - Is the Liebherr a very expensive machine?

JM - Yes.

P - Built by an expert company?

JM - Yes.

P - Is the structural integrity of the attachments critical to the safety and usability of the excavator?

JM - Yes.

P - Your use of the attachment leads to loads being suspended from a place, which was not anticipated by Liebherr?

JM - That's why I got Mr Stallard in.

P - What is the weight of one of the bags of stones?

JM - 1.2 to 1.3 tonnes.

P - So 2.5 tonnes was being hung in a place, which was not designed for this purpose?

JM - Yes.

P - You never used Mr Stallard to service your machines?

JM - No, he was not an expert in that field.

P - Experts from Liebherr would know tolerances and strengths?

JM - Yes.

P - So they were the right people to ask?

JM - I asked Mr Stallard, who was an expert on lifting and chains.

P - You didn't ask Liebherr, because you knew there was no chance that they'd approve.

JM - Incorrect.

P - You spent 10 minutes talking with Mr Stallard.

JM - I recall half an hour.

P - Did you ask him if he knew the strengths and the structural design of the attachments?

JM - No.

P - Your new system risked closing the grab on the chains while they were supporting a load?

JM - Yes.

P - You knew that at the time?

JM - Yes.

P - This risk occurred immediately to Mr Watson of Pyecroft Engineering?

JM - Yes.

P - You said to Mr Stallard, “What happens if the grab closes?” What was his reply?

JM - He said, “It won't sever the chains, just damage them.”

P - And this answer reassured you?

JM - Yes, if the chains were long enough.

P - You know that you were served with the evidence, and you instructed your lawyer. He asks questions, based on what you have told him about what happened?

JM - Yes.

P - I suggest that no questions were asked of Mr Stallard, because you're making it all up. No questions were asked of Mr Stallard; that is complete nonsense.

JM - Incorrect.

P - You were aware of the risks involved in the new system.

JM - I asked Mr Stallard, “What if the grab closes?”

P - The role of the banksman is critical. Correct?

JM - Yes, and the men in the hold.

P - The grab is a substantial obstruction to vision. Correct?

JM - Yes, if it's closed.

P - Your new system created a 4th risk: that of the grab closing on a worker?

JM - Yes.

P - The part of the worker most likely to come into contact with the grab is the head?

JM - Yes.

P - The risk was obviously one of death?

JM - No, anyone with any sense…Sean Currey was with him…there was a relationship between Mr Currey and the banksman, he could tell him to lift the chains enough for the grab to clear their heads.

P - If the grab closes, it could close on a worker?

JM - If they were standing on the bags, yes.

P - Even if they were bending over, the upper part of the body is still nearest the grab?

JM - Yes.

P - If the grab closes, the head is the most likely part of the body to make contact?

JM - I would never expect anyone to be near that grab.

P - Mr Harris was highly skilled at deliberate, conscious control of the joystick?

JM - Yes.

P - When the grab was in motion?

JM - Yes.

P - When pushing forward or backward, or possibly opening or closing the grab?

JM - I think so.

P - The most likely time for unconscious mistakes is when the grab is still?

JM - I can't say I agree with that.

P - He is least likely to make a mistake when he is deliberately moving the lever?

JM - That's your assumption. He was aware of the men in the hold; there is no reason why he shouldn't be 100% perfect.

P - The time when he is waiting, not consciously doing something, is when the grab is over the heads of the men?

JM - I can't agree.

P - The grab closing was not freakish; it's exactly when a mistake is most likely.

JM - I can't agree.

P - If Mr Harris turned with heavy clothes on, he would not be conscious of operating the lever?

JM - Correct.

P - That's when the danger of inadvertently catching the clothing is most likely?

JM - I can't comment on that.

P - The right time for calling Mr Hutchinson was in February 1998, when you were changing the system, if not before?

JM - It could be.

P - You told the police that it was obvious with hindsight that it was safer to use the Liebherr hook than your new system?

JM - Yes.

P - Only with hindsight?

JM - I would not adopt an unsafe system.

P - You did just that, for 4 years.

JM - I didn't operate an unsafe system.

P - Did you take any additional safety precautions after February 1998?

JM - Not that I recall. I did put up a notice after the accident.

P - You heard Mr Stallard explain that Euromin asked to see a sales rep?

JM - Yes.

P - Euromin asked for a sales rep, and it was only because the sales rep had retired that Mr Stallard came?

JM - Roger Grant made that phone call.

P - Nothing like that was suggested: Mr Stallard gave different evidence, and that was never challenged.

JM - Mr Stallard brought two hooks with him.

P - Mr Stallard had no advance notice of his visit?

JM - Yes, he did.

P - You told us today that there was notice that Mr Stallard was coming?

JM - Yes.

P - Has Mr Stallard ever been asked to give safety consultancy?

JM - Not to my knowledge.

P - Mr Stallard's true expertise is in lifting gear?

JM - Yes.

P - He said, “A good starting point is a secure lifting point.” That is all Mr Stallard's expertise, and that is all he advised you on?

JM - Yes, and the hooks. As an expert, I'd expect him to say, “You can't do this” or “Refer back to Liebherr”.

P - Mr Stallard was not given a chance.

JM - It doesn't take long to say, “This is unsafe”.

P - Did you tell Mr Stallard that you had the proper Liebherr hook?

JM - No.

P - Did you ask him if he had ever operated the Liebherr?

JM - No.

P - Did he ever see your old system in operation?

JM - No.

P - Did he ever see your new system in operation?

JM - No.

P - You reassured Mr Stallard that you had used the system for years with no problems. Do you call that consultancy?

JM - I didn't mention what you just said to Mr Stallard.

P - (Refers to document): page 231…a design of hook which I was led to believe was right for the job. This was all about the design of the hook, and a secure lifting point, and that was all, wasn't it?

JM - Mr Stallard must have known what I was going to use it for. He can't just disappear from his responsibilities.

P - You assured him that you had used the system for years with no incidents.

JM - I wasn't telling him his job.

P - Which was lifting gear?

JM - Yes. We were discussing a design of hook satisfactory for the job I was trying to do.

P - You didn't put the hooks where Mr Stallard suggested?

JM - I put them in the place, which he suggested.

P - You are saying to the jury that Mr Stallard's original suggestion was in a different place but you discussed it, and you agreed where to put the hooks?

JM - He held the hook against the stem of the grab, and showed me where to weld it.

P - None of that discussion was put to Mr Stallard. Your story about your conversation with Mr Stallard was not put to him.

JM - I just recorded the story, which is what took place. Roger Grant was there.

P - Do you agree that changing from the grab to the Liebherr hook would eliminate four risks: the structure and integrity of the grab stem being compromised, the grab closing on the chains, The grab compromising the view of the banksman, the grab closing on a worker?

JM - No.

P - You don't agree?

JM - You say the risks could be eliminated, but the driver could operate the lever and drop the whole boom on somebody's head.

P - There are risks, which are common to the machine, whatever attachment is being used?

JM - Yes.

P - There are extra risks, which you have chosen to create. With the proper Liebherr hook, there is no grab to obstruct the banksman's view?

JM - Yes.

P - There is no grab to close on the chains or on a worker?

JM - Correct.

P - The load would be exactly where Liebherr intended it to be?

JM - It's exactly the same.

P - With the proper hook, there is no unexpected load on the stem. Do you agree?

JM - Yes.

P - So with the proper hook, you have got rid of all 4 risks?

JM - I don't agree with the last one.

P - With the proper hook, the integrity of the stem and grab is not compromised?

JM - No.

P - Thank you. If Jim Harris and Roger Grant had wanted to change to the hook on 24 April, can you think of a reason why?

JM - No.

P - Not for safety reasons?

JM - Jim had asked for the hooks to be welded, to do jobs like the one being done on that day.

P - Is there any reason why they shouldn't have changed to the hook?

JM - No, they'd only have to phone me.

P - In your police interview, you said, “He's quite free to use the hook….It's down to Jim, he had a full free hand.” That is not the truth, is it?

JM - In addition, he would have to call me first, explain what he wanted to do, and why.”

P - You would decide?

JM - Yes.

P - “Jim had a full free hand.” That was a whopping lie, wasn't it?

JM - Not a lie.

P - You had previously learned from Mick Czaja that Jim had changed from the grab to the hook without your authority?

JM - Yes.

P - Referring to your conversation with Mick, he said, “He's already done that.” Was it on that occasion that he'd done it without your approval?

JM - Yes.

P - Changing back to the grab was a messy job, which took an hour, but you made him change the attachment, even though the hook was the correct attachment?

JM - There is a radio in the cab of the excavator, the operator can phone me at any time.

P - You wouldn't make a change to safeguard lives, but you will do it to make a point about management control?

JM - This was a very isolated incident; it's not the way I operate.

P - You told the police and the jury that the number of bags on the ship on 24 April was small?

JM - Yes.

P - You say this was the reason for not using the hook. You are telling us that Mr Ford, Mr Harris and Mr Czaja are lying. In the previous year, of 14 bag loads, only 5 of them were bigger. Do you agree?

JM - Yes, but it was small compared with what we'd had in the past.

P - The Liebherr was Euromin's machine?

JM - Yes.

P - Were check valves fitted?

JM - No, it was a gate valve.

P - What was fitted in 1995?

JM - An end-of-boom gate valve, not a check valve.

P - Was this to facilitate changeover?

JM - Yes. If we had to disconnect, there wouldn't be an oil leak.

P - Using the valve wouldn't make the system safe, but didn't it occur to you that as a short cut, you could isolate the grab by using the valve?

JM - I wasn't sure if it could resist full oil pressure, without asking Liebherr.

P - If you had asked Liebherr, or spent more than 10 minutes talking with Mr Stallard, you might have saved a life, but you didn't bother.

JM - That's just supposition on your part.

P - You knew that the chains were regularly shortened at Euromin?

JM - I knew they could be, for instance to lift the Bobcat, but I don't know why they were shortened on that day.

P - Are there other reasons to shorten chains?

JM - No.

P - You knew that it could be done easily?

JM - I knew there were attachments to do it.

P - The chains were specially purchased in February 1998?

JM - I can't recall. It was more than 3 years ago.

P - (Refers to document) Page 228: the chains in Ms Barringer's photographs are those purchased early in 1998?

JM - Yes.

P - You can see 3 rings, the chains, and something else there?

JM - Yes, swivels and shortening hooks.

P - Yes. Shortening hooks. What are they doing there?

JM - They are to shorten the chains for lifting the Bobcat out.

P - You knew that on the specially purchased chains there were shortening hooks?

JM - I was not aware that the chains were shortened on that day.

P - The shortening hooks were only to be used for the Bobcat?

JM - Yes. The chains were renewed every 6 months.

P - They were a standard length?

JM - Yes, 3 metres.

P - No; they were 8 feet.

JM - Whatever.

P - You can't tell us what length they were?

JM - No.

P - Because it doesn't matter?

JM - I always realised that the length of the chains was critical to the clearance between the grab and the workers. I understood they were 3 metres long.

P - Who ordered them?

JM - Roger Grant.

P - Have you got the invoice?

JM - No.

P - Have you looked for it?

JM - Why should I need to?

P - It would help to establish the truth.

JM - That's your assumption. You are incorrect. I am very concerned about the accident. It has preyed on my mind for nearly 4 years. I don't take it lightly.

P - The way you showed concern in your police interview was by unloading blame left, right and centre.

JM - I said in that interview, “It stops with me.”

P - At page 211 to 212 of your police interview, you said, “I knew the chains had been shortened.”

JM - After the accident, Roger Grant told me they'd been shortened.

P - At page 227, you said, “The chains were shortened….I was not aware until 2 or 3 weeks ago.”

JM - You're trying to put words into my mouth. I can't recall the exact date. I must have been made aware some time between 24 April and 17 August.

P - You must have tried to find out as much as you could straight after the incident. You must have found out that the chains had been shortened.

JM - Not before 24 April: it must have been between 24 April and 17 August.

P - You told the jury, “in the hours and days after the accident”. You told the police on 17 August 1998, “2 to 3 weeks ago”. Why did you lie?

JM - I was not lying. I've been cooperating with the HSE and the police. I take exception to that.

P - The length of chain didn't seem to matter to you at the police interview.

JM - As long as they were full length.

P - At your interview, you said, “there was ample distance from the grab to the bag….2 metres… there was plenty of room to get under the grab area to hook on the chains.”

JM - Yes.

P - You foresaw the risk of the chains coming in too low, and you said there was still enough room for the workers to go in?

JM - As long as there was not too much chain resting on the bag. If there was, they would have to signal to the banksman to go up.

P - You were envisaging keeping a lookout, and ducking under the grab?

JM - You can reach from the side of the grab.

P - This was the so-called freakish aspect of what happened: you foresaw it, and thought it didn't matter?

JM - It's easy to say that with hindsight.

P - It shows your true state of mind, which was reckless.

JM - No. I'm not a reckless person.

P - You accepted that the banksman had a critical relationship with the other workers, that Mr Harris and Mr Ford worked well together. You were warned in February 1997 that you needed to use a fully trained banksman. Mr Hutchinson's assessment said that you needed full cover for banksmen?

JM - Yes.

P - You knew that you needed to have a fully trained banksman?

JM - Yes, that was my aim.

P - Your initials appear at the bottom of the assessment document?

JM - Yes.

P - On 24 April, there was a fully trained banksman working on the shovel?

JM - Yes.

P - Did it occur to you, when you were in close contact with Roger Grant, that the ship's captain might not have been able to provide a banksman?

JM - Yes.

P - What would you have done?

JM - Probably left the bags in the ship, and moved them later in the day. There was only 125 tonnes.

P - What about the problem of the ship taking the bottom as the tide went out?

JM - It wouldn't have hurt.

P - The unloading was so badly organised?

JM - I answered your question. We unloaded the bags after 5 pm.

P - Why was Mr Ford driving the shovel?

JM - Because he was competent to do it.

P - Where was the normal shovel driver?

JM - Somewhere else.

P - Working for more money?

JM - Could be, or maybe he had another job to do.

P - The complete answer to this problem would have been to ask Personnel Selection for a shovel driver.

JM - I was not aware that they supplied them.

P - On 23 April, when you were planning the next day's work, having had 5 to 7 days' notice of the arrival of the Cambrook, you could have caused Mr Grant to ask for a shovel driver. You couldn't be bothered, could you?

JM - I can't recall. It wasn't a question of “not bothering.”

P - Does a shovel driver cost more than a casual labourer?

JM - It wasn't a question of money; Taffy was doing a job for Pyecroft Engineering.

P - Does the agency charge more for a shovel driver than for a labourer?

JM- Correct.

P - So you could have enquired, obtained a shovel driver, and solved the problem?

JM - Yes.

P - And you didn't bother?

JM - You're telling me that.

P - Were you at Euromin on 23 April?

JM - I don't know.

P - Were you often short of staff?

JM - We were finding it more difficult: there was a hard core of part-timers at the Port Authority, but it was getting harder to find casuals.

P - Did you know that Mr Grant didn't ask Mr Chichomski for a banksman?

JM - I asked Mr Grant, was the master satisfied with the men he was sending?

P - Mr Chichomski was just asked for two men to help out?

JM - Yes.

P - Can you explain your remarks about it being worse for a “chappie” to be injured for life, and why you said it would have been worse if Simon had been wearing a hard hat?

JM - If he'd been wearing a hat, the splinters could have killed Sean Currey as well.

P - And this is what you call being sensitive to the death of Simon Jones?

JM - Yes.

P - Regarding the remarks about injury being worse than death: in August 1998, you had taken legal advice?

JM - Yes.

P - You were thinking about the massive damages, which could be claimed for permanent nursing care, and worked out that it was cheaper to kill someone?

JM - No.

P - On 24 April, you were on your way to London , when you got a phone call from Roger Grant, you could tell from his tone that it was serious, and you asked if you were wanted back in the office?

JM - Yes. I went straight to the office.

P - You went back to Shoreham?

JM - Yes.

P - Are you sure?

JM - Yes. I was at the top of the hill on the way to Gatwick when I got the call.

P - Why did you tell the police that you were in London ?

JM - When I was called, I was on the A23 on the way to London , and I turned round and went straight back down the A23.

P - What time did you find out about the incident?

JM - I assume that it was straight away. I was there by 12 o'clock, when Ms Barringer arrived.

P - I suggest that you avoided Ms Barringer that day.

JM - I did not avoid her; I stayed in my office and made myself available. I asked Roger Grant to look after the staff re counselling. I saw Ms Barringer put on her mac outside the office. She walked across to the ship.

P - You heard Ms Barringer's evidence. The first time she saw you was on 30 April.

JM - No. I saw her outside the office. I spoke to her sometime after that about sailing, and the possibility of her mooring her boat at Euromin's Wharf. I was there. Why should I avoid her?

P - Because you bore a huge moral responsibility.

JM - I didn't avoid her.

P - I suggest that you didn't see her on 25 April, 26 April, 27 April, 28 April or 29 April.

JM - Correct.

P - You were looking after number 1.

JM - No. I always made myself available. I wouldn't wrongfully interfere.

P - There is no way that you could be certain that grab wouldn't close?

JM - Is that a question or a statement?

P - A question.

JM - I never dreamed that somebody would operate that lever accidentally. I knew the machine was very well maintained. It wasn't a question of cost.

P - We have shown that Mr Harris was not perfect, that he made mistakes, and that he could well have foreseeably closed the grab.

JM - That is the only way it could have happened; the machine was sound.

P - To assume that it could never happen was grossly irresponsible.

JM - I don't agree.

P - The time that it was most likely to happen was when the grab was over the men's heads.

JM - I can't agree.

P - You foresaw that the grab could come in too low.

JM - Those were my answers. I still refute your suggestion.

P - All the things that happened were predictable?

JM - I can't agree. Mr Harris closed the lever, but he was competent and professional.

P - Do you agree that there were four risks, which you created?

JM - You're telling me that. I didn't deliberately create them. I took advice. I did what I could as a professional man.

P - I'm not suggesting that you deliberately intended those risks, but that is the effect of what you did.

JM - I can't agree.

P - You created a serious risk of death.

JM - I didn't intentionally create the risk.

P - Leave out “intentionally”. You created a serious risk of death.

JM - I took professional advice from a specialist, an expert. I can't say that I foresaw the risk of killing that man.

P - I don't suggest intent. The risks were easily avoided, with proper attention. You prevented that from happening.

JM - No, I didn't.

P - The risks were obvious and foreseeable.

JM - That's your opinion.

P - You were grossly negligent.

JM - I can't agree.

P - It cost a life.

JM - I know that. I take it seriously.

P - Do you accept any responsibility for what happened?

JM - I didn't deliberately do anything to endanger life. You'd like that splashed all over the papers tomorrow, wouldn't you?

J – The case will be adjourned until tomorrow morning at 10.30

November 21st 2001

D - (Refers to document) Jury Bundle B, page 81. Policy statement dated 20-2-97. “Health and Safety at Work Act….responsibility with me….some delegated responsible persons.” Were these statements distributed or shown?

JM - They were drawn up by Neil Hutchinson, and filed in the office. I kept a copy myself.

D - The name of Mr Hoekman is typed in?

JM - Yes.

D - Whose idea was it to ask for Mr Hoekman's signature? You reported to him, didn't you?

JM - Yes.

D - So whose idea was it?

JM - Neil Hutchinson's.

D - Did Mr Hutchinson know Mr Hoekman, or did he only know his identity through you?

JM - Only through me.

D - Is there any evidence that Roger Grant was appointed as safety officer after February 1994?

JM - Yes.

D - In your police interview in August 1998, at page 214, you said, “I don't have a specific health and safety officer….Grant was an assistant who dealt with health and safety matters”. Can you explain this?

JM - My thoughts on Roger Grant's ability were questioned by one or two staff. Carrying out the company's health and safety policy was beyond him, so I called in Mr Hutchinson. His role has increased. He effectively does this.

D - Was Roger Grant's appointment done orally?

JM - Yes.

D - Were the other staff told?

JM - Yes.

D - Did you put up notices to confirm his appointment?

JM - Not as such, but his signature was on all notices about health and safety.

D - Mr Hutchinson attended the site on 7 February 1997?

JM - Yes.

D - By appointment?

JM - Yes.

D - Can you recall how the appointment was made?

JM - I can't: it was so long ago. It would be via ATB Landbase, where he was a consultant. Roger Grant would have made the appointment through Jane Baker. I think I discussed it with Jane Baker, and she assured me that he was competent.

D - We have been told that on when Mr Hutchinson visited the site, no lorries or ships were being loaded or unloaded. Can we assume that this is correct?

JM - Yes.

D - Was he asked to attend specifically when no loading or unloading was going on?

JM - No. It was unusual for no lorries to be there. He may have been there for about 2 hours. We average 40 to 50 lorries per day. He may have been there when there were no lorries.

D - Did you want him to assess some things and not others?

JM - I wanted a complete site assessment.

D - We have heard that visitors and employees didn't always wear hard hats. What steps did you take about this?

JM - Time and time again, I asked all staff to adhere to signs. The whole site was designated a hard hat area. Some staff brought their own hats; I said that they had to conform to British Standards. Also, Mr Grant and Mr Czaja were always telling the staff to wear hard hats. We have spare hard hats on site.

D - Can you see what more you could do, to enforce the rules on hats?

JM - No, not without having an individual in the middle of the yard, watching everybody, and making sure they always wore hard hats.

D - We have heard about the conditions of the water in the dock, and the roughness of the sea, and the movement of the ship. We have heard that under certain conditions, the movement could be as described by the master of the Cambrook. What were normal conditions like?

JM - Normally, there would be no more than one or two inches of up and down movement, on average. It would need a force 6 south-west gale to produce much swell inside our harbour.

D - You were asked, “Were you absolutely certain that grab would not move?”

JM - I was, yes.

D - What led you to that view?

JM - It's an operation similar to a car at traffic lights, with a pedestrian crossing, waiting for people to cross. He was an experienced driver, in full control of the machine. I would see no reason why he should activate that lever.

D - It was put to you that even the best of people can make mistakes.

JM - Yes.

D - Did you envisage this particular mistake?

JM - As far as mistakes are concerned, when discharging a ship, going with the grab and hitting the side of the ship, I'd class that as a mistake. To activate the lever, I wouldn't call that a mistake.

D - Did Mr Harris have a tendency to make mistakes of this kind?

JM - No.

D - When you were asked if the workforce had had any health and safety training, you gave the answer, “Jim Harris had a course a year ago. That was an instance of retraining.” Were you intending to say that he had got personally into bad ways?

JM - No. I felt that at his age he needed some training, for reassurance about his competence.

D - What bad ways had he got into?

JM - How he operated the machine: going gradually up and down. Nothing important; he was inclined to go up, sideways and down. He needed to make the operation more fluid.

D - Did he have any bad ways with regard to safety?

JM - No.

D - Did any staff have reservations about Jim Harris?

JM - No.

D - Were any risk assessments carried out before 1994?

JM - Not to my knowledge.

D - You made modifications to the system after your meeting with Mr Stallard. Describe the system when you arrived at Euromin. Were chains wrapped round the grab?

JM - Round the central column of the grab.

D - Where were the chains wrapped?

JM - Round the hinge bars, and secured with a shackle.

D - Were the chains wrapped around the outside of the grab, or inside?

JM - They hung down inside the grab.

D - What did you regard as wrong with this system?

JM - It wasn't wrong; it was untidy. It didn't keep the load to the centre of the column. It was messy; I felt there must be a safer way to attach the loads. Jim mentioned a good idea, and I thought I'd follow it through.

D - Mr O'Connor put it to you that you had allowed an unsafe system to be used for 4 years.

JM - He put it to me, yes.

D - Had there been any incidents of loads slipping?

JM - Not to my knowledge.

D - Before Jim Harris made the suggestion, had it occurred to you to modify the system?

JM - Not to my knowledge. I was always looking for ways to make life simpler for everybody on the site.

D - Why did you approach Stallion Engineering?

JM - Mr Stallard had gained over the years a wealth of experience. The company were using him before 1994. He was a local man, somebody who knew his job, all about slings, webs, hooks and chains. It was an old-fashioned firm, and he was an expert worthy of taking advice from.

D - You met him on site?

JM - Yes.

D - He had the hooks with him?

JM - Yes.

D - What does that indicate?

JM - He knew what we wanted to do. He had a safety hook with a latch that couldn't come undone. I didn't disagree with the design. He knew what he was talking about. There was nothing unusual about it.

D - The meeting was between you, Mr Grant and Mr Stallard?

JM - Yes.

D - Was anyone else there?

JM - No. Just the 3 of us.

D - Who supplied chains to Euromin?

JM - Stallion.

D - All chains?

JM - Yes.

D - Did you receive invoices for chains?

JM - Yes.

D - You said that you were aware of chains being shortened for certain operations, such as moving the Bobcat?

JM - Yes.

D - Had you ever heard of chains being shortened to move bags?

JM - Not that I can recall.

D - At page 227 of your interview, you said that you were not aware “until 2 or 3 weeks ago”?

JM - Yes.

D - It was agreed yesterday that you were told this by Roger Grant after the accident?

JM - Yes.

D - Can you recall when?

JM - I can't give an exact time. I was horrified. My reaction was, “Why on earth did he do that?” It was a very difficult time, May, June and July. It could have been 3 or 4 weeks after.

D - Would you have any reason not to tell the truth?

JM - No, it was immaterial.

D - As to the length of the chains, Mr Stallard would know that?

JM - Yes.

D - The shortened chains were measured by Ms Barringer?

JM - Yes.

D - Were they measured in their unshortened state?

JM - I'm not aware.

D - The extent of shortening is double what you can see in the photograph?

JM - Yes.

D - Would your estimate of the amount of shortening be about one and a quarter metres?

JM - Yes.

D - If the chains were not shortened, and the operation was done in the normal way, how much clearance would there be between the grab and the men's heads?

JM - At least 3 feet.

D - At page 233, when asked who would decide whether to use the hook or the grab, Mr O'Connor suggested that you were dishonestly trying to shift the blame.

JM - No.

D - This passage appears to be critical of Jim Harris.

JM - I was not trying to be critical; the staff were loyal to me; I'm not the kind of person to try to shift the blame. I was just recording the facts, as they happened.

D - You said Mr Harris was free to use the hook. Have you ever said, “No, you can't use the hook”?

JM - Not to my knowledge. There was one day when he wanted to do it, but there was another gravel ship to clear first.

D - You expected to be kept informed?

JM - Correct.

D - You made him change back to the grab?

JM - Yes.

D - Were there any earlier incidents of unauthorised actions?

JM - Yes. There was a heap of aggregate, which Jim took it upon himself to move to the east end of the quay. I said, “We've got to get to grips with this. Let me know via Mick, and let me have my input. I have the right to know what's going on.” That's not unreasonable.

D - What harm would it do to change to the hook?

JM - No harm, but for instance, if they were late starting on the Cambrook, they would need to shift the aggregate to avoid the ship bottoming. It was important for me to keep control of what was going on at the site.

D - The isolator valve on the grab was a valve fitted to use when changing attachments. Had you ever considered using it as a safety feature during lifting?

JM - It was a primitive valve, which was not tested at high pressure. It was a shut-off valve, recommended by Liebherr, just to stop leakage of residual oil in the pipe.

D - If the valve had been shut off, would that have prevented the grab from slewing?

JM - Yes.

D - Did the grab need to be slewed?

JM - Yes. If the grab was close to the side of the ship, it had to be revolved by 90 degrees to pick up the bags.

D - Do you know in advance where in the hold the cargo will be?

JM - No.

D - What were you told that morning, in advance of the crew of the ship being contacted?

JM - I was aware that we were two staff short. Roger Grant had seen the master, who said he could supply 2 men. I said that's OK if the master is satisfied that they are competent.

D - You knew what jobs they would be doing?

JM - Yes, Roger told me.

D - If you had known in advance what the banksman's actual experience was, would that have concerned you?

JM - No.

D - Yesterday you were asked why Mr Ford was driving the shovel instead of Taffy. It was put to you that you could have got a shovel driver, but that would have cost more, and you were cutting corners to save money.

JM - No. The difference in salary for a day's work was small, and I wouldn't consider it.

D - On the master card at Personnel Selection, the hourly rate for a labourer was £7 to the company, and £5 to the man. Do you know if a shovel driver costs the same as a labourer?

JM - It was a different rate, higher.

D - Did you ever engage a shovel driver from Personnel Selection?

JM - No. They were difficult to engage. They are few and far between.

D - A shovel driver would need to be certificated?

JM - Yes.

D - It was suggested that if there were a civil claim against Euromin, that would affect their insurers, and be very expensive. Did you have any financial stake in the company?

JM - No.

D - Do you know if any claims have been made?

JM - No. That's not a matter I'd be involved in.

D - There was a line of questioning which suggested that you cut corners to save money.

JM - I take exception to that.

D - Do you have a financial stake in the company?

JM - No.