Prosecution opening speech

Mr Martell is the senior manager of Euromin Ltd, a company situated in Shoreham in Sussex . It imports building materials and sells them on to customers in this country. Its main activities are unloading ships at the quay side in Shoreham and loading lorries to distribute the materials to customers within Britain .

 

There is no doubt that Euromin owned and operated the business at Shoreham Docks.

 

Euromin imported bulk stone and aggregate from ships arriving from Holland

 

Euromin was the only trading establishment on the dockside unloading aggregate at the quayside.

 

Mr Martell was not only the general manager but was solely in charge of the site and the business. As such he was a key player and should be held solely accountable.

 

Simon Jones was a 24 year old Sussex University student who was taking a year out from his studies before sitting his final exams. To finance himself he had signed on for work at an employment agency, Personnel Selection in Brighton . He was physically fit, alert and intelligent.

 

On the morning of April 24 th Simon was sent by Personnel Selection to the premises of Euromin. He arrived shortly after 8 am. By 10.15 am he was dead.

 

As Simon arrived at Euromin the MV Cambrook was coming into dock. Simon was sent to join the other men on the quay side and was soon sent into the hold of the ship to act as a stevedore, a job for which he had no experience or training.

 

The system being used for unloading consisted of a Liebherr 984 excavator. Instead of using a lifting hook the clam shell grab had been modified by welding hooks above it to which chains were attached so that they hung down inside the open grab. The chains were 8 feet long but more than three feet of this was taken up by the distance between where they were attached and the depth of the grab. This meant there was less than five feet between the bottom of the grab and the tops of the bags. Simon was more than a foot taller than the bags so the head room between him and the grab was less than four feet. To these chains Simon and Sean Currey, another casual worker were instructed to attach bags of cobble stones so that they could be unloaded on to the quayside. This placed Simon directly under the grab bucket and placed him in danger of his life.

 

The raising and lowering of the grab and opening and closing the grab was controlled by a series of joysticks within the excavator cab. The excavator driver could not see into the hold and had to rely on a series of hand signals from a banksman whose job it was to communicate between the men in the hold and the excavator driver. On this day the usual banksman was working elsewhere on the site and due to shortage of staff a Polish crewman, who spoke no English was used to do this.

As Simon was carrying out this task the grab (weighing about 2 tonnes), which had come in too low, suddenly closed about his head and neck crushing his skull and virtually decapitating him. He died almost instantly. The grab closed silently in less than 1 second. There was no warning and no chance of escape.

 

Mr Martell is guilty of manslaughter due to gross negligence. Although he was not present at the time of Simon's death he was responsible for setting up the dangerous system of work and as such his actions showed a wilful disregard and lack of attention to safety. Because of Mr Martell's position of seniority within the Company, the Company is also culpable.

 

At this point 2 files (A and B) – 6 of each were handed out to the jury. The files consisted of photographs and plans of the site and other documents.

 

File A tab 2 shows a plan of the harbour and Euromin's site at Penney's wharf. Euromin's site is outside the lock gates on tidal water. There are aerial photographs of the site and a plan of the premises. There is also a stowage plan of the Cambrook as it was on 24 th April 1998 showing a pile of loose aggregate (2400 tonnes) in the centre of the hold and near the bow – bags of rumble stones. To the left of the aggregate is the automatic discharge machine.

 

Photographs by Mr Bloomfield, the police photographer show: The Cambrook with retracted hatch covers; the arm of the Liebherr is to the right of these.

1. The bow of the Cambrook with the excavator arm; behind this is the conveyor belt.

2. The starboard side of the ship is to the quay.

3. The Liebherr excavator with the driver's cab open, you can see where the driver sits. (The driver Mr Russell Harris was also known as “Jim”).

4,5 & 6 These three photographs show the excavator arm extended into the hold and a pile of bags next to the police car (to give an idea of scale).

7. A full view of the Liebherr with the arm extended to the far side of the hold. You can see the top of the grab. It shows the hold is so deep the driver cannot see people in the hold so a banksman is needed.

8. The top of the grab.

9. The depth of the hold with some bags present.

10. Aggregate, automatic scoop and conveyor belt.

11. The front of the hold (empty) with bags to the right.

12. Bags

13,14. The photographer on the hold floor, levels of bags, the open grab.

15. What happened to Simon in the hold.

16. Hydraulics

17,18. The open grab – the yellow spot is the improvised hook welded at the instigation of Martell.

19. Simon under the grab with the chains hanging down. There are 2 sets with the hooks on to the bag they were working on. The photograph was taken 1 hour after death and high tide. The position may have altered as the tide began to fall.

The next 2 photographs show how much head room there was (or wasn't).

Expert assistance will be given in relation to this point. I would ask you to imagine the jaws of the grab closing and then to imagine how much chain would be left protruding.

 

It was now 1 pm and the court was adjourned until 2.05 pm.

 

Please turn to File B. the photographs taken by Miss C Barringer, the Health and Safety Inspector can be found under tab 4.

Photograph Number 7 shows how the chains tighten as the tide falls. We intend to show you a video – not a reconstruction – just to show you the size, power and mechanics of the Liebherr 984.

 

Page 154 of your files shows the controls in the cab taken from the Liebherr manual. The manual explains the correct use of the Liebherr 984, its equipment and attachments. On the right hand side of the driver's seat is number 3, the joystick. If it is moved to the left it closes the grab, moving it to the right opens it.

 

We shall introduce eyewitness testimony as to Simon's conduct prior to his death. This will be provided by Mr Sean Currey who was in the hold at the time.

 

Simon was not given any proper instructions as to the job he was to perform. No training was given to Simon or other casual workers. Sean explained to Simon what to do including safety precautions but he was himself only a casual labourer. He will tell us that the excavator arm with the grab kept coming in too low. Instead of the chains just touching the bags they were suspended in the air just below the bags.

 

Therefore Sean and Simon had to reach across the tops of the bags to retrieve the chains. This placed them even closer to the grab. Sean didn't see the grab close; When Harris opened the grab Simon fell out of it. Due to the death of Mr Harris we cannot ascertain what was seen from his vantage point as driver of the Liebherr but from his statement made to the police that day we know that Harris couldn't see into the hold he was dependant on the banksman. Kasprzak was on the port side and didn't see the grab shut.

 

Why did the grab close? There was no mechanical failure and the controls worked as they should do. Mr Harris didn't deliberately operate the grab to close it. Mr Harris probably inadvertently operated the lever with his clothing as he turned to the left. A possible clue could lie in Mr Kasprzak's statement to the police. In it he said that he ran around to get Mr Harris' attention and noticed he was turned away from the controls.

 

Miss Barringer's photographs 10 – 12 show the cab controls. Within the cab there is a label showing the safe working load. Any load being lifted would be in addition to the weight of the grab. The weight of the grab was 2500 Kg. There is a television screen now in the cab; it was installed in March 2001. It wasn't there in April 1998.

 

If it had been installed then, Mr Harris would have been able to see what was going on in the hold and Simon's life could have been saved. Photographs 4 to 10 further illustrate the positions in the cab of the joysticks and the foot pedals. The joystick is deliberately placed close to the seat for ease of use by the operator who may be operating the machine for long periods. Similarly it is very sensitive in order to prevent strain injuries.

 

Harris cannot be blamed if Martell or Euromin are a significant cause of death; his role is dwarfed by that played by the two defendants.

 

The indictment Counts 1 & 2 Gross negligence manslaughter contains 4 elements: - A duty on the defendant to take reasonable care; a breach of that duty of care; t he breach was a significant cause of death; t he breach must be grossly negligent.

 

Gross negligence must be decided by a jury in fairness to the defendant, the family and other workers. Why was Martell grossly negligent?

  1. He created an obvious risk of death.
  2. He was indifferent to the risks faced by his workers.
  3. He did appreciate the risk, but decided to override them.
  4. He failed to protect his workers.
  5. He failed to set up safety systems.

The grab was intended for dealing with loose aggregate with no person near. It was obviously dangerous for a person to be near the grab. It was obvious that anyone caught in the jaws of the grab would have been crushed.

The Liebherr safety instructions – file B page 63 (these were inside the cab) state that no person should be within the attachment range. Martell was aware of this and these instructions should have been unconditionally observed in addition to government rules. The manual clearly states that no-one should be within the range of the attachment i.e. the grab yet Simon had to do this to attach the chains to the bags. The manual showed the correct attachments to be used for particular tasks so as to ensure any task was undertaken safely. Liebherr provided a hook attachment for the lifting of loads such as bags.

 

This safe hook attachment was available at Euromin. If this attachment had been used that day it would have eliminated the danger of the grab closing. There was plenty of notice that the Cambrook was coming and what its load was. So there was plenty of time to change to the correct attachment.

 

On February 11 th 1998 hooks were welded inside the grab: see Tab 4 photos 13 – 14. This shows Martell chose not to use the correct attachment several weeks before this incident. Before February 11 th 1998 Euromin were employing a different unsafe system with the chains wrapped around the grab. It was difficult to attach the chains securely but there was no risk from the open grab. Martell took no steps to consult the manufacturers of the excavator about the safety of his modifications despite regular contact with them. He made no safety assessment of the system.

 

The joystick controls were finger tip sensitive and Martell knew this. This joystick was not a switch so the grab would keep closing to the extent that the joystick was held. The excavator was stationary but the ship moves up and down with the tide, when other boats pass, with movements of the cargo, the level of bags as they are unloaded causes the ship to rise – the operation was filled with variables and uncertainties.

 

Because of the noise of the hydraulics, the auto discharge system etc., verbal communication was no good. They relied on hand signals from a banksman. There were no walkie-talkies, television screens, no measures taken by Martell to secure adequate communication. Simon would assume the grab couldn't close.

 

The banksman was critical to safety. With the proper lifting hook there are no jaws to endanger life and the banksman can see clearly from the deck. With the grab there is an obstruction to the sight line of this ‘critical' job.

 

The regular banksman for 17 years was Trevor Ford but Martell failed to give priority to the role of banksman. On April 24 th 1998 Ford was driving the shovel on the quayside. The previous evening it was realised that they were short of staff. They needed 3 extra men but could only get 1 so members of the Polish crew did the other 2 jobs. Kasprzak could not speak English. This once more highlights Mr Martell's lax system.

 

Three witnesses Mr Ford, Mr Harris and Sean Currey noticed that the signalling was not right. Sean Currey says the chains were often shortened. Tab 4 file A contains Miss C. Barringer's photos 15 – 17 of the chains. Tab 7 shows technical drawings of these.

The chains at full length were 8 feet and they were shortened to 6 feet (1.8 metres) but the jaws take up 3 feet of this. The shortening was not physically done by Martell but he took no precautions against them being shortened.

 

The expert witnesses Dr Hinks and Mr Clinch with 60 years of experience between them have never seen this type of system used.

The clam shell grab was not even required that day. The loose aggregate was unloaded by the Cambrook's self discharge system. The grab was left on for no good purpose. No other vessel was due in that day. Russell Harris could have changed the grab for the hook but he wasn't allowed to do so on his own initiative. Any delay caused by changing the hook was not serious because the Cambrook was flat bottomed. Missing the tide was not a danger. Low tide was around 4.30 pm and the Cambrook sailed at 8 pm.

Martell was arrested and interviewed on August 17th 1998.

 

He called it an “accident” and blamed it on the short chains and the grab closing otherwise he said, “The system is perfectly safe”.

He was asked, “Who is your deputy?” and he replied, “There isn't one.” Martell said he was “unaware” that the chains had been shortened. It would have taken at most 2 hours to change the grab for the hook and to change the hook back to the grab afterwards.Martell used untrained staff in the hold. He failed to prioritise the position of banksman allowing the wrong man to be used. He made no risk assessment of the system he had put in place. He gave no instructions not to shorten the chains. He failed to train Russell Harris in the safety aspects of the Liebherr 984. He failed to train his other staff. He employed no supervisor. He engaged insufficient staff for safety.

 

On the day Simon was killed the staff available to unload the ship were: Jody Taylor – a 17 year old casual worker employed to unload bags on the quayside. Sean Currey – a casual worker employed alongside Simon (another casual worker) to unload bags in the hold. Russell Harris – the only directly employed member of staff driving the excavator.Two stand in staff from the ship's crew who spoke no English.

 

Of these Sean Currey had 20 days experience working at Euromin and had worked on the Cambrook 2 or 3 times. So the workers consisted of 1 full time employee, 3 casuals and 2 stand in staff. The Health and Safety assessment carried out in 1997 did not cover dockside unloading and recommended further action by Martell regarding proper planning, training of staff, hand signals etc. warning him that he needed to comply with this.

 

Counts 3, 4 and 5 of the indictment against Euromin Ltd are: Count 3. A breach of HSWA 1974 in his failure to ensure workers are not exposed to unnecessary risks to their Health and Safety. Count 4. A failure to assess the risks to workers between January 1 st 1993 and April 24 th 1998. No risk assessment had been done for 5 years. Count 5 A failure to ensure Simon was provided with appropriate instruction and training regarding his health and safety.

 

If you turn to file B you will see an outline of the structure of the Company. Mr Martell is at the top responsible for the day to day operations of the Company. In his police interview he accepted that he was the most senior official in the Company. He was in total charge of Euromin Ltd and therefore can be regarded as the controlling and directing mind of the company. His criminal acts are those of the company. If Mr Martell is guilty of manslaughter then Euromin Ltd is guilty of corporate manslaughter. It is my job to prove the case based on the indictments beyond any reasonable doubt.