The Weekly Reflektion 21/2023

Whan a Major Accident occurs there is often a public outcry and there follows a demand to find the person/people responsible. The public want punishment for these people for not doing their duty, perhaps a tendency towards an ‘eye for an eye’, ‘tooth for a tooth’ mentality that serves for justice in the minds of many. The major accident itself is normally investigated by a team of technical and psychological experts that try to understand what, how and why the accidenthappened. The experts determine direct and underlying causes and make recommendations on how the incident and any other incident can be prevented. The investigation should have a focus on learning and not retribution. It is the legal system that determines personal responsibility, and criminal and civil liability. The legal system decides on whether anyone should be charged, tries the case on its merits and decides onpunishment for the people if found guilty. Sometimes however the process to assign blame seems to be seriously disconnected from the process that tries to understand the incident itself. Sometimes the law does seem to be an ass.

Is the Law an ass?

The sentiments that the ‘law is an ass’, has probably been around ever since the first laws governing human society were implemented. The term itself is normally attributed to Charles Dickens and can be found in the 1838 novel ‘Oliver Twist’. Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “…the law supposes that your wife acts under your direction“, replies:

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is an ass – a idiot”.

An example of a Victorian woman having the trousers on in the home.

The Helge Ingstad frigate collision and sinking in Hjeltefjorden in Norway 8th November 2018 has been the subject of three Reflektions in 2022 and one in 2023. Following the collision, the public prosecutor charged the officer of the watch on duty for:

• violating Section 356 of the Penal Code “for negligently causing damage to the sea, which could easily result in loss of life”.

• under Section 78 of the Military Penal Code, “for being guilty as a commander of negligence or negligence in the performance of his duties and causing substantial harm.”

Note that the public prosecutor did not charge any other member of the Helge Ingstad crew, including the commanding officer, any member of the senior management in the Norwegian Navy or any other person involved in the incident.

The trail began in January 2023 and took two months. On 15thMay 2023 the court found the officer of the watch guilty and sentenced him to 60 days suspended sentence. The officer of the watch was devastated by the conviction. At the present time it is not known whether the conviction will be appealed.

The main points in the judgement were:

• That the duty manager did not pay sufficient attention to the radar.

• That he didn’t catch radio calls and act on them.

• That he made course changes to port without assuring himself what to swing away from.

• That there was no one else who acted in an extraordinary way who could excuse his action.

One of the expert judges dissented the judgement and recommended that the officer of the watch be acquitted on both counts. Interestingly this judge has a background as an operations officer on board a frigate, and as a leader in the Navy and NATO. He is undoubtably familiar with the challenges associated with operating a frigate and training the crew.

The investigation into the collision included a simulation of the incident using the Helge Ingstads sister ship. The investigation also covered technical, human, and organisational factors and the investigation team presented a description of the incident and its causes that seems credible. Our conclusion from the investigation is that it is understandable why the people involved did what they did even though what they did contributed to the collision. Thisincludes the actions of the officer on watch. Their awareness of the situation and cognitive factors that confirmed thisawareness were important factors in determining their actions. The officer of the watch was not negligent. He had an incorrect awareness of the situation he was in and acted accordingly. When he realised that this awareness was not correct it was too late for him to avoid the collision and subsequent sinking. The systems in place that should prevent this incorrect situation awareness failed the officer of the watch. Key factors are the training and experience he should have had from the Norwegian Navy. The workload on the bridge where navigation with limited radar and training of inexperienced people were ongoing at the time of collision. The communication failures from the Fedje traffic control centre and the tanker Sola TS. The deck lights of the Sola TS that created an impression for the Helge Ingstad crew that it was a stationary object.

The public prosecutor was pleased with the conviction and disagreed that the accident was caused by ‘system’ errors. She stated that:

The defendant has not been made a scapegoat for the defenseor the misconduct of others.”

She also pointed out that:

“The watch commander was the chief in charge of the warship. And that he put people’s lives at risk.

The Norwegian Department of Defence was fined NOK 10 million in so-called corporate penaltiesInterestingly there is a difference in opinion in what the fine was for. The Navy considered the fine was for internal systemic failures, but the court considers it was simply due to a naval person not stopping the collision. 

The Chief of the Navy stated that the verdict will have no consequences for the officer of the watch’s service in the Navy.

“Since the accident, he has served on one of our frigates and will be able to continue his service regardless of this verdict,” 

The Chief of the Navy also stated that:

“The accident was serious, and lives could have been lost. The Navy has long acknowledged the systemic flaws uncovered through the investigations and enacted a corporate penalty.

Interestingly the Chief of the Navy did not comment on the whether the conviction was justifiable or fair. The commander of the Helge Ingstad at the time of the collision was a witness in the trial of the officer of the watch and stated clearly that if anyone should be prosecuted it should be him as the commanding officer onboard. 

So, what purpose does this conviction serve? Maybe the prosecutors feel happy that they have got their man? Maybe the senior management in the Norwegian Navy feel comfortable that blame has been assigned and that they will no longer need to feel guilty about the situation they put the officer of the watch in? Maybe the public are happy that the person responsible for the loss of a NOK 4.3 billion state asset has been found and will be punished? 

Has justice been done? We believe not and strongly condemn the conviction. Our judgement is based on the evidence presented in the investigation report on the incident. The officer on the watch was a victim of systemic failures in the Norwegian Navy and the human failures that we all display because we are human. The conviction is also an unwanted signal that the legal system is out to get the people directly involved in an incident rather than hold the people responsible for the systems in place to ensure such incidents do not occurare functioning satisfactorily. This conviction makes no contribution to the learning process that ultimately should be the focus of any process in connection with a major accident. 

And what about the culture of openness that we are trying to encourage? Will people come forward and tell us what happened if they get the impression they could be tried and convicted for making a mistake. After any incident we are dependant on people telling the truth to the best of their ability. Will a potential prosecution for negligence encourage people to do this?

One of the most important principles in the legal system is that a conviction is based on beyond reasonable doubt. This is certainly not the case in the prosecution of the officer of the watch and we hope that the conviction will be appealed and overturned. Let us hope that the law is not an ass in this case.

Is it the case that no one involved in a serious incident at the operational level should be convicted of negligence? Are we at Reflekt advocating that criminal and civil prosecutions should only be brought against senior management since they are responsible for the systems in place to prevent serious incident? We are not. We also recognise the importance of personal responsibly at all levels in an organisation. The world is unfortunately the black and white world that is implied by these questions. It is not that simple, and every case has to be judged on its merits. The objective is to understand why serious incidents happen and learn from these to that they don’t happen again. Any process that prevents this understanding and the subsequent learning is undesirablewhether it be technical, legal, or political.

Reflekt AS