Marine Recommendation M08-04

Reassessment of responses to Marine Safety Recommendation M08-04

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Design and construction of fishing vessels operating in ice

Background

On the morning of 29 March 2008, the small fishing vessel L'Acadien II, with six crew members on board, capsized 18 nautical miles off Cape Breton Island, Nova Scotia, while being towed in ice by the light icebreaker CCGS Sir William Alexander. Two crew members were quickly rescued by another small fishing vessel. Several hours later, three deceased crew members were recovered from the overturned vessel by Department of National Defence search-and-rescue technicians. One crew member is still missing and presumed dead.

The Board issued the safety recommendation on 26 November 2008.

Board Recommendation M08-04 (26 November 2008)

In 2005, there were approximately 1800 vessels participating in the hunt, all of them under 19.81 m. Based on licensing information from 2007, a similar number of vessels are estimated to have participated during the 2008 season. Typically, these vessels are neither designed nor constructed for operating in ice. Intended for open-water fishing and outfitted temporarily for participation in the hunt, their hulls, shafts, propellers, and rudders are seldom strengthened for navigation in ice-infested waters. In addition, without sufficient power and mass to navigate in ice, these vessels are susceptible to being beset and damaged.

The Board is encouraged that Transport Canada is undertaking public consultations as it drafts the new Fishing Vessel Safety Regulations and the Construction Standards for Commercial Fishing Vessels. New fishing vessels over 9 metres in length that operate in ice will be required to be suitably designed and constructed. However, the Board is concerned that this will not include all existing vessels; in 2005, for example, 58 per cent of vessels involved in the seal hunt were less than 10.7 m.

Given that these existing vessels are likely to make up the majority of the sealing industry, the current risk level will persist. The Board therefore recommends that:

The Department of Transport include in the proposed Fishing Vessel Safety Regulations adequate measures to ensure that all fishing vessels operating in ice - including those participating in the seal hunt - are structurally suited for their operating environment.
TSB Recommendation M08-04

Response to M08-04 (24 February 2009)

In its 24 February 2009 letter, the Minister of Transport, Infrastructure and Communities agreed with the general intent of the recommendation.

The response noted that the responsibility for safe construction and operation of a vessel is incumbent upon the designer and/or builder and ultimately on the owner and/or master of the vessel. Operating in ice-covered waters requires prudence, and going astern in heavy ice is a specialized operation.

The response indicated that Transport Canada is developing new Fishing Vessel Safety Regulations that will include revised provisions for fishing vessels that may navigate in ice-covered waters. The provisions related to vessel structure will apply to new and modified vessels. They will also apply, based on risk, and where reasonable and practicable, to existing vessels. These provisions, which are expected to be published in the Canada Gazette, Part I, by spring 2010, will apply to vessels that are over 9 m in length.

In a follow-up meeting, TC advised that new Fishing Vessel Safety Regulations that will now include provisions that apply to vessels less than 9 m that may navigate in ice-covered waters. A public consultation information paper on the draft Fishing Vessel Safety Regulations, which apply to fishing vessels less than 24 m, and a consultation document on the Construction Standards for Small Vessels, TP 1332, were made available at the national meeting of the Canadian Marine Advisory Council held in April 2009. The information paper stated that a fishing vessel shall not embark on any voyage into ice-covered waters unless the hull of the vessel has been designed or adequately strengthened to resist damage from anticipated conditions. Existing vessels shall meet the design and construction requirements set out in TP 1332, as is reasonable and practical to do so. The consultation document on TP 1332 stated that the hull of vessels shall be strengthened if the vessel is intended for operation in waters where the presence of ice requires the vessel to make extraordinary manoeuvres in order to avoid hull damage.

Board assessment of response to M08-04 (01 June 2009)

The new proposed Fishing Vessel Safety Regulations will include provisions relating to the structure of fishing vessels less than 24 m in length that navigate in ice-covered waters. However, existing fishing vessels, many of which are less than 15 gross tonnage and would have not been previously inspected, are only required to comply where it is reasonable and practical to do so. TC has indicated that the 'reasonable and practical' provisions may be applied following a risk-based assessment on a case-by-case basis. However, if the owner of the vessel can demonstrate that the costs of the modifications are such that it is unreasonable and impracticable to modify the vessel, the Minister may take measures such as placing operating restrictions on the vessel. While new vessels will benefit from the provisions of the proposed regulations, the risk associated with existing vessels may be substantially reduced if hazards are properly identified, risks are adequately assessed and corrective actions, such as modification and hull strengthening, are made to these vessels.

Therefore the response to the recommendation is Satisfactory Intent.

Response to M08-04 (March 2010)

TC’s update, dated March 2010, indicated that TC is developing new Fishing Vessel Safety Regulations that include revised provisions for fishing vessels that may navigate in ice-covered waters. The provisions related to vessel structure will apply to new and/or modified vessels as reasonable and practicable based on risk. These provisions apply to vessels that are over 9 m in length.

The proposed new Fishing Vessel Safety Regulations are anticipated to be pre-published in the Canada Gazette, Part I, in the fourth quarter of 2011.

Board reassessment of response to M08-04 (March 2010)

If the action proposed by TC is implemented fully and 'reasonable and practical' provisions are applied following a risk-based assessment on a case-by-case basis, the risk associated with existing vessels may be substantially reduced.

Therefore, the assessment of the response remains as Satisfactory Intent.

Response to M08-04 (December 2010)

TC's update, dated December 2010 indicated that they are developing new Fishing Vessel Safety Regulations that include revised provisions for fishing vessels that may navigate in ice-covered waters. The provisions related to vessel structure will apply to new and/or modified vessels and to existing vessels as reasonable and practicable based on risk. These provisions apply to vessels that are over 9 m in length. The proposed new Fishing Vessel Safety Regulations are anticipated to be pre-published in Canada Gazette, Part I, in the second quarter of 2012.

Board reassessment of response to M08-04 (March 2011)

Where it is not practical to make modifications, existing vessels may be grandfathered from these requirements. Furthermore, a total of 6195 registered fishing vessels less than 9 m in length are exempt. However, if the action proposed by TC is implemented fully and 'reasonable and practical' provisions are applied following a risk-based assessment on a case-by-case basis, the risk associated with existing vessels may be substantially reduced.

Therefore, the assessment of the response remains as Satisfactory Intent.

Response to M08-04 (December 2011)

TC's proposed Fishing Vessel Safety Regulations include revised provisions for fishing vessels that may navigate in ice-covered waters. The provisions are related to vessel structure and will apply to new and/or modified vessels and to existing vessels as reasonable and practicable based on risk. These provisions apply only to vessels that are over 9 metres in length.

These regulations will also cover certain requirements for operating environments.

The proposed new Fishing Vessel Safety Regulations are anticipated to be published in the Canada Gazette, Part II, in the 2nd Quarter of 2013.

The TC response was part of a government action plan introduced following the L'Acadienne II accident which included safe operational measures to be taken by vessel owners and by DFO-CCG policy which was introduced last year.

Board reassessment of response to M08-04 (March 2012)

Where it is not practical to make modifications, existing vessels can be grandfathered from these requirements. Additionally, more than 6000 registered fishing vessels will be exempt from the proposed Fishing Vessel Safety Regulations as they are less than 9 m.

However, vessels less than 9 m are required to comply with the Small Vessel Regulations and the Construction Standards for Small Vessels, TP 1332 that state that “the hull of a vessel (other than a pleasure craft) operating in ice covered waters, where the presence of ice requires that the vessel make extraordinary manoeuvres to avoid hull damage, shall be strengthened.” This requires operator analysis that can only be conducted retroactively, once the vessel has already operated in ice. The proposed Fishing Vessel Regulations will incorporate TP 1332 by reference.

Therefore, the risks associated with fishing vessel operation in ice covered waters will be reduced but will not be substantially reduced through the implementation of the proposed Fishing Vessel Regulations. TC's proposed actions will allow for some fishing vessels with un-strengthened hulls to continue operating in ice, particularly those fishing vessels that are active during the seal hunt. The assessment of the response is considered Satisfactory in Part.

Response to M08-04 (December 2012)

In consideration of the clarifications and information provided below, Transport Canada believes that the status should be restored to Satisfactory Intent pending completion of the new regulations.

Transport Canada is developing proposed new Fishing Vessel Safety Regulations that include revised provisions for fishing vessels that may navigate in ice-covered waters. The provisions related to vessel structure will apply to new and/or modified vessels and to existing vessels. These provisions apply to all fishing vessels.

Fishing vessels less than 9 m are not exempt, they are required to comply with the Small Vessel Regulations that require vessels (other than a pleasure craft) to be strengthened if the vessel is intended for operation in waters where the presence of ice requires the vessel to make extraordinary manoeuvres in order to avoid hull damage. In both regulations, existing vessels are not grandfathered. Critical safety elements such as structural strength must meet or demonstrate an equivalent level of safety.

The proposed new Fishing Vessel Safety Regulations are anticipated to be pre-published in the Canada Gazette, Part I, in the 1st quarter of 2014.

The vessel design and construction structural strength requirement is contingent upon the intended use, taking into account the maximum anticipated loads. Operation of a vessel in conditions where loads are higher than anticipated or exceed maximums due to misuse or unexpected external factors such as exceptional environmental conditions, inadequate operational support or other factors is the responsibility of the authorized representative and the master of the vessel.

The Canada Shipping Act, 2001, section 106,makes the authorized representative of the vessel responsible for developing procedures for the safe operation of the vessel and in section 109 the master of the vessel responsible for taking all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.

The issue at the origin of this recommendation should not only be addressed by structural requirements but also through proper vessel operation in ice-covered waters. The TC response was part of a government action plan introduced following the accident that included safe operational measures to be taken by owners and DFO-CCG policy regarding the provision of icebreaking support. Vessel towing policy and management of the seal fishery therefore should be assessed in unison with the recommendations and measures taken by DFO-CCG. The 2011-2015 Integrated Fisheries Management Plan for Atlantic Seals indicates a downward trend and drastic reduction in sealing activity since the time of the report and the previous referenced report.

In 2010, approximately 390 people participated in the Atlantic Canada Seal harvest. This number is down significantly from 2009 which reported 1,755 active participants. Similarly, the number of active vessels in 2010 dropped to 106, from 540 active vessels the previous year.

Board reassessment of response to M08-04 (March 2013)

TSB recognizes that the risk associated with operating small fishing vessels in ice is reduced as the number of operational vessels is reduced. The TSB also recognizes the following actions meant to respond to the recommendation:

  • TC is developing proposed new Fishing Vessel Safety Regulations that include revised provisions for fishing vessels that may navigate in ice-covered waters.
  • Vessels not covered by Fishing Vessel Safety Regulations are governed by the Small Vessel Regulations.
  • Both new and existing vessels must abide by the construction provisions governing fishing vessels that may navigate in ice-covered waters.
  • No fishing vessels are or will be grandfathered in either regulation.
  • Authorized representatives (owners and operators) are delegated responsibility for recognizing the risks of navigating in ice-covered waters and for operating with due diligence.

Therefore, the assessment of the response has been restored to Satisfactory Intent.

Transport Canada’s response to M08-04 (November 2013)

In November 2013, Transport Canada indicated that it is “developing proposed new Fishing Vessel Safety Regulations. Phase 1 of the proposed Regulations include revised provisions for fishing vessels that may navigate in ice-covered waters. The provisions related to vessel structure will apply to new and/or modified vessels and to existing vessels. These provisions apply to all fishing vessels.

Fishing vessels less than 9 m are not exempt; they are required to comply with the Small Vessel Regulations that require vessels (other than a pleasure craft) to be strengthened if the vessel is intended for operation in waters where the presence of ice requires the vessel to make extraordinary manoeuvres to avoid hull damage. In both regulations, existing vessels are not grandfathered. Critical safety elements such as structural strength must meet or demonstrate an equivalent level of safety.

Phase 1 of the proposed new Fishing Vessel Safety Regulations are anticipated to be pre-published in Part I of the Canada Gazette in the second quarter of 2014. Completion of Phase 1 should achieve the closeout of this recommendation.

The vessel design and construction structural strength requirement is contingent on the intended use, taking into account the maximum anticipated loads. Operation of a vessel in conditions where loads are higher than anticipated or exceed maximums due to misuse or unexpected external factors such as exceptional environmental conditions, inadequate operational support or other factors, is the responsibility of the authorized representative and the master of the vessel.

The Canada Shipping Act (2001, Section 106) makes the authorized representative of the vessel responsible for developing procedures for the safe operation of the vessel. In Section 109, the Act makes the Master of the vessel responsible for taking all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.

The issue at the origin of this recommendation should not only be addressed by structural requirements but also through proper vessel operation in ice-covered waters. The TC response was part of a government action plan introduced following the accident that included safe operational measures to be taken by owners. DFO-CCG policy regarding the provision of icebreaking support, vessel towing policy, and management of the seal fishery, therefore, should be assessed in unison with the recommendations and measures taken by DFO-CCG. The 2011–2015 Integrated Fisheries Management Plan for Atlantic Seals indicates a downward trend and drastic reduction in sealing activity since the time of the report and the previously referenced report, which stated:

In 2010, approximately 390 people participated in the Atlantic Canada Seal harvest. This number is down significantly from 2009 which reported 1,755 active participants. Similarly, the number of active vessels in 2010 dropped to 106, from 540 active vessels the previous year.”

Board reassessment of response to M08-04 (March 2014)

It has been over five years since the TSB issued this recommendation.TC’s response provided no new substantive information or rationale for the protracted delay in promulgating these new regulations. Given that the proposed new Fishing Vessel Safety Regulations are now anticipated to be pre-published in Part I of the Canada Gazette in the second quarter of 2014, the assessment of the response remains as Satisfactory Intent.

Next TSB action

The TSB will monitor the progress of the proposed action as indicated by TC. Any further delay in completing the proposed action may warrant a change in the assessment rating of the response. The deficiency file is assigned Active status.