Marine Transportation Safety Advisory Letter 03/19

19 December 2019

Director General, Strategic Policy
Fisheries and Oceans Canada
200 Kent Street, 14th floor
Ottawa ON  K1A 0E6

On 18 September 2018 at about 0500 Atlantic Daylight Time, the 11.5 m fishing vessel Kyla Anne, with the master and 2 crew members on board, departed the dock at Judes Point for a lobster fishing trip on the western side of North Cape, PEI, in fishing zone 25 (Figure 1). There were light winds and seas at the time of departure. Crew began hauling their traps at about 0645, and by around noon the wind had picked up to 25–30 knots from the north-northeast. By 1435, the crew set course to return to Judes Point, located in fishing zone 24 (Figure 1). To return to Judes Point with lobsters onboard, they were required to transit a corridor using coordinates mandated by Department of Fisheries and Oceans (DFO) policy. Adhering to this policy and transiting the corridors using these coordinates are among the conditions attached to the master’s fishing license.

As the vessel crossed from the west side of North Cape to the east side, a large breaking wave struck the vessel broadside, shifting the cargo to the starboard side. This was immediately followed by 2 large waves that capsized the vessel to starboard at about 1445.

One of the crew members used a buoyant tub lid as a flotation device to swim and reach the shore where he alerted the authorities. Despite extensive search and rescue efforts, no other survivors were found.

The master’s body was discovered on the shore the morning of 23 September 2018, and the second crew member’s body was discovered the morning of 24 September 2018 (Transportation Safety Board of Canada (TSB) Investigation M18A0303).

In accordance with the TSB Occurrence Classification Policy, the circumstances of this occurrence were assessed and the occurrence was classified as a Class 5 occurrence. Consequently, TSB activity was limited to the collection of data, which has been recorded for safety analysis, statistical reporting, and archival purposes. The following paragraphs contain safety-related information derived from the assessment of this occurrence.

In 2016, DFO began to collaborate with the lobster harvest industry to implement a plan to transport lobster caught in lobster fishing area (LFA) 25 to harvesters’ home port in LFA 24, during periods when LFA 24 is closed for the season. Prior to 2016, lobster caught in LFA 25 had to be transferred to designated smack boats in order to proceed to harvesters’ home port and have the lobster processed at the plant in Seacow Pond. Using smack boats ensured that no vessels fishing in LFA 25 would have lobsters on board while they were returning to their home port in LFA 24. The plan included a defined corridor from North Cape to Seacow Pond, where DFO could monitor lobster vessels from shore for any illegal activity. In 2017, DFO extended the corridor south to include Judes Point and Tignish wharf. As of 2017, DFO also requires that vessels transiting the corridor be equipped with a vessel monitoring system in order to enhance enforcement.

The corridor was created with consultation between DFO and the lobster harvesters that use it, and runs south of the cardinal buoy that is located north of North Cape. The marks on the cardinal buoy indicate that the safest route is north of the buoy. At the time of the Kyla Anne’s passage, the seas were breaking south of the buoy and were somewhat calmer north of it, yet DFO’s policy and license conditions did not permit the Kyla Anne to transit the safest route.

While DFO is responsible for managing Canada’s fisheries, it is not responsible for the safety of fish harvesters or fishing vessels. The role of Transport Canada Marine Safety and Security (TCMSS) is to maintain and enhance marine safety and work to protect life, health, property and the marine environment. The Canadian Coast Guard (CCG) is responsible for search and rescue of fishing vessels and for Marine Communications and Traffic Services. In 2006, a Memorandum of Understanding^{Footnote 1} (MOU) was signed by TCMSS, DFO, and the CCG to ensure collaboration on commercial fish harvester safety at sea. The MOU states that each participating organization must establish principles to promote a safety culture and consider commercial fish harvester safety when creating or revising rules, regulations, policies, and plans that affect them.^{Footnote 2}

In its response to 2 TSB recommendations from 2003 that address safety culture within the fishing industry (including fisheries management), Transport Canada (TC) cited the MOU as a proactive element in its development of a safety culture in the commercial fishing industry. The TSB assessed TC’s actions in response to Recommendation M03-02 as Fully Satisfactory, and closed the recommendation in 2013. This assessment was partially based on the signing of the MOU between TC and DFO.

In addition, TC’s actions in response to the TSB’s second recommendation from 2003 (M3-07), was rated by the Board in 2006 as Satisfactory in Part due to the signing of the MOU between TCMSS and DFO concerning the safety of commercial fish harvesters.

In creating the corridor in LFA 24 to allow the passage of lobster harvesters with a catch from LFA 25 to return to their home port, DFO consulted with the lobster harvesters.  However, there was no consultation between DFO and TCMSS on the safety impact of restricting harvesters to transiting within it. The lack of evidence of consultation with the regulatory body responsible for navigation is noteworthy in light of the fact that the safest route is north of the cardinal buoy.

Complying with resource management measures can affect fish harvester safety. A 2008 report from the United Nations’ Food and Agriculture Organization found that “fisheries management has indirect and direct effects on fishing safety.”^{Footnote 3} Furthermore, in a study published by Memorial University of Newfoundland and Labrador, researchers found that

the actions and behaviors of fish harvesters are largely influenced by fisheries management regulations…[and] fisheries policies have traditionally been developed without regard for their potential impacts on health and safety.^{Footnote 4}

The foregoing is provided for whatever follow-up action is deemed appropriate. The TSB would appreciate being advised of any action that is taken in this regard.

As the identified safety issue associated with this occurrence has been brought to your attention and consideration, it is anticipated that an investigation report will not be issued.

Regards,

Original signed by

Clifford Harvey
Director of investigations – Marine
Transportation Safety Board of Canada