Joshua Seemu­n­gal

As an in­de­pen­dent in­ves­ti­ga­tion be­gins in­to the Feb­ru­ary 25 tragedy which re­sult­ed in the death of four LM­CS Lim­it­ed divers at Pointe-a-Pierre, some in­dus­try ex­perts be­lieve Paria Fu­el Trad­ing Com­pa­ny Lim­it­ed is re­spon­si­ble for the in­ci­dent.

“Four peo­ple died and one per­son was in­jured, so some fin­gers must be point­ed at some­body. In my opin­ion, Paria, who would have had over­all re­spon­si­bil­i­ty for the job site should have had bet­ter over­sight for this job, even though a con­trac­tor was do­ing the work,” said oc­cu­pa­tion­al safe­ty ex­pert and Di­rec­tor of the New York City De­part­ment of En­vi­ron­men­tal Pro­tec­tion Carl­stein Lutch­me­di­al.

Trinidad-born Lutch­me­di­al is pres­i­dent of OS­HE Con­sul­tants Cor­po­ra­tion and a cer­ti­fied safe­ty train­er and con­sul­tant, spe­cial­iz­ing in the oil and gas sec­tor. He is al­so qual­i­fied in emer­gency re­sponse and led New York City’s re­me­di­a­tion project for the Sep­tem­ber 11, 2001, World Trade Cen­ter dis­as­ter.

He said be­cause the div­ing in­ci­dent took place at Paria’s Pointe-a-Pierre fa­cil­i­ty, the com­pa­ny is ul­ti­mate­ly re­spon­si­ble for every­thing that took place. Paria and the con­trac­tor were re­spon­si­ble for ex­am­in­ing all po­ten­tial risks as­so­ci­at­ed with the ex­er­cise be­fore the divers went un­der­wa­ter.

“That risk as­sess­ment is based not just on the div­ing op­er­a­tions, but let’s say ves­sels in the area might af­fect the div­ing op­er­a­tion, or any equip­ment in the area. So, if there is pip­ing there that may have pres­sure in it. If there is pip­ing that could break when the op­er­a­tion was tak­ing place, those should have been eval­u­at­ed,” he said.

“My un­der­stand­ing is that some­body ei­ther opened a valve or they re­moved a cap from a pipe. I spoke to some­one who told me that from the lo­ca­tion, so in the gen­er­al scheme of things, those things should have been in place.”

The cer­ti­fied UK NE­BOSH oil and gas in­struc­tor said the valve which could have caused the Delta P (pres­sure dif­fer­en­tial) that pulled the four divers in­to the pipeline, should have been locked and tagged out. It is the in­ter­na­tion­al best prac­tice that valves that can pose threats to div­ing op­er­a­tions, based on an as­sess­ment, are ei­ther se­cured with a chain or cov­er to pre­vent them from be­ing opened.

In the ab­sence of that op­tion, a large sign say­ing ‘Do Not Re­move’ should be placed on the valve, or an at­ten­dant as­signed to guard the valve.

“In a risk as­sess­ment, some­one would have tak­en in­to ac­count every pos­si­ble sit­u­a­tion that could go wrong. The per­son who does that risk as­sess­ment has to be some­body who has a vast amount of knowl­edge and ex­pe­ri­ence, not just in div­ing, but in safe­ty in gen­er­al,” Lutch­me­di­al said.

“Did Paria have all the right peo­ple on the job site to do this as­sess­ment? Were all the per­mits pro­vid­ed, mean­ing a div­ing per­mit? Did they have a dive plan in place? Did they do a prop­er as­sess­ment? Was a ca­pa­bil­i­ty as­sess­ment done on this con­trac­tor for the dive plan? I could hire a div­ing con­trac­tor, but are they ca­pa­ble of such com­plex, high­ly haz­ardous div­ing op­er­a­tions?”

The for­mer Unit­ed States Army sol­dier, who writes safe­ty reg­u­la­tions in New York, said based on his ex­pe­ri­ence, a lot of times com­pa­nies hire con­trac­tors who are not ca­pa­ble of do­ing the job to meet the rigours of in­ter­na­tion­al best prac­tice.

He said re­gard­less of the abil­i­ty of the con­trac­tor, in root cause analy­sis, fault, in al­most all in­stances, comes back to the client.

Ac­cord­ing to Lutch­me­di­al, it is like­ly that Paria did not have a prop­er risk as­sess­ment plan or a prop­er emer­gency re­sponse plan to res­cue the four divers.

“Some­body should have tak­en a good look at an emer­gency re­sponse plan. Nor­mal­ly, they would do a dry run of the emer­gency re­sponse plan cater­ing for the worst-case sce­nario,” he said.

“There shouldn’t be a sit­u­a­tion where some­body is say­ing we don’t have a per­mit to go down (to res­cue). That per­mit should have been in place al­ready. You can­not plan to get a per­mit for an emer­gency when the emer­gency is go­ing on. It should have been part of the emer­gency re­sponse plan. All these things should have been fore­see­able.”

Lutch­me­di­al said the coun­try has an im­por­tant les­son to learn from the in­ci­dent and needs to get far more se­ri­ous about the en­force­ment of health and safe­ty laws and best prac­tices.

“The prob­lem is when you don’t have good en­force­ment of rules and reg­u­la­tions. The en­force­ment of best prac­tices must be in place. Peo­ple need to take this as a les­son learned. Don’t wait un­til some­thing has hap­pened. A lot of times in the safe­ty busi­ness, we let com­pla­cen­cy set in.”

Lo­cal Ex­pert Agrees

A lo­cal oil and gas ex­pert, who spoke on con­di­tion of anonymi­ty, agreed with Lutch­me­di­al that Paria is re­spon­si­ble for the in­ci­dent.

The ex­pert, who has worked at ex­ec­u­tive lev­els in the in­dus­try for decades, said ques­tions have to be an­swered about the pro­cure­ment of the con­tract be­tween Paria and LM­CS Lim­it­ed.

“It should not on­ly be the price they ten­dered for the job but al­so what they put down as their safe­ty qual­i­fi­ca­tions. Did the pro­cure­ment process of­fer suf­fi­cient over­sight over the con­trac­tor and the con­trac­tor’s ca­pac­i­ty for safe­ty?”

“Hav­ing award­ed this con­tract to the con­trac­tor, the re­spon­si­bil­i­ty re­sides with Paria. If a man comes to cut my lawn and in the process, he runs over a buried elec­tri­cal ca­ble and it elec­tro­cutes him and he dies, you would agree that the home­own­er has some re­spon­si­bil­i­ty.”

The lo­cal ex­pert be­lieved Paria should have con­duct­ed an in-depth risk as­sess­ment on the job, go­ing through every step of the ex­er­cise in de­tail to iden­ti­fy pos­si­ble risks.

“Were those things done? Of course, Paria would say, yes, those things were done but were they done prop­er­ly be­cause that’s what I’m pick­ing up from in­side Paria from peo­ple. Com­pla­cen­cy is a hell of a thing.”

The oil and gas pro­fes­sion­al said the ques­tion of what caused the—mas­sive pres­sure dif­fer­en­tial that pulled the divers must be an­swered.

“All we heard is that suc­tion was cre­at­ed and we don’t have much de­tail on that. It could be that some­body turned a valve. It could be that some­body start­ed a com­pres­sor, or it could be that with­in the pipeline it­self, there were pock­ets of air and liq­uid and it was cre­at­ing a pres­sure dif­fer­en­tial,” he said.

“The in­ves­ti­ga­tion should start now. The longer they take to in­ves­ti­gate, the more that in­for­ma­tion dis­ap­pears and peo­ple for­get.”

Le­gal In­ter­pre­ta­tion

Asked for his le­gal in­ter­pre­ta­tion of the tragedy, at­tor­ney Is­rael Khan SC said we all have to wait for the com­ple­tion of the in­ves­ti­ga­tion. How­ev­er, he did of­fer an opin­ion based on what is in the pub­lic do­main from the me­dia.

“I am of the view that it’s point­ing to gross neg­li­gence, bor­der­ing on crim­i­nal li­a­bil­i­ty,” Khan said.

“First of all, we have to find out what caused the divers to be sucked in, in­to the pipe, whether it is their in­com­pe­tence or neg­li­gence, or whether an ex­pert div­er would have been sucked in­to the pipe. We have to find out what was the re­ac­tion of the peo­ple re­spon­si­ble for try­ing to re­cov­er them.”

Ear­li­er this week, the Oc­cu­pa­tion­al Health and Safe­ty Au­thor­i­ty an­nounced that it is in­ves­ti­gat­ing the in­ci­dent un­der the Oc­cu­pa­tion­al Safe­ty and Health Act.

Un­der Sec­tion 83 of the OSH Act, a per­son who con­tra­venes the Act or its reg­u­la­tions or fails to com­ply with any du­ty, pro­hi­bi­tion, re­stric­tion, in­struc­tion or di­rec­tive is­sued un­der the Act, com­mits a safe­ty and health of­fence and is sub­ject to the ju­ris­dic­tion of the In­dus­tri­al Court.

Sub­sec­tion 2 of the sec­tion states that a com­pe­tent per­son, em­ploy­er, oc­cu­pi­er or own­er of premis­es on­ly com­mits an of­fence un­der the Act if it is proved that he failed to take rea­son­able steps to pre­vent the com­mis­sion of the of­fence.

Sub­sec­tion 3 says that where an of­fence is proved to have been com­mit­ted with the con­sent, con­nivance or ac­qui­es­cence of, or to have been fa­cil­i­tat­ed by ne­glect on the part of a di­rec­tor, man­ag­er, sec­re­tary or oth­er of­fi­cers of a com­pa­ny, such di­rec­tor, man­ag­er, sec­re­tary or oth­er of­fi­cers, as well as the com­pa­ny, is li­able to be pro­ceed­ed against for the com­mis­sion of the of­fence.

Un­der 83A, an ag­griev­ed per­son may ap­ply to the In­dus­tri­al Court for re­dress and the In­dus­tri­al Court may make an award in favour of the ag­griev­ed per­son and im­pose any penal­ty, oth­er than a term of im­pris­on­ment, that a sum­ma­ry Court may im­pose in re­spect of that con­tra­ven­tion or fail­ure to com­ply.

Un­der 4I of the Of­fences Against the Per­sons Act, in­vol­un­tary homi­cide in­cludes manslaugh­ter by provo­ca­tion, neg­li­gence and caus­ing death by reck­less dri­ving.