Sentencing looks to avoid future tragedies
Shelburne fishing company ordered to pay $60,000 in monetary penalties for OHSA charges related to fisherman’s death
A Shelburne fishing company has been ordered to pay $60,000 in monetary penalties for three Occupational Health and Safety Act charges laid after the Jan. 7, 2017 drowning death of lobster fisherman James (Jim) Buchanan.
Little Rye Fisheries pleaded guilty on Nov. 7, 2018 to charges of failing to ensure Buchanan, 44, used a life jacket or personal flotation device (PFD) while working on the vessel Secret Sea; that personal flotation devices on the boat did not meet safety standards; and that it did not have a written occupational health and safety policy, including safe work procedures or hazard assessments regarding the setting or hauling of traps.
Sentencing in the case took place Jan. 10 in Shelburne Provincial Court.
“Nothing we can do today will bring Jim Buchanan back. Everybody realizes that, everybody speaks of that, but hopefully something we do here today will ensure that some other fisherman comes home to their family some night,” said Judge James Burrill.
Burrill said he agreed with the Crown’s submission “that James Buchanan should have come back to his family that night.”
“Had there been compliance with the regulation by he and his employer, James Buchanan in all likelihood would still be alive. His head would have been kept above water, he would not have succumbed to hypothermia, his crew would have been able to get him back in a state where he was still conscious, got his wet clothes off, wrapped him up in blankets perhaps, steamed back to port and would have only had a day they didn’t get all their traps hauled,” the judge said. “Instead Captain (Aubrey) Harding and all his crew had to live through that tragic circumstance.”
Burrill accepted the joint sentencing recommendation from the Crown and defence that Little Rye Fisheries be ordered to pay a $20,000 fine plus a $3,000 victim fine surcharge. In addition, the company must make a $5,000 donation to the Nova Scotia Fisheries Sector Council to be used as part of their Fishing Safety Now plan to purchase PFDs as no-cost prizes at fishing safety events. The company must also make a $22,000 donation to the Nova Scotia Fisheries Sector Council to be used for the creation of a safety video or videos aimed at raising awareness on the importance of using PFDs.
In addition, Little Rye Fisheries must spend $10,000 to erect safety billboards near commercial fishing wharves in Lockeport, Shelburne, Cape Sable Island and surrounding areas promoting the use of PFDs. Each billboard will also include the statement that the billboard is erected as part of a $60,000 penalty imposed on Little Rye Fisheries by the provincial court of Nova Scotia for violations of the Occupational Heath and Safety Act in the drowning death of James Buchanan, said Burrill.
The billboards must be erected by Sept. 10, 2019.
Also, Little Rye Fisheries must make five, one-hour safety presentations to related education and industry groups at locations selected by the Department of Labour and Advanced Education with content approved by the department. At least three of the safety presentations must occur by July 10, 2019 and all must be completed by January 2020.
Buchanan died after he fell overboard while setting lobster traps during that January 2017 fishing trip. He was found by the crew floating face down in the water. The crew retrieved him using gaffs. Crewmembers attempted CPR for about 20 minutes without success. Facts presented to the court by the Crown noted Buchanan was a non-swimmer. There were five crewmembers on the vessel. The incident occurred while the vessel was lobster fishing approximately 50 miles southeast of Cape Sable Island.
The Crown’s notes to the court said at one point during the fishing trip a ‘snarl’ had appeared in the rope. Buchanan had cleared the snarl and motioned that the problem had been fixed. But shortly thereafter the captain noticed the last three stacks of traps went over by themselves, instead of having been guided, as normal, by Buchanan. It was at that point the crew realized Buchanan was missing and they began to search for him.
Buchanan had a nickname of Big Jim or the gentle giant, which were attributable to his open and outgoing demeanour and his six-footfour height. He had been married for 25 years and was a proud father and grandfather.
In his remarks during the sentencing, Burrill said perhaps the fishing industry does have to work a bit harder to educate and to ensure that no one goes to sea where the risk of drowning “so clearly is the case for every fisherman who stands on the back of a deck setting pots.”
“No captain, no company, no individual should ever permit themselves to be back in such a location without wearing a personal flotation device,” the judge said.