Prosecutors say the two crew remained "stressed and uncertain" about the prospect of long-term harm. File photo Photo: RNZ / Allison Hossain
A judge has condemned the country's largest seafood company for a "basic failure" that led to crew on an old fishing vessel being exposed to asbestos.
Seafood giant Sealord has been fined $257,250 in the Nelson District Court and ordered to pay $3000 emotional harm reparation to each of the two crew members most affected by what happened during a southern seas fishing trip in 2021.
The company was also ordered to pay legal costs of almost $30,000 on a charge that carried a maximum fine of $1.5 million.
The Nelson-based deep-sea fishing company, which has been operating for 60 years, was convicted in August on a charge of failing to properly protect workers from the risk of harm from exposure to asbestos fibres.
The two crew remained "stressed and uncertain" about the prospect of long-term harm from having been exposed to asbestos, even though the risk was considered to be low, Crown prosecutor for Maritime New Zealand Ben Finn said.
Judge Tony Zohrab said their trepidation was real and understandable, and the situation had occurred as a result of Sealord's "significant departure" from relevant industry standards.
"Harm is a matter of chance but it's still relevant."
Sealord accepted that older vessels did carry a greater risk of asbestos exposure but it genuinely believed there was no risk given its history with the 1970s-built Will Watch.
Sealord owned the Cook Islands-flagged vessel between 1986 and 1997 before it was acquired by United Frame International (Cook Islands) Ltd (UFI) - a wholly owned Sealord subsidiary.
Judge Zohrab acknowledged the company's guilty plea, which was overshadowed by its initial stance there was no case to answer because the vessel was not owned by Sealord and therefore excluded from a section within the Health and Safety at Work Act.
Finn said Sealord's "attempt to shift the blame" ignored the reality of the situation, and that as a major industry player who should know better, it failed to take reasonable steps when it had plenty of influence and control of the situation.
"There is no safe level of exposure to asbestos."
The lawyer acting for Sealord, Brian Nathan, said there were no victims because there was no evidence of harm, but Sealord did acknowledge the circumstances in which the charge arose, and that this had had an impact on the crew concerned.
The charge arose from a crew member who in 2021 raised the warning over suspected asbestos on board. He was among several Sealord staff seconded to the 50-year-old vessel operated by UFI for a fishing trip in the southern Indian Ocean.
The Will Watch was based in Mauritius and fished in the southern Indian Ocean. Sealord sometimes seconded its workers to the vessel to fill crew shortages.
The crew member noticed a form of insulation in a locker room that he didn't recognise and raised the alarm with the ship's captain after he suspected it was asbestos.
Asbestos exposure is known to have serious health impacts, which is of particular concern to the maritime sector because of its wide use in earlier ship construction, Maritime NZ said.
Asbestos on older vessels is also a known risk. Although it was phased out in New Zealand in the 1990s and banned internationally in ship construction in 2011, it was widely used as insulation in various components of engines and construction.
The alarm raised by the crew member triggered further testing, which found asbestos in areas of the Will Watch but not in the areas first thought.
Sealord admitted an amended charge in August this year, which included that it should have adequately consulted with UFI about the risk of exposure to asbestos fibres on the Will Watch before seconding its workers to the vessel.
The worker who raised the alarm was concerned enough after arriving back in Mauritius to write to Nelson MP Rachel Boyack, outlining his concerns.
Boyack referred the letter to the Minister of Transport who referred it to Maritime New Zealand in September 2021.
Boyack told NZME in August she raised the matter with the minister to seek an exemption for the constituent to bypass the Covid-related MIQ ballot in place at the time, as she was concerned for his health and sought to support him to return to New Zealand immediately.
Maritime NZ advised Sealord of its concerns and that an assessment was needed once the ship returned to Nelson.
In December 2021 the Will Watch arrived in Nelson with 38 foreign crew and five New Zealand crew.
Four out of 22 samples taken from around the ship tested positive for asbestos.
On January 13 last year, Sealord ceased work on the ship and offloaded all crew. MNZ issued a prohibition notice to the contractor servicing the vessel.
Further testing found more traces of asbestos but air monitoring samples did not exceed minimum trace levels.
A painting company contracted to remove the asbestos requested further testing around the ship's exhaust area, and three out of four samples came back positive.
In March last year, the ship received asbestos clearance certificates and returned to sea. Further testing was done in Mauritius in May 2022 and the ship was found to be compliant.
In June 2022 an asbestos clearance certificate was issued.
Judge Zohrab noted that between 2012 and 2020 Sealord had carried out checks on six of its vessels but not the Will Watch because it didn't operate the vessel.
He asked why there were no boxes that Sealord had needed to tick before the vessel left port.
"I get the impression no one was thinking about this issue until the balloon went up."
Judge Zohrab said that despite Sealord's belief the vessel did not contain asbestos, there was "never no risk.
"None of us are clear how high the risk is but it can't be dismissed."
He said Sealord might have thought it was responsible for the crew and UFI for the vessel but given that workers were a company's most important resource, it was incumbent on Sealord, and any other company putting crew on an overseas vessel, to make inquiries as to whether or not there was asbestos on a board a ship.
"There was institutional and industry knowledge about the presence of asbestos and there were quite simple steps that could have been taken to carry out a risk assessment to identify the hazards."
Judge Zohrab credited Sealord for the proactive steps it had since taken to address the gaps.
* This story originally appeared in the New Zealand Herald.