Defence raises possible negligence by diver

The magisterial inquiry and police investigations into the death of a diver, who perished while inspecting a commercial ship last year, did not investigate the element of negligence of the diver and the way in which the dive was carried out, a court heard yesterday.

Lawyers Stefano Filletti and Stefan Frendo yesterday called on Magistrate Abigail Lofaro to appoint a court expert to testify about the manner in which the underwater hull inspection had been carried out.

This way the magistrate could eventually establish whether the diver's negligence was a contributory factor to the incident - an angle which had not been investigated.

The lawyers were speaking in defence of their German clients - ship captain Peter Karl Bergmann and chief engineer Herman Dieter Raake - who are pleading not guilty to the involuntary homicide of 40-year-old Dutch diver Raymond van Beek.

Mr van Beek died in an accident involving the bow thruster while inspecting the container ship at the Malta Freeport on July 11 last year.

Following a heated legal argument between the defence and the prosecution, Magistrate Lofaro acceded to the request of appointing an expert.

She however turned down the request to appoint the expert picked by the defence only because she heard how he had spoken to the accused even though in the presence of one of the lawyers.

Although both the prosecution and the magistrate declared that they had no doubt as to the integrity of the proposed expert - Dr Ramiro Cali Corleo - it was important that he gave opinions without having communicated with the accused.

Dr Cali Corleo was then called to the witness stand as a regular witness, as opposed to a court-appointed expert.

He explained that he had been a two-star diving instructor since 1987 and was a specialist in public health medicine with specific interest in occupational diving medicine, amongst other things. He was also a diving advisor to the government of Malta and the UK.

He explained that the minimum requirements when diving to inspect a ship's hull, first of all, consisted of a team of at least three people: the diving supervisor, the diver and the stand-by diver tender.

He explained that the diving supervisor was the most important member of the team as his responsibilities included ensuring that all was safely set for the dive, safety hazards assessed before and during the dive and all precautionary measures were taken.

Dr Cali Corleo explained that there are two main types of diving and these were recreational diving and commercial diving.

The diving supervisor was to be not only fully qualified but have a lot of experience in the job and have at least a standard commercial diving qualification.

The stand-by diver tender was to have at least a basic commercial diving qualification and his role consisted in being ready to dive if needed and holding on to the diver's harness and lifeline.

Dr Cali Corleo was then asked to have a look at copies of the qualifications exhibited earlier on by Michael Galea and Anthony Farrugia who were both on the diver's launch on the day of the incident.

The witness noted that both men had sports diving qualifications which were not professional or commercial qualifications but recreational ones.

He explained that in Malta there is no legislation to regulate the qualifications required for specific dives. He added that recreational divers were generally not allowed in ports unless the port authorities allowed them to dive there.

"Unfortunately recreational divers are not trained to avoid risks found in a harbour such as low visibility and engine noise. It's difficult to know where noise is coming from underwater. There is also a high risk of entanglement in cables and nets apart from the risk of infection," he said.

Malta lacks specific legislation for diving, especially in commercial diving which is why, he explained, divers usually follow international codes and regulations, according to which it is not advisable to allow a recreational diver to dive in a port. This is, however, not illegal under Maltese law.

Superintendent Peter Paul Zammit and Inspector Johann Fenech are prosecuting.

Lawyers Joseph Schembri and Francesco Depasquale are representing the diver's family.