Menu - English

Pioneer Divers in the Norwegian Sector of the North Sea


LETTER TO CARL I. HAGEN FROM MARIUS REIKERÅS, NSDA LAWYER

The following is a letter to Carl I. Hagen from Marius Reikerås, the NSDA's legal council. It outlines the current situation as well as offering solutions to the current impasse with both the Norwegian Government and the Norwegian legal system.

Please understand the original letter is in Norwegian and this is a translated version. Therefore any errors are mine alone.

This letter is in reference to our earlier correspondence in the North Sea Divers case. As agreed, we will try to more closely specify here what is required to find a political solution.
We have divided this letter into seven parts.
 
1. The North Sea divers case; the status as of today.
We stress that the politicians at this point in time have received new documentation which they did not have the first time the case was handled politically. That knowledge which now is at hand, is of such substance that the State should have sufficient facts to settle an agreement, one that would render close to full compensation for the loss of career that the divers have suffered.
In our opinion a compensation arrangement should be ratified that aims at full economic restitution, in combination with full health related support as well as individual and collective recognition for the pioneer divers.
The compensation arrangement should be administered by the current commission, however it is desired from our side that Stein Husby be replaced as leader of the commission. He has not assured in recruitment that the commission holds the necessary specific knowledge about operational diving in the petroleum sector and he has put himself in a situation where he no longer is trusted by the divers.
It is beyond doubt that during the last 17 year that NSDA has fought for the divers, that the truth and detailed knowledge of the divers’ case has grown considerably. Based on the Lossius-report, the assessment by the Justice Department, The Haukeland Medical Survey, court decisions in Oslo Tingrett and Borgarting Lagmannsrett, there is no longer judicial doubt that the divers are injured. There is furthermore no judicial doubt that the injuries are directly caused by petroleum related diving and lastly, there is neither judicial doubt that it is preposterous that the divers themselves carry the loss after these injuries.
The real judicial discussion today, is whether the State is the correct subject of liability for this loss. The State points to the other actors in the oil industry who have also benefited greatly thanks to the divers work – and health loss. Below follows a list of the actors who, according to current judicial status, at least should be objectively liable to the divers’ injuries and thus carry the economical loss that the divers have had.
·        The State as shareholder/contractor, administrator, controller and taxation authority and as the “Holder Of Public Power”. The Human Rights Court does not distinguish between the State as an employer and the State as a “Holder Of Public Power”.
·        The licensed contactors (the oil companies and the State) who, according to the Petroleumsloven (Law of oil production) stand jointly liable as employers alongside the diving companies.
·        The diving companies which are the divers’ direct employers
a)   There exists no dissent that in normal cases the nearest employer must carry the loss of such health injury. But this industry is organized thusly (by the State and the license holding contractors) that the divers have had to change employer, according to which diving company at any time got the contracts in the oil field. Delayed health injuries can rarely be attributed to a singular accident and thus cannot be related to one particular point in time, place or diving company. Furthermore, many of the diving companies are closed down, sold or have transferred their assets abroad etc, and can consequently not be addressed for compensation.
b)   It is clear that the authorities have been aware that situations as described in “Item 1” could arise, since the have established regulations in the Petroleumsloven that the licensed contractor holds a solitary responsibility with its sub contractors where these can not be applied to for compensation. The problem for the divers is that they have not worked their whole career on a specific field or license or with one specific employer. The diving companies have had diving missions for several contractors and consequently the divers have been moved about and worked for a whole lot of contractors (license holders). As has been stated above; delayed health issues cannot be traced to one specific mishap or accident, and thus cannot be attributed to one specific period of time, specific place or to specific contractor company.
c)   The party that has had the greatest profit from the pioneer divers efforts – and injuries – is the State of Norway. The state’s profit is so enormous, that a decent compensation for the injured divers counts for mere hours of oil production for the State.
d)   There is almost consensus between all parties, also judicially, except in the liable Department and its directorates and supervisors, that it is “preposterous that the divers themselves carry the loss”. AID as the responsible Department has tried many tricks to stop the truth from being revealed. One of the most indecent being the playing for time and “starve” their opponents of lesser resources.
This party advocates that the judicial section of the Department, and the judges who acquitted the State and accordingly keep pointing at the employers as liable, does not realise how the oil industry is organized and, specifically, how the diving business is organized. In reality they point the way out into the desert for the divers with damaged health, who have to struggle their way through each day like torture, and for those who have a diagnosis predicting severely limited number of days to live, this means more desert wandering and squandering of precious time.
Aside from this discussion, one must be aware that the NSDA has appealed this case to the Human Rights Court as a human rights case. In Strasbourg there is no doubt as to which party is the subject liable according to EMD. It is the Norwegian State and no other, that stand liable. Norway as a nation has ratified this convention and the State is liable as the “Holder Of Public Power”. Once more it is opportune to repeat that the EMD does not distinguish between the State’ responsibility as an employer and the State’s responsibility as the “Holder Of Public Power”.
 
2.The divers’ demands
a)   The divers requests that the State accepts the objective liability for the divers’ loss, according to the Lossius Commission’s conclusions, and expressly gives a compensation for the singular diver’s economical loss. This must be reflected in the current principles of liability law, and counting from the point in time where the diver were judged disabled and lost his job in petroleum related diving business and extending to the age of pensioning of 67 years.
b)   The divers request that a new investigative commission continue the effort to reveal ALL parameters in relation to the divers’ work habitat in the petroleum sector, as the Parliament has approved and promised the divers. Investigation of real facts of the case, that the Lossius Commission did not carry through, must be carried out, hereunder a new scrutiny of newly documented facts, the experimental activities at NUI/NUTEC, the activities of the licensing institutions (DNV, Lloyds, etc.), other relevant research and insurance institutions, as well as the concrete facts related to selected mishaps, accidents, near-accidents etc.
c)   Follow-up of individual health issues and recognition of the divers. In addition, medical follow-up must be established as well as support for the divers to cope with their day-to-day life. The National Center for Hyperbaric Medicine has to this day not been granted one extra penny and Helse Vest has been requested to reprioritize within existing budgets. Haukeland Hospital MUST receive funding enough to do their work properly – including the advisor role they are intended to have toward all primary health services in the divers’ home communities.
d)   The ongoing court process(es) shall decide whether violation of Human Right is committed.
 
3. Formation of an arrangement of compensation for the North Sea Divers
The pioneer divers will be best served by a standardized monetary compensation based on the economic losses the singular diver has suffered. To assess the loss of individual divers, the use of Compensation, a recognized judicial instrument, is recommended.
One must aim toward a working compensation arrangement in few months after the means have been granted, including the expenses some of the divers have had on behalf of all divers. This way one assures the quickest possible follow-up of the divers’ life situation.
Criteria for compensation can be related to the degree of handicap/disability and medical invalidity used by normal disability pension and documentation of diving work in the relevant period. The existing commission should also assess whether the arrangement shall encompass divers who do not have “ a degree of disability” in their disability pension according to the Folketrygden, but to whom it is especially relevant to give compensation. Surviving relatives of divers should be given compensation in cases where the divers death is judged to be caused by diving injury.
Most of the divers who have been examined at the Haukeland Hospital following application from their local physician or Trygdekontor (Health Office) and the results of these projects, will be of great help for the commission in the treatment of applications. If there are some of the relevant divers who have not gone through medical examination, these may be sent to examination at Haukeland during the commission’s work with their application.
The issue of equal treatment compared to other groups, will influence the magnitude of the compensation. This is particularly relevant for foreign divers and their relatives who, till now, have not received any compensation. With foreign divers it is recommended that equality of treatment - and the principle of justice ensures that foreign divers and surviving relatives of divers injured or killed in the Norwegian sector, receive compensation along the same principles pertaining to Norwegian divers.
 
4. Recognition of the divers’ contribution in the oil industry
Viewed in the light of the importance of the divers’ work on the continental shelf for the realization of the lucrative oil industry, and the personal risk for the individual diver, we advise that it should be made possible that some singular divers could be honoured for extraordinary efforts, and that it in addition could be establisher a fund with the task of documenting the knowledge about the pioneer divers’ efforts for the future. A possible fund must be administered in the best way with respect to the North Sea divers.
In order to contribute survival of the body of knowledge about the pioneering divers and their work, the fund might offer means to museums to have exhibitions pertaining to pioneer diving, like for instance the Oil Museum in Stavanger or other project or institutions who show their history.
This would be a proper way for society to express their respect for the groundbreaking work the divers performed.
 
5. Support to the divers in their daily life situation.
The foundation ”Dykkerkontakten”, with its emergency telephone service, can help former North Sea divers in a pinch with their debts to come into contact with the established support service for economic counselling and advice. The foundation further can help the divers present their case to social support authorities, taxation authorities and insurance companies in connection with support rights after occupational injury or health damage etc. It cannot be doubted that this already established foundation is very valuable. But as yet, all the medical and health aspects have not been put on the table and the divers must still be helped ad hoc wise, both medically and financially. It must be understood that the divers still struggle substantially in their everyday life, that the foundation at times is overburdened and understaffed, and that it is thus absolutely necessary to find a way to ease the divers’ total life situation . Several divers experience their life as plain torture.
 
6. New investigation.
In order to smoothly administer an individual compensation arrangement, we advocate that a new fast-working investigative body is established, in order to asses the new facts about the working conditions in petroleum related diving, as Parliament has promised. The investigation that the Lossius Commission failed to do, must be done. Hereunder the experimental activities at NUI/NUTEC, the activities of the licensing institutions (DNV/Lloyd’s etc), other relevant research and control bodies as well as the conditions related to selected mishaps, accidents, near-accidents etc. In addition it must be investigated how the Administration ha treated the divers after their cases was taken over by the court system. The last is important for no less reason than the public faith in the court system and the basic judicial rights principles.
A fast-working committee will, with the new knowledge, be able to advice on the solutions for the foreign divers and status for the diving on the Norwegian shelf.
 
7. Questions for the Minister of Justice.
Based on the above, the following question on who carries the liability for diver injuries can be posed directly to the Minister of Justice:
St.Meld 47 about the working conditions of the pioneer divers, injuries and compensation, is to a great extent based on the report from the Lossius Commission (NOU 2003.5) and the assessments of the Departments judicial section (dated 27.03.2003), where the conclusions of the commission is modified from an objective responsibility of the Government to a governmental moral/political responsibility. The assessment has greatly influenced the measuring out of compensation and indemnity. Later on, several court decisions have been based upon the facts from the investigative commission, the assessment and the conclusions fro the Department’s judicial section.
Today there is prevailing judicial agreement that it is preposterous to let the divers themselves carry the cost of the injuries they have suffered. There has arisen judicial consensus that the diving companies which were the divers’ employers, and who were nearest to compensate for the loss, for different reasons cannot be applied to for compensation. The Department’s judicial section pointed out that the contractors that were addressable for compensation and according to the Petroleumsloven have a solitary responsibility with their sub-contractors, included the diving companies.
Quotes from the judicial section dated 27.03.2003:
“Not at least from the responsibility that the Licensed Contractors have, which are big oil companies, assures that eventual liability demands meet a solid economy. When the injured part this way has at least one solid subject of liability (most often several) to address their demands to, and which is the owner and has the administrative responsibility for the activity, this counts against the argument that the State’s original ownership status to the oil resources and income thereof should lead to a shared liability for the State.” (The Entitled contractor becomes the owner of the oil that is extracted, ref Petroleumsloven §3.3 third paragraph second item).
This consideration leads the State to believe that the liability should rest on the licensed contractors (rettighetshaverne, the oil companies) and that the State itself “is not near enough” to carry responsibility for the health damage. When it comes to delayed health damage, it is almost impossible to make a decision about the time and place when the injuries arose. This business sector is organized in such a way that the divers through their career have worked for many different diving companies, and the diving companies have been contracted to several different oil companies (rettighetshavere).
a)            On what basis does the judicial section conclude that “the injured this way has at least one solid subject of liability to address their demands to? (There will most often be more than one contractor (rettighetshaver).
b)            How might the judicial section have ensured itself of having the necessary knowledge of facts about how the diving business is organized and functions, so as to reassess the conclusions of the Lossius Commission concerning the subject of liability?
c)             How does the Minister of Justice view the fact that the EMD, the Human Rights Court, does not distinguish between the State as employer and the State as “holder of public power”?
With kind regards
Marius Reikerås
 

If any one out there is serious and can help to find the families, or who just wants more information please contact me directly:

Tom Wingen
Brunla Gård. N-3294 Stavern, Norway
Tel: (+47) 959 444 85 | E-mail: mail@pioneerdivers.org