05/08/2013 04:33 EDT | Updated 07/08/2013 05:12 EDT

Queen Of The North Safety Report Appears To Contradict Testimony

VANCOUVER - Jurors deliberating whether a crew member aboard the Queen of the North ferry is responsible for its sinking are combing through complex marine regulations, hundreds of pages of exhibits and the testimony of more than 70 witnesses presented at a trial that lasted nearly four months.

But one thing they don't have are the results of an investigation by the Transportation Safety Board.

The TSB released a report two years after the sinking that largely blamed human error and appears to contradict parts of the story Karl Lilgert, the fourth officer accused of criminal negligence causing death, told his trial.

In particular, the report concluded Lilgert's affair with the quartermaster was among the reasons the ship missed a scheduled turn; it said the ferry made no substantial course changes as it approached a remote island; it said the weather was calm when the ferry collided with the island; and the report made no mention of two boats Lilgert claimed to be avoiding — all of which appears to be at odds with what Lilgert told the jury last month.

The Queen of the North missed a routine course correction, struck an island and sank in the early hours of March 22, 2006, leaving two passengers missing and setting off a number of investigations into what happened.

The police investigation eventually led to Lilgert being charged with two counts of criminal negligence causing death. The case was handed over to a jury on Tuesday.

The TSB released its report in 2008.

Such reports are rarely admitted into criminal cases because they are based on evidence that wasn't presented at trial. Both Lilgert and Briker gave statements to the Transportation Safety Board, but those statements are considered privileged and neither gave their consent for the court to access them.

The Transportation Safety Board concluded Lilgert was distracted by a number of factors when, shortly after midnight, the Queen of the North missed a turn as it entered a body of water known as Wright Sound.

The agency's report said those factors included a "personal conversation" between Lilgert and quartermaster Karen Briker, the only other person on the bridge. It was the first time Lilgert and Briker had worked alone together since a months-long sexual affair ended several weeks earlier.

The report also said Lilgert was distracted by a fast-moving squall of heavy wind and rain, as well as a nearby fishing boat he was tracking but which disappeared from the radar.

The safety board speculated Lilgert may have actually mistakenly believed he ordered the required turn, after which he wouldn't have expected to change course again for another 27 minutes.

At trial, Lilgert and Briker both insisted their affair had nothing to do with the sinking. There were no hard feelings after the breakup, they testified, and they barely spoke while on the bridge other than a brief and uneventful conversation about Briker's recent decision to purchase a home with her spouse.

A Crown prosecutor accused Lilgert of fabricating the story he told the trial and suggested Lilgert was distracted by Briker because they were either arguing or having sex — all of which Lilgert denied.

The safety board's report concluded the pair's "personal conversation" continued off and on throughout the period Lilgert and Briker were alone on the bridge.

Much of the story Lilgert told the trial of his efforts to steer the ship isn't reflected in the Transportation Safety Board report

Lilgert testified he delayed the turn to avoid a tug boat he believed was in the area, and then ordered at least two course adjustments to avoid another boat in the waters ahead and to compensate for the rough weather.

The safety board's report concluded Lilgert did not make any significant changes to the ship's direction or speed as the ferry approached Gil Island, and that neither Lilgert nor Briker followed the "basic principles of safe navigation" in the time leading up the collision.

The only other vessel the Transportation Safety Board identified was a fishing vessel named the Lone Star, which is the boat Lilgert was tracking as he entered Wright Sound. The Lone Star was identified at trial and was not among the two boats Lilgert claimed to be avoiding.

And the report concluded the weather was not a factor at the moment of impact. The squall passed quickly, the report said, and by the time of the collision there was little or no rain, calm seas and clear visibility. In contrast, Lilgert said rain, wind and even snow were interfering with the ship's radar system up until the moment he noticed the island outside.

Lilgert and Briker told the court they saw trees outside the ship's windows, prompting Lilgert to take the ship's wheel and order Briker to switch off the ferry's autopilot system. But Briker testified she didn't know how to switch the ferry to manual steering. The Transportation Safety Board report also gave the same account of the final moments before the collision.

The safety board report concluded the Queen of the North began to turn immediately before the collision, but the report also determined there was no "aggressive evasive action" to avoid the island. A Crown expert at trial suggested that slight, last-minute turn was likely due to water movement as the ferry approached land, rather than a deliberate course alteration.

The Transportation Safety Board report also identified problems with the staffing policies and navigational equipment aboard the Queen of the North, echoing some of the concerns raised by Lilgert's defence.

The agency's report concluded there should have been a third person on the bridge, especially because of the reduced visibility. The absence of that third person "made it more likely that the missed course change would go undetected," the report said. The report also complained of a "less than formal" working environment on the bridge.

At the time, BC Ferries policies allowed for two crew members to staff the bridge at certain times, but the corporation now requires a minimum of three people at all times. The trial heard the culture on board BC Ferries' ships is now more formal, with conversations on the bridge limited to discussions about navigation.

The report noted alarms on the ship's navigational equipment were turned off, which made the equipment's safety features "ineffective in providing a warning of the developing dangerous situation."

The trial heard crew aboard the ship turned off alarms because they were annoying, and the electronic chart system was rarely used because its screen was too bright to use at night and some crew members doubted its accuracy.

The agency's report also raised concerns about marijuana use on the ship, though it didn't single out any particular crew member and stressed there was no evidence to suggest marijuana use contributed to the sinking in any way.

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