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Investigations
The Objective of an Investigation
Investigators usually have the advantage over the investigated and are blessed with perfect hindsight. It is essential to use this hindsight with professionalism, realism, and constructivism. Investigators are not judges and should avoid being judgemental and should ensure that they understand the situation in which the individuals were placed. It is worth bearing in mind two quotes from Professor James Reason’s book Human Error:
For those of us who pick over the bones of other people’s disasters, it often seems incredible that these warnings and human failures, seemingly so obvious in retrospect, should have gone unnoticed at the time. Being blessed with both distance and hindsight, it is a great temptation for retrospective observers to slip into a censorious frame of mind and to wonder at how these people could have been so blind, stupid, arrogant, or reckless.
First, most people involved in serious accidents are neither stupid nor reckless, though they may well have been blind to the consequences of their actions. Secondly, we must be aware of falling prey to the fundamental attribution error, i.e., blaming people and ignoring situational errors.
The Concept of Culpability
Where the objective is to punish and bring a perpetrator to justice, a criminal investigation is appropriate where, for example, a casualty is suspected of being caused deliberately or by wilful negligence. In such cases, a person must have committed an offence. However, the definition of an accident means that deliberate intent is absent.
The problem with a criminal action is that the prosecution has the sole purpose of proving a case against the party or parties accused or the crown and will focus on the narrow issues of blameworthy action. Unfortunately, the causes of accidents are more complex and numerous than one or two acts of commission or omission.
In dealing with accidents in an international context, IMO recognizes that an international approach is required to determine the circumstances and causes of a casualty so that the causes can be addressed – internationally – and measures introduced to prevent further casualties. Casualty investigations under the IMO code are essential to determine the safety issues and identify the unsafe conditions that contributed to the accident. Blame and liability are not relevant to IMO.
Culpability generally implies that an act performed is wrong but does not involve any evil intent by the wrongdoer. The connotation of the term is fault rather than malice or a guilty purpose.
Degrees of Culpability
The Substitution Test involves asking the individual’s peers the following question:
Given the circumstances that prevailed at the time, could you be sure that you would not have committed the same or a similar type of unsafe act?
If the answer is ”no,” then the blame is almost certainly inappropriate. The best people can make the worst mistakes.
Courts, Tribunals and Inquiries
There is a spectrum or continuum of courts, tribunals, or inquiries. Authorities may view a marine casualty as a breach of law (a crime) at one end of the spectrum or as a technical no-blame investigation at the other. There is no reason not to investigate the two extremes at the same time but by different investigators under different rules and procedures.
If the primary objective is to punish and bring the perpetrator to ”justice,” then a criminal investigation, under the rules of the State in which the investigation is being conducted, may be appropriate. In such a case, the person or persons must have committed an offence, which is an act of neglect or default contrary to the law.
The public interest in punishing a person who may have contributed to an accident (or casualty) has to be weighed against the public interest in understanding why an accident occurred and in helping to prevent a similar accident from happening again. There is no reason why two such investigations should not be carried out in parallel, but they should be separate.
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Under some legal systems, a Coroner has the responsibility of establishing the cause of death. When investigating a fatality, or where a fatality is involved, an investigator may become involved with the coronial system.
The various responsibilities in the case of a marine casualty involving death are a matter of national law. In some countries with a colonial system, under certain conditions (e.g., in Australia), there may be dual jurisdiction. It is advisable to make early contact with the Coroner’s office to work out the various interests and to offer expert assistance.
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Civil courts hear and pass judgment on claims for damages or other losses. The casualty investigation is a source of useful information. It is subject to municipal (national law) as to what is or is not admissible as evidence.
It is not uncommon for a party to try and channel everything through the legal adviser, and for the legal adviser to dispute the investigator’s right to certain information and control any information provided. Usually, the primary concern of the legal adviser is that such information can be put into civil proceedings.
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Formal investigations are generally conducted before a judge or tribunal independent of the marine administration. The maritime authority is just another party presenting evidence to the inquiry. Marine casualty investigators have a vital role to play in the formal investigation process.
The investigator may be required to prepare a report setting out the administration’s position and conclusions. It will involve producing evidence in a form acceptable to the inquiry. When the evidence is complete, the investigator may be required to draft a final submission on behalf of the administration. Such a submission should be backed with references to the evidence before the inquiry. During the inquiry, the investigator may be required to produce a brief of questions that must be put to the witness.
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