Setting Up an Investigation

For a state to exercise power, it must have clear jurisdiction. A flag state has the authority to investigate any casualty involving its ships. Under international law, UNCLOS 94.7, it should investigate a casualty occurring to its vessels, when judging that it can determine what changes are desirable in the present regulations. The flag state also has the authority and obligation to investigate if any casualty has produced a harmful effect on the environment.

The Code (for Investigation of Marine Casualties) recognises that where a casualty occurs within the territorial sea or internal waters of a state, that state has jurisdiction (UNCLOS art.2), to investigate the cause of any such casualty that affects the coastal state. A flag state has the authority to investigate a collision involving one of its ships, no matter where the accident occurs. The Code recognises that flag states have a duty, under IMO Conventions, to investigate casualties.

Under the provisions of UNCLOS art.94, a flag state shall cause an inquiry to be held by or before a suitably qualified person or persons into marine casualties or incidents or navigation upon the high seas. Flag states are encouraged to ensure that investigations are carried out into all casualties occurring to ships.

Investigations can be conducted against a breach of the law as a crime, to attribute liability or blame in a civil court, or to establish why an accident occurred and address safety issues. Each form of inquiry is legitimate and is a necessary part of a society’s armoury in reacting to accidents. The Code for the Investigation of Marine Casualties and Incidents focuses on the investigation of safety issues. It does not deal with the attribution of liability or blame.

The Code aims to promote a common approach to safety investigations, and the action that has been taken to determine the type of investigation would depend on the severity of a casualty. It is not the purpose of the Code to preclude other forms of investigation for civil, criminal, administrative, or any other kind of action, but marine safety investigation should be separate from and independent of any other form of investigation. There are different types of investigations:

Formal Investigation

Formal investigations are often quasi-judicial with evidence laid before a board or judge. In the case of a formal investigation, investigators will generally provide a technical brief for the administration’s legal team.

Investigators may be called expert witnesses, and they should confine evidence to matters of facts. The principles of the Code, particularly concerning representation and cooperation with substantially interested states, should be adhered to, and international agreement may be reached on a multi-state inquiry, e.g. Estonia.

Appointment of Investigators

The definition of a marine casualty investigator is a person qualified for and appointed to investigate a casualty or incident under procedures laid down in national legislation for the promotion of marine safety and protection of the environment.

When the report of casualty is received, it is essential that the ”field investigator(s)” has the necessary expertise to gather the required information, particularly when the ship itself remains in service and is not delayed. It will usually involve contact with the master and the ship’s crew, and the field investigator(s) must have the necessary technical background to ask authoritative and credible questions.

Investigating officers should at least have the same qualifications as those of the witnesses they interview. Investigating officers who are seafarers should possess a certificate as a Master or Chief Engineer. Non-seafaring investigating officers should possess a degree or diploma in naval architecture or other appropriate, relevant qualifications. Investigating officers might encounter areas outside their discipline in the course of an investigation and should request the assistance of technical advisers.

The Substantially Interested States and Parties

When a casualty occurs, multiple organisations will become involved.

Three Contacts Should Be Made as Soon as Possible:

A Substantially Interested State Is One That Is:

Other bodies will also have an interest that may or may not conflict with an investigation. These include, but are not limited to:

• Cargo interests.
• Port authorities.
• P&I clubs.
• Hull underwriters.
• Unions.
• Pilots.
• Classification societies.

Informing Interested States and Parties, Natural Justice

One of the key elements in the Code is that investigators and administrations should act reasonably (with natural justice). If a casualty is to be investigated, then all parties who may be subject to inquiry must be informed in advance of the nature of the investigation, its essential procedures, and the place and time of the interviews. There are no hard and fast rules, and much will depend on the nature of the casualty and the time available to investigate. The requirement is to act in a fair and unbiased manner. The Code recognises the need for mutual respect for national rules. It puts particular emphasis on cooperation between states to enable a full analysis to be made of a casualty.

Substantially interested states should be invited to be represented during investigations. Where a casualty or incident occurs in the internal waters of a state, the coastal state should notify with the minimum of delay, the flag state or states of the circumstances, and any action proposed by the coastal state.

Following a casualty, the investigating state should inform other substantially interested states and consult at the earliest opportunity, on the conduct of the investigation and determine areas of cooperation. Procedures for an interview should make provision for persons being interviewed to be accompanied by legal a representative.

Legal representation should be confined to ensure that the investigation is conducted according to set procedures, and legal representatives should not be permitted to answer on behalf of an individual being interviewed.

Liaison With Substantially Interested States

Investigations should be started as soon as practicable after a casualty occurs. Substantially interested states should, by mutual agreement, be allowed to join an investigation conducted by another significantly interesting state at any stage of the investigation. The lead investigating state should be responsible for developing a common strategy for investigating the casualty in liaison with substantially interested states.

The cooperation between states is essential to enable effective analysis of a casualty to be obtained, and casualty investigations should have the same priority as criminal or other investigations. It is crucial to establish circumstances relevant to a casualty, analyze the information, and establish the causal factor. It is also important to publish the causes of casualties and make appropriate safety recommendations. A standard format for reports would facilitate the publication and the sharing of lessons learned during investigations. Unbiased investigations are most effective in establishing the causes of casualties.

Investigators should have access to safety records held by flag states, owners, and class societies, and all recorded data should be effectively used, including data from voyage data recorders (VDR) if fitted. Investigators should also have access to government surveyors, pilots, VTS operators, and other marine bodies or personnel. Investigations should take into account IMO and ILO conventions and recommendations, noting the importance of human factors in casualties and incidents. At last, it must be remembered that reports are most effective when released to the shipping industry and the public.

Administrations should have specific legislation covering the power of the investigator. It is essential that the investigator(s) understand the rules under which they work and that such rules are available to any person being investigated.

The Rules for the Investigator(s) Should Cover:

At certain casualties, the ship involved may not be severely damaged and depending on the powers of the investigating state to detain a vessel, speed and prompt response to an incident are the essences of an effective investigation organisation. Interviews are best conducted as soon as possible after an incident.

Before a Field Investigation

Notify the Flag State, the Shipowner, and the Master

When a casualty occurs, and an investigation is to be conducted, three contacts should be made as soon as possible:

Procedure manuals should include criteria for investigation as well as for how the investigation is to be conducted. A procedure should be laid down for informing persons, parties, and flag states about the intention to hold an investigation, and the investigation team should be established.

A list of persons to be interviewed should be drawn up, and a search warrant obtained if needed. Interviews should be held at an appropriate venue, often the staff onboard the vessel or vessels involved use the services of an interpreter if required.

Before the interview, the investigator should explain the basis on which the interview is conducted and whether the interview might be used for other purposes. Investigators should bear in mind that they are not sitting in judgment upon actions, they are trying to determine facts.

Guidelines should indicate information that is required in accidents or where there has been a casualty, with additional information needed where there has been a fire or explosion, collision, grounding, foundering, or a case of pollution. Procedures should exist for the preparation of records of interviews and the preparation of reports on each incident.

Planning Field Investigations

When planning an investigation, the priority should generally be an inspection on site. Prompt travel arrangements are often required, and access to a ship might be difficult requiring the use of a launch or helicopter.

There should be access to key operational areas of the ship. The team must familiarise itself with all available information for that incident, using, for example, tidal data, information on ports, and prevailing weather from admiralty pilots as well as actual weather at the time from the local metrological office.

Investigators should be suitably equipped with some recording devices and notebooks for interviews as well as cameras (and video cameras) for recording information and taking images of equipment or machinery on ships. Investigators should also be equipped with sample containers for items requiring analysis. Necessary chart work equipment might be needed. Lists should be drawn up of likely persons to interview on board a ship as well as ashore since it might be necessary to interview port officials, surveyors, VTS operators, pilots, etc.

Important to Provide Health and Safety Safeguards

Any administration must provide effective occupational health and safety safeguards for investigators. These, at the most basic, should include boiler suits, hard hats, and safety boots. Safety glasses and sunglasses may also be required as well as life preservers and other equipment and clothing. Investigators should have current tetanus inoculations and other immunisations as necessary, including protection against the various strains of hepatitis.

Power of Investigators

The powers of an investigator should include, subordinate to national legislation, the following:

• Being able at any reasonable time, to enter any premises or board any ship in territorial waters, if the investigator has reason to believe it is necessary to do so to perform the functions of an investigator.
• On entering premises or boarding a ship, taking with him or her, authorized persons, equipment, or material to assist in the duties of an investigator.
• Making such examination and investigation as is deemed necessary in the performance of duty.
• Giving directions that any part of the premises or the ship should be left undisturbed as long as reasonably necessary for purposes of examination or investigation.
• Taking measurements and photographs and making recordings for purposes of analysis or investigation.
• Taking samples of articles or substances on-premises or on ships and of the atmosphere in or in the vicinity of premises or ships.
• Causing items or contents from premises or ships, that are reasonably suspected of being part of the causal chain of factors leading to the casualty, subjected to tests in such manner as not to destroy them unless it is necessary.
• Take possession of any article or substance and make sure it is not tampered with before examination or being produced as evidence if required.
• Requiring any person to attend a time and place specified by the investigator, to answer such questions as the investigator deems fit to ask, and sign a declaration of the truth of his answers.
• Requiring production of, inspecting, and copying of, entries in books or documents needed to be maintained under any relevant Act or any other books or documents the investigator considers necessary to see in the performance of duty.
• Requiring any person to provide such facilities and assistance concerning any matters or things within that person’s control, as the investigator considers necessary for the performance of his duty.

A Designated Person Should Handle Media Contacts

Ideally, the investigator should not be involved in talking to the media, and a designated person should handle media contacts. If such facilities are not available and an investigator is permitted to speak directly to the press, great care should be taken.

Reporters are skilled at getting people to say more than a person may want to say. The investigator must make no statement that prejudges any aspect of the investigation. Experts handle the media best, but when an investigator is directed to talk directly to the media, he/she should carefully prepare a factual statement and refuse to be drawn into any speculation or judgment.