Importance of preparation
Without a doubt, stakeholders in the shipping industry should always strive to have zero days lost due to accidents. But, in the same way, the industry must also always be ready to react immediately and to investigate unfortunate events when they do occur. In this regard, it is essential to understand the investigative process that is triggered after a major marine accident has occurred.
Our experience in the investigation and legal representation of clients following a marine accident has shown that, despite decades of implementing international safety protocols, advancements in ship design and industry-wide attention and dedication to improving safety, marine casualties will continue to occur; maybe not as often, but they will happen. Simply put, following all of the security protocols in place may not be enough to avoid a victim. Indeed, ships of all sizes, large and small, that transit the world’s oceans are subject to influences beyond their control that create the inherent risk of an accident occurring.
Power to investigate marine accidents
When a marine accident triggers an investigation, the US Coast Guard as well as the National Transportation Safety Board (“NTSB”) may be involved. The Coast Guard has broad powers to immediately investigate a “marine accident” to determine the cause, whether there has been a violation of the law, whether the offender should be liable to a civil or criminal sanction and if there is a need for revision or new laws or regulations to prevent a similar accident from happening again. 46 USC § 6301. The jurisdictional scope of the Coast Guard with respect to the investigation of marine accidents involving foreign-flagged vessels is generally limited to the navigable waters of the United States, which include waters from the coastline up to 12 nautical miles.
The NTSB is an independent federal agency responsible for investigating all civil aviation accidents in the United States and major accidents in other modes of transportation, including “major marine accidents” that occur in state navigable waters. – United or involving a United States vessel under regulations jointly prescribed by the NTSB and the Coast Guard. 49 USC § 1131 (a) (1) (E).
Marine accident investigation
When a ship-related accident occurs in United States navigable waters, the operator, owner or person in charge of a vessel involved in such an accident is required to give notice as soon as possible, often followed. a written report to the local Coast Guard area or office. This begins a process in which livelihoods, liberty and civil liability could all be at stake. The lawyer representing the owner must quickly assemble the basic information to perform a conflict check; confirm clearance to board the vessel; and determine the type of intervention survey that is most likely to be required. Careful thought is required when the Coast Guard investigating officer calls to request an interview.
The requirements for notifying the Coast Guard of the occurrence of an incident are set out in Subpart 4 of Title 46 of the Code of Federal Regulations. It is preferable to report the incident if in doubt about the regulatory definitions. For example, federal regulations require reporting an accident resulting in property damage over $ 75,000. (46 CFR 4.05-1 (a) 7.) Unless nothing more than a paint scratch occurs (except in situations involving an alliance with a bridge), it would be wise to notify the Coast Guard immediately rather than waiting for a marine surveyor’s estimate.
At the outset, the lawyer must collect at least the following information: 1) the name of the vessel, its location and the nature of the incident: 2) the condition of the crew, the vessel and the cargo; 3) the identity of any other party involved, injured or not; 4) the route of the vessel; 5) the presence of government authorities; and 6) contact details of the shipowner, insurers and the ship’s agent. This information will help the lawyer make important decisions about the initial response. For example, the lawyer must determine the type of information to be collected and decide whether to send notices of protest or notices of complaint, or whether to retain and send a marine surveyor.
With respect to the investigation, counsel must understand the role and capabilities of the Coast Guard. Coast Guard investigations range from obtaining and analyzing evidence of minor incidents to establishing a Marine Investigation Committee to investigate incidents involving serious injury, death and environmental damage and important materials. The purpose of each Coast Guard investigation is to analyze the facts surrounding the accident, determine the root cause (s) of the accident and, if necessary, take corrective action. It will use the information gathered during the investigation process to consider promulgating new rules or notices to avoid further victims.
Additionally, the Coast Guard, unlike the NTSB, will determine if there have been any acts of negligence, misconduct, or other violations of federal law that caused the victim. And, if so, the Coast Guard may refer the case back to the US Department of Justice for further investigation to determine if a crime has been committed. Therefore, it is essential, at an early stage of the investigation, that the lawyer representing the owner determine whether a crew member has a personal criminal risk that could create a conflict of interest between the owner and that member of the crew. ‘crew. If this is the case then it will be very important to ensure that the crew member is represented separately by a lawyer so that he or she can receive unvarnished advice on whether and how to proceed in the event. part of an investigation.
At the origin of traditional wisdom was the Coast Guard regulation that the purpose of the investigation is not to establish criminal or civil liability, but simply to determine the cause of the incident in order to prevent it from happening again. (46 CFR § 4.07-1 (b)). The regulation also contains a form of restriction on the admissibility of the declaration of the navigator: that person in a [license suspension and revocation] procedure, with the exception of dismissal. (46 CFR § 5.101 (b)). This provision seems to assure mariners that their statements will not come back to haunt them in subsequent proceedings against their licenses. Cooperation with the Coast Guard was also believed to be relatively harmless because the final report of the Coast Guard investigation cannot be used in a civil lawsuit to assert responsibility. (46 USC § 6308; but see L. Lambert, The Use of Coast Guard Casualty Investigation Reports in Civil Litigation, 34 J. Mar. L. Comm. 75 (2003)).
But the protections these regulations and laws seem to offer are slim. First, none of these protections come into play if evidence of criminal behavior is discovered. The Coast Guard has a duty to notify the local United States Attorney’s Office if a formal marine board of inquiry is formed. In addition, the Coast Guard is legally obligated to present to the United States Attorney General any evidence of criminal conduct discovered during its investigation. Therefore, even though a statement made to the Coast Guard might not be directly usable as evidence in a stay and dismissal proceeding or as evidence in a civil trial, such statements or evidence could be directly used in a criminal prosecution.
Any statement made to an investigator, whether or not amounting to an admission, can be used to assess liability for civil penalties. Federal laws allow the imposition of a civil fine of $ 5,000 for each proven violation of the rules of inland navigation (33 USC §2072 (a)) and of $ 25,000 for each case of negligent navigation (46 USC §2302 (at)). Nothing in the law or regulations prevents the Coast Guard from using a statement given in an interview to support its assessment of these civil penalties.
Cooperation with the investigation
Ultimately, counsel can never interfere with Coast Guard investigation, but the level of cooperation with Coast Guard must be determined on a case-by-case basis. It is important to note that a seafarer under investigation has the right not to answer questions from the Coast Guard if such statements could incriminate him. Equally important, if the crew members choose to answer questions and do not do so honestly, the crew members and the owner may be exposed to separate charges of obstruction of justice or perjury.
There may well be instances in which a full brief by the mariner can convince the Coast Guard that no further investigation or investigation is necessary and / or that no negligence or traffic violation has been committed. . Certainly, if the sailor refuses to cooperate, Coast Guard investigators can be very suspicious of a sailor. Ultimately, however, the decision to answer questions must be made with the presumption in mind that any statement made to the Coast Guard will be used in one form or another in suspension and revocation hearings, hearings. on civil sanctions and criminal proceedings.