Published: Saturday, March 23, 2013

Marine casualty investigation

EVER since its creation, the International Maritime Organization (IMO) has been working for safer ships and cleaner seas. The term safer ships originally meant improvement in design, construction, material, equipment and training so that accidents and casualties could be reduced. However, a new dimension has been added — security. Now, security measures need to be in place against threat of piracy and terrorism. So the objectives of the IMO are safety and security in shipping and protection of the marine environment.

Investigation with in-depth analysis of reasons that led to any accident is vital. Here we are talking about investigation with the sole motive of safety analysis. This is known as “safety investigation” or “preliminary inquiry.” This inquiry is best done by technical marine experts. IMO, being the safety custodian in international domain, is involved in safety investigation. However, IMO is not a sovereign government and cannot conduct such inquiries. But it needs to know the outcome of all safety inquiries so that it can find possible measures to prevent such accidents in future.

This is why every international convention adopted through IMO (LL, SOLAS, MARPOL and STCW) has a provision requiring the flag state to conduct inquiry/ investigation into any marine casualty on its ships and make the findings available to IMO. Similar provisions are also contained in UNCLOS-82. Such obligation sometimes falls upon port states when such accidents take place within their jurisdiction. Sometimes the two administrations cooperate with each other or even conduct joint inquiry.

IMO is not concerned about any criminal or other inquiry conducted under any national law. It is interested in the findings of safety inquiries in case it needs to make any change or amendment to standards relating to design, construction, material, training or even procedural matters.

National maritime law, commonly referred to as Merchant Shipping Act, will reflect the provisions of all international instruments to which the state is a party. However, when making reference to casualty investigation it will evidently not make references under every relevant instrument but make one single reference. However, it is necessary to make certain points absolutely clear.

First of all, national legislation must make it obligatory on the part of the owner and master of every ship under the nation’s flag to notify the administration of any accident or casualty causing damage to any person or ship, or its equipment or cargo, or to the environment. The law must also require every foreign ship that has met or come across similar incident within its waters to report to the administration.

The administration, on receipt of such information, shall arrange for a safety inquiry to establish the reason for the accident/casualty. This will be done with a no-blame attitude solely for the cause of safety, and the report shall be freely available to all — ship-owners, seafarers, professional institutes and unions. Important investigation reports may also be forwarded to IMO for its consideration. Anything beyond the safety inquiry is not a matter for IMO but for national law.

The safety inquiry will be conducted without any prejudice to any right of any party to sue another party for any damage or claim. It shall not diminish the right of the government to order any formal or judicial inquiry where it deems it necessary. The government may also initiate legal action against any individual for any criminal negligence or gross professional misconduct. However, it is better to clarify that, whereas the results of the safety inquiry shall be available to all for the sake of safety and public benefit, it shall not be referred to any subsequent court proceedings and the administration shall not be obliged to produce a copy to the court officially. However, a court may order for such pieces of evidence (like photographs, VDR recordings etc.), that may not be otherwise available, to be produced. No deposition or statement made solely for the purpose of safety shall be produced nor the identity of the persons disclosed. There shall be no prosecution based on the report of the safety inquiry.

I should perhaps clarify here that by referring to the administration we mean the department, directorate or other governmental agency that looks after day to day administration of maritime matters. It will be enough for the administration to conduct the initial safety inquiry. The term government refers to the relevant minister who heads that ministry. The law should give specific power to the minister to institute a judicial inquiry when s/he considers it necessary to do so.

Such a commission may summon witnesses, take deposition under oath and take punitive measures against anyone found guilty of an offence. The judicial inquiry or its verdict has nothing to do with IMO or its convention. It is just the sovereign right of any independent state to take action as deemed necessary for the sake of good governance and rule of law.

The safety inquiry is viewed with lot of importance. Impartiality is an important factor as the inquiry is not held against any person or party. In some countries they think it is not appropriate for the administration to conduct the safety inquiry as it conducts the survey-certification of ships. How can it reveal its own weakness? This is why in the United States there is a separate body known as National Transportation Safety Board (NTSB) and in the United Kingdom there is Marine Accident Investigation Bureau (MAIB) to conduct such safety inquiry.

Supposing the watch-keeping officer falls asleep, resulting in a grounding or collision. The safety inquiry will make a reference to the actual fact but concentrate on why the officer fell asleep. Is the rest period sufficient to prevent such an incident? Can the commission make recommendations to that effect? It is only a formal inquiry that can look into the conduct of the officer and decide if his/ her certificate should be revoked.

In case of a collision the ships may like to go for litigation (sue each other) for apportionment of blame and claim. The insurance industry may not settle any claim unless the ship takes legal measures to reduce its burden. However, it must be understood that the commercial world and the insurance industry will have more faith in a flag state that has a rule of law. They would like to see that deterrent action is taken against professional negligence and misconduct.

National law (merchant shipping act) has to cover all aspects of maritime matters — registration, mortgage and lien, claim and arrest of ships, safety, security, training and certification of seafarers and manning of ships, and environment and commercial matters (carriage of goods, chartering, carriage of passengers and their luggage, marine insurance both hull/ machinery and P&I). It has to transpose all important provisions of international instruments and blend it with some national requirements. In respect of casualty investigation there have to be clear provisions for safety inquiry under conventions and separate provisions for further litigation where necessary.

Safety investigation is for the purpose of learning lessons with a view to preventing any repetition. It is not the purpose of such investigation to establish liability or to apportion blame, except insofar as it emerges as part of the process of investigating the incident. The report shall be freely available for public benefit but cannot be presented as evidence in any court.

The IMO guidelines and the EU directives emphasise on two points. Seafarers must not be harassed during the process of investigation. They must always be treated fairly. Ships must not be delayed or detained solely for the purpose of investigation.

The writer is an occasional contributor. 
E-mail: fazlu.chowdhury@btinternet.com