(www.MaritimeCyprus.com) What investigations may a vessel be subject to following an incident? What is the objective of each investigation, can you be compelled, as a matter of law, to answer questions? What litigation risks do the reports present?
As a first-trip cadet, (or midshipman as we were called), I was told by the Master, somewhat tongue in cheek, that the problem with accidents was the paperwork. I've since learned, it isn't the paperwork, but the accident investigations that can exhaust those on the vessel. In this article, we consider the investigations that are carried out following a vessel-related incident.
The first part, which is based on English law, considers those investigations which have the force of law, namely the statutory investigations. What authorities are you likely to come into contact with and what power do they have? Can it be an offence to refuse to answer a question?
In the second part we consider those investigations likely to occur outside of the statutory framework.
Finally, we consider some of the litigation risk management issues that arise from the various investigations and how to manage those risks.
Part 1 - The Statutory Investigations
Following a major incident, the statutory authorities will likely wish to investigate the cause with a view to making recommendations to minimize the risk of recurrence, identify whether a criminal offence has been committed or to comply with the coroner’s statutory obligations in respect of a death. The powers of those investigating, (the Inspectors), and the obligation on those being interviewed to answer the Inspector's questions questions will vary according to the powers that the Inspector has been given as a matter of law.
1.1 - Marine Accident Investigation Branch (MAIB)
Objective - The MAIB are required to (a) determine the causes of accidents at sea; (b) take actions and/or make recommendations on improving safety at sea; (c) increase awareness of how marine accidents occur and (d) publishing their findings and make recommendations. Critically, they are not a prosecution authority.
Jurisdiction - The MAIB has jurisdiction over over all vessels in UK territorial waters and UK vessels worldwide. In addition, the MAIB has a right to investigate where the UK is a "substantially interested State." This would occur, for example, where, because of a marine casualty, UK nationals lost their lives or received serious injuries. Where multiple jurisdictions are involved, say two vessels of different flags collide in the territorial waters of a third party state, the states will agree which will act as lead agency and then work together to provide a single report.
Obligation to answer questions - If an Inspector has reasonable cause to believe a person has information relevant to an investigation, the Inspector may require that individual to answer those questions that the Inspector considers reasonably necessary for the purposes of the investigation. The witness is then required to sign a declaration of the truth in respect of his answers. There is no right to remain silent. Usually the interview will be recorded. Typically the witness is not provided with a copy of the recording but may have access to listen to it on application. A witness does not have a right to refuse to answer questions on the grounds of self-incrimination. However, other than in circumstances where the witness knowingly or recklessly makes a false statement or signs a false declaration, the information provided by a witness cannot be used in proceedings against that witness.
Another individual can accompany the witness so long as the presence of that individual does not hinder the investigation, or it would not otherwise be improper for him to attend. The witness does however have a “right” to have his own legal advisor or solicitor present, though this "right" would probably not extend to the owner's legal advisor or solicitor attending the interview.
Inspector's Powers - The powers of the Inspector are wide ranging. In addition to requiring that his questions are answered, the Inspector has the right to (a) board the ship; (b) be accompanied by others; (c) make examinations and investigations; (d) take measurements, photographs and samples; (e) test or dismantle equipment; (f) destroy material if necessary for an investigation; (g) take possession of documentary and physical evidence; and (h) restrict access to areas of the vessel until the investigation is complete. The Inspector does not require a warrant to enter property.
The MAIB's role derives from Chapter 1. Regulation 21 of SOLAS:
- (a) Each Administration undertakes to conduct an investigation of any casualty occurring to any of its ships subject to the provisions of the present Convention when it judges that such an investigation may assist in determining what changes in the present regulations might be desirable.
- (b) Each Contracting Government undertakes to supply the Organization with pertinent information concerning the findings of such investigations. No reports or recommendations of the Organization based upon such information shall disclose the identity or nationality of the ships concerned or in any manner fix or imply responsibility upon any ship or person.
As a matter of English law:
- (1) The sole objective of a safety investigation into an accident under these Regulations shall be the prevention of future accidents through the ascertainment of its causes and circumstances.
- (2) It shall not be the purpose of such an investigation to determine liability nor, except so far as is necessary to achieve its objective, to apportion blame.
The MAIB follows the Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident (Casualty Investigation Code) as adopted by IMO resolution MSC.255(84)
Litigation risk - On completion of the investigation the MAIB will issue a report which is a public domain document. Except under very limited circumstances, the report is inadmissible in any judicial proceedings whose purpose or one of whose purposes is to attribute or apportion liability or blame. However, given the report is in the public domain, litigation opponents will have access to the report and it will undoubtedly impact on their case management and settlement strategy. It may for example be advisable to consider settlement prior to the publication of the report. The opportunity will be given to the owner/manager to review the report while in draft form. It is advisable to liaise with the Club as to how best to manage this review process.
Footnote - The MAIB investigation is one of the least stressful that a seafarer participates in. The Inspectors are not there to apportion blame or to criticize a witnesses during the investigation. Usually, the interview part of the investigation will involve the witness recounting his recollection of events following which questions will be put to the witness on specific areas of interest. The atmosphere is relaxed but professional. It should be remembered that the primary objective of the MAIB investigation is to minimize the risk of similar accidents occurring in the future and Inspectors are generally willing to listen to constructive ideas about corrective and preventative measures from the witnesses when they meet with them.
1.2 - Health and Safety Executive (HSE)
Objective - The HSE's remit is much wider than the MAIB. As a regulator the HSE has the goal of preventing workplace death, injury, or ill health. This is achieved by (a) providing advice, information, and guidance; (b) raising awareness in workplaces by influencing and engaging; (c) operating permission and licensing activities in major hazard industries; (d) carrying out targeted inspections and investigations; and (e) taking enforcement action to prevent harm and hold those who break the law to account.
Jurisdiction - The HSE has jurisdiction over work activities covered by the Health and Safety at Work Act 1974 (HSWA), and its relevant statutory provisions such as docks, jetties, loading / cargo operations, ship repair, offshore installations, energy structures, wells and pipelines. Clearly there is potential here for overlap with the MAIB investigations. Where both the agencies have an interest in a casualty, there is an Operational Working Agreement which will determine which Agency takes the lead.
If the activity giving rise to the casualty is under the control of the Master of the vessel, or not covered by the HSWA, then the MCA / Flag State and/or MAIB will take the lead. If the activity is not under the control of the Master of the vessel, and the activity is covered by the HSWA, then the HSE will take the lead. By way of example, a collision as a vessel enters a dry dock will probably fall under the MAIB, whereas an accident to a contractor under the supervision of the yard once in the dry, dock will probably fall under the HSE.
The HSE will take the lead in respect of activities such as offshore oil and gas installations and diving/well operations.
Obligation to answer questions - There are two categories of questioning that a witness may be subject to by an HSE Inspector. It is critical that there is no ambiguity in the mind of the witness, in respect of the questioning powers being utilized by the Inspector. There is value in obtaining legal advice prior to any HSE interview.
The first class of interview is one conducted pursuant to the Police and Criminal Evidence ACT 1984 (PACE). Evidence obtained by a PACE interview can be used against the individual being interviewed in a criminal prosecution. If not under arrest, (see below), there is no obligation to attend such an interview. There is a right to decline to answer questions in such an interview. This does not mean that the default position should be to decline interviews, often cooperation presents the best opportunity for a productive outcome for all. As always, each case turns on its own facts.
The second class of interview is the "Section 20" interview. This is named after the relevant section of the HWSA. Section 20 makes it a criminal offence to fail to provide information or answer questions when asked to do so by an Inspector. Where an Inspector exercises his right to compel a witness to answer a question, those answers cannot be used against that person in any proceedings. As with the MAIB, this protection is in place because the right to silence has been removed by statute. However, the evidence of a witness can be used against other crew members and/or the Company.
It may not always be clear under which power a crewman is being interviewed and for this reason, it is important that witnesses are legally advised and exercise their right to be accompanied by a knowledgeable legal representative. It is acceptable at the start of an interview, for the crewman to make it clear that he is answering the Inspector’s questions on the basis that he is taking part in a “section 20” interview. Indeed Inspectors are used to this.
Those being interviewed by an Inspector have the right to be accompanied.
Inspector's Powers - Inspectors have the power of entry, the power to order that areas are left undisturbed and the right to take samples. When entering a premise, including a vessel, they can require anyone that they believe to have relevant information, to answer their questions and sign a declaration of truth.
Inspectors also have limited powers to arrest a person who is committing or has committed an indictable offence, or anyone they have reasonable grounds to suspect is committing (or has committed) such an offence. That said, it is unlikely that an Inspector will exercise this power. The HSE lacks suitable facilities to detain suspects and Inspectors are not typically trained in the procedures to be followed in an arrest, including protecting their own safety. They do however have the power to be accompanied by a police officer.
Where an Inspector considers it proportionate and effective to do so, he may issue an improvement or prohibition notice. An improvement notice may be issued where one or more statutory provision has been contravened and it is likely, in the view of the Inspector, that the contravention will be continued or repeated. The notice cannot go beyond legal requirements. An example would be a requirement that a mandatory guard be fitted to a piece of machinery and be maintained in an efficient state, efficient working order and good repair.
The grounds for issuing a prohibition notice are more complex, but in general, such a notice can be served if in the opinion of the Inspector, an activity presents a risk of serious personal injury. Grounds may exist for a prohibition notice even where there is no contravention of a statutory provision.
The Inspector does not require a warrant to enter the property.
Litigation risk - Improvement and prohibition notices are placed on a public register of enforcement notices so they are available to a litigation opponent. The notices are published five weeks after being served to allow for the appeals process. The HSE also maintains a register of HSE prosecutions that have resulted in a conviction. Unlike the MAIB which publishes their reports as a matter of course, reports and the underlying evidence has to be requested from the HSE via the Freedom of Information Act, Environmental Information Regulations or Data Protection Act. The HSE guidelines on disclosure of information is here. See also Part 3 below - "Criminal Proceedings".
Footnote - While the HSE is the prosecution authority in England and Wales, in Scotland, prosecutions are handled by the Crown Office.
A typical HSE report covering the jet car accident involving Richard Hammond of BBC's Top Gear is here.
1.3 - The Coroner
Objective - Unexpected deaths are reported to the Coroner. Coroners conduct inquiries into the cause and circumstances of death to determine who the deceased was, how, when and where the deceased came by his or her death.
A death is unexpected where (a) the person who has died was not seen by a doctor in the 14 days before death or during their final illness. (b) the doctor does not know the cause of death and so cannot issue a medical certificate, (c) the person died within 24 hours of being admitted to the hospital or during an operation or (d) the medical certificate suggests that the cause of death was due to industrial disease or industrial poisoning.
Jurisdiction - A coroner will conduct an inquiry where a body is lying within their district. This will include a body that arrives at a port in their district on a vessel, even if the death occurred in international waters prior to arrival or on a non-UK flag vessel. An inquest will usually be opened where there is reasonable suspicion that the deceased has died a violent or unnatural death, or where the cause of death is unknown.
Coroner's Powers - The Coroner will usually delegate a shipboard investigation to the police.
The Coroner then has the power to summon witnesses to an inquest and a failure to attend would be punishable by contempt of court which could result in imprisonment.
Obligation to answer questions - No witness at an inquest is obliged to answer any question tending to incriminate him or her. Where it appears to a Coroner that a witness has been asked such a question, the Coroner must inform the witness that he or she may refuse to answer that question.
Litigation risk - The Record of Inquest is usually treated as a public document and inquests are open to the public. Record of Inquest should normally be made available for inspection by the public at a coroner’s office on request. Some information, such as the addresses of witnesses will be redacted.
1.4 - The Police
Objective - To prevent, detect, investigate or prosecute an offence under the laws of England and Wales where the courts have jurisdiction.
Jurisdiction - This is a complex area which will be addressed in greater depth in another newsletter. However, in general, there is jurisdiction to try British citizens for offences committed on UK ships in the ‘high seas’ or in ‘any foreign port of harbour’ or committed ‘on any foreign ship to which he does not belong’.
The courts may also try foreign nationals for offences committed on UK ships in the ‘high seas’. The UK courts have jurisdiction over any offence committed in UK territorial waters regardless of the nationality of the offender or of the flag state that the ship is registered under. For some offences, the territorial reach may be greater.
Powers of the police - Again this could be a newsletter in its own right, but most importantly, the police have broad powers to arrest, without a warrant, anyone they suspect has committed, is committing, or is about to commit an offence where the police believe that an arrest is necessary.
Examples of where the test of necessity exist include (a) a failure to identify, or (b) where the police believe you have not provided a real identity, (c) if the officer believes that their investigation will be delayed unreasonably if you’re not arrested or (d) if the officer believes that they won’t be able to find you later.
Obligation to answer questions - A witness or suspect has the right to remain silent when questioned by the police.
Litigation risk - See Part 3 below - "Criminal Proceedings".
1.5 - Maritime and Coastguard Agency (MCA)
Objective - The MCA's main functions are to develop, promote and enforce high standards of marine safety, to minimize loss of life among seafarers and coastal users, and to minimize pollution from ships to the sea and coastline. Merchant shipping health and safety regulations extend to all those working on the ship, and any work activities undertaken on board.
Jurisdiction - The MCA has jurisdiction over UK Flag vessels and those working on them throughout the world and in some circumstances, on foreign flag vessels and those working on them in UK waters. The MCA is the statutory authority for enforcing Merchant Shipping legislation. The Merchant Shipping Act and the Regulations set out the varied offences and always prescribe the potential defendants who may be ship owners (companies or individuals), Master, Officers and others.
In limited circumstances, ship managers and charterers may be proceeded against. In exceptional circumstances, Company Officers who are personally culpable may be prosecuted. (Where serious criminal offences are committed outside of Merchant Shipping legislation this will always be a matter for the police and possibly other Government agencies.)
Powers - The MCA has the power to prosecute where there is:
- A contravention of legislation appertaining to ships, watercraft, seafarers or other water users, which has, or has the potential to cause, loss of life, serious injury, significant pollution or damage to property or the environment; or is an act which prevents an officer of the MCA from carrying out their statutory functions.
The MCA can also detain vessels and issue prohibition and improvement notices. Typically, the MCA prosecutes offences relating to (a) pollution, (b) collision regulations, (c) unsafe operations – the owners, (d) conduct endangering – the master and crew, (e) carriage of dangerous goods and (f) fraud – seafarer documentation.
The Inspector has the power to enter any UK ship wherever it may be, and any other ship in the UK or in UK waters. The inspector does not require a warrant. Once on board, the powers are extensive including the taking of samples, measurements and photographs. In addition, the Inspector may require the production of documents and to inspect and take copies of those documents. He can also question witnesses or require them to attend a specified location to be interviewed.
Obligations to answer questions - There is an obligation to answer the Inspectors questions, but those answers would not be admissible in evidence against the person answering those questions.
Litigation risk - See Part 3 below - "Criminal Proceedings".
1.6 - Other Statutory Authorities
Other authorities may have the statutory right to investigate accidents for the purposes of a prosecution. Many Harbour Masters have this right, although it is rare for such authorities to prosecute. The right to investigate and prosecute will only exist if the legislation, (or subsequent amendments to that legislation) which established the statutory authority provides the authority with the power of investigation and prosecution.
Part 2 - The Non-Statutory Investigations
2.1 - ISM Code Investigations
Objective - These investigations are to comply with Section 9 of the Code, "Reports and Analysis of Non-conformities, Accidents and Hazardous Occurrences."
The Code requires that the Safety Management System should include procedures for ensuring that non-conformities, accidents and hazardous situations are reported to the Company, investigated and analysed with the object of improving safety and pollution prevention. The Code also provides that the Company should establish procedures for the implementation of corrective action, including measures intended to prevent recurrence.
Litigation risk - An opposing litigant would be entitled to a copy of the report prior to a hearing along with the associated communications and notes. While safety is paramount, and it is important that such reports are produced, difficulties can arise with the wording used in the reports. It is advisable to consult with the P&I Club prior to issuing the report. This is not for the purpose of modifying the substantive content of the report, but rather to ensure the way in which the findings are expressed do not create a future prejudice.
2.2 - Commercially Mandated Reports / Investigations
Objective - To be provided to charterers or potential charterers to explain what went wrong, why it went wrong and what steps are being taken to prevent recurrence. A report may be prepared by the owner/manager, or a charterer-appointed surveyor may attend the vessel.
Litigation Risk - As with the ISM report, an opposing litigant would be entitled to view such a report before a hearing and for the same reasons, it is advisable to liaise with the P&I Club before issuing such a report.
2.3 - Anticipation of Litigation Investigation
For high-value cases, the P&I Club may appoint a lawyer and supporting consulting surveyors to attend the vessel, investigate the incident, collect evidence and prepare witness statements.
Objective - Such investigations will focus on the likely “cause of action”; that is to say, the set of facts that may give rise to an enforceable claim in court. The focus of such an investigation will be on whether as a matter of law there has been an actionable tort or a breach of the contractual terms that govern the relationship between the counter-parties that are likely to be in dispute. Such an investigation may not follow the same path as say an ISM investigation which seeks to determine the root cause.
By way of example, consider a vessel that has an engine failure and runs aground, where the engine failure occurred as a consequence of the failure to properly refit the part properly following routine maintenance prior to departure from the load port. So far as the court is concerned, their interest stops at assessing whether there was a lack of due diligence exercised in the maintenance. A root cause investigation will probably go further and seek to understand how and why it was that such a routine task was not completed properly and if there is a more widespread issue on the vessel or throughout the fleet.
Counterintuitively, it is also necessary to collect evidence of what did not go “wrong.” Claimants will often present a shopping list of potential contractual breaches in the hope that one will “stick” or that the defendant has not collected evidence to protect against that specific allegation.
Litigation Risk - The report produced by the lawyer, his notes and the reports of the consulting experts instructed by him are privileged. That is to say that an opponent would not be entitled to inspect copies of those documents.
2.4 - Hull and Machinery Insurer Investigation (H&M)
Objective - Appointed by H&M underwriters to assess the extent of damage and confirm that the claim falls within the policy.
Litigation Risk - Usually low as such a report does not touch on causation, although an opposing litigant would be entitled to view such a report before a hearing. Should there be a need to include detailed information in the report relating to the cause of the damage, this should be discussed between the P&I Club and H&M before the report is finalized.
2.5 - General Average Surveyor
Objective - Appointed by the Adjuster to assist in determining those sacrifices and expenditures that properly fall within General Average and those that do not.
Litigation Risk - Usually low, the Adjuster is generally not concerned about cause save for an overview narrative of the facts leading up to the event that gave rise to the general average act.
2.6 - Loss of Hire Surveyor (LOH).
Objective - Appointed by LOH insurers to determine whether the event that gave rise to an LOH claim falls within the policy.
Litigation Risk - An opposing litigant would likely be entitled to view the LOH surveyor's report and supporting evidence which will address cause.
2.7 - Cargo / Counter Party Surveyor
This will be the subject of a separate newsletter, but the starting point is to determine what the contractual rights there are to such a survey.
As a minimum, the court would expect a surveyor to have access to damaged machinery or say the damage that has occurred in a fire, prior to the scene being disturbed, to have the opportunity to take samples where relevant or to test run machinery. Absent a contractual requirement such a surveyor would not have a right to speak with the crew or examine ship's documents and logs.
Part 3 - Managing the Litigation Risk
3.1 - Document Management
Clearly, investigators are going to require copies or documents or originals as part of their investigation. Where an Inspector has a right to take an original document, the Master should take all reasonable steps to make a copy of the document first. Where possible a receipt should be requested from the Inspector. For those documents that are required by law to remain on the vessel, such as the Oil Record Book, the Inspector may request the Master to mark the copy taken by the inspector as a "certified true copy" with the vessel's stamp and the Master's signature.
A record should be kept of all documents removed from the vessel and all documents from which copies are taken. With the scanning capabilities on most vessels, a soft copy set of the documents as provided can be kept. Because documents can be easily printed it can occur that there is more than one version of an "original" document.
By way of example, a stability calculation can be printed off from a computer, or photocopied from a hard copy file. The hard copy file may have some manuscript annotations that have been added at the time of filing, that a version printed off at the time of the investigation on the day does not have. Lawyers will want to know exactly what has been provided and who to. For this reason, the master should closely control the process and ensure that he has a mirror set of the actual documents that the vessel has provided in copy along with a record of what document was provided to which investigation team.
3.2 - Witness Accounts
Although this article is based on English law, it is worth considering how to deal with other jurisdictions where crew are interviewed but have no right to be accompanied. It is important that the version of events that appears in an official report, which could be published a year plus later, do not come as a surprise to those managing and civil action.
In such circumstances, as soon as crew members have been interviewed by the authorities, they should be asked to recall, as best as they can, what questions were put to them and what the replies were.
3.3 - Criminal Proceedings
The extent to which evidence that may be used in a criminal prosecution can be obtained by a third party depends upon whether the request is being made prior to, or after a conviction. The party requesting the evidence must have a genuine interest in the proceedings, though this would include persons engaged or contemplating civil proceedings.
Witness statements taken for the purpose of prosecution are made by the witnesses in anticipation that such statements are likely only to be used in criminal proceedings. Consequently, where possible, consent of the witness should be obtained. If this is not possible, (say the witness cannot be located) it may be necessary to obtain a court order. The Crown Prosecution Service guidance on Disclosure of Material to Third Parties is here.
As always, the advice in the article is in the context of English law and offers only a generic overview. Exceptions and conditions apply to the statements of law which given the space available are very generalized. You should always seek assistance and guidance from the vessel's P&I Club/your legal advisor based on fact-specific issues.
Source: Ian MacLean, Partner & Marine Casualty Specialist at Hill Dickinson LLP