ACCIDENT, INVESTIGATION AND THEN WHAT? – F. R. Chowdhury (1N)

[ This article outlines the basic concept. This is how it is done in most countries including UK. The community must remain alert so that the new MSA does not allow any short-cut. The certificate or any other document belonging to a seafarer may only be withdrawn or revoked if the seafarer is found guilty or his conduct found below desired level in a court of law. No action without judicial process. The MSA must not block attempt for appeal. Be alert. Best wishes.]

National maritime legislation often referred to as Merchant Shipping Act has to take on board all internationally agreed measures and standards. They come in the form of conventions and protocols. Maritime laws obviously take on board those adopted by IMO (International Maritime Organization). It also has to take care of a few more conventions (not adopted through IMO) such as those adopted through ILO (International Labor Organization), WHO (World Health Organization) and ITU (International Tele-communication Union). Apart from international convention requirements, MSA also contains specific national requirements that reflect the national policy.

All IMO and ILO adopted Conventions evidently have one common provision – Provision for inquiry/ investigation. Some time it is referred to as National Provision. The purpose of the provision is to encourage every member state to exercise its jurisdiction to conduct inquiry and investigate the cause of any marine accident. The Party State can do this as the Flag State if the accident happened on one of its own ships. The Party State can also conduct such inquiry as Port State if the accident happened within its own waters. In some cases both parties agree to conduct joint inquiry in which case it is normally the Flag State that proposes the joint inquiry.

The inquiry/ investigation referred to in the previous paragraph is known as safety inquiry or preliminary inquiry. It is done to comply with the convention. The inquiry is normally conducted by professional people who are familiar with maritime operations and for whom it should not be very difficult to find the reasons as to why the accident took place. While taking statement/ deposition (not under oath) from witness it is the duty of the inquiry officer to clearly explain that nobody can be prosecuted or charged for any statement given. It is solely for greater safety that we should know if anything is to be done to prevent similar accidents in future. This investigation is not to blame anyone; nor to hold anyone responsible for it. It is also for not apportionment of blame or settlement of claims. It is only to know the reasons or any shortcomings. It is to learn lesson to prevent it happening again. The Conventions require member states to submit report of such safety inquiry so that the requirements and procedures outlined in the convention can be reviewed afresh, if so required. The report of the preliminary inquiry is an open document for people to study to take more precautions. But this document shall not be forwarded officially to any other inquiry or investigation and no reference to it shall be acceptable in any court of law. However, any court of law may ask for production of photographic or other evidence (already gathered by safety inquiry) that may no longer be otherwise available.

Preliminary or Safety inquiry is basically to comply with the convention (international requirements). Submission of a report to the UN body will relieve the state of its responsibility. For most of the minor accidents that will be enough. Sovereign nations will have their own judicial system with which IMO would not like to be associated and that is the reason why report of the preliminary investigation cannot be taken into consideration in any subsequent judicial process. But all accidents may not be simple innocent accident. There may be act of sabotage, willful damage to settle a score, conspiracy for insurance claim or any other criminal motive. The UN Convention will not talk about national law because it varies widely. Every independent sovereign state will have its legal system and judicial procedures. It cannot be a lawless state. There is no way that just because it happened on a ship, the criminal will simply walk away in a foreign port and the police stations will keep arguing about their jurisdiction.

Despite the high profile investigations conducted by MAIB of UK and NTSB of USA, they remain preliminary safety inquiry. There is no judicial involvement and no deterrent against negligence or wrong doing.

MSA should take on board the requirements of international conventions as well as national requirements. A law is never complete without penal provisions. Apart from various types of crimes, there may be professional negligence leading to death or damage. Law must also provide deterrent against negligence. A country having self-respect will have its legal and judicial requirements in place to establish rule of law. All such countries will be viewed with respect especially in the insurance world. Anything may happen in a country with nothing more than convention requirements and you will be left crying for justice.

Established maritime nations will have legal arrangements to conduct inquiry into all such cases where it raises lot of public interest and in all other cases where there is enough reason to think that the incident could be something more than simple innocent accident. It is normally done in the form of a formal inquiry. Formal inquiry is essentially a judicial inquiry with all powers of a relevant court. The government normally appoints a serving or recently retired judge (assisted by one or two professionally qualified assessors) to head the inquiry. It must be understood that it is not a case by one party against other. It is a case initiated by the secretary of state representing public interest to conduct a judicial inquiry in totality to mitigate fair justice. The court will have the powers to summon witness, arrest suspect and take deposition under oath. The court may consider suspending, withdrawing or canceling a certificate of competency. It may impose fine/ penalty or even imprisonment as deemed appropriate under national law. Such actions will no more be confined within master and crew but may extend to company managers and directors under ISM Code if in the opinion of the judge there is failure on the part of the owners/ company to provide necessary support or supervision.

In a traditional maritime country like UK, such legal practice or procedure need not be written. It will be followed as a good practice and procedure as was done in case of “Herald of Free Enterprise” incident. We must not forget that need for corporate responsibility in shipping industry was identified by this court that led to creation of ISM Code. However, in most countries law should spell out the requirements to avoid any argument, ambiguity or legal vacuum.

The court shall still not go for apportionment of blame or settlement of claims. It is for the parties to sue each other in a separate court to settle their claims. The court (under MSA) will review in the light of the statutory requirements and its compliance. It is for the court to consider whether any action taken during and after such a situation reflects proper diligence or not. The national system of law and order (for shipping industry) will certainly make everyone aware of sense of responsibility. The insurance world makes payment but they know for sure there is least likelihood of any foul play in a country with appropriate system and procedures.

We are all aware that litigation and arbitration are very time consuming. We should be grateful to International Maritime Organization (IMO) for formulating many common standards and procedures. Apart from SOLAS-74, LL-66, MARPOL-73/78, STCW-78, IMO has also developed some quick settlement procedures. Athens Convention on passengers and their luggage stipulates internationally agreed compensation for loss of life or injury leading to disability. Ships are insured against this liability making it easy for quick payment and settlement. Ships carrying oil in bulk is insured against environmental damage (CLC) making it easy to get settlement and release of the ship. These days’ ships are also required to be insured against wreck removal (in case of any accident that makes it a wreck). All that Port State is required to check (at the time of pilot boarding) is that vessel has all those mandatory insurance. But it is for that state which has rule of law to investigate and see if any foul play is involved. This is where such states stand wide apart from states that operate flags of convenience.

Those drafting MSA must not forget about ships of 600 or 700 feet of territory that flies its flag. The good name, fame and image of the country are linked with it. Apart from the convention requirements, national requirements must be clearly spelled out. National fleet must not have any room for rogue ship-owners or sub-standard seafarers.

The administration of the law is simple. The director general will deal with all preliminary inquiry by sending a report to IMO where he deems it necessary. Where in his (DG) opinion the matter deserves more attention, he shall forward to his minister who (shipping minister) without any delay will request his counterpart (ministry of law and justice) for a formal judicial inquiry with suggested names of assessors.

The world of shipping has undergone big changes since the WWII. The traditional national ships owned and operated by own nationals and also crewed by nationals are difficult to see. Commercial competition has pushed shipping to such a corner where it is difficult to establish real beneficial ownership of the ship. Flag states do not have the same degree of control it had hundred years back. There are ships that hardly ever visit its home port. Land-locked countries also have ships on its register. Crimes at sea cannot be always brought under national jurisdiction. Criminals often leave the ship and serious criminal activities cannot be brought to justice because in most cases port states do not want to get involved because it did not happen in its jurisdiction. There is one sure and certain way to cover this vacuum. The UNCLOS-82 must give full powers to every port state to exercise full jurisdiction over a ship that undergoes any accident or incident at sea before entering the port state (as if the incident happened within its jurisdiction). This will create that global network of surveillance to detect all foul play and crime. It is strongly recommended that national legislation must have a provision to this effect to state that “visiting foreign vessels shall be under full judicial control of the local authority in case of any reported or suspected case of crime at sea (before entering the port) as if the same happened within the jurisdiction of port state”.

A state does not make legislation every other day. It makes a wise one to stand the test of time and of course all possible circumstances. It is with this good intention in mind, some important issues are highlighted. I hope it will prove beneficial to the national context.

London, 25-June-2020                                                            <fazlu.chowdhury@btinternet.com>