В статье рассматриваются вопросы, связанные с расследованием чрезвычайных морских происшествий. Особое внимание автор уделяет порядку служебного (специального отраслевого) расследования причин и обстоятельств чрезвычайного морского происшествия. В частности, исследуются роль и значение национального права, а также международного морского права в расследовании чрезвычайных морских происшествий, в том числе, аварийных.
A key question in understanding the underlying concept and philosophy of marine casualty investigation is where to draw the line between the safety inquiry and any subsequent judicial proceedings.
It is vital to make a full investigation and in-depth analysis of the events and decisions that led up to any accident. This is the only way to learn lessons and remove chances of similar accidents in future. This investigation should have the sole motive of safety analysis. It is known as ‘safety investigation’ and in some countries it is also known as ‘preliminary inquiry’. A safety inquiry is best done by technical experts, which is to say mean marine experts. It is not the purpose of a safety inquiry to apportion blame or to punish anyone, and carrying out the inquiry does not require any judicial knowledge or overview.
The role of IMO
As the international custodian of safety at sea, IMO necessarily has an interest in safety investigation. As IMO is not a sovereign government, it cannot conduct such inquiries itself. However, it wants to know the outcome of all safety inquiries so that it can discuss 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 an inquiry/investigation into any marine casualty on its ships and make the findings available. Similar provisions are also contained in UNCLOS-82. This obligation sometimes falls upon port states when such accidents take place within their jurisdiction. Sometime the port state and the flag administration cooperate with each other or even conduct a joint inquiry. IMO is not concerned with any criminal or other inquiry conducted under any national law. It is interested solely in findings relating to safety, in case they could lead a need for a change or amendment to standards relating to design, construction, material, training or even procedural matter.
National maritime law will reflect the provisions of all international instruments to which the state is a party. However, it will generally make one single reference to casualty investigation, rather than listing every individual relevant instrument. Signatories to the Conventions mentioned above must make certain points absolutely clear in their own laws. First of all, national legislation must make it obligatory on the part of the owner and Master of every ship under its flag to notify the administration of any accident or casualty causing damage to any person, ship or its equipment or cargo or other ship or property or any damage to the environment. Similarly, the law must also require every foreign ship having come across a similar incident within its waters to report to the administration – that is, department, directorate or other governmental agency (perhaps headed by a Director General) that looks after day to day administration of maritime matters.
On receiving such information, the administration shall arrange for a safety inquiry to establish the reason for the accident/casualty. This must be carried out with a no-blame attitude, solely for the cause of safety and the report shall be freely available to all, including ship-owners, seafarers, professional institutes and unions. All important investigation reports may also be forwarded to IMO for its consideration.
Beyond the safety inquiry
Anything beyond the scope of 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.
While 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 in any subsequent court proceedings and the administration shall not be obliged to produce a copy to the court officially. However, a court may request evidence produced in the course of the safety inquiry (like photographs, VDR recordings etc.), that may not be otherwise available. No deposition or statement made solely for the purpose of safety shall be produced nor the identity of the persons involved disclosed. There shall be no prosecution based on the report of the safety inquiry.
The safety inquiry is viewed with a great deal of importance. Impartiality is an important factor as the inquiry is not held against any person or party. Some states consider that it is is not appropriate for the maritime administration to conduct the safety inquiry as it conducts the survey and certification of ships, creating a conflict of interest. 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 inquiries. Definitely they are one step ahead of others.
What does maintaining impartiality mean in practical terms? Suppose a watch-keeping officer fell asleep, resulting in a grounding or collision. The safety inquiry will make a reference to those facts, but will concentrate on why the officer fell asleep. It will ask whether the rest period was sufficient to prevent such an incident, and if the administration/IMO should make recommendations to that effect. It is for a formal inquiry – not the safety inquiry – to look into the conduct of the officer and decide if his/her certificate should be revoked. Likewise, in case of a collision, the shipowners or managers may go to law (sue each other) to apportion blame; it is not the place of the safety inquiry to do so. 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; but such action must be undertaken separately from the safety inquiry.
National law (or the 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, environment and commercial (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, it has to have clear provisions for safety inquiry under conventions and separate provisions for further litigation where necessary.
A safety investigation is for the purpose of discovering lessons which may be learned with a view to preventing any repetition. It is not the purpose of such an investigation to establish liability or to apportion blame, except in so far as it emerges as part of the process of investigating the incident. The report shall be freely available for public benefit but will not be presented as evidence in any court.
The IMO guidelines and the EU directives emphasise two points. Seafarers must not be harassed during the process of investigation. Seafarers must always be treated fairly. Ships must not be delayed or detained solely for the purpose of investigation.
Captain Fazlur R Chowdhury
Источник: Seaways. – 2013. – Aptil. – P. 15 – 16.