How to Conduct Maritime Accident Investigations? Which Regulation Governs Them?
Legal framework to conduct maritime accident investigations
Maritime safety investigations of accidents/incidents are not intended to determine the responsibilities involved and the search for the culprits. However, it particularly looks for the facts that contributed to the occurrence of accidents/incidents and identifies the various areas or measures that must be the subject to improvement.
SOLAS Convention provides that " Administration shall investigate an accident involving a vessel flying its flag, if such an investigation could assist in identifying regulatory problems that would have played a role in the accident". In the SOLAS Convention of 1960 and 1974 as amended, this provision was maintained and it was also taken up in the 1966 International Load Line Convention.
According to the current International Maritime Organization- IMO's Code of investigations, the conduct of the investigation of maritime accidents by the flag State is mandatory when it is likely to provide information that may help to prevent this type of accident in the future, with the aim to improve maritime safety.
Annex IV of the MARPOL Convention also provides requirements for the conduct of accident investigations. In particular, Articles 8 and 12 provide an investigative obligation to the competent authorities of each Member State following an accident at sea.
Cooperation between safety and criminal (i.e., judicial) investigations
Investigations are initiated following a large-scale accident/incident. In such investigation, we distinguish two parts: a safety investigation and another called criminal investigation. While the first seeks to determine facts that contributed to the occurrence of the accident, the second look for the responsibilities involved. Cooperation between the two parts of the investigation is very important because they analyze the same events but pursue different objectives.
Safety investigators can access and benefit all information collected by judicial services, even if they are covered by professional secrets or instruction. When an investigation is launched, the primary evidence collected by the judicial authority shall, at their request, be made available to safety investigators. Then, the latter, safety investigators, proceeds to the sampling to carry out examinations or analyzes, debris, fluids, parts, organs, assemblies, or mechanisms that they consider necessary and can assist in the determination of the circumstances and the causes of the accident or incident. This is done under the supervision of a judicial police officer and with the agreement, as the case may be, of the public prosecutor or the investigating judge.
However, they may not submit the evidence that has been collected for examinations or analyzes that may modify, alter or destroy them without the agreement of the judicial authority. Safety investigators must be informed of the expert appraisals conducted by the competent judicial authority and must be entitled to attend and exploit the findings made in connection with these operations for the purposes of the safety investigation.
Cooperation between safety and judicial investigators is, therefore, simultaneously informative and operational. This cooperation should, however, be analyzed only in the light of the respective purposes of the investigations. As regards the deadlines, the safety investigation must be made as soon as possible in response to a need for prevention. Whereas, the criminal (i.e., judicial) investigation must allow the determination of the responsibilities, so that, it is not limited by a delay and may take a long time depending on the case. These two types of investigations are thus endowed with different probative values.
The safety investigation, however, does not have the same probative value as forensic expertise. However, it generally has the same probative value because of the publicity and media coverage of the technical conclusions of the investigation.
In addition, technical investigators have a right of meeting with any person directly or indirectly related to the accident or incident. However, this power of encounter carries some reservations. In addition, technical investigators may be held criminally liable, in particular for breach of professional secrecy.
Cooperation between States in Conducting the Safety Investigations of Maritime Accidents
As a general rule, the investigation following a maritime accident is directed by a single State. Nevertheless, exceptionally, there may be multi- States investigations in parallel. In this concern, Chapters 9 and 10 of the current IMO's Investigation Code stipulates that State with interests in the investigation may conduct its own investigation and coordinate the planning of investigations with the other parties.
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