Code for the Investigation of marine casualties and incidents [MSC 68/23/Add. l, annex 8]

1. Introduction

1.1 This Code recognises that under IMO Conventions each flag State has a duty to conduct an investigation of any casualty occurring to any of its ships when it judges that such an investigation may assist in determining what changes in the present regulations may be desirable or if such a casualty has produced a major deleterious effect upon the environment. Also this Code takes into account that under the provisions of UNCLOS Article 94, a flag State shall cause an inquiry to be held, by or before a suitably qualified person or persons, into certain casualties or incidents of navigation on the high seas. However, the Code also recognises that where a casualty occurs within the territorial sea or internal waters of a State, that State has a right, under UNCLOS Article 2, to investigate the cause of any such casualty which might pose a risk to life or the environment, involve the coastal State's search and rescue authorities, or otherwise affect the coastal State.

1.2 The aim of this Code is to promote a common approach to the safety investigation of marine casualties and incidents, and also promote cooperation between States in identifying the contributing factors leading to marine casualties. The result of a common approach and co-operation will be to aid remedial action and to enhance the safety of seafarers and passengers, and the protection of the marine environment. In achieving these aims, this Code recognises the need for mutual respect for national rules and practices and puts particular emphasis upon co-operation,

1.3. By introducing a common approach to marine casualty investigations and to the reporting on such casualties, the international maritime community may be better informed about the factors which lead up to and cause, or contribute, to marine casualties. This may be facilitated by:

.1 Clearly defining the purpose of marine casualty investigation and the guiding principles for its conduct.

.2 Defining a framework of consultation and co-operation between substantially interested states.

.3 Recognising that the free flow of information will be promoted if individuals, who are attempting to assist the investigation, may be offered a degree of immunity, both from self-incrimination and from any ensuing risk to the livelihood of those individuals.

.4 Establishing a common format in which reports should be made to aid easier publication and sharing of the lessons to be learned.

1.4 It is not the purpose of the Code to preclude any other form of investigation, whether for civil, criminal, administrative, or any other form of action, but to create a marine casualty investigation process the aim of which is to establish the circumstances relevant to the casualty, to establish the casual factors, to publicise the causes of the casualty and to make appropriate safety recommendations. Ideally, marine casualty investigation should be separate from, and independent of, any other form of investigation.

2 Objective

The objective of any marine casualty investigation is to prevent such casualties in the future. Investigations identify the circumstances of the casualty under investigation and establish the causes and contributing factors, by gathering and analysing information and drawing conclusions. Ideally, it is not the purpose of such investigations to determine liability, or apportion blame. However, the Investigating Authority should not refrain from fully reporting the causes because fault or liability may be inferred from the findings.

3 Application

This Code applies, as far as national laws allow, to the investigation of marine casualties or incidents where either one or more interested States have a substantial interest in a marine casualty involving a vessel under their jurisdiction.

4 Definitions

For the purpose of this Code, the term:

4.1. Marine casualty means an event that has resulted in any of the following:

.1 the death of, or serious injury to, a person that is caused by, or in connection with, the operations of a ship; or

.2 the loss of a person from a ship that is caused by, or in connection with, the operations of a ship; or

.3 the loss, presumed loss or abandonment of a ship; or

.4 material damage to a ship; or

.5 the stranding or disabling of a ship, or the involvement of a ship in a collision; or

.6 material damage being caused by, or in connection with, the operation of a ship; or

.7 damage to the environment brought about by the damage of a ship or ships being caused by, or in connection with, the operations of a ship or ships.

4.2 Very serious casualty means a casualty to a ship which involves the total loss of the ship, loss of life or severe pollution.

4.3 Serious casualty means a casualty which does not qualify as a very serious casualty and which involves:

.1 a fire, explosion, grounding, contact, heavy weather damage, ice damage, hull cracking or suspected hull defect, etc., resulting in;

.2 structural damage rendering the ship unseaworthy such as penetration of the hull underwater, immobilization of main engines, extensive accommodation damage etc.; or

.3 pollution (regardless of quantity); and/or

.4 a breakdown necessitating towage or shore assistance.

4.4 Marine incident means an occurrence or event being caused by, or in connection with, the operations of a ship by which the ship or any person is imperilled, or as a result of which serious damage to the ship or structure or the environment might be caused.

4.5 Causes means actions, omissions, events, existing or pre-existing conditions or a combination thereof, which led to the casualty or incident.

4.6 Marine casualty or incident safety investigation means a process held either in public or in camera conducted for the purpose of casualty prevention which includes the gathering and analysis of information, the drawing of conclusions, including the identification of the circumstances and the determination of causes and contributing factors and, when appropriate, the making of safety recommendations.

4.7 Marine casually investigator means a person or persons qualified and appointed to investigate a casualty, or incident, under procedures laid down in national legislation for the furtherance of marine safety and protection of the marine environment.

4.8 Serious injury means an injury which is sustained by a person in a casualty resulting in incapacitation for more than 72 hours commencing within seven days from the date of injury.

4.9 Ship means any kind of vessel which is used in navigation by water.

4.10 Lead investigating State means the State that takes responsibility for the conduct of the investigation as mutually agreed between the substantially interested States.

4.11 Substantially interested State means a State:

.1 which is the flag State of a ship that is the subject of an investigation; or

.2 in whose internal waters or territorial sea a marine casualty has occurred; or

.3 where a marine casualty caused, or threatened, serious harm to the environment of that State, or within those areas over which the State is entitled to exercise jurisdiction as recognised under international law; or

.4 where the consequences of a marine casualty caused, or threatened, serious harm to that State or to artificial islands, installations, or structures over which it is entitled to exercise jurisdiction; or

.5 where, as a result of a casualty, nationals of that State lost their lives or received serious injuries; or

.6 that has at its disposal important information that may be of use to the investigation; or

.7 that for some other reason establishes an interest that is considered significant by the lead investigating State.

5 Conduct of marine casualty investigations

5.1 Where an investigation is to be conducted, the following should be taken into consideration:

.1 Thorough and unbiased marine casualty investigations are the most effective way to establish the circumstances and causes of a casualty.

.2 Only through co-operation between states with a substantial interest can a full analysis be made of a marine casualty.

.3 Marine casualty investigations should be given the same priority as criminal or other investigations established to determine responsibility or blame.

.4 Marine casualty investigators should have ready access to relevant safety information including survey records held by the flag State, the owners and classification societies. Access to information should not be barred by reason of competing investigations.

.5 Effective use should be made of all recorded data, including voyage data recorders (VDR), if fitted, in the investigation of a marine casualty or marine incident wherever it occurred. The State conducting the investigation should arrange for the read-out of the VDR.

.6 Marine casualty investigators should be afforded access to Government surveyors, coastguard officers, vessel traffic service operators, pilots or other marine personnel of the respective states.

.7 The investigation should take into account any recommendations or instruments published by IMO or ILO, in particular those relating to human factors and any other recommendations or instruments adopted by other relevant international organisations.

.8 The reports of investigations are most effective when released to the shipping industry and public.

5.2. Consistent with paragraph 9, other substantially interested States should be invited to be represented during any such investigation and should be admitted as a party in the proceedings and have equal standing, rights and access to evidence as the State conducting the investigation.

5.3 Recognising that any vessel involved in a casualty may continue in service and that a ship should not be delayed more than is absolutely necessary, the State conducting the investigation should start the investigation as soon as practicable, without delaying the ship unreasonably. Other substantially interested States may, by mutual agreement, join the investigation either immediately or at a later stage.

6 Responsibility to investigate casualties and incidents

6.1 Flag States are encouraged to ensure investigations into all casualties occurring to its ships are undertaken. All cases of serious and very serious casualties should be investigated.

6.2 Where a marine casualty or incident occurs within the territorial sea of a State, recognising the obligations of that State to its citizens and the legal status of the territorial sea under the provisions of UNCLOS and also recognising the duties placed on a flag State, the flag and coastal States should co-operate to the maximum extent possible and mutually agree which State should take the role of lead investigating State.

6.3 Where a marine casualty or incident occurs on the high seas, a flag State should carry out an investigation into a casualty to, or on, any of its ships. If that casualty is a collision involving a ship of another flag State, then the States should consult with each other and agree which will be the lead investigation State and determine the best means of co-operation under this Code. Consistent with paragraph 9.1, if another State is a substantially interested State by virtue of the nationality of a ship's crew, passengers and other persons, or the location of the casualty that State or States should be invited to take part in the investigation.

6.4 By fully participating in an investigation conducted by another substantially interested State, the flag State shall be considered to fulfill its obligations under UNCLOS Article 94, section 7.

6.5 An investigation should be started as soon as practicable after the casualty occurs. Substantially interested States should, by mutual agreement, be allowed to join an investigation conducted by another substantially interested State at any stage of the investigation.

7 Responsibilities of the lead investigating State

The lead investigating State should be responsible for:

.1 developing a common strategy for investigating the casualty in liaison with substantially interested States;

.2 providing the investigator in charge and co-ordinating the investigation;

.3 establishing the investigation parameters based on the laws of the investigating State and ensuring the investigation respects those laws;

.4 being the custodian of records of interview and other evidence gathered by the investigation;

.5 preparing the report of the investigation and obtaining and reflecting the views of the substantially interested States;

.6 co-ordinating, when applicable, with other agencies conducting other investigations;

.7 providing reasonable logistical support; and8.liaison with agencies, organisations and individuals not part of the investigating team.

8 Consultation

8.1 Notwithstanding the obligation placed on the master or owners of a ship to inform its flag State authority of any casualty occurring to the ship, where a casualty or incident occurs in the internal waters or territorial sea of another State, the coastal State should notify, with a minimum of delay, the flag State or States of the circumstances and what, if any, action is proposed by the coastal State.

8.2 Following a casualty, the investigating State should inform the other substantially interested States, either through the Consular Office in that State or by contacting the relevant authorities listed in MSC/Circ.781/ MEPC.6/Circ.2. That State and the other substantially interested States should consult, at the earliest opportunity, on the conduct of the investigation and to determine details of co-operation.

8.3 Nothing should prejudice the right of any State to conduct its own separate investigation into a marine casualty occurring within its jurisdiction according to its own legislation. Ideally, if more than one State desires to conduct an investigation of its own, the procedures recommended by this Code should be followed and those States should co-ordinate the timing of such investigations to avoid conflicting demands upon witnesses and access to evidence.

9 Co-operation

9.1 Where two or more States have agreed to co-operate and have agreed the procedures for a marine casualty investigation, the State conducting the investigation should invite representatives of other substantially interested States to take part in the investigation and, consistent with the purpose of this Code, allow such representatives to:

.1 question witnesses;

.2 view and examine evidence and take copies of documentation;

.3 produce witnesses or other evidence;

.4 make submissions in respect of the evidence, comment on and have their views properly reflected in the final report; and

.5 be provided with transcripts, statements and the final report relating to the investigation.

9.2 In the implementation of these procedures, States are encouraged to provide for maximum participation in an investigation by all States with a substantial interest in the marine casualty.

9.3 The flag State of a ship involved in a marine casualty should facilitate the availability of the crew to the investigation and encourage the crew to co-operate with the State conducting the investigation.

10 Disclosure of records

10.1 The State conducting the investigation of a casualty or incident, wherever it occurred, should not make the following records, obtained during the conduct of the investigation, available for purposes other than casualty investigation unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that, or any future, investigation and the State providing the information authorises its release:

.1 All statements taken from persons by the investigative authorities in the course of the investigation.

.2 All communications between persons having been involved in the operation of the ship.

.3 Medical or private information regarding persons involved in the casualty or incident.

.4 Opinions expressed during the conduct of the investigation.

102. These records should be included in the final report, or its appendices, only when pertinent to the analysis of the casualty or incident. Parts of the record not pertinent, and not included in the final report, should not be disclosed.

11 Personal and material resources

Governments should take all necessary steps to ensure that they have available sufficient means and suitably qualified personnel and material resources to enable them to undertake casualty investigations.

12 Issue of marine casualty reports and submission to IMO

12.1 The lead investigating State should send a copy of the draft of the final report to all substantially interested States, inviting their significant and substantiated comments on the report as soon as possible. If the lead investigating State receives comments within thirty days, or some mutually agreed period, it should either amend the draft final report to include the substance of the comments, or append the comments to the final report. If the lead investigating State receives no comments after the mutually agreed period has expired, it should send the final report to the Organization in accordance with applicable requirements and cause the report to be published.

12.2 By fully participating in an investigation conducted by another substantially interested State that would report to IMO, the flag State shall be considered to fulfill its obligations under IMO conventions.

12.3 Reports, or relevant parts of reports, into the circumstances and causes of a marine casualty should be completed as quickly as practicable, and be made available to the public and the shipping industry to enhance the safety of life at sea and the protection of the marine environment through improved awareness of the factors which combine to cause marine casualties.

12.4 Where a substantially interested State disagrees with whole or part of a report mentioned in paragraph 12.2 above, it may submit its own report to the Organization.

12.5 The investigating State, upon determining that urgent safety action is needed, may initiate interim recommendations to the appropriate authority.

13 Re-opening of investigations

When new evidence relating to any casualty is presented, such information should be fully assessed and referred to other substantially interested States for their appropriate input. Where such new evidence may materially alter the determination of the circumstances under which the marine casualty occurred and may materially alter the findings in relation to cause or any consequential recommendations, States should reconsider their findings.

14 Contents of reports

14.1 To facilitate the flow of information from casualty investigations, each report should conform to a basic format as outlined in paragraph 14.2.

14.2 Reports should include, wherever possible:

.1 a summary outlining the basic facts of the casualty and stating whether any deaths, injuries or pollution occurred as a result of the casualty;

.2 the identity of the flag state, owners, managers, company and classification society;

.3 details of the dimensions and engines of any ship involved, together with a description of the crew, work routine and other relevant matters, such as time served on the ship;

.4 a narrative detailing the circumstances of the casualty;

.5 analysis and comment which should enable the report to reach logical conclusions, or findings, establishing all the factors that contributed to the marine casualty;

.6 a section, or sections, analysing and commenting on the casual elements, to include mechanical factors and human factors, meeting the requirements of the IMO casualty data base; and

.7 where appropriate, recommendations with a view to preventing similar casualties.

15 Contact between Administrations

To facilitate implementation of this Code, States should inform the Organization of the responsible authorities within their governments that may be contacted regarding co-operation in casualty investigations.