An Inspector Calls - Accident Investigation - What Masters and Managers Ought to Know

September 2006

Introduction

Port and flag states (especially port states) are becoming increasingly active in their investigation of marine accidents. The rationale for these investigations varies; sometimes they are made purely to promote the safety of life and property at sea. However, with the developing trend towards criminalisation, the aim of an inspection may also be to apportion blame. Against this background, and with methods varying from state to state, investigations raise particular difficulties for masters and managers.

Every ship's Safety Management System will have an ISM-approved form for damage, accident and near-miss reporting. The master and managers also have an obligation to report serious accidents to their flag state and also to the port state - if the accident occurs in harbour or in territorial waters. This means that the Master may have to go through his evidence with many different people, including:- 

• Ship managers, 
• Surveyors appointed by managers or by the ship's P&I Club, 
• Local correspondents and lawyers appointed by the ship's P&I Club, 
• Class surveyors, 
• Inspectors appointed by:-

• the Flag state, 
• the local harbour authority 
• the Port state, and sometimes 
• the local Police and/or Environment Agency

Following a serious incident, owners and their insurers may also send out specialist technical consultants and lawyers to investigate evidence in more detail.

The master has to co-operate fully with all these reporting requirements and with any official investigations but he also knows that an accident may give rise to legal liabilities and claims. The master has a duty to protect his own position and that of his crew and his owners. This can be a difficult job but there are a few, simple guidelines that will assist masters.

Completion of the Safety Management System (SMS) Report Form

This should be done as soon as practicable after an accident but allowing sufficient time to pass to ensure that all aspects of the incident have become apparent and can be addressed. As a general rule, a master should allow some time for rest and reflection before dealing with the paperwork.

The basis of any accident report and investigation is an accurate record of times and facts, and the master should maintain a chronological "Statement of Facts" all the way through any incident, or as soon as possible afterwards if it was not practicable to do this at the time. If the incident is prolonged, the Statement of Facts can be kept by a watchkeeper and checked/countersigned regularly by the master and any other key observer, such as a pilot.

The Statement of Facts should be just that - purely factual. Times, events, names and positions but nothing else. Simple diagrams always help.

The master should also try to obtain a short, contemporary report from any independent witness, such as a pilot, stevedore foreman or agent.

Once the facts are recorded and the incident is over, the Master can prepare the SMS Report Form. This should be as factual as possible. Above all, a master should avoid speculation and should not apportion blame.

Some SMS report forms have sections for recommendations arising from the accident. These sections have to be completed carefully because the most appropriate recommendations may not be apparent immediately and may only be identified after further investigation and consideration. If the Master can see a clear lesson from an accident then he should record it but, as a general rule, if the accident or any follow-up will affect other people or other ships, it is appropriate for the ship's SMS report to recommend further investigations by managers or by specialists.

Further points for masters to be aware of: 

• try to maintain a single, detailed record - avoid duplication 
• do not make any notes in a personal diary - inspectors do not respect privacy 
• photographs can be very valuable but be prepared to disclose everything on the film or memory card 
• avoid putting anything on a personal computer

Port and Flag State Investigations and Reports

Port and flag states may investigate an incident themselves or they may ask the master to complete a written report, often on their own form.

These are orders, not requests, and they have to be obeyed. However awkward the timing, masters must co-operate with all official investigations. Local P&I correspondents can assist and they can also arrange for a local lawyer to attend if that is necessary. As co-operation with investigators is key, the choice of legal adviser can be important. An over-zealous or obstructive lawyer can create more problems than he solves.

A master who is asked to complete a port or flag state written report form should give all relevant factual information which is requested and attach copies of any key documents such as the chart or the log. If asked for his opinion on the accident, a master can simply attach his own SMS Report Form (above) and refer to it.

A flag or port state surveyor conducting an investigation should be given all the assistance he needs but masters should remember the following key points:-

• Take a business card or some other form of identification from everyone you speak to.
• Keep your answers as short and as factual as possible.
• Do not express any opinion and do not try to apportion blame.
• Ask for a copy of any written statement or questions and answers which you give.

The standard of port-state investigations varies. Some states have professional investigators who will be trained and who will be working to a set plan. Other states use local officials, often the harbour master, and some flag and port states use local surveyors, who may not be trained as investigators and their work may be of a poor quality. Common features of such investigations are:-

• amateur investigators get an idea and they stick to it, 
• they concentrate too much on what the master says, without paying enough attention to alternative evidence, 
• they may be biased towards local interests.

Another feature of this type of investigation is the use of written 'questions and answers' instead of witness statements. This technique can be helpful to masters and other witnesses because it can limit the scope of the investigation. The questions are generally prepared in advance, sometimes by more senior officers and so most investigators stick to them and do not follow-up on the answers. This form of inquiry also allows a witness to give long or short answers and in their own words.

In almost every country the master and crew are under a legal obligation to co-operate with a government inspection. They cannot refuse to answer their questions but will generally be allowed to have an adviser, maybe a superintendent or a lawyer, present during the interviews. Anyone who who fulfils that role is there as a witness to what is said and to make sure that master/crew member understands the questions. It is not their job to interfere with the work of the government inspectors or to answer the questions on behalf of the person being interviewed. Representatives/advisers who interfere or who are too aggressive will be told to leave the interview.

Conclusion

All ship's documents and all SMS and ISM reports have to be shown to official investigators. They are not confidential and they do not carry any legal privilege because they are completed in compliance with owners' obligations under the ISM Code or the SMS system and not for the purposes of any legal investigation.

Even if he does not have professional advice, a master will not go far wrong if he remembers these two simple rules:-

• Keep to the facts 
• Do not speculate

 

With thanks to Eamon Moloney of Eversheds LLP for preparing this article.

UK Marine Accident Investigation Regulations 2005