As a branch of the United States Armed Forces, the United States Coast Guard (USCG) is known for being a multi-mission service incorporating military and maritime forces and one which is also described as having a maritime law enforcement mission. Information identified by the USCG during the course of their investigation into a maritime casualty may be made available and used for adversarial purposes in a claim.
In January 2010 the USCG issued CG-545 Policy Letter 3-10 (“the Policy”) which was intended to provide more accessible guidelines to “Parties-In Interest” as to their rights during USCG investigations. The Policy specifically addresses the rights of when and how these parties may participate in USCG investigations and the materials they are entitled to access and review.
Review of the Policy suggests that it provides Parties-In-Interest with greater investigative powers than were previously held. To date, and before the policy was implemented, requests to participate in an investigation often went unheard and in some instances were denied. The revised policy grants Parties-In-Interest leave to participate in the interviews of key personnel and other aspects of the investigation.
CG-545 defines “Parties-In-Interest” as “owners, agents of owners, or charterers of vessels involved in marine casualties, individual holders of merchant mariners documents whose conduct is under investigation by a Marine Board of Investigation or Coast Guard Investigating Officer and anyone else whose conduct is under investigation or whom the Board or Investigating Officer finds to have a direct interest in the investigations”.
Historically the USCG made it very difficult for Parties-in-Interest to gain access to the information gathered during its investigations. A Party-in-Interest was often faced with prohibitively large volumes of bureaucratic policy when a request for information was made. The reason behind such bureaucratic barriers was perhaps to prevent the information which was collected during marine safety investigations from being used for purposes other than that for which it was intended; such information was used to gain an understanding of the circumstances of a marine casualty rather than acting as a means of apportioning blame between the parties involved.
Policy Letter 3-10 can be found in Title 46, section 4.03-10 of the Code of Federal Regulations. The key changes to note are:
1. A Party-in-Interest now has the right to retain counsel;
2. A Party–in-Interest has the right to obtain certain factual materials gathered by the Coast Guard concerning the investigation; and
3. A Party-in-Interest has the right to cross-examine witnesses who are interviewed by the Board or Investigation Officer in connection with the Coast Guard’s investigation in to the casualty.
To be involved in any of the abovementioned changes, the prospective Party-in-Interest must comply with the following requirements:
- The Coast Guard Investigating Officer must designate that the Party-in-Interest does fall within the definition noted above. This is a compulsory requirement which must be adhered to regardless of the type of investigation being undertaken.
- The Party-in-Interest must make a written or verbal request (preferably both) to the Investigating Officer or Board that they issue them a “Party-in-Interest designation”. The purpose of making such a request and designation being to reserve the Party-in-Interest’s rights to appeal.
- From the date of receipt of the request for such a designation, the USCG must issue a formal letter granting the “Party-In-interest Designation” within five business working days.
Once the designations have been given, the Party-in-Interest’s investigation and fact gathering mission may begin.
As detailed, pursuant to CG-545, a Party-in-Interest may now participate in witness interviews. The USCG is obliged to notify the Party-in-Interest if they (the USCG) wish to conduct any witness interviews before the interview takes place. Once notified, the Party-in-Interest is given the opportunity to attend and question the witness. The Investigating Officer retains “control” of the interview and is allowed to interject should the questions asked by the Party-in-Interest or their counsel be considered inappropriate. It is to be expected that the Investigating Officer will decide what may be an inappropriate question or line of questioning.
Subject to approval from the Investigating Officer, Parties-in-Interest may be allowed to review any or all of the information gathered by the USCG during the “fact-finding” part of an investigation. If a Party-in-Interest is granted access to such material, the possibility exists that the Party-in-Interest may use such information for the cross-examination of a witness. Such a scenario may now be thought to resemble that of a court room.
From the point of view of a legitimate Party-In-Interest, it would seem that the Policy should be a welcomed change. Prior to the implementation of this policy Parties-in-Interest had no opportunity to take part in an investigation that concerned them. Indeed, if any requests for information were made it was not uncommon for such requests to go unheard, ignored or even denied.
That said, the USCG’s primary purpose in marine casualty investigations is to ascertain the facts leading up to, during and after a marine accident and not to identify or apportion fault. One cannot help but wonder whether by granting such freedom of access to the USCG’s investigation findings the policy invites temptation for concerned parties to use the information available to attempt to apportion blame between one another before even beginning to pursue a claim in litigation via the discovery process.
Article by Aneeka Jayawardena
