Expansion of the Accident Investigation Board's duty to investigate maritime accidents
New duty to secure evidence
Time limit for issuing reports
Fair treatment of seafarers
Comment
The Ministry of Trade and Industry has proposed amendments to the Maritime Code regarding casualty investigations. Changes include an increased investigative duty on the Accident Investigation Board, a duty to secure evidence after an accident for anyone involved and a 12-month time limit for issuing casualty reports. The amendments implement EU Directive 2009/18/EC and are expected to be adopted in early 2012.
Expansion of the Accident Investigation Board's duty to investigate maritime accidents
The amendments include a notable expansion of the type of accidents that the board will be required to investigate. All accidents defined as 'very serious maritime accidents' must be investigated when involving a Norwegian vessel, occurring in Norwegian waters or when they have an impact on significant Norwegian interests. Significant interests include accidents where Norwegian seafarers or passengers are lost. Maritime accidents are 'very serious' when they result in the total loss of the vessel, loss of life or significant environmental damage. This is a change to the current position where the board is required to investigate only when there is loss of life.
The directive also introduces the concept of preliminary investigations. Under the new rules, the board will be required to carry out preliminary investigations of all accidents defined as 'serious'. The purpose is to determine whether to launch a full investigation. These changes will significantly increase the board's workload and, as a consequence, the board's maritime section has been strengthened with two additional inspectors.
New duty to secure evidence
Another change is the duty to secure evidence, which falls on anyone involved in a maritime accident. Evidence must be collected as quickly as the circumstances permit and includes "all evidence which may be necessary in relation to the safety investigation". Certain types of evidence should always be secured (as listed in the provision), such as charts, log books, the voyage data recorder and electronic equipment. To what extent other objects or documents could be relevant as evidence, and thus should be secured, must be determined by those involved exercising their best judgement. The ministry encourages ship owners to establish internal guidelines outlining this duty more precisely.
The duty to secure evidence supplements the existing duties on parties involved in a maritime accident, namely, to notify the authorities of the accident and to give statements to the board. As with these other duties, a breach of the duty to secure evidence does not carry any sanctions. In the event of criminal proceedings against the master, crew or owners, it is possible that the courts may consider breach of such duties as aggravating circumstances when determining an appropriate sentence.
Time limit for issuing reports
The new rules impose a 12-month deadline for the board to finalise and issue its reports. If the board is unable to complete the report within this deadline, a preliminary report must be issued. This is a positive development. It is important that reports are published promptly to ensure expedient implementation of ship safety improvements. Protracted investigations also place a considerable burden on the parties involved and on the relatives of those lost at sea.
Fair treatment of seafarers
The amendments also introduce the first reference in Norwegian legislation to the International Maritime Organisation's guidelines on the fair treatment of seafarers. The board will be obliged to take the guidelines into account when conducting its investigation. There is, however, no absolute duty to comply with the guidelines and conflicting considerations may prevail. In the amendments' preparatory works, the ministry acknowledged the significant strain an investigation may impose on seafarers, who often are far from home.
Comment
It remains to be seen to what extent this 'soft' reference will influence the board's investigations in practice. From a legal perspective, a similar reference should be incorporated into the Criminal Procedure Code and the Prosecution Instructions, as a criminal investigation in a foreign country arguably may be as difficult an experience for seafarers as a board investigation.
For further information on this topic please contact Ena Barder, Nina MH Hanevold, Morten Lund Mathisen or Gaute Gjelsten at Wikborg Rein' by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email ([email protected], [email protected], [email protected] or [email protected]).