When a marine casualty occurs the U.S. Coast Guard is empowered to conduct an investigation to determine “as closely as possible” the cause of the casualty, cause of any death, whether an act of misconduct, incompetence, negligence, unskillfulness, or willful violation of law committed by any licensed or certified individual or member of the Coast Guard contributed to the cause of the casualty, whether there is evidence that an act subjecting the offender to a civil or criminal penalty has been committed and whether there is a need for new laws or regulations, or amendment or appeal of existing laws or regulations. 46 U.S.C. 6301.
But what about the rights of the parties to the casualty? What is the extent of their participation in the investigation? 46 U.S.C. 6303 provides that in such an investigation parties in interest (PII) shall be allowed to be represented by counsel, cross-examine and call witnesses. PIIs include an owner, any holder of a license or certificate of registry, holder of a merchant mariner’s document, any person whose conduct is under investigation, and any other party in interest. This has been expanded to include any person who the USCG finds to have a “direct interest” into the investigation. However, in practice these guidelines do not provide much relief to the owner of a subject vessel when on-the-scene interviews and inspections by the Coast Guard are underway in the immediate wake of a significant marine casualty. The degree that the PII could actively participate and be privy to interviews, statements and other discovered evidence was largely dependent upon the discretion of the investigating officers.
In 2010, in response to industry calls for more active participation, inclusion and transparency, the Coast Guard issued CG-545 Policy Letter 3-10. In it the Coast Guard made clear that PIIs have the right to participate in “all levels of investigation”, not just formal hearings. This is important. The PII has the right to immediate participation. This includes the right to be present during interviews of all witnesses (not just those of its own crew or employees), to be present during on-scene inspections, to present evidence to the Coast Guard and request that particular witnesses be interviewed.
To be clear, however, the Policy Letter mandates that the Marine Board of Investigation or Investigating Officer (IO) are in charge of all aspects of the investigation. In order for an interested party to participate it must be recognized by the Board or IO as a PII. The IO has the prerogative to formally designate PIIs during the course of the investigation. But the party that believes it is a stakeholder in the casualty is best served by making formal application with the IO to be designated as a PII. When application is made the IO must give it due consideration. If the applicant meets the criteria found in Part 6303 and Part 2 of the Policy Letter it “shall” be given PII status. The request for PII recognition may be made verbally, but needs to be followed in writing within 24 hours. The IO’s initial designation may be verbal, but needs to be made in writing by the IO within 5 business days of receipt of the written request for PII designation.
The stakeholder needs to know that the IO is not required to designate PIIs. It is incumbent on the stakeholder to act early and promptly to contact the IO and make clear that it seeks PII status. The IO is required to notify the PII when witnesses will be interviewed, but is not obligated to accommodate the schedule of the PII. If the PII provides a witness the IO shall determine if the witness is relevant to the investigation. If the IO finds that the witness is not relevant, the witness will not be interviewed.
During interviews the IO is in charge. When the IO has completed his portion of the interview, the PII then may ask questions. The IO is empowered to determine if the questions the PII asks are relevant. If he finds that a question is not relevant it will not be allowed and the witness informed not to respond. Part 4e of the Letter provides that the rights of the PII apply only to conducting witness interviews. The IO “may” allow the PII to review any or all evidence gathered during the fact-finding portion of the investigation. The PII is not allowed to have its own copies (in any form) of any documentation (read: statements) with the exception of the names and work information of the witnesses. Additionally the IO “may” allow the PII to review the findings of fact portion of the report of investigation, but the PII is prohibited from being involved in the development or review of analysis, conclusions or recommendations for a marine casualty investigation. As is obvious, while the Policy Letter does provide for active PII participation, it does leave to the IO significant discretion what witness or evidence he will deem worthy of consideration. Irrespective of this, the PII should take every opportunity to submit witnesses and evidence it believes is favorable to its interests.
While the language in Part 4c restricts access by the PII to third-party documents such as log books, photos, witness statements and other evidence and what witnesses will be deemed relevant, in practice I have found that the on-site Coast Guard investigators more times than not want to work with industry and will share documents, provide access to evidence that is developed, and will accommodate the work schedules of witnesses and company representatives or PIIs.