prop · GY03116 · 2011-04-06 00:00:00 — 4.1 The Government of each State shall provide the Organization with detailed contact information of the safety investigation Authority(ies) carrying out safety investigations within their State. 5.1When a casualty occurs on the high seas or in an exclusive economic zone, the flag State of a ship, or ships, involved, shall notify other substantially interested States as soon as is reasonably practicable. 5.2When a casualty occurs within the territory, including the territorial sea, of a State, the flag State, and the State, shall notify each other and between them notify other substantially interested States as soon as is reasonably practicable. 5.3Notification shall not be delayed due to the lack of complete information. 5.4Format and content: The notification shall contain as much of the following information as is readily available: .1 the name of the ship and its flag State; .2 the IMO ship identification number; .3 the nature of the casualty; .4 the location of the casualty; .5 time and date of the casualty; .6 the number of any seriously injured or killed persons; .7 consequences of the casualty to individuals, property and the environment; and .8 the identification of any other ship involved. MSC 84/24/Add.1 6.1A safety investigation shall be conducted into every very serious casualty. 6.2Subject to any agreement in accordance with chapter 7, the flag State of a ship involved in a very serious casualty is responsible for ensuring that a safety investigation is conducted and completed in accordance with this Code. FLAG STATES AGREEMENT WITH ANOTHER SUBSTANTIALLY INTERESTED STATE TO CONDUCT A 7.1Without limiting the rights of States to conduct their own separate safety investigation, where a casualty occurs within the territory, including territorial sea, of a State, the flag State(s) involved in the casualty and the State shall consult to seek agreement on which State or States will be the safety investigating State(s) in accordance with a requirement, or a recommendation acted upon, to investigate under this Code. 7.2Without limiting the rights of States to conduct their own separate safety investigation, if a casualty occurs on the high seas or in the exclusive economic zone of a State, and involves more than one flag State, then the States shall consult to seek agreement on which State or States will be the safety investigating State(s) in accordance with a requirement, or a recommendation acted upon, to investigate under this Code. 7.3For a casualty referred to in paragraphs 7.1 or 7.2, agreement may be reached by the relevant States with another substantially interested State for that State or States to be the safety investigating State(s). 7.4 Prior to reaching an agreement, or if an agreement is not reached, in accordance with paragraphs 7.1, 7.2 or 7.3, then the existing obligations and rights of States under this Code, and under other international laws, to conduct a safety investigation, remain with the respective parties to conduct their own investigation. 7.5 By fully participating in a safety investigation conducted by another substantially interested State, the flag State shall be considered to fulfil its obligations under this Code, SOLAS regulation I/21 and article 94, section 7 of the United Nations Convention on the of the Sea. MSC 84/24/Add.1 POWERS OF AN INVESTIGATION 8.1 All States shall ensure that their national laws provide investigator(s) carrying out a safety investigation with the ability to board a ship, interview the and crew and any other person involved, and acquire evidential material for the purposes of a safety investigation. 9.1Where the safety investigating State(s) is conducting a safety investigation under this Code, nothing prejudices the right of another substantially interested State to conduct its own separate safety investigation. 9.2While recognizing that the safety investigating State(s) shall be able to fulfil obligations under this Code, the safety investigating State(s) and any other substantially interested State conducting a safety investigation shall seek to co-ordinate the timing of their investigations, to avoid conflicting demands upon witnesses and access to evidence, where possible. 10.1 All substantially interested States shall co-operate with the safety investigating State(s) to the extent practicable. The safety investigating State(s) shall provide for the participation of the substantially interested States to the extent practicable*. INVESTIGATION NOT TO BE SUBJECT TO EXTERNAL DIRECTION 11.1 safety investigating State(s) shall ensure that investigator(s) carrying out a safety investigation are impartial and objective. The safety investigation shall be able to report on the results of a safety investigation without direction or interference from any persons or organizations who may be affected by its outcome. *The reference to extent practicable may be taken to mean, as an example, that co-operation or participation is limited because national laws make it impracticable to fully co-operate or participate. MSC 84/24/Add.1 OBTAINING EVIDENCE FROM SEAFARERS 12.1Where a safety investigation requires a seafarer to provide evidence to it, the evidence shall be taken at the earliest practical opportunity. The seafarer shall be allowed to return to his/her ship, or be repatriated at the earliest possible opportunity. The seafarers human rights shall, at all times, be upheld. 12.2All seafarers from whom evidence is sought shall be informed of the nature and basis of the safety investigation. Further, a seafarer from whom evidence is sought shall be informed, and allowed access to legal advice, regarding: .1 any potential risk that they may incriminate themselves in any proceedings subsequent to the safety investigation; .2 any right not to self-incriminate or to remain silent; .3 any protections afforded to the seafarer to prevent the evidence being used against them if they provide the evidence to the safety investigation. 13.1Subject to paragraphs 13.2 and 13.3, where it is requested, the safety investigating State(s) shall send a copy of a draft report to a substantially interested State to allow the substantially interested State to make comment on the draft report. 13.2Marine safety investigating State(s) are only bound to comply with paragraph 13.1 where the substantially interested State receiving the report guarantees not to circulate, nor cause to circulate, publish or give access to the draft report, or any part thereof, without the express consent of the safety investigating State(s) or unless such reports or documents have already been published by the safety investigating State(s). 13.3The safety investigating State(s) are not bound to comply with paragraph 13.1 if: .1 the safety investigating State(s) request that the substantially interested State receiving the report to affirm that evidence included in the draft report will not be admitted in civil or criminal proceedings against a person who gave the evidence; and .2 the substantially interested State refuses to provide such an affirmation. 13.4The safety investigating State(s) shall invite the substantially interested States to submit their comments on the draft report within 30 days or some other mutually agreed period. The safety investigating State(s) shall consider the comments before preparing the final report and where the acceptance or rejection of the comments will have direct impact on the interests of the State that submitted them, the safety investigating State(s) MSC 84/24/Add.1 shall notify the substantially interested State of the in which the comments were addressed. If the safety investigating State(s) receives no comments after the 30 days or the mutually agreed period has expired, then it may proceed to finalize the report. 13.5 The safety investigating State(s) shall seek to fully verify the accuracy and completeness of the draft report by the most practical means. 14.1 The safety investigating State(s) shall submit the final version of a safety investigation report to the Organization for every safety investigation conducted into a very serious casualty. 14.2 Where a safety investigation is conducted into a casualty or incident, other than a very serious casualty, and a safety investigation report is produced which contains information which may prevent or lessen the seriousness of casualties or incidents in the future, the final version shall be submitted to the Organization. 14.3The safety investigation report referred in paragraphs 14.1 and 14.2 shall utilize all the information obtained during a safety investigation, taking into account its scope, required to ensure that all the relevant safety issues are included and understood so that safety action can be taken as necessary. 14.4The final safety investigation report shall be made available to the public and the industry by the safety investigating State(s), or the safety investigating State(s) shall undertake to assist the public and the industry with details, necessary to access the report, where it is published by another State or the Organization. 15.1States should ensure that safety investigating Authorities have available to them sufficient material and financial resources and suitably qualified personnel to enable them to facilitate the States obligations to undertake safety investigations into casualties and incidents under this Code. 15.2Any investigator forming part of a safety investigation should be appointed on the basis of the skills outlined in resolution A.996(25) for investigators. MSC 84/24/Add.1 15.3However, paragraph 15.2 does not preclude the appropriate appointment of investigators with necessary specialist skills to form part of a safety investigation on a temporary basis, neither does it preclude the use of consultants to provide expert advice on any aspect of a safety investigation. 15.4Any person who is an investigator, in a safety investigation, or assisting a safety investigation, should be bound to operate in accordance with this Code. 16.1 Independence: A safety investigation should be unbiased to ensure the free flow of information to it. 16.1.1 In order to achieve the outcome in paragraph 16.1, the investigator(s) carrying out a safety investigation should have functional independence from: .1 the parties involved in the casualty or incident; .2 anyone who may make a decision to take administrative or disciplinary action against an individual or organization involved in a casualty or incident; and .3 judicial proceedings; 16.1.2 The investigator(s) carrying out a safety investigation should be free of interference from the parties in .1, .2 and .3 of paragraph 16.1.1 with respect to: .1 the gathering of all available information relevant to the casualty or incident, including voyage data recordings and traffic services recordings; .2 analysis of evidence and the determination of causal factors; .3 drawing conclusions relevant to the causal factors; .4 distributing a draft report for comment and preparation of the final report; and .5 if appropriate, the making of safety recommendations. 16.2 Safety focused: It is not the objective of a safety investigation to determine liability, or apportion blame. However, the investigator(s) carrying out a safety investigation should not refrain from fully reporting on the causal factors because fault or liability may be inferred from the findings. MSC 84/24/Add.1 16.3Co-operation: Where it is practicable and consistent with the requirements and recommendations of this Code, in particular chapter 10 on Co-operation, the safety investigating State(s) should seek to facilitate maximum co-operation between substantially interested States and other persons or organizations conducting an investigation into a casualty or incident. 16.4Priority: A safety investigation should, as far as possible, be afforded the same priority as any other investigation, including investigations by a State for criminal purposes being conducted into the casualty or incident. 16.4.1In accordance with paragraph 16.4 investigator(s) carrying out a safety investigation should not be prevented from having access to evidence in circumstances where another person or organization is carrying out a separate investigation into a casualty or incident. 16.4.2The evidence for which ready access should be provided should include: .1 survey and other records held by the flag State, the owners, and classification societies; .2 all recorded data, including voyage data recorders; and .3 evidence that may be provided by government surveyors, coastguard officers, traffic service operators, pilots or other personnel. 16.5 Scope of a safety investigation: Proper identification of causal factors requires timely and methodical investigation, going far beyond the immediate evidence and looking for underlying conditions, which may be remote from the site of the casualty or incident, and which may cause other future casualties and incidents. safety investigations should therefore be seen as a means of identifying not only immediate causal factors but also failures that may be present in the whole chain of responsibility. (OTHER THAN ) AND 17.1A safety investigation should be conducted into casualties (other than very serious casualties which are addressed in chapter 6 of this Code) and incidents, by the flag State of a ship involved, if it is considered likely that a safety investigation will provide information that can be used to prevent casualties and incidents in the future. 17.2Chapter 7 contains the mandatory requirements for determining who the safety investigating State(s) are for a casualty. Where the occurrence being investigated in accordance with this chapter is a incident, chapter 7 should be followed as a recommended practice as if it referred to incidents. MSC 84/24/Add.1 FACTORS THAT SHOULD BE TAKEN INTO ACCOUNT WHEN SEEKING AGREEMENT UNDER CHAPTER 7 OF PART II 18.1 When the flag State(s), a State (if involved) or other substantially interested States are seeking to reach agreement, in accordance with chapter 7 of Part II on which State or State(s) will be the safety investigating State(s) under this Code, the following factors should be taken into account: .1 whether the casualty or incident occurred in the territory, including territorial sea, of a State; .2 whether the ship or ships involved in a casualty or incident occurring on the high seas, or in the exclusive economic zone, subsequently sail into the territorial sea of a State; .3 the resources and commitment required of the flag State and other substantially interested States; .4 the potential scope of the safety investigation and the ability of the flag State or another substantially interested State to accommodate that scope; .5 the need of the investigator(s) carrying out a safety investigation to access evidence and consideration of the State or States best placed to facilitate that access to evidence; .6 any perceived or actual adverse effects of the casualty or incident on other States; .7 the nationality of the crew, passengers and other persons affected by the casualty or incident. ACTS OF UNLAWFUL INTERFERENCE 19.1 If in the course of a safety investigation it becomes known or is suspected that an offence is committed under articles 3, 3bis, 3ter or 3quarter of the Convention for the Suppression of Unlawful Acts Against the Safety of Navigation, 1988, the safety investigation Authority should immediately seek to ensure that the security Authorities of the State(s) concerned are informed. MSC 84/24/Add.1 NOTIFICATION TO PARTIES INVOLVED AND COMMENCEMENT 20.1 When a safety investigation is commenced under this Code, the , the owner and agent of a ship involved in the casualty or incident being investigated, should be informed as soon as practicable of: .1 the casualty or incident under investigation; .2 the time and place at which the safety investigation will commence; .3 the name and contact details of the safety investigation Authority(ies); .4 the relevant details of the legislation under which the safety investigation is being conducted; .5 the rights and obligations of the parties subject to the safety investigation; and .6 the rights and obligations of the State or States conducting the safety investigation. 20.2Each State should develop a standard document detailing the information in paragraph 20.1 that can be transmitted electronically to the , the agent and the owner of the ship. 20.3Recognizing that any ship involved in a casualty or incident may continue in service, and that a ship should not be delayed more than is absolutely necessary, the safety investigating State(s) conducting the safety investigation should start the safety investigation as soon as is reasonably practicable, without delaying the ship unnecessarily. 21.1The recommendations in this chapter should be applied in accordance with the principles in chapters 10 and 11 of this Code. 21.2The safety investigating State(s) should ensure that there is an appropriate framework within the State for: .1 the designation of investigators to the safety investigation including an investigator to lead the safety investigation; .2 the provision of a reasonable level of support to members of the safety investigation; MSC 84/24/Add.1 .3 the development of a strategy for the safety investigation in liaison with other substantially interested States; .4 ensuring the methodology followed during the safety investigation is consistent with that recommended in resolution A.884(21), as amended; .5 ensuring the safety investigation takes into account any recommendations or instruments published by the Organization or , relevant to conducting a safety investigation; and .6 ensuring the safety investigation takes into account the safety management procedures and the safety policy of the operator of a ship in terms of the ISM Code. 21.3 The safety investigating State(s) should allow a substantially interested State to participate in aspects of the safety investigation relevant to it, to the extent practicable. 21.3.1 Participation should include allowing representatives of the substantially interested State to: .1 interview witnesses; .2 view and examine evidence and make copies of documents; .3 make submissions in respect of the evidence, comment on and have their views properly reflected in the final report; and .4 be provided with the draft and final reports relating to the safety investigation*. 21.4To the extent practical, substantially interested States should assist the safety investigating State(s) with access to relevant information for the safety investigation. To the extent practical, the investigator(s) carrying out a safety investigation should also be afforded access to Government surveyors, coastguard officers, ship traffic service operators, pilots and other personnel of a substantially interested State. 21.5The flag State of a ship involved in a casualty or incident should help to facilitate the availability of the crew to the investigator(s) carrying out the safety investigation. 22.1 A safety investigating State(s) should not unnecessarily detain a ship for the collection of evidence from it or have original documents or equipment removed unless this is *The reference to extent practical may be taken to mean, as an example, that co-operation or participation is limited because national laws make it impractical to fully co-operate or participate. MSC 84/24/Add.1 essential for the purposes of the safety investigation. Investigators should make copies of documents where practicable. 22.2Investigator(s) carrying out a safety investigation should secure records of interviews and other evidence collected during a safety investigation in a which prevents access by persons who do not require it for the purpose of the investigation. 22.3Investigator(s) carrying out the safety investigation should make effective use of all recorded data including voyage data recorders if fitted. Voyage data recorders should be made available for downloading by the investigator(s) carrying out a safety investigation or an appointed representative. 22.3.1 In the event that the safety investigating State(s) do not have adequate facilities to read a voyage data recorder, States with such a capability should offer their services having due regard to the: .1 available resources; .2 capabilities of the readout facility; .3 timeliness of the readout; and .4 location of the facility. 23.1 States should ensure that investigator(s) carrying out a safety investigation only disclose information from a safety record where: .1 it is necessary or desirable to do so for transport safety purposes and any impact on the future availability of safety information to a safety investigation is taken into account; or .2 as otherwise permitted in accordance with this Code*. 23.2 States involved in safety investigation under this Code should ensure that any safety record in its possession is not disclosed in criminal, civil, disciplinary or administrative proceedings unless: *States recognize that there are merits in information from a safety record confidential where it needs to be shared with people outside the safety investigation for the purpose of conducting the safety investigation. An example is where information from a safety record needs to be provided to an external expert for their analysis or second opinion. Confidentiality would seek to ensure that sensitive information is not inappropriately disclosed for purposes other than the safety investigation, at a time when it has not been determined how the information will assist in determining the contributing factors in a casualty or incident. Inappropriate disclosure may infer blame or liability on the parties involved in the casualty or incident. MSC 84/24/Add.1 the appropriate authority for the administration of in the State determines that any adverse domestic or international impact that the disclosure of the information might have on any current or future safety investigations is outweighed by the public interest in the administration of ; and* where appropriate in the circumstances, the State which provided the safety record to the safety investigation authorizes its disclosure. 23.3Marine safety 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. 23.4States need only supply information from a safety record to a substantially interested State where doing so will not undermine the integrity and credibility of any safety investigation being conducted by the State or States providing the information. 23.4.1 supplying the information from a safety record may require that the State receiving the information undertake to keep it confidential. PROTECTION FOR WITNESSES AND INVOLVED PARTIES 24.1If a person is required by law to provide evidence that may incriminate them, for the purposes of a safety investigation, the evidence should, so far as national laws allow, be prevented from admission into evidence in civil or criminal proceedings against the individual. 24.2A person from whom evidence is sought should be informed about the nature and basis of the investigation. A person from whom evidence is sought should be informed, and allowed access to legal advice, regarding: .1 any potential risk that they may incriminate themselves in any proceedings subsequent to the safety investigation; .2 any right not to self-incriminate or to remain silent; .3 any protections afforded to the person to prevent the evidence being used against them if they provide the evidence to the safety investigation. *Examples of where it may be appropriate to disclose information from a safety record in criminal, civil, disciplinary or administrative proceedings may include: