sou · GYB323d2 · 2011-01-01 00:00:00 — NOTING ALSO that the safety of seafarers and passengers and the protection of the environment can be enhanced by timely and accurate reports identifying the circumstances and causes of casualties and incidents, NOTING FURTHER the importance of the United Nations Convention on the of the Sea, done at on , and of the customary international law of the sea, NOTING IN ADDITION the responsibilities of flag States under the provisions of the International Convention for the Safety of Life at Sea, 1974 (regulation I/21) (hereinafter referred to as the Convention), the International Convention on , 1966 (article 23) and the International Convention for the Prevention of Pollution from Ships, 1973 (article 12), to conduct casualty investigations and to supply the Organization with relevant findings, CONSIDERING the need to ensure that all very serious casualties are investigated, CONSIDERING ALSO the Guidelines on fair treatment of seafarers in the event of a accident (resolution A.987(24)), ACKNOWLEDGING that the investigation and proper analysis of casualties and incidents can lead to greater awareness of casualty causation and result in remedial measures, including better training, for the purpose of enhancing safety of life at sea and protection of the environment, RECOGNIZING the need for a code to provide, as far as national laws allow, a standard approach to casualty and incident investigation with the objective of preventing casualties and incidents in the future, MSC 84/24/Add.1 RECOGNIZING ALSO the international nature of and the need for co-operation between Governments having a substantial interest in a casualty or incident for the purpose of determining the circumstances and causes thereof, NOTING resolution MSC.257(84) by which it adopted amendments to chapter XI-1 of the Convention to make parts I and II of the Code of the International Standards and Recommended Practices for a Safety Investigation into a or mandatory under the Convention, HAVING CONSIDERED, at its eighty-fourth session, the text of the proposed Casualty Investigation Code, 1.ADOPTS the Code of the International Standards and Recommended Practices for a Safety Investigation into a or (Casualty Investigation Code), set out in the to the present resolution; 2.INVITES Contracting Governments to the Convention to note that the Code will take effect on [1 January 2010] upon entry into force of the amendments to regulation XI-1/6 of the Convention; 3.REQUESTS the Secretary-General of the Organization to transmit certified copies of the present resolution and the text of the Code contained in the to all Contracting Governments to the Convention; 4.FURTHER REQUESTS the Secretary-General of the Organization to transmit copies of the present resolution and the text of the Code contained in the to all Members of the Organization which are not Contracting Governments to the Convention. MSC 84/24/Add.1 CODE OF THE INTERNATIONAL STANDARDS AND RECOMMENDED PRACTICES FOR A SAFETY INVESTIGATION INTO A (CASUALTY INVESTIGATION CODE) Part I – General provisions Application of chapters in Part II and III Part II – Mandatory standards Requirement to investigate very serious casualties Flag States agreement with another substantially interested State to conduct a safety investigation Powers of an investigation Investigation not to be subject to external direction Obtaining evidence from seafarers Draft safety investigation reports Part III – Recommended practices Investigation of casualties (other than very serious casualties) and incidents Factors that should be taken into account when seeking agreement under chapter 7 of Part II Acts of unlawful interference Notification to parties involved and commencement of an Protection for witnesses and involved parties Draft and final report MSC 84/24/Add.1 1 This Code incorporates and builds on the best practices in casualty and incident investigation that were established by the Code for the Investigation of and Incidents, adopted in by the (the Organization), by resolution A.849(20). The Code for the Investigation of and Incidents sought to promote co-operation and a common approach to casualty and incident investigations between States. 2The Organization has encouraged co-operation and recognition of mutual interest through a number of resolutions. The first was resolution A.173(ES.IV) (Participation in Official Inquiries into Casualties) adopted in . Other resolutions followed including: resolution A.322 (The Conduct of Investigations into Casualties) adopted in ; resolution A.440(XI) (Exchange of Information for Investigations into ) and resolution A.442(XI) (Personnel and Needs of Administrations for the Investigation of Casualties and the Contravention of Conventions), both adopted in ; resolution A.637(16) (Co-operation in Casualty Investigations) adopted in 1989. 3These individual resolutions were amalgamated and expanded by the Organization with the adoption of the Code for the Investigation of and Incidents. Resolution A.884(21) (Amendments to the Code for the Investigation of and Incidents resolution A.849(20)), adopted in , enhanced the Code by providing guidelines for the investigation of human factors. 4The International Convention for the Safety of Life at Sea (SOLAS), 1948, included a provision requiring flag to conduct investigations into any casualty suffered by a ship of its flag if an investigation may assist in identifying regulatory issues as a contributing factor. This provision was retained in the 1960 and 1974 SOLAS Conventions. It was also included in the International Convention on , 1966. Further, flag States are required to inquire into certain casualties and incidents occurring on the high seas*. 5The sovereignty of a State extends beyond its land and inland waters to the extent of its territorial sea**. This jurisdiction gives the State an inherent right to investigate casualties and incidents connected with its territory. Most national Administrations have legal provisions to cover the investigation of a incident within its inland waters and territorial sea, regardless of the flag. *Reference is made to the United Nations Convention on the of the Sea (UNCLOS), article 94(7) or requirements of international and customary laws. **Reference is made to the United Nations Convention on the of the Sea (UNCLOS), article 2 or requirements of international and customary laws. MSC 84/24/Add.1 6 Most recently, the International Labour Organizations Labour Convention, 2006 (which has not yet come into force), provides a provision for the investigation of some serious casualties as well as setting out working conditions for seafarers. Recognizing the need for special protection for seafarers during an investigation, the Organization adopted, in , in the Event of a Accident through resolution A.987(24). The Guidelines were promulgated by the IMO and the on 1 2006. Adoption of the Code 7 Since the adoption of the first SOLAS Convention, there have been extensive changes in the structure of the international industry and changes in international law. These changes have potentially increased the number of States with an interest in the process and outcomes of safety investigations, in the event of a casualty or incident, increasing the potential for jurisdictional and other procedural differences between affected States. 8 This Code, while it specifies some mandatory requirements, recognizes the variations in international and national laws in relation to the investigation of casualties and incidents. The Code is designed to facilitate objective safety investigations for the benefit of flag States, States, the Organization and the industry in general. MSC 84/24/Add.1 1.1 The objective of this Code is to provide a common approach for States to adopt in the conduct of safety investigations into casualties and incidents. safety investigations do not seek to apportion blame or determine liability. Instead a safety investigation, as defined in this Code, is an investigation conducted with the objective of preventing casualties and incidents in the future. The Code envisages that this aim will be achieved through States: .1 applying consistent methodology and approach, to enable and encourage a broad ranging investigation, where necessary, in the interests of uncovering the causal factors and other safety risks; and .2 providing reports to the Organization to enable a wide dissemination of information to assist the international industry to address safety issues. 1.2A safety investigation should be separate from, and independent of, any other form of investigation. However, it is not the purpose of this Code to preclude any other form of investigation, including investigations for action in civil, criminal and administrative proceedings. Further, it is not the intent of the Code for a State or States conducting a safety investigation to refrain from fully reporting on the causal factors of a casualty or incident because blame or liability, may be inferred from the findings. 1.3This Code recognizes that under the Organizations instruments, each flag State has a duty to conduct an investigation into any casualty occurring to any of its ships, when it judges that such an investigation may assist in determining what changes in the present regulations may be desirable, or if such a casualty has produced a major deleterious effect upon the environment. The Code also takes into account that a flag State shall* cause an inquiry to be held, by or before a suitably qualified person or persons into certain casualties or incidents of navigation on the high seas. However, the Code also recognizes that where a casualty or incident occurs within the territory, including the territorial sea, of a State, that State has a right** to investigate the cause of any such casualty or incident which might pose a risk to life or to the environment, involve the States search and rescue authorities, or otherwise affect the State. *Reference is made to the United Nations Convention on the of the Sea (UNCLOS), article 94 or requirements of international and customary laws. **Reference is made to the United Nations Convention on the of the Sea (UNCLOS), article 2 or requirements of international and customary laws. MSC 84/24/Add.1 When the following terms are used in the mandatory standards and recommended practices for safety investigations they have the following meaning. 2.1An agent means any person, natural or legal, engaged on behalf of the owner, charterer or operator of a ship, or the owner of the cargo, in providing services, including managing arrangements for the ship being the subject of a safety investigation. 2.2A causal factor means actions, omissions, events or conditions, without which: .1 the casualty or incident would not have occurred; or .2 adverse consequences associated with the casualty or incident would probably not have occurred or have been as serious; .3 another action, omission, event or condition, associated with an outcome in .1 or .2, would probably not have occurred. 2.3A State means a State in whose territory, including its territorial sea, a casualty or incident occurs. 2.4Exclusive economic zone means the exclusive economic zone as defined by article 55 of the United Nations Convention on the of the Sea. 2.5Flag State means a State whose flag a ship is entitled to fly. 2.6High seas means the high seas as defined in article 86 of the United Nations Convention on the of the Sea. 2.7Interested party means an organization, or individual, who, as determined by the safety investigating State(s), has significant interests, rights or legitimate expectations with respect to the outcome of a safety investigation. 2.8International () Code means the International Management Code for the Safe Operation of Ships and for Pollution Prevention as adopted by the Organization by resolution A.741(18), as amended. 2.9A casualty means an event, or a sequence of events, that has resulted in any of the following which has occurred directly in connection with the operations of a ship: .1 the death of, or serious injury to, a person; .2 the loss of a person from a ship; .3 the loss, presumed loss or abandonment of a ship; .4 material damage to a ship; MSC 84/24/Add.1 .5 the stranding or disabling of a ship, or the involvement of a ship in a collision; .6 material damage to infrastructure external to a ship, that could seriously endanger the safety of the ship, another ship or an individual; or .7 severe damage to the environment, or the potential for severe damage to the environment, brought about by the damage of a ship or ships. However, a casualty does not include a deliberate act or omission, with the intention to cause harm to the safety of a ship, an individual or the environment. 2.10 A incident means an event, or sequence of events, other than a casualty, which has occurred directly in connection with the operations of a ship that endangered, or, if not corrected, would endanger the safety of the ship, its occupants or any other person or the environment. However, a incident does not include a deliberate act or omission, with the intention to cause harm to the safety of a ship, an individual or the environment. 2.11A safety investigation means an investigation or inquiry (however referred to by a State), into a casualty or incident, conducted with the objective of preventing casualties and incidents in the future. The investigation includes the collection of, and analysis of, evidence, the identification of causal factors and the making of safety recommendations as necessary. 2.12A safety investigation report means a report that contains: .1 a summary outlining the basic facts of the casualty or incident and stating whether any deaths, injuries or pollution occurred as a result; .2 the identity of the flag State, owners, operators, the company as identified in the safety management certificate, and the classification society (subject to any national laws concerning privacy); .3 where relevant the details of the dimensions and engines of any ship involved, together with a description of the crew, work routine and other matters, such as time served on the ship; .4 a narrative detailing the circumstances of the casualty or incident; .5 analysis and comment on the causal factors including any mechanical, human and organizational factors; a discussion of the safety investigations findings, including the identification of safety issues, and the safety investigations conclusions; where appropriate, recommendations with a view to preventing future casualties and incidents. MSC 84/24/Add.1 2.13Marine safety investigation Authority means an Authority in a State, responsible for conducting investigations in accordance with this Code. 2.14Marine safety investigating State(s) means the flag State or, where relevant, the State or States that take the responsibility for the conduct of the safety investigation as mutually agreed in accordance with this Code. 2.15A safety record means the following types of records collected for a safety investigation: all statements taken for the purpose of a safety investigation; all communications between persons pertaining to the operation of the ship; all or private information regarding persons involved in the casualty or incident; all records of the analysis of information or evidential material acquired in the course of a safety investigation; information from the voyage data recorder. 2.16A material damage in relation to a casualty means: .1 damage that: .1.1 significantly affects the structural integrity, performance or operational characteristics of infrastructure or a ship; and .1.2 requires major repair or replacement of a major component or components; or .2 destruction of the infrastructure or ship. 2.17A seafarer means any person who is employed or engaged or works in any capacity on board a ship. 2.18A serious injury means an injury which is sustained by a person, resulting in incapacitation where the person is unable to function normally for more than 72 hours, commencing within seven days from the date when the injury was suffered. 2.19A severe damage to the environment means damage to the environment which, as evaluated by the State(s) affected, or the flag State, as appropriate, produces a major deleterious effect upon the environment. MSC 84/24/Add.1 2.20Substantially interested State means a State: .1 which is the flag State of a ship involved in a casualty or incident; or .2 which is the State involved in a casualty or incident; or .3 whose environment was severely or significantly damaged by a casualty (including the environment of its waters and territories recognized under international law); or .4 where the consequences of a casualty or incident caused, or threatened, serious harm to that State or to artificial , installations, or structures over which it is entitled to exercise jurisdiction; or .5 where, as a result of a casualty, nationals of that State lost their lives or received serious injuries; or .6 that has important information at its disposal that the safety investigating State(s) consider useful to the investigation; or .7 that for some other reason establishes an interest that is considered significant by the safety investigating State(s). 2.21 Territorial sea means territorial sea as defined by Section 2 of Part II of the United Nations Convention on the of the Sea. 2.22 A very serious casualty means a casualty involving the total loss of the ship or a death or severe damage to the environment. APPLICATION OF CHAPTERS IN PARTS II AND III 3.1Part II of this Code contains mandatory standards for safety investigations. Some apply only in relation to certain categories of casualties and are mandatory only for safety investigations into those casualties. 3.2Clauses in Part III of this Code may refer to in this part that apply only to certain casualties. The in Part III may recommend that such be applied in safety investigations into other casualties or incidents. MSC 84/24/Add.1 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;