sou · GYB323d2 · 2011-01-01 00:00:00 — .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: 1where a person the subject of the proceedings has engaged in conduct with the intention to cause a destructive result; or 2where a person the subject of the proceedings has been aware of a substantial risk that a destructive result will occur and having regard to the circumstances known to him or her it is unjustifiable to take the risk. MSC 84/24/Add.1 DRAFT AND FINAL REPORT 25.1Marine safety investigation reports from a safety investigation should be completed as quickly as practicable. 25.2Where it is requested, and where practicable, the safety investigating State(s) should send a copy of a draft safety investigation report for comment to interested parties. However, this recommendation does not apply where there is no guarantee that the interested party will not circulate, nor cause to circulate, publish or give access to the draft safety investigation report, or any part thereof, without the express consent of the safety investigating State(s). 25.3The safety investigating State(s) should allow the interested party 30 days or some other mutually agreed time to submit their comments on the safety investigation report. The safety investigating State(s) should consider the comments before preparing the final safety investigation report and where the acceptance or rejection of the comments will have direct impact on the interests of the interested party that submitted them, the safety investigating State(s) should notify the interested party of the in which the comments 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 safety investigation report*. 25.4Where it is permitted by the national laws of the State preparing the safety investigation report, the draft and final report should be prevented from being admissible in evidence in proceedings related to the casualty or incident that may lead to disciplinary measures, criminal conviction or the determination of civil liability. 25.5At any stage during a safety investigation interim safety measures may be recommended. 25.6Where a substantially interested State disagrees with the whole or a part of a final safety investigation report, it may submit its own report to the Organization. 26.1 safety investigating State(s) which have completed a safety investigation, should reconsider their findings and consider re-opening the investigation when new evidence is presented which may materially alter the analysis and conclusions reached. *See chapter 13 where provisions with respect to providing interested parties with reports on request may alternatively be included as a mandatory provision. MSC 84/24/Add.1 26.2 When significant new evidence relating to any casualty or incident is presented to the safety investigating State(s) that have completed a safety investigation, the evidence should be fully assessed and referred to other substantially interested States for appropriate input. 1 kap. 5 § FSL, 2 § lagen (2003:367) om lastning och lossning av bulk- fartyg, 1 kap. 4 § TSFS 7 kap. 11 § första och Ändring av 9 kap. 1 § tredje stycket FSL, 9 kap. FSF, 9 kap. 4 § FSF 1 § FSF, 9 kap. 5 § FSF 9 kap. 3 § FSF 7 kap. 11 § andra stycket FSL, 9 kap. 4 § FSF 9 kap. 2 och 4 §§ FSF 9 kap. 2 § FSF, 2 kap. 52 § 9 kap. 2 § FSF 5 kap. 1 § FSL, SJÖFS 2006:1, SJÖFS 2008:81 Beträffande artikel 3: Ändring av 9 kap. 1 § 3.2, 6.3, 8.1, 9 kap. 1 § FSF FSF, införande av 8.3, 10.4, 11.7 9 kap. 1 a § FSF Parallelluppställning olycksutredningsdirektivet och IMO:s olycksutredningskod 1 och 6 §§ LUO 13–15 §§, 16 § andra stycket, 17 § 2 § första stycket 2 2 och 3.2 f) och 4 samt 4 § 2 § första stycket 2 2.11, 2.14, och tredje–fjärde 2.16, 2.20, 4 a § tredje stycket chapter 8, 16 1 och 6–10 §§ LUO och 8 § 2 § 2 och 4 § LUO 7–8 §§ FUO 4 § samt nya 4 b § LUO nya 2 a § LUO 8 § FUO samt nya 1 a § LUO 2 § 2 fösta och tredje styckena och 7 § LUO samt 13 § FUO Bilaga 8 SOU 2010:23 20–21 och 25 §§ 6 kap. 14 § SjöL FUO samt 6 kap. 4 a §, 5 och 7 andra 7, 9, 10 och samt 8 § FUO chapter 4, 8, 5 och 7–10 §§ LUO samt 3 § 9 § och nya 12 a § LUO, 3 § andra stycket 1 och nya 2 b § FUO 30 kap. 23 § OSL nya 17 kap. 6 a, och 9 § OSF, 7 och 8 §§ samt nya 32 kap. 8 a, b och c §§ OSL nya 8 c § FUO nya 8 d § FUO chapter 7, 9, jfr artikel 7 ovan 10, 13, 23.4 18 kap. 1–5 §§ och 20 kap. 11 § SjöL 5 a § och nya 20 kap. 11 a § 13–16 §§ FUO 13 och 15 §§ 6 § 2 LUO och 14 och 17 §§ FUO SOU 2010:23 Bilaga 8 20 och 27 §§ FUO och 20 kap. SjöL 1.Lätt att göra rätt –om förmedling av brottsskadestånd. 2.Ett samlat insolvensförfarande – förslag till ny lag. 3.Metria – förutsättningar för att ombilda division Metria vid Lantmäteriet till ett statligt ägt aktiebolag. 4.Allmänna handlingar i elektronisk form –offentlighet och integritet. 5.Skolgång för alla barn. 6.Kunskapslägesrapport på kärnavfallsområdet 2010 –utmaningar för slutförvarsprogrammet. 7.Aktiva åtgärder för att främja lika rättigheter och möjligheter – ett systematiskt målinriktat arbete på tre samhällsområden. 8.En myndighet för havs- och vattenmiljö. 9.Den framtida organisationen för vissa fiskefrågor. 10.Kvinnor, män och jämställdhet i läromedel i historia. En granskning på uppdrag av Delegationen för jämställdhet i skolan. 11.Spela samman – en ny modell för statens stöd till regional kulturverksamhet. 12.I samspel med musiklivet – en ny nationell plattform för musiken. 13Upphandling på försvars- och säkerhetsområdet. 15.Kriminella grupperingar – motverka rekrytering och underlätta avhopp. 16.Sverige för nyanlända. Värden, välfärdsstat, vardagsliv. 18.En reformerad budgetlag. 19.Lärling – en bro mellan skola och arbetsliv. 20.Så enkelt som möjligt för så många som möjligt – från strategi till handling för e-förvaltning. 21.Bättre marknad för tjänstehundar.