Maritime attorney David Russo provides a valuable primer for maritime stakeholders faced with a marine casualty. Because it isn’t a question of if, it is a question of when. Will you be ready?
When there is a marine incident, the vessel owner/operator has two risks of exposure: to both civil and criminal liability. These risks can arise from a number of variables, including but not limited to (a.) a pollution event, (b.) a death or injury, (c.) unseaworthy vessels (including inadequate crew or procedures), (d.) reporting failures that can lead to direct liability; and (e.) acts of crew that can lead to vicarious liability. To address these risks, a vessel owner should take early steps, with counsel, to protect its rights.
The First Hour
This can be the most critical time period. There are important steps that should be taken to avoid increasing negative consequences and to set the foundation for later work. Here is an outline:
- Stabilize the situation on the vessel, first and foremost.
- Learn basic details (in private: not on the radio or in range of VDR). This information might include: What happened? Damage to vessel or property? How many passengers? Any injuries? Location of Incident. Identify crewmembers. Time of incident. Any oil spilled?
- Was Vessel Traffic Service (VTS) called? When? If not, should VTS or the USCG Marine Safety Office be called now? An immediate call is needed if:
- Grounding, or allision with bridge. Loss of life. Loss of main propulsion, steering. Caused > $25K in damage (*). Significant harm to environment. Injury requiring medical treatment
- Tell them what happened, not why. Be brief. Educate your captains about required (and appropriate) reporting and other incident response issues.
- Report spill to State Warning Center, National Response Center, etc. (maintain list with needed telephone numbers on vessels)
- Is drug/alcohol testing needed? Has it been arranged?
Alcohol testing must be done, where required, within 2 hours of the incident; drug testing must be done within 32 hours of the incident. Drug and alcohol testing is required for any “serious marine incident” (SMI). The burden is on vessel owner to make determination of need for testing. SMI’s are defined as reportable marine casualties (see above re calling VTS) that:
- result in death, or injury requiring professional medical treatment beyond first aid;
- damage to property in excess of $100,000 (increase to $200,000 pending);
- the actual or constructive total loss of the vessel;
- discharge of oil of 10,000 gallons or more, or discharge of a reportable quantity of hazardous substance.
Meet counsel onboard, as needed. Advise your captain and crew not to discuss incident with anyone; only as necessary to stabilize situation.
The Initial Day/Evening
It is very important to secure and preserve all data from the ship. This may be requested by the Coast Guard and will be important in any litigation that arises from the incident. This data includes Logs, Video from all cameras, VDR, any stored, computerized engine room data and any stored AIS data.
It is also important to identify (as possible) any passenger witnesses (names and contact information). The crew aboard the vessel may assist with this activity. Not infrequently, passengers will come forward; on their own. Early on, the vessel owner will need to discuss with maritime counsel whether separate counsel for licensed crew (because of conflicts) or criminal counsel (e.g., death, pollution incidents) is needed. This has to happen early because maritime counsel will need to put together the legal team quickly.
No on board or immediate crew interviews by Coast Guard should be permitted. Counsel will need to intercede with the Coast Guard to ensure that onboard interviews do not occur. The reasons and basis for this position are:
- The Coast Guard has no ability to compel immediate appearance;
- No penalty for deferring interviews until later;
- Owner and maritime counsel need to assess and sort out representation issues.
- Counsel will address this with USCG and arrange later interviews.
The First 24 Hours: the Investigation Continues / USCG Issues
Within the first 24 hours, counsel will contact the Coast Guard to advise that he/she is representing the vessel owner and to assert that vessel owner is a “Party in Interest.” The Coast Guard must designate as parties in interest the vessel owner, and the holder of any license or merchant mariner’s document whose conduct is under investigation. A party in interest is guaranteed representation by counsel and the right to examine and cross-examine witnesses in Coast Guard hearings. Most importantly, parties in interest are entitled to unrestricted access to Coast Guard investigation records. They are provided copies of these records usually before they are available to the public. This is extremely helpful to defending against any Coast Guard charges or civil lawsuit.
The vessel owner and its counsel must determine if a CG 2692 should be submitted. This form, due within 5 days, is required for a grounding; injury requiring more than first aid; and/or property damage of more than $25,000. The 2692 should be prepared with counsel’s assistance. Within the form, keep the “Description of Incident” short and without opinions – with no comment on the cause of the incident. That’s because, early on, it is almost never possible to ascertain cause with certainty.
Other steps to take in this time frame include arranging a site inspection by an investigator/surveyor, with counsel, as needed (mainly property damage cases). Counsel may hire an investigator to conduct interviews of third parties (where applicable).
It is important that the investigation be conducted by maritime counsel. Why? Everything that vessel owner does is discoverable in civil lawsuit (and other proceedings). Anything your attorney does is not (includes investigation by attorney’s agents).
Coast Guard Subpoena Power
It is important to know that the Coast Guard has the power to issue subpoenas. However, they are not self-enforcing. They may be enforced only through the federal courts. Therefore, a Coast Guard subpoena can also be the subject of a motion to quash or modify the subpoena filed by your counsel. Of course, failure to comply with a Coast Guard subpoena, absent the court limiting or quashing it, may subject the license holder to the suspension of his or her license or merchant mariner’s document and subject the vessel owner to other sanctions.
Fortunately, the legal effects of a subpoena leave room for vessel owner’s counsel to negotiate convenient dates for crew interviews. As a practical matter, this is important because it allows time to prepare witnesses and additionally provides time to gather and review evidence first. This is very important for serious incidents.
The well known Fifth Amendment Privilege against self-incrimination exists in this situation – but only where there is risk of criminal prosecution. Notably, examples of situations where that risk exists include a death (Seaman’s Manslaughter Act), oil in the water (OPA-90) and situations involving dead birds (Migratory Bird Treaty Act).
Preservation of Evidence
It is the vessel owner’s responsibility to preserve evidence. Counsel will assist. The penalties for not preserving evidence include future litigation sanctions, and adverse inferences in civil and licensing proceedings. There are also possible criminal penalties from obstruction of justice charges.
The obligation to help preserve evidence includes all electronic evidence, including the voyage data recorders. “VDR information should be preserved and obtained in a timely manner in order to avoid problems.” It should be kept in mind that VDRs will not retain information beyond a set period, sometimes as short as 12 hours, so this should be acted upon promptly.
Under federal regulations (46 CFR 4.05-15(a)), the Coast Guard is entitled to the vessel’s voyage records upon request (i.e., logs, VDR). However, other than voyage records, the vessel owner and master are not obligated to produce any evidence until subpoenaed by the Coast Guard. Be aware that there is no Fifth Amendment privilege for records kept in the ordinary course of business, such as ship’s logs.
Dealing with the Press
This is an especially important part of responding to and handling any marine casualty or crisis. The basic goal should be to have little or no press coverage. A secondary, goal if the first is unavoidable, is to have any coverage to be short-lived. This minimizes undue attention from the Coast Guard, politicians, or plaintiff lawyers. Use an outside professional experienced with these matters (at least for serious incidents). Equally important, there should be only one voice: instruct everyone else to refer the press to that person.
The risks posed by marine incidents can be managed if there is a clear understanding of the goals and the means that can be used to safeguard vessel owner’s interests. Coordination with maritime counsel is important to managing the risk. The foregoing primer tells us why.
David E. Russo is a partner in the San Francisco office of Lewis Brisbois and a member of the Admiralty, Maritime & Energy Litigation Practice. Russo’s practice focuses on civil litigation and appellate practice in the areas of admiralty, cargo claims, product liability, maritime personal injury defense, and contracts and commercial law.