Coast Guard Marine Investigations Can Span The Globe
Everyone in the inland waterway community knows that the Coast Guard investigates marine incidents. But fewer people know that Coast Guard investigative teams can operate overseas throughout the world—in any maritime country in which U.S. lives or interests are at stake.
Coast Guard teams have participated in investigations that have been part of national and global news stories, such as the Deepwater Horizon disaster and the capsizing and sinking of the Costa Concordia cruise vessel in 2012.
The most recent document providing guidelines for such investigations is Navigation and Vessel Inspection Circular No. 05-17, issued in 2017 and titled “Reporting and Investigating Marine Casualties Where the United States is a Substantially Interested State (SIS).” It replaced an earlier guidance issued in 1998.
The circular specifies that it establishes “policy and guidance for the coordination and cooperation of marine casualty investigations with other Substantially Interested States consistent with the generally recognized practices and procedures of international law.”
The document makes clear that it is a guidance, not itself a rule. Maritime countries generally promise to use and abide by procedures laid out by the International Maritime Organization, a United Nations agency that formulates international maritime policy.
So when and how does the Coast Guard get involved in such overseas marine casualty investigations? According to the circular, these types of incidents can trigger Coast Guard involvement:
1) Any marine casualty involving a United States citizen on a foreign passenger vessel operating south of 75 degrees north latitude, west of 35 degrees west longitude, and east of the International Date Line; or operating in the area south of 60 degrees south latitude that embarks or disembarks passengers in the United States; or transports passengers traveling under any form of air and sea ticket package marketed in the United States. Any incident where a U.S. citizen is injured, killed or missing, or even in danger (such as a U.S. citizen needing to be evacuated from a foreign vessel).
2) Other marine casualties that don’t involve injury or threat to human beings. The circular specifies this could include “any marine casualty where the United States is a SIS as defined in Reference (a). Depending on the circumstances this could include marine casualties involving a foreign vessel outside of waters subject to the jurisdiction of the United States.”
The operating area specified in an accompanying illustration includes all of North and South America, the entire Pacific Ocean and Antarctica.
Cooperation
The broad remit of the Coast Guard’s investigative powers may surprise some Americans. Such investigations will normally be jointly conducted in close cooperation with the maritime and other authorities of the host country. “It is the Coast Guard’s position that it is in the best interest of maritime safety and all parties involved that, whenever possible, SISs work jointly and cooperatively to the greatest extent practicable when investigating marine casualties.”
The United States did not sign on to certain provisions of the May 16, 2008, amendments made to the Chapter XI-1 to the International Convention on the Safety of Life at Sea pertaining to marine investigations. “The United States is not signatory to the Code as it was determined that certain provisions of the Code do not directly promote maritime safety and conflict with important aspects of U.S. domestic law and practice,” the circular notes.
“As a result, those amendments did not enter into force for the United States. Instead, …the U.S. Coast Guard applies those provisions of the Code that are consistent with generally recognized practices and procedures of international law.”
The Coast Guard does not get involved in the determination of criminal or civil violations of the laws of other states.
Lead Investigator
Investigations are generally “conducted under the auspices of the IMO with the objective of preventing marine casualties in the future.” The circular notes that once it has been determined that a marine casualty warrants such an investigation, it must be undertaken “without delay”—and, if necessary, without postponing it due to “failure or delay in communications or coordination from the flag state or other SIS.”
The Coast Guard does make every effort to coordinate with the host country’s maritime authorities, however. In cases where the host country prefers to conduct its own separate investigation, the Coast Guard may conduct its own parallel one. In any case, it asks to be granted “the same level of access and participation” as the lead agency.
Just as in the United States, there may be cases where the National Transportation Safety Board rather than the Coast Guard is the lead investigator.
Coast Guard investigators generally require the same access and rights that any investigating agency would. These include the right to examine all evidence, the right to interview witnesses or to have access to interview results.
The mv. Karen Koby
The Coast Guard does not comment on ongoing cases. But Marc Hebert, a maritime attorney and partner at Jones Walker in New Orleans, gives an example of a recent case in which the Coast Guard is serving as an investigator and collector of facts involving a case against a U.S.-flag vessel brought by Panama.
On November 16, 2021, an American-flagged vessel, the tugboat Karen Koby, towing an empty oil barge, Logicon 412, was alleged to have spilled some oil in the area of Panama Bahía Las Minas, Cativa, Colon, near some coastal mangrove swamps. The Panama Maritime Authority (AMP) detained the vessel for a period of nearly six months and obtained statements from crewmembers and witnesses. The AMP conducted a preliminary investigation and sampled the oil spilled, alleging that the spill came from the Logicon 412.
A joint investigation was not conducted. Although requested by the Coast Guard, the AMP did not provide split samples to the Coast Guard for testing, and those samples were recently destroyed. The Coast Guard conducted its own investigation and sampling of the spill area as directed by the AMP investigative team. The results showed that the oil spilled was different from the fuel oil residue contained in the Logicon 412.
“This is where the capabilities and involvement of the Coast Guard investigative team and the Marine Safety Lab are truly indispensable to U.S.-flag vessel owners because the Coast Guard can conduct an independent investigation under IMO protocols for incidents involving U.S.-flag vessels operating in foreign jurisdictions,” Hebert said.
