Navigation (Marine Casualty) Amendment Regulations 2001 (No. 1) (Cth)
Navigation (Marine Casualty) Amendment Regulations 2001 (No. 1) 1
Statutory Rules 2001 No. 16 2
I, WILLIAM PATRICK DEANE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the
Navigation Act 1912 .Dated 6 February 2001
WILLIAM DEANE
Governor-General
By His Excellency’s Command
IAN MACDONALD
Minister for Regional Services, Territories
and Local Government
These Regulations are the
Navigation (Marine Casualty) Amendment Regulations 2001 (No. 1) .
These Regulations commence on gazettal.
3 Amendment of Navigation (Marine Casualty) Regulations Schedule 1 amends the Navigation (Marine Casualty) Regulations.
(regulation 3)
substitute
1 Name of Regulations These Regulations are the
Navigation (Marine Casualty) Regulations 1990 .
insert in the appropriate alphabetical positions (determined on a letter‑by‑letter basis)
Australian court means a court of the Commonwealth, or of a State or Territory.
Australian Transport Safety Bureau means the unit established within the Department with responsibility for transport safety matters, including the conduct of transport safety investigations.
Code means the Code for the Investigation of Marine Casualties and Incidents, adopted by the Assembly of the International Maritime Organization in resolution A.849 (20) on 27 November 1997, a copy of the English text of which is set out in Schedule 1.
Executive Director means the person for the time being holding or performing the duties of Executive Director of the Australian Transport Safety Bureau.
foreign State means a country:
(a) the territory of which is outside Australia and Australia’s external territories; and
(b) that is:
(i) an independent sovereign State; or
(ii) a separate territory (whether or not it is self‑governing) that is not part of an independent sovereign State.
lead investigating State , in relation to an investigation of an incident, has the meaning given by the Code.
substantially interested State , in relation to the investigation of an incident, has the meaning given by the Code.
voice component , in relation to a voyage data recording from a ship, means the part of the recording that consists of a recording of spoken communications within the ship, or between persons on the ship and other persons.
voyage data recorder means a recording device installed on a ship to record information relating to the operation of the ship.
voyage data recording means a recording made on a voyage data recorder on a voyage of a ship.
substitute
(2) In these Regulations, except in Part 4A, a reference to an incident is a reference to an incident that involves, or involves the operations of, a ship, if:
(a) at the time of the incident, the ship is in the territorial sea of Australia or in waters on the landward side of the territorial sea; or
(b) evidence relating to the incident is found in Australia; or
(c) Part II of the Act applies to the ship.
omit
Public Service Act 1922
insert
Public Service Act 1999
omit
Public Service Act 1922 ;
insert
Public Service Act 1999 ;
after incident;
insert or
insert
(d) a representative of a substantially interested State;
omit questions.
insert questions; and
insert
(e) remove, or take a sample of, anything found on the ship.
insert
(6) The Inspector or an investigator may remove a thing from a ship under paragraph (1) (e) only if the removal of the thing will not unreasonably delay or otherwise affect the operation of the ship.
(7) The Australian Transport Safety Bureau must return anything that is removed from a ship under paragraph (1) (e) to the address of the ship’s owner’s agent in Australia if:
(a) the thing is no longer required for the investigation; and
(b) the Bureau is requested to do so by the ship’s owner.
omit questions.
insert questions; and
insert
(e) remove, or take a sample of, anything found on the premises.
insert
(6) The Inspector or an investigator may remove a thing from premises under paragraph (1) (e) only if the removal of the thing will not unreasonably delay or otherwise affect the operation of a ship.
(7) The Australian Transport Safety Bureau must return anything that is removed from premises under paragraph (1) (e) to the premises if:
(a) the thing is no longer required for the investigation; and
(b) the Bureau is requested to do so by the occupier of the premises.
insert
(4) A Magistrate of a particular State or Territory may issue a warrant in respect of the search of a ship or premises in another State or Territory.
insert
13A Issue of warrants by telephone or other electronic means
(1) The Inspector or an investigator may make an application to a Magistrate for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2) The Magistrate may require communication by voice to the extent that is practicable in the circumstances.
(3) An application under this regulation must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4) If an application is made to a Magistrate under this regulation and the Magistrate, after considering the information and having received and considered such further information (if any) as the Magistrate required, is satisfied that:
(a) a warrant in terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the Magistrate may complete and sign the same form of warrant that would be issued under regulation 13.
(5) If the Magistrate decides to issue the warrant, the Magistrate is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(6) The applicant must then complete a form of warrant in terms substantially corresponding to those given by the Magistrate, stating on the form the name of the Magistrate and the day on which and the time at which it was signed.
(7) The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the Magistrate the form of warrant completed by the applicant and, if the information referred to in subregulation (3) was not sworn, that information duly sworn.
(8) The Magistrate is to attach to the documents provided under subregulation (7) the form of warrant completed by the Magistrate.
(9) If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the Magistrate is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
omit If the Inspector or an investigator makes a record of evidence under paragraph 10 (d), he or she must not divulge that record,
insert Subject to subregulations (7) and (8), the Inspector or an investigator must not divulge information to which this subregulation applies,
substitute
(a) in the case of evidence obtained under paragraph 10 (d) — the person who provided the evidence; or
(aa) in the case of a copy of, or an extract from, a record obtained under paragraph 11 (1) (c) or 12 (1) (c), or a record removed from a ship or premises under paragraph 11 (1) (e) or 12 (1) (e) — a person who would normally be entitled to have access to that record; or
insert
(1A) Subregulation (1) applies to the following information:
(a) a record of evidence made by the Inspector or investigator under paragraph 10 (d);
(b) the contents of a copy of, or an extract from, a record obtained by the Inspector or investigator under paragraph 11 (1) (c) or 12 (1) (c);
(c) the contents of a record removed by the Inspector or investigator from a ship or premises under paragraph 11 (1) (e) or 12 (1) (e).
omit a record of evidence
insert information
insert
(3) A person may apply to a court for an order that a person who holds information to which subregulation (1) applies, must disclose that information.
(4) A person may apply to a court for an order authorising the person to disclose information that is held by the person and to which subregulation (1) applies.
(5) A court may order or authorise the disclosure of information only if:
(a) the court is satisfied that the public benefit in the disclosure of the information outweighs any possible effect on the investigation to which the information relates or any future investigation; and
(b) the release is authorised by:
(i) in the case of a record of evidence given by a person under paragraph 10 (d):
(A) if the person who provided the evidence is a subject of a foreign State — the foreign State; or
(B) in any other case — the person who provided the evidence; or
(ii) in the case of information from a record obtained under paragraph 11 (1) (c) or (e) or 12 (1) (c) or (e) that relates to a voyage of a ship:
(A) if the ship is registered in a foreign State — the foreign State; or
(B) in any other case — the master of the ship; or
(iii) in the case of information from a record obtained under paragraph 12 (1) (c) or (e) that does not relate to a voyage of a ship — the occupier of the premises.
(6) An order under subregulation (5) may:
(a) identify a particular person to whom the information must be disclosed; and
(b) specify the manner in which the information must be disclosed.
(7) If a court orders a person to disclose information under subregulation (5), the person must disclose the information in accordance with the order.
(8) If a court authorises a person to disclose information under subregulation (5), the person may disclose the information in accordance with the order.
insert
15A Evidence of voyage data recordings — criminal proceedings The following information is not admissible in evidence in any criminal proceedings in an Australian court against a crew member in relation to an incident:
(a) a copy of, or extract from, the voice component of a voyage data recording made during the voyage of a ship, and obtained by the Inspector or an investigator under paragraph 11 (1) (c) or 12 (1) (c) in the course of an investigation of the incident;
(b) the voice component of a voyage data recording removed from a ship or premises under paragraph 11 (1) (e) or 12 (1) (e) in the course of an investigation of the incident.
15B Evidence of voyage data recordings — civil proceedings
(1) Subject to subregulation (4), the following information is not admissible in evidence in any civil proceedings in an Australian court in relation to an incident:
(a) a copy of, or extract from, the voice component of a voyage data recording made during a voyage of a ship, and obtained by the Inspector or an investigator under paragraph 11 (1) (c) or 12 (1) (c) in the course of an investigation of the incident;
(b) the voice component of a voyage data recording removed from a ship or premises under paragraph 11 (1) (e) or 12 (1) (e) in the course of an investigation of the incident.
(2) A party to damages proceedings may, at any time before the determination of the proceedings, apply to the court in which the proceedings have been instituted for an order that a copy, extract or voice component to which subregulation (1) applies be admissible in evidence in the proceedings.
(3) If an application is made to a court under subregulation (2), the court:
(a) must examine the copy, extract or voice component; and
(b) may, if it is satisfied:
(i) that a material question of fact in the proceedings will not be able to be properly determined from other evidence available to the court; and
(ii) that the copy, extract or voice component, if admitted in evidence in the proceedings, will assist in the proper determination of that material question of fact; and
(iii) that, in the circumstances of the case, the public interest in the proper determination of that material question of fact outweighs the public interest in protecting the privacy of members of crews of ships;
order that the copy, extract or voice component be admissible in evidence in the proceedings.
(4) If the court makes an order under subregulation (3), the copy, extract or voice component is, despite subregulation (1), admissible in evidence in the proceedings.
(5) In this regulation:
damages proceedings means proceedings in an Australian court for damages in respect of personal injury, death or damage to property.
15C Examination by a court of a copy or extract under subregulation 15B (3)
(1) This regulation applies if a court examines the voice component, or a copy of, or extract from, the voice component, of a voyage data recording under subregulation 15B (3).
(2) The only persons who may be present at the examination are:
(a) the person or persons constituting the court, other than the members of the jury (if any); and
(b) the legal representatives of the parties to the proceedings; and
(c) any other persons that the court decides may be present.
(3) The court may direct that the copy, extract or voice component must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in the manner, and to the persons, that the court specifies.
15D Where a court makes an order under subregulation 15B (3)
(1) This regulation applies if the voice component, or a copy of, or extract from, the voice component, of a voyage data recording made during the voyage of a ship is admitted in evidence in proceedings under an order under subregulation 15B (3).
(2) The copy, extract or voice component is not evidence for the purpose of the determination of the liability of a crew member.
(3) The copy, extract or voice component is evidence of whether or not a crew member has been negligent for the purpose only of determining the liability of a person who is not a crew member.
(4) The court may direct that the copy, extract or voice component must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in the manner, and to the persons, that the court specifies.
15E Regulations 15A and 15B not to affect admissibility of other evidence Nothing in regulations 15A and 15B affects the admissibility in any proceedings of evidence of words spoken by a person on the bridge, or in another operational control centre, of a ship other than evidence constituted by:
(a) a copy of, or extract from, the voice component of a voyage data recording obtained by the Inspector or an investigator under paragraph 11 (1) (c) or 12 (1) (c); or
(b) the voice component of a voyage data recording removed from a ship or premises under paragraph 11 (1) (e) or 12 (1) (e).
omit Secretary
insert Executive Director
omit Minister or the Secretary
insert Executive Director
omit
Public Service Act 1922 ;
insert
Public Service Act 1999 ;
omit questions.
insert questions; and
insert
(e) remove, or take a sample of, anything found on the ship.
insert
(7) The Board or an authorised person may remove a thing from a ship under paragraph (1) (e) only if the removal of the thing will not unreasonably delay or otherwise affect the operation of the ship.
(8) The Australian Transport Safety Bureau must return anything that is removed from a ship under paragraph (1) (e) to the address of the ship’s owner’s agent in Australia if:
(a) the thing is no longer required for the investigation; and
(b) the Bureau is requested to do so by the ship’s owner.
omit questions.
insert questions; and
insert
(e) remove, or take a sample of, anything found on the premises.
insert
(7) The Board or an authorised person may remove a thing from premises under paragraph (1) (e) only if the removal of the thing will not unreasonably delay or otherwise affect the operation of a ship.
(8) The Australian Transport Safety Bureau must return anything that is removed from premises under paragraph (1) (e) to the premises if:
(a) the thing is no longer required for the investigation; and
(b) the Bureau is requested to do so by the occupier of the premises.
omit the Schedule
insert Schedule 2
insert
Part 4A International cooperation
32A Objective The purpose of this Part is to ensure that incidents in relation to which Australia, and at least 1 foreign State, are substantially interested States are investigated in accordance with Australia’s obligations under the Code.
32B Application of Part In this Part, a reference to an incident is a reference to an incident in relation to which at least 1 foreign State is a substantially interested State.
32C Agreement about responsibility for investigating incident
(1) If Australia and at least 1 foreign State are substantially interested States in relation to an incident, the Executive Director must attempt to reach agreement with the authorities of the foreign State or foreign States as to which State is to be the lead investigating State in relation to the incident.
(2) If the Executive Director is unable to reach agreement with the authorities of the foreign State or foreign States under subregulation (1), the Inspector may conduct an investigation under regulation 8, despite any action taken by a foreign State.
32D Investigations when Australia is the lead investigating State If Australia is the lead investigating State in relation to an incident, the Inspector must:
(a) liaise with other substantially interested States to develop a common strategy for investigating the incident; and
(b) investigate, or appoint 1 or more investigators to investigate, the incident in cooperation with the other substantially interested State or States and in accordance with Part 3.
32E Reporting requirements The Inspector must obtain and, as far as possible, reflect the views of each other substantially interested State when preparing a report of an investigation under subregulation 16 (2) in relation to an incident to which this Part applies.
32F Participation in investigations
(1) This regulation applies if Australia is not the lead investigating State in relation to an incident.
(2) If the lead investigating State asks Australia to participate in the investigation of the incident, the Inspector may:
(a) investigate, or assist the lead investigating State to investigate, the incident to:
(i) identify the circumstances in which it occurred; and
(ii) determine its cause; or
(b) direct an investigator to investigate, or assist the Inspector or the lead investigating State to investigate, the incident for the purposes mentioned in paragraph (a).
(3) Subject to subregulations (4) and (5), regulations 9 to 15E apply to an investigation under this regulation as if the investigation were conducted under Part 3.
(4) The Inspector or an investigator may make a record of evidence under paragraph 10 (d) in relation to an incident to which this regulation applies only if the Inspector is satisfied that the record will be used by that State only for the purposes of:
(a) identifying the circumstances in which the incident occurred; and
(b) determining its cause.
(5) In investigating an incident to which this regulation applies, the Inspector or an investigator may make a summary of evidence given by a person, which need not be given under oath or signed by the person.
(6) Regulation 15 applies to a summary of evidence made under subregulation (5) as if that summary were a record of evidence made under paragraph 10 (d).
(7) However, the Inspector or investigator may divulge that summary to a representative of the lead investigating State.
insert
Schedule 1 Code for the Investigation of Marine Casualties and Incidents (regulation 3)
1 Introduction
1.1 This Code recognizes that under IMO conventions 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 under the provisions of UNCLOS article 94, 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 recognises that where a casualty occurs within the territorial sea or internal waters of a State, that State has a right, under UNCLOS article 2, to investigate the cause of any such casualty which might pose a risk to life or to the environment, involve the coastal State’s search and rescue authorities, or otherwise affect the coastal State.
1.2 The aim of this Code is to promote a common approach to the safety investigation of marine casualties and incidents, and also to promote co‑operation between States in identifying the contributing factors leading to marine casualties. The result of this common approach and co-operation will be to aid remedial action and to enhance the safety of seafarers and passengers and the protection of the marine environment. In achieving these aims, this Code recognizes the need for mutual respect for national rules and practices and puts particular emphasis upon co-operation.
1.3 By introducing a common approach to marine casualty investigations and the reporting on such casualties, the international maritime community may be better informed about the factors which lead up to and cause, or contribute to, marine casualties. This may be facilitated by:
.1 Clearly defining the purpose of marine casualty investigation and the guiding principles for its conduct.
.2 Defining a framework for consultation and co‑operation between substantially interested States.
.3 Recognizing that the free flow of information will be promoted if individuals who are attempting to assist the investigation may be offered a degree of immunity, both from self‑incrimination and from any ensuing risk to their livelihood.
.4 Establishing a common format for reports to facilitate publication and sharing of the lessons to be learned.
1.4 It is not the purpose of the Code to preclude any other form of investigation, whether for civil, criminal, administrative, or any other form of action, but to create a marine casualty investigation process the aim of which is to establish the circumstances relevant to the casualty, to establish the causal factors, to publicise the causes of the casualty and to make appropriate safety recommendations. Ideally, marine casualty investigation should be separate from, and independent of, any other form of investigation.
2 Objective The objective of any marine casualty investigation is to prevent similar casualties in the future. Investigations identify the circumstances of the casualty under investigation and establish the causes and contributing factors, by gathering and analysing information and drawing conclusions. Ideally
, it is not the purpose of such investigations to determine liability, or apportion blame. However, the investigating authority should not refrain from fully reporting the causes because fault or liability may be inferred from the findings.
3 Application This Code applies, as far as national laws allow
, to the investigation of marine casualties or incidents where either one or more interested States have a substantial interest in a marine casualty involving a ship under their jurisdiction.
4 Definitions For the purpose of this Code:
4.1
Marine casualty means an event that has resulted in any of the following:.1 the death of, or serious injury to, a person that is caused by, or in connection with, the operations of a ship; or
.2 the loss of a person from a ship that is caused by, or in connection with, the operations of a ship; or
.3 the loss, presumed loss or abandonment of a ship; or
.4 material damage to a ship; or
.5 the stranding or disabling of a ship, or the involvement of a ship in a collision; or
.6 material damage being caused by, or in connection with, the operation of a ship; or
.7 damage to the environment brought about by the damage of a ship or ships being caused by, or in connection with, the operations of a ship or ships.
4.2
Very serious casualty means a casualty to a ship which involves the total loss of the ship, loss of life or severe pollution.4.3
Serious casualty means a casualty which does not qualify as a very serious casualty and which involves:.1 a fire, explosion, grounding, contact, heavy weather damage, ice damage, hull cracking or suspected hull defect, etc., resulting in;
.2 structural damage rendering the ship unseaworthy, such as penetration of the hull underwater, immobilization of main engines, extensive accommodation damage etc.; or
.3 pollution (regardless of quantity); and/or
.4 a breakdown necessitating towage or shore assistance.
4.4
Marine incident means an occurrence or event being caused by, or in connection with, the operations of a ship by which the ship or any person is imperilled, or as a result of which serious damage to the ship or structure or the environment might be caused.4.5
Causes means actions, omissions, events, existing or pre-existing conditions or a combination thereof, which led to the casualty or incident.
4.6
Marine casualty or incident safety investigation means a process held either in public or in cameraconducted for the purpose of casualty prevention which includes the gathering and analysis of information, the drawing of conclusions, including the identification of the circumstances and the determination of causes and contributing factors and, when appropriate, the making of safety recommendations.4.7
Marine casualty investigator means a person or persons qualified and appointed to investigate a casualty, or incident, under procedures laid down in national legislation for the furtherance of marine safety and protection of the marine environment.4.8
Serious injury means an injury which is sustained by a person in a casualty resulting in incapacitation for more than 72 hours commencing within seven days from the date of injury.
4.9
Ship means any kind of vessel which is used in navigation by water.4.10 Lead investigating State means the State that takes responsibility for the conduct of the investigation as mutually agreed between the substantially interested States.
4.11
Substantially interested State means a State:.1 which is the flag State of a ship that is the subject of an investigation; or
.2 in whose internal waters or territorial sea a marine casualty has occurred; or
.3 where a marine casualty caused, or threatened, serious harm to the environment of that State, or within those areas over which the State is entitled to exercise jurisdiction as recognised under international law; or
.4 where the consequences of a marine casualty caused, or threatened, serious harm to that State or to artificial islands, 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 at its disposal important information that may be of use to the investigation; or
.7 that for some other reason establishes an interest that is considered significant by the lead investigating State.
5 Conduct of marine casualty investigations 5.1Where an investigation is to be conducted, the following should be taken into consideration:
.1 Thorough and unbiased marine casualty investigations are the most effective way of establishing the circumstances and causes of a casualty.
.2 Only through co-operation between States with a substantial interest can a full analysis be made of a marine casualty.
.3 Marine casualty investigations should be given the same priority as criminal or other investigations held to determine responsibility or blame.
.4 Marine casualty investigators should have ready access to relevant safety information including survey records held by the flag State, the owners, and classification societies. Access to information should not be barred by reason of competing investigations.
.5 Effective use should be made of all recorded data, including voyage data recorders (VDR), if fitted, in the investigation of a marine casualty or marine incident wherever it occurred. The State conducting the investigation should arrange for the read-out of the VDR.
.6 Marine casualty investigators should be afforded access to Government surveyors, coastguard officers, vessel traffic service operators, pilots or other marine personnel of the respective States.
.7 The investigation should take into account any recommendations or instruments published by IMO or ILO, in particular those relating to the human factor, and any other recommendations or instruments adopted by other relevant international organizations.
.8 Reports of investigations are most effective when released to the shipping industry and public.
5.2 In accordance with 9, other substantially interested States should be invited to be represented during any such investigation and should be admitted as a party in the proceedings and have equal standing, rights and access to evidence as the State conducting the investigation.
5.3 Recognizing that any vessel involved in a casualty may continue in service and that a ship should not be delayed more than is absolutely necessary, the State conducting the investigation should start the investigation as soon as practicable, without delaying the ship unreasonably. Other substantially interested States may, by mutual agreement, join the investigation either immediately or at a later stage.
6 Responsibility for investigating casualties and incidents
6.1 Flag States are encouraged to ensure that investigations are carried out into all casualties occurring to its ships. All cases of serious and very serious casualties should be investigated.
6.2 Where a marine casualty or incident occurs within the territorial sea of a State, the flag and coastal States recognizing the obligations of that State to its citizens and the legal status of the territorial sea under the provisions of UNCLOS and also recognising the duties placed on a flag State, the flag and coastal States should co‑operate to the maximum extent possible, and mutually agree which State should take the role of lead investigating State.
6.3 Where a marine casualty or incident occurs on the high seas, a flag State should carry out an investigation into a casualty to, or on, any of its ships. If that casualty is a collision involving a ship of another flag State, then the States should consult with each other and agree which will be the lead investigating State and determine the best means of co-operation under this Code. In line with 9.1, if another State is a substantially interested State by virtue of the nationality of the ship's crew, passengers or other persons, or the location of the casualty, that State or States should be invited to take part in the investigation.
6.4 By fully participating in an investigation conducted by another substantially interested State, the flag State shall be considered as fulfilling its obligations under UNCLOS article 94, section 7.
6.5 An investigation should be started as soon as practicable after the casualty occurs. Substantially interested States should, by mutual agreement, be allowed to join an investigation conducted by another substantially interested State at any stage of the investigation.
7 Responsibilities of the lead investigating State The lead investigating State should be responsible for:
.1 developing a common strategy for investigating the casualty in liaison with substantially interested States;
.2 providing the investigator in charge and co‑ordinating the investigation;
.3 establishing the investigation parameters based on the laws of the investigating State and ensuring that the investigation respects those laws;
.4 being the custodian of records of interviews and other evidence gathered by the investigation;
.5 preparing the report of the investigation, and obtaining and reflecting the views of the substantially interested States;
.6 co-ordinating, when applicable, with other agencies conducting other investigations;
.7 providing reasonable logistical support; and for
.8 liaison with agencies, organizations and individuals not part of the investigating team.
8 Consultation
8.1 Notwithstanding the obligation placed on the master or owners of a ship to inform its flag State authority of any casualty occurring to the ship, where a casualty or incident occurs in the internal waters or territorial sea of another State, the coastal State should notify, with a minimum of delay, the flag State or States of the circumstances and what, if any, action is proposed by the coastal State.
8.2 Following a casualty, the investigating State should inform the other substantially interested States, either through the Consular Office in that State or by contacting the relevant authorities listed in MSC/Circ.781/ MEPC.6/Circ.2. That State and the other substantially interested States should consult, at the earliest opportunity, on the conduct of the investigation and to determine details of co-operation.
8.3 Nothing should prejudice the right of any State to conduct its own separate investigation into a marine casualty occurring within its jurisdiction according to its own legislation. Ideally, if more than one State desires to conduct an investigation of its own, the procedures recommended by this Code should be followed, and those States should co-ordinate the timing of such investigations to avoid conflicting demands upon witnesses and access to evidence.
9 Co-operation
9.1 Where two or more States have agreed to co-operate and have agreed the procedures for a marine casualty investigation, the State conducting the investigation should invite representatives of other substantially interested States to take part in the investigation and, consistent with the purpose of this Code, allow such representatives to:
.1 question witnesses;
.2 view and examine evidence and take copies of documentation;
.3 produce witnesses or other evidence;
.4 make submissions in respect of the evidence, comment on and have their views properly reflected in the final report; and
.5 be provided with transcripts, statements and the final report relating to the investigation.
9.2 States are encouraged to provide for maximum participation in the investigation by all States with a substantial interest in the marine casualty.
9.3 The flag State of a ship involved in a marine casualty should help to facilitate the availability of the crew to the investigation and encourage the crew to co-operate with the State conducting the investigation.
10 Disclosure of records
10.1 The State conducting the investigation of a casualty or incident, wherever it has occurred, should not make the following records, obtained during the conduct of the investigation, available for purposes other than casualty investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs any possible adverse domestic and international impact on that or any future investigation, and the State providing the information authorizes its release:
.1 all statements taken from persons by the investigating authorities in the course of the investigation;
.2 all communications between persons having been involved in the operation of the ship;
.3 medical or private information regarding persons involved in the casualty or incident;
.4 opinions expressed during the conduct of the investigation.
10.2 These 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.
11 Personnel and material resources Governments should take all necessary steps to ensure that they have available sufficient means and suitably qualified personnel and material resources to enable them to undertake casualty investigations.
12 Issue of marine casualty reports and submission to IMO
12.1 The lead investigating State should send a copy of the draft of the final report to all substantially interested States, inviting their significant and substantiated comments on the report as soon as possible. If the lead investigating State receives comments within thirty days, or within some mutually agreed period, it should either amend the draft final report to include the substance of the comments, or append the comments to the final report. If the lead investigating State receives no comments after the mutually agreed period has expired, it should send the final report to the Organization in accordance with applicable requirements and cause the report to be published.
12.2 By fully participating in an investigation conducted by another substantially interested State that will be reporting to IMO, the flag State shall be considered as fulfilling its obligations under IMO conventions.
12.3 Reports, or relevant parts of reports, into the circumstances and causes of a marine casualty should be completed as quickly as practicable, and be made available to the public and the shipping industry in order to enhance safety of life at sea and protection of the marine environment through improved awareness of the factors which combine to cause marine casualties.
12.4 Where a substantially interested State disagrees with whole or part of the report referred to in 12.1 above, it may submit its own report to the Organization.
12.5 The investigating State, upon determining that urgent safety action is needed, may initiate interim recommendations to the appropriate authority.
13 Re-opening of investigations When new evidence relating to any casualty is presented, it should be fully assessed and referred to other substantially interested States for appropriate input. In the case of new evidence which may materially alter the determination of the circumstances under which the marine casualty occurred, and may materially alter the findings in relation to its cause or any consequential recommendations, States should reconsider their findings.
14 Contents of reports
14.1 To facilitate the flow of information from casualty investigations, each report should conform to the basic format outlined in 14.2 below.
14.2 Reports should include, wherever possible:
.1 a summary outlining the basic facts of the casualty and stating whether any deaths, injuries or pollution occurred as a result;
.2 the identity of the flag State, owners, managers, company and classification society;
.3 details of the dimensions and engines of any ship involved, together with a description of the crew, work routine and other relevant matters, such as time served on the ship;
.4 a narrative detailing the circumstances of the casualty;
.5 analysis and comment which should enable the report to reach logical conclusions, or findings, establishing all the factors that contributed to the casualty;
.6 a section, or sections, analysing and commenting on the causal elements, including both mechanical and human factors, meeting the requirements of the IMO casualty data base; and
.7 where appropriate, recommendations with a view to preventing similar casualties.
15 Contact between Administrations To facilitate implementation of this Code, States should inform the Organization of the responsible authorities within their Governments that may be contacted regarding cooperation in casualty investigations.
renumber as Schedule 2
1. These Regulations amend Statutory Rules 1990 No. 257, as amended by 1991 No. 462.
2. Notified in the
Commonwealth of Australia Gazette
0
0
0