The threshold for a mandatory safety investigation and the duty to notify under EU Directive 2009/18/EC

Say a deck rating falls from a cargo hold ladder inside the territorial sea of a Member State. The ship flies the Panamanian flag, and the injured person dies in hospital two days later. The company files the on-board accident report under chapter 9 of the ISM Code and opens its own investigation.

Separately from that, does a State safety investigation open. If it does, which State opens it. EU Directive 2009/18/EC answers the question. The answer does not come straight out of the investigation article.

The grade of the casualty is settled first, and that grade switches the investigation duty on or off. Drop a grade and the duty turns into a decision. And one more duty is attached regardless of grade. Notification.

The words that fix the grade come from the IMO Code, not from this Directive

(3) the following terms shall be understood in accordance with the definitions contained in the IMO Casualty Investigation Code: (a) ‘marine casualty’; (b) ‘very serious marine casualty’; (c) ‘marine incident’; (d) ‘marine safety investigation’; (e) ‘marine safety investigation authority’; (f) ‘marine safety investigating State’; (g) ‘substantially interested State’; (h) ‘serious injury’;

The Directive does not write out what the eight terms mean. It hands them to the IMO Casualty Investigation Code. So what a very serious marine casualty is does not appear in the text of the Directive. The grade switches the investigation duty on and off, and its definition sits in another document.

The Directive points at the current version of that Code (in its up-to-date version). Amend the Code and the threshold moves with it.

(11) ‘fatal injury’ means an injury which is sustained by a person in an accident, and which results in his or her death within 30 days of the date of the accident, if the related information is available.

Some terms the Directive does define itself. A fatal injury is an injury followed by death within 30 days of the date of the accident. On the day of the accident that box is still empty. The ship keeps trading while the grade is being settled.

A very serious casualty opens an investigation on any one of three connections

1. Each Member State shall ensure that a safety investigation is carried out by the safety investigation authority referred to in Article 8 after any very serious marine casualty: (a) involving a ship flying its flag, irrespective of the location of the casualty; (b) occurring within its territorial sea and internal waters as defined in UNCLOS, irrespective of the flag of the ship or ships involved in the casualty; or (c) involving a substantial interest of the Member State, irrespective of the location of the casualty and of the flag of the ship or ships involved in the casualty.

The verb is shall ensure. This is not a place where a Member State chooses. The three connections ask about flag, location and interest.

Each connection then deletes the remaining conditions in express words. Point (a) does not ask where the casualty happened once the ship flies that flag. Point (b) does not ask about flag once the casualty happened in that State’s territorial sea and internal waters. Point (c) asks about neither location nor flag once a substantial interest is involved.

So one casualty can switch on the duty of several Member States at once. In the example above, (b) switches on. The Panamanian flag does not matter: inside the territorial sea of a Member State, that State carries the duty.

Drop one grade and the decision stays with the investigation authority

4. In the case of any marine casualty or incident not covered by paragraph 1, 2 or 3, the safety investigation authority shall decide whether to conduct a safety investigation.

Every marine casualty and incident outside the three preceding paragraphs is for the investigation authority to settle. The verb is shall decide whether. Deciding not to open an investigation is inside this provision too.

2. In the case of a fishing vessel of less than 15 metres in length, the safety investigation authority shall without delay and no later than two months after the very serious marine casualty referred to in paragraph 1 of this Article, carry out a preliminary assessment to determine whether to conduct a safety investigation.

Fishing vessels get one more step. Below 15 metres in length, even a very serious casualty does not run straight into an investigation but into a preliminary assessment. The authority settles the question by that assessment within two months, and if it decides against, it records and notifies the reasons within the same period.

Paragraph 3 writes down the inputs to that decision. The authority weighs the evidence available together with the potential for the findings to prevent future casualties and incidents. Whether evidence has survived feeds into the decision to open.

The duty to notify is attached separately and reaches wider

A Member State shall require, in the framework of its legal system, that its safety investigation authority be notified without delay, by the responsible authorities or by the parties involved, or by both, of the occurrence of all marine casualties and incidents falling within the scope of this Directive.

What is notified is all marine casualties and incidents. It was not narrowed to very serious casualties. A casualty that will never be investigated is still notified.

Who notifies includes the parties involved. Not only the responsible authorities. How that works out is set by the legal system of the State.

The timing is without delay. Nothing in the provision says to wait for the grade to be fixed. Even where death within 30 days decides the grade, as in the example above, notification goes first.

Only what survives to the start of the investigation reaches it

8. A safety investigation shall be started without delay after the occurrence of the marine casualty or incident, and, in any event, no later than two months thereafter.

The outer limit for starting is two months. It starts without delay, and in no case later than two months. Read the other way, an investigator may well not be on board on the day.

In principle, each marine casualty or incident shall be subject to only one investigation carried out by a Member State or a lead investigating Member State with the participation of any other substantially interested Member State.

The principle is one investigation per casualty. Where two or more Member States are engaged, they have to agree quickly on which of them leads, and until they do, each carries its own investigation and coordination. For ro-ro passenger ships and high-speed passenger craft the provision names the State that launches. It is the Member State in whose territorial sea or internal waters the casualty occurs, and in other waters the last Member State the ship visited.

This Directive puts no record-keeping duty on the company directly. Overlay the provisions above and what the company has to do narrows anyway. Notification goes without delay, the start of an investigation can run two months out, and whether to open one is decided on the evidence that survives. What disappears in between is the record the ship makes. Log entries, watch handovers, that day’s rest hours, the risk assessment done before the job, the list of people on board, and who wrote and reviewed the on-board accident report and when. None of that can be produced two months later.

Worth confirming

The passages above come from Articles 3, 5, 6 and 7 of the consolidated text of this Directive. What the provisions settle is the threshold that switches the duty on and the reach of notification. Below that, the answer moves to other documents and to national law.

• The boundary of a very serious marine casualty and of a serious injury sits in the IMO Casualty Investigation Code. That Code is the Annex to resolution MSC.255(84), and the Directive points at its current version.
• Whom notification goes to, and on what form, is filled in by the Member State. The provision says only in the framework of its legal system.
• Some articles of this Directive have been changed by amendment. Check which version of the consolidated text you are reading.
• The company’s internal report under chapter 9 of the ISM Code is a different procedure from notification under this Directive. Doing one does not fill in the other.