USCG Marine Casualty Investigations And The Role Of The “Party In Interest”

The United States Coast Guard’s (“USCG”) statutory mandate to investigate marine casualties is well-known throughout the maritime industry.  46 U.S.C. § 6301.  What may be less known is the statutory right of a “party in interest” to participate in the USCG’s investigation.  46 U.S.C. § 6303.  

Participation in the USCG’s investigation is particularly crucial in circumstances in which another vessel interest is involved because a party in interest will have an opportunity to be present when the other vessel’s Master and crew are interviewed by the USCG, to request that other witnesses be interviewed and to be present when the other vessel is inspected by the USCG.  When formal hearings are held by the USCG, a party in interest will have the additional rights to cross-examine witnesses under oath and to present witnesses on its behalf.   

Who is a party in interest?  

The term “party in interest” is defined by federal statute as:  (a) a vessel owner; (b) any holder of a license or certificate of registry; (c) any holder of a merchant mariner’s document; (d) any other person whose conduct is under investigation; and (e) any other party in interest.  46 U.S.C. § 6303.  This has been supplemented by regulation to include any person who the USCG finds to have a “direct interest” in the investigation, a potentially wide-ranging group.  46 C.F.R. § 4.03-10.  

When does the USCG designate parties in interest?  

In order to participate fully in the investigation, a party must be designated by the USCG as a party in interest.  

By way of background, the USCG has developed four levels of investigation – the “preliminary investigation,” the “data collection,” the “informal investigation,” and the “formal investigation.”

The level of investigation depends on the nature and scope of the casualty and runs the gamut from a telephone inquiry up to a full-blown hearing in which witnesses are called to testify under oath.  Although the level of investigation is left to the discretion of the investigating officer, the USCG has prepared internal guidelines to consider in making that determination.  These guidelines consider factors such as whether the casualty has resulted in (a) death or serious personal injury, (b) property damage exceeding certain amounts, (c) a condition affecting the seaworthiness of the vessel, and (d) a discharge of oil or hazardous cargoes into the water.

A party in interest could theoretically be involved at any level of investigation but, typically, will not become involved until the informal or formal investigation level.  If the USCG has not made a party in interest designation, the party involved must take the initiative and request such a designation.

Why seek party in interest status?

Without being designated a party in interest, a party involved in the casualty cannot participate fully in the USCG investigation.  

Moreover, the importance of participating in a marine casualty investigation, particularly at the informal and formal levels, cannot be overstated.  Depending on the type of casualty involved, participation in an informal investigation would include the right to be present during interviews of witnesses (such as the Master and crew of the other vessel involved in the casualty) to be present during the USCG’s inspection of the vessel(s) involved, to present evidence to the USCG, and to request that certain witnesses be interviewed.  The right to be present during interviews of the crew members from the other vessel may also extend to asking them questions concerning the casualty.  

The opportunity to hear responses to questions from an opposing vessel’s crew days or perhaps even hours after a casualty is unique and should be seized.  Inevitably, witnesses’ memories fade with the passage of time, or by the time formal legal proceedings are underway months or years later, the witnesses are no longer available to provide testimony.  Therefore, the appropriate time to seek party in interest status is early on in the USCG investigation.

Participation in a formal investigation carries additional rights during the hearing stage to cross-examine witnesses called by the USCG or other parties in interest and to call witnesses to testify on one’s behalf.  Here again, access to testimony from witnesses from the other vessel, for example, will be of great assistance in developing how the casualty occurred for use in any future litigation.

There is also the opportunity to present evidence in support of the party in interest’s version of how the casualty occurred.  In the event there is a potential for civil or criminal penalties resulting from the investigation, an opportunity to present favorable evidence should not be lost.

Conclusion

A USCG marine casualty investigation can provide a wealth of information for those parties involved in the casualty.  As a party in interest, the scope of that information can be expanded greatly by early and full participation in the investigation.  For most casualties, the opportunity to participate fully in the investigation should be seized at the earliest opportunity. 

August 2011
© Lyons & Flood, LLP