Model answers

Read through the scenario carefully, and when you are ready, try and answer the three questions. Write down your answers on a sheet of paper.

It is a hypothetical situation and the scenario needs to be studied carefully before attempting the three questions. Do not expect to be able to reproduce exactly the supplied model answers, but try to ensure that you have understood the jurisdictional aspects raised by the situation.

The Scenario:

A ro-ro passenger ferry flying the flag of FLAG “A” is engaged on a regular international run between two ports “P” and “Z”. On 1 April 2004, the passenger ferry was outbound from country “Z” bound for country “P”. On board were 1000 passengers – 500 from country “Z”, 230 from country “P”, 210 from country “Y”. The master of the ferry had a pilot exemption. Six miles off the coast of country “Y” and approaching the pilot station shared by ports in countries “P” and “Y” the ferry was in collision with a tanker of country “B” outbound from port “Y”.

Country “Y” has a VTS operation and coordinates the immediate response to the collision.

The tanker is badly damaged and leaks crude oil and catches fire, the fire spreading to the tanker’s accommodation, engine room and steering flat. The tanker, out of control, grounds on a sandbank in the territorial sea of country “P”.

Eighteen of the tanker crew comes from country “X”, while the remainder including the master and deck officers, come from country “W”. The mate and ten of the crew, as well as the pilot of the tanker, died, including a cadet from country “X”.

Six passengers on the ferry received serious burns and were transferred by helicopter to country “Y”. The ferry was forced to put into the port of country “Y”.

Questions

What are the jurisdictional claims of each State involved?

Which State or States should investigate?

What limitations may be experienced?

Model answers

Question 1 - What are the jurisdictional claims of each State involved?

Answer:

State “A” presumably both registered the ro-ro ferry and licensed/certificated the officers and crew. As the State of the flag of one of the vessels involved in a serious casualty, “A” not only has ‘sovereign’ jurisdiction under customary international law to investigate the casualty, but has at least one specific obligation to do so under conventional international law. Because of the serious personal injury of passengers on board the ferry, and assuming that “A” is a State party to ILO Convention 147, Article 2(g) of that Convention not only imposes the obligation to investigate the casualty but also obliges “A” to publish the results of that investigation. SOLAS ’74, Annex, Chapter 1, Regulation 21 obliges “A” to investigate only if its Administration reaches an independent subjective judgment that an investigation may assist in determining what changes in the SOLAS Regulations might be desirable. The obligation of a flag State under UNCLOS Article 94(7) – not only to investigate, but also to co-operate in the investigation with other States directly affected by the casualty – is imposed only if the casualty occurs on the high seas; because under Article 3 of UNCLOS it is the option of a coastal State to declare a territorial sea up to 12 nautical miles in breadth, the national law of State “Y” will determine the applicability of Article 94(7) to State “A”.

[As a separate matter, “A” is obliged by STCW ’95, Annex, Chapter I, Regulation I/5 to establish procedures under its national law for the investigation of any reported incompetency, act or omission that may pose a direct threat to safety of life or property at sea or to the marine environment by the holders of certificates or endorsements issued by its Administration. To the extent that it appears that the casualty may have been caused or contributed to by incompetency, errors or omissions on the part of any of the officers and crew of the ferry, or by actions or omissions of the owner or operator of the ferry, “A” also has an obligation under this hybrid of international and national law to investigate and to impose disciplinary measures if warranted. Depending upon “A’s” national legal requirements of due process, this investigative proceeding may have to be conducted separately from the casualty investigation.]

State “B” as the State of the flag of one of the vessels involved in a serious casualty not only has ‘sovereign’ jurisdiction under customary international law to investigate the casualty, but also has at least one specific obligation to do so under conventional international law. Because of the death of the mate and ten of the crew on board the tanker, as well as the pilot, and assuming that “B” is a State party to ILO Convention 147, Article 2(g) of that Convention not only imposes the obligation to investigate the casualty but also obliges “B” to publish the results of that investigation. Again SOLAS ’74, Annex, Chapter 1, Regulation 21 obliges “B” to investigate only if its Administration reaches an independent subjective judgment that an investigation may assist in determining what changes in the SOLAS Regulations might be desirable. The obligation of a flag State under UNCLOS Article 94(7) – not only to investigate, but also to co-operate in the investigation with other States directly affected by the casualty – is imposed only if the casualty occurs on the high seas; because under Article 3 of UNCLOS it is the option of a coastal State to declare a territorial sea up to 12 nautical miles in breadth, the national law of State “Y” will determine the applicability of Article 94(7) to State “B”. [MARPOL ‘73/’78 Article 12 would not impose an obligation upon State “B” to investigate, as it is not established that this casualty produced a “major deleterious effect” upon the marine environment. UNCLOS Article 217 (4) and (6) will also impose no obligation on “B” because the release of oil to the environment resulted from the collision, and not from a violation of the rules and standards referred to in Part XII of UNCLOS.]

[As a separate matter, “B” is obliged by STCW ’95, Annex, Chapter I, Regulation I/5 to establish procedures under its national law for the investigation of any reported incompetency, act or omission that may pose a direct threat to safety of life or property at sea or to the marine environment by the holders of certificates or endorsements issued by its Administration. Though all of the officers and crew of the tanker were foreign nationals, it is assumed that they were licensed and certificated by “B” as required by STCW. Therefore, to the extent that it appears that the casualty may have been caused or contributed to by incompetency, errors or omissions on the part of any of the officers and crew of the tanker, or by actions or omissions of the owner or operator of the ferry, “B” also has an obligation under this hybrid of international and national law to investigate and to impose disciplinary measures if warranted. Depending upon “B’s” national legal requirements of due process, this investigative proceeding may have to be conducted separately from the casualty investigation.]

State “Y” is certainly a “substantially interested State” as defined by the Casualty Investigation Code; even if under its national law the casualty occurred outside its territorial sea, its operation of the VTS and its co-ordination of the immediate response ensures that it has at its disposal important information that may be of use to the investigation. Whether the casualty occurred inside or outside “Y’s” territorial sea, the release of oil may reasonably have threatened serious harm to “Y’s” marine environment. If the pilot was a national of “Y” that would also establish “Y’s” substantial interest under the Code because of the pilot’s death; likewise if any of the injured ferry passengers were nationals of “Y”. That 210 nationals of “Y” as ferry passengers were exposed to danger by the collision may be considered a “significant interest”.

If the casualty occurred within the territorial sea of “Y” its national law may require its authorities to conduct an investigation.

Whether the casualty occurred inside or outside “Y’s” territorial sea, the authorities of “Y” in the exercise of sovereign police power may of course interview the injured passengers present in “Y” with respect to the casualty, within the constraints imposed by their medical condition.

The presence of the ferry in the port of “Y” following a serious casualty allows “Y” to exercise its sovereign police power under the ‘peace and tranquillity’ doctrine to board the ferry to investigate.

[If there is any indication that incompetency, error or omission on the part of the pilot may have caused or contributed to the casualty, that the pilot held a pilot’s license issued by “Y” would not invoke jurisdiction to investigate under STCW – pilots are not covered by STCW Convention. Neither does the Convention make provision for the issue of pilotage endorsements or pilotage exemption endorsements].

State “P” is not a “substantially interested State” by reason of the tanker’s grounding on a sandbank within its territorial sea; however, if the tanker poses a threat to “P’s” marine environment, that gives “P” a substantial interest. That 230 nationals of “P” as ferry passengers were exposed to danger by the collision may be considered a “significant interest”.

State “P” may exercise its sovereign police power under the ‘peace and tranquillity’ doctrine to conduct an examination of the tanker and to interview any persons on board (or taken ashore to “P”) having knowledge of the casualty.

[UNCLOS Articles 218 and 220 will not confer jurisdiction on “P” because the release of oil to the environment resulted from the collision, and not from a violation of the rules and standards referred to in Part XII of UNCLOS.]

[That the Master of the ferry held a pilot exemption is relevant only if that exemption was issued by State “P”. “P’s” Administration could not affix a pilotage exemption endorsement to a license issued by “A”, so the exemption would have to be endorsed on a license issued by “P” to the Master of the ferry. If that were the case and there is any indication that incompetency, error or omission on the part of the ferry Master may have caused or contributed to the casualty, then “P’s” obligation under STCW ’95, Annex, Chapter I, Regulation I/5 becomes relevant and it has an obligation under this hybrid of international and national law to investigate the casualty in the context of the Master’s involvement.]

State “W” has no jurisdiction to investigate and would be a “substantially interested State” as defined by the Casualty Investigation Code only if the Master or one or more of the officers and crew of the tanker who were nationals of “X” were injured or died as a result of the casualty.

[If the Master and/or the officers and crew held licences or other certification issued by “W” and there is any indication that incompetency, error or omission on the part of any of them may have caused or contributed to the casualty, then “W’s” obligation under STCW ’95, Annex, Chapter I, Regulation I/5 becomes relevant and it has an obligation under this hybrid of international and national law to investigate the casualty in the context of their involvement.]

State “X” has no jurisdiction to investigate but is certainly a “substantially interested State” as defined by the Casualty Investigation Code because a national of “X” (the cadet) died as a result of the casualty.

[If any of the officers or crew of the tanker held licences or other certification issued by “X” and there is any indication that incompetency, error or omission on the part of any of them may have caused or contributed to the casualty, then “X’s” obligation under STCW ’95, Annex, Chapter I, Regulation I/5 becomes relevant and it has an obligation under this hybrid of international and national law to investigate the casualty in the context of their involvement.]

State “Z” has no jurisdiction to investigate, but that 500 nationals of “Z” as ferry passengers were exposed to danger by the collision may be considered a “significant interest” by the lead investigating State which would accord “Z” the status of a “substantially interested State” as defined by the Casualty Investigation Code. If any of these nationals were among the injured passengers, then “Z” would be a “substantially interested State”. That the voyage of the ferry originated in “Z” does not appear to have any relevance to the casualty or to “Z’s” status.

Question 2 - Which State or States should investigate?

Answer:

States “A” and “B” have the primary obligations to investigate the casualty under conventional international law, and State “Y” has an extremely substantial interest and perhaps an obligation to investigate under its national law. Clearly any preliminary investigation into this complex casualty will produce valuable results only if these 3 States co-operate closely – hopefully to the extent of holding a joint preliminary investigation.

This is a major international casualty and there should be a joint formal investigation with the fullest participation by all of the States concerned, with the ‘obliged’ States sharing the costs. One of the 3 States above should be the “lead” or host state for the investigation, and as a prime consideration is the availability of physical evidence and the convenience of directly-affected parties and witnesses it is State “Y” that perhaps would be the best host for the formal investigative proceedings.

Question 3 - What limitations may be experienced?

Answer:

Although States “Y” and “P” have under the ‘peace and tranquillity’ doctrine sovereign control over the ferry and the tanker, respectively, they are bound by the principle of customary international law that is recited in both the 1952 Brussels/CMI Convention on Penal Jurisdiction in cases of Collision and UNCLOS Article 97. Neither State may lawfully arrest or detain either ship for purposes of investigating the casualty.

Investigations are normally held with respect to criminal charges against individuals. However, the authority referred to above also forbids any of the several states involved to institute penal or disciplinary proceedings against an individual charged with responsibility for the casualty unless that individual is a national of the prosecuting state, and that implies limitation upon the power to investigate. The flag State may, however, institute such proceedings against a person serving on board that State’s vessel, and so impliedly may investigate.

Under the same authority no action may be taken with respect to the licenses or certificates held by any individuals charged with responsibility for the casualty except by the issuing State; the clear implication is that only the issuing State may investigate for that purpose, but on the facts of this casualty the issuing States will (as a matter of administrative law) probably rely upon the statements and transcripts of the casualty investigation(s) and may take official notice of the investigation report and its recommendations.

Access to the vessels and the witnesses for purposes of casualty investigation will have to be negotiated by the State authorities that do not have direct control over them. This is a factor which mitigates strongly in favour of a joint investigation.

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