Legal Aspects of Marine Accident Investigation in Poland
For more than half a century (since 1961), the investigation of maritime accidents in Poland was carried out exclusively by the Maritime Chambers. This situation was fundamentally changed in 2012, when the Polish legal system came under the influence of the directive of the European Parliament and Council, when the new institution was formed – the State Marine Accident Investigation Commission. From now on, the state Marine Accident Investigation Commission in Poland, next to the Maritime Chambers, is also involved in the investigation of marine accidents in Poland.
Maritime Chambers
The Maritime Chambers are quasi-judicial bodies which primary purpose is to investigate maritime accidents. The Maritime Chambers are composed of a president and one or more vice-presidents, comprising of judges of the common courts, and lay judges. At the Maritime Chambers, the minister in charge of maritime affairs also appoints a delegate who participates in proceedings before the Chamber as a spokesman for the public interest. As an opposed side, there is an interested party, who is anyone whose legal interest is related to maritime accidents.
The Maritime Chambers recognize maritime accidents: (i) ships of Polish nationality; (ii) ships of foreign affiliation if the accident has occurred in Polish internal waters or Polish territorial waters or where the shipowner or master of such ship has requested the initiation of proceedings; and (iii) in which the vessels of the Navy, Border Guard or Police participated – with the consent of the Commander-in-Chief of the Armed Forces, the Commander-in-Chief of the Border Guard or the Commander-in-Chief of the Police.
The proceedings before the Maritime Chambers comprise of two stages: (i) an investigation aimed at clarifying the course, causes and circumstances of the maritime accident and gathering the necessary information and consolidating the evidence; as well as (ii) the hearing to investigate the case. Judgments of the Maritime Chambers include, among others, the following elements: (a) the exact cause of the marine accident; (b) an indication of the ship or persons guilty of causing it, stating the extent to which they contributed to the accident; (c) indication of defects and deficiencies in the construction or operation of the vessel, its equipment, loading or manning, in the state of fairway or navigational marking equipment, and deficiencies in operations and defects in the organization of maritime safety institutions; as well as (d) assessment of the behaviour of the ship and of rescue operations.
The Maritime Chambers have the power to apply sanctions. If a member of the crew of a ship or a mariner holding a document defining their authority in maritime shipping issued by a competent Polish authority demonstrated lack of the necessary skills to ensure the safety of navigation or by the gross negligence they caused or contributed to the maritime accident, the Maritime Chambers may deprive them of the right to exercise these rights in full or partial terms for a period of 1 to 5 years.
An appeal to the decision of the Maritime Chamber issued in the first instance can be made through the Appeal Maritime Chamber. And the Court of Appeal in Gdansk is for appealing to the Appeal Maritime Chamber.
Until the entry into force of the provisions of the State Marine Accident Investigation Commission the Maritime Chambers may have instituted proceedings on request or ex officio. Institutional proceedings were instituted when: (i) the ship was sunk, lost, abandoned or otherwise lost; (ii) in the case of maritime casualties, death or serious injury to persons, or exposure to immediate danger of loss of life or serious injury; as well as (iii) the Chamber considers that the public interest requires a case to be heard (of which the Chambers were willing to use). At present, the Maritime Chambers initiate the proceedings only at the request of the concerned party or the maritime administration authority. They therefore have been deprived the possibility of initiating ex officio proceedings.
State Marine Accident Investigation Commission
The appointment of the State Marine Accident Investigation Commission has become a necessity as a result of the implementation of the Directive 2009/18/EC of the European Parliament and Council, which is a part of so called “Third Marine Package” (Erika III). The Directive introduces guidelines for conduct of investigations and exchange of experience following occurrence of an accident or a marine incident.
The Commission consists of five members (including the President and the Secretary). The Commission can benefit from expertise and experience of individual and institutional experts. The Commission is a permanent and independent body acting with the Minister responsible for maritime affairs.
Regulations of law pertaining to the Commission introduce four new definitions of marine events, which are within the Commission’s interest: (i) marine accident; (ii) very serious accident; (iii) serious accident; as well as (iv) marine incident. The Commission investigates marine accidents and incidents involving vessels of Polish affiliation, ships of foreign affiliation (if the accident or incident occurred on Polish internal waters or Polish territorial sea) as well as “ro-ro” passenger ferries or fast passenger ships, if the accident or incident occurred outside the internal waters or the territorial sea of a Member State of the European Union (where the last port of call was in Poland). The regulations provide obligation for a shipowner and a master of the vessel affected by the accident or incident to notify the Commission of it immediately and to notify a harbour master of the first Polish port to which the ship is due to enter the after the accident or incident, as well as to secure traces and evidence of the accident or incident. Based on the Maritime Code, it is the master’s obligation to immediately notify the Commission of the accident or incident. The Commission determines immediately, upon receipt of a report of the accident or incident, whether or not there has been the accident or incident. Upon completion of investigation on the accident or incident, the Commission draws up a final report (in some cases it may draw up a provisional or simplified report). The report includes, amongst others: (a) description of circumstances of the event; (b) reasons, analysis and remarks concerning factors that contributed to the event; as well as (c) marine safety recommendations. Parties, who are affected by the report, are not entitled to appeal against the report. The regulations only provide that, before issuing the final report, the Commission sends its draft to the parties, to enable them to submit comments. The Commission is not bound by the comments and decides itself how the comments will be taken into account.
From a legal point of view it is important that the Commission does not decide on a guilt (blame) or liability. The Commission’s reports cannot constitute evidence in criminal proceedings or other proceedings aimed on establishing the guilt or the liability. The Commission has been set up as an authority finding out circumstances and causes of the accident or incident for the purpose of preventing future accidents and incidents. Another very important feature of the procedure before the Commission is to ensure the confidentiality of the investigation. Thus, the Commission cannot make available to prosecution authorities in criminal proceedings or any other authorities conducting investigations to determine liability or guilt obtained by the Commission: (i) evidence from hearings of persons and other documents prepared or received by the Commission during the investigation; (ii) records revealing identity of the persons heard during the investigation; (iii) information about persons who were involved in the accident or incident of a sensitive or private nature, including information on their health status. Provision of such evidence, documents, records and information may only be made for the purposes of preparatory, judicial, judicial and administrative proceedings or proceedings, with the consent of the court, if the court considers that an overriding public interest justifies their disclosure.
Summing up the discussion on the specifics of legal solutions for the investigation of marine accidents or incidents in Poland, it should be pointed out that the changes of Polish law made several years ago resulted in a visible and clear shift of focus in the investigation of events from the Maritime Offices the Commission. However, two separate authorities still coexist, having essentially the same objectives of preventing marine accidents and incidents, and increasing the safety of navigation.
To learn more from the authors, please contact Pawel Mickiewicz at pmickiewicz@cmwlegal.pl and Dariusz Szymankiewicz at dszymankiewicz@cmwlegal.pl.