As we pray and continued to hope that survivors of the EL FARO will be found, we continue to ponder the numerous questions as to the underlying facts, circumstances and causes. Such was the case with the sinking of the bulk carrier POET in 1980 and the LASH vessel MS MUNCHEN in 1978. Both vessels were lost with all hands leaving no witnesses to testify as to what had occurred. Hopefully that will not be the case with the EL FARO. Looking ahead as to how those questions may be answered, it is of interest to note that under US law two agencies have authority to investigate major marine casualties, the National Transportation Safety Board and the US Coast Guard. A major marine casualty is defined in 46 C.F.R. § 4.40-5 and in 49 C.F.R. § as follows:
.... a casualty involving a vessel, other than a public vessel, that results in:
(1) The loss of six or more lives:
(2) The loss of a mechanically propelled vessel of 100 or more gross tons;
(3) Property damage initially estimated at $500,000 or more; or
(4) Serious threat, as determined by the Commandant and concurred in by the Chairman, to life, property, or the environment by hazardous materials.
Once the Coast Guard makes an official determination that a "major marine casualty" has occurred. The NTSB will be notified. What follows may be either an independent investigation by each agency or a joint investigation. If joint, one of the agencies will be designated as the lead agency.
In addition to federal regulations, there is also A Memorandum of Understanding, dated 12/19/2008, signed by the Commandant and the Acting Chairman of the NTSB that insures both agencies will cooperate and provide mutual assistance in all investigations. The Agreement also includes flexible criteria as to which will be the lead agency.
The Formal Hearing Process
The purpose of a formal NTSB/CG Hearing or "Marine Board" is to investigate and determine the causes of the casualty and to make safety recommendations. The Board will have available experts in navigation, ship-handling, marine propulsion, naval architecture, lifesaving and survival emergency response and marine safety. The Board proceeds by calling or subpoenaing witnesses and by examining documents. The process unfolds similar to a court room trial with witnesses sworn in, documents entered into evidence and testimony recorded.
Parties in Interest
Equally important for the families of those who may have been lost at sea is the opportunity to participate in the hearing as a Designated "Party in Interest". A "Party in Interest" is defined under 46 CFR 4.03-10 as ..."any person whom the Marine Board of Investigation or the investigating officer shall find to have a direct interest in the investigation..." It includes the vessel owner or charterer, as well as any crewmember whose conduct is under investigation by the Board or investigating officer."
While a surviving spouse or family member of a deceased crewmember does not have a statutory right to be designated as a Party in Interest, the Marine Board has the discretion to confer that status. The Marine Safety Manual states :
Any individual, organization, or other entity that can demonstrate the potential for contributing significantly to the completeness of the investigation, or otherwise enhancing the safety of life and property at sea, through participation as a party in interest (e.g., a maritime labor union, pilot's association, standards making organization, or an individual or corporation incurring damages as a result of the casualty.
In regard to the Estate of Deceased crewmember, the importance of being allowed to participate in the hearing as a Party in Interest cannot be overstated. It allows a representative, typically an attorney representing the family or Estate, to cross examine witnesses and to examine and offer into evidence relevant documents.
In the formal NTSB/Coast Guard investigation that followed the loss of the Tall Ship HMS BOUNTY in Hurricane Sandy, both Jake Shisha and Ralph Mellusi were granted permission to represent the Estate of Claudene Christian as a Party in Interest. We were granted permission based on our professional maritime qualifications, both having sailed as licensed Coast Guard officers, (Jake as a deck officer and Ralph as an engineer) and the fact that our law firm had been granted Party in Interest status in a prior major marine casualty involving the explosion and sinking of the tanker GOLDEN DOLPHEN in 1982.
The recent Board of Investigation into the loss of the HMS Bounty required more than three weeks of daily hearings. More than thirty persons testified and were cross examined by the Panel, by Mellusi and Shisha and other Parties in Interest. Over a thousand pages of exhibits were entered into the official record. The final reports of the Coast Guard and NTSB included numerous findings of negligence and incompetence on the part of the owner and master as well as the particulars as to the Unseaworthiness of the vessel. Numerous safety recommendations and changes to existing maritime regulation also followed.
In the case of the EL FARO, many unanswered questions exist as to the facts and circumstances of the loss. However there is every reason to believe that the combined efforts of the NTSB and the Coast Guard assisted by designated Parties in Interest, will ultimately provide the answers.