Independent Maritime Consulting have provided a useful guide as to what happens during a US Coast Guard investigation focusing on the rights and obligations of shipowners and employees.
USCoast Guard responsibilities following an incident include responding to the incident itself and its consequences, as well as conducting an investigation into the cause(s) of the incident for a variety of purposes. The Coast Guard recognizes the indistinct line between a response and an investigation in its internal guidance:
An investigation should never supersede or impinge upon search and rescue or pollution response activities, but must be carried on concurrently. Many investigation activities, particularly those for pollution investigations, are integrated and required parts of pollution response
Companies and crewmembers have an obligation to take response activities such as going to the assistance of mariners in distress, stopping an active spill, and taking steps to contain and begin cleaning up the spill. This obligation can be carried out independently, or in conjunction with the Coast Guard. However, beyond conveying necessary information to carry out or assist in carrying out immediate response activities, companies and crew members must be careful not to gratuitously discuss the circumstances leading up to the incident.
1. No requirement to answer questions
Other than mandatory reporting as discussed above, plus essential communications necessary to carry out response activities, the Coast Guard cannot “force” the company or its employees to divulge any information through any means short of a subpoena. This means that any person being questioned by the Coast Guard during an investigation can decline to answer questions. This may not be the best idea, but it is an option/right, IMC says..
2. Coast Guard issued sobpoenas
Coast Guard-issued subpoenas are not self-enforcing. What this means is that even though subpoenas are written in imperative terms, if a company or employee declines to comply with the subpoena, the Coast Guard has no inherent compulsion mechanism to enforce compliance. Instead, the Coast Guard must approach the local U.S. Attorney and convince him/her to take the subpoena before a federal judge and attempt to get the judge to order compliance. This process, even if ultimately successful, may take days or even weeks.
3. Coast Guard can generally seize relevant physical evidence
In furtherance of their investigation, the Coast Guard may remove vessel records (documents and/or electronic) and other physical evidence from the vessel. Crewmembers should not physically attempt to impede the Coast Guard while it is carrying out such seizures. The company, through its attorneys, can challenge the lawfulness of any seizures after the fact, either directly with the Coast Guard or through judicial processes.
4. Evidence can be used for any purpose
Any written or oral information the company or its representatives provides to the Coast Guard, as well as any hard evidence (logbooks, piping, pumps, etc.) provided to or seized by the Coast Guard, can be used by U. S. authorities for any purpose, up to and including as evidence in a civil or criminal proceeding.
5. The nature, type, and purpose of an investigation may not be clear or clarified
An investigation can be purely for administrative/marine safety purposes (determining and documenting the cause of an accident); it can be purely for criminal purposes (for example, if a crewmember murders another); it can from its inception be for both marine safety and criminal purposes (investigating an oil spill that was not reported); or it can begin as a marine safety evolution and then morph into a criminal one (this is the typical modus operandi in suspected MARPOL violations, such as oily water separator bypass cases). The Coast Guard is not required to advise the company or its employees of the type of investigation it is conducting, and the reason it is asking the questions it is asking. Internal Coast Guard guidance advises investigators to respond as follows if questioned about the purpose of an investigation:
IOs should cite the specific authority that they are acting under (sometimes several) when asked as to the purposes of an investigation. If asked about the possibility of criminal liability by a witness or involved person before or during an interview, the IO should respond with words to the effect that “the Coast Guard is free to choose civil, criminal, or administrative enforcement when an apparent violation is detected, and any decision to take one type of action does not preclude another type of action”
