Following the increased ship inspections and fines issued by the US Coast Guard at US ports, Gard’s Sean Pribyl, Senior Claims Executive, Lawyer, and Andrew Norris Independent Maritime Consulting, provide their insights on the company and employee rights during an inspection.
Overall, ship inspections are crucial for ensuring compliance with the Maritime Labour Convention, and therefore, decent living and working conditions for seafarers.
The US Coast Guard has conducted many inspections and has fined many shipping companies for breaches. In 2019, the USCG in a new official statement reiterated that hiring an unlicensed charter is illegal and dangerous, because the charter may not have the proper emergency safety gear, navigation and communication gear, and may not have undergone the proper license exams and inspections which are put in place to ensure passenger and crew safety.
Accordingly, it is highlighted that Act to Prevent Pollution from Ships (“APPS”) inspections are different from routine PSC inspections. They are targeted investigations by the Coast Guard to determine whether environmental crimes have been committed by or onboard the vessel.
How does the Master, crew, and ship operator know whether the Coast Guard is aboard to conduct a routine administrative port state control inspection, or conversely, has come aboard to investigate a potential APPS violation that can result in a massive fine and possible imprisonment of crew members?
Mr Norris informs that APPS cases for foreign-flagged vessels typically begin as a port state control examination.
In the possibility that an irregularity is detected, an expanded exam (APPS investigation) is conducted. This exam can include gathering witness statements and seizing any evidence related to the irregularity. Once the port state control officers have finished their investigation, the case is handed over to Coast Guard criminal investigators to commence their criminal investigation. Any and all evidence collected during the port state control investigation can be and is made available to the criminal investigators.
In contradiction to the non-criminal investigations that are conducted by uninformed USCG staff, criminal investigations are conducted by special agents of the Coast Guard Investigative Service (CGIS).
Moreover, it is added that the Coast Guard has no obligation 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.
So, while there are clues that a criminal investigation may be underway when a CGIS inspector arrives, the port state inspection and any information already gathered or evidence seized can be and often is used if the case is later prosecuted,
… Mr Norris comments.
Also, U.S. Coast Guard inspectors, including CGIS agents, are not required to provide any rights advisement to the crewmembers. That does not mean rights do not exist, although whether and when they exist may be difficult to discern.
Except the information needed by the crewmembers and the company for the inspection, it is stated that the Coast Guard cannot “force” the company or its employees to divulge any information through any means short of a subpoena.
Mr Pribyl highlights that
… it is essential that any statement made during an investigation is truthful because many cases arising from APPS violations involve false statements or obstruction of justice charges.
Furthermore, during an investigation, the company has the right to consult with an attorney. Yet, both Mr Pribyl and Mr Noris note that an attorney may not represent two or more clients that have a conflict of interest and APPS cases often raise conflicts.
Specifically, “criminal charges can be brought against a shipowner based on vicarious liability for actions of the crew, and that is often the case in APPS cases. Further, some of these cases are prosecuted based on evidence provided by crew members as “whistle blowers,” meaning they are providing evidence of wrongdoing alleged to have been committed by other crew members. This means that there may be conflicts of interest not only between the shipowner and crew but also between various crewmembers.”