History of the German Maritime Casualty Investigation
Marine casualty investigation in Germany – past and present
Recognition of the fact that investigating marine casualties is beneficial has existed since the performance of seafaring on a larger scale. Consequently, many seafaring nations introduced formal investigation procedures early on so as to clarify the causes of any given accident and draw lessons to prevent similar accidents in the future. This primarily concerned exposing and penalising misconduct, however.
Accordingly, after the formation of the German Empire in 1870, the introduction of a single flag for the entire German fleet and the growing importance of German maritime shipping associated with that, draft legislation was drawn up in Germany at the instigation of representatives of the Hanseatic cities and brought into force in 1877 as the ‘Law concerning the investigation of marine casualties’ (Gesetz betreffend die Untersuchung von Seeunfällen).
This law laid down a quasi-judicial procedure, which entailed a hearing to determine the causes and, in particular, to assess the conduct of the parties involved. Confiscation of a certificate of proficiency was one possible outcome.
The main principles of the regulations adopted in 1877 remained applicable up until 30 September 1986, when they were superseded by the Law on maritime casualty investigation (Seeunfalluntersuchungsgesetz – SeeUG) as a consequence of judicially ordered constitutional requirements. Although its provisions gave rise to considerable administrative and procedural changes, the principle of a quasi-judicial marine casualty investigation, focusing primarily on penalising the misconduct of a decision maker involved in a marine casualty, was met in full. The Maritime Boards in Kiel, Hamburg, Bremerhaven, and Emden, which were directed by a person qualified for appointment to judicial office and staffed by full-time and part-time qualified assessors, were restructured to form the investigating committees of Waterways and Shipping Directorates North and North-West. The appellate body for their administrative rulings (Maritime Board rulings) was the Higher Federal Maritime Board of Inquiry, a federal higher authority located in Hamburg established specifically for this purpose.
Germany's reunification inevitably involved the transfer of East Germany's system of marine casualty investigation to the administrative structures of the former Federal Republic. The Marine Court in Rostock was superseded by the establishment of the Rostock Maritime Board. Apart from that, the legacy system of marine casualty investigation was initially maintained.
At the same time as the aforementioned isolated developments in Germany and other seafaring nations, recognition that marine casualty investigation can make an important contribution to enhancing the safety of shipping and therefore help to protect human life, the environment, and material goods started to gain traction around the world as early as in the 1940s. International treaties, conventions and resolutions at International Maritime Organization (IMO) and European Union level – such as the United Nations Convention on the Law of the Sea of 10 December 1982, the International Convention for the Safety of Life at Sea of 1 November 1974 (SOLAS), the International Convention of Load Lines of 5 April 1966, the International Convention for the Prevention of Pollution from Ships of 2 November 1973 (MARPOL), and Council Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services – dealt with (but in each case only on the periphery) the issue of marine casualty investigation more or less specifically. However, this concerned sub-areas or, for example, was limited to certain vessel categories and largely without binding effect internationally.
Adoption of the Code for the Investigation of Marine Casualties and Incidents in the Annex to Resolution A.849(29) of the IMO Assembly of 27 November 1997, amended by Resolution A.884(21) of 25 November 1999, was a special landmark in this advancement. For the first time, the establishment of a system for modern and standardised marine casualty investigation was recommended to seafaring nations, which should be designed explicitly and exclusively to investigate marine casualties detached from questions of blame and responsibilities under liability legislation, so as to significantly increase the knowledge gained from accident investigations.
Germany's legislature drew the necessary conclusions from the above advancements and in passing the Law to improve safety of shipping by investigating marine casualties and other incidents of 16 June 2002 (Gesetz zur Verbesserung der Sicherheit der Seefahrt durch die Untersuchung von Seeunfällen und anderen Vorkommnissen – SUG, BGBl. (Federal Law Gazette) 2002 I p. 1817 ff.) effected a fundamental realignment of marine casualty investigation. The institution and objective of the Maritime Boards were retained in principle in a separate section of the new SUG. However, the formation of the Federal Bureau of Maritime Casualty Investigation (BSU), which executes its legal mandate of investigating autonomously, meant the establishment of a new federal higher authority that was independent, equipped with a variety of powers, and investigated marine casualties with the sole objective of drawing necessary lessons from them and thereby enhance the safety of shipping.
Whereas the Federal Republic of Germany and Great Britain, Finland, several Nordic countries, and Australia and Canada, for example, transposed the IMO's recommendations into their national legislation early on, many other countries inside and outside the European Union found the approximation of their own legal systems difficult. This complicated international co-operation between flag, coastal, and other States interested in the investigation of marine casualties when more than one was involved, amongst other things.
Therefore, a Casualty Investigation Code was adopted through IMO Resolutions 255.84(84) and MSC.257(84) of 16 May 2008 and implemented in the internationally binding SOLAS agreement, which obliges flag States to investigate according to a uniform standard very serious marine casualties, i.e. those involving the loss of human life or a ship, as well as heavy environmental pollution. Flag and concerned coastal States are required to co-ordinate their related investigative activities, while aligning the execution thereof with the aforementioned investigation code.
This is taken one step further by Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (referred to below as 'Directive'). Referring explicitly to the aforementioned guidelines of the IMO and the definitions and principles contained therein, these oblige Member States of the Union to investigate both very serious and serious marine casualties when they are involved in a marine casualty as flag or coastal State or due to other substantial interests. Although serious marine casualties – or in summary, those that resulted in at least the temporary disablement of a ship or involved environmental pollution – may be excluded from the obligation to investigate, this may happen only if a preliminary investigation gives rise to a comprehensible explanation for the lack of necessity.
A single legal framework for the investigation of marine casualties and any necessary cross-border co-operation was thus established within the European Union. Where necessary, the Federal Republic approximated the SUG to account for the requirements of the aforementioned Directive with the Law amending the Maritime Safety Investigation Law (BGBl. 2011 I p. 2279), which entered into force on 1 December 2011. Since the Directive does not cover the provisions for proceedings of the Maritime Board, they remained unchanged for the most part.
The wording of the SUG – or the provisions governing the work of the BSU – was revised. Moreover, its structure and nomenclature were reorganised to enhance usability. In particular, the referencing of a large number of provisions from the Aviation Accident Investigation Law (FlUUG, BGBl. 1998 I p. 2470 ff.) opted for in the 2002 version of the Law and related restriction of the SUG to a list of 'definition translations', exemptions, and extensions (see former version, Article 15 SUG) have been abandoned.
Alongside that, the recast Article 1 SUG, in particular, facilitates application of the Law with the amended and focused definition of the substantive scope, as well as with the insertion of Article 1 a SUG, which now defines the term, marine casualty, that actually sets the course for the necessity and scope of any maritime safety investigation, in all its different classifications, without the complication of having to refer to secondary legal sources.
A turning point compared to the 'former' SUG is the fundamental exclusion of non-commercial pleasure craft (provided that there is no required crew on board and not more than 12 passengers are carried) and fishing vessels not exceeding 15 metres in length from the list of incidents requiring investigation (see new version, Article 1(3)(2 and 3) SUG). Although – in favour of the BSU – the legislature establishes a savings clause for precisely those types of vessel under paragraph 4 of the discussed rule, this counter-exception from the boundary of the substantive scope only applies to Germany's territorial waters and the adjacent Exclusive Economic Zone (EEZ).
Article 11 SUG was amended substantially and inevitably in the wake of implementing the EU Directive. Whereas an actual obligation of the BSU to investigate certain accidents could be derived from the previously applicable SUG only within narrow constraints and then only in conjunction with international rules that were only partially binding under international law, implementation of the aforementioned European legislation now delivered clear and unambiguous guidelines under which the BSU must operate after a marine casualty.
In the process, alternative points of reference are – as was already the case but now worded far more specifically – the classification of an incident as a very serious or serious marine casualty, the German flag, Germany's territorial waters and the adjacent EEZ, and finally the Federal Republic of Germany's substantial interest in a maritime safety investigation.
In addition to the above reforms, the substantive change in the investigation procedure likely to have the greatest importance in practice deserves special mention. This is the reduction in the period for consultation for people and bodies particularly affected by the investigation report from 60 to 30 days after circulation of the draft (see new version, Article 27(4) p. 1 SUG). All in all, the EU guidelines state that the investigation procedure should be streamlined and where possible closed with the publication of an investigation report within 12 months of the marine casualty (see new version, Article 28(1) p. 1 SUG). If it is not possible to meet this deadline, then an interim investigation report must be published to notify the public of the continuing pendency of the investigation through this official channel.
Finally, the safety recommendations published by the BSU as a result of an investigation are upgraded. Article 29(5) of the new version of the SUG states that any addressee of safety recommendations is obliged to report to the BSU on the progress of their implementation.
Expressed in nautical terms, it can be summarised that a sure course toward a modern system of marine casualty investigation designed to support the concept of the safety partnership and the goal of enhancing the safety of shipping as a whole has been steered in the Federal Republic of Germany with the enactment of the Maritime Safety Investigation Law in 2002. The amendment of the SUG in 2011 is the result of global position fixing, which the legislature has accounted for by making only marginal course corrections, as necessary. The BSU's general course discussed above, i.e. the exclusive task of making seafaring safer with its work, remains unchanged, however.