Marine Inquiries: Balancing the 'no-blame'investigation with the regulatory investigation to achieve marine safety outcomes

• Author: John Kavanagh
• Position: LLB (Hons), DAppSci (Nautical). John Kavanagh is a graduate of the Australian Maritime College, and served as a ship's officer in the Australian Merchant Navy for 9 years. John then studied law and has worked as a solicitor in both private practice and in Government. John's current role is Project Officer for the implementation of the Wunma ...
• Pages: 177-219

MARINE INQUIRIES: BALANCING THE ‘NO-BLAME’ INVESTIGATION WITH

THE REGULATORY INVESTIGATION TO ACHIEVE MARINE SAFETY

OUTCOMES

John Kavanagh∗

In recent years a new style of incident investigation has emerged to challenge the continued relevance

of the marine inquiry jurisdiction. Known colloquially as ‘no-blame safety investigation’, safety

investigation agencies exercise an investigative response to serious marine incidents. Safety

investigation is fundamentally concerned with finding the causes of the incident in order to prevent its

recurrence, and the attribution of blame is expressly not one of its functions. By contrast, the marine

inquiry jurisdiction requires a consideration of fault as well as causation, and sometimes results in

criminal, civil and administrative liability consequences. The legal regimes associated with each style

of maritime incident response are compared and contrasted and it is suggested that the marine inquiry

regime, whilst it has presently fallen out of favour, has characteristics that offer greater utility and

possibly superior marine safety outcomes than the safety investigation regime alone.

1. Introduction

Marine Inquiries1 are a traditional response to serious marine incidents with a centuries-long heritage.

A marine inquiry generally consists of a judicial-style of investigation into the circumstances of an

incident, with a view to making findings of fact and attributing blame, often assisted by nautical

experts or assessors. In times past, marine inquiries also had a disciplinary function, with the ability to

cancel or suspend the certificates of mariners concerned.

In recent years a new style of incident investigation has emerged to challenge the continued relevance

of the marine inquiry jurisdiction. Known colloquially as ‘no-blame safety investigation’, safety

investigation agencies, such as the Australian Transport Safety Bureau, have been established to

exercise an investigative response to serious marine incidents. The essential characteristics of no-

blame safety investigation include the abrogation of the privilege against self-incrimination and the

isolation of the evidence collected and the final report from any other use aside from safety purposes.

Safety investigation is fundamentally concerned with finding the causes of the incident in order to

prevent its recurrence, and the attribution of blame is expressly not one of its functions.

Notwithstanding the emergence of the no-blame safety investigation agency in a number of Australian

jurisdictions, the marine inquiry continues to exist in marine safety legislation, at least at state level,

and the marine inquiry remains an important element in the administration of marine safety in

Australia.

∗ LLB (Hons), DAppSci (Nautical). John Kavanagh is a graduate of the Australian Maritime College, and served as a ship's officer in the

Australian Merchant Navy for 9 years. John then studied law and has worked as a solicitor in both private practice and in Government.

John's current role is Project Officer for the implementation of the Wunma Board of Inquiry recommendations. John's previous role was as

Manager of the Compliance Unit within Maritime Safety Queensland ('MSQ'). In that role, he was responsible for the investigation of

marine accidents, marine pollution from ships and other contraventions of Queensland's marine legislation. I am indebted to my colleagues,

Dr Gerard Sammon (Crown Law Queensland) and Mr Warren Wilson (NSW Mariti me), for their comments on an earlier version of this

paper. All errors and omissions remain my own. The opinions expressed in this article are my own, and not that of Maritime Safety

Queensland nor the Queensland Government.

1 A short note on usage: a reference to a ‘board of inquiry’ means a board of inquiry established under part 12 of the Transport Operations

(Marine Safety) Act 1994 (Qld); a reference to a ‘court of marine inquiry’ means a Court of Marine Inquiry established under the Navigation

Act 1912 (Cth); whereas a reference to ‘marine inquiry(ies)’ is a reference to marine inquiries generally, not necessarily a particular inquiry

established under a particular Act.

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Part 12 of the Transport Operations (Marine Safety) Act 1994 (Qld) (‘TOMSA’) provides for the

establishment and conduct of boards of inquiry into marine incidents. Since the introduction of

TOMSA in 1994, two boards of inquiry have been established to investigate marine incidents in

Queensland.2 In each case, the terms of reference for the inquiry included consideration of systemic

and regulatory issues, rather than simply focussing on the proximate causes of the marine incidents

themselves.

Boards of inquiry are established by the Queensland Minister responsible for maritime safety and are

tasked to inquire into the circumstances and probable causes of a marine incident and to give the

Minister a written report of the Board's findings.

The conduct of boards of inquiry is contrasted with the establishment of 'no-blame' safety

investigation agencies at Commonwealth level by the Transport Safety Investigation Act 2003 (Cth)

and State level3 in Australia in the maritime jurisdiction. To facilitate the discussion, no-blame safety

investigation reports are compared to reports prepared by regulatory agencies using traditional

investigative methods. The most recent board of inquiry into the marine incident concerning the ship

Wunma is also considered, and in particular, how the board approached its consideration of systemic

and regulatory issues.

It is argued that the powers and limitations created by the Transport Safety Investigation Act 2003

(Cth) exceed what is necessary to achieve an appropriate safety outcome. Further, the powers and

limitations created by the no-blame safety investigation regime unnecessarily interfere with the marine

safety regulator's ability to perform their legislative responsibilities, such as by denying access to

crucial evidence. Finally, the no-blame safety investigation regime can only report on substantially

untested findings of fact and circumstances and make recommendations. Those whose role it is to

implement such recommendations, such as marine safety regulators, must make independent inquiries

to support any action taken in relation to a recommendation because of the limitations imposed by the

no-blame safety investigation regime.

These criticisms are considered in the context of three main themes: first, the tension between the dual

objectives of an inquiry, that is, to investigate into the facts and circumstances of an incident to

prevent its recurrence and also the possibility for the attribution of blame to participants in the incident

where appropriate; second, the evolving use of nautical expertise to inform the inquiry by the use of

assessors and expert investigators; and third, the development of the safety investigation agency and

its attendant characteristics of no-blame attribution, confidentiality of evidence, and the removal of

legal protections such as self-incrimination, procedural fairness and rights to representation.

2. Marine Inquiries

2.1. What is a Marine Inquiry?

The starting point is a consideration of the common characteristics associated with marine inquiries.

According to Ogilvie4:

Courts of marine inquiry occupy a unique place in the Australian legal system as do shipping courts in the

British legal system, in that their jurisdiction over national ships and seamen is worldwide. They are

administrative courts of a special character. They are a compromise between administration within the

discretion of a government department unaccustomed to judicial procedures and an ordinary court of

justice, which may not possess the special knowledge which is desirable for matters of nautical inquiry.

They are entirely independent of the department for whose assistance they were created.

2 The reports of both boards of inquiry are available on the Maritime Safety Queensland web site at:

http://www.msq.qld.gov.au/Home/Publications/Reports_of_boards_of_inquiry/

3 New South Wales has established a safety investigation body, The Office of Transport Safety Investigations (OTSI), which is responsible

for, amongst other things, investigating incidents involving Passenger Ferries in NSW. The OTSI has similar powers and responsibilities to

the ATSB, but a detailed examination of that agency lies outside the scope of this paper. For more, see www.otsi.nsw.gov.au.

Victoria also has a no-blame safety investigator: see http://www.transport.vic.gov.au/chiefinvestigator accessed 4 July 2008.

4 AG Ogilvie Courts of Marine Inquiry in Australia (1979) 53 ALJ 129 at 132.

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White5 quotes with approval an extract from a 1929 English book entitled ‘Shipping Inquiries and

Courts’6 as encapsulating the principal characteristics of a marine inquiry. Marine inquiries, it is said,

are:

• administrative in character but whose decisions can have consequences for the private rights

of individuals;7

• effectively created by the relevant regulatory body (such as the Ministry for Transport in the

United Kingdom or previously the Australian Maritime Safety Authority in Australia) or the

relevant Minister or other appropriate authority;

• vested with a specific jurisdiction relating to the investigation of certain kinds of maritime

casualty; often specific questions are asked of the inquiry by the establishing authority; in later

years the jurisdiction of the inquiry may be described by ‘terms of reference’;8

• the inquiry is assisted by the relevant government department representing the public interest

and also as the holder of expert knowledge in relation to shipping and marine matters;

• the inquiry is usually constituted by a person or persons of legal training and so the

proceedings of the inquiry are usually conducted in accordance with the usual legal

formalities;

• such legally qualified persons are often assisted by assessors who have the skills appropriate

to the subject matter of the inquiry;

• the inquiry makes a formal report of its decision, including reasons, together with such

recommendations as are appropriate;

• at least originally, marine inquiries also had a disciplinary component, with the ability to

suspend or cancel the certificates of masters, mates and engineers;9 and

• the inquiry is independent, impartial and entirely distinct from the government for whose

assistance the inquiry was created.10

A marine inquiry therefore is a specially constituted administrative 'court' or tribunal, created for a

specific purpose; that is, to investigate the facts and circumstances of particular maritime incident;

using a peculiar combination of legal and nautical expertise; in some cases able to take disciplinary

action against the participants in the marine casualty; and to deliver a report on the incident to the

government of the day.

The marine inquiry fills an important niche role in achieving marine safety whilst balancing the

regulatory role; it is independent of the regulatory agency, enabling it to exercise its inquirial functions

independent of any influence of government, whether perceived or actual; and it also allows an

independent examination of culpability that is unaffected by the prevailing views of the regulator.

5 M White Marine Inquiries (1993) 9 QUEENSLAND UNIVERSITY OF TECHNOLOGY LAW JOURNAL 61.

6 ARG McMillan Shipping Inquiries and Courts, Stevens and Sons Ltd London 1929.

7 In Marine Board; Ex parte Dalton (1876) 14 SCR (NSW) 277, Sir James Martin CJ said (at 281) that the NSW Marine Board '…has all

the elements of a Court-the power of summoning parties and witnesses, and punishing them if they disobeyed the summons-of hearing

evidence on oath administered, and of deciding questions which might deprive persons of civil rights.’

8 See for instance the Formal Investigation Notice for the Marchioness-Bowbelle Formal Investigation available from

http://www.marchioness-bowbelle.org.uk/ accessed 14 May 2008.

9 See for example Robbie v Director of Navigation (1944) 44 SR (NSW) 407.

10 See for example paragraph 2.4 of the Report of the Board of Inquiry into the Marine Incident Involving the Ship Wunma in the Waters of

the Gulf of Carpentaria on 6 and 7 February 2007, at http://www.msq.qld.gov.au/Home/Publications/Reports_of_boards_of_inquiry/

accessed 14 May 2008

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