Brian K. McNamara | Article
Technological advances in the maritime industry challenge governments’ abilities to regulate marine safety in protection of those who make a living exposed to the perils of the sea. Mobile Offshore Drilling Units exploit natural resources farther and farther from shore. Liquefied natural gas-propelled vessels under construction upend traditional safety inspector training programs. Meanwhile, Arctic drilling creates unprecedented hurdles, from vessel fuel compatibility to supply chain logistics, both for the vessels sailing these waters and for the government regulators seeking to establish physical presence for oversight and safety. And while many regulations struggle to keep pace with technology, in some cases aspirational regulators even attempt to force technological development.
As the industry pushes geographical and technological boundaries, government regulators face challenges in preventing future accidents through timely, thorough, and accurate marine casualty investigations. A more complex maritime shipping industry will suffer more complex marine casualties, exceeding the capability of regulators to conduct competent investigations and requiring greater cross-sector, inter-governmental, and interagency coordination and collaboration to identify lessons learned and prevent future accidents. This Article examines the United States’ domestic legal framework governing marine casualty investigations through the lenses of both law and Public Administration scholarship and analyzes whether the current law encourages the collaboration needed (1) between casualty investigators and individual mariners, (2) between casualty investigators and the private sector, and (3) between casualty investigators and members of other governmental agencies to investigate highly complex marine accidents. Ultimately, this Article concludes that while United States law does incentivize coordination and collaboration to a certain degree, there is room for improvement to the extent that marine casualty investigations are a search for truth above other values.
This Article is important because it goes beyond previously published work addressing marine casualty investigations in an attempt to view United States law through the concepts of coordination and collaboration. Prior publications related to marine casualty investigations fall generally into one of two categories. In the first category, valuable practitioner-oriented works explain various aspects of United States marine casualty investigation law. The second category consists of normative arguments that international or United States standards for marine casualty investigations do not protect the rights of individual mariners or private entities involved in marine casualty investigations or other regulatory investigations. This Article goes beyond the scope of these previously published articles by drawing upon academic work in the field of Public Administration to put forth a social science argument for legal structures that would encourage coordination and collaboration. This Article also may serve as a foundation for further empirical study of marine casualty investigations conducted under the laws of the United States or of other nations.
Why examine the organization of marine casualty investigations through the academic lens of Public Administration? This author submits that while law provides the necessary framework for marine casualty investigations, and lawyers play a vital role in representing their clients’ interests during marine casualty investigations (when allowed), accident investigations ultimately are an exercise in government administration. Citizens expect government to keep them safe from crime, to build and maintain transportation infrastructure, and to investigate maritime accidents to protect the lives of mariners and the health of the marine environment.
Government plays an active role in marine casualty investigations. Four general types of proceedings may arise from a marine casualty in the United States—civil litigation, criminal prosecution, administrative proceedings, and marine casualty investigations. In civil litigation, the government plays a relatively passive role. It provides the forum in which private parties settle their disputes, along with a judge to describe the rules of the game and to ensure the parties play by the rules. Putting aside the situations in which the government is a party to civil litigation, the government does not drive the substance of the civil litigation. The government plays a more active role in criminal prosecutions and administrative proceedings such as mariner license revocation hearings. In these cases, the government provides not just a forum, but a prosecutor to bring charges on behalf of the public. Still, the government-supplied judge or hearing officer usually relies upon the parties to develop the facts of the case.
By contrast to civil litigation, criminal prosecutions, and administrative hearings, the government directly administers marine casualty investigations. The government’s lead investigator, usually not an attorney, is much more than an umpire or referee in a quasi-judicial proceeding. The lead investigator must establish procedural rules, mediate disputes, build a highly-cohesive investigation team of representatives from more than one governmental agency, or even more than one nation, and then manage the individual and collective interests of the team members in order to develop the facts of the marine casualty.
When viewed through the lenses of both law and Public Administration, one sees the law governing marine casualty investigations as one of the inputs, and perhaps the most dominant input, for a governmental exercise with the potential for broad impacts beyond just parallel civil litigation. Law provides the “structure” for this government exercise. Technological advances in the maritime industry raise the potential for catastrophic marine casualties, and more than ever it is important to limit any casualty occurrence. Therefore, it is important to consider whether the search for truth should dominate over other values in the law of marine casualty investigations, and if so, whether the existing structure encourages coordination and collaboration to identify lessons learned, to implement those lessons, and to keep a casualty from happening twice.
Part II of this Article reviews key concepts in the field of Public Administration and reviews existing legal literature on marine casualty investigations. This Part begins by defining “marine casualty.” It then describes characteristics of a “wicked problem” and explains why the issues addressed by marine casualty investigations should be considered wicked problems. It then discusses the concepts of cooperation, coordination, and collaboration and applies those concepts to marine casualty investigations, while drawing parallels between themes of recent emergency management literature and marine casualty investigation practice. It continues by examining various descriptive and prescriptive legal scholarship on maritime investigations, both in the United States and in the international community.
Part III outlines the international and domestic legal principles governing marine casualty investigations in the United States, with particular emphasis on the investigation procedures of the U.S. Coast Guard. Part IV analyzes selected statutes and regulations governing marine casualty investigations to determine whether U.S. law encourages coordination and collaboration for marine casualty investigations. This Part ultimately determines that while certain marine casualty investigations laws encourage coordination and collaboration, more can be done to encourage cross-boundary work in marine casualty investigations in order to better promote marine safety.
This Article concludes by proposing a dual-track approach to marine casualty investigations in the United States in order to promote greater collaboration and coordination between marine casualty investigators and individuals, the private sector, and other governmental agencies for complex marine casualties. This Article also acknowledges certain limitations in such an approach, and calls for further empirical study of marine casualty investigation procedures of other maritime nations in an effort to better understand those factors that would contribute to coordination and collaboration, and ultimately determine which would best promote the safety of life at sea.
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