Congress has conferred upon the United States Coast Guard (through the Secretary of Transportation), the duty to investigate the causes of marine casualties, and the power to issue Regulations for the conduct of such investigations. The stated purpose of a Coast Guard investigation is not to assess civil or criminal liability for the casualty, but to determine the cause of the casualty, and whether any misconduct or negligence by any licensed individual, or material/equipment failure, caused or contributed to the casualty. The Regulations state that marine casualty investigations are “for the purpose of taking appropriate measures for promoting safety of life and property at sea, and are not intended to fix civil or criminal responsibility.” 46 C.F.R. § 4.07-1(b).

However, at the same time, a casualty investigation should also determine whether there is evidence that an act has been committed that would subject the offender to a civil or criminal penalty, so that appropriate action may be undertaken in a separate proceeding, to collect the penalty, or refer the matter to appropriate authorities for criminal prosecution or administrative proceedings (e.g., license suspension/revocation proceedings). Therefore, a Coast Guard investigation is an important preliminary step toward any eventual civil, administrative, or criminal proceedings to be initiated against the person whose illegal or negligent actions may have caused or contributed to the casualty. For obvious reasons, the possibility of future sanctions against the parties involved in the casualty may have a “chilling effect” upon their enthusiasm to cooperate fully with the Investigating Officer.

To overcome this effect, the law provides the Investigating Officer with broad powers to obtain the evidence needed. See 46 U.S.C. § 6301, et seq. The Investigating Officer has the power to administer oaths and to issue subpoenas for the production of evidence and the attendance and testimony of witnesses. The Investigating Officer’s power in this regard is “coextensive” with that of a United States District Court. A person involved in a marine casualty cannot usually refuse to provide a statement to the Investigating Officer, even if it may be damaging to that person or their employer, since a Coast Guard investigation is not a criminal proceeding. While most investigations are conducted informally, in the most serious incidents, a Marine Board of Inquiry may be convened with a panel of one or three members to hear evidence in a formal setting. At such a hearing license holders and other interested parties have the right to be represented by counsel and may call witnesses, examine and cross-examine witnesses. At the conclusion of the investigation the Investigating Officer shall submit to the Commandant via the Officer in Charge, Marine Inspection, and the District Commander, a complete written report of the facts, together with opinions and recommendations. The Officer in Charge, Marine Inspection, and the District Commander shall forward the Investigating Officer´s report to the Coast Guard Commandant with endorsements stating their approval or disapproval, actions taken on the recommendations, whether license suspension/revocation action has been or will be undertaken, and whether navigation laws have been violated.

Since investigation reports are intended to be utilized to promote safety of life and property at sea, and since Investigating Officers may not be completely candid if they know that their reports and opinions will be used as evidence in a lawsuit for damages, federal law and Coast Guard Regulations state that no part of a marine casualty investigation report (including findings of fact, opinions, recommendations, etc.) may be admitted into evidence in any civil or administrative proceeding (other than an administrative proceeding initiated by the United States). Similarly, all Coast Guard employees are protected from becoming involved as witnesses in follow-on litigation by laws and Regulations that prohibit them from giving trial or deposition testimony concerning a marine casualty investigation, without first obtaining the permission of the Secretary of Transportation. However, in cases in which the testimony sought pertains only to factual information not available elsewhere or obtainable by other means, the Secretary must permit Coast Guard employees to testify (in a manner acceptable to the Secretary). Therefore, parties involved in marine casualties (and their insurers), who anticipate an action being filed for damages, must diligently retain their own investigators and expert witnesses, to parallel the Coast Guard’s investigation, since they cannot rely solely upon Coast Guard personnel to testify at trial or to offer their opinions on the causes of the incident.

Coast Guard investigations are typically very thorough. Recent investigations have employed technologies that would be very costly to private litigants. For example, in several recent investigations, the Coast Guard has utilized the government’s resources to extract data from the tiny computer memories of GPS systems in order to reconstruct a vessel’s track during the hours leading up to a collision. While such information would be very valuable to a party seeking to recover damages, neither the report nor the opinions of the Investigating Officer will be admissible in evidence. Persons involved in a marine casualty must remember that the statements they give to the investigators can and will be used against them, and that when the investigation is over and the report is written, neither the Coast Guard personnel, nor the investigation report, will be of any evidentiary use to the litigants (or their insurers) in pursuing or defending any litigation that may follow.