US Bodily Injury News November 2011
Avoid witness interviews before speaking with counsel
There is no privilege which protects vessel documents/logs, communications on the ship (VDR), between the ship and the company, equipment, computers, reports, cell phones, in-house communications/memos not addressed to counsel, etc.
The attendees viewed a pre-recorded reenactment of a risk manager discussing the circumstances of the hypothetical accident with the injured crewmember (and witness). At first glance the interview appeared harmless but Mike Fernandez and subsequently Greg Linsin explored the different interpretations the risk manager’s comments were subject to and the potential for charges of criminal conduct.
Comply with reporting requirements
Certain marine casualty rules require ship’s compliance within days of an incident. Reporting should be done with the assistance of counsel.
46 CFR 4.05-10: filing of a written report of a marine casualty within five days (USCG form 2692)
46 CFR 4.05-1(a): requires immediate notice 46 CFR 4.06: Drug and Alcohol Testing Alcohol: within 2 hours Drug test specimen: within 32 hours
The USCG has broad authority to search and investigate incidents. The USCG has a criminal investigations unit, the CGIS (Coast Guard Investigation Service). In addition, other Federal and State agencies may be involved in a casualty.
These agencies freely exchange information gathered in their investigations with each other. Statements made to the various agencies may be binding upon an individual or the company for both civil and criminal matters. Thus it is important to obtain advice from counsel and follow it.
For more information and a full copy of the presentation, please contact Mike Fernandez (
fernandez@freehill.com)
P&I counsel will assess and advise if criminal conduct may have occurred
During the investigation, if inconsistencies in the documents or witness interviews suggest the truth was not told, records were amended, evidence tampered with – the P&I attorney will advise owners/managers of the need to hire criminal counsel. If a criminal investigation is possible, the crew must be advised of their rights. To assist in properly advising the crew, Michael Fernandez developed a Crewmember Checklist which can be used by the Member’s attorney or risk manager. (See page 4 opposite). It is important that the check list be followed exactly; that it be translated word for word if necessary and that the crew/officers be asked to sign and date a copy acknowledging receipt.
Investigating agencies cooperate and share information
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