Company and Employee Rights During a U.S. Coast Guard Investigation
The U.S. Coast Guard is statutorily authorized to conduct a variety of investigations, including marine casualty investigations and pollution investigations. Special Agents of the Coast Guard Investigative Service can also conduct criminal investigations. This article provides guidance to commercial operators and their employees in dealing with a Coast Guard investigation, most likely following either a marine casualty or a pollution incident (or both).
I. When must you divulge information to government authorities?
When in waters subject to the jurisdiction of the U.S., there are a number of situations when mandatory reports must be made to the Coast Guard or other federal or state agencies. In making such notifications, adequate information must be divulged to satisfy the minimum notification requirement, and thereby avoid the sanctions for failing to provide required notification.
1. Reporting a marine casualty
Immediately after the addressing of resultant safety concerns, the owner, agent, master, operator, or person in charge must notify the nearest Coast Guard office whenever a vessel is involved in certain defined marine casualties.
This immediate notice must be followed up within 5 days by a written report submitted on Form CG-2692.
2. Reporting a hazardous condition
Whenever there is a hazardous condition either on board a vessel or caused by a vessel or its operation, the owner, agent, master, operator, or person in charge must immediately notify the nearest Coast Guard office. If the hazardous condition involves a reportable marine casualty, a Form CG-2692 must be timely submitted as well.
3. Reporting an oil spill
Any person in charge of a vessel or an onshore or offshore facility must, as soon as he or she has knowledge of any discharge of oil from such vessel or facility in violation of section 311(b)(3) of the Clean Water Act, immediately notify the National Response Center (NRC).
4. Reporting a hazardous substance release
Any person in charge of a vessel or an offshore or an onshore facility must, as soon as he or she has knowledge of any release of a reportable quantity of a hazardous substance, immediately notify the NRC.
5. Reporting a discharge or probable discharge resulting from an incident
The master, person in charge, owner, charterer, manager, or operator of a vessel involved in any incident that involves a covered discharge or probable discharge must report the particulars of the incident without delay to the Coast Guard or NRC.
II. Sanctions for failure to report
Penalties for failing to report mandatory items are severe. For example, the sanctions for failing to report an oil spill or release of hazardous substances include a significant fine, imprisonment for up to 5 years, or both. Reporting failures can also lead to substantial civil penalties issued by the Coast Guard; for example, the offense of failure to report a marine casualty can lead to a civil penalty of up to $39,936/day.
III. Coast Guard investigations, and your rights (and obligations) during one
Making a report as just described will likely trigger a Coast Guard investigation. This Part discusses the rights and obligations of a commercial operator and its employees during a Coast Guard investigation.
1. Operators and their employees have an obligation to carry out or assist in carrying out immediate response activities
Companies and crewmembers have an obligation to take response activities such as going to the assistance of mariners in distress, and taking steps to contain and begin cleaning up a spill. The Coast Guard may also be involved in the response, while simultaneously conducting an investigation into the cause of the underlying incident, as the following internal Coast Guard guidance makes clear:
An investigation should never supersede or impinge upon search and rescue or pollution response activities, but must be carried on concurrently. Many investigation activities, particularly those for pollution investigations, are integrated and required parts of pollution response.
Because the nature of the Coast Guard involvement may not be made clear (see 6. below), companies and crew members must be careful not to gratuitously discuss the circumstances leading up to the incident, but only convey information necessary to carry out or assist in carrying out immediate response activities.
2. Operators and their employees may not obstruct justice or unlawfully impede a Coast Guard investigation, such as by destroying evidence or physically impeding the movement of Coast Guard officials. See 18 USC 1503, 1505.
3. There is no requirement to answer questions
Other than mandatory reporting as discussed in Part I above, plus essential communications necessary to carry out response activities, the Coast Guard cannot “force” the company or its employees to divulge any information through any means short of a subpoena. This means that any person being questioned by the Coast Guard during an investigation can decline to answer questions.
Coast Guard internal guidance for their Investigating Officers (IOs) on dealing with a crewmember who declines to answer questions during an investigation is as follows:
If [a crewmember declines to answer questions] on-scene, this does not mean the Coast Guard must stop asking reluctant crewmembers for assistance or stop asking questions. IOs may continue asking questions of reluctant crewmembers just as they would a cooperative crewmember. However, IOs should not single out, harass or badger reluctant crewmembers. Further, any attempt to encourage a reluctant crewmember to participate in a response or investigation should not be in the form of a threat of subsequent prosecution or other action.
Furthermore, Coast Guard guidance recognizes that merely failing to provide information does not constitute obstruction of justice:
A crewmember or attorney who fails to provide information or assistance should not be considered to be obstructing justice.
3.a. Coast Guard-issued subpoenas
Coast Guard-issued subpoenas are not self-enforcing, which means that the Coast Guard has no inherent compulsion mechanism to enforce compliance. Instead, the Coast Guard must approach the local U.S. Attorney and convince him/her to take the subpoena before a federal judge and attempt to get the judge to order compliance (such an order, if issued, must be complied with!).
Failure to comply with a Coast Guard-issued subpoena does not, by itself, constitute obstruction of justice.
4. The Coast Guard can generally seize relevant physical evidence
In furtherance of its investigation, the Coast Guard may remove vessel records (documents and/or electronic) and other physical evidence from the vessel. Crewmembers should not physically attempt to impede the Coast Guard while it is carrying out such seizures. The company, through its attorneys, can challenge the lawfulness of any seizures after the fact, either directly with the Coast Guard or through judicial processes.
The master can ask the Coast Guard to explain its actions, and should carefully record the response. The master should also insist on a receipt for all items seized. All items necessary for safe or lawful operations must be replaced before the vessel operates, either with an original returned by the Coast Guard, or a suitable replacement.
5. Evidence may be used for any purpose
Any written or oral information an operator or its employees or representatives provides to the Coast Guard, as well as any physical evidence (logbooks, piping, pumps, etc.) provided to or seized by the Coast Guard, can be used by U. S. authorities for any purpose, up to and including as evidence in a civil or criminal proceeding.
6. The nature, type, and purpose of an investigation may not be clear or clarified
The Coast Guard is not required to advise the company or its employees of the type of investigation (pure safety purposes, criminal purposes, or both) it is conducting, and the reason it is asking the questions it is asking. Internal Coast Guard guidance advises investigators to respond as follows if questioned about the purpose of an investigation:
IOs should cite the specific authority that they are acting under (sometimes several) when asked as to the purposes of an investigation. If asked about the possibility of criminal liability by a witness or involved person before or during an interview, the IO should respond with words to the effect that “the Coast Guard is free to choose civil, criminal, or administrative enforcement when an apparent violation is detected, and any decision to take one type of action does not preclude another type of action.”
This intentionally noncommittal statement serves multiple purposes, first and foremost of which is to keep all investigative options open. A related purpose is to avoid misleading and unauthorized statements such as “this is not a criminal inquiry,” or “this is just an investigation for cause,” which may cause legal difficulties for the Coast Guard if a criminal investigation is in fact undertaken. Under no circumstances is an IO permitted to “cut a deal” with crewmembers or their attorneys to gain assistance. Similarly, Coast Guard personnel must not make any representation as to a possible grant of immunity.
7. Attorney rights
The company and any employee questioned during an investigation have the right to consult with an attorney and to have an attorney present during that questioning. The Coast Guard should delay the investigation for a reasonable period to permit an attorney to be retained and to travel to the site of the investigation.
Coast Guard guidance in the event the subject of an investigation asks for the assistance and/or presence of an attorney is as follows:
The IO should advise the witness that they are free to consult their own attorney on matters prior to giving testimony. Wherever possible, a mutually agreed upon time and place offering reasonable opportunity to consult with an attorney should be arranged. Such delay for consultation should be reasonable given the ready availability of attorneys.
7.a. Who is the attorney representing?
It may be a conflict of interest for an attorney retained by the marine insurer to represent the operating company, managers, or crewmembers, and vice versa, since the interests of the various parties may conflict. An experienced IO will clarify the question of representation as soon as he or she comes in contact with an attorney.
7.b. What may or may not an attorney do on scene?
The attorney may not interfere with response or investigative efforts by obstructing or physically impeding the response or investigation, or by tampering with witnesses.
Attorneys are obviously permitted to advise their client(s), including advice not to answer questions. Attorneys also have the right to be physically present if the client(s) elect to answer Coast Guard questions.
Attorneys may demand and be permitted to be present during the interview of non-clients. Coast Guard policy is that in general, exclusion of any person, including an attorney, is inappropriate; in other words, the attorney should be permitted to sit in on any Coast Guard interview, even of a non-client. That policy goes along with the policy that the Coast Guard may not remove an attorney from the scene unless he or she is physically impeding the response.
8. Right to a translator/interpreter
The Master and/or crew have the right to request that arrangements be made to have a translator present during IO interviews in the event there is a language barrier. The Coast Guard should grant this request if it does not involve excessive delay. Crew members should consult with company officials and/or attorney representatives if there are issues relating to interpreters or language barriers.
9. Any information provided to the Coast Guard must be 100% truthful
Any information provided, either mandatorily or voluntarily, to the Coast Guard must be 100% accurate. Owners/operators and their employees who end up facing criminal prosecution in the U.S. typically do so not for the underlying incident (spill, casualty, etc.), but for lying to Coast Guard officers during the course of an investigation. It is far better to say nothing than it is to provide untruthful information. Note that untruthful information can take the form of a false verbal statement by an individual, but also the presentation of documents (log books, etc.) that contain false information in them.
10. Cooperation may, after all, be the best policy
Coast Guardsmen are human, and may be more favorably disposed toward a company that is cooperative during an investigation. Conversely, they may be less well disposed toward a company that does not cooperate. That favorable or unfavorable disposition may manifest itself in the vigor with which the Coast Guard pursues any enforcement action once their investigation is complete.
IV. Conclusions and Recommendations
Taken together, the facts and considerations discussed in this article warrant the following recommendations:
1. The information in this article should be shared, at a minimum, with all corporate compliance officers and all vessel masters.
2. All companies and vessels operating in U.S. waters must have a robust plan in place for protecting their equities in the event of an incident in U.S. waters. This includes internal notification requirements in the event of an incident, plus the pre-identification of a robust network of advisors and agents to provide guidance and recommendations in the event of a Coast Guard investigation.
3. Part of that network must be the ready ability to retain or employ the services of an experienced maritime law firm to, among other things, ensure proper notification is provided; guide the decision on whether to cooperate with a Coast Guard investigation, and if so, to what extent and in which manner; and to oversee interactions with the Coast Guard to ensure that the company or its employees do not needlessly expose themselves to civil or criminal sanctions.
4. Form 2692 and its addenda should be prepared in consultation with corporate compliance officials and attorney advisors. As this article should have made clear, though submission of a 2692 is mandatory if a reportable marine casualty occurs, what the 2692 says, and how it says it, particularly with respect to the nature and cause of the casualty, may have significant repercussions to the company and all involved personnel. This warrants taking all necessary time (though not more than 5 days) and effort, after professional consultation, to ensure that minimum reporting requirements are satisfied without providing gratuitous or unnecessarily harmful information.
Captain Andy Norris, U. S. Coast Guard (ret.), is an attorney and a qualified marine casualty investigator. He currently works as a maritime legal and regulatory consultant.
The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.