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22Maritime Reporter & Engineering News When a vessel-related acci- dent occurs on the navi- gable waters of the United States, the investi- gation machinery starts up almost imme- diately. The operator, owner, or person in charge of a vessel involved in such a casualty is obliged to give the soonest practicable notification, often followed by a written report, to the local CoastGuard Sector or office. This begins a process in which livelihoods, liberty, and civil liability might all be at stake. Care- ful thought is required when the CoastGuard investigating officer calls to re- quest an interview. The requirements to notify the CoastGuard of the occurrence of an incidentare laid out in Subpart 4 of Title 46 of the Code of Federal Regulations. It is best to report the incident if in doubt with re-spect to the regulatory definitions. For example, the federal regulations require reporting a casualty resulting in propertydamage in excess of $25,000. (46 CFR 4.05-2(a)7.) Unless little more thanscratching of paint occurred, it would be wise to immediately notify the CoastGuard rather than wait for the estimate of a marine surveyor. Giving the Coast Guard an immediate notification of the basic facts of the occurrence and the ex- tent to which the marine environment or personnel remain at risk is the best pol-icy. There is little if any downside to sim- ply reporting the incident, except perhaps some amount of operational delay. Even if a written CG-2692 needs to be submit-ted, there is no need to give a detailed self-incriminating statement. And, ex- cept to the extent that the vessel owner determines that people directly involved in the incident had used alcohol or drugs,there is no binding requirement to make any admission or to draw any conclusions as to fault for the accident. Once the Coast Guard?s investigation begins, however, the decision as to whether or not to give a full statement is not so simple. Traditional wisdom had been that refusing to cooperate with theCoast Guard would be tantamount to an admission of fault and that the best way to convince the Coast Guard that the mariner?s actions were reasonable and lawful would be to accept the opportunity to tell his or her side of the story. This instinct is strongest in a situation wherethe Coast Guard is investigating the mat- ter informally, because the investigating officer will often have interviewed other witnesses or interested parties without al-lowing the mariner or his/her counsel an opportunity to participate. The inclina- tion in those circumstances would be to give the Coast Guard a full statement be- cause of the need to rebut statements made by others, which presumablypointed the finger at the mariner. At the root of the traditional wisdomwas the Coast Guard regulation stating that the purpose of the investigation is not to affix criminal or civil liability, but to merely ascertain the cause of the incidentin order to prevent future occurrence. (46 CFR 4.07-1(b)). The regulations also contain a form of limitation with respectto the admissibility of the mariner?s state- ment: ?In order to promote full disclo-sure and facilitate determinations as to the cause of marine casualties, no admis-sion made by a person during an investi- gation?may be used against that person in a [license suspension and revocation] proceeding, except for impeachment?. (46 CFR 5.101(d)). This provision seems to assure mariners that their statementswould not come back to haunt them in subsequent proceedings against their li- censes. It was also thought that cooper- ation with the Coast Guard is relatively harmless because the final report of the Coast Guard?s investigation cannot be used in a civil lawsuit to affix liability. (46 USC §6308; but see L. Lambert, The Use of Coast Guard Casualty Investiga- tion Reports in Civil Litigation, 34 J. Mar. L. Comm. 75 (2003)) The protections which these regulations and statutes seem to afford are flimsy, however. First of all, neither of these pro- tections come into play if evidence of criminal behavior is uncovered. The Coast Guard is duty-bound to notify thelocal U.S. Attorney?s office if a formal Marine Board of Investigation is impan- eled. Moreover, the Coast Guard is legally required to present any evidence of criminal conduct uncovered in its in- vestigation to the U.S. Attorney General. Therefore, even if a statement made to the Coast Guard might not be directlyuseable as evidence in a suspension and revocation proceeding or as evidence in a civil trial, such statements or evidence might be directly used in a criminal pros-ecution. Coast Guard investigating offi- cers are fully familiar with the Miranda rule, but an investigation interview set- ting would not be considered to be an ar- rest or apprehension situation such as tomake the Miranda warning necessary. And one should not underestimate theimagination or willingness of the U.S.Attorney General or the local U.S. Attor- ney?s Office to craft a criminal indictment out of the facts of a marine casualty. Cer- tainly when a death occurs, the federallaw known as the ?Seaman?s Manslaugh- ter? statute (18 USC §1115) can comeinto play because a conviction requires proof of only simple negligence, rather than intent or recklessness. Oil pollutionincidents can readily lead to federal crim-inal indictments also. An oil pollution in- cident is likely to be well publicized, which will bring pressure upon the U.S.Attorney to take action. The Migratory Bird Treaty Act, passed almost 100 years ago in order to prevent hunting, has been used in one oil spill case after anotheragainst the individual mariners or their employers because the statute requires only a showing of the killing of a bird without proof of intent or even negli- gence. (16 USC §703). Even in the ?run-of-the-mill? collision, allision, orpersonal injury case, the operator or per- son in charge of the vessel could poten- tially be subject to criminal punishment.Title 46 of the United States Code con- tains a provision which makes it a Class A misdemeanor to ?operate a vessel in a grossly negligent manner that endangers the life, limb or property of a person.? (46 U.S.C. § 2302(b)). The line of sepa- ration between gross negligence and sim- ple negligence is a matter of degree and is not always easy to define. Ultimately, it could be left to a jury to decide whetheror not the mariner?s behavior was so neg- ligent as to constitute the ?willful, wan- ton disregard of a known risk?. Therefore, the possibility always exists that a statement voluntarily made to the Coast Guard could be used in a criminaltrial. This is not the only potential pitfall associated with cooperating in an inves- tigation, however. The regulation which bars the use of admissions in a suspen-LEGAL BEAT Marine CasualtyInsignts on an Investigation?s Problems and Pitfalls And one should not underestimate the imagination or willingness of the U.S. At- torney General or the local U.S. Attorney?s Office to craft a criminal indictment out of the facts of a marine casualty. Certainly when a death occurs, the federal law known as the ?Seaman?s Manslaughter? statute (18 USC §1115) can come into playbecause a conviction requires proof of only sim- ple negligence, rather than intent or recklessness. 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