Thomas H. Belknap Jr. and William R. Bennett III ●
Blank Rome’s maritime attorneys have been retained in the wake of many tragic maritime casualties that have resulted in the catastrophic loss of life, significant personal injury, damage to the environment, and loss of property. Examples include: the Staten Island Ferry’s allision with a maintenance pier; the blow-out and eventual loss of the Deepwater Horizon; the sinking of the El Faro; the collision of the USS John McCain with the M/V Alnic MC in the Singapore Strait; the Mexican Navy’s tall ship Arm Cuauhtémoc’s allision with the Brooklyn Bridge; and the M/V Dali’s allision with the Francis Scott Key Bridge in Baltimore.
Following decades of experience investigating and advising clients after marine casualties, it is a certainty that marine casualties will continue to occur, notwithstanding marked improvements in the implementation of international safety protocols, safety-related advancements in ship design, and an industry-wide focus and dedication to safety. They hopefully will not occur as often as they once did, but they will happen. And when they do, the scope of such casualties is increasingly larger and more complicated.
Obviously, maritime stakeholders should always strive for and celebrate a goal of zero days lost due to accidents. But industry stakeholders also should always be prepared to respond immediately to maritime casualties when they occur, and should know what an investigation around such casualties will entail.
In this regard, it is important to understand the investigative process involved when a significant marine casualty occurs. It is common for the National Transportation Safety Board (“NTSB”) and the United States Coast Guard (“USCG”) to coordinate, at least in part, efforts in investigating and seeking to establish the root cause of a marine casualty. NTSB and USCG investigations are similar in many ways, but different in some key areas. And, following the conclusion of their respective investigations, recommendations made by the NTSB and/or USCG, if any, differ notably in scope.
Owners, operators, and other entities may be expected to assist in the investigation and may be designated as a party-in-interest following a marine casualty. Non-owner/operator entities that could be designated as a party-in-interest include port authorities, pilots, and equipment manufacturers. It is important for the industry to understand the purpose of both NTSB and USCG investigations.
The NTSB
The NTSB’s stated purpose can be found on its website:
The National Transportation Safety Board is an independent Federal agency charged by Congress with investigating every civil aviation accident in the United States and significant accidents in other modes of transportation—railroad, highway, marine and pipeline.
The principal purpose of the NTSB is “investigating every civil aviation accident.” The NTSB has five board members, each nominated by the president and confirmed by the Senate to serve five-year terms. A member is designated by the president as chairman and another as vice chairman for two-year terms. Notwithstanding that investigating marine casualties is not the primary purpose of the NTSB, the NTSB will investigate significant marine accidents. And, in fact, the NTSB has a designated marine department made up of numerous professionals with significant marine experience. They include licensed masters, chief engineers, naval architects, and other experts in various marine-related fields of study.
Following notice of a major marine casualty, the NTSB begins its investigation. The NTSB investigation team is called the “Go Team.” Depending on the severity and/or technical challenges relating to the marine casualty, the “Go Team” can be a small unit or a large unit comprising personnel with a range of technical expertise that is needed to examine complex transportation safety issues. The “Go Team” can number from three or four to up to more than a dozen specialists from the NTSB’s headquarters in Washington, D.C. Team members are assigned on a rotational basis to respond as quickly as possible to the scene of an accident. The fact-finding mission of the investigation begins at the accident scene. The NTSB will inspect all vessels and equipment involved in the incident.
The NTSB may designate parties-in-interest following a marine casualty. Such designation may be beneficial because it provides those parties access to information not provided to the public or to others involved in the incident that are not so-designated. However, the NTSB may restrict a party-in-interest from independently investigating the incident, including from interviewing employees and witnesses. The NTSB’s investigation will likely include a robust review of a vessel’s safety management system (“SMS”) and the safety culture of all entities involved in the casualty. The NTSB may serve comprehensive document requests and also will likely interview crew members and employees of companies involved in the incident. A corporate representative is permitted to attend any such interviews, but witnesses are typically not entitled to have a lawyer present. If the USCG is participating in the interview, there is an argument that the crew member or employee is entitled to a lawyer because the USCG has the power to refer a witness to the United States Department of Justice (“DOJ”) for criminal prosecution. With the consent of the NTSB, a company’s general counsel may attend the interview.
Following the completion of its investigation, the NTSB will issue a preliminary report. It may also issue draft reports throughout the course of its investigation. The NTSB will request input from the parties-in-interest and is receptive to factual edits and corrections to its draft reports. Because the purpose of the NTSB is to establish the root cause of a marine casualty, and not to find fault, it is open to receiving comments from parties involved in the incident. The NTSB has historically accepted changes to its preliminary report when the recommendations are based on credible facts and well-founded expert opinions. Thus, it is vital that parties-in-interest have respected experts available to review the NTSB’s reports.
The NTSB will generally hold a public board meeting to publicly announce its findings, and will then issue a final report. It is important to note that in its final report, which is made public on its website, the NTSB will not specifically attribute fault to any person or any entity. Nor will the NTSB recommend a penalty, punishment, or sanction. Rather, the NTSB’s final report will provide a factual background and state what the NTSB believes is the probable cause(s) of the incident. It will also make recommendations to the industry aimed at avoiding similar incidents in the future. That said, the findings of the NTSB will obviously assist other agencies and litigants with independently building a case and establishing who is at fault and why. Notably, the Independent Safety Board Act, 49 U.S.C. § 1154(b) provides that, “[n]o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.” This statute has been interpreted differently by different U.S. federal courts, though they are generally in agreement that the probable cause of a final NTSB Report may not be admitted into evidence in a civil case. Some courts have permitted factual reports and factual findings from Final Reports to be admitted. It is important to note that the statutory preclusion relates only to civil actions for damages, and thus there is no prohibition on the use of an NTSB Report, final or otherwise, in a criminal case.
The USCG
As the agency responsible for marine safety, the USCG is tasked with investigating and analyzing marine casualties. USCG investigations range from obtaining and analyzing evidence for minor incidents to formal proceedings for incidents involving serious personal injury, death, and significant environmental and property damage. The purpose of every USCG investigation is to analyze the facts surrounding the casualty, determine the cause(s) of the casualty, and, if necessary, initiate necessary corrective actions.
Significant investigations are spearheaded by a USCG lead investigating officer (“LIO”), who will have substantial experience investigating marine casualties. The LIO is supported by USCG and civilian casualty investigators, technical experts, legal advisers, and other support personnel from within the USCG. Significant investigations also often include cooperation between the Coast Guard and NTSB, which increases the complement of skills investigating the casualty. The NTSB and USCG will, however, issue separate reports.
Like the NTSB, the USCG’s primary mission when investigating marine casualties is to determine the root cause(s) and to use the information gathered during the investigative process to consider promulgating new rules or advisories to prevent further casualties. Unlike the NTSB, the USCG will also determine if there were acts of negligence, misconduct, or other violations of federal law that contributed to or caused the casualty. And, if so, the USCG may refer the matter to the DOJ to determine if criminal charges are warranted.
Like the NTSB, the USCG will also designate parties-in-interest, which are typically individuals or entities that have a direct interest in the outcome of the investigation, i.e., owners, operators, licensed mariners, and others whose actions are under investigation. In a joint investigation, the USCG and NTSB will agree on the parties-in-interest. Unlike in an NTSB investigation, a party-in-interest in a USCG investigation may be represented by counsel at all stages, including when giving testimony. From the USCG’s perspective, the primary role of a party-in-interest is to help the USCG gather the relevant facts. The USCG will request documents, access to computers and electronic data, and witnesses to testify. If an entity or witness is not voluntarily cooperating, the USCG has the authority to issue administrative subpoenas to require the production of documents and information and to summon witnesses for testimony. Testimony at a formal hearing, like a Marine Board of Investigation hearing, is usually open to the public unless it involves classified materials or affects national security.
After gathering all relevant information, including testimony given at the public hearing, the USCG will analyze the evidence to determine, as best as possible, what caused the accident. At the completion of the investigation, a Report of Investigation will be prepared by the LIO and his or her team. The Report will contain findings of fact, causal analysis, conclusions, and safety recommendations. Unlike the NTSB, a party-in-interest in a USCG investigation is not typically given an opportunity to comment on the Report until after it is finalized and submitted to the commandant of the Coast Guard for review and approval. The Report is released to the public once approved by the Commandant of the USCG.
Conclusion
Marine investigations by federal investigative bodies can both aid and complicate a party’s efforts to investigate the cause of a casualty. The existence of one or both of an NTSB and USCG investigation also can create separate compliance and cooperation obligations on the part of the various interested parties. It is critical, therefore, that an interested party understand both the similarities and differences between an NTSB investigation and a USCG investigation, as each has differing goals and different potential consequences for the parties.
This article is one in a series of articles written for Blank Rome’s MAINBRACE: August 2026 edition.