Many legal questions have been raised during the last 120 hours; initially when communications had been lost with Titan, a submersible operated by OceanGate Inc., a corporation based in Everett, Washington, and then on the afternoon of June 22, 2023, when the world learned that the Titan reportedly suffered a "catastrophic implosion" during a deep sea expedition in the North Atlantic Ocean, leading to a total loss of the submersible and the lives of those onboard. The authors' thoughts are with the families and friends of those lives lost at sea.
This Holland & Knight alert addresses the questions that logically follow a marine casualty involving loss of life as it relates to the investigative process the U.S. Coast Guard (USCG) and the National Transportation Safety Board (NTSB) follow if they have jurisdiction to investigate, as well as search and rescue (SAR) efforts, classification societies and marine insurance. Although the role the U.S. may have in subsequent investigations remains to be seen, understanding certain key considerations if there is a sufficient U.S. nexus to establish jurisdiction for a marine casualty investigation in the U.S. is critical in such tragedies.
Tourist Submersibles: Not a New Concept
The Titan had departed from St. John's, Newfoundland, aboard a research and expedition ship on June 16, 2023, and following a notification to USCG of a loss of communications with the Titan, an extensive SAR effort by the USCG and international partners ensued. The underlying facts and cause of the tragic loss of the submersible and persons onboard remain unclear, and while various media reports are offering anecdotal views on background information related to the Titan, such facts are yet to be verified and are generally beyond the scope of this alert. Invariably though, such casualties raise questions as to "what is next" in understanding the unanswered questions surrounding this marine casualty.
Commercial passenger-carrying submersibles have been in existence since the mid-1960s, and since 1986, the USCG has been involved with the developers of the submersible industry to establish safety policies. This work focused on the design, construction and operation of submersibles. Indeed, the first passenger-carrying submersible operation in waters subject to USCG jurisdiction commenced in 1987 at St. Thomas, U.S. Virgin Islands.
In 1990, the advent of passenger-carrying submersibles prompted the publication of a National Academy of Sciences (NAS) study and report on the Safety of Tourist Submersibles (Report). The Report was prefaced on a request to the NAS Marine Board to review and assess the hazards involved in tourist submersible development and operations and to advise them of the approaches that might best be used to ensure public safety. The Report was prepared by a Committee on Assessing Passenger Submersible Safety and analyzed, inter alia, procedures for classification and certification of tourist submersibles, including rules and regulations, design, plan review, applicability, findings and conclusions regarding classification and certification.
The Report was a precursor to the promulgation in 1993 of the USCG's Navigation and Vessel Inspection Circular (NVIC) No. 5-93 on Guidance for Certification of Passenger Carrying Submersibles, which remains in force today. NVIC 5-93 provides guidance for certification of passenger-carrying submersibles under Title 46, Code of Federal Regulations, in light of the considerable research and development conducted relative to the safe design, construction and operation of small manned submersibles. The NVIC provides a comprehensive overview of relevant regulations regarding inspected and uninspected submersibles, and in regard to the latter, notes that "[b]ecause of the unique design and operating characteristics, as well as the inherent hazards of underwater operation, an uninspected submersible may be permitted in U.S. passenger operations only if it is designed and constructed to a recognized industry standard."
The NVIC also states that the basic requirement for passenger-carrying submersible design is that in the event of any single failure, the vessel can be returned to the surface without external assistance. In terms of the hull structure, the USCG suggested that it should be designed, fabricated and inspected to the standards of the American Society of Mechanical Engineers (ASME) Code for Pressure Vessels for Human Occupancy (PVHO-1). (See PVHO-1 2019.) A hull structure designed, fabricated and inspected to the standards of the American Bureau of Shipping (ABS) Rules for Underwater Vehicles Systems and Hyperbaric Facilities is considered to provide an equivalent level of safety to ASME PVHO-1.
Current U.S. Regulations and Classification Society Rules Related to Passenger-Carrying Submersibles for Hire
It is a tenet of regulatory oversight that federal agencies must have jurisdiction and authority to act for purposes of compliance and enforcement. Authority granted to the USCG allows or mandates them to conduct an investigation. Generally, Congress has granted the USCG legal authority to investigate various incidents based upon multiple statutes and regulations. Jurisdiction relates to where, when and over whom that authority is exercised.
U.S. regulations define a "submersible vessel" as a vessel that is capable of operating below the surface of the water. (See 46 CFR § 70.10-1.) In assessing submersible operations under U.S. jurisdiction, 46 CFR § 175.110(a)(4) applies to vessels of less than 100 gross tons that carry 150 or fewer passengers and carry at least one passenger for hire. Thus, U.S. law reflects that Congress and the USCG have provided for express oversight of certain submersibles.
U.S. regulations also require that vessels built in the United States or operating in U.S. waters be certificated by the USCG to meet applicable requirements for safety at sea, as well as other regulations established pursuant to law. Factors that can be considered in determining jurisdiction over a passenger-carrying submersible for hire in the U.S. include, for example, where the submersible was registered (flagged), where the submersible was operating, where the submersible was designed and built, and the nationality of the operator or any passengers.
One of the thorny questions following the Titan casualty, posed by reporters, interested observers, and even the motion picture director James Cameron in press engagements, is the regulatory rubric within the U.S. related to tourism submersible vessels. It is first important to note that there is a distinction between the authority to investigate as compared to a requirement to investigate – the existence of legal authority does not necessarily require that the USCG investigate. The issue of whether the USCG is required to investigate requires an examination of the express statutory or regulatory language governing such an investigation.
A separate but related issue is the role that a classification process plays in submersible vessel operations. Depending on the respective operations, a submersible vessel may be expected to meet standards for construction and operation established by the only classification society in the U.S. or another recognized classification agency. The NAS Report offers useful commentary in this regard in explaining that "when a vessel meets standards established by a classification society, it is deemed to be 'classed' … these are two important terms – certification and classification – which are sometimes used interchangeably, resulting in some confusion. While there is some overlapping of the plan review and inspections, essentially the USCG is responsible for certificating that the vessel and every aspect of its operation meet all federal regulations." Thus, while a submersible is "classed" by a classification society, it would be "certified" by the USCG to operate if subject to U.S. jurisdiction and if it meets technical and safety standards. To this end, the USCG relies extensively, but not exclusively, on the classification societies in performing such functions.
Separately, marine insurers may require that a passenger-carrying submersible meet standards for construction and operation and be appropriately "classed," adding to the importance of the role of classification societies and their guidance documents.
USCG Marine Casualty Investigation Authority
Given ongoing reporting that the Titan suffered a catastrophic implosion, the SAR response logically shifted to a recovery operation. In tandem with those next steps, it is expected that questions will be raised as to any subsequent investigations that will be initiated. As mentioned above, the USCG will need respective jurisdiction and authority to engage in any investigation, whether as a lead or supporting agency.
USCG authority to investigate marine casualties are primarily found in Title 46, U.S. Code, Chapter 63 and 46 CFR Part 4, which provides the authority to conduct marine casualty investigations, as well as sets forth the scope of the investigation of marine casualties and incidents and regulations that govern same. To illustrate, 46 U.S.C. § 6301 provides the authority for the USCG to conduct marine casualty investigations and establishes the scope of the investigation of marine casualties and incidents required. Marine casualty or accident means any casualty or accident involving any vessel other than a public vessel that 1) occurs upon the navigable waters of the United States, its territories or possessions, 2) involves any United States vessel wherever such casualty or accident occurs or 3) with respect to a foreign tank vessel operating in waters subject to the jurisdiction of the United States, including the Exclusive Economic Zone (EEZ), involves significant harm to the environment or material damage affecting the seaworthiness or efficiency of the vessel. The implementing regulations in 46 CFR 4 permit the USCG to determine the level of investigation and investigative effort. Generally, USCG guidance documents state that all incidents reported to the USCG, regardless of the source, will be investigated in accordance with 46 U.S.C. 6301 and 46 CFR 4.07. (See Marine Safety Manual Vol. V., CIM_16000_10a.)
However, the USCG "determines on a case-by-case basis what investigative actions are appropriate for a specific case based on the likely value to marine safety, available resources, and risks in a given port." The criteria for the investigation of marine casualties and determining level of effort are detailed in USCG guidance documents.
Questions will naturally arise as to the role of the USCG in marine casualty investigations involving non-U.S. flagged vessels that occur outside of the navigable waters of the United States but that may still fall within the USCG's authority. Such instances may in the first instance be governed by the International Maritime Organization's Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, MSC.255(84), which was developed "to provide a common approach for States to adopt in the conduct of marine safety investigations into marine casualties and marine incidents." This Code was later incorporated into a USCG NVIC on Reporting and Investigation of Marine Casualties where the United States is a Substantially Interested State (SIS) NVIC 05-17. This NVIC provides policy and guidance for the coordination and cooperation of marine casualty investigations with other SISs consistent with the generally recognized practices and procedures of international law described in 46 U.S.C. Chapters 61 and 63, and addresses the receipt of reports and the conduct of investigations into those marine casualties involving non-U.S. flagged vessels that occur outside of the navigable waters of the United States but fall within the USCG's authority as a SIS.
The USCG will prepare a report at the conclusion of a marine casualty investigation that summarizes the key findings of fact, opinions and recommendations. However, such report of a marine casualty investigation is generally not admissible as evidence or subject to discovery in any civil court proceeding as a result of the casualty or administrative proceedings, other than an administrative proceeding initiated by the United States.
Therefore, it is not a certainty that the USCG will become involved in any investigations into the Titan incident, but that direction will come from these governing statutes, regulations and formal guidance in such decision-making.
NTSB Investigation Authority
Maritime industry stakeholders may be unaware of the important role the NTSB plays in the investigation of certain marine casualties, as it is so closely associated with aviation incidents. The NTSB is an independent U.S. agency responsible for civil transportation accident investigations – including marine accidents – and determines probable cause and makes recommendations to prevent similar accidents from occurring, and retains discretion over whether or not to investigate certain maritime accidents. The NTSB operates under different authorities from the USCG, and thus the NTSB's investigations are divergent in rather significant ways.
The NTSB Office of Marine Safety (OMS) investigates marine casualties to determine the probable cause of each casualty and identify safety recommendations that will prevent similar events in the future. Such investigations of casualties include those classified by the USCG as major marine casualties in U.S. territorial waters or involving U.S.-flagged vessels worldwide, and casualties involving both U.S. public (government) and nonpublic vessels. In addition, the office investigates select catastrophic marine casualties. In addition to determining the facts and probable cause of an investigated marine casualty, the NTSB also identifies potential hazards and proposes safety measures or recommendations to reduce the likelihood of future accidents. The NTSB works closely with the USCG in major marine causalities, particularly those that include any one of the following: 1) the loss of six or more lives, 2) the loss of a mechanically propelled vessel of 100 or more gross tons, 3) property damage initially estimated to be $500,000 or more and 4) a serious threat, as determined by the Commandant of the Coast Guard with the concurrence of the NTSB Chair, to life, property or the environment by hazardous materials. (See 49 CFR Part 850.) In support, the USCG and NTSB operate under a Memorandum of Understanding (MOU) to assist in determining which agency will lead certain major marine casualties and accidents involving public and non-public vessels and to establish standard procedures for interagency communication, cooperation and coordination.
Unlike other agencies, the NTSB affords involved "parties to the investigation" the opportunity to assist in developing the underlying facts in support of the NTSB's final report and decision on probable cause. This means that parties have the unique opportunity to examine factual reports that may include discussion on operational matters, mechanical issues and human-error analysis – before the NTSB report is finalized.
In civil litigation involving a marine casualty, the final accident investigation reports prepared by the NTSB are of particular interest. However, no part of a NTSB report 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. (See 49 U.S.C. § 1154(b).) The factual reports by the investigative groups involved in an NTSB accident investigation, called Group Factual Reports, and which do not contain the findings of the NTSB or its probable cause determination, are considered by the NTSB not to fall under the statutory prohibition against the use of its final reports. As mentioned, USCG reports are similarly excluded from evidence. In any case, at present, the scope and role of the NTSB in the Titan disaster has yet to be revealed, although these are important considerations for any party in a NTSB or USCG marine casualty investigations. A party's participation should be managed carefully with experienced counsel.
Conclusions and Considerations
The loss of the Titan and all souls onboard, in and around the final resting place of the R.M.S. Titanic, is particularly heartbreaking for the maritime community. In a marine accident involving loss of life, there are often calls for improved safety and accountability voiced by regulators, Congress, industry or the public. The authors encourage the avoidance of any rush to judgment about underlying causes of the catastrophic implosion, as a better understanding of the underlying facts will presumably come after the marine casualty investigations that follow. Any subsequent actions as a result of the factual findings should be in line with guiding authorities and well-established principles. In the interim, navigating NTSB and USCG investigations should be done with advice from experienced counsel to avoid the myriad pitfalls under the variety of investigative procedures and practices likely to govern such investigations.
