Question 2 - Which State or States should investigate?

Answer:

States “A” and “B” have the primary obligations to investigate the casualty under conventional international law, and State “Y” has an extremely substantial interest and perhaps an obligation to investigate under its national law. Clearly any preliminary investigation into this complex casualty will produce valuable results only if these 3 States co-operate closely – hopefully to the extent of holding a joint preliminary investigation.

This is a major international casualty and there should be a joint formal investigation with the fullest participation by all of the States concerned, with the ‘obliged’ States sharing the costs. One of the 3 States above should be the “lead” or host state for the investigation, and as a prime consideration is the availability of physical evidence and the convenience of directly-affected parties and witnesses it is State “Y” that perhaps would be the best host for the formal investigative proceedings.

Question 3 - What limitations may be experienced?

Answer:

Although States “Y” and “P” have under the ‘peace and tranquillity’ doctrine sovereign control over the ferry and the tanker, respectively, they are bound by the principle of customary international law that is recited in both the 1952 Brussels/CMI Convention on Penal Jurisdiction in cases of Collision and UNCLOS Article 97. Neither State may lawfully arrest or detain either ship for purposes of investigating the casualty.

Investigations are normally held with respect to criminal charges against individuals. However, the authority referred to above also forbids any of the several states involved to institute penal or disciplinary proceedings against an individual charged with responsibility for the casualty unless that individual is a national of the prosecuting state, and that implies limitation upon the power to investigate. The flag State may, however, institute such proceedings against a person serving on board that State’s vessel, and so impliedly may investigate.

Under the same authority no action may be taken with respect to the licenses or certificates held by any individuals charged with responsibility for the casualty except by the issuing State; the clear implication is that only the issuing State may investigate for that purpose, but on the facts of this casualty the issuing States will (as a matter of administrative law) probably rely upon the statements and transcripts of the casualty investigation(s) and may take official notice of the investigation report and its recommendations.

Access to the vessels and the witnesses for purposes of casualty investigation will have to be negotiated by the State authorities that do not have direct control over them. This is a factor which mitigates strongly in favour of a joint investigation.