Anything to declare?
MARITIME inquiries in connection with a casualty involving a foreign merchant vessel in Finnish territorial waters are regulated by Finnish law. From the vessel’s point of view, the maritime declaration process is a very important part of the inquiry procedure.
Voluntary and mandatory maritime declaration by foreign merchant vessels
A maritime declaration made by a foreign vessel in Finland may be either mandatory or voluntary. A competent Finnish court is obliged to receive the voluntary maritime declaration of any foreign vessel registered in Norway, Sweden or Denmark. For other foreign vessels, a voluntary maritime declaration will be accepted under Chapter 18:12.1 of the Maritime Code in cases when there is a reason for it.
According to Chapter 18.6 of the Finnish Maritime Code, a maritime declaration should be made:
- when someone on board the vessel has died or suffered a serious injury in connection with the running of the vessel
- when someone has died on board
- when a serious poisoning has occurred on board
- when the vessel has collided with another vessel or run aground
- when the vessel has been abandoned at sea
- when considerable damage is caused to the vessel in connection with its running or while in progress, or to property outside the vessel
- in case of an extensive fire, explosion or shifting in the cargo when the Finnish Maritime Administration or the master or owners so demand after some incident has occurred in connection with the running of the vessel, or considerable cargo damage has arisen and cargo interests demand a maritime declaration.
If the maritime administration considers that an incident that has occurred in connection with the running of a foreign vessel requires an investigation of aspects of maritime safety and the vessel is in a Finnish port, the maritime administration can order that a maritime declaration be given. Such an order will be given to the master or to the owners. Orders for mandatory maritime declaration have generally been given to foreign ships in grounding matters, collision matters and environmental damage matters.
The giving of maritime declarations
A maritime declaration shall be given to the maritime court of the place where the incident took place or where the vessel or its master first arrived.
Exemption from maritime declaration
Under Chapter 18:15 of the Maritime Code, a maritime declaration will not be necessary when the incident is investigated in accordance with the Accident Investigation Act. However, the master may give a maritime declaration if he wishes, and in fact usually does so.
The maritime declaration
The maritime declaration is a written statement given by the master to the maritime court in connection with a casualty as defined in the Maritime Code.
The aim of the maritime declaration is not only to offer the master an opportunity to clear himself, but also to serve as evidence material for the shipowner or cargo owner or for other parties in the event of a claim for damages against the insurer or against each other. A maritime declaration given in the required order and confirmed under oath constitutes full evidence against the master or some other person who gave it, and it will also be given evidence value until otherwise proven. Thus, nothing will prevent the party affected by the casualty from presenting counter-evidence.
The maritime declaration and the connected maritime hearing have, in addition to a legal civil purpose, a legal public purpose to, among other things, clarify whether or not the master or some other member of the crew has been guilty of error or negligence when performing his task. Failure to give a maritime declaration within the stipulated time and in the proper way may prove to be expensive for the master because he may lose the evidence benefit which a legally given maritime declaration offers.
The position of the maritime declaration in an casualty inquiry
Maritime criminal and civil proceedings are to a great extent based on the documentation of the maritime declaration. The maritime declaration is a special legal act in the sense that the master often has to give the court his maritime declaration of loss before any charges have been made, and before any claim for damages has been directed against himself or the owner.
At the time of giving his maritime declaration, the master may not know what he might be held responsible for, nor may he know whether he is going to be prosecuted. Even if it is known that there is a risk of charges being brought, the master does not at this stage know exactly what he might be charged with.
Therefore, in preparation for the maritime declaration, the master and owner must in a short time, before the maritime declaration session in detail, map out and clarify the casualty in full, covering both the facts and questions of liability. The task is often difficult and the master never has much time to produce this documentation.
A casualty is not usually the result of one indisputable nautical error or negligent act, but it may be a complicated course of events with many different contributing factors. While clarifying the details of the casualty, the maritime declaration also constitutes part of the master’s and owners’ defence. The maritime declaration should in a correct way consider the master’s and owners’ liability interests.
Construction of the maritime declaration
The master should in his maritime declaration cover all the relevant issues with regard to liability. Legal practice accepts that the maritime declaration of a foreign master of a foreign vessel is given in writing. The master’s witnesses are heard in an oral witness hearing.
Directives for maritime declarations by the Ministry of Trade and Industry
The Ministry of Trade and Industry issues a directive to decide what the maritime declarations in different types of casualty should contain. These directives are important, as the courts will always follow them when handling maritime declarations. The directives cover maritime declarations involving collisions, groundings, shifted cargo and loss of vessel, engine incidents, fires, death and injury.
Documentation of the maritime declaration, which should be as complete as possible, depends on the nature of the casualty.
The court’s maritime declaration hearing
During the maritime declaration session, the court will get complete clarification of the accident and its causes. The court is also entitled to perform surveys on board or at the scene of the accident and to acquire expert opinions on special issues.
The statements given at the maritime declaration used as evidence and definition of the evidence value
In court proceedings concerning disputes, the principle is nowadays applied that the proceedings should be oral and direct. The same principle is valid in criminal lawsuits. According to this principle, persons whose statements are intended to be used as evidence should be heard in court in person. This is the only way for the judges to get a reliable picture of the statements by the witnesses or by other persons, and to make their conclusions.
Under 17 Section 11:1 of the Procedural Code, a private statement which has been given for a pending or initiated lawsuit may not be used as evidence without the specific permission of the law or the court. This stipulation is not in conflict with the aim of the maritime declaration institution. It constitutes an express justification in a subsequent lawsuit to use the material presented in the maritime declaration as evidence.
Under 17:2 of the Procedural Code, the court should, having carefully considered all the facts, decide what should be regarded as truthful in the matter. If the master or an officer heard in the maritime declaration later dies or cannot be reached, under Finnish legal practice the court has generally considered the statements as part of the evidence of the matter, in accordance with the discretion principle. However, the statements cannot be given the same evidence value as if the witness had been heard in person.
Prosecution in maritime matters
After the foreign vessel’s declaration has been given, the respective maritime court sends the minutes of the declaration to the maritime inspector of the maritime administration. If the maritime administration finds it is justified in taking action for prosecution, the inspector contacts the prosecutor and reports the matter, enclosing the documents for the prosecutor’s consideration.
However, the prosecutor also has the right to start prosecution independently without a request from the maritime authorities. The maritime authorities will base their prosecution request on the documentation of the maritime declaration.