Marine accidents investigation in Poland

Marine accidents investigation in Poland In Poland, we have following institutions dealing with the marine accidents investigation - State Marine Accidents Investigation Commission (SMAIC) and Maritime Chambers. They mainly examine marine accidents and casualties which happened in Polish ports, Polish internal sea waters, Polish territorial waters and the accidents of Polish-flagged vessels, boats and yachts - regardless of where the accident has occurred.

SMAIC has also right to examine the accidents outside the Polish territorial waters if Poland is a "concerned party" here (this primarily relates to objects located in Polish exclusive economic zone - especially offshore wind turbines and related objects which are to be soon built off the Polish coast).

Apart from that, Polish Maritime Administration - i.e. Directors of the Maritime Offices (as the first instance) and the Ministry of Infrastructure (as the second instance) deal with environmental issues such as sea contamination, oil spills, use of the maritime fuels containing unacceptable sulphur level etc. (and other similar breaches of MARPOL convention and Polish environmental regulations) but not every case here has to be related to a maritime accident.

1. State Marine Accidents Investigation Commission (SMAIC)

SMAIC is a governmental agency composed mainly of experienced officers and master mariners. It focuses on technical and navigational factors which led to the accident and does not rule on anybody's personal liability. SMAIC reports usually contain extensive photographic documentation, maps, AIS charts, technical analysis, drawings etc. Involved parties rarely have the opportunity to submit its comments during the investigation, therefore SMAIC reports are generally based on findings and evidence gathered by their inspectors.

The conclusion of the report contains not only the description of the accident, its reasons and consequences but may also contain recommendations for the concerned parties. However, it is strictly forbidden by law to use the SMAIC reports as evidence of anybody's liability in further civil and criminal proceedings as well as in the proceedings before the Maritime Chambers. I

n my opinion, however, it is still acceptable to use these reports as official statements of facts of objective nature (for instance such as speed, position of vessel, weather conditions, technical condition of the vessel prior and after the accident, documentation of damages etc.).

SMAIC runs its own website where all its reports are published in Polish and English and are available to the public: pkbwm.gov.pl

2. Maritime Chambers

Maritime Chambers (one in Gdynia and one in Szczecin plus the Appellate Maritime Chamber in Gdynia) are quasi-judicial institutions associated with the Regional Court in Gdansk and the Regional Court in Szczecin. They examine accident cases during the open hearings (very similar to court hearings) presided by a judge of the respective regional court with two assessors who are usually experienced masters or senior officers / chief engineers.

The Maritime Chambers have their own procedure (with supplementary application of the Polish Code of Criminal Procedure) and many actions of the Chamber are taken ex officio. The preparatory proceedings before the Maritime Chamber are conducted either by the investigative inspector of the Chamber or by Polish Maritime Administration bodies (mainly employees of the Maritime Offices in Gdynia or Szczecin).

If an incident takes place onboard a ship that is to leave Poland in a short time, they usually secure all evidence such as testimonies of witnesses, photographic documentation or records from the ship's recorders. However, in order to double check their activities, it is recommended to have the agent, a P & I representative or a lawyer on board just after the incident happens.

All parties involved in the proceedings before the Maritime Chamber have a status of "interested parties" - there are no defendants or accused parties and no prosecutor (there are investigation inspectors and the delegate of the Ministry of Infrastructure but they do not have the power to accuse anybody).

The interested parties may take part in the hearings, submit evidence of any type and remarks to other parties' evidence, ask the questions to the witnesses and other interested parties etc. If an interested party cannot take part in the proceedings (which happens mainly to non-Polish masters or officers who were on the vessel in the time of the incident), the Chamber cannot decide on their fault (however, their actions may be declared as "inappropriate"). The decision of the Maritime Chamber can be challenged by the appeal of any of the interested parties which is lodged to the Appellate Maritime Chamber.

Decision of the Maritime Chamber contains similar elements as the SMAIC report. However, the Maritime Chamber may also determine the personal liability for the accident and the level of contribution to the accident and take disciplinary steps towards Polish officers and seafarers involved in the accident (it is however rather impossible to take disciplinary measures against non-Polish officers and seafarers).

Maritime Chambers do not have competence of civil and criminal courts and do not solve any financial disputes between the parties. If it is not entirely possible or completely impossible for the Maritime Chamber to determine the reasons of the maritime accident this information is explicitly stated in the decision.

The decision of the Maritime Chamber is not a court judgement and does not bind Polish courts. However, official findings of the Maritime Chamber submitted in the court will be regarded as a strong evidence because the Polish law provides for a presumption that official findings of the public authorities are true. Other functions of the Maritime Chambers is registration of Polish vessels (and mortgages) and accepting of the sea protests but this is completely different story.

3. Environmental issues

Proceedings concerning breach of environmental protection regulations are conducted by the Directors of the Maritime Offices (as the first instance) and the Ministry of Infrastructure (as the second instance) and are completely independent from the proceedings before SMAIC or Maritime Chambers.

To cut a long story short, most of the environmental proceedings end up with the fine for the perpetrator - even up to 1.000.000 SDR. Of course, the amount of the fine depends on the level of the contamination, degree of fault of the perpetrator and other issues.

Administrative decisions regarding fine are usually instantly enforceable even when the owner has open way to lodge an appeal. Failure to pay the fine may lead to detention of the vessel in Poland.

Procedural rules applied here is the Polish Code of the Administrative Proceedings which is used by almost all Polish administration (except fiscal administration).

The parties have right to submit their argumentation and evidence practically until the decision of the organ of the second instance is issued. Party not satisfied with the decision of the organ of the second instance can lodge an appeal to the Regional Administrative Court (mainly in Warsaw as the Ministry is situated there).

Judgement of the Regional Administrative Court can be also challenged by cassation to the Supreme Administrative Court. Judgements of the administrative courts (if they are favorable to the party) usually do not change the challenged decisions as to the merits but just repeal them.

In practice this means that the organ of the second instance has to complete proceedings again - taking in mind instructions from the court. This may be time - consuming and sometimes a bit frustrating but is typical for Polish procedures – on one hand they guarantee your rights in efficient way, on the other – are bureaucratic and highly formalized.