Battered USS Guardian may be first Philippine case under the IMO Code
Newly appointed US Secretary of State John Kerry has assured his opposite number in the Philippine government, Foreign Affairs Secretary Albert F. del Rosario, of “full cooperation in the salvaging of the USS Guardian as well as in the investigation of the grounding incident and that the US stands ready to fully and appropriately provide compensation for all damages” says the country’s information agency. Of particular note is the willingness of the US Navy to collaborate with Philippine investigators which may open the door to IMO compliant casualty investigations in the country.
Joint investigation of criminal charges are covered in the Visiting Forces Agreement, VFA, between the two countries. The entry of the USS Guardian into a restricted area was a breach of Philippine law. Under the VFA crimes committed by off-duty US military personnel in the Philippines come under the jurisdiction of the Philippines while crimes committed by on-duty personnel are under US jurisdiction. However, recent announcements by the Philippine Coast Guard that its investigation will comply with the non-liability provisions of the IMO Casualty Code may have enabled the US Navy to provide Philippine investigators access to shipboard personnel.
It will be the first investigation in the country carried out in compliance with the code.
Says Del Rosario: “One of the first things we discussed was the USS Guardian incident. We had a very frank discussion between friends. We both agreed on the importance of removing the USS Guardian from the reef without causing further damage,” Secretary del Rosario said, adding “Secretary Kerry reiterated the deep regret of the US government over the incident and its readiness to provide full and appropriate compensation.
“Secretary Kerry said that he himself wants to know and get to the bottom of what truly happened. In this context he said that he wants to be a full partner of the Philippines in finding out what happened and that the U.S. government will cooperate fully with the investigation that the Philippines is conducting,” Secretary del Rosario said, adding that this would include the willingness of the US to accept and answer queries posed by Philippine investigators to key US personnel.
According to Secretary del Rosario, Secretary Kerry is also committed to sharing the findings of the U.S. investigation and to consulting the Philippines and its experts before finalizing its investigation.
“We both agreed that it is important to understand what happened and to take the necessary navigational safety measures to protect the reef and that would prevent other ships from grounding there.”
Currently the Philippines has no official body of trained accident investigators which is complaint with the IMO Casualty Code. The country’s Board of Marine Inquiry, BMI, a quasi-judicial body, considers itself the sole agency authorised to carry out accident enquiries although the board has no professional investigators attached and is primarily concerned with establishing liability. Among potential stumbling blocks is that under current legislation any ‘competent court’ can demand access to data gathered during an investigation, including reports, with a view to establishing blame, which contravenes the IMO Code.
Efforts to establish an IMO compliant investigatory capability Philippines have been hamstrung by a BMI reluctance to have its authority diluted. Efforts to replace the BMI have been consistently blocked despite encouraging reports in 2011. However, the PCG investigation team operating within compliance is hoped to break the deadlock.
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