VESSEL’S ACCIDENTS AT THE PANAMA CANAL, JUDICIAL AND ADMINISTRATIVE REMEDIES

INTRODUCTION

On September 7, 1977, the Republic of Panama and the United States of America signed the Panama Canal Treaty. This agreement has been widely known for arranging the turn over of the operation and control of the Panama Canal to the Republic of Panama at the end of the century. From 1977 until now, several major changes have taken place which have increased the participation of Panamanians in canal related activities. One of these events was the creation, in 1982, of the Maritime Court of Panama and the simultaneous closing of the United States District Court for the Canal Zone.

As a result of the Treaty, Panama assumed maritime jurisdiction At the Panama Canal, but not IN the Panama Canal, since the American agency styled PANAMA CANAL COMMISSION, ascribed to the U.S. Department of Defense, is immune to Panamanian jurisdiction.

The purpose of this paper is to consider the judicial and administrative remedies available in Panama and the Panama Canal. By vessel’s accident we mean cases involving collisions inside the canal locks, or at any place inside the waterway, accidents involving other vessels. The basic premises to keep in mind are: 1.- Transiting the Panama Canal, being a U.S. Federal Agency subjects the vessel to the control and regulations issued by the American Government. 2.- If the claim involves the Panama Canal Commission, there are administrative and judicial remedies to be followed with the Eastern District of Louisiana. But if the claim is only against another vessel, then the Maritime Court of Panama has jurisdiction. As we stated before, the Panama Canal Commission is immune to Panamanian jurisdiction. 3.- If the claim is combined, against the Panama Canal Commission and against another vessel, two different remedies could be followed, each one under a separate jurisdiction. 4.- In order to file an administrative action and later a judicial action against the Panama Canal Commission there is a pre-requisite of a Board of Local Inspectors fact finding hearing, usually taken place as soon after the casualty.

• ACCIDENTS IN THE PANAMA CANAL

The Panama Canal Commission being a United States Government agency is subject to the laws and regulations issued by the U.S. Congress and the Federal Government. The Code of Federal Regulations, known as C.F.R., has a chapter devoted to the handling of marine casualties at the Panama Canal. We are including in this paper the text of the pertinent sections of the regulations. Every time there is a marine accident at the Panama Canal, the Board of Local Inspector, known as B.L.I., convenes on his own, or at the request of the vessel’s owners, master or agent, in a fact finding hearing. It is important to notice that this hearing could be during weekends, holidays, evenings, etc. The idea is to have the testimony of all parties involved in the casualty, before they leave the waterway. As a matter of advise, owners or operators of vessels transiting the Panama Canal should instruct the Master or the agent to request a B.L.I. hearing as soon as possible after a marine casualty involving the vessel. This is an important aspect of liability, since the Panama Canal Commission will not accept a claim for damages to the vessel or cargo, arising out of a transit of the Panama Canal, unless there is a B.L.I. fact finding hearing prior the vessels departing the Panama Canal.

The request for a B.L.I. hearing is done very informally with the Panama Canal Authorities. All agents at the Canal know how to request the hearing. Once the hearing is convened, the testimony of parties involved is taken by a court’s reporter and later transcribed. The B.L.I. is conducted very professionally by experienced Canal Pilots, who are very familiar with the transit details. Testimony of the Pilots involved is taken, also from the Canal employees involved in the casualty, the crewmembers and officials of the vessel, reports on the damages suffered by the Canal facilities, or by the vessel and cargo is introduced, as well as Canal transit conditions. This is an administrative hearing where the Inspectors, Pilots, the Master, and the Panama Canal Commission authorities ask questions. Parties could be represented by Counsel. It is normal for the vessel to be represented by local counsel. The B.L.I. hearing is done as soon as possible after the casualty, and the lack of preparation from all involved is certainly outweighed by the opportunity to have testimony recently after the casualty, and obtained as much evidence as possible before the vessel leaves the Canal waters. This hearing is NOT done to excuse the Canal employees, rather to the contrary, it is conducted very professionally by highly skilled people looking to have all the facts. A report containing the testimony, charts, pictures, surveys, full details of damages and all documents related to the vessel is published from two to three months after the hearing and all parties involved receive a copy.

The fact finding report is the basis document to claim damages to the Panama Canal Commission, it is also an important document in any judicial claim filed against the Panama Canal Commission, although no parties are bound by the determinations of the fact finding as to liability or damages.

III. JUDICIAL REMEDIES AGAINST OTHER VESSELS

Where another vessel is involved and it is believed to be liable, in full or in part, for the accident’s damages, the only way available to obtain security is to file an action before the Maritime Court of Panama and arrest the vessel. This is an independent action, not involving the Panama Canal Commission, and has to be filed before the Maritime Court of Panama, which is the proper forum. In many cases there could be an administrative action before the Panama Canal Commission, or, later on, a judicial action filed in the United States, and at the same time an action before the Maritime Court of Panama against another vessel claiming part of the damages.

1. U.S. FEDERAL REGULATIONS APPLICABLE TO VESSELS ACCIDENTS

The applicable regulations to the investigation of an accident at the Panama Canal are as follows:

PART 114- BOARD OF LOCAL INSPECTOR: COMPOSITION AND FUNCTIONS.

115.1 Board of Local Inspectors; Supervising Inspector.

1. Composition of the Board.
2. Employment of inspectors and examiners.
3. Recorder of Board; duties.
4. The recorder may administer oaths.
5. Assistance of owners or operators and masters.
6. Inspection of records of Boards.

AUTHORITY: Issued under authority vested in the President by sec.1418, Pub. L. 96-70, 93 Stat. 492; OE 12215, 45 FR 36043

SOURCE: 31 FR 12310, Sept. 16 1966. Unless otherwise noted.

115.1 Board of Local Inspector; Supervising Inspector.

(a) There is hereby continued the Board of Local Inspector of the Panama Canal Commission, constituted as provided in $115.2, which shall perform, conduct and execute, under the supervision of the supervising Inspector;

(1)The investigations called for by section 1417, Pub. L. 96-70, 93 Stat. 487;

(2) The functions and responsibilities with which it is vested by this part and by Parts 117. 199 and 121 of this chapter;

(3) Such other duties in matters of a marine character as it may be assigned to it from time to time by the Administrator.

(b) The Marine Director of the Panama Canal Commission shall serve, ex officio, as Supervising Inspector of the Commission except when his is designed to serve as Chairman of the board in accordance with $115.2(c). When the Marine Director is so designated, the Deputy Administrator or such other officials as the Administrator may designate in his stead, shall serve as Supervising Inspector.

[46 FR 63187, Dec. 30, 1981]

1. Composition of the Board.

1. The Board of Local Inspector, referred to in this part as “the Board,” shall, except as otherwise provided in paragraphs (b) and (c) of this section, consist of the following officials who shall serve in the capacities stated;

1. Chairman, Board of Local Inspector.
2. Chief, Navigation Division, as member.
3. Senior Canal Port Captain, as member.

1. Where the subject matter of circumstances of a particular accident warrant such action, the Supervising Inspector may designate the Chief, Industrial Division to serve, ex officio, as member of the Board in place of the member listed in paragraph (a)(2) or

1. of this section. In the absence of the Chairman, the Supervising Inspector will appoint a member to act as Chairman.

(c) If the Supervising Inspector deems it appropriate in a particular investigation, he may designate an alternate to replace any official regularly serving on the Board. If he himself serves as such an alternate, he shall serve as Chairman of the Board.

1. Any accident investigation or other proceeding may, in the discretion of the Supervising Inspector, be conducted by one or more officials of the Board. The report of any such investigation or proceeding is subject, however, to the requirements of Part 117 of this subchapter.

[35 FR 12274, July 31, 1970, as amended ad 46 FR 63187, Dec. 30, 1981]

1. Employment of inspectors and examiners.

The Board may employ or assign such inspector and examiners as it may require in the inspection of vessels and in the classification and licensing of pilots, mates, and engineers.

1. Recorder of Board; duties

There shall be a Recorder of the Board, whose duty it shall be to keep a record of its proceeding; of those issued or refused; suspended, extended, or modified; together with the name, grade, and serial number of all such licenses; and of all casualties, collisions, foundering, sinking, fires and other disasters or matters of interest that may come before the Board. Under the direction of the Chairman he shall prepare, submit and register all licenses and certificates of inspection, and the reports mentioned in this part of in Part 117, 119, or 121 of this chapter, and shall perform such other duties as may be directed by the Chairman.

1. Recorder may administer oaths

The Recorder is authorized to administer the oats required for the completion of official documents of, or which are presented to, the Board.

CROSS REFERENCES: For authority of the Board to administer oaths, see 2 C.Z.C. 1101, 76ª Stat.38.

1. Assistance of owners or operators and masters.

Owners or operators and masters of vessels shall render all requested assistance to the Board in its investigations and inspections, and shall, when requested, put machinery and gear in operation when necessary to demonstrate the efficiency of the machinery, equipment, appliances or other gear.

1. Inspection of records of Board.

All officials records and documents in the office of the Board, after official action thereon has been concluded, shall be open to public inspection and examination in the office of thee Board.

PART 117-MARINE ACCIDENTS: INVESTIGATIONS; CONTROL; RESPONSIBILITY.

117.1 Investigation of marine accidents.

117.1ª Scheduling of investigations.

117.1b Rights of party in interest.

117.2 Change in physical status of property effected by accident forbidden.

117.3 Reports by Board to the Administrator.

117.4 Reports of accident by officer in command to Board.

117.5 Control of wrecked, injured, or burning vessels.

117.6 Liability of vessel for injury to Canal structures or equipment.

AUTHORITY: Issued under authority vested in the President by sec. 1417, 1418.Pub. L. 96-70 93 Stat.487; EO 12215, 45 FR 36043.

SOURCE: 46 FR 63188, Dec.30, 1981, unless otherwise noted.

117.1 Investigation of marine accidents.

1. Whenever, within Panama Canal waters, including the locks of the Canal, a vessel, or its cargo, crew, or passenger, meets with a serious marine accident, or whenever, within the harbors, anchorage’s, and areas adjacent thereto, including the ports of Balboa and Cristobal there is a serious marine accident involving Commission personnel of equipment, the Board of Local Inspector shall promptly investigate in detail the conditions and circumstances under which such accident occurred.

1. Any other marine accident occurring in such waters may be investigated by the Board at the discretion of the Supervising Inspector.

1. The Master of a vessel involved in a marine accident may request an investigation of an accident not considered by the Board to fall within paragraph (a) of this section. The request must be addressed  to the Supervising Inspector or the Chairman of the Board, and must be in writing. If the Master does not so request such an investigation in writing, he shall be deemed to have waived all rights to the investigation called for by section 1417. Pub. L. 96-70, 93 Stat.487, which provides that a claim may not be considered by the Panama Canal Commission, or an action for damages lie thereon, unless, prior to the departure from the Panama Canal of the vessel involved.

1. The investigation by the competent authorities of the accident or injury giving rise to the claim has been completed; and,
2. Th basis for the claim has been laid before the Commission.

1. For the purpose of this section, the term “serious marine accident” includes:

1. Any accident involving substantial damage to any structure, plant, or equipment of the Panama Canal Commission or the United States; and
2. Any accident (i) involving death or resulting in personal injury that requires admission of a personal injury that requires admission of a person to a hospital as a bed patient; or (ii) resulting in damages to a vessel which require the making of repairs prior to the vessel’s departure from the Canal; Provided that the Supervising Inspector or his designee has reason to believe that personnel or equipment of the Panama Canal Commission were then aboard or were assisting the vessel involved in the accident or were situated (aboard another vessel, ashore or otherwise) so as to have been a factor in the accident.

CROSS REFERENCE: Compelling attendance and testimony of witnesses and production of books and papers by Board, see section 1418, Pub. L. 96-70, 93 Stat.487.

117.1ª Scheduling of investigations.

1. Marine accident investigations shall be scheduled so as to afford pilots and other parties in interest a period of time not less that that provided below for rest and consultation prior to the commencement of an investigation:

Relief Time of investigation

0000-0400 1400-1800 (12 hours minimum)

0400-0800 1600-2000 (12 hours minimum)

0800-1200 1800-2200 )10 hours minimum)

1200-1600 0800 Next Day

1600-2000 1000 Next Day

2000-2400 1000 Next Day

1. The column “Relief Time”, set out in paragraph (a) of this section, indicates the period during which the pilot or other party interested completed the transit during which an accident occurred or the time at which he was relieved of duty following the occurrence of an accident. The column “Time of Investigation”, set out in paragraph (a) of this section, indicates the earliest time at which the investigation may be scheduled. In exceptional cases a departure from this schedule may be made, as for example in the case of warships or other vessels that have an imperative need to resume the voyage as soon as possible. Unless a pilot or other party in interest requests the time provided in this schedule, the hearing may be set for an earlier hour.

[32 FR 3830, Mar. 8, 1967]

117.1b Rights of party in interest.

Any Panama Canal pilot or other individual who is a party in interest at a marine-accident investigation may obtain counsel of his own choosing, testifying in his own behalf, cross-examine witnesses, call witnesses, and introduce any relevant evidence. The Board shall advise all parties in interest of such rights.

117.2 Change in physical status of property affected by accident forbidden.

In the event of a marine accident or casualty affecting any property in Panama canal waters, or waters adjacent thereto, or any property owned or operated by the Panama Canal Commission or the United States, which imposes on the Board an obligation to investigate, no change in the physical status of the property affected by the accident or casualty may be made or permitted prior to inspection by properly constituted authority, unless such change in status be imperative in order to preserve life or property.

117.3 Reports by Boar to the Administrator.

The Board shall make reports forthwith in detail to the Administrator of all marine-accident investigations conducted by it, setting forth the facts and circumstances surrounding the accident and bearing upon its proximate causation, the nature and extent of the injury and the amount of damages, if any, occasioned by such injury. The reports shall include a transcript of the record of the Board’s investigation together with its findings and opinions respecting the accident. All finding and opinions of the Board shall be rendered by a full Board after a review of the entire transcript, even though the hearing may have been conducted by a single member of the Board or by a two-man Board. Reports to the Administrator shall be forwarded in duplicate through the Supervising Inspector, who may place thereon such endorsement as he may see fit.

1. Reports of accidents by officer in command to Board.

The Master or other officer in command of a vessel shall, prior to the vessel’s departure from Panama Canal water, report in writing to the Board any accident involving his vessel in Canal waters that resulted in loss of life or serious personal injury or in substantial damage to property.

1. Control of wrecked injured, or burning vessels.

When a vessel in the Panama Canal waters goes aground, or is wrecked, or is so injured that it is liable to become an obstruction in such waters, or is on fire, the Canal authorities shall have the right to supervise and direct, or to take complete charge of and conduct, all operations which may be necessary to float the  vessel, to clear the wreckage, to remove the injured vessel to a safe location, or to extinguish the fire, as the case may be. The Canal authorities may when necessary, take such action without awaiting the permission of the owner or agent of the vessel, and all equipment on board, at the disposal of the Canal Commission is subsequently found or determined to be responsible for the accident or the condition necessitating action by the Canal authorities, the necessary expenses incurred by the Commission in carrying out the provisions of this section shall be a proper charge against such vessel, her owner and her operators.

1. Liability of vessel for injury to Canal structures or equipment.

A vessel, or her owner or operator, shall be held liable for any  injury to any structure, plant, or equipment of or pertaining to the Canal, the Panama Canal Commission or the United States when the injury is proximately caused by the negligence or fault of the vessel or its master or run crew, buoy, beacon, or other aid to navigation; and a vessel shall so navigate as not to strike such aids in passing.