ACCIDENT INVESTIGATION
By: Gregory T. Davis, President
Davis and Company, Ltd.
Marine accident investigation is complex. But it is no more complex than any other form of investigation. The investigator should be using the same basic skills, no matter the type of investigation being completed, to achieve the same goal, the true cause of an occurrence. The skills initially encompass data collection techniques.
Data collection is completed on each and every accident investigation assignment a marine surveyor undertakes. Even a simple condition and value survey requires the investigation of the vessel to discover its defects and attributes. The degree of success in uncovering these directly correlates to the individual surveyor's ability to 'hear' and understand the 'language' of the particular vessel. In other words communication between the surveyor and the boat. This communication takes myriad forms and utilizes many different languages. Let us consider the tools we use in this communication effort.
An attribute is easy to understand it could be appearance, creature comforts, amenities and the like. So we can categorize these as design attributes. In order to understand what a defect is we can refer to these tools:
33 CFR 183.XXX
ABYC Standards and Recommended Practices for Small Boats
NFPA 302
Upon review of these documents we will find what has the force of law (33
CFR 183.XXX), what is recommended industry practice (ABYC) and what may be the
Law in a particular State or in the least is a ANSI
standard (NFPA 302). In comparing these documents to what I found in inspecting
the boat I will know what a defect is. But can I categorize these as design
defects? No I cannot, as none of the forgoing is design criteria, although some
design items may be discussed within each document. [The foregoing statement
may not be accurate in the future when the European Union ISO standards are
complete. Standards, per se, are moving to a world basis. Many
What if I believe a particular defect exists but the foregoing does not discuss it? There exists "good engineering principles and or practice". A defect could exist within these criteria, however its definition should really come from an engineer (PE) or a Naval Architect. A good forensic engineer is a tool that every investigator needs in his or her toolbox.
I've just glossed over some of the investigation that occurs when a surveyor completes a survey on a boat. But how often is the boat or a boat system directly responsible for an occurrence? Two technical papers deal with the subject. The summary of the data in table 1 indicates only 3% of all occurrences are the result of a manufacture's defect.
Table 1.
|
Total projects: 5,234 Occurrence Type |
Total $ damages: 26,000,000.00 Percentage of total number of projects |
|
Operator Error |
50% |
|
Mfg. defect |
03% |
|
Wear & Tear |
01% |
|
Blisters |
06% |
|
Multi problems: |
40% |
|
Fire- 15% |
|
|
Sinking- 18% |
|
|
Weather- 46% |
|
|
Theft- 17% |
|
|
Trailer- 4% |
|
|
|
|
Operator error tops the list with 50% and multi problems at 40% is next. It could be argued that some of the items within the multi problem category are highly influenced by operator error and thus the true operator error percentage is higher (as in the published USCG statistical data report). In light of the table-1, statistical data lets direct our efforts toward operator error related occurrences. Obviously examination of the boat should be a normal course in any investigation, however ample time should be allocated to collection of other data. In the course of any investigation we need some basic tools.
TOOLS:
A tape recorder should be used to record the recollection of the events from each involved party and from interested and dis-interested witnesses. The format for a recorded statement, as in the questions, should be designed to identify the party to whom you are speaking and then to record their version, not yours, of the occurrence. Two specimen statement guidelines are attached as exhibits in the appendix. The first is a generic guide from most statement scenarios. The second is specific to Fire Cause and Origin where the insured is a suspect. It could be utilized in any instance where the subject is a suspect. Caution should be exercised if you chose to use this form. The questions are strong and could be argumentative. I would not use the form without consultation with my client, or their attorney, first. I have found that the recollection of the details of the occurrence is more vivid if I start the subject at the morning of the day of the occurrence and then go forward from there. This gives them the opportunity to return to the day in their minds and re-enact their actions and the events. Please keep in mind that this can be a very emotional moment and the subject may become very distressed! It is important to allow for some closure at the conclusion of the taping and the interviewer, if appropriate, should be prepared to lend an empathetic ear. But is no case should you try to put words in the mouth of the interviewee. When the occurrence involves a boat's course I like to have the interviewee prepare a diagram of the occurrence site and the place the boats upon it. At the conclusion of the interview I have them sign and date the diagram. If I know the landmarks of the occurrence site I may prepare a site diagram before hand and have all interviewees place their recollections on the same landmark diagram (chart). When I interview more than one person, I try to interview them separately and if some are associates I interview all associates at one interval to reduce note comparison among them between the interviews. The tape recording should be transcribed and the transcription can be submitted to the interviewee for review and signature. You should look to your client for guidance in this regard. In most instances I submit the original tape and transcript with our report to the client and do not have the transcript signed or reviewed. It is important to not swear anyone in or ask them to "tell the truth". The purpose of recording the interview is to have a record of the conversation. It is not necessarily significant that this record be truthful or not. Remember that at this point you are collecting data, not evaluating it or making judgements.
Measuring tools such as a ruler, caliper, micrometer, or adhesive measured tape help to communicate the dimension or size of the object you took a picture of. Or they assist in determining the size of the object and therefore its relationship to how the occurrence happened. I find the adhesive measured tape especially helpful in that most inspections are completed without a helper to hold an object and ruler or I need to stand back from the object to get the proper perspective in the photograph.
A flashlight, in fact several different size flashlights occupy my inspection kit bag. I also bring extra batteries for the different flashlights (always the same size for all flashlights). I've never been to an inspection site that sold batteries next door. While I'm at it I also carry two extra camera batteries and batteries for the auxiliary camera flash. I have the kind the shoots an infrared beam to auto focus in the dark.
A site diagram with the boat or boats drawn in, to scale, helps communicate a fire growth or explosion pattern. In almost any investigation a site diagram assists in bringing the reader into the occurrence with the perspective of having been onsite with you and or the witnesses.
A 35mm Camera with a 28mm-80mm zoom lens is one of the most used tools I have. I have found auto focus, auto program with a built in flash to be a handy device. My wallet and I can remember only too well the times when I forgot to adjust the speed to sync the flash with the camera (every one was an out of town return flight to re-shoot the pictures). Macro photography is an everyday field problem that can be solved with a zoom macro lens or a cheaper and effective alternative can be the purchase of macro close up lens adapters that screw onto the front of your regular lens. They are not as effective as a macro lens but they are about $40.00 in comparison to the $500.00 you will spend on a dedicated macro lens. I have chosen to purchase a Micro photography set up (about $1800.00) which includes a copy stand with lights, bellows, macro lens, and ring light flash. This setup allows us to takes macro and microphotographs of the data I collect.
As important as a good camera is, it is the manner in which photographs are taken that is more important. I started this article with the statement that communication between the surveyor and the boat took many forms. The camera is my tool of choice to communicate what I have seen in the field with the reader of my report and ultimately the Judge or Jury. I need to "bring the reader to the inspection site". How can I do that? What do you see when you enter a library room? Let's say you see a bookshelf at the opposite wall. You decide you want a particular book so you look on each shelf until you find the books are alphabetical. These cause you to seek your book on the third shelve from the bottom, in the far-left corner. Now you pull that book from the shelf and when you get to page 132, third paragraph, last sentence, third word you find that the r in the word red has been smudged off. But just the overhang of the r. So you take a picture, in fact a microphotograph of the smudged letter that looks something like this:ó . You then show this photograph to the reader: ó and they say, quite correctly, "why that’s not a smudged r that’s just a staff symbol!". My communication lesson is simply this, start with the whole picture, 28mm, then get closer to the shelf, narrow down to 50mm picture, and then get the book off the shelf, 80mm picture. Before you put the close up adapter lens on to photograph the "r", macro photography picture.
Be prepared with plenty of good quality film and to enclose enough photographs with your report that you can communicate what happened. A good policy to follow is take more photographs than you think you will need. Remember, pictures of things that are not damaged are just as important as pictures of things that are. When you are finish with this job, rewind the film. Never share a roll from one job to another. You need to keep track of those negatives!
I don't deal with digital photography, although I know investigators that do. The technology is maturing but the resolution is just not there yet in reasonably priced models (i.e. under $400.00). One fall in a wet bilge can be an expensive mistake (This has occurred with my $550.00 35mm Nikon. The lens was saved, not the body). Also since the digital data that makes up the picture can be manipulated I personally have some reservations about its usefulness in a court of law. A jury that sees morphing in commercials and movies such as Terminator 2 or the totally electronic graphics such as the Blockbuster commercial using baby cha cha may not put the same credibility into those digital photographs that they would in standard 35mm pictures and negatives.
In the reverse is video camera work, especially videotape of recreations or experiments. The videotape format gives the investigator the ability to bring the reader into the inspection in real time. Since it is 'real time' I need to remember that the viewer's attention span is about 30 minutes tops and adjust my experiment or recreation accordingly. If I can't recreate or experiment in that time frame and get the whole message across, I may as well forgo the videotape.
In the lab we use a 1X, 3X dual power stereo optic Microscope. The relative low power of this microscope makes it very useful in inspecting large objects. In the field I use a magnifying glass and a 10X-field microscope to evaluate whether objects will be secured as artifacts and returned to the lab for a more detailed inspection. The results of these microscopic inspections can be communicated using our microcopy stand with the lens bellows attachment, 1X to11X can be achieved, using the body from our field 35mm camera and either the field lens or the dedicated macro lens. It is important to experiment with this equipment as depth of field is extremely reduced at high magnifications. This operator experience through experimentation turns into better quality picture results.
A computer is a must just to prepare the report. Computer software, such as Microsoft Office, helps you prepare the report and the presentation, edit photographs if you have a scanner, or digital camera, and CADD software can assist in presenting diagrams or drawings. Simple road Atlas software can be used to print maps which can be used for diagram templates. Raw data collection in the lab or field from VOM, Gas Sampling devices, and various other electronic data collection devices can also be stored and then analyzed on a computer.
From a reference standpoint the computer is the gateway to the vast information resources of the Internet. Just three examples are:
The USCG Marine Safety and Environmental Protection site which opens a door to Marine Safety Office publication, reports and forms, Navigation and Vessel Inspection Circulars (NVIC's), USCG Investigation reports, and many other topics (see appendix item).
The USCG also has safety related recall data and other items of interest to the recreational boating accident investigator at its Office of Boating Safety site (see appendix item). Another important site is the Recreational Boat Building Industry Home Page (see appendix item) where many topics of interest are posted, including accidents and open water rescue, CE mark, Product Testing, Engine Development, and others.
When I need to secure liquid samples or aromatic samples (fire debris) it is important that I do not contaminate the sample and that I preserve the aromatics. A plastic bag just isn't going to retain aromatics and it likely will degrade and contaminate the sample. I use 'trace clean' boron silicate glass sampler vials with Teflon closures. I buy these from a laboratory supply house by the gross. The vials are small and fit well in my kit bag. Plastic bags are also in the kit and they work well for non-aromatic samples. I can close the bag and then mark the exterior using an indelible marking pen with the date taken, file number, and if I got the sample from someone present have them sign the bag, me too, to identify it. I always photograph the sample in situ, then in the marked sample container.
The most important tool has been left for last and that is your brain. It is the most powerful multi-media computer processor on earth. Not only can it combine words, pictures and sound, but is has the unique ability to combine seemingly non-related objects and events into a complete picture. All accident occurrences have a story to tell and the parts never lie. It is the investigator that asks and finds the answers using these criteria- Who; What; When; Where; How; and Why; that will find the true answer to the cause of the occurrence.
I have emphasized the collection of data previously. In the course of completing an investigation many objects will be inspected. When you decide the object needs to be secured, and retained, it becomes an artifact (in our parlance). Some investigators refer to it as "evidence". I refrain from that nomenclature as the term "evidence" is generally used to refer to an object that has been accepted by a court of law as "evidence" (entered into evidence). Regardless of the words used to describe the object, once it has become an artifact you have changed your obligation toward it. You have now become responsible for the safe keeping of the artifact and in order for a court to accept it into evidence at a later time you need to protect it, keep it safe from harm or alteration and be able to demonstrate that chain of safe keeping. In other words don't take it apart, or destructively test it.
We keep an artifact logbook that identifies all artifacts, who logged them in, when they were logged in, and where they are stored. When the artifact needs to be removed from storage the reason, who did it and the date it was done are logged in. When it returns to us it is logged back in the same manner. This paper work is a must. Any break in the chain of custody could invalidate the artifact's use as "evidence" and affect your client's case.
We charge to store artifacts and we expect written authorization from our client before an artifact is destroyed.
It is important to be selective when choosing to retain an object. The foregoing is a long-term relationship with that object, somewhat akin to having children!
These are some of the tools I use. They are not all the tools that could be used but they are the ones I use most often. Now what do I do after I have collected all the data?
THEORY
What do I do with the data I have collected using the tools mentioned previously? How do I evaluate the data collected seeking answers to the following questions?
Who
What
When
Where
How
Why
It is now that I need to know what is truthful and what is not truthful in the statements I recorded. I need to have a formula I can use in each and every case.
I am reminded of the story of three blind men, each of who was asked to describe what an elephant looks like. The first man walked up to the elephant and touching its trunk exclaimed that an elephant was a snake like animal. The second man touching the beasts tail pronounced the first man to be An idiot! For anyone could see the body was much thinner than a snake and therefore an elephant looked like a worm! The third man approached the elephant with caution, finding himself at the front leg he reach out first with one hand and then the other, finally finding he could not touch the fingers from his left hand with those of the right when he embraced the leg he let go. He stood back to reflect upon what he felt and what he had heard said by the other two men. A few minutes of dead silence were broken when he confidently reported he had solved the mystery. The elephant, of course, was like a tree. He had the good fortune to have found the trunk when the others had simply found the branches!!!
Our third man used deductive reasoning in forming his conclusion, but he assumed the data reported by the others was complete and correct when he came to his conclusion. He also came to his conclusion utilizing his own incomplete data. Is there a better way? Is there a formula like I sought in my first paragraph?
In the appendix I have enclosed a chart of the systematic approach to accident investigation. Thus far in this article I have defined the problem, an accident occurred, I have recognized the need to determine the cause of the accident and I have collected the data by observation. In order to analyze the data I need to use inductive reasoning. What does that mean? In simple terms, logic or to express it in another way:
If A + B =C then B + C = A
Now how can I go about analyzing the data toward deleting the subjective and or speculative? I can start by determining the truth value order, as follows:
1. Physical
a. artifact
b. test data
2. Dis-interested witness statements
a. common elements of factual data
1. Interested witnesses
a. passengers
b. selling dealer/ repair vendor
c. Boat/part/equipment manufacturer
1. Operator
The most valuable and truthful is the broken part or accident damage. Inanimate objects have no ego, they do not care that they failed. Proper analysis of the physical damage will always lead to the true cause of the occurrence. Test data from properly designed experiments will also lead to a true cause of the occurrence.
Statements from dis-interested parties, i.e. witnesses, are helpful but can be fraught with inconsistencies and 'fantasies'. If several statements are secured the common threads among all need to be sorted out and these can be relied upon with reasonable truthfulness.
Statements of passengers, representatives of the boat manufacturer and/or its equipment suppliers must be taken with a large grain of salt. It is human nature to try to see the best in a friend, despite the gruesome nature of the occurrence. It is also human nature to protect an employer or job and therefore be less than truthful. It is possible that an action or inaction, perceived or real, on the part of this witness may have contributed to the cause and this individual fears discovery. Again in examining these statements a common thread is the only reliable data.
Statements of an operator or party directly in control at the time of the occurrence are the least trustworthy. By nature we rationalize our actions. The humanity in all of us would prevent us from being soldiers, or merely existing, if we could not justify our actions or inaction's. The boat operator that accidentally runs down a swimmer may at first believe his fault, rightly or wrongly, but within days will have a rationalized conclusion that some other person or thing really caused the occurrence. This is not lying, at least to a psychologist; it is a grief coping mechanism.
In any event with heavy emphasis upon the physical data I can come to a hypothesis of the occurrence. This hypothesis is then tested with the intent of defeating it, proving it wrong. If it survives the test then it becomes the conclusion. If it does not survive then it is discarded and another hypothesis advanced, tested, and so on until a hypothesis survives the test or barring such the cause is undetermined.
It is important to remember in this process that rarely do I deal in absolutes. The world is filled with variables and as such an absolutely, positively, certain, for sure, conclusion is a rarity. In most situations the preponderance of data leads toward a most likely (probable) cause or a likely (probable) cause. Other factors that have not been completely eliminated and thus have not been discarded cloud the certainty and thus the most likely, likely variants to the cause conclusion. They may have influenced the cause and thus I cannot say with unequivocal certainty that this accident happened because of XXXX, but I can say: most likely the accident resulted from YYYYYY.
I have heard it said that the cause of any occurrence could be determined
given enough money! I am not certain that statement holds true given the money
spent by the
DOCUMENTATION:
I've covered a lot of ground so far in explaining the tools I use most often to collect the data and or analyze it. I also covered some field practical suggestions. But what documentation can I look to (secondary source material) in the conduct of my work?
In any accident reconstruction I need to refer to the following:
Chapman Piloting, Seamanship and Small Boat Handling
Navigation Rules, International/Inland
The particular state boating rules
The boat manufacturer's Owner's Manual
The engine manufacturer's Owner's Manual
Industry group's recommended practices, such as:
Water Ski Association
Jet Ski Association
Red Cross
USCG Auxiliary instruction materials
USPS instruction materials
State Boating course materials
Private lake's rules, guideline, Association rules
Newspaper articles also help to get a picture of what happened and will give me leads on dis-interested witnesses. The USCG Search and Rescue report, USCG radio logs, USCG Accident investigation report also assist. If the state Department of Natural Resources Police or local Marine Patrol responded then you will want their report. In fire investigation I want the Fire department run log report and the Fire Department investigation report. In most investigations I go to the responding public agency office when I'm at the inspection site and pick up a copy of the report. I try to find the first officer on the scene and/or the individual that wrote the report and talk to them. Much information can be gleaned from this chat, as not all data gets into the report. Remember the three blind men? Some item of data or an artifact that was insignificant to that officer may mean everything to your investigation.
Remember to check the
Consumer Product Safety Recalls, CPSC, if you suspect a consumer appliance
as the cause. Fuels and fuel gases and their appliances fall within NFPA 30
and NFPA 58.
There are many more documentation sources. I am certain the list is endless. I use the same investigation tools mentioned earlier in order to seek out what I need for the particular assignment I am working on.
PRACTICE
How do I use the tools and employ the theory? Well let's take a look at how I collect the data, store it, and then analyze it. In the field I need to take notes of the investigation so that I remember what was discussed, or inspected. It is important that I not come to a conclusion before I arrive at the inspection site. I must be in the data collection mode only, I am a vacuum cleaner, and I am there to suck up every last bit of data and collect it. Later back at the office or in the lab I can 'empty the bag' and analyze the contents. So I keep the following tips in mind:
Notes: Relevant information of the investigation
Who? What?
When? Where?
How? Why?
These notes are not going to record any:
Groundless accusations
Personal Opinions (mine)
Extraneous information
My grocery list or girlfriend's telephone number
Anything I would not like to discuss from the witness stand!
I need to remember the foregoing not only in my note taking, but also when I take a recorded statement. As I indicated earlier a statement helps me because I now have a reliable version of the witnesses story. Stories change, sometimes as often as the compass direction of the breeze. So it needs repeating that the importance for the statement is that you have a version of the occurrence as that witness remembers it. Remember to take their version of the events, not yours. Just as in photographs asking them about what didn't happen, they didn't see or they didn't hear is as important as what the did see, hear, or recall happening.
I need to put the notes, lab tests or inspections, research, and test results into a format that can be communicated to the client. I issue my report. When I prepare this report I need to remember the advice I gave in note taking and not include:
My Resume' or CV
Slang
Groundless accusations
Extraneous Information
Personal Opinions (mine)
My grocery list or girlfriends telephone number
Anything I don’t want to talk about from the witness stand
Now maybe they're a few questions because of the foregoing. Yes I will attach my CV separately and sent it along. No my reported conclusion is not my personal opinion. My personal opinion may be that I don't like the boat, the owner, his girlfriend, or I think he did it but I can't prove it. None of those opinions belong in a professional report. Anyone can opine on anything, people believe opinions when "Experts" espouse them. Since each of you are "Experts" exercise caution when banding about opinions. ALL EXPERT OPINIONS (CONCLUSIONS) MUST BE WELL FOUNDED BY DATA ANALYSIS, AND HYPOTHESIS TESTING.
Now when I'm writing that report I need to remember that this is a public document. All of my work product, file notes, pictures, notes, everything must be kept and made available, if subpoenaed. I may be working directly for an Attorney, and maybe my work product will be protected by Attorney-Client privilege, but I never make that assumption.
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