Whereas We have taken note that it is advisable to review, combine and harmonise accident investigations in the transport sector and, to that end, to establish the Transport Safety Board, and that it is advisable to implement Council Directive 94/56/EC of 21 November 1994 establishing the fundamental principles governing the investigation of civil aviation accidents and incidents (OJEC L 319);
Having heard the Council of State and in consultation with the States General, We have approved and understood the following:
CHAPTER 1. DEFINITIONS
1. For the purposes of this Act and the provisions that derive from it, the following definitions shall apply:
CHAPTER 2. TRANSPORT SAFETY BOARD
§1. Establishment and mission
§2. Structure and composition
The board shall be made up of at least fourteen and at most seventeen members, including the chairman.
The chairman of each of the chambers and one or two other members shall also be a member of the board.
§3. Support
The chamber shall decide whether or not the said persons should take part in the investigation in the light of this information.
Orders in Council shall establish rules concerning the remuneration and travelling and accommodation expenses of the persons appointed pursuant to Section 14(1).
1. The legal status of the secretary and the staff of the bureau as referred to in Section 12(2) is in accordance with the rules that apply to civil servants employed by Ministries, on the understanding that where these rules grant powers to a Minister other than Our Minister of Home Affairs, those powers shall be exercised by the executive committee of the board as referred to in Section 20.
2. Orders in Council may provide for departures from the rules set out in subsection 1.
§4. Procedures
1. The board shall establish administrative regulations, subject to approval by Our Minister, within six months of being set up.
2. The approval referred to in subsection 1 may be withheld due to a conflict with the law or due to the fact that provisions of the regulations would, in Our Minister's opinion, have an adverse effect on the effective functioning of the board.
§5. Administration
The chairman of the board and the Chairmen of the chambers shall together form the executive committee of the board.
The board shall be represented in legal and other proceedings by the chairman of the board and, in his absence, by the deputy chairman of the board.
Provisions shall be made by Ministerial Decision concerning the drawing up of the budget, the long-range financial policy plan and priorities for the audit.
CHAPTER 3. REPORTING
CHAPTER 4. INFORMATION MATERIAL
CHAPTER 5. THE INVESTIGATION
§1. Powers of the investigators
In this section an investigator is defined as follows: the members and deputy members of a chamber, the staff of the bureau as referred to in Section 12(2), in so far as they are designated as such upon their appointment, and the persons appointed pursuant to Section 14(1).
An investigator shall only make use of his powers in so far as it is reasonably necessary to do so in order to perform his duties.
Our Minister may issue general instructions on the exercise of the powers granted to an investigator.
§2. The investigation by the chamber
1. If an investigation is instigated into an accident or serious incident involving a Dutch aircraft with a take-off weight of more than 2250 kg, the board shall report this as soon as possible to:
a. the State in which the operator is established,
b. the State in which the aircraft was designed,
c. the State in which the aircraft was built, and
d. the International Civil Aviation Organisation.
2. Further provisions shall be made by Ministerial Decision concerning the report referred to in subsection 1.
1. If an investigation is instigated into an accident involving a sea-going vessel, the board shall report this as soon as possible to those States with significant interest.
2. Further provisions may be made by Ministerial Decision concerning the report referred to in subsection 1.
1. The board may allow one or more authorised representatives to take part in the investigation at the request of a State. The board may also submit a request to this effect to another State.
2. The representatives may be assisted by experts.
3. The representatives and experts shall have access to all data and information procured during the investigation, provided that they bind themselves to secrecy and on condition that the transparency requirements in the States they represent are not more stringent than this Act allows. They shall submit all relevant information made available to them to the board.
4. It shall be stipulated by Ministerial Decision in which cases the board is obliged to implement subsection 1 in connection with international agreements. It shall also be stipulated by Ministerial Decision in which cases the board is obliged to issue an invitation to submit a request as referred to in subsection 1.
5. Orders in Council shall establish further rules concerning the powers of the authorised representatives and the experts who shall assist them.
Orders in Council may grant further rights in relation to an investigation to a State whose nationals have lost their lives or suffered serious injury.
The board is authorised, with regard to the investigation into an air accident, a serious incident or an incident involving an aircraft, to request assistance from bodies or entities from other Member States of the European Union or one of the other States that are party to the Agreement on the European Economic Area in relation to supplying:
a. installations, facilities and equipment for:
1o. the technical investigation of wreckage and aircraft equipment and other objects relevant to the investigation,
2o. the evaluation of information from flight recorders, and
3o. the computer storage and evaluation of air accident data;
b. accident/incident investigation experts to undertake specific tasks, but only when an investigation is opened following a major air accident.
1. Within thirty days of the date of an accident involving an aircraft with a take-off weight of more than 2250 kg, into which the board instigates an investigation, the chamber shall, where appropriate, forward a preliminary report to:
a. the State in which the aircraft is registered,
b. the State in which the aircraft was designed,
c. the State in which the aircraft was built
d. the State in which the operator is established,
e. the State that is involved in the investigation pursuant to Section 45, or that has provided relevant information or facilities,
f. the State in which the accident took place,
g. the International Civil Aviation Organisation.
2. In respect of accidents or serious incidents involving aircraft with a take-off weight of 2250 kg or less, into which the board instigates an investigation, the board may decide to send a preliminary report to the States referred to in subsection 1 (a) to (f) inclusive.
3. A Ministerial Decision shall establish further provisions concerning the preliminary report referred to in subsections 1 and 2.
4. The preliminary report shall not be made public.
1. In respect of an investigation into an accident involving an aircraft with a take-off weight of more than 2250 kg, the chamber shall submit the accident report to the International Civil Aviation Organisation as soon as possible, specifying the information arising from the investigation.
2. The report referred to in subsection 1 shall not be made public.
3. Subsections 1 and 2 shall be applicable mutatis mutandis if an investigation concerns a serious incident involving an aircraft with a take-off weight of more than 5700 kg, if the investigation has brought matters to light that may be considered to be of significance to other States.
1. The chamber may hold a hearing.
2. The chamber shall inform the following of the place, date and time of the hearing:
a. Our Minister,
b. the parties involved and
c. the representatives of the States who are taking part in the investigation.
3. The place, date and time of the hearing shall also be published in the Government Gazette.
If the chamber decides to hold a hearing, the parties involved shall be entitled to inspect and make copies of any documents relating to the accident or incident. Apart from when preparing for the hearing, they shall be obliged to keep such information secret.
1. The chamber shall conduct its hearing in public.
2. The chamber may decide on significant grounds to hold part or all of its proceedings in private.
3. More detailed rules shall be laid down by Order in Council concerning the order in which the chamber deals with matters.
1. The chairman of the chamber shall call those persons whom he wishes to examine as witnesses or experts; he may, if necessary, have a writ served. At least two weeks must elapse between the writ being served and the day of the hearing.
2. Persons summoned as witnesses or experts are obliged to appear before the chamber.
3. Should a person summoned as a witness or expert fail to appear, an official record signed by the chairman of the chamber and setting out the exact nature of the summons shall be drawn up.
4. Unless evidence to the contrary is produced, the official record of non-appearance shall constitute full proof of the facts reported in it.
5. The chairman of a chamber may request the Public Prosecutor of the District Court under whose jurisdiction the board's hearing is being held to serve a writ of summons on a witness or expert who fails to appear at the chamber's hearing; an order to appear shall be annexed thereto.
6. The parties involved are entitled to be examined as witnesses at the hearing if they have not been summoned by the chamber. At their request, any other interested parties may be examined at the hearing.
1. The chamber may examine witnesses of at least sixteen years of age only after the oath has been sworn before the chairman. Witnesses shall swear to tell the whole truth and nothing but the truth. If a witness with limited development of his mental faculties or a mental disorder is unable, in the board's estimation, to grasp the full significance of the oath, that person shall not be put on oath, but shall be instructed to tell the whole truth and nothing but the truth; failure to follow this procedure may result in the proceedings being declared null and void.
2. The chamber may examine an expert only after the latter has sworn before the chairman that he shall present his report to the best of his knowledge.
3. Witnesses and experts are obliged, where required by the chairman of the chamber, to take an oath and give evidence, or provide their services as an expert, except where they are exempted on the grounds of official or professional secrecy.
4. Those who would, as a result of giving evidence or answering questions, expose themselves or one of their relations (by blood or affinity) in the direct line or in the collateral line to the second or third remove, or their spouse or former spouse or registered partner or former registered partner, to the risk of criminal prosecution or an adverse civil judgement, may be exempted from doing so.
5. An official record shall be drawn up of the examination of witnesses and experts; it shall be signed by the chairman of the chamber and the secretary.
The chamber may award expenses, to be established by Order in Council, to witnesses and experts called by the chairman and to interpreters appointed by the chairman.
Orders in Council shall establish further rules concerning the investigation by the chamber or a body as referred to in Section 42(3).
a. an analysis of the facts of the accident or the incident and the data on which such analysis is based, and
b. the conclusions and establishment of the cause or probable cause of the accident or incident.
§3. The investigation by the board and the chamber
a. an analysis of the facts of the accident or the incident and the data on which the analysis is based,
b. the conclusions and establishment of the cause or probable cause of the accident or the incident, and,
c. if there is cause to do so, confirmation of structural safety faults and safety recommendations.
4. As regards the elements referred to in subsection 3 (a) and (b), the board shall adopt the report of the chamber, if applicable revised pursuant to Section 58(3).
5. The board may decide to withhold certain information from the final report. Section 10 of the Government Information (Public Access) Act shall be applicable mutatis mutandis in this case. The final report shall not disclose the name, address or identification details of any kind concerning the persons involved in an accident or incident.
6. Further provisions concerning the final report shall be established by Ministerial Decision.
The board shall endeavour to make public the final report within twelve months of the date of the accident or incident.
A safety recommendation shall not create a presumption of blame or liability for an accident or incident.
If necessary in order to act immediately to prevent accidents or incidents, the board shall make proposals for preventive measures while the investigation is still under way.
§4. Reopening of the investigation
1. If, after the investigation has been closed, new facts come to light that are of major significance for the conclusions or safety recommendations made in the final report, the board may decide to reopen the investigation.
2. The board shall inform Our Minister of the decision to reopen the investigation.
§5. Coordination with the Defence Accidents board
In respect of an accident or incident that is also being investigated pursuant to the Defence Accidents board Act, the board shall ensure that the activities of the board and those of the Defence Accidents board are coordinated.
§6. Information for the International Maritime Organisation
If an investigation relates to an accident or an incident involving a sea-going vessel, the board shall, if requested, provide Our Minister within a reasonable period of time to be determined by the latter, with all the information he needs in order to notify the International Maritime Organisation about that accident or incident, in so far as the board has that information at its disposal.
CHAPTER 6. FOLLOW-UP TO SAFETY RECOMMENDATIONS
If the board has made safety recommendations to an administrative body, the administrative body to which the safety recommendations have been sent shall determine its position on the recommendations within one year. If the administrative body is not Our Minister, it shall inform Our Minister of its position. It shall send the board a copy of the report it has made to Our Minister. If the administrative body is Our Minister, Our Minister shall inform the board of his position.
CHAPTER 7. SPECIAL PROVISIONS
§1. Identification
§2 Links with the criminal investigation
§3 Links to investigations with a view to imposing administrative measures
Our Minister may establish rules
a. concerning the consultation and coordination between the board and Our Minister in the event that the possibility of imposing an administrative measure is also being considered following an accident or incident, and
b. concerning the procedure for making confiscated items available to Our Minister in that context.
§4 Links to legal proceedings
a. statements made by persons within the context of the board's investigation;
b. communications. recorded within the context of the investigation, between persons who were involved in the operation of the means of transport being investigated;
c. medical or private information established within the context of the investigation concerning persons involved in the accident or incident;
d. data obtained from a flight recorder, a cockpit voice recorder and the transcripts thereof;
e. opinions expressed within the framework of conducting the investigation.
2. Subsection 1, opening and 1(a) shall not apply in the case of prosecution of a witness or expert for perjury within the meaning of Section 207 of the Criminal Code in connection with a statement made by that person before the board.
CHAPTER 8. INVESTIGATION OUTSIDE THE NETHERLANDS
1. If an accident or serious incident outside the Netherlands, including its territorial waters, involves a Dutch aircraft or an aircraft whose operator is based in the Netherlands, Our Minister shall, as quickly as possible, submit all relevant information on the aircraft in question and its crew to the State in which the occurrence took place.
2. In the case referred to in subsection 1, Our Minister shall also notify the State in which the occurrence took place whether the Netherlands wishes to be represented in the investigation. If the Netherlands wishes to be represented, he shall also specify the expected date of the representative's arrival.
If an accident or serious incident outside the Netherlands, including its territorial waters, involves an aircraft that was designed or built in the Netherlands, Our Minister shall notify the State in which the occurrence took place of the following, if that State requests participation in the investigation:
a. in the case of an accident or serious incident involving an aircraft with take-off weight of more than 100,000 kg, the name of the authorised representative and whether he will be present at the investigation and, if so, his expected arrival date;
b. in the case of an accident or serious incident involving another aircraft, whether the Netherlands shall appoint an authorised representative and, if the Netherlands does so, his name, whether he will be present at the investigation and, if so, his expected date of arrival.
1. If an investigation into an accident or serious incident involving a non-Dutch aircraft whose operator is based in the Netherlands or which was designed or built in the Netherlands, is instigated by the State in which the aircraft is registered, Our Minister shall, on request, submit all relevant information to that State concerning the aircraft in question and its crew.
2. In the case referred to in subsection 1, Our Minister shall also notify the State in which the aircraft is registered whether the Netherlands wishes to be represented in the investigation. If the Netherlands wishes to be represented, he shall also specify the expected date of the representative's arrival.
If the State conducting an investigation into an accident involving an aircraft with a take-off weight of more than 2250 kg which is registered in the Netherlands, whose operator lives in the Netherlands or which was designed or built in the Netherlands, asks the Netherlands to take part, Our Minister shall appoint an authorised representative for the investigation.
Provisions can be made by Ministerial Decision concerning the appointment of a representative by Our Minister as referred to in Section 75(2), Section 76, Section 77(2) or Section 78.
At the request of the State carrying out an investigation into an accident or incident involving an aircraft, Our Minister shall, in so far as he is able, provide any available information that is relevant.
When an accident or serious incident has occurred involving a Dutch aircraft or an aircraft whose operator is based in the Netherlands. and that aircraft lands in a State other than the one in which the accident or incident has taken place, Our Minister shall, at the request of the State carrying out the investigation, hand over to that State the recordings from the flight recorder and, if necessary, from the auxiliary flight recorders.
3. At the request of the Netherlands Antilles or Aruba, Our Minister may instruct the board, within the limits of its capabilities, to assist with a shipping accident investigation instigated by the authorities in one of those countries.
Our Minister and the board shall not make public a draft report that they have received during an investigation being conducted by another State, the Netherlands Antilles or Aruba, unless they have received express permission from the country in question or the document in question has already been made public or released by that country.
If the Netherlands receives safety recommendations or other proposals for preventive measures from another State, Our Minister shall inform the State in question, stating his reasons, what action will be taken in response to the recommendations or proposals.
CHAPTER 9. CRIMINAL AND INVESTIGATIVE PROVISIONS
1. Notwithstanding the officials referred to in Section 141 of the Code of Criminal Procedure, the officials appointed by a decision of Our Minister of Transport, Public Works and Water Management and Our Minister of Justice shall also be required to investigate the acts deemed to be punishable offences under Section 87. These officials shall also be responsible for investigating the acts deemed to be punishable offences under Sections 179 to 182 inclusive and 184 of the Criminal Code, in so far as these acts relate to an order, demand or action that is made or undertaken by themselves.
2. A decision as referred to in subsection 1 shall be published in the Government Gazette.
CHAPTER 10. EVALUATION
CHAPTER 11. NEGLECT OF DUTY
CHAPTER 12. TRANSITIONAL AND FINAL PROVISIONS
Any investigations into accidents or incidents - pursuant to the Air Accidents Act, the Inland Waterways Disaster Act and the Railways Act - that began before the date when this Act came into force, shall be completed by the board.
Contrary to Section 7(1), the appointment of the members of the board for the first time shall take place without hearing the advice of the board.
The Inland Waterways Disaster Act is hereby repealed.
Sections 27a to 27d inclusive of the Railways Act
()Bulletin of Acts, Orders and Decrees 1875, 67, as amended by the Law of 11 June 1998, Bulletin of Acts, Orders and Decrees 374, are hereby repealed.
The Inland Shipping Act
()Bulletin of Acts, Orders and Decrees 1981, 678, as amended by the Law of 4 December 1997, Bulletin of Acts, Orders and Decrees 580, is hereby amended as follows:
A
In Section 1(1) the semi-colon at the end of part i is replaced by a full stop and part j is deleted.
B
In Section 4(1) (b), the words "referred to in the Ships Act" are replaced by: issued pursuant to the Ships Act.
C
Section 30 is amended as follows:
1. In subsection 1 the words "the Committee referred to in Section 3 of the Inland Shipping Act" are replaced by: Our Minister.
2. In subsection 2 "the Committee" is replaced by: Our Minister.
D
Sections 31 to 38 inclusive are repealed.
In Section 22(b) under 3 of the Inland Waterway Transport Act
()Bulletin of Acts, Orders and Decrees 1991, 711, as amended by the Law of 14 May 1998, Bulletin of Acts, Orders and Decrees 319, the words "as referred to in Section 3 of the Ships Act (Bulletin of Acts, Orders and Decrees 1932, 86)" are replaced by:, issued pursuant to the Ships Act.
Section 28 of the Prevention of Pollution from Ships Act
()Bulletin of Acts, Orders and Decrees 1983, 683, as amended by the Law of 4 December 1997, Bulletin of Acts, Orders and Decrees 580, is hereby repealed.
In Section 2(1) (a), final indent, of the Delta (Compensation) Act
()Bulletin of Acts, Orders and Decrees 1971, 86, as amended by the Law of 24 December 1997, Bulletin of Acts. Orders and Decrees 789, the words "referred to in Section 3(1) (a) of the Ships Act" are replaced by: issued pursuant to the Ships Act.
In Section 11 of the Injunction to Continue Sailing Act
()Bulletin of Acts, Orders and Decrees 1972, 445, as amended by the Law of 4 December 1997, Bulletin of Acts, Orders and Decrees 580, number 1 in subsection 1, and subsection 2, are hereby deleted.
In the Netherlands Commercial Code
() As amended by the Law of 25 June 1998, Bulletin of Acts, Orders and Decrees 446, the following amendments are hereby made:
A
Section 407(4) is replaced by:
4. Any interested party may appeal to the Minister of Transport, Public Works and Water Management against decisions by the Head of the Shipping Inspectorate in accordance with subsections 2 and 3.
B
In Section 411 (2), the words "or sales in aid of the institution to benefit sailors appointed by the chairman of the Merchant Shipping Tribunal" are deleted.
C
Section 412(3) is repealed.
D
Section 450(4) is replaced by:
4. Any maritime employer who considers that one or more of the crew are guilty of gross negligence in relation to the shipwreck, can apply to the subdistrict court and ask it to release him from the obligation vis-a-vis the crew members in question referred to in subsection 1.
In Section 2:2, subsection 1 of the Working Hours Act
()Bulletin of Acts, Orders and Decrees 1995, 598, as amended by the Law of 14 February 1998, Bulletin of Acts, Orders and Decrees 107, the following amendments are hereby made:
1. Part b reads:
b. an accident as referred to in Section 1 (1) (n) of the Transport Safety Board Act.
2. Parts e and fare deleted.
3. Part g is given the letter e.
4. In the new part e, the words "referred to under a to f inclusive" are replaced by: referred to under a to d inclusive.
The Air Accidents Act is hereby repealed.
In subsection 2(a) of Section 74 of the Burial and Cremation Act
()Bulletin of Acts, Orders and Decrees 1991, 133, as amended by the Law of 26 March 1998, Bulletin of Acts, Orders and Decrees 198, the words "the preliminary investigator referred to in Section 4 of the Air Accidents Act" are replaced by: the chairman of a chamber of the Transport Safety Board as referred to in Section 2 of the Transport Safety Board Act.
This Act shall come into force on a date to be determined by Royal Decree. It may be stipulated by Royal Decree that this Act shall come into force at a later date with regard to investigations into accidents and incidents involving a sea-going vessel. If this happens, the provisions of this Act relating to the abolition of the Merchant Shipping Tribunal shall also not come into force until that later date.
This Act shall be referred to as the Transport Safety Board Act.
We hereby charge that this Act be published in the Bulletin of Acts, Orders and Decrees and that all Ministries, authorities, municipal executives and officials concerned by it shall see to its proper implementation. For the related proceedings in the States General, see:
Parliamentary Documents II 1996/97, 1997/98, 25 332.
Proceedings II 1997/98, pp. 4455-4487; 4768-4769.
Parliamentary Documents I 1997/98, 25 332 (304, 304a, 304b, 304c, 304d).
Proceedings I 1997/98, pp. 1770-1771.
Done at The Hague, 1 July 1998
The Minister of Transport, Public Works and Water Management,
A. Jorritsma-Lebbink
Published on the twenty-eighth of July 1998
The Minister of Justice,
W. Sorgdrager
