It is late on a Friday evening (isn’t it always!) and you have just gotten that dreaded telephone call: one of your ships has been in a collision. Fortunately, no one appears to have been hurt, but both ships—and cargo—are severely damaged. Then comes the question: can you catch the next plane to East Whatchamacallit to meet the vessel? Next thing you know you are on the bridge, with captain and crew and salvors and surveyors and P&I representatives and lawyers and class representatives and port state officials and lord-knows-who-else all scurrying about trying to get a handle on what happened. You know there will be claims, and you want to be ready to deal with the issues that undoubtedly will arise. Here are a few points to consider when you find yourself in this position.

Collecting Evidence From Your Own Client

Witness Statements

In many jurisdictions it is common practice for the lawyers who first respond to a casualty to immediately have all of the relevant crew members and other witnesses give and sign written statements. This can prove useful in a jurisdiction where rights of discovery are limited and a signed statement is admissible evidence in the event the witness himself is later unavailable to give evidence or testimony in person. Statements can be helpful because they represent contemporaneous accounts of events taken while the memory is fresh.

Even the best-prepared statement can contain significant errors, however, because: (1) the witness is in shock, exhausted, or even injured following the traumatic experience of a casualty, or (2) he states as fact information about which he is actually uncertain, or (3) the witness gives misleading or inaccurate information in an effort to protect himself or the owner, or (4) he feels pressured to sign the statement by the company or its lawyers, or (5) there are language barriers, or (6) any of a number of other reasons. Moreover, statements often turn out to be incomplete because facts that seem critical at the time end up being irrelevant or, worse, facts that turn out to be critical are overlooked or misunderstood at the time the statement is prepared.

For this reason, obtaining signed witness statements can be extremely risky where a case ultimately appears likely to wind up in litigation in the United States. A signed statement is in most instances not admissible in court proceedings in the United States except against the person or party who made it. So, even if the statement is incredibly helpful, it will almost never be allowed into evidence to support the owner’s position.

Signed witness statements, however, generally are discoverable by the opponents in litigation. Thus, a party may be required to disclose the statement to the other side even though it cannot itself use it in the litigation. Further, even though a party may not be able to put into evidence a statement it has obtained from its crew or other employees, the opposing party may in many circumstances introduce the statement into evidence as a “party admission” where the statement ends up containing information that turns out to be harmful to the party’s position.

Therefore, before signed witnesses are obtained, careful consideration should be given to whether the case is likely to end up in a U.S. court. If so, then serious thought should be given to whether a more “secure” means of memorializing information obtained from witnesses—such as an attorney’s written interview memorandum—should be employed.

Preserving Documents and Electronic Evidence

Modern vessel navigation systems often record data that may be highly relevant in a casualty situation. Some examples include course recorders, engine maneuver recorders, GPS, Radar/ARPA systems, AIS, and electronic chart systems (ECDIS). It may also include a so-called “black box” data recording system. It most certainly also includes records and information contained on the ship’s computer, including e-mails, reports, and other records. Some of this data is automatically preserved, and some is generally retained only until it is overwritten with new data. With a GPS, for instance, positional data may be kept for only the last 24 or 48 hours before it is overwritten. Thus, it is critical to act quickly to determine what data exists and how it can be preserved. This may require quick action to engage an expert who is knowledgeable about what information exists and how to retrieve it.

It should be obvious, but the vessel’s paper records must be preserved as well. This not only includes “official” documents such as the various logbooks and operational records; it also includes any “scratch” paper or notes which might contain relevant information such as positions, radar contacts, or soundings that have not yet gotten into a log. It most certainly also includes the navigational chart or charts that were in use at the relevant times, and it is critical that any notations or markings on the charts at the time of the casualty be preserved.

Criminal Investigations

It is not uncommon these days for a marine casualty to result in a simultaneous criminal investigation. Special considerations arise in such cases.

Where an investigation occurs, any statements made by a crew member, employee, or officer who is under investigation may be used against him in criminal proceedings. This includes not only written statements, but also verbal statements, and communications between the subject individual and the company are not privileged from disclosure in this context. In such a case, the person being investigated is entitled to—and normally should have—separate counsel. The Fifth Amendment to the U.S. Constitution protects a witness from being required to make self-incriminating statements, and in such cases an individual’s own personal interests are often best served by saying nothing at all, either to the investigators or to his employers.

Particular care should be given not to attempt to persuade crew members or other employees to refuse to cooperate with the authorities or to make false or misleading statements. Doing so can expose the witness and/or the counseling parties to criminal charges of obstruction of justice. Lying under oath—such as in a grand jury investigation—can expose the witness to perjury charges. Alteration of logs and records can also lead to criminal charges against the individual or the company.

A criminal investigation may also result in the authorities’ taking into custody documents or records, obtaining samples, conducting tests or analyses, etc. The company has rights, not in the least including an inventory of what is taken and the right to accompany the investigators on any inspection or search. Counsel knowledgeable in criminal investigations should be involved from the outset in such a case to ensure that proper measures are taken to protect the company’s rights.

Spoliation of Evidence

In basic terms, in the United States a party has an affirmative duty to preserve evidence that he reasonably believes may be relevant to pending or anticipated litigation. As a practical matter, where a marine casualty occurs a party should almost always assume that litigation is likely; thus, any relevant records should be preserved.

Courts in the United States take a particularly dim view of the alteration of log books and vessel records. Even where no criminal investigation is pending, a party can expose itself to civil sanctions and can severely jeopardize its litigation position where it is shown that its employees or agents altered ship’s records. When such alterations are established, the Court is likely to presume that the original entries would have been harmful to the owner’s position. Indeed, one recent decision held that even if the alterations are subsequently admitted and are not relied on by the vessel owner, the mere fact that they were made is a factor which must be considered by the trial court in apportioning liability for the casualty.

Similarly, if documents are destroyed or negligently lost, the responsible party can be sanctioned for spoliation of evidence. Sanctions can include outright dismissal or the entry of judgment against the responsible party. Lesser sanctions may include a judicial presumption that the lost or destroyed records would have been harmful to the owner’s position, exclusion of other evidence or testimony, or an award of costs or other financial sanctions.

In today’s electronic age, e-mail and other digital data is almost certain to be central to any significant litigation, and companies must take immediate affirmative steps to ensure that these records are preserved. This does not merely mean printing relevant e-mails; it also means preserving the electronic records and archives themselves in case they contain additional relevant data. This can be extremely cumbersome and expensive, and in some instances it may be possible to shift the costs of this effort to the other party.

Collecting Evidence from Third-Party Sources

Third parties can often prove to be valuable sources of information in a casualty, either as eye-witnesses to events, or to corroborate facts or conditions reflected in a log or in party testimony. Traffic control in a busy passage may have log records indicating when a vessel reported that it passed a particular marker. Or it may have recordings of VHF transmissions or of radar data. ARPA stations may have records of vessel positions at relevant times. This data can prove critical to a case, particularly where the events leading up to the casualty are in dispute. In many instances, however, this data may be saved for only a short period of time—often a month or less. Thus, it is critical to take the necessary steps to collect this data as soon as possible after a casualty.

In the United States it is possible to obtain a wide variety of government records pursuant to the Freedom of Information Act. Each agency has its own designated contact to whom requests must be directed. Files pertaining to ongoing investigations are typically not subject to disclosure, though records pertaining to closed investigations often are obtainable. Thus, for instance, it is possible to obtain copies of U.S. Coast Guard investigation records once the investigation is concluded.

Collecting Evidence in the United States in Aid of Litigation Abroad

If litigation is pending in a foreign jurisdiction, it may be possible to obtain evidence from third parties located in the U.S. One way to do so is by the traditional route of Letters Rogatory or pursuant to the Hague Convention on the Taking of Evidence Abroad, both of which involve requesting judicial intervention in the United States via international diplomatic channels.

Another powerful method of obtaining evidence from U.S. witnesses in support of foreign proceedings is via Federal statute. 28 U.S.C. § 1782 empowers a court to direct a person within the district to give testimony or produce documents for use in a foreign proceeding. The basic requirements are: (1) that the discovery sought must be for use in a foreign proceeding; (2) the application must be brought in a district in which the party from whom discovery is sought is “found”; and (3) the party seeking discovery must be either a “foreign tribunal” or an “interested party.” For more details about this powerful statutory tool, see Cameron Beard’s article at the beginning of this issue of Mainbrace.

Conclusion

Having an advanced understanding of the basic issues you are likely to face in collecting evidence in respect of a marine casualty will help prepare you to take the right steps when you get that telephone call in the middle of the night.

“After The Casualty: Collecting And Preserving Evidence,” by Thomas H. Belknap, first appeared in the June 2008 issue of Maritime Reporter.

Notice: The purpose of this newsletter is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Advisory should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.