2020 has presented a number of challenges to the shipping industry, certainly none more so than the global pandemic which has significantly disrupted international trade and profoundly affected crew welfare. The closure of national borders and the curtailment of commercial flights has introduced other limitations, including the ability of lawyers to travel to vessels following a marine casualty. While this is certainly less of a concern than the plight of many seafarers, who have been stranded on board vessels without any immediate prospect of returning home to their families, it nevertheless presents another unwelcome headache for ship owners.
Following any significant marine casualty, whether a collision, grounding, fire, or other significant event, it is essential that evidence is properly preserved. This will be relied upon as the subsequent legal ramifications of the incident play out, which can often take many years. The early preservation of evidence prevents electronic data being lost, or crew witnesses leaving the employment of the ship owners and subsequently being unavailable or unwilling to provide witness statements.
We would certainly recommend that lawyers are engaged to take witness statements soon after an incident, while memories are still fresh in the witnesses’ mind. Attending lawyers can also play a pivotal role in managing the access of third parties to documents and crew. Vessels are invariably besieged by third party investigators following a significant incident, whether they are from local or national authorities, or lawyers appointed by opposing interests. This can be a very stressful time, particularly for the master, so an attending lawyer who has been in a similar situation countless times can act as a buffer, and provide essential guidance and support as necessary.
Involving a lawyer at an early stage can also guard against the creation of documents which will not be protected by legal privilege. This can be very detrimental, particularly when the crew members have been prompted to record written statements speculating on causation. To avoid the disclosure of contradictory evidence, such temptations should be resisted. Conclusions should only be drawn once the whole of the evidential landscape has been carefully considered.
Of course, many of the tasks that we would usually perform are made much more difficult in circumstances where we are unable to travel to the scene of the incident. We can, nevertheless, still provide assistance in most circumstances.
Ordinarily, we can be on-site within a matter of hours, irrespective of where the vessel has run into difficulties. Reed Smith has experienced admiralty lawyers located in London, Singapore and Hong Kong. Unfortunately, even these hubs of international travel are currently eerily quiet. The rapid increase of internet accessibility on board vessels, and in ports, does however, now allow video conferencing between ships and offices, wherever they are located in the world.
This can allow interviews and investigations to be conducted remotely, reducing the costs associated with sending lawyers to the scene of the casualty. Electronic evidence also plays an increasingly significant role in the investigation of marine casualties, which should be capable of being saved and copied for analysis. Where possible, it is advisable to seek the assistance of a qualified technician to ensure that data is not corrupted during the process of saving it. This can be just as relevant to ECDIS playback as it is for VDR data. Other electronic data is now typically available from third party sources, such as AIS track data and VHF recordings within certain VTIS areas.
Obtaining electronic data can greatly assist the investigation process. However, witness evidence remains paramount. Witnesses can bring electronic data to life. For example, while the VDR will record courses, speeds, and CPAs, it is unable to capture the range of visibility at any given moment. The crew can also explain their intent in making a particular manoeuvre, and clarify when a certain target or lights were first sighted. Ideally, it is best to have the electronic evidence available when interviewing crew witnesses as it can assist in refreshing memories and ironing out any inconsistencies.
The virtual interview process is very adaptable and can be used in a variety of scenarios. We have already used video conferencing facilities to interview witnesses following a variety of incidents, including collisions, unsafe port claims, and engine damage following the use of off-spec bunkers. We were also recently involved in a collision trial at the English High Court where live witness testimony was given by a master of a vessel while at sea – this was a first for the Admiralty Court!
Conducting interviews remotely can mean that witnesses are interviewed earlier than would otherwise have been possible by physical attendance, so there is no loss to the contemporaneous nature of the statement. There are, nevertheless, challenges presented by conducting interviews and investigations remotely.
While video conferencing platforms have improved greatly, and most people are now quite familiar with them, and features such as being able to share screens can be useful, connections are not always stable which can distort the audio signal or abruptly disconnect the call. This can significantly slow down the interview process and disrupt the natural flow of an interview. Any break in the electronic medium means that time and fluency with the witness is lost.
Video conferencing also has other limitations. For example, it can be much more difficult for an interviewer to pick-up on signs and indicators that may otherwise suggest the witness is not being truthful (in part or otherwise), or engaging with the necessary degree of transparency that investigation work requires. These signs are much easier to recognize, challenge and overcome when the interview is being carried out onboard. It also enables the attending interviewer to form an opinion on whether a witness would make a suitable or otherwise credible witness should the matter proceed to a hearing or trial. That is, early evaluation of a witness’s credibility can be communicated to a client – which can be as important (and in some cases more important) than what the witness in fact states. Language barriers are also exacerbated over video conference. It is much easier to understand each other when other visual cues, such as body language, are not suppressed by a long-distance call.
Global presence, local response
As winter approaches in the northern hemisphere, it is typical to see an increase in marine casualties as severe weather impacts busy shipping routes. While we hope to be in a position to offer onsite assistance in the coming months, this may not always be possible. We are already seeing large parts of Europe returning to lockdown, with strict travel and quarantine restrictions imposed.
Remote interviews will, nevertheless, allow us to support clients in these unprecedented times, ensuring that the evidence collection process is carried out as effectively as possible even if this has to be done virtually. We remain of the view, though, that clients’ interests are best protected by onsite attendance whenever this is achievable.
This article has provided a short summary of some of the benefits and drawbacks of conducting casualty investigations and witness interviews remotely. If you are interested in considering some of these aspects in a little more detail, members of the Reed Smith casualty team recently held a webinar on the subject, which you can listen to here.
If you would like to read more on this topic, click here to read our previous blog on remote surveys.