Maritime casualty response and investigation in the digital era

Posted: 02/11/2020

Maritime casualties can be resource intensive and time-consuming in their immediate management, as well as in the resulting liabilities that can take months or years to resolve.

With current technologies and the increasing availability of electronic evidence, much of the immediate management and investigation can now be carried out remotely. This means it can be quicker and easier to mobilise a response, as well as to involve additional personnel and resources to manage some of the workload.

In certain circumstances such as on-going travel restrictions, remote practices have been embraced and will continue to be used. Such strategies may not, however, be the best practice or appropriate in all cases and there can be good reasons for mobilising personnel on site to manage the casualty and conduct an investigation.

A thorough investigation is an important foundation to establishing claims and enabling ship interests to defend themselves against third party liabilities. Accordingly, ship interests should ensure that their own procedures for casualty management and investigation are up to date and reflect current practices. This is especially important when collecting evidence.

The recent judgment in Sakizaya Kalon & Osios David v Panamax Alexander [2020] EWHC 2604 not only highlights the English Court’s current approach to evidence in admiralty cases but also helps inform how casualty investigations should be conducted.

Casualty response and investigation

Preserving life and property is always the immediate focus after any maritime casualty. There is also a need to understand why the casualty happened, to help prevent reoccurrence, and to establish what liabilities may arise as a result. Liabilities may include exposure to third parties such as cargo interests or other vessels and pollution, for which an owner should have insurance. It may also include criminal liabilities for which an owner is unlikely to be insured. There are usually claims arising against other parties to consider.

Investigations may also be initiated by state organisations including the police, coastguard, flag state and safety bodies, all of whom will expect the co-operation of the master, crew and owner.

For any owner or manager, procedures for responding to and investigating a casualty should be written into the safety management system. Typically, this involves notifying insurers at the outset and obtaining support from external sources such as marine consultants and lawyers who can assist an owner with managing the casualty and conducting their own investigation.

Information and evidence are paramount to establishing how the casualty occurred and form the foundation of any subsequent claim or defence whether civil or criminal. Taking a proactive approach to gathering evidence is time well spent, with the best evidence obtained immediately after the incident before it is contaminated, lost or forgotten. Delays can make gathering evidence significantly more time-consuming and difficult, where witnesses, documents and data have to be traced and/or may no longer be on board. Although the expense of an initial investigation may be significant, investing in obtaining evidence early usually results in overall cost savings and can greatly assist in resolving disputes efficiently.

A practical step that owners and managers can take is to review their safety management system to ensure that it identifies what documents and data need to be preserved and assigns the tasks of preserving and gathering evidence. This review will help ensure that nothing is overlooked.

What evidence should be collected?

Evidence is generally specific to the nature of the casualty but typically comprises the ship’s documents such as log books, records, passage plans, charts, statements of fact, checklists, engine room data printouts, company procedures (including relevant sections of the SMS), certificates, maintenance records and sections of the PMS, certification, D&A tests etc.

VDR data, if preserved and available, can provide a comprehensive vault of information. Modern systems should store the following data: date and time, position/course/speed/heading, bridge audio, radio audio, radar (both displays), ECDIS, echo sounder, main alarms, rudder order and response, engine and thruster order and response, state of watertight and fire doors, wind speed and direction, hull stresses, AIS, rolling motion and electronic logbook (if fitted).

If installed after 2014, VDRs must preserve data from the last 30 days and be fitted with a standard interface such as USB etc that should overcome past issues with the data not being saved in time. VDR data should be removed by a suitably qualified technician, usually from the manufacturer, to ensure it is saved properly and in an accessible format.

Owners and crew are frequently unaware of the extent of data that exists on board within equipment and which must be preserved. Digital data is stored in a multitude of equipment including:

• ECDIS stores huge amounts of raw navigation data
• GPS and AIS units keep their own logs
• VHF radio units
• CCTV
• engine room alarm systems
• recordings by crew on mobile phones, including photographs, videos and audio recordings
• bridge and/or office computers
• email correspondence

As well as establishing what data exists, owners and managers should ensure that they know how to access and download this data.

In addition, publicly available data can be obtained. This can include:

• AIS data showing the navigation of the vessel(s)
• port VTIS recordings
• CCTV
• news reports and social media, particularly photographs, can provide information about circumstances of the casualty and its condition
• environmental data, such as weather and tidal data, which is often freely available

The aims of an investigation

The aims of an investigation are to build a factual matrix of events surrounding the casualty and to preserve evidence. The matrix can be analysed with tortious, contractual and statutory obligations in mind to determine what claims and liabilities may arise.

Longstanding practice involved an investigator attending a casualty as soon as possible to gather and analyse the ship’s documents and to interview the crew in order to build the matrix.

Nowadays, particularly in navigational cases such as collisions and groundings, an investigator can begin work remotely using publicly available data such as AIS, as well as online media such as photographs and videos. With the ability to scan and email documents ashore, much of the required documents and information can be assembled without needing to visit the ship.

The size of the VDR data capsule remains problematic but the data can nonetheless often be provided to investigators soon after an incident in hard copy via courier or through data-sharing services. A preliminary matrix that can inform a strategy for handling the case can usually be produced quite quickly.

A factual matrix based on electronic data and documents is typically more accurate and reliable than the crew’s recollection. Where digital data and documents are readily available, the preferred practice now is to analyse the documents before interviewing the crew. The crew evidence remains important in two aspects. First, it can help to identify and complete gaps in the digital records and, secondly, it can help explain why decisions were taken and events occurred. Crew interviews are now, therefore, not so much about what happened but why certain things happened, which cannot be discovered from electronic data.

If documents and data can be transferred ashore and crew interviewed by video conferencing, is there really a need to deploy an investigator on board? The decision to do so will be casualty-specific.

In a case concerning major machinery problems, fires or significant cargo damage, lawyers will often still attend, accompanied by a marine engineer, fire expert or cargo expert as required, as soon as possible because the evidence tends to be time-sensitive. They will obtain evidence from maintenance systems and take samples for forensic analysis. Witness statements from engineers and other crew members aboard may also be required immediately.

In some circumstances, the investigation can be conducted remotely, typically after a small incident where the vessel has been able to continue on its passage. There remain, however, a number of advantages to putting the investigator on board. Some relevant factors in deciding whether it will be more efficient to deploy an investigator include:

• A remote investigation still requires someone on board, typically an officer or crew member, and someone at the manager’s, to gather and assemble the relevant documents. They are not trained investigators and need clear guidance. Further, they often do not have the time to undertake the task thoroughly as they still have to carry out their normal duties.
• After reviewing documents, an investigator frequently has further enquiries and requests for additional documents. If they are on board, they have ready access to those documents. The crew can be left to focus on their ordinary workload and returning the vessel to service.
• The volume of documents can be significant and transferring them electronically from a ship that is not alongside can be slow and expensive.
• While not always the case, the master and crew may not be impartial. They may be concerned about carrying blame and being reprimanded. This can affect the information collected and conclusions reached. Conversely, any witness evidence prepared by a lawyer will generally be given greater credibility by common law courts as lawyers are bound by rules of professional conduct.
• A lawyer’s investigation notes are usually privileged, whereas the notes taken by an investigator from the owner or a manager such as a DPA or superintendent will probably not be. This means that they may have to be disclosed to opponents during legal proceedings.
• Video conferencing can be conducted via mobile or satellite connections. While some interviews run smoothly, they are subject to technical glitches and drop-outs. Crew are frequently disrupted and language becomes a greater barrier.
• An interviewer can learn much more about a witness when interviewing them in person and make a better informed judgment about whether they are likely to make a good witness in subsequent legal proceedings.
• If a lawyer boards, they can assist the master with managing and monitoring any third party investigators.

Third party investigations

A further consideration for owners in deploying personnel and lawyers on board is to ensure that they can monitor and oversee external investigations such as flag state, coastguard, police, harbour master, national safety board etc.

For owners and the master, it is essential that they establish which entity any third party investigator represents; the purpose of their attendance; and what rights or powers they have to carry out that investigation. A master or a member of the ship’s crew is rarely qualified to make that assessment.

Depending on their rights and powers, external investigators can require documents to be provided or to interview the crew. Sometimes investigators might seek to use powers that they do not have.

In the UK, the Marine Accident Investigation Branch (MAIB) has very wide-ranging powers as its remit is safety only, and owners and crew must give their full co-operation. However, when investigating in the UK, the Maritime and Coastguard Agency (MCA) frequently attends at the same time. As a prosecuting authority, the MCA has fewer wide-ranging powers of investigation and, in certain circumstances, there is a right to silence. Authorities in overseas jurisdictions may or may not have a variety of powers.

It can be tempting for an owner to expedite matters by allowing the different investigators to carry out their work in tandem. Investigators will often try to persuade owners and crew to do just that. However, where the investigators have different powers, it is clearly not in the interests of the owners or crew for those bodies to carry out their investigations concurrently. That is particularly the case where one body has prosecuting powers and an interviewee might inadvertently incriminate themselves.

An advantage of involving lawyers at the outset is that they can assist with managing these investigations, while their own investigation can be protected by privilege. As a matter of English law, this may allow an owner to withhold their investigation in any court proceedings.

Use of evidence in court proceedings

The Admiralty Court in London, recognising the usefulness and ready availability of electronic data, amended its procedures in 2017 to require the early exchange of data between the parties in collision claims. It has also confirmed in recent judgments that electronic data can help readily establish a factual matrix at trial. This allows the Court to focus on assessing the faults of the vessels and apportioning blame. The collection and preservation of data is, therefore, essential.

Electronic data needs to be presented to the Admiralty Court as it is rarely legible in its raw form. The Court’s expectations on the presentation of the electronic evidence at trial have also evolved. Most recently, in the Panamax Alexander, electronic data was used in the following ways to show the navigation of the vessels:

• an audio transcript of bridge and VHF conversations
• schedules of the vessels’ positions, headings, courses and speeds
• screenshots from the vessels’ ECDIS
• an agreed plot of the vessels’ navigation
• a video reconstruction produced by maritime consultants was welcomed, whereas courts would previously normally only insist on plots

Although this evidence demonstrated the navigation of the vessels in question, the trial judge highlighted the importance of the crew’s evidence in explaining the navigational decisions, which are relevant when assessing fault and blame. Where the evidence of a master was inconsistent with the electronic data, the Court had no hesitation in preferring the latter.

The judge was also keen that evidence was adduced from the master and crew so that, at trial, they could respond to any allegations made against them, particularly where such allegations concerned serious navigational errors or issues of seamanship.

This means that witness statements still need to be taken so that a witness can be called at any trial. However, witnesses should review any electronic data when preparing their statements and use them as a means to add to their accounts or explanation of the navigation where necessary or where it is not obvious from the data. In doing so, care needs to be taken to ensure that the statements remain the witness’s evidence and do not cross over into pleadings about fault in the case.

Summary of best practice guidelines

• Initiating an investigation into an incident at an early stage is essential. The strength of an owner’s claims and defences goes hand in hand with the strength of the evidence.
• Owners and managers should audit their procedures and equipment so that, in the event of a casualty, they and the masters and crews involved know what evidence is available on board and how to access that data.
• If an investigation is to be conducted remotely, the investigator must be given adequate support by a competent person on board and at the manager’s office. It also requires a reliable internet connection for transferring documents and one that allows a stable video connection.
• Digital evidence is often comprehensive and accurate. It can delay, but not avoid, the need to interview the crew and collect their evidence.
• Owners need to be extremely careful when dealing with third party investigators to understand their motives and determine whether they have any rights and, if so, what rights they have to carry out their investigation.

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