6 minute read
Marine casualty technology
Time to get to grips with tech solutions
Tchnology is beginning to transform marine casualty investigations, as its adoption has accelerated significantly during the pandemic. Christian Dwyer, (above) Global Head of Admiralty, and Donal Keaney, (below) Senior Marine Manager, both at Ince, one of the leading international law firms in the maritime sector, highlight that although it is early days for the technology, if used properly, it can accelerate progress in investigating marine casualties
The casualty claims investigation process has evolved in recent years, a process that has been accelerated by the COVID-19 pandemic. Recent advances in technology have enabled investigators to access relevant information remotely, collate and process electronic navigational evidence, which allows interested parties to form an early view on the scale of the casualty and likely legal issues to arise.
Although these solutions can make investigations faster, more streamlined, accurate and time and cost-effective, at best, they are still under-used and at worst, can be poorly applied.
Several technological developments in the field of casualty investigation have played a key role in this shift, specifically Voyage Data Recorders (VDRs) and the Automatic Identification System (AIS).
Since the IMO adopted Resolution MSC.333(90) to revise the performance standards for VDRs to assist in investigations into casualties back in 2012, VDR data has become far more comprehensive and reliable.
All ships with VDRs fitted after 1 July 2014 now have a longterm recording medium, capable of storing a minimum of 30 days of continuous electronic data. As a result, the preservation of VDR data is no longer a matter of urgency, particularly in a large-scale casualty where VDR data can evidence the actions of crew to mitigate loss following an incident, as well as prior.
REMOTE INTERVIEWS
interview witnesses and parties involved in a casualty, remotely. Whether because of travel restrictions or cost concerns, witness can now often be interviewed remotely using video calling facilities and locally sourced internet ‘dongles’.
The ability to do this is especially significant, given the recent introduction of amended rules for the preparation of witness statements, discussed later in this article.
Additionally, AIS has proven to be an important tool in improving casualty claims processes. It grants access to a comprehensive data bank of global information in use worldwide that allows specialised legal and casualty teams to create accurate ‘film clips’ of incidents.
This helpful data - combined with evidence provided by owners, reports produced by local correspondents, and further input from the crew gathered via email or remote interviewing - is instrumental in allowing legal teams to concisely advise clients on liability and propose the best steps for further handling.
The ability to analyse electronic navigational evidence in all its forms properly and efficiently is the key to providing shipping companies affected by casualty claims with the most accurate advice and guidance.
This advice is of relevance to groundings; ‘wash damage’ cases; unsafe port cases; collisions and allisions, irrespective of the value of the claim. The utilisation of AIS, VDR and other advanced electronic evidence analysis systems facilitates a triage approach to the early stages of a casualty, enabling vessel owners and their advisors to make early decisions on the
immediate response to an investigation of a casualty.
Early assessments of AIS and VDR data enables the legal teams involved in the casualty claim process to correct not only initial mis-assessments of the evidence itself but also the impact of this evidence on the relevant legal tests and therefore, liability. In addition, by shortening the lead-time to advice, they can produce significant savings in time and costs.
Finally, it is important to understand that electronic evidence alone is unlikely to provide the complete picture and witness evidence still plays an integral part in the claims and legal proceedings that invariably follow a casualty.
However, witnesses’ recollections will deteriorate in time and can be influenced by external factors. Therefore, it is highly advisable that, in addition to preserving electronic evidence, witnesses are interviewed by an appropriate person as soon as is practical, after a casualty.
EVOLVING INSTITUTIONS AND REGULATION
Courts and legal institutions worldwide are also riding the wave of modernisation in casualty investigations and keeping pace on improving technological developments. The English Admiralty Court, for example, established a ‘fast track’ collision liability procedure a few years ago which makes the early exchange of electronic track data mandatory in all collision liability actions, thus leading to the parties’ early and accurate assessment of liability.
This process lends itself to more efficient and cost-effective Court proceedings. Moreover, preliminary hearings at the English Admiralty Court - and even trials themselves – are currently being carried out remotely, with all filing done electronically.
For these reasons, the English Admiralty Court is one of the front-runners leading the way in modernising the casualty claims investigation and resolution processes.
In line with these efforts and the growing tendency in the sector to streamline casualty investigation, witness statements to be served in Commercial Court proceedings must comply with new rules contained in Practice Direction 57AC, which have applied to Admiralty claims since 1 October 2021.
These new rules are designed to remove complex legal witness statements and statements that are designed to provide an over-arching narrative of the party’s case, including reference to documentary evidence.
The court has taken the view that, in most instances, the case will be determined by documentary evidence. Therefore, witness evidence must now be confined to that narrow section of the evidence which is subject solely to the witness’ own experience of the incident. As a result, the collation of witness evidence is now more complicated to deal with, and each matter needs to be assessed on a case-by-case basis at the outset.
COMBINING INTELLIGENCE WITH INSIGHT
Information without context is like putting petrol into a diesel tank: a costly mistake. That is why ship operators and insurers need experienced legal advisors who can access, analyse and apply this data in a legal context.
While local correspondents and surveyors will still play an important role in responding and gathering evidence on scene, they may not have the ability to test, access and evaluate the electronic evidence, and will certainly lack specialised legal knowledge to understand how it applies to cases. More importantly, Practice Direction 57 AD requires solicitors to oversee the entire process of preparing witness evidence, so their early involvement in this process is crucial.
Seeking early legal advice from practitioners who take a holistic approach to claims investigations – from accessing state of the art intelligence to having the skills and experience to apply its findings - will provide the best ultimate outcome. It will also reduce costs and uncertainty. Furthermore, as claims are often multifaceted, legal action is more likely to be successful if shipping companies partner with law firms that have in-house mariners in their team with both the relevant seaborne and legal experience.
Such experts are best positioned to work together with clients’ on-scene investigations to provide a cost-effective, appropriate, and on-point report and incident analysis, as well as a clear strategy for resolution of the incident. Therefore, as with most things in life, technology can accelerate progress but only in the right hands.
