A picture is worth a thousand words - contemporaneous evidence in maritime incidents and how technology can help

In Watson v Foxman [1995] McLelland CJ said the degree of fallibility of human memory exacerbates over time, particularly where disputes or litigation intervene. Memories are often subconsciously overlaid by perceptions or self-interest, as well as conscious consideration of what should have, or could have, been said or done. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

It is for this reason that greater weight is usually given by the courts to evidence captured in the immediate aftermath of an incident. At the very least, a court asked to make a finding of fact will often prefer the credibility of a person whose evidence is supported by contemporaneous records, where everything else is equal.

The ‘contemporaneous’ courts

In The Bell Group Litigation [2008] the court outlined that reliance on the oral tradition of the common law - that is, witnesses giving evidence of events they have personally observed and that remain in their memories - is somewhat problematic. This is particularly so where the subject matter of the litigation is complex and where a long time has elapsed between the event and its re-telling in court.

In The Bell Group, this would have required witnesses to cast their minds back between 15 and 20 years. For most witnesses, this would prove to be an extraordinarily difficult task. It was for this reason that the court placed particular weight on contemporaneous written records of the various organisations involved in the events of the time.

More recently, in Nominal Defendant v Cordin [2017] the New South Wales Court of Appeal upheld an appeal and ordered a retrial, finding there had been an incorrect determination of the case as the trial judge had failed to place proper weight on contemporaneous documents.

These cases demonstrate the courts’ willingness to attach greater weight to contemporaneous or near-contemporaneous documents as they provide a more reliable account of the situation.

This is not a new way of thinking. In England and Wales, in Onasssis and Calogeropoulos v Vergottis [1968], Lord Pearce noted that it was a truism that with every day that passes the memory becomes fainter and the imagination becomes more active.

What has changed, however, is the ability to capture data immediately after the event.

Maritime incidents

Capturing data and other contemporaneous evidence consistently and accurately following a cargo incident or a collision is ever important.

Between marine insurers and their insureds, contemporaneous statements of direct witnesses, or photographic or video evidence of damage, may help to avoid later arguments. These will assist if there is some delay in promptly notifying insurers and appointing surveyors, and where there might otherwise be only “mere suspicion of damage”.

Collecting photographic or video evidence on the packing at the time of stuffing and of any damage or loss at the time of de-stuffing will, in many cases, be the best evidence to rebut any Hague Visby presumption of sound delivery or respond to a carrier’s insufficiency of packing defence, among others.

The types of records that should be collected in the immediate aftermath will differ greatly for the type of maritime incident. The list of such records is long and may include: logbooks, tally sheets, daily registers, reefer set points, the internal or external condition of containers or vessel holds, images or video recording the condition of hatch covers and associated equipment, cargo loading, lashing, stowage, dunnage or securing conditions, the weather deck when sailing in extreme weather, crew data, stow plans, documents recording a ship’s technical aspects, data from the safety management systems, maintenance, testing and operation records and a statement of facts.

The reality, however, can be that the officers and crew involved in, say, a collision or grounding, will have time to consider and discuss what happened before a lawyer or surveyor arrives on board to collect their statements. During this time the crew may recognise that the casualty will have major consequences for their employer or themselves. There may, therefore, be a temptation to compare and debate any differing versions of events, which risks diluting the credibility of the resulting evidence.

Comment

Capturing data consistently and accurately at the scene of an incident is critical to any business. Analysing that data will better inform key decisions that need to be made, both in terms of allocation of resources to stop the problem at its source and how to navigate litigation if and when a claim is made.

Considering the importance of contemporaneous evidence, shipping and logistics companies and their insurers facing potential future litigation can only benefit from systems and procedures to collect and preserve such evidence.

Related item: Everyone’s watching… and it’s all admissible