The Casualty Occurred, Now What? Preserve the Evidence!
addition to the data, the investigation team gets a copy of the software to view the data as well as any relevant user or operating manuals. The team must also determine the different data inputs that go into the VDR, the location of the microphones that record bridge audio, and whether or not there is any data missing.
NOE S. HAMRA Partner
NEIL P. MCMILLAN Associate
After a marine casualty occurs, there will be many immediate actions for the relevant parties, including the vessel’ s owner, manager, insurers, and counsel(“ vessel interests”), to handle. Every incident has its own unique challenges, and this article will highlight some considerations regarding the preservation of evidence. Preservation of evidence is a critical step in the face of government investigations and in anticipation of litigation.
As a starting point, vessel interests will need to assemble an internal investigation team to assist with the initial response and investigation. This will include technical experts, consulting experts, and counsel who can assist with making sense of things in the immediate aftermath and in providing guidance and legal advice to the vessel’ s crew.
When the internal investigation team arrives, a natural starting point will be the vessel’ s pilothouse to identify the equipment on board and locate logs and key documents. Depending on the type of casualty and the crew’ s response, it will be important to try to keep as much of the equipment as possible as it was when the incident occurred. It also will be important to document everything via photos, videos, and photocopies or scans. In practice, the best way to do this is usually to connect with one of the bridge watchstanders. While it may be casualty specific, it is always best to start with a list of likely relevant materials, and then coordinate making copies or photographs. To develop the list of documents to copy, it will be important to work with any retained technical or consulting expert( s).
One of the highest priorities will be to obtain a copy of the data files from the Voyage Data Recorder(“ VDR”). With today’ s advanced systems, doing so will often require a navigation equipment technician who can download the data. It is also important to ensure that, in
Collection from the engine room is also important. While every ship is different, like on the bridge, the first step will be to map out the equipment and components and determine which companies or technicians will be needed to collect data. It also will be important to identify which logs are electronic versus in paper / hard copy, and to connect with the ship’ s crew to establish how such logs were kept in the normal course of operations. The investigation team should also identify how the vessel’ s planned maintenance system works, how the ship’ s drawings and diagrams are stored, and whether or not the crew compiles work done reports.
If the logistics of the casualty investigation permit, the investigative team would ideally bring in professional scanning equipment for any paper logs. However, no matter the method of collection, it will be important to index the documents collected on a daily basis at the end of each day’ s investigation, ideally organized by issue category, so they are easy to locate in the future.
Another outside vendor may be required to conduct any necessary forensic imaging. First, establish the number of computers on board and whether there are separate servers or external hard drives that need to be imaged. It is important to identify which e-mail accounts have external sending capability, versus which are limited to internal correspondence. To the extent practical, guidance from a crew member regarding the internal computer folder structures will be a great help down the road.
Another key step in the process will be issuing litigation holds. Litigation holds are triggered when litigation becomes reasonably foreseeable. Under U. S. law, failure to preserve relevant evidence can result in sanctions under Federal Rule of Civil Procedure 37( e).
The first step of a litigation hold is to identify custodians, which include the vessel’ s master, Designated Person Ashore(“ DPA”), and other relevant shoreside personnel. Next, the preservation scope will need to be decided. This will include documents such as logs, equipment data, e-mails, and other messages. Generally, it is considered
( continued on page 20)
19 • MAINBRACE