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23 April 2014
A recent study of case law confirms that the Norwegian courts will place significant weight on evidence arising from or collected in the immediate aftermath of an incident – so-called 'contemporaneous evidence'.(1) The English courts have long applied a similar principle. Parties facing a potential dispute should take care to collect all relevant documentary evidence, and be cautious when issuing preliminary reports or other documents until all relevant facts are identified. Nowhere is this more important than in the context of marine and offshore casualties.
Under Norwegian civil procedural law, litigating parties are free to present whatever evidence they wish, with few restrictions. Evidence typically includes physical or documentary evidence, witness statements and expert statements. However, unlike the procedure under English law, written statements are relatively rare. Typically, both expert witnesses and ordinary witnesses give statements through oral testimony in court.
The Civil Procedure Code provides for a free consideration of the evidence by the court. In principle, there is no order of priority between different types of evidence. The courts will assess all evidence jointly in order to conclude on the facts. The courts have nevertheless developed a general principle whereby more weight is usually attributed to contemporaneous evidence.
This principle was first expressed in a Supreme Court judgment in 1995.(2) When considering the evidence, the Supreme Court stated that particular weight should be given to the contracts, other documents and the parties' behaviour up until the dispute arose. Documents and statements produced subsequently – particularly statements given as evidence in court – should generally be given less weight. The reasoning was that statements given once a dispute had arisen would be influenced by the conflict and the parties' interests in its outcome. Subsequent case law has confirmed this principle.
This reasoning behind the principle is easy to apply in the maritime context. The officers and crew involved in a collision or grounding have ample time to consider what happened – both individually, among themselves and sometimes with third parties – before a lawyer arrives on board to record their statements. Understandably, crews recognise that the casualty will have major consequences for the owner and quite often (regrettably) for the crew themselves. Accordingly, there will always be the temptation to present their evidence in the most positive light. This will be the case no matter how soon after the casualty evidence is recorded.
The rule of 'first in time evidence' was first applied to a maritime case by the Supreme Court in a remuneration salvage case.(3) The issue at hand was whether a pilot vessel had been exposed to such danger that the owner, the Norwegian state, had a duty to pay salvage for the assistance rendered by another vessel. The Supreme Court awarded salvage remuneration and stated:
"When considering this question, it is my view that significant weight should be placed on written notes taken at the time of the salvage act or immediately thereafter. As the Supreme Court had noted in several decisions, there will often be reason to place less weight on information from witnesses which has been provided a long time after, and which is contrary to or changes the picture which evidence provided closer to the incident gives."
The Supreme Court also found that statements provided by the crew at a later stage could be influenced by subsequent factors. The judgment was based on the evidence provided at the time of the incident, disregarding the contradictory, subsequent evidence. The casualty in this case took place almost 25 years ago, when the full array of computerised electronic navigation aids used today were not available. Today, the automatic identification system (AIS) or voyage data recorder (VDR) showing the course of the vessels before a collision will probably play the most important role when considering which crew's statements are most reliable.
In a recent appeal court judgment, an incident report prepared by the shipowner less than one month after the incident was considered contemporaneous evidence, on which significant weight was placed.(4) Witness statements giving alternative reasons for the incident, provided several years later during the main hearing in the court of first instance, were not considered persuasive.
This may be a worrying conclusion for shipowners. In complex cases, the significance of some evidence may be overlooked in the early stages. To fix the parties with a rough and ready assessment of the causation of the incident could be unjust. Equally, the judgment highlights the inherent risk in reports that identify or purport to identify root causes and areas for improvement.
The approach taken by the English courts is similar to that seen in Norway. It is entirely within the judge's discretion to decide what weight to attribute to different aspects of evidence. However, evidence that appears more impartial will often be favoured over evidence created long after the incident. For example, evidence that is mechanically or electronically generated, or that existed before there was an incident or immediately thereafter, will generally be given more weight than witness statements obtained a year or more after the casualty.
Taking into account the significant weight placed on contemporaneous evidence by both Norwegian and English courts, parties facing possible future litigation can benefit from a conscious effort to collect contemporaneous documentary evidence and witness statements. For example, most shipowners and their underwriters will require lawyers to attend immediately to interview crew and collect ship documents.
Of equal importance is, where appropriate, that the conclusions reached in early reports be identified as preliminary and based only on the evidence available at that time. Such an approach is helpful as regards root cause analysis reports, reports produced to comply with safety management systems and requirements of vetting agencies and oil majors. These reports, on request, can be disclosed in legal proceedings or by governmental authorities in connection with pollution claims.
While the most obvious type of contemporaneous evidence following a casualty is the vessel's VDR, it is arguable that VDR data is correctly retrieved in less than 50% of incidents (typically due to a failure to secure the recordings before they are overwritten, or due to incorrect extraction of the data by crew members or authorities). There are many other ways to reconstruct events from electronic data sources, such as an electronic chart display and information system, automatic radar plotting aids as well as VTS or AIS. In recent years, social media has also emerged as a source for contemporaneous evidence, as it may be a useful place to see what the other side's crew are saying about the incident.
Given the common failure to retrieve VDR data and the exaggerated weight that courts may place on preliminary reports, the art and value of statement taking is far from dead, and remains an important precaution for any owner after a casualty. For these reasons, it is important to collect evidence and take statements from relevant crew members as soon as possible following an incident. Instructing legal advisers at an early stage can be an investment in a best possible outcome of a future dispute.
For further information on this topic please contact Morten Lund Mathisen or Nina M H Hanevold at Wikborg Rein's Oslo office by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email (firstname.lastname@example.org or email@example.com). Alternatively, contact Chris Grieveson at Wikborg Rein's London office by telephone (+44 20 7367 0300), fax (+44 20 7367 0301) or email (firstname.lastname@example.org). The Wikborg Rein website can be accessed at www.wr.no.
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