The significance of contemporaneous evidence – points to keep in mind when an incident occurs
A recent study of Norwegian case law confirms that Norwegian courts will attribute significant weight to evidence arising from or collected in the immediate aftermath of an incident, so-called “contemporaneous evidence”.1 A similar principle has long been applied by English courts. 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 very few restrictions. Evidence may typically include physical or documentary evidence, witness statements and statements by experts. Unlike the procedure under English law however, written statements are relatively rare. Normally both expert witnesses and ordinary witnesses only give statements through oral testimony in court.
NORWEGIAN LAW – DEVELOPMENT OF “FIRST IN TIME EVIDENCE” PRINCIPLE
The Norwegian 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 each piece of evidence jointly with the other evidence in order to conclude on the facts. Norwegian courts have nevertheless developed a general principle whereby more weight is usually attributed to contemporaneous evidence. This principle was first expressed in a Norwegian Supreme Court judgment in 1995.2. When considering the evidence, the Supreme Court stated that particular weight should be given to the con-tracts, other documents and the parties’ behaviour up until the dispute arose. Documents and statements produced subsequently, in particular statements given as evidence in court, should generally be given less weight. The reasoning was that statements given once the 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 is easy to apply in the maritime context. The officers and crew involved in a collision or grounding have had plenty of time to consider what happened, both individually, amongst themselves and sometimes with third parties, before a lawyer arrives on board to record their statements. The crew would not be human if they did not realize that the casualty will have major consequences for the owners and quite often (regrettably) for the crew them-selves. 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 Norwegian 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 owners, 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 continued to say 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. It is worth mentioning that the casualty in this case took place almost 25 years ago, when the full array of computerised electronic navigation aids we see today were not available. Today AIS or VDR showing the track of the vessels on the way to a collision would probably play the most important role when considering which crew statements were most reliable.
CASUALTY REPORTS – TO BE TREATED WITH CARE
In a recent Norwegian appeal court judgment, an incident report prepared by the shipowners less than a month after the incident was considered contemporaneous evidence, upon which significant weight was placed.4 Witness statements providing for alternative causes of the incident given several years later, during the main hearing in the court of first instance, were not considered persuasive.
This may be a very 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 very unjust. Equally, the judgment highlights the inherent risk in reports which 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 in the discretion of the judge to decide what weight to attribute to different aspects of evidence. However evidence which appears more impartial will often be favoured over the evidence created a long time after the incident. By example, evidence that is mechanically or electronically generated, or came into being before there was an incident or immediately after it, will generally be given more weight than witness statements obtained a year or more after the casualty.
ADVICE TO SHIPOWNERS AND UNDERWRITERS
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 ships documents. Of equal concern is, where appropriate, that the conclusions in early reports are identified as preliminary and only based on the available evidence at that time. Such an approach is helpful as regards root cause analysis reports, and reports produced to comply with Safety Management Systems and requirements of vetting agencies, oil majors etc. These reports can be requested disclosed in legal proceedings or by governmental authorities in connection with pollution claims.
It is also worth mentioning that while the most obvious type of contemporaneous evidence following a casualty is the vessel’s VDR, our experience indicates that the 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 of course many other ways to reconstruct events from electronic data sources such as ECDIS, ARPAs as well 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 commonly occurring failure of retrieving 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 remain an important precaution for any owner experiencing 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 advisors at an early stage can be an investment in a best possible outcome of a future dispute. •
1 Per M. Ristvedt, Betydningen av de begivenhetsnære bevis i bevisbedømmelsen av sivile saker, TfF 2/2013 s. 65-83. 2 Rt. 1995 p. 821
3 Rt. 1999 p. 74
4 The “Njord B” case, Gulating Court of Appeal of 25 June 2013, previously mentioned in our Shipping Offshore Update from November 2013.