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  FLASHLIGHT - Februrary 2007            Edition No: 61

Past editions can be viewed on http://maritimecompliance.com/news/index.php


FLASHLIGHT is now in its 6th year of publication being sent out to 4,000+ marine surveyors and their clients.  If you receive the newsletter indirectly, please let us know so that you can be added to the circulation list and to give us a more accurate estimate of our circulation figures.

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Marine Surveyor wanted

To carry out condition surveys and accident investigations on all types of vessels in South East Asia.

This is an opportunity for a committed marine engineer surveyor to grow within a well established company in the far east and possibly take over the future company management..  Training will be provided where necessary.

Reply to editor.

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CONTENTS (for full stories, select a headline)

At the Bow

FLASHLIGHT is a free monthly emailed newsletter circulated to more than 5,000 people involved in marine surveying around the world.  It is circulated to anybody who wishes to receive a copy, eg, Marine Surveyors, P&I Clubs, their correspondents, Underwriters, Professional Institutes, Admiralty Lawyers, etc.  It is a collation of articles relevant to our profession taken from various publications together with contributions from readers.  Please pass it on to any of your contacts who you feel might be interested in receiving it.  If you do not wish to be included in the circulation list, please contact the Editor at the email address below.  Letters, opinions and articles relating to our profession are welcomed for the newsletter.

New readers this month:

Captain Alun Baines, Marine Surveyor and Marine Insurance Assessor, Port Captain, Dunedin, NZ
Capt. Greg Olson, Marine Loss Control Surveyor, Ace Marine Advisory Services, PA, USA
P. Sham - Principal Surveyor, Wilson Surveyors & Adj. Pvt. Ltd., Visakhapatnam, India.

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Spindrift

Below is a selection of articles gleaned from various publications over the last month which we believe will be of interest to our readers:

Schroder free, but can't afford appeal

Capt Wolfgang Schroder enjoyed his breakfast this morning for the first time in four months as a free man ­ and now he is contemplating his future. Speaking exclusively to Fairplay after his release from jail following his conviction on negligence charges, he said he would like to appeal his conviction but simply doesn’t have the $100,000-150,000 that an appeal would cost. “I simply don’t have the money and I don’t think the company [his employer, Rickmers Redeerei of Germany] would pay,” he lamented. A German national, the former master of the Zim Mexico III now plans to return to his home in England where his wife is set for hip replacement surgery next week. “I have a lot of leave time built up and plan to take some,” he said. “Other than that, I want to get back to work.” Schroder was released from custody yesterday following his sentencing hearing when Chief US District Judge Ginny Granade ignored sentencing guidelines and prosecutor’s requests for a stiff sentence and sentenced Schroder, 59, to “time served”. Chief defence lawyer in the case, Irwin H Schwartz of Seattle, said Granade showed “wisdom, compassion, insight and courage” in her sentencing decision.

Ferry officer charged with manslaughter

Ship’s officer Michael Hubble, 61, is facing a manslaughter charge over the death of three yachtsmen through his alleged gross negligence. Hubble was the officer of the watch on the P&O ro-ro ferry Pride of Bilbao while the vessel was on passage between Portsmouth and Bilbao on 20 August last year. The ferry came into the proximity of the 8.2m yacht Ouzo, which subsequently disappeared. The bodies of the three men on board were recovered some days later. All three men, who were in their thirties, died of drowning, with hypothermia adding to the cause of death in one case. At the time of the incident, Hubble, an agency officer, was in sole command of the ship. The Ouzo was en-route from Bembridge in the Isle of Wight to Dartmouth in Devon. The Pride of Bilbao was serving its Portsmouth-Bilbao route. During the investigation the ferry’s black box was examined. The case was initially held in Portsmouth Magistrates’ Court and been transferred to Winchester Crown Court to continue on 16 February.

Fake ferry captain sentenced to jail

A New Jersey man who used a fake master’s licence to pilot a ferry that was involved in a minor casualty will spend five months in jail in consequence. On Tuesday Lenny Roman, 29, of Hoboken was sentenced to two concurrent five-month jail terms for piloting a passenger ferry with a fraudulent Coast Guard Masters License and making false statements to the federal government, according to a USCG statement. According to court documents, Roman piloted the 24m water taxi Little Lady when the vessel lost propulsion and required a tow on 13 January 2006. The incident took place during a transit from Jersey City across the Hudson River to Manhattan. During a Coast Guard marine casualty investigation, officers determined that the master’s licence Roman possessed was a fake. The man fled when investigators attempted to interview him at his home. He was later captured after indictments on the two felony charges and found guilty. Roman had piloted the ferry for about five months before the accident. “The judge took these charges very seriously,” USCG Capt Frederick Kenney, First District Legal Officer, said in the statement. "This case sends a strong message that potential threats to the safety of passengers commuting aboard public waterborne transportation systems and attempts to undermine the integrity and security of the marine licensing and transportation system will be dealt with severely in federal court."

Erika Day 3: Total's embarrassing memo

PARIS 14 February ­ Erika trial Day 3: French energy group Total, charterer of the Erika, has vehemently rejected all accusations made against the company. “Total cannot be held responsible for the state of the ship and in particular its level of corrosion,” defence lawyers argued. However, a document written in 1998 by Bertrand Thouilin, head of the group’s shipping/trading legal department at the time of the accident, has been put forward. Thouilin wrote that “the responsibility of a charterer may be at stake when it comes to the choice of the ship.” Judges commented that such a document “will carry a certain weight in this trial,” to which Thouilin responded that the document was for internal use within Total only and was meant to reinforce vetting procedures. Nevertheless, even if it proves difficult to establish the responsibility of charterer Total in view of existing laws, the 70 civil claimants present at the trial all want Total to be designated as the responsible party. Depending on what the judges decide, this could lead to a change in law whereby cargo owners would join ship owners as responsible for pollution. “Until now the text of laws governing pollution do not provide for charterer responsibility,” one lawyer outside the trial explained. Meanwhile, ship owner Giuseppe Savarese declared that he is now ruined, dashing hopes of civil claimants that the owner should also be liable for the pollution. Class society RINA has asked the court for “international immunity”, rejecting the competency of French jurisdiction in the handling of the case. Finally, the court noted the absence of the ship’s captain, Karun Mathur; it is now thought he will not attend the trial at all.

Erika Day 3: Total stresses RINA role

PARIS 15 February ­ THE outgoing chairman of charterer Total has underlined the role in the Erika incident played by class society RINA during trial hearings this week. “We think that by certifying such a vessel, RINA has a particular responsibility in this affair,” said Thierry Desmarest. He was backed up by Bertrand Thouilin, who was head of Total’s legal department for shipping and trading at the time. Thouilin stressing that Total is not qualified to judge the technical condition of a ship ­ particularly the condition of its structure, which is purely a class issue. The lead lawyer for the energy major, Maitre Daniel Soulez-Larivière, argued that “vetting the ship is definitely not doing the job of class”, and suggested that a charterer cannot judge the true condition of a vessel by a simple vetting. Desmarest described as “completely false” allegations that Total had interfered in the shipboard activity during the crisis, claiming that charterers are as a general rule “unaware of what is happening on board ships on charter”, with the crew liaising with the ship’s owners where there are problems.

Total blames Erika 'hidden defect'

PARIS 28 February ­ French energy major Total believes a hidden defect in the structure of the Erika led to its sinking. Total’s Alain-Marc Irissou, who was the legal affairs manager at the time, told the court hearing the Erika trial this week that it was not normal for a ship, even when 24 years old, to break in two the way Erika did, even in stormy weather with winds of force 9-10. Total refrained from saying who should have detected that fault but added: “the court will say in due course who is responsible”. Last week Bertrand Thouillin, former head of Total shipping division’s legal team, highlighted the special role played by class society RINA in evaluating the real condition of the ship and detecting potential structure defects or weaknesses. In a separate development, Erika master Karun Mathur appeared at the hearing for the first time through his lawyer, Maitre Quimbert. Under instruction from his client, Quimbert asked the court to drop all charges against Mathur, arguing that the captain’s defence rights have not been respected. Quimbert said Mathur was unfairly imprisoned immediately after his rescue and was not formally notified of the reasons of his detention. The lawyer evoked the European human rights convention and Montego Bay convention to support his position. Karun Mathur is sued for endangering life and causing pollution.

(With thanks for Fairplay Daily News: news@fairplay.co.uk)

In Brief:

Transoptimal Shipping’s dry car go vessel MV "Odisk" evacuated all 10 crew in Yalta, Ukraine with poisoning symptoms.  Vessel was carrying ferrosilicon, which becomes toxic when soaked.  2 crew  subsequently deceased.

LNG high: the world LNG fleet has hit a new high, with 214 ships in service and a further 138 under construction in November. A new report from consultants LNG Shipping Solutions says 90 LNG vessels are due to be delivered over the next two years.

Gallileo delay: the European Commission has confirmed that its proposed Galileo satellite navigation system is running behind schedule, with a yearend deadline to sign a deal with the eight companies developing it on course to be missed.

Mission appeal: a radio appeal by the Mission to Seafarers in Cornwall last month succeeded in locating a Portuguese speaker to interpret for a fishing vessel crew member who had been airlifted ashore after suffering an injury at sea.

Virus strikes: the world's largest cruise ship, Freedom of the Seas, had to be taken out of service for two days last month to enabling a 'deep cleaning' programme to be carried out after repeated outbreaks of the norovirus onboard.

Claims record: renewed concerns over maritime safety have been raised after the Steamship Mutual P&I Club warned last month that major marine liability claims look set to reach an alltime high in 2006.

BP breakdown: the emergency towing vessel Anglian Prince was sent to assist the 3,185 dwt BP Oil tanker Border Heather last month after its main engines cut out in heavy seas near the Pentland Firth.

Drums alert: warnings were issued last month after 13 drums containing a toxic substances were lost from the Swissflagged multipurpose vessel Safmarine Leman off the French coast.

Suez expansion: Egypt is planning to spend at least £2.5 bn over five years to expand the Suez Canal to speed up shipments of Middle East oil to Europe and the US. Plans revealed by the Suez Canal Authority last month would see the waterway deepened by loft to accommodate ships of up to 72 ft draft. The width of the canal, which is presently used by around 18,000 vessels a year, would also be increased.

Spanish alarm: concern is growing in Spanish maritime circles over new figures showing that the fleet controlled by Spanish interests has dropped from 29th to 31st place in the world 'league table' Spanish controlled fleet accounts for only 0.6 o/o of the world's deadweight tonnage, even though it ranks 13th for foreign trade by sea.

Prestige mission: the Spanish government has commissioned the oil company Repsol to examine the wreck of the tanker Prestige, some 156 miles off the country's northern coast, to investigate concerns that it is still leaking oil and that corrosion could cause the release of cargo remaining in the hull.

Philippines boost: global deployment of Filipino seafarers is up by more than 10% from 2005, the country's employment minister revealed last month. More than 245,000 Filipino seafarers were engaged within the first 10 months of 2006, up from 221,521 over the same period in the previous year.

Shortage warning: the world will need to train an additional 10,000 officers and 60,000 ratings to operate the new tonnage presently on order, a report from Mare International warned last month. The study points out that some 4,700 vessels are due to be delivered between now and 2010.

Celebrity fine. Celebrity Cruises has been fined US$100,000 for discharging more than half a million gallons of untreated waste water into Washington state waters from the cruise ship Mercury during the 2005 cruise season.

Tunnel plan: Spain and Morocco have revived the idea of a tunnel between the two countries by commissioning a new study for a 38.7 kmlong rail tunnel under the Strait of Gibraltar.

Senator cuts: German container shipping company Senator Lines is cutting jobs as part of a programme to centralise its management and reduce capacity on its AsiaEurope services.

Report row: the Brest branch of the CGT seafarers' union has joined with families of the five victims of the Bugaled Breizh fishing vessel, which capsized on 15 January 2004, in attacking the findings of an official report on the loss. The French accident investigation body BEAMer ruled out the theory that the trawler sank after a collision with a submarine and suggested the incident was the result of human error findings that the union describes as 'a coverup' The families are demanding another expert opinion on the accident.

Gas delivery: Aker Yards France has delivered the 154,500 cu m GDF Provalys, the world's biggest LNG carrier, to Gaz de France some 12 months behind schedule following major technical problems. Provalys is due to be followed by delivery this month two years late of the Gaz de France energy with the third LNG, the Gaselys, starting tests in February, six months late.

Crew paid: six seafarers remaining on the Panamaflagged tanker Antonios P, blocked at the French Mediterranean port of Sete since June, have received almost £60,000 in back pay and an extra month's pay thanks to the intervention of the International Transport Workers' Federation. Seven other crew members had already returned to Romania or Greece.

Sanko support.. Sanko Line of Japan is investing in training facilities in the Philippines in a bid to secure the continued supply of seafarers for its fleet. The company is due to add almost 90 new tankers and bulkers to its fleet over the next three years and says 25 will be fully crewed by Filipinos.

Shore training: concerned at the increasing shortage of experienced seafarers, Singapore has launched a series of specialist maritimerelated university courses in an effort to provide a continued supply of qualified staff for shore based posts in the country's maritime sector.

Brest Expansion; the French Atlantic port of Brest has unveiled an ambitious plan to double its freight traffic from 2.47m to 5.1m tonnes by 2020. The plan involves major work to accommodate the growing size of ships and reducing transit costs.

Calais problems: shipping movements in the port of Calais were blocked for 36 hours last month following strikes by Calais Chamber of Commerce staff and engineers on some SeaFrance ferries.

'Hit and Run' Case Officers Lose Certificates

A shipmaster and a third officer have had their certificates of competency revoked following a 'hit and run' case off the UK coast.

The incident, which is highlighted in the latest Marine Accident Investigation Branch safety digest, occurred when a fullyladen general cargoship collided with a 17m UKregistered trawler.

At the time, the ship's OOW was alone on the bridge having allowed the AB to leave to carry out fire rounds of the accommodation.

The MAIB said the officer had taken the 'inappropriate' decision to carry out chart corrections while he was alone on the bridge, rather than giving his full and undivided attention to keeping a lookout.

The fishing vessel suffered some initial flooding from the impact, and although it was badly damaged the crew were able to jettison the trawl.

The cargo ship's OOW failed to sound the general alarm, but simply called the mate to check the vessel for damage and continued ahead without reducing speed.

Soon after the collision, the ship's signal disappeared from the Automatic Identification System, but coastguards were able to identify the vessel and contact the crew by VHF. The ship then turned and went back to assist the fishing vessel, and the AIS signal resumed soon after this.

The MAIB said it was 'totally unacceptable' for any vessel to leave the scene of a collision without stopping to assist. 'To not do so is callous and shows little regard for other seafarers; the report states.
 

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Contributions

Legal Privilege: a 'Handy Guide' for Marine Surveyors
by Capt. Robert E. Gordon, LLB, LLM, Managing Director, Seasia

1.0 Introduction:

1.1 As Marine Surveyors and Consultants, we have all heard of the term 'legal privilege'.  We know that if has something to so with client confidentiality and keeping prejudicial information away from opponent lawyers.   However, few of us - apart from those who regularly appear in the courts as 'experts' - will have a clear understanding of precisely what 'legal privilege' is and how it works.

1.2 My task today is to present a concise guide to the concept and application of 'legal privilege'.  And, more importantly, attempt to explain how it impacts on your role as a marine surveyor and consultant.

1.3 As a starting point, we will all be aware of the concepts of doctor/patient, priest/parishioner and lawyer/client confidentiality.  These concepts are historical in nature and are virtually unquestioned as a basic human right, regardless of what country in the world you may find yourself.  The obligation of a professional practitioner to maintain confidentiality will be enforced by that individual's professional licensing organisation.  If confidentiality is breached, he will be disciplined or even struck off the professional register.
 
1.4 Today's focus is on lawyer/client confidentiality and the associated concept of 'legal privilege' which has grown from it, particularly in English/common law jurisdictions such as India, Malaysia, Singapore, Australia, New Zealand, Hong Kong, Canada, and to a large extent, the U.S.A. These associated concepts were nicely described by the Australian High Court in :

Daniels Corp v Australian Competition & Consumer Commission [2002] HCA 49 'Legal professional privileged describes a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters made between a lawyer and a client or between a benefit of a client, such as research memoranda. This immunity embodies a substantive legal right - it may be used to refuse to produce documents that are the subject of a search warrant - as well as a subpoena - or discovery required by rules of court'.

1.5 This is not to say that the concepts of confidentially and legal privilege do not apply in civil/non- common law jurisdictions such as continental Europe or China. It may not be precisely the same in operation. However, there will almost certainly be procedures within the legal systems of a non-common law jurisdiction which will serve to preserve a client's entitlement to confidentiality, including his written and verbal communications with his legal adviser.  So please, no nodding off during this session by those of you resident in civil/non-common law jurisdictions.  And yes, there will be an exam before you are allowed out for lunch!

2.0 Just what is 'legal privilege'?

2.1 As just described legal privilege is an immunity which protects lawyer/client confidentiality from attack by a 3rd party. Sounds fair, sounds just. However, the scope of the immunity is actually quite narrow. And this is for a rather strange reason.

2.2 The peculiarity of English/common law, is that despite it being an adversarial system of dispute resolution, it requires each party to disclose the documents on which he will rely to support his case together with - wait for it - the documents which adversely affect his case and support his opponents!

2.3 A workmanlike pronouncement on this somewhat peculiar process, which is known by lawyers as 'discovery', was provided by Sir John Donaldson, MR, in Davies v. Eli Lily & Co [1987] 1WLR 428:

'In plain language, litigation is conducted ëcards face up on the table'.  Some people from other lands regard this as in-comprehensible. ëWhy', they ask, ëshould I be expected to provide my opponent with the means of defeating me'.  The answer is, of course- that litigation is not a game and is designed to do real justice between opposing parties'.

2.4 This ëcards face up' approach is enshrined in the Civil Procedure Rules relating to disclosure.  Documents to be disclosed comprise anything on or in which information of any description is recorded.  This includes documents, reports, letters, electronic communications, tapes, discs etc.

2.5 The basic premise behind the 'discovery' or disclosure process is that if both parties put all relevant documents forward, by way of a controlled process of mutual exchange, then each party has a better chance to evaluate the real strengths and weaknesses of their case. They will then, hopefully, meet to explore terms for settlement on a negotiated basis. (In truth, discovery probably has a great deal to do with the English notion of 'fairplay' and the rules of cricket!)

2.6 But not all documents or communications are 'discoverable' such that they must be disclosed and shown to the other side. Legally privileged documents (which often contain very sensitive and/or prejudicial information) fall into this very important category.

2.7 There are two principal forms of legal professional privilege which provide ëprotection' from the inspection of documents by opponents under a court enforced discovery process:

(i) Legal Advice Privilege: Where no litigation is contemplated or pending.
(ii) Litigation Privilege: Where litigation is contemplated or pending or actually
underway.

2.8 In our role as marine surveyors and consultants, we will usually be engaged in a situation where litigation or arbitration has either commenced or is pending, so it is Litigation Privilege which almost invariably impacts upon our roles as investigators, advisors and experts. However, for the sake of completeness, let's quickly review the primary differences between these two forms of legal professional privilege:

i) Legal Advice Privilege:
This category of privilege attaches to communications between client and his/her legal adviser, provided the communications were confidential and were for the dominant purpose of seeking or giving legal advice.

N.B.  Note the key elements in bold. All of these elements must exist concurrently to trigger the attachment of legal advice privilege to the communications in question.  If any one of these elements is missing, the communication will not be privileged and will have to be disclosed during the discovery process.

(ii) Litigation Privilege:
This category of privilege attaches where litigation is contemplated or has commenced.  It attaches to all documents (including 3rd party reports) produced for the dominant purpose of the litigation, protecting not only all communications between the legal adviser and client but also between legal adviser and 3rd parties such as witnesses of fact or experts (including surveyors and consultants) in the litigation.

N.B.  Again, note the key elements in bold. All of these elements must exist concurrently so as to trigger the attachment of litigation privilege to the associated communication or report.

2.8 As we are more concerned with the workings and impact of Litigation Privilege, let's look more closely at the trigger elements or conditions that are required to attach this category of protection to our reports and our communications with our client's legal adviser:

a) Litigation is contemplated - for the 'Likelihood Test' to be met, there must be genuine prospect of litigation (or other adversarial proceedings).  For example, it has been held in law that 'litigation cannot be genuinely anticipated until a cause of action, or part of it has arisen'.  Alternatively, 'litigation must have been a real likelihood rather than a mere possibility'.

b) Dominant purpose - for the 'Purpose Test' to be met, the sole or dominant reason for the communication or the creation of the document or report, must have been for the purpose of seeking legal advice from a legal adviser.  But what if the document was prepared with more than just one purpose in mind?

Waugh v British Railways Board [1980] AC 521.  A train driver was killed in a locomotive accident.  His widow sought discovery of the internal accident report which British Rail (BR) considered to be 'privileged'.  The report had been prepared, in accordance with BR's long standing practice, for two purposes:

(1) To promote railway safety, and
(2) For provision to BR's solicitors to advise on legal liability.

Was that sufficient to support BR's claim of litigation privilege?  The House of Lords thought not and decided (rather conveniently) that BR's two purposes ranked equally.  Accordingly, the report's purported use as a medium to take legal advice failed the ëdominant purpose' test. It was therefore not privileged.

N.B.   We've all seen those lovely ship board accident report forms with big headings at the top with words such as:  'Prepared for the purpose of taking legal advice from the company's solicitors -'  Would such a report pass the 'dominant purpose' test?

Probably not and shipowners and Masters should be very careful with respect to their accident report entries as to cause.  Just the facts, no opinions please!

Another interesting case on the 'dominant purpose' point, which is highly relevant to marine surveyors, is Guiness Peat v Fitzory [1987] 1 WLR 1027, where defendant architects had notified their PI insurers of a claim for professional negligence.  The Court of Appeal favoured an objective assessment of dominant purpose and held that the notification letter was privileged because its dominant purpose was that it should be used by the architect's insurers to obtain legal advice.  Encouraging to know that the law is not always an ass!
 

c) Legal adviser - What and Who is such a person?  An independent solicitor, barrister or attorney, who is admitted as a practicing lawyer in the country in which he is domiciled or resident, is such a person, regardless of where he may be attending in the world.  Additionally, an in-house lawyer, directly employed by a company, can also lay claim to being a 'legal adviser', provided they are subject to professional discipline (because, for example, they hold a practicing certificate) and they are not subject to supervisory authority from any other non-lawyer within the corporation apart from its board of directors.

N.B. (1) The proper credentials of the 'legal adviser' provides the anchor to a legal privilege claim.  If he/she does not pass the test, then your 'legal privilege' protection could end up on a rocky shore!
            (2) Question: Can a legally qualified Claims Executive in a P&I Club be classified as a 'legal adviser' with respect to communications with a member?
  (3) HEALTH WARNING! EU Law does not recognise an in-house lawyer as a 'legal adviser' for legal privilege purposes. Particularly   when a company is subject to a 'dawn raid' for anti-competitive  practices!

d)  Client - The identity of the client problem is something which is only of particular concern when establishing an entitlement to 'legal advice privilege.' For example, when legal advice is provided to a corporation, who represents the company?  Any and all employees, or just the board of directors?  The current authority on this point and the question of just what constitutes 'legal advice' was considered by the House of Lords in Three Rivers v Bank of England [2004] LKHL 48.  Very sensibly, they reversed the court of Appeal's decision by deciding that 'legal advice' included all confidential communications as to what should prudently and sensibly be done in any given legal context.  Regrettably, the Lords declined to provide clarification on the 'client' issue such that there still exists a potentially dangerous shade of grey over the extent of this word's meaning.

N.B. Because marine surveyors and consultants will usually be more concerned with the protecting status of their reports and communication, in relation to 'litigation privilege', the current ëfog' surrounding the definition of 'client' is not something to spend too much time worrying about.  Unless, of course your own company finds itself being sued for negligence and you face the unhappy experience of being the defendant 'client'.

3.0 How does 'litigation privilege' work?

3.1 As noted earlier, litigation privilege is integral to the pre-trial discovery or disclosure of relevant documents which takes place between the parties to a legal action under the direction of the presiding court.  For example, in the English High Court, the discovery process is regulated by the Supreme Court Act, as set out in a large publication commonly known as 'The Whitebook'.

3.2 The parties must first exchange lists of the relevant documents, set out under the following headings:

Schedule 1, Part 1 - Documents now in the possession, custody or power
of the client and which he will allow his opponent to inspect.
Schedule 1, Part 2 - Documents in the possession, custody or power of the
client to which he objects to production, usually on the grounds of legal professional privilege.

3.3 As noted earlier, the documents listed at Part 1 must include all documents which may assist the opponent to advance his case.  This is an onerous obligation as the solicitors for each party are, as part of their professional qualification, appointed as officers of the court.  Any attempt to destroy or hide documents would be considered as a contempt of court on their part and would certainly lead to professional discipline from the Law Society.

Note: No shredding please! This is the age of the photocopier and electronic filing.  Your client might shred one copy of a prejudicial document, but what about the other 13 copies that are drifting around out there?  If your opponents find one and you haven't declared it in your schedule, you're in big trouble!

4.0 Legal Privilege for Surveyors: the practical stuff

4.1 From the description of the 'discovery' process provided above, you will hopefully appreciate the tactical value of the attachment of legal privilege to post incident communications in which candid, 'warts and all' assessments may have been made.  For example, a vessel's pre-incident ënasty' condition or the crew's evident incompetence or even the Master's ëconfession' as he struggles with guilt and post traumatic stress syndrome.  This is critical stuff and it is essential to control it from the very beginning. Otherwise, the ëimmunity' which can be afforded by legal privilege will be lost to both you and your client with potentially painful results.

4.2 When a casualty or incident occurs and the immediate indications are that a big money exposure will be involved, the client - usually a P&I Club, H&M or cargo insurers - will normally rush to instruct lawyers.  They want advice on liabilities and they know something about the legal privilege issue.  However, time and time again, we have seen otherwise capable people forget the fundamentals, particularly in times of crisis.  On other occasions - far too frequently I regret to say - the client just doesn't understand the magnitude of the problem and the potential claim and even less about the law of evidence.

4.3 The key issue for surveyors is that pre-incident contemporaneous documents, including ship's documents, log book entries etc. can never be afforded legal privilege because they were brought into existence before the cause of incident and before a cause of action arose.  Accordingly, the owner is stuck with what these documents state and that's that.  However, just as soon as an actionable incident has occurred (e.g. a collision or damage to cargo), then litigation privilege can arguably be attached in relation to all reports subsequently prepared by the master and crew and all formal statements taken and reports prepared by an attending surveyor. However, all of the litigation privilege trigger elements (as referred to above) must be put in position very quickly.  But how to do this?

4.4 Focus first on the star player in the privilege process who must of course be a 'legal adviser' who fits the current descriptive requirements.  Many medium to large shipping companies have their own in-house counsel or legal department. It is possible (with some ISM Code prior planning), that this person or persons could legitimately take on the 'legal adviser' role.  If not, then a quick decision must be made as to the appointment of an independent lawyer to take the 'legal adviser' role.

4.5 Alternatively, I would suggest that if a surveyor is under instruction from an insurer (particularly a mutual P&I Club) and if that insurer employs claims staff who can meet the requirements described earlier, then it is arguable that the insurer's in-house lawyer may legitimately take on the role of the 'legal adviser' to the member/client.

4.6 If neither of the two in-house 'legal adviser' options suggested above are acceptable, then an immediate decision must be made as whether to appoint an independent lawyer to take on the 'legal adviser' role.  I say 'immediate' because a non-privileged document does not become privileged just because it has later been handed to a solicitor. For example, if a casualty occurs and no one has been identified or appointed as the 'legal adviser' and the Master - while suffering from post traumatic stress after a serious collision involving loss of life - prepares a casualty report addressed to owners, which later turns out to be a ëconfession' to gross negligence, then it is unlikely that this document will be privileged and no legal magic (apart from pleading insanity) can transform it into anything else.

4.7 Nor is it likely that the contents of any report or interview statements, which have been prepared by the owner's/insurer's surveyor, prior to the identification or appointment of a legitimate 'legal adviser', will be held to be privileged. Why? Because, as discussed earlier in the Waugh v BR case, it might be very difficult to prove that the dominant purpose of the report was to facilitate taking advice from the owner's legal adviser in respect of contemplated litigation. On the other hand, if the judge has had a good breakfast and has not opened his wife's Visa bill that morning, you might - as the negligent architects did in Guinness Peat v Fitzroy, - enjoy a ruling in your favour.
 

4.8 I can already hear the moans and groans from marine surveyors and consultants as will as owners and insurers.  'Please', you will say 'no more lawyers; it's bad enough as it is!'.  Well I do appreciate your concerns and frustrations but the fact remains that post incident communications and reports from a marine surveyor/consultant can impact very negatively on the owner's and insurer's interests if their ëunexpurgated' content is subject to inspection by opponents.  So what is the solution to creating watertight immunity from disclosure to opponents?

4.9 Well I'm sure that some of you might be thinking that the obvious answer is just to not to put anything in writing which later might be seen as being prejudicial to your clients.  Not impossible, but very difficult to keep control of, particularly in the age of e-mail communications.  For example, think you can hide a message by sending it as a 'bcc' and then deleting from your system after you've sent it?  Think again gentlemen.  The latest change to the English Civil Procedure Rules now permits use of the ëmetadata' content of e-mails to conduct wide ranging searches which will show who sent, received and deleted an e-mail document.  Scary, yes?

4.10 And what about those potentially prejudicial remarks which you have been including in your 'private & confidential' covering letters to keep such matters out of your formal report?  Well, no  prizes for guessing that those letters and their contents are -  unless addressed directly to a nominated 'legal adviser' - about as private and confidential as a love note from Monica Lewinsky to Bill Clinton if they are not

4.11 Seasia's Solution, when faced with an urgent casualty scenario and London is still asleep, is to appoint a retained, independent lawyer in Singapore to take on the role of 'legal adviser' for the purpose of facilitating the immediate attachment of legal privilege.  His remit is first to confirm instructions to the attending surveyor to accomplish investigation and control under Seasia's direction.  Second, to confirm that all reports and communications should be addressed directly to him with C.C.'s to Seasia, owners, insurers etc.  However, our lawyer/'legal adviser' is aware that his advice role is limited to an initial 'watching brief' until such time as our mutual clients require his further intervention.  The charge for this initial 'legal adviser' service 'in respect of litigation pending or contemplated' has been pre-agreed at a fixed rate. If further legal intervention is required, then the appointed 'legal adviser' will normally move on into an active role with the benefit of  already having 'read in' to the correspondence as the case develops.

4.12 Is this a legitimate tactic or solution? Some lawyers will say no, that such an arrangement could be viewed by the courts as no more than a 'device', designed to overcome the obligation to provide full and frank discovery.  However, is such a tactic any less acceptable that taking advice from an accountant as to how to legitimately avoid the payment of tax?  I think not and I believe that it is proper - indeed essential in an adversarial situation - to fully exploit the existing rules of evidence to pre-emptive advantage.

4.13 I accept that the 'Seasia Solution' can only be considered as an interim solution, designed to provide time and document privilege while a casualty incident is developing.  If the incident and associated claims exposure turns out to be relatively minor, then it is unlikely that the attachment of legal privilege will become a serious issue (as resolution will likely be on negotiated terms).  However, If it turns out to be a ëbig one', where litigation is pending or contemplated, then the initial 'legal adviser' role would almost certainly be expanded from a watching brief to an active brief, such that any possible suggestions of collusion to manipulate the rules of evidence would almost certainly be negated.

Summary

5.1 As you have heard today, the concept of legal professional privilege is derived                       from the doctrine of lawyer/client confidentiality, considered in common law jurisdictions to be a 'fundamental human right' and a 'cornerstone of justice'.
 
R. V Derby [1996] AC 487 HL, per Lord Taylor

'It is much more than an ordinary rule of evidence - it is a fundamental condition on which the administration of justice as a whole rests.'

5.2  You have also learned that althought the concept of lawyer/client confidentiality is sacrosanct, it does not apply to all communications between a lawyer and his client and assisting 3rd parties (e.g. marine surveyors/consultants) in every situation.

5.3 The court supervised 'discovery' process, runs counter to the concept  of lawyer/client confidentiality. Thus to allow confidentiality to be maintained, the courts have developed a set of rules - including the exchange of lists of documents - under which the existence of confidential documents must be disclosed. However, opponents will not be allowed to see these documents if it is deemed that 'legal privilege' attaches to them.

5.5 The privilege attachment process with which marine surveyors and consultants are usually most concerned is 'litigation privileged'. For such privilege to attach, the key elements which must exist concurrently are as follows:

Litigation must be contemplated, pending or in process.
A legitimate 'legal adviser' must be appointed and all communications directed to this person.
The documents produced must be for the dominant purpose of the litigation (e.g. reports or witness statements intended to support the client's position) and they must be directed to the 'legal adviser'.

If any of these elements are missing, the document or report will not be classified as being privileged and the document cannot be later transformed into a privileged document.

Conclusion

6.1 Legal privilege is a powerful weapon with respect to both the pursuit and defence of a claim. However, it is a 'double edged sword' in the hands of the inexperienced. It is therefore essential that marine surveyors understand how privilege works and what they need to know to ensure that the attachment of privilege to their field communications, witness statements and full reports is not inadvertently compromised.

If your client doesn't understand it, make sure - diplomatically - that he does (send him a copy of this paper) and record the fact that he has been so advised.

Have a chat with a ëfriendly' lawyer in your jurisdiction to check on the confidential rules which apply. While you're at it, suggest to him the 'Seasia Solution' and find out if he will agree a set retainer (small) to accept the initial appointment as 'legal adviser' to your client, confirm instructions to you on his notepaper and then maintain a watching brief pending developments. (My bet is that he will jump at the chance to get in on the action and offer a very low initial retainer fee).

Finally, please remember that although it is only through the intervention of a lawyer that client confidentiality and legal privilege can be generated, it is within the power of marine surveyors and consultants to initiate and manage this exercise. The result will be to maximize the document immunity which is available to you and your client under the law. And, for a bit of fun, it's great opportunity to apply the 'tail wagging the lawyer' principle to the ultimate benefit of your client and your professional reputation.

Capt. Robert E. Gordon, LLB, LLM, Managing Director, Seasia
P&I Services Pte Ltd.
The pdf text is available on Seasia's website at www.seasia.com.sg
 


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Midships

Benefits of AIS

Many people were not happy with the intoduction of AIS on board ships, particularly substandard ship operators.  Some benefits are starting to reveal themselves, for example the case above where a general cargo ship did not stop after striking a trawler.  The master had clearly switched off his AIS to avoid detection.  However, the coastguard had already identified the vessel.  The master and third officer were subsequently punished.  Perhaps it should also be an offence to switch off the AIS when at sea?

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Scuttlebut

ISPS

Conflicts continue to develop with respect to the implementation of the ISPS Code.  Each month, we will be listing some of the ways that the code interferes with normal ship operations which in some cases could be considered as hazardous together with transgressions of interest .....

If you have any glaring contradictions, please let us know.

******

Security flaws exposed by Levina toll

JAKARTA 23 February ­ Confusion over the number of passengers and crew who remain missing after the passenger ferry Levina caught fire yesterday has exposed serious flaws in security at Indonesian terminals. A Reuters news agency report quotes Lt Col Hendra Pakan, spokesman of the Indonesian navy’s western fleet, as saying: “It is common for people who have no ticket to force their way on board using whatever way they find.” The official count is 16 dead and 17 missing, based on the ship’s passenger/crew manifest, but officials openly admit there were probably several stowaways onboard. Many of the passengers hurled themselves off the blazing vessel into the sea to escape the flames and searing heat, and many of the dead drowned. The Indonesian Red Cross has been told of at least 50 relatives still missing, but the agency says some of these may have been picked up by rescuers and have yet to be re-united with their families. Local sources told Reuters that overcrowding and bribing crew to get on board for less than the cost of a ticket are common on public ferries in Indonesia. Transport minister Hatta Rajasa said it was too early to be clear on the cause of the blaze on the 27-year-old Japanese-built ferry.

******

Cruise port security 'not as good as airports'

The events of 9/11 led to a sharp increase in awareness of potential security risks at cruise ports, but there is still room for improvement, according to Paolo Costa, chairman of transport and tourism committee of the EU Parliament. “We do not have the same kind of security as we do at airports at all (cruise) ports yet ­ despite the ISPS Code,” Costa told Euromoney's cruise industry conference in Brussels on Tuesday. In broard terms, security is an issue that concerns all EU member countries, but the question is who should pay for it. “Is it a private fear or a public concern?” Costa asked. He answered his own question by saying that security fears are a public concern, but currently addressing the issue is primarily the responsibility of each member state.

******

IMO Chief warns of ISPS Code inconsistencies - manual to be produced in a bid to help harmonise global security standards

EFFORTS to implement globally uniform security standards in the ports and shipping sectors are falling short, the head of the International Maritime Organisation warned last month.

Speaking to the opening session of the IMO's maritime safety committee, Efthimios Mitropoulos expressed 'serious concerns' that the International Ship and Port Facilities Security Code is not being applied in a uniform manner.

Mr Mitropoulos said the IMO is making 'strenuous efforts' to help member states improve security standards in their port facilities including the production of a special manual. Such work is essential to achieve uniformity in the implementation of the ISPS Code, he argued.

However, the IMO secretary-general said he had serious concerns stemming from various reports he had read including one from the USbased Lyndon B. Johnson School of Public Affairs.

Mr Mitropoulos said the report had been drawn up on the basis of countryspecific research and site visits to ports in seven nations Brazil, France, Hong Kong, India, Mexico, the Netherlands and South Africa.

Researchers had concluded that it was 'clear just how inconsistent ISPS is from port to port and country to country

The study noted that while the language of ISPS is uniform in each port and each country, it was as if we were seeing several different codes. Not only has ISPS been implemented in different ways and with varying levels of success, but overall opinions of ISPS among shippers, port workers and Government officials fluctuate as well.'

Mr Mitropoulos said that further work is needed to ensure uniform implementation of the Code, and the IMO will soon begin work on drafting a new manual to assist such efforts.

The maritime safety committee considered a number of securityrelated issues during the eightday meeting last month, including the operation of ships that do not fall within the scope of SOLAS chapter XI2 and the ISPS Code (such as cargo ships less than 500 gt which travel on international routes) and the security of closed cargo transport units and freight containers aboard ships.

It approved amendments to the recommendations on the safe transport of dangerous cargoes and related activities in port areas, to include provisions intended to address the security of the transport of dangerous goods by sea, and amendments to the IMO/ILO/UNECE guidelines for packing of cargo transport units to address the need for vigilance and for security procedures to be developed.

In addition, the committee finalised the technical specifications of the components of the LongRange Identification and tracking (LRIT) System and discussed the wider applications of LRIT to safety especially search and rescue.
 

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Insurance News

The International Underwriting Association is to run a London Market group for professional indemnity underwriters.  The Professional Indemnity Forum aims to promote sound principles for the best practice of professional indemnity insurance. It will provide an opportunity for discussion
and education on all relevant underwriting, claims and technical matters.

In addition, the Forum holds a popular annual conference to discuss topical industry concerns. This year's conference  will be held from 2nd - 4th July at Robinson College, Cambridge taking a detailed look at legal cases and trends impacting  underwriting and claims strategies. Titled 'Professional Indemnity: Trends, Trials and Tensions' it will include  presentations from leading industry experts on subjects  including conflicts of interest, mortgage fraud and  regulation. The conference is open to anyone involved in the market, including underwriters, claims managers, risk managers, lawyers and brokers. Russell Newell, Divisional Underwriters  Professional Indemnity for Canopius Managing Agents Ltd,  is Chairman of the Forum. He said: "The Professional  Indemnity Forum plays a valuable role in bringing together leading underwriters in London to further levels of  knowledge in the market as a whole. It pursues an academic approach to dealing with real problems facing the market. "The support provided by the International Underwriting Association will undoubtedly boost these benefits and further help those professionals with an interest in professional indemnity."

Underwriters from London’s professional indemnity community in both the company and Lloyd's markets will meet on a  monthly basis with secretariat support provided by the IUA. The forum will also aim to communicate the views of its membership to other market bodies, government and regulatory authorities. It will establish working groups to review  policy wordings or clauses of interest to the professional  indemnity market and provide delegates to other relevant  liaison groups.

The Professional Indemnity Forum has previously operated  as an independent entity within the London market for a  #number of years. It has now voted to become a full part  of the IUA structure which provides underwriting and claims  committees for different classes of business across the  company market.

The group's Deputy Chairman is Mark Lawrence, of Heritage Plc, and Chris Jones, the IUA’s Aviation Manager, has been appointed secretary. Subject to the association’s usual  operational and competition protocols the Forum is open  to all professional indemnity underwriters among the  IUA’s member companies. For further details contact

Further info:  christopher.jones@iua.co.uk

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Wig & Gown

None this month.

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Education and Training


Learn from the mistakes of others. You won't live long enough to make all of them yourself!
(Don Robertson)

You can find more short courses in the USA in the Marine Surveyor's Web Site at http://www.marinesurveyor.com/educate.html
 

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Epistles

Multihull insurance

A response to Guy Matthews, CMS By Charles E. Kanter, AMS, ABYC, SNAME, SSCA

Guy is biased by his own words. There is also a hint of "class envy" in this article, but certainly not undeserved. There is no question that rising affluence has created an entire new category of "sailors" whose aim in life is far more hedonistic than adventurous and they can afford their toys. Frankly, he should be happy for this business. All these affluent folks will be happy to pay a few more bucks for their insurance, at least they can get it.
 
Mark Twain said: "Figures don't lie, but liars figure." The statistics comparisons he uses are totally biased. The reason they are biased is that cruisers and long term liveaboards of the past decades DID NOT HAVE INSURANCE and most still do not! We were all self-insured. As a long-term SSCA Commodore and fifteen (15) years as a full time cruising liveaboard without insurance, I can tell you that from a 5000 SSCA member group sailing world wide, we could have as many as fifty (50) lost boats a year. Only a very few were insured at all. One of the overwhelming problems SSCA members faced over the years was to obtain any insurance. They do not figure in insurance statistics so it would seem that ballasted boats owned by a few rich guys that leave the dock up to half sunk (50% ballast ratio) somehow are safer! Simply not the case.
 
Sorry. There is nothing in the yachting world as prone to sinking as a carvel planked wooden boat. (Ask Bill Butler who was sunk off the Galapagos when struck by a whale and spent 56 days in a life raft) That is why NOBODY will insure them. That is one reason Guy's comparative statistics are not accurate. Most of the monohull disasters which far and away outnumber the catamaran disasters do not show up on the insurance actuarial tables. The problems he describes are mostly operator error. If you analyze the accidents he summarizes, you will note that the reason many of these people are alive today is because of the type of boat they were sailing, not in spite of it. The Silver banks example stands out as does the Queens Birthday race, etc. ad infinitum.
 
In my opinion, which has grown more strident since the advent of modern digital navigation, is that MANDATORY licensing must be an absolute requirement for anybody touching the helm of a vessel, period. I know this creates red-faced vein-popping response from some industry folks and from those in their tippy, lead, masochist boats with green water running on deck while heeled twenty degrees, that require as much investment in gear to keep you from falling overboard or safely in front of the galley stove as in steering it, and bray about boating being "The Last Bastion of Freedom.
 
To the industry I say: Having knowledgeable buyers will help your sales and reduce your liability. To the "Last Bastion of Freedom" crowd, I say: Just a minute, think back, what was the single most important turning point in your entire young life? It was the day you got your DRIVER'S LICENSE!. Why does it infringe upon your "Freedom" to PROVE to your wife, your mother, your kids, your passengers, your insurance company that you know what you are doing out there?
 
The insurance industry is awash in money and desperately competing for those high-risk fringe elements or they would not insure most of these people at all. Not insure us liveaboards is precisely what they did until very recently.  It is sad to see an industry that creates a problem and then tries to blame the technology. We are now living in a world of untold riches shared by more people than ever before in history. If you are willing to insure everybody's wild fantasies, quit complaining and take their money.
 
The cruising catamaran technology has so overwhelmingly proved that it is the safest of all, that, as in the apocryphal words of Disraeli to Victoria at the finish of the Americas Cup race when she was told that the Yacht America had won, she asked: " and who is second?" and the reply: "I'm sorry your majesty, there is no second." Thus it is with the intrinsic safety values of catamarans compared to anything else.
 

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People

Mike Telford will shortly retire from W K Webster.  We wish him well in his retirement.
 

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Books and Videos

Rock Lighthouses of Great Britain by Christopher Nicholson (ISBN 1-904445-27-6)  Cost GBP25.  Published by Whittles Publishing: www.whittlespublishing.com

A gripping story of their development and operation highlighting the constant struggles between the human race and their environment.

******

GMDSS:  A user's handbook by Denise Brehaut (ISBN 9780713678567) Cost GBP15.99.  Published by Adlard Coles Nautical: www.adlardcoles.com

This welcom guide provides updated information on the way GMDSS operates, the relevant traning courses and examinations with appropriate procedures and practices for thos operating the system.

******

The Sea Captain's Wife - A true story of love, race and war in the nineteenth century by Martha Hodes (ISBN 13:978 0393 05266 4).  Published by W W Norton & Company, Castle House, 75/76 Wells Street, London W1T 3QT.  www.wwnorton.com

Not strongly focussed on nautical matters with some information about 19th century sea journeys. Do not expect a work of maritime history.

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Conference Reports

None this month.

(ED: If you intend to attend a conference which you believe would be of interest to our readers, we would be grateful to receive a short synopsis.)

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IMO Conventions

IMO regularly updates its web page with new and amended conventions:
http://www.imo.org/

Here you can browse through the various publications that are available and buy those which interest you. To navigate the publications you can either select one of the categories or use the advanced search.

For those of you who might also be interested, UK M Notices are available at:  www.mcagency.org.uk

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Future Events


If you have a marine related conference coming up, let us know so that we can mention it below:

SCMS holds a series of Buffet Lectures each year. The lectures cover a wide range of subjects that are of interest to Members and their guests.  They are held in London usually starting at 18:00 hrs. The winter programme will be published on the SCMS website http://www.scmshq.org  Those interested should send an email to sec@scmshq.org to be included on the announcement list.  CPD certificates are available for those attending.

1-3 April 2007, NAMS Annual national mariine conference, Galveston, Texas, USA. The Tremont House Galveston, TX Hotel Reservations 409-763-0300.  Contact:  NationalOffice@nams-cms.org

2-4 April 2007, Sea Asia, (Maritime Conference and exhibition) Suntec, Singapore.
www.sea-asia.com

23-24 April 2007, Boat Tech Asia, Sentosa Cove, Singapore. Info at:  www.boattechasia.com.

24-26 April 2007, Cruise & Ferry 2007, ExCeL London, London, UK
Info:  www.cruiseferryex.com

26-28 June 2007.  Work Boat China, Dalian, PRC.  Info:  www.workboatchina.com

24-26 October 2007.  Mediterranean Maritime 2007.  Hall 1A, Parc Chanot, Marseille, France.  Info: www.baird.com.au/meditteraneanmaritime/mmindex.htm

24-27 October 2007, SAMS Annual conference & educational training symposia, Kona Kai Resort (formerly Shelter Pointe Hotel) San Diego, California, USA.  Contact: SAMSHQ@aol.com.
 

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Web Sites

FOR OUR REGULAR READERS, NO NEW WEB SITES THIS MONTH:

We are no longer publishing our list of useful web sites for marine surveyors due to the eventual size of the email being sent out.  If you wish to receive the list, please contact the editor at the email address below.

If your (marine surveying) company has a web site, let us know and we will try to mention it.  Below are some web pages we believe might be useful to marine surveyors:

WHY NOT ADVERTISE HERE.  THIS IS THE FIRST PLACE OUR READERS GO TO!

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From the Poop Deck

Did you ever stop and wonder......

* Who was the first person to look at a cow and say, "I think I'll squeeze these pink dangly things here, and drink whatever comes out?"
* Why do toasters always have a setting so high that could burn the toast to a horrible crisp, which no decent human being would eat?
* Why do people point to their wrist when asking for the time, but don't point to their bum when they ask where the bathroom is?
* Why does Goofy stand erect while Pluto remains on all fours? They're both dogs!
* Can blind people see their dreams? Do they dream??
* If quizzes are quizzical, what are tests? (This one kills me!!!!)
* If corn oil is made from corn, and vegetable oil is made from vegetables, then what is baby oil made  from?
* If electricity comes from electrons, does morality come from morons?
* Do illiterate people get the full effect of Alphabet Soup?
* Did you ever notice that when you blow in a dog's face, he gets mad at you, but when you take him on a car ride, he sticks his head out the window?
* Does pushing the elevator button more than once make it arrive faster?
Afterthought:
* Superior force can demolish the best of arguments. ­ Jules Verne
 

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Disclaimer:  Articles and reports reflect the views of the individuals who prepared them, and, unless indicated expressly in the text, do not necessarily represent the views of the editor.  Whilst every effort has been made to ensure that the information in this publication is accurate, the editor makes no representation or warranty, expressed or implied, as to the accuracy, completeness or correctness of such information.  The editor accepts no responsibility whatsoever for any loss, damage or other liability arising from any use of this publication or the information which it contains.  The contents of the publication are the responsibility of the editor alone.

News, views, enquiries, suggestions, articles and letters for inclusion in future editions of FLASHLIGHT may be sent to:

Mike Wall
Tel:  +852 2259 3150
Fax: +852 2259 3151
Email: mikewall@pacific.net.hk

 
     
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