Casualty in the modern electronic era thinking outside the box

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In the aftermath of a casualty, shipowners and their insurers will look to preserve the evidence recorded on the vessel’s Voyage Data Recorder (VDR). This is because the VDR provides the least incontrovertible and most objective shipboard evidence of what happened and when.

However, many will also be acquainted with the scenario where VDR evidence is unavailable following an incident – either because the data is corrupted or simply has not been saved. What happens then? Are there any other shipboard systems which are capable of providing the electronic evidence necessary to defend or advance your case or is your position irretrievably weakened by the absence of the VDR?

The answer is, not always. There are potentially many other sources of electronic data that may equate to a worthy substitute for VDR evidence. However, to get at that data, the casualty investigator instructed by the shipowners or their insurer will need to have a good understanding of what navigational instruments on board might contain data and, importantly, how to extract that data.

So, what electronic data is available following a casualty? The answer is: it depends. No two ships are the same and the only way to find out what electronic data is available is by going on board. Gone are the days where course is steered by the magnetic compass, time is told by the chronometer and position deduced by the sextant. Today, the navigator’s key instruments are the GPS, radar, Automatic Identification System (AIS) and Electronic Chart Display Information System (ECDIS), all of which are capable of preserving data in and of themselves – even if there is no ‘advertised’ data storage facility as such. These systems may also pass data to other instrument/systems – and that transferred data might be retrievable if it is unavailable from the originating instrument/systems itself.

What data can be extracted and saved, and how, depends on the navigational instrument/systems on board. Hill Dickinson’s casualty investigators have a good understanding of what data a particular piece of equipment should contain – but it is not always easy to extract that data and, of course, care should be taken to ensure that the data is not corrupted during the extraction process, or worse, lost. Assistance should be sought where necessary from the manufacturers’ representatives and third party consultants.

Notwithstanding the above, IMO Resolution MSC. 333(90) requires that ECDIS is to be connected to the VDR on all ships built after 1 July 2014. Given this new Resolution it will be increasingly common to see ECDIS evidence deduced from a VDR rather than the system itself – though, of course, both methods of data extraction will remain available.

However, as we have stated, any piece of electronic equipment potentially stores data – so if VDR or ECDIS evidence is unavailable, you can and should look elsewhere.

All of which begs the question: is there still a need for casualty investigators given the availability of electronic data? In fact, there are many features of modern casualties that mean the instruction of an investigator is still money well spent on the right case.

Traditionally, a casualty investigator would have to go on board and try to establish the facts of what happened from scratch. In collisions, for example, the investigator would have no information whatsoever in relation to what the other vessel did or at what time. That would only come many months ahead when statements of case/witness statements were exchanged between the parties – and even then there might be no way of definitively determining whether what was alleged to have happened was accurate or truthful.

The modern role of the casualty investigator, however, is somewhat different. It now includes:

• saving and extracting the electronic data – which, as explained above, can be no easy task given the modern array of navigational instruments found on board ship;
• assessing what data has been extracted and, often on board, analysing what other data is potentially available to ‘fill the gaps’ or cross-check the data already obtained;
• verifying the accuracy of the data – the electronic data obtained is not ‘fact’ in itself, but it can be turned into fact with the right supporting evidence. The casualty investigator will need to appreciate: the natural tolerances of the data (how accurate is it?); where the data emanates from (if there are two GPS’ on board, which one feeds into the VDR?); any errors (for instance, heading or gyro errors); and timing alignments (e.g. is the course recorder fed by GPS or the ship’s clock?), etc.;
• understanding/verifying equipment set-up – was it set-up and being operated correctly? Did the crew know how to use the equipment and know its limitations/tolerances? This is particularly important where there might be allegations of unseaworthiness and incompetency of the crew; and
• the more traditional functions of obtaining documentation (e.g. logs, passage plans, procedures, etc.) and taking witness testimony to determine the crew’s personal background, experience, certification and, ultimately, competency (particularly in relation to the electronic navigational instruments they are using). Interviewing crew will still also reveal information that electronic data cannot tell us – for example, such as when a ship’s light or bearing mark was seen or the types of lights displayed by other vessels.

Following an incident, shipowners will need to ask:

• What data do we require to prove what happened?
• On what navigational instruments is that data recorded?
• Do the instruments themselves record data and, if so, how is it retrieved?
• What systems are those instruments interfaced with – the VDR, ECDIS, both or something else?
• How do we retrieve data from those systems?

There are a number of advantages of electronic evidence as opposed to other forms of ‘traditional’ evidence (e.g. log books, notes of protest, witness statements etc.):

• The data is automatically and contemporaneously recorded.
• Extracted data can usually be relied upon as ‘untainted’ by any human interference.
• It is generally considered to be the least incontrovertible evidence and is not easily open to challenge by the authorities or opponents in civil claims.
• It is attached with the highest probative value; the court is likely to rely on automatically recorded electronic data to the exclusion of all other contradictory data.
• It allows the casualty investigator to build up a picture of what happened much earlier than might have been previously the case – in some instances before even arriving on the ship.
• It provides a greater degree of certainty as to what happened and, accordingly, a much better idea of the merits or otherwise of your case at an early stage.

Andrew Glynn-Williams &Jack Hatcher

Associate & Mariner/ Solicitor, Hill Dickinson

Above article has been initially published at Hill Dickinson’s website and is reproduced here with authors’ kind permission