Guidelines
Certain items of evidence, such as log books, Master's reports and notebooks, pho-tographs and videos, are of fundamental importance in the investigation of any type of incident which may occur on board a vessel. This chapter examines how these documents or information should be prepared. In addition, this chapter examines the doctrine of privilege and its effect of reports prepared by the Master.
An outline of this chapter is as follows:-
Log books;
Diary notebooks;
Photographs and videos;
The Master's report and the doctrine of privilege
Legal professional privilege,
Self-incriminating document,
The report;
The involvement of lawyers and other consultants.
Log Books
A number of different types of log books will be kept on board every vessel. These will include the official log, the deck or mate's log*, the engine room log, rough logs, as well as the radio log, and sick bay log. For the purposes of this book, the official log, the rough log, the deck or mate's log, and the engine room log are the most im-portant.
Judges and arbitrators place great evidential value on these logs as a contempora-neous record of the vessel. Therefore, it is of paramount importance that all log books are maintained in orderly manner and fully and accurately record all relevant factual Information. Movement books, bell books, or any other type of rough logs are also im-portant items of evidence and should be maintained in a neat and orderly manner.
The Master should ensure that the officers and crew are aware of the importance of a log book, and take care in making entries. Entries in the log books should always be written neatly in ink. If a mistake is made, a single linę should be drawn through the relevant passage. Words, should never be erased, either by rubbing out, or by painting with erasing fluid. Erasures appear suspicious when log books are examined by the opposing party to a dispute, and, in any event, techniques are available whereby words which have been erased can be read. Furthermore, a judge or arbitrator examining a log book which has many erasures and is untidy may draw adverse inferences about the way a vessel is generally maintained.
Diary Notebooks
Masters and officers often keep their own diaries of events on board the vessel. These notebooks are of great evidential value. In particular, if a Master or officer is called before a court or tribunal to give evidence, he may read passages from the notebook in support of his oral evidence.
However, if any part of the notebook is relied upon as evidence, the entire notebook must be made available to all the parties to legal proceedings. Therefore, the Master should ensure that entries in the notebook are of an objective and factual nature and should avoid giving his personal views which, in the event that the notebook is made available to the other parties to legal proceedings, may embarrass the Master and the owners and may even adversely affect the owners' case.
Photographs and videos
As the case history in the appendix to chapter 1 demonstrates, photographs and videos can provide essential evidence. In one instance, for example, owners were able to defeat a claim for cargo shortage by producing as evidence photographs that showed a cargo of grain, which had been discharged into road trucks, spilling out of the back gate of the trucks. Photographs and video can also show heavy weather conditions, inadequate fendering, how cargo was secured, or the general condition of the vessel. Similarly, sketches and drawings are of immense value in depicting certain incidents.
If possible, photographs, videos, or sketches should be used to support the Master's written report. They should be clearly labelled to indicate the date, time, and place and initialled by the Master.
Master's Reports and the Doctrine of Privilege
A Master of a vessel is likely to prepare a report whenever the vessel is involved in an incident which may give rise to legal proceedings. In the event that legal proceedings ensue, the report will be of clear evidential value to all the other parties to the legal proceedings. This section deals with the question of whether a Master's report must be produced to all parties to the proceedings or whether it may be exempt from such production as a "privileged" document.
English arbitration and court proceedins are conducted on the basis that each party to an action submits evidence in support of their case. The general rule is that the parties to the proceedings must disclose and produce all relevant documents. In this context "disclosed" means that the existence of the documents must be made known. "Produced" means that they must be available for inspection. The one exception to the general rule is that documents which are privileged are exempt from production (although not disclosure). In some other jurisdictions, the rules in relation to production of all relevant documents are even stricter than in England.
A Master's report is relevant to legal proceedings and may be used by the other parties to the proceedings as evidence unless it is privileged. The report may be privileged on the ground of legal professional privilege or on the ground that it is a self-incriminating document.
Legal Professional Privilege
Legal professional privilege arises as a result of the need for a legal advisor to gather evidence and examine the issues relevant to a case without the fear of prejudicing a client's interest in the proceedings. All correspondence between a legal advisor and his client is privileged provided that it is written to or by the legal advisor for the purpose of giving legal advice or assistance. A Master's report will be protected from production if it is prepared by a Master subsequent to an incident likely to give rise to litigation proceedings, and if it is prepared for the purpose of obtaining legal advice and is addressed solely to the owner's legal advisors.
In recent times, it has become common practice for Masters to submit accident reports endorsed with the following words: " confidential report for the information only of the company's solicitors prepared for the purpose of obtaining professional advice in proceedings pending, threatened, or anticipated".
Such an endorsement will not of itself protect the document from production as it is the purpose for which the report was produced which will determine whether or not it is priviliged. However, it will assist in demonstrating that the requirements, by reason of which privilege may be claimed, are fulfilled. If the report is so endorsed, it should be submitted directly to the owner' legal advisors.
If copies of the report are sent to, for example, P&I clubs or to owners' operations department (with a view to preventing any recurrence or similar problems in the future), the report will only be privileged from production if it satisfies the following test:
1. the document must have come into existence for the purpose of obtaining legal advice in "legal proceedings which are reasonably in prospect"; and
2. the "sole or at least dominant purpose" for which the document was prepared must be for submission to a legal advisor.
The second part of this test is difficult to satisfy as a Master is likely to prepare a report whenever an incident occurs and not primarily for submission to a legal advisor. Although the report may be prepared with a view to eventual submission to a legal advisor, the courts will consider that such routinely prepared documents are not priviliged from production.
Despite the likehood that the Master's report may not be privileged on the ground that it is routinely prepared, a report prepared contemporaneously to an incident which may be the subject of legal proceedings is an invaluable document. Such a report provide owners and their legal advisors with a complete account of the events surrounding the incident and allow them to prepare fully for legal proceedings. The evidential value of such a document, therefore, clearly outweights the possible risks that the report will be used as evidence by the other parties to legal proceedings,
Self-incriminating Document
A Master's report may also be privileged from production on the ground that it would incriminate or expose the Master or owners to criminal proceedings in the United Kingdom. Although a Master's report will rarely be incriminating, the doctrine of self-in-crimination may be significant in the context of criminal proceedings under the Merchant Shipping Act. Privilege may only be claimed if the risk of incrimination is "real and appreciable".
The Report
In view of the likelihood that the Master's report will have to be made available to all parties to legal proceedings, the report should be limited to a factual and objective account of the incident (the following chapters provide guidelines on the type of information which should be included in the report in particular cases). The Master, as far as possible, should avoid giving his opinions on how an incident occurred. For the purposes of investigating the incident, the Master's views are extremely important. However, they will be taken into account at the appropriate time and should not be included in his report. The Master should also avoid entering into a discussion about the incident in the general voyage report to owners as that document will almost certainly be made available to all the parties.
Involvement of Lawyers and Other Consultants
In the aftermath of a major incident, it is usual for all the interested parties to send lawyers or other consultants on board the vessel to collect evidence and ascertain the true sequence of events. Before admitting these persons on board the vessel, the Master and officers should identify who these persons are and whom they represent, and if possible, should seek authorisation from owners or their local agents. Finally, the Master should ensure that the officers and crew do not discuss the incident with anybody who questions them (or in general) without the prior authorisation of owners or their agents.
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