Effective Casualty Management

1. Effective Casualty Management Stephen Kirkpatrick Partner, Richards Butler 20th October 2006

2. Stephen Kirkpatrick, Partner Peter Harris, Solicitor & master Mariner

3. Effective Casualty Management

4. Casualty Response • PLAN for casualties, BUT • No pre-ordained plan of action fits all casualty situations. • Each casualty is unique and requires a flexible approach from the CRT • As lawyers we have a wide experience of different response situations • From very minor, to some of the biggest casualties of modern times.

5. Objectives Owners’/managers’ objectives include: • Safety of life. • Safety of vessel and cargo. • Prevention of pollution. • Protection of reputation • Protection of profits

6. Objectives The lawyers’ objectives include: • Protect the owners/managers/insurers • Identify potential legal issues/disputes. • Advise on potential disputes; recognise specific issues e.g limitation and jurisdiction. • Guide owners/managers/ in their casualty response in context of potential legal disputes. • Advise generally on the casualty response based upon our range of experience.

7. Communications • Good response requires homogeneous communications and good record keeping. • Daily numbered Sitreps • Contact lists should be kept up to date and regularly circulated to relevant parties. • Control over what communications are sent to which parties. • Information stream

8. Legal issues: Disclosure • Disclosure – one party reveals to the other what relevant documents he has or has had in his possession, custody or power. Principles of disclosure: • To assist the parties in clarifying the issues and evaluating the strengths of their respective cases; and • To enable the parties to see what matters remain in contention.

9. Disclosure (2) • Disclosure means revealing the existence of documents • Inspection means allowing the opposite party to see those documents.

10. Meaning of “document” • Anything in which information of any description is recorded, e.g • diaries, notebooks, photographs, films, tapes, records, microfiches, computer disks, videos, plans, models, samples, components, accounts, emails, telephone statements, minutes of board meetings, unsigned drafts, ISM reports, and other ‘confidential’ documents.

11. The Protection of Privilege Legal professional privilege applies to communications, oral or written: • To enable the client to obtain legal advice; or • Were made with reference to litigation actually pending or reasonably in prospect, i.e “a real likelihood”; or • Were made “without prejudice” (but note exceptions).

12. Specific Disclosure • Application during proceedings for an order to disclose documents that exist or must exist. • Can make or break a case.

13. Disclosure obligations in England • Disclose only the documents on which a party relies. • Disclose documents which adversely effect the party’s own the case. • Disclose documents which adversely effect another party’s case. • Disclose documents which support another party’s case. • Disclose documents which are required by a relevant Practice Direction.

14. Duty of Search • Required to make a reasonable search for all disclosable documents. • Reasonableness • Depends on number of documents involved. • Nature and complexity of the proceedings. • Ease and expense of retrieval of documents. • Significance of documents.

15. Power, Possession and Control • Duty to disclose limited to those documents which are or have been in the party’s control. • Includes physical possession. • Right to possession. • Right to inspect or to take copies of the document.

16. Time for Disclosure • At any time by agreement in writing or by Court order. • A continuing obligation until proceedings are concluded. • Specific disclosure by order.

17. Disclosure abroad: France • No formal procedure of disclosure. • Parties disclose documents in support of their allegations without requirement that they may be relevant to the dispute. • Court will decide the case on the basis of the documents disclosed. • Specific disclosure possible where one party knows that the other has or is likely to have a particular document. • If party fails to disclose specific documents Court can make any inference it so desires

18. USA • Disclosure / discovery rules similar to England • Except • No test of ‘reasonableness’ or ‘proportionality’. • Parties can go on a ‘fishing expedition’ i.e. a train of enquiry • Witness evidence by deposition is part of disclosure/discovery process • Short Court-imposed timetables disruptive to Company business: cost

19. Disclosure Summary • Casualty response leads to paper trails, telephone logs, telephone attendance notes, reports, emails, white-board, etc. • Paper trails lead to forensic analysis of document contents. • Record fact not speculation. • Don’t create documents without legal advice • CONSIDER should this be addressed to the lawyers to attract privilege?

20. Working with experts- Sea-Land Mariner

21. Expert Witnesses • English Law – now expert to the Court. • All communications with the expert are potentially disclosable. • Expert witnesses are invited to give opinion and so can speculate. • Consider the appointment of two experts. • One advising your lawyers – communications thereby privileged. • The second expert is used in proceedings.

22. Control Potential parties, each with own agendas, involved: • Owners. • Cargo interests. • Second ship owners. • Salvors. • Owners’ P & I Club. • Owners’ hull and machinery underwriters. • Cargo insurers.

23. Control • Other insurers of second vessel. • Port state control. • Prosecution services. • Flag state inspectors. • Port state casualty inspectors. • Police. • Environmental organizations

24. Control • The information is in your hands • Communication of fact – not speculation. • Usually right to co-operate BUT stay on top of the information stream

25. Handling Media Interest

26. Media • The media creates interested parties • The media gives rise to speculation • The media can be a useful tool or a hindrance • Control the media • ‘No comment’ not an option • Media training for • Those speaking to the media • Those not speaking to the media

27. Media • Plan for media intrusion • Feed the lions – have data ready to fill the column inches • Appoint and work with your media advisors long before you need them in earnest • Build media advisors into casualty simulations • Draft press releases with your lawyers before passing to your media advisors. • Ideally, company spokesmen should give bad news

28. The Modern Casualty • No longer a private event • Government intervention – SOSREP etc • Environmental headlines control response • On-site situation much more intense and complex Large co-ordinated team • Criminalisation of seafarers • Criminalisation of owners • Plan for arrest of your key personnel • Business interruption & loss of reputation

29. Conclusion • Need to keep eye on the ball. • No set piece response. • Flexibility but control. • Be prepared and think ahead

30. The End Спасибо