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

Effective Casualty Management

20th October 2006

Stephen KirkpatrickPartner, Richards Butler

Peter Harris, Solicitor & master Mariner

Stephen Kirkpatrick, Partner

Effective Casualty Management

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.

Objectives

Owners’/managers’ objectives include:

• Safety of life.• Safety of vessel and cargo.• Prevention of pollution.• Protection of reputation• Protection of profits

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.

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

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.

Disclosure (2)

• Disclosure means revealing the existence of documents

• Inspection means allowing the opposite party to see those documents.

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.

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).

Specific Disclosure

• Application during proceedings for an order to disclose documents that exist or must exist.

• Can make or break a case.

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.

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.

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.

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.

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

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

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?

Working with experts- Sea-Land Mariner

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.

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.

Control

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

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

Handling Media Interest

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

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

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

Conclusion

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

The End

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