Reporting of Incidents, the ISM Code and Privilege

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1 FINANCIAL INSTITUTIONS ENERGY INFRASTRUCTURE, MINING AND COMMODITIES TRANSPORT TECHNOLOGY AND INNOVATION PHARMACEUTICALS AND LIFE SCIENCES Reporting of Incidents, the ISM Code and Privilege Peter Glover Senior Associate / Master Mariner 26 June 2012

2 Outline of Presentation ISM Code - Reporting of incidents SMS - Reporting of incidents Reporting of incidents (i) disclosure Reporting of incidents (ii) privilege Documents likely to be disclosed What is an accident? Commercial hire considerations deck department engineering department what should masters / owners / operators do?

3 ISM Code Reporting of Incidents 9 Reports and Analysis of Non-Conformities, Accidents and Hazardous Occurrences 9.1 The SMS should include procedures ensuring that non-conformities, accidents and hazardous situations are reported to the Company, investigated and analysed with the objective of improving safety and pollution prevention. 9.2 The Company should establish procedures for the implementation of corrective action.

4 SMS - Reporting of Incidents SMS should require the Master to report the following to the DPA: accidents; hazardous occurrences; non-conformities with the SMS; and suggested modifications and improvements to the SMS (see Art. 5) On receipt, DPA should: review incident or occurrence seen by the appropriate level of management for corrective action view to avoid recurrence

5 SMS - Reporting of Incidents Accidents and hazardous occurrences should be reported Reports should include: details of the event (damage, injury, pollution etc.) any loss of operational safety a description of the probable causes suggestions for improvement Commercial considerations In the United Kingdom consider: MCA MAIB

6 Reporting of Incidents - Disclosure ISM Code (SMS) has created an array of documents Paper trail leading from the ship to the company senior management and back Disclosure is the process whereby documents relevant to the issues are disclosed to the opposing parties Need to consider: number of the documents involved nature and complexity of the proceedings ease and expense of retrieval of any particular document significance of any document likely to be located during the search Disclosure enables each party to assess: likely chances of success; or his own case failing

7 Reporting of Incidents - Privilege Documents within the SMS are not likely to attract legal professional privilege Accidents (and in particular casualties) should be reported under the SMS Reports are not likely to attract legal professional privilege Important to avoid references to facts which can be used to apportion liability

8 Reporting of Incidents - Privilege Legal Professional Privilege s 10 Police and Criminal Evidence Act Meaning of items subject to legal privilege. (1) Subject to subsection (2) below, in this Act items subject to legal privilege means - a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; [Legal Advice Privilege] b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and [Litigation Privilege] c) items enclosed with or referred to in such communications and made - i. in connection with the giving of legal advice; or ii. in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, when they are in the possession of a person who is entitled to possession of them.

9 Legal Advice Privilege Legal Advice Privilege confidential communications between a lawyer and client legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but is an essential requirement. Three Rivers District Council and Others v Governor and Company of the Bank of England [2004] UKHL 48 [para. 24] comes into existence for the dominant purpose of giving or getting legal advice It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply. On the other hand to hold that the purpose, as above, must be the sole purpose would, apart from difficulties of proof, in my opinion, be too strict a requirement, and would confine the privilege too narrowly Waugh Appellant v British Railways Board Respondents [1980] A.C. 521, 533 All documents generated: letters to and from solicitors instructions to and from counsel working papers and drafts

10 Litigation Privilege Litigation Privilege sole or dominant purpose is for use in litigation pending or contemplated Q: What is litigation? Lord Jauncey of Tullichettle described litigation privilege as: essentially adversarial in their nature. In re L. [1997] AC 16, 26. Covers: court proceedings arbitrations proceedings before a tribunal exercising judicial powers Asserting litigation privilege to documents which came into existence for the purpose of an inquiry or investigation will face an uphill struggle

11 Litigation Privilege (cont d) Probability of litigation? Need not be the actual litigation in which the claim to privilege is made Some definite prospect of litigation and not a mere vague anticipation [of it] Alfred Crompton Amusement Machines Ltd v Customs & Excise Commissioners [1972] 2 QB 102,130. Anticipated litigation Waugh v British Railways Board [1980] AC 521 HL per Lord Wilberforce Litigation is reasonably in prospect Re Highgrade Traders Ltd [1984] BCLC 151, 172 per Oliver LJ As a general rule at least, there must be a real prospect of litigation as distinct from a mere possibility, but it does not have to be more likely than not. Mitsubishi Electric Australia Pty Ltd v Victorian Work Cover Authority [2002] VSCA 59 (para ) per Batt A

12 Litigation Privilege (cont d) The requirement that litigation be reasonably in prospect is not in my view satisfied unless the party seeking to claim privilege can show that he was aware of circumstances which rendered litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility. United States of America v Philip Morris Inc (British American Tobacco (Investments) Ltd intervening) [2004] 1 C.L.C. 811, 827. Must there be a lawyer involved? A = Not finally settled No Re Highgrade Traders Ltd [1984] BCLC 151 CA Guiness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 CA Yes Re Barings plc [1998] 1 All ER 673, 680 China National Petroleum Corporation v Fenwick Elliot [2002] EWHC Ch 60 (para. 44, 45)

13 Documents Likely to be Disclosed

14 Documents Likely to be Disclosed

15 Marine Accident Investigation Branch To fulfil its primary role of improving safety of life at sea, it is essential that the MAIB investigates accidents immediately, before vital evidence decays, is removed or is lost. To enable this the law requires that accidents, including major injuries, be reported by the quickest means possible and the MAIB has a dedicated reporting line for this purpose from within the UK or if you are outside the UK. This line is manned 24 hours a day. Having reported the accident by telephone, a completed incident report form should be ed or faxed to as soon as possible. (our emphasis)

16 Q: What is an accident? The Merchant Shipping (Accident Reporting and Investigation) Regulations Meaning of accident (1) For the purpose of these Regulations and of section 267 of the Act, accident means any occurrence on board a ship or involving a ship whereby (a) there is loss of life or major injury to any person on board, or any person is lost or falls overboard from, the ship or one of its ship's boats; (b) the ship i. causes any loss of life, major injury or material damage, ii. is lost or is presumed to be lost, iii. is abandoned, iv. is materially damaged by fire, explosion, weather or other cause, v. grounds, vi. is in collision, vii. is disabled, or viii.causes significant harm to the environment; or

17 Q: What is an accident? The Merchant Shipping (Accident Reporting and Investigation) Regulations Meaning of accident (c) any of the following occur i. a collapse or bursting of any pressure vessel, pipeline or valve, ii. a collapse or failure of any lifting equipment, access equipment, hatch-cover, staging or boatswain's chair or any associated load-bearing parts, iii. a collapse of cargo, unintended movement of cargo or ballast sufficient to cause a list, or loss of cargo overboard, iv. a snagging of fishing gear which results in the vessel heeling to a dangerous angle, v. a contact by a person with loose asbestos fibre except when full protective clothing is worn, or vi. an escape of any harmful substance or agent, if the occurrence might have caused serious injury or damage to the health of any person.

18 The Merchant Shipping (Accident Reporting and Investigation) Regulations Duty to report accidents and serious injuries (3) A person making a report pursuant to paragraph (1) or (2) shall, in so far as is practicable, include the following information: a) name of ship and IMO, official or fishing vessel number; b) name and address of owner; c) name of the master, skipper or person in charge; d) date and time of the accident; e) where from and where bound; f) latitude and longitude or geographical position in which the accident occurred; g) part of ship where accident occurred if on board; h) weather conditions;

19 The Merchant Shipping (Accident Reporting and Investigation) Regulations Duty to report accidents and serious injuries (cont d) i) name and port of registry of any other ship involved; j) number of people killed or injured, together with their names, addresses and gender; k) brief details of the accident, including, where known, the sequence of events leading to the accident, extent of damage and whether the accident caused pollution or a hazard to navigation; l) if the ship is fitted with a voyage data recorder, the make and model of the recorder. (4) In addition to making a report under the preceding paragraphs, the persons specified in paragraph (1) shall, so far as is reasonably practicable, ensure that the circumstances of every accident are examined and that a report giving the findings of such examination, stating any measures taken or proposed to prevent a recurrence, shall be provided to the Chief Inspector as soon as is practicable. (our emphasis)

20 The Merchant Shipping (Accident Reporting and Investigation) Regulations Objective of investigation 1. The sole objective of the investigation of an accident under these Regulations shall be the prevention of future accidents through the ascertainment of its causes and circumstances. 2. It shall not be the purpose of an investigation to determine liability nor, except so far as is necessary to achieve its objective, to apportion blame. But (our emphasis)

21 The Merchant Shipping (Accident Reporting and Investigation) Regulations Duty to report accidents and serious injuries (1) When an accident occurs the following persons associated with the ship shall send a report to the Chief Inspector as soon as is practicable following the accident and by the quickest means available - a. the master or, if he has not survived, the senior surviving officer, and b. the ship's owner, unless he has ascertained to his satisfaction that the master or senior surviving officer has reported the accident in accordance with paragraph (a). (our emphasis)

22 MAIB Incident Report Form

23 MAIB Incident Report Form

24 Accident / Near Miss Report Form

25 Occupational Incident Report

26 The Merchant Shipping (Accident Reporting and Investigation) Regulations Penalties (1) A person shall be guilty of an offence if a. being a person mentioned in regulation 6(1), (2)(a) or (b), he fails without reasonable cause to report an accident as required by regulation 6, or b. being a master or ship's owner, he fails without reasonable cause to comply with regulation 6(5), or c. being a person referred to in paragraph (a), he fails without reasonable cause to provide information as required by regulation 7(3), or d. he falsely claims to have any additional information or new evidence pertaining to any accident or serious injury, and such a person shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. (our emphasis) Standard Scale Level 5 = 5,000

27 Commercial Hire Considerations: Caution with Reporting Deck Dep t Charterparty hire considerations SIRE 2011 Cargo Operations and Related Safety Management 8.31 Is a tank cleaning plan established prior to cleaning operations? Adequate planning of cleaning operations is crucial to the successful carriage of chemicals and to the avoidance of rejection of tanks, contamination of cargo and incidents. The two most important criteria are the previous and the next cargoes and these two factors will determine the level of cleaning required

28 Commercial Hire Considerations: Caution with Reporting Engineer Dep t Charterparty hire considerations SIRE 2011 Safety Management Are purifier rooms and fuel and lubricating oil handling areas ventilated and clean? A significant number of major incidents occur as a result of engine room fires. It is of particular importance that purifier rooms and oil handling areas are maintained in a clean condition

29 Commercial Hire Considerations What should masters / owners / operators do? Contact your DPA Or other nominated company officer Discuss the reporting of an incident: present charterparty future hire arrangement Need to be conscious of SMS compliance Need to be conscious of (possibility) of disclosure of documents Not to hide accidents or reportable events Need to be conscious of commercial considerations

30 Reporting of Incidents, the ISM Code and Privilege Questions? Peter Glover Tel:

31 Our international practice

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