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Special Problems in Maritime Cases A Pro-Active Approach to Unique Issues
Maritime Injury Case Preparation
Introduction
We invite you to associate with our firm in representing your maritime clients.
This document will prove to be a valuable resource which you may wish to consult repeatedly while your client's case is pending.
Contents
Discovery of Documentary Evidence: Log BooksWitness Credibility as Predicated on Shipboard Discipline
Challenging the Work Product Doctrine In Maritime Cases
Direct Dealings with (and Possible Suits Against) "P&I" Clubs
Maritime Casualty Checklist
Discovery of Documentary Evidence: Log Books
Documentary evidence aboard ships is sparse, but the ship's logs are the best starting point. Customarily, there is a key ship's log on the bridge, in which the master or duty officer will have made entries, but other log books include the engine room log book medical officer's log book, and bursar's log book (which might contain reference to disbursements for medical care in foreign ports, etc..). After obtaining and reviewing log books, plaintiff's counsel should also discover the ship's general arrangement plan (stem to stern, deck by deck) and accident reports, if any exist.
Defense counsel should not be permitted to evade discovery and production. Even though the ship has sailed, defense counsel has immediate access to co-counsel in domestic and foreign port cities. Indeed, if any investigation was accomplished, the log
entries will have been copied by the time plaintiff's counsel enters the case.
Log book entries should be offered as admissions by a party-opponent. It was long ago decided that the log books of a vessel are competent evidence against her, but the courts have usually refused to admit the log as evidence in the ship's favor, on the ground that it is a "self-serving" document. Of course, entries in a log book may be used, like any other entries, to refresh the memory of the entrant, and if his recollection is not refreshed, they may, upon proper proof by the entrant that he correctly recorded facts which he then knew, be admitted in evidence, as any other document would be.
Once a proper request has been filed and served, the ship's failure to produce will give rise to the inference that if the log had been produced it would not have aided the steamer's case. This point of law should be covered thoroughly in the plaintiff's trial brief.
When it is alleged on behalf of one vessel that a collision was due to specific acts of negligence on the part of the other, such as failure to display lights or making an improper change of course, the court may be warranted in discrediting the charge,
or at least in drawing an inference against it, if the vessell's log, in recording the collision, does not mention these faults, particularly if the log purports to give a detailed account of the occurrence.
Long before the Restatement of Torts condified reforms in products liability cases, admiralty lawyers and judges considered that any failure of ship's gear, such as the breaking of a hawser, was sufficient to establish a prima facie case against the vessel.
Defense counsel may invoke the doctrine of inevitable cident -- a large body of maritime law from early cases - which supports a complete defense if a latent defect could not have been discovered nor its effects have been avoided by due diligence. However, the mere fact of breakage or failure of equipment does not warrant a finding of inevitable accident, and the burden of the defense is difficult to meet. Credibility may not be challenged in the context of a shore-side injury trial without offending the rule of evidence that a person's character or a trait of his character is not admissible to prove that he acted in conformity therewith on a particular occasion. Maritime injury cases will have been thoroughly investigated by defense counsel or some other agent on behalf of the vessel, whose "work product" is vital to the truth-seeking function of discovery and trial. Discovery and full disclosure of that work
product will nearly always be appropriate, as compared to the shore-side injury case where it will nearly always be inappropriate, but the phlegmatic plaintiff's attorney will frequently miss the opportunity to obtain the defendant's investiqave work product. The work product doctrine is to be distinguished from the question of attorney-client privilege, which Congress determined to leave to the common law. While the attorney-client privilege is intended to promote communication between attorney and client
by protecting client confidences, the work product privilege is a broader protection, designed to balance needs of the adversary system to promote an attorney's preparation in representing a client, against society's general interest in reviewing all true
material facts relevant to the resolution of a dispute. At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. Maritime injuries under the Jones Act are "perils" covered by P&I Clubs (Protection and Indemnity) policies while structual damage is covered by the hull policy. The insurance claims adjuster who authorizes payment for the injured seaman will be employed by one of the P&I Clubs based, in most cases, in London or Tokyo. Defense lawyers submit their billings to P&I Clubs for payment of legal fees and communicate per telex on a regular basis. P&I Clubs pay all settlements and judgments and assess shipping firms with a "call" based on actual disbursements.
A number of these organizations are listed below:
British Marine Mutual Insurance
Charles Taylor & Co., Managers
N. Goldsten, Insurance & Claims Dept.
Liverpool and London Steamship Protection
Thos. R. Miller & Son, Managers
Newcastle Protection and Indemnity Association
North of England Protectinq and
Richards, Hogg International
John Rutherford & Son, Secretaries
Sir William Reardon Smith & Sond, Ltd.
Alfred Stocken & Co., Ltd., Managers
Tindall, Riley and Co., Managers
The West of England Ship Owners'
The Shipping Corporation of India, Ltd.
United Kingdom Mutual Steam Ship Assurance
The Japan Ship Owners' Mutual
Nihonkao Kisen Kaisha, Ltd.
Nissan Prince Kaiun Co., Ltd.
Nippon Yusen Kaisha, Ltd.
Okada Shosen Kaisha, Ltd.
Shinwa Kaiun Kaisha, Ltd.
The Sumitomo Marine & Fire
Sumitomo Shoji Kaisha, Ltd.
Yamashita-Shinnihon Steamship Co., Ltd.
Oceanus Mutual Underwriting
The Standard Steamship Owners' Protection
A. Inglis
Island Navigation Corporation, Ltd.
Koninklijke Nedlloyd nv
Sumitomo Shoji America, Ltd.Production of Ship's Logs
Admissibility at Trial
Adverse Inference: Ship's Failure to Produce
Omission to Log Important Facts and Post-Accident Entries
Equipment Failure Entries: Prima Facie Case
Equipment Failure Entries: Inevitable Accident
Witness Credibility as Predicated on Shipboard Discipline
Slackness in discipline and inattention to navigation are circumstances properly considered in weighing the reliability of witnesses. Also, in evaluating testimony in collision cases, the court should take into account the well-known loyalty of seamen and passengers in defending the conduct of their own ship.
The truthfulness of a witness' testimony will, of course, be judged, not onlv by his personal appearance and demeanor, but by the inherent probability of the story. There is usually a rational explanation for human conduct; even though that conduct be negligent and a court is slow to believe that a collision was brought about intentionally, or by reckless or inexplicable conduct.
Challenging the Work Product Doctrine In Maritime Cases
Maritime defense lawyers, from port city to port city, network extensively and effectively. They communicate regularly, and the movement of a vessel (after an accident has occurred or a lawsuit has been filed) is the subject of constant communication per telecon and telex. On board investigations are undertaken promptly and are continue from one port of call to another by co-counsel. Indeed, more than one maritime defense lawfirm in the same city may have boarded the vessel before it sailed, to investigate and reinvestigate the same incident. Plaintiff's counsel is usually blissfully unaware that this work product has been garnered.
Work Product: Distinguished from Attorney-Client Privilege
Work product protection is especially difficult to overcome in litigation involving insurance companies, which claim that all their investigations are made in anticipation of litigation. However, realistically recognizing that at some point an insurance company shifts its activity from mere claims evaluation to a strong anticipation of litigation, several courts have held that the probability of litigation must be substantial before a document will be deemed to have been prepared in anticipation of litigation rather than in the ordinary course of business.
Direct Dealings with (and Possible Suits Against) "P&I" Clubs
England
A. Bilbrough & Co., Ltd., Managers
London Steam-Ship Owners' Mutual
Insurance Association Limited
17 Crossall
London, EC3N, 2AT, England
Association Limited
12, Lime Street
London, EC3, England
The Standard Steamship Owners' Protection
and Indemnity Association (Bermuda) Limited
24, St. Mary Axe
London, EC3A, 8EB, England
Blue Star Line, Ltd.
Albion House
Leadenhall Street
London, EC3A, 1AR, England
and Indemnity Association Limited
10, Water Street
Liverpool, 2, England
The United Kingdom Mutual Steam Ship
Assurance Association Limited
14/20, St. Mary Axe
London, EC3A, 8DA, England
Milburn House
Newcastle Upon Tyne, NE1, INT, England
Indemnity Association Limited
Collingwood Buildings
Newcastle Upon Tvne, NE1, IJU, England
Essex House
12/13 Essex Street
London, WC2R, 3AA, England
Sunderland Steamship Protecting and
Indemnity Association
Tavistock House, P.O. Box No. 5
Borough Road
Sunderland, SR1, 1PH, England
P.O. Box 90
Devonshire House
Greyfriars Road
Cardiff, CF1, 1RT, Wales
The Steamship Mutual Underwriting
Association, Limited
58/59 Fenchurch Street
London, EC3M, 4EU, England
The Britannia Steam Ship Insurance
Association Limited
Winchester House
77, London Wall
London, EC2N, 1BT, England
Mutual Protection & Indemnity Association
One Pepys Street
London, EC3N, 4AL, England
India
The Great Eastern Shipping Co., Ltd.
Mercantile Bank Building
60, Mahatma Gandhi
Bombay 1, India
Steelecrete House, 4th Floor
Dinshaw Wacha Road
Bombay-20 (BR) India
Association (Bermuda) Limited
Mercury House
Front Street
P.O. Box 665
Hamilton, Bermuda
Japan
Japan Ship Owners' Mutual Protection
and Indemnity Association
Kobe Port Post Office Box No. 759
Kobe, 651-01, Japan
Protection and Indemnity Association
Central Post Office Box 1880
Tokyo, 100-91, Japan
3, 5-Chome
Ginza, Chuoh-ku
Tokyo, Japan
Honshu Building
2-4, Ginza Higashi, 5-Chome
Chuoh-ku
Tokyo, Japan
20, Marunouchi 2-Chome
Chiyoda-ku
Tokyo, Japan
20-1. 2-Chome
Marunouchi, Chiyoda-ku
Tokyo, Japan
1-3, Kyobashi, Chuoh-ku
Tokyo, Japan
Insurnace Co., Ltd.
P.O. Box 3, Sumitomo Building
Shinjuku-ku
Tokyo 160-91, Japan
Central Post Office Box 1524
Tokyo, Japan
1-1 Hitotsubashi
1-Chome, Chiyoda-ku
Tokyo 100, Japan
Bermuda
Canadian Pacific (Bermuda) Limited
P.O. Box 1260
Hamilton 5, Bermuda
Association Limited
P.O. Box 1732
Hamilton, Bermuda
and Indemnity Association (Bermuda) Limited
Bank of Butterfield Building
Front Street
Hamilton, Bermuda
Other
Hellenic United Shipowners' Mutual
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Association, Ltd.
One, Sachtouri Street
Piraeus, Greece
The Britannia Steam Ship Insurance
Association Limited
39, Caxton House
One, Duddell Street
Hong Kong
Eighth Floor, The Chartered Bank Building
Des Voeux Road, Central
Hong Kong
P.O. Box 240
Rotterdam, The Netherlands
1214 Commonwealth Builiding
421 S.W. 6th Avenue
Portland, Oregon 97204
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