When a casualty occurs, litigation almost inevitably follows. For this reason, it is critical that, following a casualty, vessel owners and operators act quickly to determine what electronic navigation data exists and how it can be preserved. In the United States, vessel owners have an affi rmative duty to preserve electronic evidence that may be relevant to pending or anticipated litigation. Just as important, however, the wealth of electronic data created by modern navigation systems can greatly assist an owner’s presentation and proof of its claims or defenses.
Courts in the United States have made it clear that unique electronic data, such as that created by navigation systems, must be preserved if it could be relevant in litigation. This duty to preserve extends not only to evidence relevant to pending litigation, but also to evidence that could be relevant to litigation that is reasonably foreseeable in the future. This duty also may be imposed by fl ag-state requirements such as the IMO’s “Guidelines on Voyage Data Recorder (“VDR”) Ownership and Recovery,” which requires that “the owner must be responsible, through its on-board standing orders, for ensuring the timely preservation of this evidence.” In a marine casualty, assume that litigation is likely; thus, any relevant records must be preserved.
At the same time, U.S. courts take a dim view of the alteration of vessel records. When alterations occur, courts are likely to presume that the original records would have been harmful to the owner’s position. Even if alterations are admitted and not relied on, the fact that they were made could be a factor in apportioning liability for the casualty.
There can be no doubt that the duty imposed on a vessel owner to preserve a vessel’s electronic records is a serious one. A party can expose itself to civil or criminal sanctions and can severely jeopardize its litigation position where its employees or agents alter ship’s records or knowingly fail to preserve electronic evidence. Under some circumstances, even the negligent failure to take adequate steps to preserve electronic evidence can result in sanctions.
Sanctions for what is known as “spoliation” can include outright dismissal or the entry of judgment against the responsible party, a judicial presumption that the lost or destroyed records would have been harmful to the owner’s position, the exclusion of other evidence or testimony, or an award of costs or other fi nancial sanctions. If the casualty involves a criminal or other government investigation, such as commonly occurs when a casualty involves an oil spill, evidence spoliation can result in criminal sanctions such as a felony prosecution, even in the absence of any other criminal wrongdoing.
Aside from the legal obligation to preserve electronic evidence, such evidence is very often helpful to an owner’s case. It is not uncommon for the offi cers and crews of vessels, traditionally loyal to their ship, to give irreconcilable statements with respect to their actions, courses, and speeds preceding a collision or grounding. Courts attempting to reconstruct such casualties and resolve such discrepancies traditionally used paper records. Electronic navigation systems, however, can foreclose these typical disputes.
GPS, radar/ARPA, AIS, ECDIS, and VDS usually record highly relevant data. But obtaining and preserving that data is a common problem. Some data is automatically preserved. But some data is retained only until it is overwritten with new data. For example, GPS positional data may be retained in memory for only the last 24 or 48 hours before it is overwritten.
Following a casualty, owners must take immediate affi rmative steps to ensure that records from electronic navigation systems are preserved. This may require preserving both the electronic records themselves and the archives in case they contain additional relevant data.
Prior planning for electronic data collection following a casualty can help avoid spoliation questions. Owners should consider making data collection plans part of their casualty response procedures and training their vessel crew in electronic data recovery. Otherwise, quick action may be needed to engage a technician or expert knowledgeable about what information exists and how to retrieve it. It is important to keep in mind that post-casualty data management and recovery procedures will be scrutinized by adversaries and government investigators and that lost data will generate unwelcome questions about spoliation or obstruction.
Data collection plans should also include the possibility of recovering data from third-parties, such as shore stations or other vessels in the area. Although third-parties not involved in the casualty have no obligation to preserve evidence, prior planning and quick action may succeed in retrieving their electronic evidence, which can often be relevant and helpful.