“Why didn’t you keep clear?
“I was keeping clear until you altered course into me!”
“Didn’t you see my deep draught signals?”
“We were in 100 metres of water!”
Nothing unusual with the dialogue – two vessels in collision both blaming the other. Each side is convinced the other side is 100% liable for the collision.
In addition to collisions, admiralty matters also refer to contact with fixed and floating objects, e.g. underwater pipelines, and groundings in a harbour leading to unsafe port allegations. All require expert investigation and determination of liability is a lottery.
Convincing the other side is not always possible so the dispute is referred to court but going to court may not be the most appropriate action for admiralty cases.
Skilled casualty investigators instructed by the interested parties use a labyrinth of available information to help determine liability; forensic analysis of VDR data, angle of blow, extent of damage and witness statements. With the amount of electronic data including bridge audio recording now available, the reliance on the witness statement is becoming less crucial. However, the witness statement of the officer of the watch is still persuasive in court especially if they give a professional impression of competence in contrast to a hesitant, under confident witness irrespective of the actual facts surrounding the collision. A poor witness in court will be at the mercy of an opposing barrister whose purpose is to raise doubt to improve the position for their client; the financial consequences of an adverse judgement can be severe.
Whilst the result of data and witness analysis may appear conclusive there is always an element of doubt that the conclusion has been incorrectly extrapolated, and this leaves the dilemma, should liability be settled in court?
Mediation is particularly useful for admiralty disputes where there is an element of doubt and high litigation risk of losing on liability. Mediation is also beneficial because it saves time on court preparation, cost effective, private and without prejudice until a settlement agreement is signed. Alternative settlement options to a straight damage recovery are also available to the parties, limited only by their own creativity. For one case I dealt with, a shipowner agreed to build water towers for a village after their vessel allegedly sank a fishing boat. Another dispute was resolved when one ship owner/operator agreed to charter a vessel from the other ship owner rather than admit liability.
A mediator who is experienced and a specialist in both shipboard practices and mediation is an asset in handling admiralty disputes. The mediator can assist the parties by understanding the facts and asking the right questions at the right time. The marine specialist mediator is also available to take on the role as an early resolution neutral, where an independent opinion can be of benefit to all parties making decisions.