Written Statements and Documentary Evidence

Other sections of the Claims Handling Guide emphasise the importance of gathering as much evidence as possible about any incident likely to give rise to a claim as soon as possible after the incident occurs. Courts and tribunals attach great importance to factual records which are made before memories about an incident have faded.

There are a number of important points to remember in the preparation of written evidence in relation to a claim. Whenever an incident which is likely to lead to a claim occurs it is very important that written notes of the facts are made by all those involved as soon as possible.

Some of these notes will be made in formal documents such as log books and accident report forms. These are likely to be fairly brief. It is important that such logs and reports, which will be disclosed to the court or tribunal adjudicating a claim, are maintained accurately and in as orderly manner as possible. The accuracy and overall condition of such records will be taken by the tribunal as reflecting the general efficiency of the vessel. Corrections should be kept to a minimum; entries should not be erased or covered up since this simply undermines the credibility of the document. Proper maintenance of all documentation on board is not only of great importance in the gathering of evidence in the event of a claim but is also an obligation in terms of proper procedure under the I.S.M. code.

Informal notes such as diaries can be also be useful in establishing facts after an incident but remember to restrict your entries to factual comments. If a diary is used in evidence all of it will be subject to review by the tribunal which may prove embarrassing or even prejudicial to the case!

In addition to log and report entries, the ships officers in charge of post–incident procedures should ensure that all material witnesses make their own factual note of what took place. These notes will assist the witness if he is asked to make a statement to any lawyers instructed on the Member's behalf to investigate a claim, and also at any subsequent trial or arbitration. Remember that any notes made may have to be disclosed to the other side in any litigation. Under English law correspondence between a client and their legal adviser is ‘privileged’ and may not have to be disclosed. It is good practise therefore to address any notes about an incident to your company’s legal advisers and submit it to them. Use a heading as follows:

‘Confidential report prepared for the company's solicitors to obtain advice in connection with legal proceedings’.

Make sure that any notes made deal objectively with the facts of the incident and do not contain conjecture or opinion. If notes can be supported by video, photographs and/or diagrams, properly identified and dated, so much the better.

In the aftermath of an incident, particularly a more serious one, a ship’s officers and crew are likely to be contacted by various parties. These may include lawyers or consultants acting for potential claimants and media reporters as well as lawyers and others acting on behalf of the Club and the Member. Make sure that each party identifies themselves and that crew members do not discuss any aspect of an incident except with parties acting on behalf of the vessel or the Club, and then only if authorised to do so by the Master or the Member’s head office. Consult the Club if you have any doubts in a particular case.