Tuesday, April 29, 2014

E-Nav Data as Evidence

By Michael A. Moore

The e-navigation revolution is making waves in more places than the bridges of commercial vessels – electronic technology leaves trails of data and has become accepted in courtrooms as evidence.

Most definitions of e-nav focus on the hardware – the use of an electronic display or ECDIS, that shows electronic navigation charts as a replacement for paper charts.

The US Committee on the Marine Transportation System’s e-Navigation Task Team shifts the focus away from hardware and states that e-nav is not about equipment, but about the integration of information.

There is and will be no such thing as an “e-navigation system,” nor will there be a carriage requirement for an “e-navigation box”, according to the CMTS. Eventually, equipment and systems may be required to be “e-navigation compliant” but such requirements are yet to be developed.

Maritime insurers, courts and attorneys see e-nav from an entirely different perspective – they define it in terms of risk and evidence.

The primary purpose of the transition to electronic charts is to improve navigational safety and reduce the risk to crews, vessels, cargo and the marine environment, according to the UK Hydrographic Office (UKHO).

However, UKHO recognizes that “electronic data is increasingly used as evidence following maritime accidents, thanks to the wealth of data recorded by ECDIS, Automatic Information Systems and GPS about a vessel’s movements and status.

“The traditional reliance on paper log books and eyewitness accounts suffered from limitations when it came to assembling a correct account of the course, speed and navigational maneuvers of the vessels concerned. By contrast, electronic navigation systems provide a more accurate record and courts appear increasingly willing to accept its reliability, in part because of well-established carriage requirements.”

Electronic navigation systems such as GPS, Electronic Chart Displays (“ECDIS”), and Automatic Information Systems (“AIS”) record a wealth of data about a vessel’s movements and status in the moments before an accident, points out Alan Weigel, an attorney with Blank and Rome who specializes in maritime law.

“The Voyage Data Recorder (“VDR”) was specifically designed to collect data from various on board sensors for use in accident investigations,” said Weigel. “As a result of this capability, electronic navigation data is now frequently presented as evidence in the litigation that often follows maritime accidents.

“ECDIS is accepted as conclusive evidence of vessel position and the VDR is accepted as the maritime equivalent of the aircraft black box. E-Nav data is fundamentally changing maritime litigation,” he said.

Weigel states that courts have accepted the reliability of electronic navigation data largely because the carriage requirements for electronic navigation systems are well established – their use is widely accepted by the maritime industry; and the systems are generally seen as an extension of existing technology.

Another factor in the acceptance of electronic navigation data for evidence is that the lawyers have become comfortable with the technology. They have learned how to present e-nav evidence effectively and are able to explain it to judges and juries in simple and convincing ways.

The transition to e-nav evidence did not happen overnight. Maritime cases were traditionally presented through paper logbooks and mariners’ eyewitness testimony. There are inherent limitations, however, in the reliability of the testimony of even the most truthful eyewitness.

Witnesses often give conflicting versions of events, said Weigel.

“In the confusion that usually attends a maritime accident, it is not expected that witnesses will exactly concur in their descriptions of what they observed,” he said. “Thus, it is not uncommon for mariners – said to be traditionally loyal to their vessel – to give irreconcilable testimony with respect to the courses and speeds their vessels were on during the navigational maneuvers preceding every collision at sea or other maritime accident.”

The advantage of e-nav data is that it can resolve disputes involving uncertain or conflicting eyewitness testimony. The use of e-nav data as evidence frequently results in early and often-favorable resolutions while avoiding the costs of litigation.

Producing data from electronic navigation systems may also be critical to meeting a party’s obligation to preserve evidence, said Weigel. This is absolutely necessary if e-nav data is to be used as reliable courtroom evidence.

“The most fundamental problem is data preservation. Some systems automatically preserve all data, and in others it is retained only until it is overwritten with new data,” Weigel said. “Counsel and the vessel owner must often work cooperatively at the earliest point in the investigation to preserve critical evidence.”

Preservation of the data’s chain of custody is critical if e-nav data is to be accepted as valid evidence.

“It may often be necessary to hire electronic technicians to retrieve data who may not be familiar with the legal requirements for preserving evidence,” said Weigel. “The electronics technician and computer forensics expert may need to work together to avoid later questions about the data’s reliability and accuracy.”

“It may be necessary to correlate data sources and find an adequate explanation for anomalies. Different sensors may record the same data with differing accuracy and often will be running on different time standards. Reconciling these differences is necessary to satisfy the court that the data is reliable.”

The allision of the CSL Dolphin with mooring dolphins is a case that illustrates Weigel’s point about the value of preserving evidence – especially VDR evidence – in a timely manner, before it is altered or destroyed.

On May 26, 2007, the M/V CSL Acadian, a large bulk carrier, was attempting to align itself alongside a row of mooring dolphins at Santa Rosalia in Baja California. It was a couple of hours after sundown and the weather was clear. The seas were normal and somewhat above mean low tide.

The 804-foot by 106-foot Acadian somehow allided with a large mooring dolphin. The exact circumstances of the allision ended up a matter of dispute as to the exact cause of the accident.

The plaintiffs made an animation of the accident based on the GPS information that survived.

At trial, CSL made much of the shortcomings in the opposing animation, particularly as to the course and speed of the vessel. However, the CSL ship captain destroyed a wealth of additional information that would have been probative. Within twelve hours of the event, he was supposed to have pushed the “save button” on the SVDR system to save a treasure trove of voice and engine controls, course data and other information (akin to a black box on an airplane). He did not save the evidence. This meant that it was later overwritten.

For example, the voice recorder might have revealed frantic commands and responses and confirmed the radio report of the pilot that the currents “had f----d him.” This destruction warrants an adverse inference (and the Court so infers) that the evidence so destroyed would have cast the captain and its control in an unfavorable light. And, it should be said again that the Court has only relied on the most incontrovertible aspects of the animation, mainly the underlying GPS data that did survive.

“The master failed to save the VDR data,” said Weigel. “There was an alleged lack of training and no set procedures.” The court turned that captain’s omission into destruction of evidence, which resulted in a complete inability to defend the case.

“Electronic navigation is not simply a computer “animation” in the sense that it attempts to recreate what a witness thinks he remembers seeing,” said Weigel. “ It is actual data recorded on board the vessel at the time of the accident and, thus, a true visual representation of what the witness experienced. Properly presented, electronic navigation evidence can be an extremely powerful persuasive tool that can make the difference between winning and losing a case.

eNavigation Conference 2014, November 12 & 13, 
Seattle, WA, eNavigation.org