Articles on S-VDR

A Lawyer's Perspective

The use of S-VDR data as evidence in litigation and Court proceedings.

Perhaps the single most important point concerning a VDR from a lawyer’s point of view is that a VDR record is a discoverable document which is not privileged – i.e. the existence of the record must be disclosed to the opposing party on discovery and if requested to do so the opposing party must be allowed access to the document and/or provided with a copy.

In any Court proceedings the evidence which carries most weight is contemporaneous evidence, particularly if it requires no human input. Before the advent of VDRs such contemporaneous evidence was usually limited to course recorders and telegraph/engine/propeller pitch recorders. Evidence progressively carrying less weight with the Courts would include “contemporaneous” documents requiring human input – e.g. the working chart, engine movement books/rough bridge log books etc. and then into non-contemporaneous documents such as perhaps deck/engine room log books (usually written at the end of the watch), witnesses statements etc.

In many cases this information is however insufficient to conclusively prove the full sequence of events. Details such as sound signals made, communications between vessels prior to a collision, observations of approaching vessels etc. could often only be proved by recourse to witness testimony.

A record from a VDR is not only contemporaneous but virtually irrefutable evidence of what occurred. Having such evidence available might in some instances avoid the need for witness evidence and therefore avoid not only the uncertainty surrounding witnesses giving evidence and their cross examination by opposing Counsel, but also the attendant costs involved including making the witnesses available, getting them to the Court, possibly employment of translators and the necessary lengthening of hearings with increased solicitor’s and Counsel’s costs.

The existence of a VDR, dependent upon how comprehensive the data recorded, will be the majority of case be able to clarify the actual events which occurred enabling any inconsistencies in the witness evidence to be picked up at an early stage. If necessary the witnesses can then be re-interviewed to clarify the anomalies. Owners/lawyers will as a result have broadly consistent evidence and the considerable advantage for negotiation purposes of knowing the exact facts involved and, if necessary, being able to prove it.