Marine Surveyor Reports in Litigation: Anything You Write Can and Will Be Used Against You
by David J. Farrell, Jr.
Here’s a Miranda Warning for marine surveyors: Anything you write can and will be used against you in a court of law. You already knew that; so what else is new? Actually not much, but it’s nonetheless worth reviewing some of Miranda’s corollaries.
I wrote that 15 years ago in Exchange and it still holds true today. But in 2010 there was a federal law amendment, which surveyors should know about. In federal court cases, Federal Civil Procedure Rule 26(b)(4) now protects from discovery an expert’s draft reports preliminary to the final version when prepared in conjunction with an attorney. The reason for this change is “to protect counsel’s work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery” by opposing counsel. So, for example, it is now safe for a defense attorney to share “work product” with the insured’s expert in building the case without fear that legal strategies will be discovered via the expert’s file.
Limitation of Liability
by David J. Farrell, Jr.
Probably the biggest surprise facing a non-admiralty lawyer handling a maritime casualty is the possibility that a vessel owner might be able to limit its dollar liability to the post-casualty value of the vessel and force all related litigation into one federal court forum without a jury.
This applies to both commercial vessels and recreational boats — even jet skis — and raises important issues for the lawyer representing a vessel owner in conjunction with insurance defense counsel as well as for lawyers representing victims with personal injury, death, and property damage claims against the vessel owner.
ABYC Standards in Maritime Litigation
by David J. Farrell, Jr.
“Setting Standards for Safer Boating” is the mantra of the American Boat & Yacht Council (ABYC). As any marine surveyor, repairer, or builder worth his salt knows, ABYC is a non-profit organization that develops and publishes standards for “the design, construction, equipage, and maintenance of small craft.”
As stated in the ABYC Preface, though, its “standards and recommended practices are advisory only; their use is entirely voluntary.” How important are ABYC standards, then, in the context of maritime litigation? In a recent decision issued by the United States District Court for the Eastern District of Virginia, affirmed by the Fourth Circuit Court of Appeals, they were vital.
In the Land of Litigation: USA Pollution Law Update
by David J. Farrell, Jr.
Much was written about achieving compliance with the International Safety Management Code (“ISM Code”) by 1 July 1998. Since that date has come and gone, what’s the likely impact for Members operating in USA waters?
First and foremost, it can be expected that widespread ISM Code compliance will result in safer ship operations and pollution prevention. But what about other consequences?
In the land of litigation, it is clear that ISM Code records will be relevant in almost any claim involving the Member. In Coast Guard casualty investigations and USA legal proceedings, all the paper documents and computer files related to (1) the Safety Management Manual, (2) the reporting of accidents and non-conformities, and (3) probably even internal audits and management reviews will become legal evidence.
Careful writing is therefore imperative: in the hands of smart opposing attorneys, ISM Code records will be as important as log entries.
Rules of Evidence for Expert Witnesses: An Attorney’s Perspective
by David J. Farrell, Jr.
How important is expert testimony? If my client needs an expert at trial and I’m not convinced that the expert’s presentation is going to be good, we settle.
What makes for good expert testimony? An interesting, credible, and scientifically reliable opinion. The first two requirements are readily satisfied; science is the tricky part.
The Critical Role of the Boat Owner in Investigating Accidents
by David J. Farrell, Jr.
As a general proposition, the best way for an attorney to serve a client is sooner rather than later. This is particularly true when boats, their owners or operators get into trouble because evidence can literally sail away on another vessel or get washed away with the ebbing tide. Regrettably, this is a litigious country. Regardless of how modest your boat or boating budget might be, as the owner of a “yacht” you will frequently be perceived as a “deep pocket” with plenty of money to satisfy a big judgment or at least throw into a settlement in an effort to make an accident claim go away. Therefore, the possibility of involved litigation needs to be addressed immediately after any boating accident.
The boat owner’s personal role in an accident involving injury or collision, of course, will be critical in any subsequent legal proceedings. What is perhaps not so clearly understood, though, is the important role of the boat owner or operator as investigator: his or her observations at the scene, his or her interactions with other witnesses, and the background information he or she can provide will often make or break the case.
