|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Ocean Prefect Shipping Ltd v Dampskibsselskabet Norden AS  EWHC 3368 (Comm) (06 December 2019)
Cite as:  Bus LR 712,  WLR(D) 670,  EWHC 3368 (Comm),  Bus LR 699
[New search] [Context] [View without highlighting] [Printable PDF version] [Buy ICLR report:  Bus LR 699] [View ICLR summary:  WLR(D) 670] [Buy ICLR report:  Bus LR 712] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| OCEAN PREFECT SHIPPING LIMITED
|- and -
|DAMPSKIBSSELSKABET NORDEN AS
James Shirley (instructed by MFB) for the Defendant
Emily Wilsdon (instructed by The Government Legal Department) for the MAIB
Hearing date: 4 December 2019
Crown Copyright ©
Mr. Justice Teare :
"to require any person who he has reasonable cause to believe is able to give any information relevant to an ..investigation .(ii) to answer ..such questions as the inspector thinks fit to ask, and (iii) to sign a declaration of the truth of his answers."
"no answer given by a person in pursuance of a requirement imposed under subsection (2)(i) above shall be admissible in evidence against that person ..in any proceedings except proceedings in pursuance of subsection 1(c) of section 260 in respect of a statement in or declaration relating to the answer"
"5 (1) The sole objective of a safety investigation into an accident under these Regulations shall be the prevention of future accidents through the ascertainment of its causes and circumstances.
(2) It shall not be the purpose of such an investigation to determine liability nor, except so far as is necessary to achieve its objective, to apportion blame."
"Subject to paragraph (6), no order must be made under paragraph (2) unless the Court is satisfied, having regard to the views of the Chief Inspector, that the interests of justice in disclosure outweigh any prejudice, or likely prejudice, to-
a. the safety investigation into the accident to which the document or record relates:
b. any future accident safety investigation undertaken in the United Kingdom; or
c. relations between the United Kingdom and any other State, or international organisation."
"If any part of any document or analysis it contains to which this paragraph applies is based on information obtained in accordance with an inspector's powers under sections 259 and 267(8) of the Act, that part is inadmissible in any judicial proceedings whose purpose or one of whose purposes is to attribute or apportion liability or blame unless a Court, having regard to the factors mentioned in regulation 13(5) (b) or (c), determines otherwise."
"For the purposes of paragraph (14) the documents are any publication produced by the Chief Inspector as a result of a safety investigation."
"Any civil or criminal proceedings before any Court or person having by law the power to hear, receive and examine evidence on oath."
"(9) If any part of the report or analysis therein is based on information obtained in accordance with an inspector's powers under sections 259 and 267(8) of the Act, the report shall be inadmissible in any judicial proceedings whose purpose or one of whose purposes is to attribute or apportion liability or blame unless a Court or tribunal, having regard to the factors mentioned in regulation 13(5) (b) or (c), determines otherwise.
(10) In this regulation judicial proceedings includes any civil or criminal proceedings before any Court, tribunal or person having by law the power to hear, receive and examine evidence on oath."
"States involved in marine safety investigation under this Code should ensure that any marine safety record in its possession is not disclosed in criminal, civil, disciplinary or administrative proceedings unless:
"1. the appropriate authority for the administration of justice in the State determines that any adverse domestic or international impact that the disclosure of the information might have on any current or future marine safety investigations is outweighed by the public interest in the administration of justice.
"Where it is permitted by the national laws of the State preparing the marine safety investigation report, the draft and final report should be prevented from being admissible in evidence in proceedings related to the marine casualty or marine incident that may lead to disciplinary measures, criminal conviction or the determination of civil liability."
"This report is not written with litigation in mind and, pursuant to Regulation 14(14) of the Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, shall be inadmissible in any judicial proceedings whose purpose, or one of whose purposes is to attribute or apportion liability or blame."
"It is noticeable that MH's opinions and conclusions on this incident are in marked contrast to those of the independent MAIB. Although he has clearly read the MAIB report, MH makes little comment on the contents of that report, particularly when it clearly contradicts his own opinions and conclusions.
Importantly, the MAIB investigation did not identify that the pilots did not have the con for the entry into UAQ on 11 June. If the master had retained the con, I feel sure that the MAIB would have ascertained that highly relevant fact and included that in their report.
The MAIB report does not criticise the vessel's lack of a long approach lined up with the channel course.
The MAIB report does not criticise the Vessel's Passage Plans.
The MAIB report identifies that the port lacked maritime resources and expertise."
"Accordingly, throughout this report, I have wherever possible only referred to the MAIB report to address issues raised by [Captain Roberts'] report. "
Is the arbitration within the definition of "judicial proceedings" ?