This case concerns a “near miss” at sea but provides valuable insights into the importance of expert witnesses.
Background
The owners of the Christos Theo (the Claimants) made a claim against the owners of the Aliki (the Defendants) for damage sustained to their vessel, following a grounding caused by a near miss with the Defendants’ vessel. An exchange of pleadings followed, which led to the Defendants’ alleging that the near miss had been caused by a malfunction of the Christos Theo’s main engine or main engine control system. This malfunction had prevented the crew of the Christos Theo from putting the engine astern, effectively into reverse, which then led to them having to drop the anchors to bring the vessel to a halt. This “violent stop” was what had caused the damage to the vessel.
The crashes people remember, but drivers remember the near misses.”
Mario Andretti
The Claimants, however, denied that there had been a malfunction and that they had put the engine astern. The court disagreed, stating that the Defendants had “clearly demonstrated” that there was such a malfunction, and that even if the engine had gone astern, it had not done so in “any effective way.”
Disclosure
Based on the facts, it appeared undeniable that there was a malfunction of the Christos Theo’s engine. However, with the reasons for this unclear, the Defendants then applied for specific disclosure of various materials giving further detail of the malfunction, as well as anything which would show prior indication of any such problems. Questions were also raised as to what extent the crew of the Christos Theo knew, or ought to have known, about such issues.
Criticism
The Claimants were criticised for the “disappointing lack of candour and transparency” in the evidence they provided, and failure to assist in answering key questions about what occurred.
The near miss reported today is the accident that doesn’t happen tomorrow.”
Unknown
Evidence was offered that some 23 alarms had sounded in the engine room in the lead up to the incident but remarkably a chain of emails concerning the incident made no mention of the crew’s failure to engage the main engine astern, despite seven attempts, nor the many alarms which sounded, which was deemed to be “very surprising” by the court.
This failure to engage forced the Defendants, quite understandably, into pursuing answers, thus their request for thorough disclosure.
Missing documents
The documents required by the Defendants fell into three broad categories; (i) documents capturing the incident, (ii) documents which would disclose prior problems or failings relating to the main engine, and (iii) vessel specific manuals for the main engine. Whilst the third category was accepted, the Claimants objected to the first two.
The Claimants tried to resist these requests using various legal arguments, for example, trying to characterize the requests as a “fishing expedition”, but these objections were broadly dismissed.
The court simply did not find it plausible that the Claimants were unable to provide the further information requested, or that it did not exist at all. Their assertion that the searches they had carried out contained no relevant material “defies belief” and the explanations offered were demonstrably wrong or incomplete.
Expert witnesses
The court praised the expert evidence given by the Defendants’ expert witness, and it was felt that the evidence provided gave a “proper and sufficient” basis for the orders for specific disclosure, as it indicated the likelihood of further relevant documents.
An ounce of prevention is worth a pound of cure.”
Benjamin Franklin
Further, the Claimants objected to the wording of a question directed at the expert witness, a marine engineer. They argued that it invited the expert to express an opinion on a matter of fact, which was ultimately a question for the court. However, it was held that it was not inappropriate for an expert to be asked a question requiring them to express an opinion on a matter of fact, as many experts do, so here the expert was free to express their views on whether the engine had malfunctioned.
Conclusion
An order was made for searches by the Claimants for the majority of items of disclosure requested. The court directed that the Claimants pay all the costs of the application, ordering an interim payment of £70,000.
It was summarized that the Claimants had presented the Defendants with a “smoking gun” so they should not be surprised that they wanted to know “how and why the trigger was pulled”.
The case also demonstrates how valuable having reliable, clear and concise expert evidence can be in assisting the court to negotiate complex matters.
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