The experience of the DPA in the witness box.

1. Reluctant witness takes useful lessons
from role play
Lloyd’s List - Ian MacLean tells Sandra Speares about his witness-box role as a Designated
Person Ashore at the London Shipping Law Centre’s latest ‘ISM on Trial’ event - Wednesday
10 May 2006
The London Shipping Law Centre has just run its ‘ISM on Trial’ event for the third time, on this
occasion as a conference event with BIMCO in Athens.
When the event was first conceived, Aleka Mandaraka Sheppard of the London Shipping Law
Centre invited a number of Designated Persons Ashore to play the role of DPA in the witness
box.
Unsurprisingly, there was not a great deal of enthusiasm on their part to stand up and be
cross-examined.
Ultimately, the role of the DPA was played by Ian MacLean, a master mariner and solicitor
with Ince & Co, who is an experienced lead auditor and has knowledge of the functional
responsibilities of the DPA’s role from his shipmanagement days before qualifying as a lawyer.
He described the experience.
What was it like being cross-examined?
It has given me a lot of insight into what it would be like to be a real DPA in a witness box.
There is little doubt that if there are conflicts or errors in the manuals and records, or failings in
the implementation of the system itself, then counsel will locate these deficiencies and ask the
witness to explain them.
Anyone who has been through an external audit will tell you it can be a stressful experience.
But that is nothing in comparison to the experience of standing in a witness box while counsel
goes through the manuals and forms line by line in a court room full of people, asking you to
explain deficiencies.
In developing the scenario for the trial, Dr Sheppard, Dr Phil Anderson, Andrew Mitchell of
Lloyd’s Register and I built errors into the system, the records and the implementation of the
system itself. Dr Anderson, who played the expert witness, prepared, as he would have done
in a real case, an expert report for the court. Even in the context of a role-play, this report
made for very uncomfortable reading. It is certainly no fun to be questioned on the contents of
an objective report which highlights inadequacies, many of them about the DPA personally.
Can you give an example of litigation where a DPA’s evidence would be important?
In the mock trial, the Hague Visby rules were incorporated into the contract of carriage. Since
cargo was damaged or lost while onboard the vessel, Counsel for the cargo interests was
seeking to prove that due diligence had not been exercised to make the vessel seaworthy
before and at the beginning of the voyage, and that the loss or damage to the cargo was
caused by that lack of seaworthiness. In such a trial, the DPA’s evidence would be important
in respect of both the unseaworthiness and the exercise of due diligence.
What aspects of ISM might the DPA find himself cross-examined on?

2. There are a number of potential avenues for cross-examination. The first level of investigation
may be whether the company system itself complies with the requirements of the ISM Code.
The DPA may also find himself cross-examined on system or record conflicts. A system
conflict may occur where it simply is not possible, while following the requirements of the
manuals, to operate the vessel on its current trading pattern and manning without
nonconformities. A record conflict occurs where records, which evidence that the system is
being followed, are contradictory.
Counsel might then consider the records, logs and checklists, cross-examining the DPA on
their contents. Common errors include items ticked off as “satisfactory” when other evidence
indicates there were serious issues with that item, or where the crew have adopted a “tick
mentality” and it is clear from other evidence that items ticked as “satisfactory” have not been
attended to.
Lastly, the DPA may find himself cross-examined on the system itself. The size, complexity
and relevance of the manuals themselves may contribute to an allegation of unseaworthiness.
You said that the court would look at the system itself. Would this be necessary if all
the certificates were in place?
Certification under ISM is based on an external audit, which utilises a sampling process.
Although the key areas of the system will be audited, the external audit is not a guarantee that
every aspect of the ISM Code has been complied with. If the requirements of the code are not
fully reflected in the manuals, and an omission is material to the unseaworthiness that caused
the loss, the DPA can expect to be questioned at length as to why that omission was not
addressed in the manuals.
You also mentioned conflicts. Could you give examples of how these might be exposed
in cross-examination?
A good example of a system conflict would occur where counsel asks the DPA how the
company requires a master to demonstrate that he has familiarised himself with the contents
of the manuals. The DPA draws counsel’s attention to the requirement in the system for a
master to sign a statement, before departure from port, that he has read and understands the
manuals. Counsel then asks the DPA how long it would take a master to read the manuals, to
which the DPA tells the court that it would take the master a “day or so” to read the manuals.
This leads to the question how it is possible for masters to familiarise themselves when,
according to the records, reliefs are occurring in ports where the vessel’s stay is only two or
three hours. The DPA could then be called on to acknowledge that it is impossible for the
master to follow the requirements of the manuals and that this fact must have been known to
the DPA.
No DPA wants to find himself in the witness box attempting to explain to the court why the
system in place, for which he is responsible, is actually incapable of being followed.
A record conflict has the potential to be equally embarrassing. How is a DPA to react when
presented with two checklists, one for a stowaway search and one for pre-departure
familiarisation training, both apparently conducted by the same officer at the same time? The
clear inference is that activities are being falsely recorded and that this should have been
obvious to a diligent DPA. The DPA can be expected to be asked to explain to the court why
he had not noticed this conflict.
Where do you see the main area of risk for an owner?
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3. In the majority of disputes with which I have been involved, where ISM records related to
seaworthiness, it was in an evidential capacity. That is to say, although the records
demonstrated that something which should have been done had not been done — such as the
maintenance and inspection of hatch covers — the ISM records were only evidence of the
failure to do this. The vessel was unseaworthy because of the failure to maintain and inspect,
not because of the ISM records themselves.
However, as I said before, there may be circumstances where the documented management
system itself could result in a finding of unseaworthiness. This could occur, for example,
where there are simply too many tasks for the crew to complete and as a consequence of this
a fatigued crewmember makes an error that results in a cargo loss. The danger here is that in
addition to any liability to the cargo interests, owners may find that their insurers have a
defence to paying a claim.
On what grounds might an insurer have a defence to paying such a claim?
Where a time policy is governed by English law and a vessel is sent to sea in a unseaworthy
state with the privity of the assured and the unseaworthiness is causative of a loss, then the
insurer has a defence to a claim in respect of that loss. It must be the assured who has privity
of the unseaworthiness. Although there is much case law as to who within a company would
be considered the assured, it is likely that a managing director or someone of equal standing
would be considered the “assured”.
The problem faced here is that many ISM manuals are signed as “approved” and/or
“authorised” by the managing director or person of similar seniority. If the court does find that
the documented management system itself is the reason for the vessel being unseaworthy, it
will be difficult for a managing director who has his name appearing on every page of the
manuals to persuade the court that he was not “privy” to the unseaworthiness. The result may
be the court finding in favour of a defendant insurer who has declined to pay the claim.
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