US Bodily Injury News November 2011 Round Table Seminar 2011 highlights
At this year's Thomas Miller Americas Round Table, three of the Club’s preferred lawyers gave presentations on civil and criminal investigations of maritime casualties and best practices in interview and depositions.
Significance of securing the casualty scene Critical importance to tell the truth at all times Advising to call counsel with any questions To alert counsel as soon as USCG, etc. boards.
Michael Fernandez Freehill, Hogan & Mahar
Michael Fernandez of Freehill, Hogan & Mahar in New York presented a step-by-step analysis of P&I counsel’s investigation of a maritime casualty including preliminary concerns for safety of people, the ship and environment, identification of preliminary documents, establishing communications protected by the attorney client privilege and indications of potential criminal acts.
Protecting attorney-client privilege in an investigation
The appointment of a P&I attorney should be made as soon as possible so that owners’ and managers’ interests are provided full legal protection.To
that end, Mr. Fernandez recommended making the P&I attorney the point of contact from the start by ensuring that all communications are addressed to counsel. Once appointed, counsel will contact the Master to identify who they represent and their role. Counsel may also advise, recommend and appoint experts who may be necessary to assist with the investigation to keep all communications privileged.
Mr. Fernandez stressed the importance of the initial instructions to the Captain to include:
Alerting to possible investigation by USCG and others
Advising not to alter, modify, destroy, hide or falsify any documents or evidence
Mr. Fernandez and Mr. Linsin summarized their advice jointly providing a Best Practices list.
Members can use these guidelines provided by Mr. Fernandez and Mr. Linsin, to properly protect their interests and rights in the event of a marine casualty and avoid criminal issues.
Manage communications Immediately notify all company contacts and establish communication links
Identify and notify all external parties in a timely and consistent manner
Recognize that all post-incident conduct and communications will be scrutinized.
Secure scene, documents and records Issue directive to vessel that all physical and documentary evidence must be preserved without alteration
Suspend all auto-delete functions Secure the scene of the incident Let counsel know when USCG boards.
Work through counsel Have counsel serve as Point of Contact (POC) with all investigators
Ensure attorney-client privilege is protected Have counsel review all critical communications that come from vessel or company
Have counsel retain any consultants or surveyors
Have counsel advise crew of their rights Make initial assessment of evidence – safety of crew, vessel, cargo and environment
Have counsel quickly evaluate need for criminal counsel.
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