ability to send digital photos has greatly enhanced communicating and reporting of findings to clients, reducing the need for diagrams.
However, as previously stated, there will be times when the surveyor needs to explain the operation of a piece of equipment or the sequence events leading up to a casualty. This is when diagrams or sketches come into their own. The surveyor is advised to learn basic technical drawing techniques as these help make drawings more understandable for the client.
The notebook, being used frequently, will become tattered and worn so that it may need the occasional reinforcement with packing tape. This is particularly important as all such information in most jurisdictions is required to be retained for several years. The cover should thus show the range of job numbers and dates of survey for easy access.
Discovery or Disclosure
The law in most countries stipulates that there should be no surprises in court. This means that both sides must disclose to each other information relating to their case, ie, all information is discoverable.
The term ‘discovery’ identifies the process by which a party to civil proceedings is obliged to disclose to the other parties all documents relevant to the issues in the litigation. The definition of documents is
extremely wide-ranging and includes information stored electronically. The rules of discovery in court proceedings are intended to ensure that each party is in a position to evaluate the strengths and weaknesses of its case in advance of trial. The process of discovery involves the disclosure of one party’s documents to the other. Either party can seek documents from the other which they believe may strengthen their case.
If the other party in a dispute is aware of a report having been issued by a surveyor to his client which might strengthen their case, they are entitled to request discovery of the report and the court will support such a request. Hence, a report issued as a consequence of a survey carried out during normal duties to a client will come under the rules of discovery. This includes any information recorded in a notebook.
However, under the law of evidence, a client’s privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney is termed ‘Attorney-client privilege’. This protects the client from having to disclose confidential communications and/or evidence. Whatever is communicated professedly by a client to his counsel, solicitor, or attorney, is considered as a confidential communication.
A means of circumventing the rules of discovery is for the client’s lawyers to instruct the surveyor to carry out the investigation and report to them, not
the client. The client will then get to see the report in the lawyers’ offices.
The reader may thus see that it is imperative that the surveyor’s report and any other recorded information must be accurate in all details. The surveyor should also be aware of the rules of discovery when issuing his report. If in doubt, check with the client.
The above is an introduction to discovery for the marine surveyor. It is a wide and deep subject about which much has been written. There are more authoritative and comprehensive writings on the subject which the surveyor may wish to reference.
Surveyors should be very careful what they write in their notebook especially if the information is to be used in a final report. Unprompted comments and opinions should be avoided, eg, ‘this ship is a disaster waiting to happen!’, whether joking or not as these could be used against you and your client at a later date. Stick to the facts and only your findings. If such records would be detrimental to your client’s case, avoid writing anything in your notebook. An ‘in confidence’ phone call or email to the lawyer will be more appropriate.
It is therefore imperative that your notes should be correct in every detail otherwise the opposition counsel will take you apart in the witness box with the result that you may lose the case for your client and your credibility as a marine surveyor/expert.
...it’s imperative that your notes should be correct in every detail...
The Report • June 2022 • Issue 100 | 129
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136
