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The Role of the Forensic Scientist/Engineer in Marine Investigations
Presented by Burgovnes to the Nautical Institute Hong Kong on
21 November 2006
 
 
 
            
Accompanying Notes
  
            
Outline of Topics
   
·           The Role of an Expert Witness
 
·           Engine Room Fires
 
·           Cargo Fires
 
·           Cargo Explosions
 
·           High Explosives
 
·           Live Incidents
 
·           Cargo Spoilage
 
·           Fires Involving Ship Repairs
 
·           Advice on Fire Risks
 
            
The rules relating to expert witnesses under English Law are embodied in the Civil Procedure Rules at Part 35. However, those rules are also incorporated in guidance produced by certain divisions of the High Court.
   
 
            
THE ADMIRALTY & COMMERCIAL COURTS GUIDE 6th Edition: February 2002
  
 
H2 Expert witnesses
 
 
Application for permission to call an expert witness
 
H2.1 Any application for permission to call an expert witness or serve an expert's report should normally be made at the case management conference.
 
 
H2.2 Parties should bear in mind that expert evidence can lead to unnecessary expense and they should be prepared to consider the use of single joint experts in appropriate cases. In many cases the use of single joint experts is not appropriate and each party will generally be given permission to call one expert in each field requiring expert evidence. These are referred to in the Guide as "separate experts".
 
 
H2.3 When the use of a single joint expert is contemplated, the court will expect the parties to co-operate in developing, and agreeing to the greatest possible extent, terms of reference for that expert. In most cases the terms of reference will (in particular) identify in detail what the expert is asked to do, identify any documentary materials he is asked to consider and specify any assumptions he is asked to make.
 
 
Provisions of general application in relation to expert evidence
 
H2.4 The provisions set out in Appendix 11 to the Guide apply to all aspects
 
of expert evidence (including expert reports, meetings of experts and
 
expert evidence given orally) unless the court orders otherwise. Parties
 
 
 
 
should ensure that they are drawn to the attention of any experts they instruct at the earliest opportunity.
 
 
Form and content of expert's reports
 
H2.5 Expert's reports must comply with the requirements of PD35 §§1 and 2.
 
 
H2.6(a) In stating the substance of all material instructions on the basis of
 
which his report is written as required by rule 35.10(3) and
 
PD35 §1.2(8) an expert witness should state the facts or
 
assumptions upon which his opinion is based.
 
 
(b)          The expert must make it clear which, if any, of the facts stated are within his own direct knowledge.
 
 
(c)           If a stated assumption is, in the opinion of the expert witness, unreasonable or unlikely he should state that clearly.
 
 
H2.7 It is useful if a report contains a glossary of significant technical terms.
 
 
Statement of truth
 
H2.8(a) The report must be signed by the expert and must contain a statement of truth in accordance with Part 35.
 
 
(b) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, without an honest belief in its truth, a false statement in an expert's report verified in the manner set out in this section.
 
 
Request by an expert to the court for directions
 
H2.9 An expert may file with the court a written request for directions to assist him in carrying out his function as expert, but
 
(i)               at least 7 days before he does so (or such shorter period as the court may direct) he should provide a copy of his proposed request to the party instructing him; and
 
(ii)             at least 4 days before he does so (or such shorter period as the court may direct) he should provide a copy of his proposed request to all other parties.
 
 
Exchange of reports
 
H2.10 In appropriate cases the court will direct that the reports of expert witnesses be exchanged sequentially rather than simultaneously. This is an issue that the court will normally wish to consider at the case management conference.
 
 
Meetings of expert witnesses
 
H2.11 The court will normally direct a meeting or meetings of expert witnesses before trial. Sometimes it may be useful for there to be further meetings during the trial itself.
 
 
 
 
H2.12 The purposes of a meeting of experts are to give the experts the opportunity
 
(i)             to discuss the expert issues;
 
(ii)           to decide, with the benefit of that discussion, on which expert issues they share or can come to share the same expert opinion and on which expert issues there remains a difference of expert opinion between them (and what that difference is).
 
 
H2.13 Subject to section H2.16 below, the content of the discussion between
 
the experts at or in connection with a meeting is without prejudice and
 
shall not be referred to at the trial unless the parties so agree:
 
rule 35.12(4).
 
 
H2.14 Subject to any directions of the court, the procedure to be adopted at a meeting of experts is a matter for the experts themselves, not the parties or their legal representatives.
 
 
H2.15 Neither the parties nor their legal representatives should seek to restrict the freedom of experts to identify and acknowledge the expert issues on which they agree at, or following further consideration after, meetings of experts.
 
 
H2.16 Unless the court orders otherwise, at or following any meeting the
 
experts should prepare a joint memorandum for the court recording:
 
(i)               the fact that they have met and discussed the expert issues;
 
(ii)             the issues on which they agree;
 
(iii)           the issues on which they disagree; and
 
(iv)            a brief summary of the reasons for their disagreement.
 
 
H2.17 If experts reach agreement on an issue that agreement shall not bind the parties unless they expressly agree to be bound by it.
 
 
Written questions to experts
 
H2.18 (a) Under rule 35.6 a party may, without the permission of the court, put written questions to an expert instructed by another party (or to a single joint expert) about his report. Unless the court gives permission or the other party agrees, such questions must be for the purpose only of clarifying the report.
 
 
(b) The court will pay close attention to the use of this procedure (especially where separate experts are instructed) to ensure that it remains an instrument for the helpful exchange of information. The court will not allow it to interfere with the procedure for an exchange of professional opinion at a meeting of experts, or to inhibit that exchange of professional opinion. In cases where (for example) questions that are oppressive in number or content are put, or questions are put for any purpose other than clarification of the report, the court will not hesitate to disallow the questions and to make an appropriate order for costs against the party putting them.
 
 
 
 
Documents referred to in experts' reports
 
H2.19 Unless they have already been provided on inspection of documents at the stage of disclosure, copies of any photographs, plans, analyses, measurements, survey reports or other similar documents relied on by an expert witness as well as copies of any unpublished sources must be provided to all parties at the same time as his report.
 
 
H2.20(a) Rule 31.14(e) provides that (subject to rule 35.10(4)) a party may inspect a document mentioned in an expert's report. In a commercial case an expert's report will frequently, and helpfully, list all or many of the relevant previous papers (published or unpublished) or books written by the expert or to which the expert has contributed. Requiring inspection of this material may often be unrealistic, and the collating and copying burden could be huge.
 
 
(b) Accordingly, a party wishing to inspect a document in an expert report should (failing agreement) make an application to the court. The court will not permit inspection unless it is satisfied that it is necessary for the just disposal of the case and that the document is not reasonably available to the party making the application from an alternative source.
 
 
Trial
 
H2.21 At trial the evidence of expert witnesses is usually taken as a block, after the evidence of witnesses of fact has been given.
 
 
H3 Evidence by video link
 
H3.1 In an appropriate case permission may be given for the evidence of a witness to be given by video link. If permission is given the court will give directions for the conduct of this part of the trial.
 
 
H3.2 The party seeking permission to call evidence by video link should prepare and serve on all parties and lodge with the Court a memorandum dealing with the matters outlined in the Video Conferencing Guidance contained in Annex 3 to PD32 (see Appendix 14) and setting out precisely what arrangements are proposed. Where the proposal involves transmission from a location with no existing video-link facility, experience shows that questions of feasibility, timing and cost will require particularly close investigation.
 
 
H3.3 An application for permission to call evidence by video link should be made, if possible, at the case management conference or, at the latest, at any pre-trial review. However, an application may be made at an even later stage if necessary.
 
 
H3.4 In considering whether to give permission for evidence to be given in this way the court will be concerned in particular to balance any potential savings of costs against the inability to observe the witness at first hand when giving evidence.
 
 
 
 
H4 Taking evidence abroad
 
H4.1 In an appropriate case permission may be given for the evidence of a witness to be taken abroad. CPR Part 34 contains provisions for the taking of evidence by deposition, and the issue of letters of request.
 
 
H4.2 In a very exceptional case, and subject in particular to all necessary approvals being obtained and diplomatic requirements being satisfied, the court may be willing to conduct part of the proceedings abroad. However, if there is any reasonable opportunity for the witness to give evidence by video link, the court is unlikely to take that course.
 
Appendix 11
 
Expert Evidence - Requirements of General Application
 
1.        It is the duty of an expert to help the court on the matters within his expertise: rule 35.3(1). This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid: rule 35.3(2).
  
 
2.        Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced by the pressures of litigation.
 
 
3.        An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate.
 
 
4.        An expert witness should not omit to consider material facts which could detract from his concluded opinion.
 
 
5.        An expert witness should make it clear when a particular question or issue falls outside his expertise.
 
 
6.        If an expert's opinion is not properly researched because he considers that insufficient data is available, this must be stated in his report with an indication that the opinion is no more than a provisional one.
 
 
7.        In a case where an expert witness who has prepared a report is unable to confirm that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification must be stated in the report.
 
 
8.        If, after exchange of reports, an expert witness changes his view on a material matter having read another expert's report or for any other reason, such change of view should be communicated in writing (through the party's legal representatives) to the other side without delay, and when appropriate to the court.
 
 
 
 
It is also noteworthy that paragraph 13.3.2 of the 2nd edition of the Technology and Construction Court Guide states:
 
"... It is imperative that, wherever possible, the parties' experts co-operate fully with one another. This is particularly important where tests, surveys, investigations, sample gathering or other technical methods of obtaining primary factual evidence are needed. It is often critical to ensure that any laboratory testing or experiments are carried out by the experts together, pursuant to an agreed procedure."
 
 
WHO INSTRUCTS EXPERTS IN THE MARINE INDUSTRY?
    
            
Owners/P&I Clubs
      
Salvors
 
Cargo Interests
 
Terminal Operators
 
Charterers
 
Shipyards
 
Logistics Companies — Warehouses
 
Insurers/Lawyers of the above
 
 
AND FOR WHAT PURPOSE?
 
·        Assist in determining liability
 
·        To avoid a repetition of an incident
 
·        Gather statistics
 
·        Better understand fire behaviour of materials — fire spread characteristics for example
 
·        Revise Codes/Legislation
 
·        Assess the benefits derived from salvage operations
 
 
TYPES OF INCIDENT ENCOUNTERED BY BURGOYNES
 
 
ADVICE ON SHIPBOARD FIRE RISKS
    
Vessel structure/fittings; cargo characteristics
 
 
'LIVE' Incidents
 
Overheating or burning cargoes; leaking chemicals;
    
advice on analysis and decontamination
 
 
POST INCIDENT INVESTIGATION
    
Causation/Liability; Salvage Services
 
 
POST INCIDENT INVESTIGATIONS
 
Fires & Explosions
 
Cargo Damage/Cargo spoilage
 
Metallurgical and Materials Examinations
    
Engineering failures
 
Salvage Aspects
 
 
 
 
OTHERS HAVE COMPETING PRIORITIES -
    
Urgent repairs
 
- Cleaning and salvage measures  
    
-Jettisoning cargo
 
- De-watering of flooded spaces
    
-Tampering with evidence
 
 
INVESTIGATION PROCESS
    
Inspect the scene promptly
 
 
- Do not disturb evidence but record it
    
- Interview witnesses, obtain statements
    
- Form a preliminary view on causation
 
- Conduct detailed inspection of the physical evidence —
 
 Involves disturbance of debris/cargo
 
- Review preliminary conclusions and refine them
    
- Conduct tests if deemed necessary and further refine conclusions
  
 
 
ENGINE ROOM FIRES
 
 
Sources Of Fuel In Engine Rooms
 
 
Store rooms - Dry packaging
 
Rags and cotton waste
 
Liquid fuels usually below their flash point
    
- Lubricants
    
- Diesel oil
  
Liquid fuels often above their flash point
    
- Heavy fuel oil
    
-Solvents eg for cleaning
  
 
Terms Often Used Where Flammable Liquids
    
And Gases Are Involved
 
 
Flash point. This is the minimum temperature at which there is sufficient vapour above a flammable liquid such that the introduction of an ignition source will result in the ignition of the vapour and cause it to 'flash'. However, the liquid will not continue to burn.
 
 
Fire point. This is the minimum temperature above the flash point at which sustained burning of the liquid continues after ignition of the vapour above the liquid.
 
 
 
Autoignition temperature. The minimum temperature to which a flammable liquid must be heated to cause the ignition of the vapour above it without the need for an external ignition source, such as a flame or spark.
 
  
  
 
Hot surface ignition temperature. The minimum temperature of a hot surface required for the autoignition of fuel in contact with it. The hot surface will necessarily be above the autoignition temperature of the liquid fuel. The liquid will generate vapour at such temperature that it will autoignite.
 
 
Flammability limits These are referred to as the lower and upper flammability limits (LFL and UFL, respectively). Fuel air mixtures outside these limits cannot ignite either because there is too little fuel (the mixture is too lean) or there is too much fuel (and so not enough oxygen) – a so-called fuel rich mixture.
 
Note on Transport of Coal
 
The Cardinal Rule:
 
Follow The Bulk Code Provisions
 
 
Depending on whether the coal is a methane emitter or a self-heating type determines how it is handled in the early stages of a voyage in terms of the ventilation of the hold.
 
 
Daily monitoring of the ullage space gases is a Bulk Code provision. Checking for carbon monoxide, oxygen and for flammable gases (percentage of LFL). Also, the acidity of bilge samples should be monitored (sulphurous coals being acidic in solution). Temperatures are also measured but these are of but limited value in monitoring the status of the cargo until it is too late. The critical indicator of self-heating is the level of carbon monoxide and its variation with time.  
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