Electronic navigation systems such as GPS, Electronic Chart Displays (“ECDIS”), and Automatic Information Systems (“AIS”) record a wealth of data about a vessel’s movements and status in the moments before an accident. Indeed, the Voyage Data Recorder (“VDR”) was specifically designed to collect data from various on board sensors for use in accident investigations. As a result of this capability, electronic navigation data is now frequently presented as evidence in the litigation that often follows maritime accidents.
How the Courts View Electronic Navigation Evidence
By 2004, AIS and VDRs were in common usage on most vessels. Thus, by 2007, a court commented that AIS was a “notable development” that may affect the way vessels communicate in the future. Since the case in 2007, although one court found that AIS data was “not conclusive evidence of individual vessel movements,” the trend is for courts to increasingly rely on navigation data from AIS and VDRs. In a case in 2010, a court noted that the “authenticity and accuracy of the VTS/AIS recording was not disputed.” In 2012, six cases presented AIS/ECDIS/VDR recordings as evidence of vessel positions and movements. In each case, the court accepted electronically recorded evidence without dispute.
In large part, courts have accepted the reliability of electronic navigation data largely because the carriage requirements for electronic navigation systems are well established; their use is widely accepted by the maritime industry; and the systems are generally seen as an extension of existing technology. And importantly, counsel trying cases have themselves become comfortable with the technology and have learned how to effectively present electronic navigation evidence while convincingly explaining the inevitable anomalies and inconsistencies.
Why Use Electronic Navigation Data Accident Investigation and Litigation?
Maritime cases were traditionally presented through paper log books and mariners’ eyewitness testimony. There are inherent limitations, however, in the reliability of the testimony of even the most truthful eyewitness. Witnesses often give conflicting versions of events. In the confusion that usually attends a maritime accident, it is not expected that witnesses will exactly concur in their descriptions of what they observed. Thus, it is not uncommon for mariners—said to be traditionally loyal to their vessel—to give irreconcilable testimony with respect to the courses and speeds their vessels were on during the navigational maneuvers preceding every collision at sea or other maritime accident.
Data from electronic navigation systems, however, can foreclose these typical disputes and resolve the so called “irreconcilable testimony,” often resulting in early and/or favourable resolution while avoiding litigation costs. Producing data from electronic navigation systems may also be critical to meeting a party’s obligation to preserve evidence.
There are, however, some common problems that must be solved before electronic navigation data can be reliably presented in the courtroom. The most fundamental problem is data preservation. Some systems automatically preserve all data, and in others it is retained only until it is overwritten with new data. Counsel and the vessel owner must often work cooperatively at the earliest point in the investigation to preserve critical evidence.
Another problem is preserving the data’s chain of custody. It may often be necessary to hire electronic technicians to retrieve data who may not be familiar with the legal requirements for preserving evidence. Thus, the electronics technician and computer forensics expert may need to work together to avoid later questions about the data’s reliability and accuracy.
Finally, it may be necessary to correlate data sources and find an adequate explanation for anomalies. Different sensors may record the same data with differing accuracy and often will be running on different time standards. Reconciling these differences is necessary to satisfy the court that the data is reliable.
How Does Electronic Navigation Evidence Influence Juries and Other Fact-Finders?
Many commentators have observed that jurors and other fact-finders—especially those from the so called “MTVgeneration”— have come to expect to be entertained with computer-generated simulations and the use of technology during trial, just as it is used in their daily lives. As one author observed, “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”
Nevertheless, the use of computer animations in the courtroom remains one of the most controversial issues in the law of evidence. While some courts accept computer animations without question, others are wary that computer animations are more likely to pervert the fact-finding process than they are to enhance it. Many critics are skeptical that the purported desire to help fact-finders understand evidence is nothing more than an excuse to dazzle them with so-technological “whiz-bang” and paraphernalia used to “Disney-up” the evidence.
Electronic navigation evidence, however, is mostly immune from these criticisms. It is generally not simply a computer “animation” in the sense that it attempts to recreate what a witness thinks he remembers seeing, but rather that actual data recorded on board the vessel at the time of the accident and, thus, a true visual representation of what the witness experienced. Properly presented, electronic navigation evidence can be an extremely powerful persuasive tool that can make the difference between winning and losing a case.
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