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Marine Accident Investigation Branch safety report not admissible into arbitration

9th December 2019

Emily Wilsdon, instructed by Sarah Wise (GLD) represented the MAIB in ‘Ocean Prefect’, heard on an urgent basis in the QBD, Commercial Court, by Mr Justice Teare. This was the first time a court has ever adjudicated on the admissibility of a MAIB marine safety report arising from a shipping accident in an arbitration. The court found that arbitrations were ‘judicial proceedings’ and the public interest in effective future investigations, and the potential effect on relations with other states and NGOs meant the balance fell against admission.

The case concerned reg. 14(14) of The Merchant Shipping (Accident Reporting and Investigation) Regulations 2012, which requires the permission of a court to allow an MAIB safety report to be admitted into judicial proceedings. The court found that the regulations were to be construed in the context of the International Maritime Organization’s Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, and EU Directive 2009/18/EC.

The court found that the ordinary and natural meaning of ‘judicial proceedings’ within the Regulations included arbitration.

The court was required to have regard to the views of the MAIB’s Chief Inspector when considering whether the interests of justice in disclosure outweigh any prejudice, or likely prejudice, to any future accident safety investigation undertaken in the United Kingdom and relations between the United Kingdom and any other State, or international organisation.

The evidence of the Chief Inspector Captain Andrew Moll was that admission into the arbitration (and use in cross examination of pilots) would diminish the MAIB’s ability to have candid and detailed conversations with witnesses and to have ready and unqualified access to accident sites. It would diminish the MAIB’s ability to fulfil its statutory function and enhance the safety of all those at sea.

The court found that the balance fell against admission. The court noted that future applications of this nature should be made well in advance, and the MAIB ought to be made a party to proceedings.

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