John Habergham, Myton Law, Hull U.K.

For the first time, the English High Court was asked to adjudicate on the inadmissibility of a MAIB report in a private and confidential arbitration. The rival contentions were – was the  court’s permission  required under Reg 14(14) Merchant Shipping (Accident Reporting and Investigation) Regulations 2012; or was the decision as to the admissibility of the report  a matter for arbitral tribunal pursuant to S34(2)(f) Arbitration Act 1996.

The Court maintained the generally accepted practice of requiring court permission under the regulation, and that permission to admit the MAIB report in to the arbitration proceedings was refused.

By way of background, the vessel ‘Ocean Prefect’ ran aground twice under charter, and was investigated by the MAIB as to what lessons could be learnt with regard to improving the safety of shipping. The owners alleged the grounding was caused by the charterers as a result of inadequate training of pilots failing to acknowledge the port was unsafe.

The owners submitted that the omission of the word ‘tribunal’ from Reg 14(14) Merchant Shipping (Accident Reporting and Investigation) Regulations 2012 meant that  arbitration proceedings  were not subject to Reg 14(14). The Court concluded that this was largely insignificant and that the definition of ‘judicial proceedings’ under Reg 14(17) to include ‘civil or criminal proceedings before any court or person having by law the power to hear, receive and examine on oath’, was broad enough to cover it, referring to the International Maritime Practices for a Safety Investigation into a Marine Casualty or Marine Accident (IMO code), and EU Directive 2009/18/EC in making this decision. This provides that investigators carrying out such investigations should only disclose information from marine safety records where,                                             ‘it is necessary or desirable to do so for transport safety purposes and any impact on the future availability of safety information … ’ and ‘ … the draft and final report should be prevented from being admissible in evidence in proceedings related to the marine casualty or incident that may lead to disciplinary measures, criminal conviction or the determination of civil liability’.

Allowing  cross examination of the charterers witnesses about the content the MAIB report  would  disregard  the public interest element of promoting maritime safety because it would undermine the objective of the report and the MAIB ability to have detailed conversations with witnesses in assessing a situation. The Court reiterated,

“.. the purpose of the MAIB report is the improvement of maritime safety, and not the determination of blame which is usually the purpose of subsequent legal proceedings. To use a MAIB report for determination of blame would be likely to prejudice future accidents safety investigations because those asked in future investigations to provide information may be reluctant to do so if they know that the resulting report may be used to determine blame”.

Although this is a contrast to the approach of the Court of Appeal in Rogers v Hoyle [2015] QB 265 concerning the admittance of a report by the Air Accident Investigation Branch (AAIB) which has had the effect of accepting the use of reports in civil proceedings, the Court in this case has relied heavily on the above 2012 Maritime Regulations in re-establishing that MAIB reports should not be used unless the court determines otherwise on balance of public interest.

Consequently in this case, notwithstanding the significance of the Owners commercial interest in the arbitration outcome, they were largely outweighed by the public policy interests and thus admissibility of the report was refused.