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Dato
Jude Benny, one of Asia’s leading
shipping and admiralty lawyers at
JTJB International Lawyers,
Singapore, in an exclusive
contribution to this column this
week, discusses when the report by a
ship surveyor becomes a legal
responsibility and not a privilege.
In
most shipping cases, surveyors are
instructed to attend and conduct an
inspection of the damage, or simply
record the incident for future use
in claims.
Normally,
this will result in a survey report
being produced, in which the extent
of damage, or lack of it, is
recorded.
It
is also not unusual for the surveyor
in attendance to also opine as to
the cause of damage, and the cost of
repairs.
Sometimes,
the surveyor's report is favorable
to the claimant, and sometimes it is
not.
The
report can at times be critical of
procedures and methods adopted by
the claimant, and effectively point
out shortcomings in the claimants'
potential recovery action.
Needless
to say, a claimant will flash a
supportive report aggressively, in
order to justify his case; whereas a
critical report is usually played
down.
The
question is whether a claimant has a
duty in law to disclose a critical
report, or all reports for that
matter, to the opposing side, if he
pursues his claim in the courts.
The
general practice in international
maritime law, in civil jurisdictions
like England, Hongkong, Malaysia and
Singapore is that a report is
privileged from disclosure, only if
the dominant purpose of
commissioning the survey report is
to obtain legal advice.
In
other words, legal action must be
contemplated when the surveyor is
sent to prepare a report.
If
a surveyor attends as a matter of
course, upon the happening of an
event, merely to investigate, and
with no legal proceedings in mind,
the report will not be privileged.
As
such, it must be disclosed to the
other side in the course of later
legal proceedings.
It
should be noted that simply marking
a report "Confidential" or
"Without Prejudice" will
not make the report privileged from
discovery in legal proceedings.
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