Wappen-Reederei GmbH & Co. KG v. The “Hyde Park”

In Collisions and Ships on (Updated )

This is an important case dealing with the interpretation of sections 28 and 29 of the Canadian Transportation Accident Investigation and Safety Board Act and questions of privilege. [Section 28 of the Act deals with “on-board recordings” (defined as recordings originating from or received on or in the bridge or control room of a ship) and provides that such recordings must be released to an investigator, are privileged and must not be produced in any legal proceeding “unless the court concludes that the public interest in the proper administration of justice outweighs in importance the privilege attached to the on-board recording” and must, in any event, not be used against the ship’s officers or crew in any legal proceedings. Section 29 of the Act deals with recorded communications between ships and public authorities, such as Coast Guard and VTS, and provides that such records cannot be used against the ship’s crew in any legal proceedings.] The case arose out of a collision on 26 September 2005 between the ships “Cast Prosperity” and “Hyde Park” in the St. Lawrence River. Following the collision, actions were commenced by each of the two vessels against the other and an investigation was conducted by the Transportation Accident Investigation and Safety Board (TSB). In the course of the investigation the Voyage Data Recorder from the “Cast Prosperity” was seized under section 28 of the Canadian Transportation Accident Investigation and Safety Board Act. The Voyage Data Recorder records various data including the ship’s position, speed and heading, voice communications on the bridge (bridge recordings) and radio communications with other ships and shore stations (VHF recordings). The owners of the “Cast Prosperity” brought this motion, inter alia, to compel the TSB to return the VHF recordings and to provide the parties with copies of the bridge recordings. There were essentially two issues to be decided: first, whether s. 28 of the Canadian Transportation Accident Investigation and Safety Board Act had any application; and, second, whether the bridge recordings should be disclosed. With respect to the application of s. 28, the vessel owners argued that the recordings were actually captured and stored on equipment located in a utility room of the vessel and not on the bridge and that they therefore did not fall within the definition of “on-board recording” in the Act. The motions Judge had little difficulty in dispensing with this submission as the microphones that recorded the conversations were on the bridge and this was sufficient. With respect to the VHF recordings, however, the situation was different. The motions Judge, noting that radio communications were specifically dealt with in s. 29 of the Act, held that they were governed by s. 29 rather than s. 28. She then considered whether s. 29(6) prohibited their use in the present legal proceedings between the owners of the ships. It was noted that the wording of s. 29(6) only prohibited the use of VHF recordings in proceedings against crew members, however, after considering the scheme of the Act and the general context, the Judge held that the prohibition equally applied to the present proceedings involving the owners. Turning to the second issue of whether the privileged bridge recordings should be disclosed by TSB to the parties pursuant to s. 28(6), the Judge noted that the court had to consider four factors, namely: the nature and subject-matter of the litigation; the nature and probative value of the evidence; whether the evidence could be obtained in another way; and, the possibility of a miscarriage of justice. After reviewing the transcripts in her Chambers she concluded that they were of little evidentiary value and held that they need not be disclosed