Sound, Speed, and Distance - The Second Circuit Allows Use of SVDR Data as Evidence in Maritime Casualty

by Baker Donelson

In a Summary Order dated March 13, 2014, the United States Court of Appeals for Second Circuit affirmed a summary judgment of the Southern District of New York, which ruled in favor of a vessel owner based on data of the ship's Simplified Voyage Data Recorder ("SVDR") in a lawsuit by the owner of a submarine cable damaged by the ship's anchor. Optical Communications Group v. MV Ambassador, No. 13-1544 (2nd Cir., March 13, 2014).

Under SOLAS  regulation, as of July 1, 2010, all ships of 3,000 GT and upwards when engaged in international voyages must carry a voyage data recorders ("VDR"). This applies to all passenger ships, ships of 20,000GT and upwards, and ships of 3,000GT and upwards constructed on or after July 1, 2002. Cargo ships built before July 1, 2002 are allowed to be fitted with a SVDR. Although a SVDR is not required to store the same level of information as a regular VDR, it records among other things the vessel's position, speed, physical status and command.

On April 11, 2010, the M/V AMBASSADOR was proceeding southbound,  en route from the GMD Docks in Brooklyn, New York, to her anchorage in Gravesend Bay. Soon after passing under the Verrazano-Narrow Bridge, the Vessel prematurely released her port anchor, which dropped approximately 55 feet from the water surface to the seafloor and struck and damaged a submarine fiber optic cable owned by Optical Communications Group, Inc. (“OCG”). OCG sued for damage to the cable, and Vessel Owner moved for summary judgment on the ground that the cable damaged was outside the designated cable area in violation of OCG’s permit from the Army Corps of Engineers, and that the AMBASSADOR dropped her anchor outside the charted cable field, inside a navigation channel.

In support of its argument that the anchor did not release until the Vessel’s bow had passed the southernmost boundary of the charted cable field, Vessel Owner submitted a Declaration of the ship's Master based on the AMBASSADOR’s SVDR data. Specifically, the Master declared that the SVDR (described by the parties as the maritime equivalent of an airplane's black box) recorded the “unmistakable sound” of the anchor chain rumbling down the hawse pipe as the anchor released beginning at precisely 10:30:12 a. m. on the day of the accident, at which time the SVDR also logged the Vessel’s position and her speed. Based on the SVDR data of the sound, position and speed, the Master concluded that the Vessel’s bow was approximately 33 yards outside the marked cable field when the anchor began to release, and at least 50 yards outside the field when it struck ground. Despite OCG's challenge of the Vessel Owner's interpretation of the SVDR data, the Southern District of New York (Buchwarld, J.) granted summary judgment in favor of the Vessel Owner based on the Vessel's position at the time of the accident as supported by VDR data. Optical Communications Group, Inc. v. M/V AMBASSADOR, No. 11-4439 (S.D.N.Y., March 13, 2013).

On appeal, OCG challenged the admissibility and authenticity of the SVDR data. In affirming the summary judgment, the Second Circuit held that such challenge was not preserved. The Court went on to note that OCG failed to show error, much less fundamental error (which may justify review of unpreserved challenges), and proffered no reason to believe that the SVDR data evidence was not in fact authentic.

VDA data played an key role in the highly publicized civil and criminal proceedings following sinking of the COSTA CONCORDIA in January 2012. The M/V AMBASSADOR case serves as yet another reminder of the importance of VDR or SVDR data. (The Second Circuit Summary Order deals with evidentiary issues only, and the substantive information for the blog article comes from the Memorandum and Order of the Southern District of New York dated March 29, 2013.)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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