Fishing News has been the voice of the fishing industry since 1913, bringing the latest news and features about the UK and Irish commercial fishing to the industry.  Bartons Marine Department were delighted to be invited to write a number of legal based articles for the publication, which we are pleased to reproduce one of them below:


“In this second article looking at what happens following an accident at sea, we consider the scope of disclosable documents, which may be much broader than you might initially have thought.

All documents relevant to an accident should be kept, irrespective of whether they are helpful or not to the defence of the claim.  The information disclosed in the documents is very important, it will provide evidence of whether there was a good system of health and safety and compliance on board.

These documents will be considered when solicitors advise insurers regarding the prospects of a claim succeeding against owners/skippers.  Documents will also have to be disclosed to the injured party’s solicitors, if liability for the accident is denied.  The injured party’s solicitors are likely to scrutinise these documents in great detail, to see if they can be used to demonstrate that there has been a failure in the duty to protect the health and safety of workers and others affected by their activities.

The documents we would usually expect to see produced by owners/skippers vary depending upon the size of the vessel, however it is good practice, irrespective of the size, for owners/skippers to keep records of all steps intended to assess and improve health and safety on board.  Lack of documents can on occasion be an issue when evidencing systems in place, in particular in claims involving some of the under 10-metre fleet.

The Fishing Vessel Safety Folder is a key set of documents.  However where an outside agency has been used to assist in completing the document, it should be carefully inspected by owners/skippers (and ideally all the crewmembers) before being implemented.  We have in the past read generic information, not relevant or applicable to a specific vessel, inadvertently contained within the risk assessments in the Folder.  Not all risk assessments have to be reduced to writing, however where possible they should be, including regular reviews and updates, to demonstrate a comprehensive assessment of the risks to health and safety and that crew are following safe working practices.  Once an accident has taken place, owners/skippers should give consideration to whether any risk assessments/practices should be reviewed in light of the accident.  This review will also be a disclosable document in any litigation.

A copy of the last appropriate MCA Inspection Certificate, including the list of defects to be remedied prior to the Certificate being issued (Report of Inspection), should be disclosed to determine whether relevant to the accident.  Copies of the Fisherman’s Work Agreements and copy qualification certificates for each crewmember should usually be provided.  Records of inspections, tool box talks, training sessions and drills should also be made available, as well as any surveys, invoices/receipts for any relevant works, AIS track if applicable, a General Arrangement drawing and the UK Certificate of Registry.  An accident report should be completed, which may simply be made in the official log book.  If the accident has occurred in UK waters and the injury is serious (classified as rendering the person unable to perform their usual duties for more than 72 hours, or requiring their admittance to a hospital/medical facility for more than 24 hours – see MGN 564(M + F) Amendment 1), a report should be made to the MAIB.  It is very important that the information provided accurately reflects the circumstances of the accident from the skipper’s or person completing the form’s perspective; the report to the MAIB can be included as a disclosable document, although the findings of the MAIB cannot usually be relied upon in civil claims.

The scope of documents which are disclosable may be broader than anticipated by many and can include texts, emails, video, photos and social media posts – as long as the document is relevant to the dispute and has been in a party’s control, it should be presumed to be disclosable.

The duty to disclose relevant documents is ongoing throughout the life of the claim.  Therefore, if relevant documents are generated or only become available sometime after an accident, you still have an obligation to disclose these documents, whether they are helpful to your claim or otherwise.

Where the injured party is unable to work for a period of time, a claim is likely to be presented for loss of earnings.  We have seen various methods used to calculate this loss for a fisherman.  It will assist if you or your accountant provides details of the injured party’s earnings in the 12 month period leading up to the accident and a comparator’s earnings for the period the injured party is indisposed.  There may be arguments that, due to the seasonal nature of the fishing, earnings fluctuate between different times of the year, in which case earnings for a longer period may be requested.

In our final article in this series, we will consider the requirement to provide witness statements and the process once the injured party has appointed their own solicitors.”

For more information about anything contained in this article please contact our Marine Law Team