Monday, 20 October 2008

Dry run for litigation

By way of preamble to the comments that will follow later on this site, we are now providing a brief explanation of what, in our view, appear to have been the interests, motivations and legal objectives behind the outcome of the Derbyshire Formal Investigation.
As we have mentioned earlier on our Trawler Gaul blog, the search for the truth in many formal investigations held in the UK has often been hindered by the adversarial aspects of these inquiries – aspects which render them not as much as investigative processes, but as cases of ‘shadow litigation’.
In a similar manner, the outcome of the Derbyshire RFI appears also to have been affected by the unequal leverage exerted by the most powerful of the forces competing in that formal investigation: i.e. the British government and the maritime establishment, i.e. the parties that would have stood to lose out from any results likely to lead to litigation.
Rather than simply establish the causes of the tragedy, the final report of the Derbyshire RFI sought, also, to exonerate the shipbuilders from any potential liabilities.
Thus, the RFI concluded that the design deficiencies that had led to the loss of the Derbyshire had not been due to negligence on the part of the shipbuilders, but to the unfortunate inadequacies in the international maritime legislation in force at the time of her build.
As the final report shows (see Annex 2 of the attached document) the court addressed a number of limited and leading questions, which appear to have been tailored in a way that would have allowed British Shipbuilders (i.e. the Government) to make use of one of the defenses provided under products liability legislation – i.e. the ‘development risks defense’ – to counter charges of negligence and claims for compensation, should these have later arisen.
This 'development risks defense' states:
the state of scientific and technical knowledge at the time [the producer] supplied the product was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control.”
Furthermore, the court’s final conclusions that the vessel’s deck fittings (mushroom ventilators, airpipes and windlass seating) were wholly in accordance with standards applicable at the time the Derbyshire was built - standards which today are no longer acceptable – was not, in fact, proven. On the contrary, photographic evidence from the wreck site indicates that these fittings were not wholly in accordance with the standards that applied at the time of build.
For a fuller and clearer explanation, please see the document published at THIS LINK.
(More to come)
The document mention above can also be found at the following links:

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