Library:
Out of the Black Box
Published in the March 2006 issue of Transportation Notes - View Article
In a decision released on February 7, 2006, the Federal Court of Canada considered the privilege attaching to “black box” recordings in the marine context.
In September of 2005 the container vessel “Cast Prosperity” collided with the chemical tanker “Hyde Park” in the St. Lawrence River. The “Cast Prosperity” was equipped with a voyage data recorder (VDR), commonly known as a black box, which records data such as position, speed and heading. It also records voice communications by way of a microphone located on the bridge (“bridge recordings”). Communications with other ships and shore stations are recorded from the VHF radio and are stored on a separate band in the black box (VHF recordings).
The accident was investigated by the Transportation Safety Board (TSB), which seized the relevant on-board recordings. In the context of litigation with the owners of the “Hyde Park”, the owners of the “Cast Prosperity” applied to the Federal Court for the return of the VHF recordings and to obtain a copy of the bridge recordings.
Justice Johanne Gauthier considered the Canadian Transportation Accident Investigation and Safety Board Act (“Act”) and distinguished between the legal status afforded to the bridge recordings as opposed to the VHF recordings. The VHF recordings are not private and confidential when they are made and the Act mandates only that they cannot be used in legal proceedings or, subject to a collective agreement, disciplinary proceedings, against certain people described in the Act, such as ship’s officers and crew. Justice Gauthier ordered that these be returned to the owners of the “Cast Prosperity”, who would be subject to the Act’s restrictions on their use.
The bridge recordings are governed by a different section of the Act, which contains a blanket prohibition on their use in legal proceedings, unless a court decides that the proper administration of justice outweighs in importance the privilege attached to the recording. This is consistent with the intention of the legislators when access to on-board voice recordings was introduced. It was recognized that they are an intrusion into workplace privacy, and are tolerated on the basis that they are for the purpose of promoting safety and for no other purpose.
Justice Gauthier was provided with a translated transcript of the bridge recordings, which were in German. She considered whether they should be produced based on the nature of the litigation, the probative value of the evidence, whether there were other ways to obtain the same evidence and the possibility of a miscarriage of justice. She concluded that the transcripts were of little evidentiary value in the case and should not be disclosed to the parties.
Wappen-Reederei GMBH & Co. K.G. v M.V. “Hyde Park”, 2006 FC 150