Australia: Loose metadata sinks ships

Last Updated: 23 May 2019
Article by Craig Macaulay

Executive Director Craig Macaulay discusses a recent case where the metadata of a photo proved to be a vital piece of evidence in shaping the outcome of the case.

A picture says a thousand words. Well not exactly, but it can say enough to help uncover the truth. And in this case, it's the tale of a sunken ship.

In an interesting England and Wales High Court case1 (Kairos), the metadata, the information that sits behind an electronic document, in this instance a photo, proved to be a vital piece of evidence in shaping the outcome of the case.

Background

Kairos owned a ship called the Atlantik Confidence, a geared bulk carrier ship which caught fire and sunk in 2013.

The case was about the limitation of the ship owner's liability for the cargo on board. This limitation was in force unless it was proven "that the loss resulted from his [ship owner's] personal act or omission, committed with the intent to cause such loss." It was alleged that there was a conspiracy involving the master, chief engineer and others to deliberately set fire to the ship.

Previous case law had placed a high burden of proof on a party claiming that a ship had been deliberately scuttled:

"...if a defendant insurer is to succeed on an allegation that a vessel was deliberately cast away with the connivance of the owner, then the insurer must prove both aspects on a balance of probabilities. However, as such allegations amount to an accusation of fraudulent and criminal conduct on the part of the owner, then the standard of proof that the insurer must attain to satisfy the Court that its allegations are proved must be commensurate with the seriousness of the charge laid. Effectively the standard will fall not far short of the rigorous criminal standard..."

Initial Expert Opinion was that it was an Accident

Based on the witness statements and evidence presented, the expert evidence determined that there was no reason to believe that the ship had been deliberately scuttled (noting that there was no means to physically inspect the wreak because it was sunk in deep waters).

Photo Metadata disclosed during the trial changed the Expert's Opinion

The defendants had requested the photo metadata from the pictures taken by the crew, in particular the ship's electrician. Eight days into the trial, the photo metadata was disclosed.

The experts were primarily deliberating over calculations on the sunken ship. The time details contained in the photo metadata requested contradicted many witness statements. For example, it showed that certain doors on the ship were open when the witnesses stated it was closed. This significantly changed the calculations prepared by many experts. The data was so influential that many expert witnesses changed their opinions and concluded that the ship had been deliberately sunk by senior members of the crew at the request of the ship's owners.

How KordaMentha can help you with photo metadata

Photo and image metadata are an excellent source of information. Depending on the configuration of the device taking the photo, the metadata that can be extracted can include, but not limited to:

  • Date and time the photo was taken
  • Global positioning system (GPS) date and time the photo was taken
  • GPS location of where the photo was taken
  • Name and model of the device taking the photo
  • Photo size and dimensions
  • The compass direction that the device is pointing when taking the photo

In today's technology-driven world, the use of metadata can be vital in establishing all sorts of facts and can potentially be pivotal in a litigious or investigative context.

Footnote

1. Kairos Shipping Ltd & Anor v Enka & Co LLC & Ors [2016] EWHC 2412 (Admlty) (11 October 2016)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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