The Advocate
Informing Marine Engineers about legal matters
Authored by: Darren Williams, Williams & Company
Brought to you by www.dieselduck.net, comments to [email protected]
Notice to Mariners: Beware The Hazards of E-Mail
In my practice as a marine lawyer I have seen more than few
mariners sink themselves as a result of the hazardous use of
electronic mail, or "e-mail". Assisting many mariners with problems
that have been made worse by the use of email (in business,
regulatory and family matters) has prompted me to write this
"Advocate" and offer to mariners at large, what in my view, is important
advice on the use of such a deceptively powerful means of
communication.
As a reader, it is my hope that when you finish reading this article
you will have a few "rules of email" to keep in mind, that if
reflected on when you are about to push the "send" button, will help
to keep you out of harms way.
"The 24 Hour Rule"
Never send an email within 24 hours of composing it if it involves a legal commitment or an issue that you are at all emotional about. Compose the email if you wish, but do not send it until a day has passed and you have reflected on the tone and meaning of the words. Before sending the email, ask yourself: "do I really want to send this", because chances are, at some point you will see it again, whether you like it or not.
Do not Underestimate the Permanence of an Email
For better or worse, email has replaced verbal conversation in
many ways. We are not often face to face to talk. Timing multiple
schedules to be on the phone together is not always convenient or
possible. Regular mail is dreadfully slow, and facsimiles are more
cumbersome than email. Indeed, email is often useful because it
provides a permanent record. In using email we often write back and
forth, and back and forth, as if we were sitting at a table
conversing - with a minor delay. It is quick and easy. In fact, it
is too quick and easy. Our tendency is to use email as if we were
speaking, but often without appreciating the fundamental difference
between spoken words and electronic words - electronic words can
remain in the public domain forever, whereas spoken words typically
do not (unless they are recorded, and even then they are not
typically convenient to copy and distribute).
What we say verbally is often not heard, or it is forgotten or
misunderstood. When we have said something that we ought not have
said, it poses comparatively little chance of coming back to haunt
us, except through the report of another person of what we said (the
"I heard him say this ..." account) -however, this is hearsay and
often bears little weight in terms of proving what was actually said
by a person.
This lack of permanence (that the words do not remain behind after
they are stated) in verbal communication is sometimes a good thing,
and sometimes not. In circumstances where one is emotional when
communicating it is often good that their words are not recorded.
Emotion (in this case, anger or simple frustration) arises, of
course, in many settings, including personal, and occupational or
business contexts. Things get said that one regrets - fortunately,
spoken words are not typically permanent.
This lack of permanence can also be a disadvantage however, in that
agreements with others are often reached or modified orally.
Everyone has had an experience where someone has not kept their end
of a bargain and we have had to say "but you said you would.. ." -
the lack or permanence, or being able to show what the other person
said, is an obvious disadvantage to spoken communication.
While this explanation may seem obvious, it serves to highlight what
is often forgotten about email - that no matter how quickly you type
and send it, it can remain around forever. It cannot be treated with
the same forgiveness that people give spoken words. It can be read
and re-read countless times over. With a push of a button it can be
copied and distributed to people you don't want it being read by. A
carefully crafted email can form a contract, bind someone to a
commitment, or provide important evidence to support your position.
A hastily prepared and sent email can cause irreparable damage
personally, professionally and financially.
Recording Agreements and Positions
Email has changed the way people do business, and for example, the way lawyers look for, and use, information to help their client's case and hurt their opponent's case. I often see email used effectively in a business context to "cement" an agreement that is made orally, or made in writing and then varied later by an oral agreement. An example might be in the purchase of a vessel where the parties agree on the written contract to close the deal on a particular date, and then later agree by email to change that date. However, think very carefully about what is said in the email before you hit "send", because you will be stuck with it.
Never Assume Email is Private
Never treat an email as though it is a private communication with
the recipient - it is simply too easy to copy and distribute. Always
assume it will be read by someone else. Disputes about family
matters provide the one of the most common examples where mariners
use email to their detriment. I recently acted for a mariner whose
spouse applied to court for an order for sole custody of their
children. There was no outward reason for the spouse's demand for
sole custody. The law in this respect provides that sole custody
will be awarded where the parents showed no reasonable hope of being
able to communicate peaceably about the interests of the children.
The spouse's evidence at trial was that she felt intimated by the
mariner and therefore could not communicate with him, and therefore
ought to have sole custody. She was persuasive on the stand and the
judge seemed to accept her evidence, until emails, one after the
other, were put to her.
The emails demonstrated a recent and clear pattern of friendly
communication between the mother and father. The mother was
surprised the emails were used. In refusing to grant the mother sole
custody of the children the judge relied specifically on the emails
between the parents in finding that there was in fact an amicable
communication between the parents and therefore joint custody was
appropriate.
The foregoing is a key example where a mariner helped his case where
he could have easily harmed it. Had the mariner used angry, or even
frustrated language, in his emails the judge might have found sole
custody was appropriate. Turning back a decision for sole custody is
very difficult. Taking time to consider what he was saying in the
email (and assuming that someone other than his spouse was going to
read the emails), rather than reacting to an email, was key to his
success. Too often people fall into the trap of reacting to
inflammatory emails by sending a similar email back.
Never Assume Deleting an Email Means it is Gone
Deleting an email from your email folder does not delete the
email from your computer - all emails are stored in an archive file
that you must have particular know-how to access and delete. You may
not be able to see the email anywhere in your email program, but a
copy is stored in the archive file and can be retrieved years later
by anyone who knows where to look. This includes "sent" and
"received" emails.
Lawyers will avoid giving "legal advice" in articles such as this
for concern that people may act in reliance on the advice and suffer
some harm. Rather, the lawyer will provide "legal information". In
this article, I am offering "legal advice" to readers that I would
give to any client. Email is as dangerous as it is useful. Use email
with caution. Never forget that you will be stuck with what is
written when you push "send".
Darren Williams is a Barrister and Solicitor (Lawyer) specializing in Admiralty Law, which has jurisdiction over maritime matters. Darren has worked extensively on the water as well as in the courtroom. He is a Barrister & Solicitor based out of Victoria, British Columbia, Canada, practicing at the Law Firm of "Williams & Company".
On this webpage, he brings us timely and relevant articles on the legal aspects of being a Marine Engineer in today's world. Although the articles have a predominately Canadian flavour, we are sure you will find his legal point of view enlightening where ever you ship sails. Darren has also published other legal articles on general admiralty law, view them all at the Williams & Company website. You can reach Darren for question or comment by phone at 250-478-9928 or by email.