What Does a Maritime Expert Witness Do? A Master Mariner Explains

Most attorneys meet their first maritime case with a deadline already running. A deckhand gets hurt on a towboat, a ferry hits a pier, a rental jet ski runs down a swimmer, and someone at the firm says, "We need a captain."

That instinct is right as far as it goes. But a license alone will not carry a case. What you need is someone who can explain to a judge or jury what a careful mariner would have done in that situation, show where that standard comes from, and still be standing after opposing counsel spends a full day trying to take the opinion apart.

The question under every maritime case

Strip away the pleadings and most maritime cases ask a version of the same thing. Did the people running this vessel do what a reasonably prudent mariner would have done?

The law supplies the frame: the Jones Act, unseaworthiness, the rules of the road, limitation of liability. The law does not tell a jury what a chief mate checks before sending two deckhands out on a wet barge at night, or how a pilot and master are supposed to split the work on a tight approach. Most people in a courtroom have never stood a watch. The expert's job is to fill that gap with facts, not adjectives.

What I do on a case

The work is less dramatic than people expect. Most of it happens at a desk.

First, I read everything. Deck and engine logs, the bell book, the vessel's safety management system or company procedures, training records, crew lists and licenses, the Coast Guard report, photographs, AIS data, and every statement taken. On a big casualty that can run to thousands of pages. Skipping any of it is how experts get embarrassed at deposition.

Second, I build a timeline. Not the one in the complaint. The one the records support, minute by minute where the data allows. Gaps in the timeline are often more telling than anything in it. A log that goes quiet for two hours on the night of an accident says something.

Third, I identify the standard. That comes from several places at once: federal regulations, international conventions like SOLAS and the ISM Code, Coast Guard guidance, recognized industry references, and the company's own written procedures. The company manual is often the most useful document in the file. It is the standard the company set for itself, in its own words.

Fourth, I compare what happened with what should have happened, and I write it down in a way a juror can follow. If an opinion cannot be explained to someone who has never been on a ship, it probably is not a good opinion.

What a maritime expert should not do

This part matters as much as the rest.

An operations expert should not give legal conclusions. Whether a regulation was violated in the legal sense is for the court. I can explain what the regulation requires and what the records show. The judge decides what that means.

An operations expert should also stay inside his field. I am a master mariner and a former pilot. I give opinions on navigation, seamanship, vessel operations, crew training and supervision, and the custom and practice of the industry. Medical causation, metallurgy, and naval architecture belong to other experts, and a good case usually has them.

And an expert should not be an advocate. The fastest way to lose a judge is to sound like the lawyer who hired you. Opinions that admit what the other side got right tend to hold up better on the points that matter.

When to bring an expert in

Earlier than most firms do.

A maritime expert who comes in during the first few months can tell you which records to ask for before they are lost. Voyage data recorders can be overwritten. Bridge audio gets recorded over. Training files have a way of being "reorganized." Knowing to ask for the right thing in the first request saves months later.

Many attorneys start with a consulting role. Under Federal Rule of Civil Procedure 26(b)(4)(D), the work of a consulting expert who will not testify is generally protected from discovery. That gives you a candid early read on the vessel side of the case. If the case needs testimony later, the engagement can change.

What to look for when you choose one

A few things separate useful maritime experts from the rest.

• Real time in the job. Licenses matter, but so does the work. Ask what he actually did, on what kind of vessel, and for how long.
• The right kind of water. Ocean shipping and inland towing are different trades with different rules. Make sure the experience matches the case, or that the expert can explain clearly why his background still applies.
• Writing. Ask for a redacted sample report. If you cannot follow it, a jury will not either.
• Testimony history. Every testifying expert has to disclose four years of trial and deposition testimony under Rule 26. Ask for it, and ask how his opinions have been treated by courts.
• Honesty about scope. An expert who tells you what he will not testify about is worth more than one who says yes to everything.

The short version

A maritime expert witness explains the standard of care on the water and measures the facts against it. Good ones spend most of their time in the records, write plainly, and know where their expertise ends. If you are not sure whether a case needs one, a short call with an experienced mariner will usually tell you.

About the author

Captain Mitchell S. Stoller is a Master Mariner Unlimited, former Exxon tanker master, and former Los Angeles Harbor pilot. About Captain Stoller