Category Archives: Research & Trends

bills of lading expert witness

Bills of Lading

For hundreds of years, before modern means of communication, ship captains were sent overseas to trade with merchants in other countries. Initially a ship would show up at a particular harbor and the crew would announce that they were ready to receive cargo for another port. For example when the Dutch started trading with Indonesia in the early 1600’s, a ship would drop anchor near one of the Spice Islands and offered to buy pepper and other local wares. In the early days a ship captain would pay cash for the goods and then load them on board. Once the cargo holds were full, or after the captain had ran out of money, the ship set sail for the return trip -for example to Amsterdam- where the goods would be sold for a handsome profit.

Later on, after trade had developed on a regular basis and after trading houses had set up shop overseas, a captain would issue a B/L to a local merchant for the goods received. The local merchant would take the B/L, plus his draft, to the local agent of the trading house and exchange his B/L + draft for cash. The trading house would send the B/L to the ultimate overseas buyer, who could claim the goods once the ship arrived. Sometimes it would take the ship a year or more to return to its homeport. Even 350 years ago, a year was a long time to sit on a B/L. Therefore the overseas buyer often resold the goods to somebody else by endorsing the B/L on the back, or he used the B/L as collateral to borrow funds from an international trading bank. In essence the B/L represented symbolic ownership of the actual goods. It is for that reason that a B/L is sometimes called “the key to a floating warehouse”.

While in the old days the B/L would usually arrive before the ship, nowadays the ship often arrives before the B/L has made its way through the banking system. This creates problems, since the captain is only allowed to deliver the cargo against presentation of an original B/L. If the “to order” B/L is not available and the captain delivers the cargo without it, and later on a genuine B/L holder shows up, the ship owner is legally obliged to indemnify the B/L holder for the full value of the cargo. For example, a very large crude oil tanker’s -based on the delivered (CIF) value- can amount to $200,000,000; all represented by a simple piece of paper.

If a tanker or bulk carrier captain shows up in the dead of night at some terminal, especially a public one, there are very few clues as to who will be the proper receiver if no original B/L has been presented. Ship owners are not clairvoyants and if no original B/L is presented, they should not have to bear the responsibility of mis-delivery of the goods. The cargo may have been bought and sold many times during the voyage without the ship owner knowing who the ultimate B/L holder is.

Some people labor under the mistaken belief that a Letter of Indemnity (LoI) will protect a carrier against mis-delivery w/o having received an original B/L. Even though many LoI forms are based on wording provided by Protection and Insurance (P&I) companies, they do not provide coverage. Without an iron-clad bank guarantee, such as a Standby L/C, a LoI is not worth the paper it is written on.

In the airline industry planes almost always arrive before the B/L does. However, there is no need to produce an original B/L, because airlines issue an Air Waybill, instead of an “to order” B/L (a document of title).

The difference between an “to order” B/L and a Waybill is that the latter one is non-negotiable. It is just a receipt and a contract of carriage and not a document of title. It cannot be traded to somebody else. When a Waybill is made out to a particular consignee, all the carrier has to do is verify the identity of the consignee and the goods will be delivered. Upon proper identification, the carrier no longer bears responsibility for the value of the goods; other than perhaps a claim for damage or shortage. This is in stark contrast to the risk an ocean carrier runs when they deliver the cargo without presentation of the “order” B/L.

A B/L with the following characteristics is a Waybill:

  • When the B/L does not contain the words: “to order” or similar language
  • When a B/L -before it is signed- is clearly marked: NON NEGOTIABLE
  • A Straight or Named B/L is kind of a hybrid between an “to order” B/L and a Waybill

There is no longer a strict need for banks to require “to order” B/Ls. As mentioned above, almost without exception all airfreight cargoes are shipped on Air Waybills that are not documents of title. A bank may still require to be named as Waybill consignee, so an opener of an L/C does not run off with the goods by just identifying him or herself to the carrier. However, banks are extremely conservative when it comes to issuing a L/C. Some banks may have suffered losses from forged documents, but there are very few cases where a bank lost money because of Waybills instead of “to order” B/Ls.

Some people object to Waybills because they are non-negotiable and as such are NOT subject to the Hague or Hague-Visby Rules. However, it is very easy to have Waybills covered by the Hague-Visby Rules by simply stating so in the contract of carriage.

Crime Scene Video

Crime Scene Video-Exporting VS Screen Capture from CCTV Systems

There are more digital video file varieties in surveillance video than any other form of digital video. The reason for this is because each manufacturer programs their own proprietary digital video format in order to keep their CCTV video recordings secure. When a crime has been committed and caught on video, the video forensic expert must decide the best way to acquire that proprietary video so that it can be used as evidence in court.

Most CCTV systems have export features. Video and images can be removed from the CCTV system easily and securely.  This exporting feature is not always the best method from a forensic perspective. Exporting video from the CCTV surveillance system often compresses the digital video file too much for the video forensic expert to enhance. In order to enhance a portion of surveillance video the video forensic expert must start with the highest quality possible.

I have found through experimenting that screen capture programs like Camtasia can create digital video exhibits of much higher quality than many CCTV surveillance systems. Lately, for every case I investigate that requires digital video enhancement or clarification, I use both the CCTV system export (usually an AVI file format) as well as a screen capture from Camtasia to compare the quality.

Most law enforcement authorities use a screen capture method because it is faster at the scene of the crime to capture the video evidence instead of exporting.

I often realize that the compression that the proprietary player exports is not suitable for forensic examination and clarification.  The system export resolution and bit rate are too low for a video forensic enhancement starting point.

On the other hand, I can set my screen capture specifications much higher for resolution and bit rate when recording the same series of events on the CCTV system video monitor.  Camtasia has an HD option for exporting that dramatically increases the bit rate and data rate providing a much better starting point for enhancement and clarification. Because I have both the export and screen capture videos, there is no doubt about chain of custody and process documentation for my forensic report.

I will be creating a series of videos in the near future using Adobe Premiere Pro for video enhancement and clarification using both methods to further exemplify the necessity for both methods of evidence gathering.

The Computer Document Metadata Challenge Is On!

Metadata, or the data behind electronically compiled data, lurks in every electronic document and has created some interesting challenges that attorneys, law firms, judges, and legal ethicists as the profession seeks to keep pace with technology.    Even experienced attorneys are well served by consulting with a metadata expert early in the litigation process to assist with discovery and serve as an expert witness should the need arise.

The definition of metadata differs depending on how technical the definer, but an over-simplified treatment of the term includes not only information automatically attached to documents by software systems (such as time stamps), but also user created data that is hidden from obvious glance (such as track-changes, comments, or other notations embedded into the document).

For a full understanding of metadata, consult this well written and informative article on the subject from Bloomberg Law Reports: A White Paper on Metadata

While automatic metadata can reveal a history of a document that may be relevant to legal professionals, it is hidden user data that presents interesting challenges to unwary attorneys and law firms representing parties with important information contained in electronic documents.  Whether concerned about issues of attorney / client confidentiality or conducting a thorough pre-litigation discovery process, legal professionals must become increasingly familiar with metadata in order to avoid costly errors.

Metadata and Confidentiality

The nature of metadata makes it difficult to detect, leaving firms, attorneys, and clients susceptible to inadvertent leaks of confidential information.  As we witnessed in former CIA Director Petraeus’ embarrassing fall from grace, investigators have the capability of tracking even carefully concealed hidden data.  Although Petraeus and his mistress Paula Broadwell carefully covered their indiscretion with false email accounts and unsent documents, FBI investigators tracked the hidden metadata to reveal communications both parties thought were well hidden.

If the director of the Central Intelligence Agency can be exposed by careful digging through data he did not know exposed him, imagine, then how easy it is for attorneys and clients to overlook the procedures necessary to hiding communications from metadata detection.  Attorneys and clients who do not take proper steps to redact and protect confidential information in track changes, pdf conversions, or confidential email accounts leave themselves vulnerable to exposing privileged communications to opposing counsel, and, in the case of lawyers and firms, the ethical punishments associated with this type of carelessness.

The expansive reach of metadata detection is still not properly understood by members of the legal profession, and, as such, neither are the procedures necessary to protect the unwilling dissemination of privileged information.  Although metadata is sometimes difficult to keep track of, careful attention to redaction procedures should be able to protect confidential information – leaving members of the legal profession without legitimate cause for accidental violation of attorney/client privilege caused by missed metadata review.  Attorneys and law firms need to adjust to the challenges presented by electronic documentation, and take the steps to educate themselves about metadata in order to prevent unintentional breach of attorney client privilege.

Metadata in Litigation

Modern litigation relies extensively on the discovery and analysis of a variety of electronic documents that compile, explain, dissect, disseminate, and manipulate all sorts of data that may be relevant to the issues presented in the lawsuit.  Lawsuits, particularly large scale suits involving corporations, will require parties to sort through thousands of electronic documents including emails, word files, excel spreadsheets, and calendars that contain information that may be pertinent to the issue at the center of the suit.  As electronic documentation becomes more diverse, it becomes increasingly difficult to conduct discovery that encompasses all the information relevant to the case.

Just as tedious as carefully identifying and redacting all the information contained in metadata is the task of finding it in the data provided by opposing counsel.  The purpose of discovery in litigation is to sort through all the potentially important documents to find relevant pieces of information to build an argument, and if attorneys do not find a way to identify information contained in metadata they may miss a critical element to their case and expose themselves to malpractice accusations from unsatisfied clients.  Just as ignorance of metadata is not an excuse for breach of confidentiality, it is similarly unconvincing as a reason for failing to find information important to a lawsuit.

As attorneys and firms are faced with increasingly high volumes of electronic documents to analyze during the discovery phase, they must be able to identify the potential for critical information contained in metadata in order to ensure their review does not overlook something important to the case. Pre-discovery discussions about the reasonable production of metadata by both parties, and an awareness of what types of documents may contain relevant metadata can be critical to conducting a sufficiently thorough discovery review.

Whether creating confidentiality or e-discovery concerns, the rise of metadata can give attorneys and law firms additional headaches not previously faced by the legal profession.  Although the vast majority of metadata is meaningless to parties involved in litigation and to attorney/client communications, every large collection of electronic documents contains potentially relevant information hidden in metadata that needs to be accounted for.  As attorneys and law firms adjust to electronic compilation, storage, and dissemination of data, their technical acumen might be just as critical as their legal ability.  Metadata professionals and expert witnesses are available to assist when attorneys and law firms struggle with an issue present in almost every modern lawsuit.