Decision ID: 002117

In October 2007 the 1992 Fund Executive Committee recalled that in connection with the legal action by the Spanish State against the American Bureau of Shipping (ABS) in the Federal Court of first instance in New York, ABS had filed a motion seeking sanctions for the State’s failure to produce email communications as ordered by the Court and had requested dismissal of the action or certain parts of it, or a ruling that at trial an adverse inference should be drawn against the State for its failure to produce e-mails and that ABS had requested, in any event, recovery of its costs and fees associated with the dispute over the production of the e-mails. It was noted that in June 2007 the Court had awarded ABS its legal fees incurred in seeking to compel the production of the e-mails but did not dismiss the action by the Spanish State, nor any part thereof, finding that although the Spanish State had a duty to preserve evidence and had breached that duty,there was no evidence that the State’s actions were wilful, intentional or taken in bad faith or the result of gross negligence. It was noted that the Court had not accepted ABS’ position that negative inferences should be drawn from the failure of the Spanish State to produce the e-mails, finding that ABS had not proved that the missing e-mails were relevant to the case, but had ordered the Spanish State to continue its search for the e-mail records and, if found, to produce them to ABS. It was noted that ABS had filed a motion asking the judge to partially reconsider his decision, which had been opposed by the Spanish State.