5.22 In responding to the concerns of ICS and others, the delegation of the United States stated the following:
.1 With respect to the ownership of the data captured by a VDR, the United States did not see that this data would be treated any differently than data retained in other storage media on the ship, such as ECDIS, a course recorder or even an engine order log. Prior to a casualty, the shipowner would have ownership and some degree of control over access by others. But following a casualty, that right would be subject to the jurisdictional claims and investigatory processes of countries seeking to conduct an investigation. This would be the flag State, or the coastal State in whose waters the casualty took place, or both. In the opinion of the United States, a practical distinction should be made between legal ownership of the hardware, software and data and the "right of access" to that data by legally competent authorities, and furthermore, that "rights of access", in the final analysis, be governed by the laws of the States claiming jurisdiction over a given incident or a given vessel, rather than by any criteria developed by the Organization; and
.2 With respect to the obligation of the shipowner to recover the VDR following an incident, the United States did not believe that a carriage requirement under SOLAS V would impose or imply any special legal obligation on the part of the Company to retrieve the recorder in the event of a casualty or sinking. Certainly, the co-operation of the Company would be expected if a retrieval effort were undertaken, for example to aid in the location of the device and in downloading any data.
5.23 The delegation of the United States further stated that these issues were certainly not unique to the maritime industry. The aviation community has also had to confront these matters. The United States had reviewed the ICAO guidance on flight recorders, and also compared the IMO guidance on VDRS which already existed in resolution A.849(20) - Code for the investigations of Marine Casualties and Incidents, and both the ICAO and IMO guidance stress two things:
.1 the need for co-operation among all those involved and
.2 the need to have the recorder and the recorded information handled only by qualified and authorized personnel.
