PRLog - March 13, 2014 - AUCKLAND, New Zealand -- 1: Classique was heading to the Western side of Motuihe Island. Seaway ll was heading from Kennedy Point wharf on Waiheke Island, via the Sth of Motuihe Island, to the North of Browns Island prior to then heading for Auckland.
2: The incident occurred at about 0.25 nmiles Nth East of Browns Island.
3: The purpose of my investigation was to examine the circumstances as shown by the evidence, apply consideration of the appropriate ‘collision’
4: Classique was travelling at about 7kts & Seaway at about 15.5 kts – both vessels were keeping a proper lookout.
5: No plotting of positions on charts, paper or electronic, was being carried out by either vessel - both were navigating by eye using their familiarity & experience in the area.
6: The weather was fine with light east breeze, high tide, plenty of clear water & few other vessels in the area. The only land nearby was Browns Island & its Beacon.
7: The argument of Seaway was that Classique was a crossing vessel with risk of collision & therefore Classique should give way to Seaway.
8: The argument of Classique was that she was a crossing vessel that would pass safely ahead of Seaway on the courses they were both on with no risk of collision, so no course alteration by Classique was required - that Seaway did not maintain course & speed, which if Seaway was concerned about possible risk of collision (Rule 22.7.1) was the requirement under Part 22.17 - that Seaway thereby contravened 22.17 & caused the close quarters situation to develop.
9: It was agreed that a crossing situation existed but Classique argued that the ‘risk of collision’ did not exist, therefore the rules did not become active & she maintained course & speed.
10: Seaway argued that a risk of collision existed & that she was the stand on vessel required to maintain course & speed.
11: Either way, they both say they maintained course & speed, albeit for different reasons. An important part of my investigation was therefore to establish whether the crossing rule was applicable ie. the vessels were clearly in a crossing situation but were they crossing with risk of collision ?
12: My analysis established that it was possible to use the photographs taken by Seaway to fix good positions on a chart, thereby establishing the position of Seaway at the time the photos were taken.
13: Using the photos it was therefore possible for me to reverse-engineer the development of the incident.
14: My analysis showed that had both vessels maintained the course they were on from the photo 1 position, Classique would have safely crossed ahead of Seaway at a distance of about 0.6 nmiles (1100 mtrs) & this is an amply safe distance in the area. The closest point of approach would have been about 0.065 nmiles (120 mtrs) with Classique passing well clear to starboard of Seaway.
15: My analysis showed therefore, in my opinion beyond reasonable doubt, that the reason a close quarters situation occurred was that Seaway incrementally altered course to starboard, in contravention of the rules & also in contravention of good practice.
16: Interpretations of the rules are many & Mr Bolton quoted some of them using Farwell. My qualifications do not include a legal study of such law, however I quoted one surprisingly similar case from the Admiralty Court repeated here with the ship’s name changed to Seaway ll.
17: “The Seaway ll is not entitled to invoke the crossing rule when she herself creates the situation, in which it would theoretically apply, by her own negligent action.”
18: Seaway’s incremental altering course to starboard in this situation is in my opinion , “her own negligent action.”
19: Considerable Court time was devoted to debating the actual distance of passing, with ranges between 25 & 80 mtrs being used by the parties. The real or perceived danger is very dependant on the relative courses & aspects of the vessels, rather than the absolute distance & is not of significance to the result.
20: Time was devoted to debating the use of a small aerosol horn carried by Seaway & whether or not it was audible at the ranges between the 2 vessels – the ship’s complying whistle was not functional. The significant issue is the manner of use of the horn & the timing of giving blasts which according to Seaway’s evidence was at 80 mtrs off. This is in my opinion an ineffective range & of little use in avoiding a potential collision as at their closing speeds that would take 7 seconds to impact. In addition, although Seaway is very manoeuvrable, Classique is a heavy, deep keeled yacht, not manoeuvrable in that time.
21: Regarding the issue of Seaway’s option of turning to port. It was agreed she had not turned to port. The rule quoted, specifies the behaviour in a collision risk situation for the stand-on vessel “… if circumstances allow, it must not alter course for a vessel on its own port side” However my analysis shows that Classique was ahead & moving to starboard, not on the port side of Seaway in the critical last moments when these rules apply – therefore this aspect of the rule is not applicable. Seaway at the last moment in this case could not turn starboard into Classique but must turn to port or stop. Classique would have to turn away to port to avoid collision (or accelerate ahead) In the analysis I show that had Seaway maintained course, Classique would be ahead, crossing to the starboard side at a distance of about 1100 mtrs & neither vessel would need to alter course or speed.
22: Seaway could legally turn to port as she usually does in that area. The AIS plots of a typical voyage show the general pattern of curving to port around Browns Island & it is reasonable & seamanlike of other vessels to consider that as the likely behaviour of Seaway when assessing risk of collision or other matters that involve a possible change of course by one’s own vessel. It is a common as saying a Devonport- Auckland ferry is likely to be wanting to travel from Devonport to Auckland & taking that into account. This is not ignoring the rules as the Court was wrongly advised, rather it is implementing them wisely & correctly & making a broad assessment of the risk elements in a maritime situation.
23: My investigation of this matter brings me to the conclusion that MNZ & their expert witness did not complete an adequately professional standard investigation of this matter. In my opinion, & largely as a result of the inaccurate advice given to the Court, the wrong conclusion to this matter was reached.
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