Points of Law – The Judge’s omissions

 

1 : That ferries on regular runs do have a bearing on risk assessment

2 : That I was not obliged at .5 nm distance to act as Give-way vessel in a harbour situation where the ferry would normally have turned at Browns Island from whence I’d come, crossing safely astern Stbd/Stbd

3 : That the ferry as Stand-on vessel was not to have turned towards me creating a reduction in safe passing clearance. Rule 22.17

4 : That the ferry was to have carried out his normal course maneuvers i.e. turn at Browns Is & not use R22.17.2b as reason for continuing towards me or being prevented from turning to its port.

5 : That the ferry was to have had a complying horn, using it when doubt first arose in ample time rather than use his camera. R22.33b & Appendix 3, also R22.34.4

6 : That he violated R22.8.1,2,3,4, by not acting at a  prudent distance off thereby creating an unnecessary situation with his superior speed.

7 : That Maritime NZ did not publish an incident report & notify Transport Accident Investigation Commission first.

The above are serious omissions which need clarification for all harbour users where ferries are on regular runs – further more….

When it comes to MNZ’s expert witness denying of a basic Navigational practice being taught, then saying there’s a known angle Sky tower to Rangitoto on which he bases his fictional figures but no fixed point to start plotting e.g. at Sth Motuihe & other matters he could’ve been cross-examined on as well as his being more of an advocate for MNZ’s case rather than an unbiased expert – he is not only selectively avoiding the Letter of the Law but ignoring it’s spirit & intent.

The fact that the original dispute between MNZ, others said to be the “Public Interest” & myself wasn’t about a Navigational issue but about my Co-operative Cost Share Crewing Concept, is not considered.

By placing one with no Legal assistance or Representation through such Legal Proceedings  is making a mockery of the foundational tenets of justice –  apart from the cost to the community not only in expenditure of money but in every day Navigational confusion.

The Ferry’s Incident Report is unfeasible

Ferry’s Report of Incident – ” When the yacht was aprx 80 mtrs away, 5 blasts were sounded on the ships whistle. This drew no response even when a further 5 blasts were sounded, by which point collision was imminent & he took evasive action by slowing the ferry right down to allow the yacht to pass across its bow” 

The ferry was traveling at 15.5 knots & would cover the distance of 80 mtrs in 10 seconds.  Each blast is to be about 1 second’s duration (Rule 22.32)  so 2 series of 5 would take 10 sec without the interval for response inbetween - that’s overtime already. The ferry weighs 281 gross tons & has total engine power of 1120 Kw – it would certainly take a few 100 mtrs to slow down as was subsequently revealed. Why was the feasibility of the claim not queried by Maritime NZ at the initial receipt – it appears obviously implausible ?

The Ferry’s errors in Assessment and Management of Collision Regulations

2nd Photo

As the ferry rounded Sth Motuihe the skipper recognised Classique coming out from Browns Island 2 nmiles away & established that Risk of Collision existed because the Relative Bearing to Cqe didn’t appreciably change, therefore with Cqe on its port bow decided that Rule 22.15 applied – “Crossing with Risk of Collision.” Consequently according to Rule 22.17 (1) the ferry would be the Stand-on vessel obliged to keep its course & speed, with Cqe as the Give-way vessel Rule 22.16, directed to take early, substantial action to keep well clear. The ferry continued, its skipper & deckhand observing that the Relative Bearing was virtually unchanging so as they began to gauge how close they were going to pass, a 1st photo was taken followed by a 2nd Photo about 30 seconds later when it appeared to them that Cqe was not taking any avoiding action.  “When Cqe was aprox 80 mtrs away five short blasts were sounded on the ferry’s whistle,  repeated 2 or 3 more times.” Then he said he slowed the ferry right down allowing Cqe to pass ahead estimating the clearance to be close. His written evidence was that the 1st photo was taken at 1st horn blast & the 2nd photo at 2nd blast. The ferry skipper erred in his assessment, management, understanding & application  of -

Rule 22.7  determining (a) Whether Risk of Collision exists by using his Relative Bearings which only are reliable if his vessel is keeping its course.  Prior to the taking of photos the ferry had begun to turn towards Cqe, then as the photos show, the ferry continued to turn towards Cqe between photos 1 & 2 bringing the bearing with him creating the effect of them  appearing to change slightly. (b) That from far away & even at 1 km distant still considered risk existed when Cqe was moving away from the point at which the ferry would round Browns Light,  leaving  clear also the ferry’s earlier 286 course if it went straight ahead.(c) In which case  Rule 22.15 didn’t apply, there being no Risk of Collision therefore Rules 22.16 & 17 didn’t apply there being no Stand-on or Give-way requirement but never the less he violated his requirement to hold his course - as seen in photo 2 where both Cqe & the ferry have both moved up to appear as if there’s been no change in the Relative Bearing whereas if a Compass Bearing had been taken it would’ve been noticeable with Cqe already past the ferry’s bow.

Rule 22.33 was violated by not having a ship’s whistle complying with the audibility & frequency required to be heard at 1 nmile inside a wheelhouse above ambient engine noise (Appendix3). Rule 22.34(4) was also violated by not sounding any signal immediately he had doubt as to the intentions of Cqe, whether sufficient action was being taken etc - 80 mtrs is unrealistically late with no time to have any response & in violation of Rule 22.8 which requires any action to avoid collision to be positive, in ample time, large enough to be readily apparent, not a succession of small alterations of course or speed.

There are no Rules suggesting a camera can replace a valid ships whistle or VHF radio to indicate concern, in the absence of which Classique was to maintain her course & speed allowing the ferry to pass clear astern by a safe margin reduced only by the unseamanlike actions of the ferry skipper who failed to understand that he was obliged to maneuver as expected round Browns Light & signal that intention if he desired by sounding 2 blasts, rather than saying he was prevented by Rule22.17(b) from turning to port.



Colreg Risk Assessment and Risk Management.

From Classique’s point of view, the ferry had turned towards Browns Island from 2 nmiles away  at Sth Motuihe - it would normally round Browns Light at a prudent distance off & head for Auckland. Cqe had proceeded towards Motuihe leaving Browns Light astern (hidden by windscreen post) & the area clear for the ferry to turn into. Special circumstances are created here in that the ferry is on a regular run & recreational boaters give right of way to ferries, not wishing to impede their progress, therefore Cqe had no intention of turning starboard into the expected path of the ferry.  The 1000 mtrs shown in photo1 would be an excessive distance for Colregs to apply – there is no distance given  – out at sea with large ships is very different to a harbour locality with more manoeuvrable craft, therefore  Cqe would not have to avoid crossing ahead of the ferry – in fact the ferry would be expected to turn before it reached Cqe & head in the direction from whence Cqe had come. Further more, prior to photo 1, the ferry had been heading towards a point past the stern of Cqe indicating that if both vessels kept their courses & speed each would pass clear of the other. This would be described as a borderline Head-on/Crossing situation – with the approach angle of 25 deg & the Crossing if there was to be one it would be astern with no risk of collision.

Situational Ambiguity – Collision Regulation interpretation ?

1st Photo

As the ferry rounded Sth Motuihe, the skipper identified Classique 2 nmiles away traveling east out from Browns Light. At the taking of this photo the ferry was about .5 nmiles away (1 kilometre) It shows 22 mtr Classique crossing from port to starboard. The Relative Bearing from the ferry to Cqe was said to be changing only slightly, therefore the skipper had determined that Rule 22.15 applied – Crossing so as to involve risk of collision. In that case the ferry becomes the Stand-on vessel - Rule 22.17, required to maintain its course & speed.  Cqe  being the Give-way vessel - Rule 22.16, is required to keep out of the way & if the circumstances of the case allow, avoid crossing ahead of the ferry, taking early & substantial action to keep well clear.  Normally that would be by turning to starboard but this is where “Circumstances of the case” create Situational Ambiguity  which a Prudent Mariner considers in his Risk Assessment & Management – the crucial point of this case.

Here is an illustrated layout of the area.

Ferry/Classique

The ferry was on a regular run expected to pass Motuihe & Browns enroute  Waiheke to Auckland – at the point of reaching Browns Island, it would’ve turned to its port to head west towards Auckland. Classique was heading from Auck, East towards SW Motuihe. From Nth of Browns Island Classique saw the ferry  3 nmiles away. As Classique left Browns Island astern, the ferry was 2 nm away, changing course at Sth Motuihe to 286T. Ferry traveling at 15.5 knots began approaching at an angle of about 25 degrees – Classique traveling at about 7 kts. Ferry’s 1st photo taken at about .5 nm away as the ferry began altering its course towards Classique reducing the clearance which would have existed if the ferry had kept to its course of 286T.

Did the judge get it wrong ?

On 14th Dec’10, in the Court at Auckland, Judge Davis read out his Decision & Reasons after a 3 day trial brought by Maritime NZ against me in what was purported to be a Close Quarters incident between Classique & a Roll on/Roll off Ferry inbetween the islands of Browns & Motuihe last year. The Charge was Dangerous Use of a Vessel (Sec 65.1. MTA’94) by Failing to Give Way - (Rule 22.15.Crossing Situation)

My first YouTube Video of Classique -11Forgotten Laws

This turned out to be quite an exercise – for the first time, using a Samsung version of a Flip Cam to record the spoken sound  with view & then Powerpoint to make a slide show of  “11 Forgotten Laws” with downloaded background music I liked. Certainly learnt a lot in the process from tutorials to get started & no doubt will get the hang of it gradually – there’s such a scope to extend one’s creative imagination for further endeavour. I thought Classique made a worthy stage for the presentation  of how she came into being 24 years ago from an idea I had 36 years before that – hence “Beware of what you dream about because you might just end up with it !” Try the links below – the first one should have the text of what I was saying  in case you find the video rather indistinct – the next  link should open up the UTube video to play & the last opens up “The 11 Forgotten Laws” individually - let’s know how the video came out &  how it appeals ?

 The 11 Forgotten Laws 

http://www.youtube.com/watch?v=S6J4SysdmTc    

http://bit.ly/TheforgottenLaws

Today, the Emission Trading Scheme has been forced upon NZ

Prime minister John Key with MP Nick Smith appear to be insulated from the horrendous financial damage the majority of our population is now being exposed to. Price rises beginning  today with consequential inflationary pressure will make an investor’s paradise exceeding that of the Muldoon era when we experienced 25% inflation. That’s great if you are in a position to buy assets which will escalate in value via huge  capital gain – but that is not the case for most of our people who are struggling now with day to day survival as we come out of this recession. How our government can be so blind to the stupidity of what it’s doing is absolutely incredible. Their palliative of slightly reduced wages tax, is negated by increasing Goods & Service tax to 15% in Oct esp when that is levied on top the ETS price increases between now & then – all providing no solution to the unproved theoretical Climate Change problem - in fact we’re now being made to pay out of our pockets here so that the worst carbon emitters can continue worldwide. Even all the emissions man might make are  infinitesimal compared with nature’s – eg Iceland’s volcanic eruption & the smoke from bush fires in Australia which cloud our skies. How can wishful planting of trees in NZ ever balance the vast reduction of Amazonal Rain Forests ? Even farmers cows which have been held to blame are actually carbon neutral considering if the grass wasn’t eaten it would harbour bugs/bacteria etc emitting Nitros Oxide far worse than Carbon Dioxide which isn’t the problem we’re told it is anyway. I’ll be interested in any comments readers might have, especially if they can show any way to improve upon this situation ?

NZ’s ETS stupidity

John Key, Prime Minister & MP Nick Smith need to know that NZer’s do not want this ETS scheme imposed on the country – It’s the height of unnecessary stupidity to increase taxes for no financial or climate change advantage whatsoever. The NZ Herald 24th June, carried excellent articles by Garth George & Brian Fallow, being discussed simultaneously by Leighton Smith on News Talk ZB. MP Rodney Hide’s TV panel discussion on TVNZ added further emphasis regarding the damage about to be leashed incrementally as these inflationary costs work their way through our economy restraining our chances of recovery from this recession. If the idea is to increase Stock Market trading opportunities only a small segment of our population will be profiteering to the detriment of the majority, wasting vast resources in the process.