Bolton v Maritime New Zealand

[2012] NZHC 1933

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-000358 [2012] NZHC 1933

MELVILLE BOLTON

Appellant

v

MARITIME NEW ZEALAND

Respondent

Hearing:         30 July 2012

Counsel:         Mr P Eastwood for the Appellant

Mr J G Donkin for the Respondent

Judgment:      3 August 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 3 August 2012 at 12.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

P Eastwood: [email protected]

JG Donkin: [email protected]

BOLTON V MARITIME NEW ZEALAND HC AK CRI 2011-404-000358 [3 August 2012]

[1]      The appellant,  Mr  Bolton,  appeals  a  conviction  entered  against  him  by Judge Davis in the District Court at Auckland on 14 December 2010.  Mr Bolton was convicted of a charge under s 65 of the Maritime Transport Act 1994, of operating a ship, the Classique, in a manner which caused unnecessary danger or risk  to  other  persons.[1]    On  29  August  2011,  Mr Bolton  was  sentenced  by Judge Davis to a fine of $4,000, plus costs of $1,356.

[1] Maritime New Zealand v Bolton DC Auckland CRI 2009-004-020655, 14 December 2010.

[2]      Initially, Mr Bolton appealed against both the conviction and the sentence. When the matter was called before me, Mr Eastwood, appearing for Mr Bolton, advised that the appeal against sentence was not being pursued.  He confirmed that his client was concerned with the fact of conviction, rather than the sentence imposed.

Background Facts

[3]      On 14 March 2009, Mr Bolton and a crewmember, a Ms Shirley, were on board the yacht Classique on the Hauraki Gulf, in an area to the north east of Browns Island.  Classique was heading to an anchorage on the south western side of Motuihe Island.  She was on a course of about 75o (true).

[4]      According  to  a  brochure  produced  in  the  course  of  the  hearing  in  the District Court,  Classique  is  a  New Zealand  designed  and  built  cutter.    She  is approximately 22 metres long; she has a beam of just over 6 metres and she draws approximately 2.5 metres.  She weighs 45 tonnes and she has a single mast.  She also has a 185 horse power Volvo engine.

[5]      It is not in dispute that on the day in question, Classique was under power. She  was  cruising  at  about  seven  knots,  and  she  was  under  the  command  of Mr Bolton.

[6]      The other vessel was the Seaway II.  She is a car passenger ferry operated by SeaLink.  Her base is at Half Moon Bay in the Tamaki River.  The Seaway II is a

catamaran design.  She weighs 400 gross tonnes.  She has two engines in each hull.

Her overall length, with her vehicle ramp down, is 47.9 metres.   She is very manoeuvrable in most conditions.

[7]      The  Seaway II  was  under  the  command  of  a  Captain  Pignéguy.     A Mr Sweetman was also in the wheelhouse.  She had a total of four crew onboard, as well as 16 passengers and six vehicles.  She was travelling at 15.5 knots.

[8]      The weather at the time of the incident was overcast with good visibility. There was a 10 knot easterly wind, and a slight sea.

[9]      The   Seaway II   was   travelling   in   a   westerly   direction   from   near Kennedy’s Point at Waiheke Island, to Wynyard Wharf in Auckland Harbour.  She left Kennedy’s Point on a heading of 256o true.  She maintained that headway until she   reached   a   position   immediately   south   of   the   southernmost   point   of Motuihe Island.      She   then   changed   course   to   steer   286o    true.      It   was

Captain Pignéguy’s intention to remain on the course of 286o  true until the vessel

was north of the transit line between Northern Leading Light and North Head.  The captain was then intending to alter course to port to 264o true.  That course would have taken the vessel westward into Auckland Harbour.

[10]     As Seaway II was heading on her course of 286o  true, Captain Pignéguy observed Classique at approximately 30o off Seaway II’s port bow.  Classique was approximately two nautical miles away.  She was moving from port to starboard, as seen from Seaway II’s perspective.   Captain Pignéguy took a relative bearing of

Classique.

[11]     A relative bearing can be taken very quickly and simply.  It involves lining up the contact vessel with a fixed point on the observer’s own vessel.  The relative bearing of the contact vessel can then be checked.  The relative bearing is the angle between the contact vessel’s heading, and the heading of the observer’s vessel.  If two vessels are approaching each other and the relative bearing between them does not change appreciably, a risk of collision exists.  Any vessel with a constant or nearly constant bearing and a decreasing range is likely to be on a collision course.

[12]     It  was  Captain Pignéguy’s  evidence  that  the  relative  bearing  between Classique  and  Seaway II  did  not  change  as  the  boats  approached  each  other. Initially, it seemed to him and to Mr Sweetman that Classique altered her course slightly to port.  However, this did not appreciably alter the yacht’s relative bearing to Seaway II.

[13]     In Captain Pignéguy’s view, there was a risk of collision if both vessels maintained their respective courses and speeds.  He considered that Seaway II had the right of way — in nautical terms, Seaway II was the “stand on” vessel.  He also considered that it was Classique’s obligation to keep clear, as the “give way” vessel. Captain Pignéguy thought that Classique had two options.  Either she could slow down so that Seaway II could pass clear ahead, or she could turn to starboard, pass Seaway II to port and then turn to port and pass around Seaway II’s stern.

[14]     Captain Pignéguy maintained Seaway II’s course and speed.  As the vessels approached each other, he became increasingly concerned that no steps were being taken on Classique.  He sounded five short blasts on an air horn.  He repeated that action a few moments later.   There was no acknowledgement from Classique to either series of signals.

[15]     Captain Pignéguy  thought  that  there  was  a  distinct  risk  of  collision. Because he was unclear as to what action, if any, Classique was going to take, he decided to slow the Seaway II.  He put Seaway II’s engines into reverse.  Seaway II slowed until she was almost stopped.  Classique then passed immediately in front of Seaway II’s bow moving from port to starboard.  Captain Pignéguy estimated the distance between the two vessels when they crossed at approximately 20 metres. Mr Sweetman, who was acting as a lookout for Captain Pignéguy, estimated that the distance was some 10 metres.  An expert called by the respondent, a Mr Young, estimated that the distance was about 25 metres.   Mr Bolton estimated that the distance was 80 metres.

[16]     As Classique passed immediately in front of Seaway II, witnesses observed a cloud of dense dark smoke coming out of the vessel’s exhaust.  This suggested that  the  helmsperson  aboard  the  yacht  had  accelerated,  presumably  to  clear

Seaway II as quickly as possible.  A woman who appeared to be standing at the helm on Classique waved to Seaway II.

[17]     The  incident  happened  at  approximately  10.26  am.     Seaway II  was approximately in position 36o  49.2’S; 174o  54.0’E.  The Browns Island light was observed bearing 20o  true, at a radar range of approximately 0.25 nautical miles (460 metres).

[18]     Captain Pignéguy took three photographs of the incident as it unfolded.

[19]     On  16  March  2009,  Captain Pignéguy  filed  an  incident  report  with Maritime New Zealand.  A Mr Howden, who is a maritime investigator employed by  Maritime  New Zealand,  was  appointed  to  investigate  the  incident.     He interviewed Mr Bolton on 1 April 2009.  He also interviewed Ms Shirley.

District Court decision

[20]     The matter came to trial on 6, 7 and 9 December 2010.  Judge Davis issued a reserved decision on 14 December 2010.

[21]     Judge Davis started by noting the charges then filed against Mr Bolton.  He noted that Mr Bolton was charged with failing to observe r 22.15 of the Maritime Rules by failing to avoid a crossing situation, and secondly, that Mr Bolton was charged with failing to observe r 22.16 of the Maritime Rules by failing to give way.

[22]     The Judge then discussed the factual background.  He referred to the onus and standard of proof in criminal cases, and then considered the Maritime Rules in some detail.   He referred specifically to rr 22.7, 22.8, 22.15, 22.16 and 22.17. Applying those rules, he considered that, in the situation that presented itself, the onus was on Seaway II to maintain its course and speed.  Once it became apparent to Seaway II, as the “stand on” vessel, that the Classique, as the “give way” vessel, was not going to take action to give way, then Seaway II as the stand on vessel

could take action to avoid collision, but under no circumstances could it alter its course to port.

[23]     He noted that there was no dispute that on the day in question, there was no other sea traffic in the immediate vicinity of either the Seaway II or the Classique, and that if an alteration in course was required to be undertaken, then that alteration could have been made in good time and in substantial fashion.  This would have avoided the vessels coming into close proximity.  The Judge considered that if a crossing situation existed, the onus was on the Classique to keep out of the way of the Seaway II.  He further found that if a crossing situation existed, the onus was on Classique to take early and substantial action to keep well clear of Seaway II.

[24]     Judge Davis then referred to the various defences presented by Mr Bolton. He noted Mr Bolton’s first argument that there was no crossing situation, and that the Maritime Rules did not apply.   The Judge noted Mr Young’s report.   It was Mr Young’s  view  that  a  crossing  situation  existed,  and  that  the  onus  was  on Mr Bolton to keep out of the way of Seaway II in accordance with the relevant maritime safety rules.

[25]     The Judge then discussed Mr Bolton’s second ground of defence, namely, that he maintained his course and speed, because he anticipated that the Seaway II would alter its course to port.  Mr Bolton said that in his experience, this was the ferry’s usual practice.  The Judge considered that there was no evidence presented to him, other than Mr Bolton’s own assertions, in this regard.   He rejected the suggestion that there was a custom or body of practice that enabled skippers of vessels to ignore the Maritime Rules.  In this regard, he referred to r 22.7(3).

[26]     The Judge then referred to charts that Mr Bolton had produced, showing what he contended was Seaway II’s course.  Mr Bolton argued that Seaway II had altered its course to starboard, thus creating the risk of collision.   He noted that Mr Young disputed the authenticity of Mr Bolton’s plots, because there was no fixed point that could be identified from which either vessel had started.  The Judge took the view that this issue was a “red herring”, and that the real issue for the Court to determine was whether the Classique as a vessel on the port side of

Seaway II, was in a crossing situation, and therefore required to take action to keep out of Seaway II’s way.  In his view, the answer to this question was unequivocally yes.    He  considered  that  photographs  taken  by  Captain Pignéguy quite  clearly demonstrated that a crossing situation was developing, and that the onus was on Mr Bolton to keep out of the way in accordance with the Maritime Rules.

[27]     Judge Davis considered that the primary obligation rested on Mr Bolton as skipper of the Classique to keep out of the way of Seaway II, and that he did not do so.  The Judge also recorded his view that Mr Bolton was a thoroughly unreliable witness, who appeared to consider that the Maritime Rules did not apply to him. He  noted  the  suggestion  made  by  Mr Bolton  that  there  was  a  conspiracy  by members in the maritime fraternity to bring the prosecution against him, notwithstanding  that  witnesses  for  the  prosecution  did  not  know  either  of  the alleged conspirators. The Judge rejected any suggestion of conspiracy.  He took the view  that  the  evidence  was  clear  and  unequivocal.    He  found  that  a  crossing situation existed, and that the onus was on Mr Bolton to have kept out of the way. He  noted  that  he  did  not  do  so,  and  recorded  that  in  his  view,  Mr Bolton deliberately chose  to  ignore  the  Maritime  Rules  in  breach  of  proper  maritime practice and etiquette.

[28]     Accordingly, the Judge entered a conviction in relation to the lead charge. Two alternate charges were dismissed.

Submissions/Analysis

[29]     Mr Eastwood, appearing for the appellant, attacked Judge Davis’ decision

on seven grounds. There was some overlap between them.  I deal with each in turn.

The risk of collision was created by Seaway II changing course

[30]     Mr   Eastwood   submitted   that   the   plots   prepared   by   Mr Bolton,   in conjunction  with  Captain Pignéguy’s  photographs  and  Mr Young’s  calculations, established that Seaway II had changed its course by turning 11o  to starboard and that Captain Pignéguy thereby created the risk of collision.

[31]      Had Seaway II created the situation, she would not have been entitled to invoke the crossing rules.[2]   Nor would she have been entitled, given that Classique was approaching, to put herself deliberately on a crossing course in the position of the stand on vessel, so as to force Classique to keep out of the way.[3]

[2] The “Spyros” [1953] 1 Lloyd’s Rep 501 at 509.

[3] The “Tojo Maru” [1968] 1 Lloyd’s Rep 365 at 377.

[32]     Mr Eastwood’s submission was  based on Mr Bolton’s assertion that the

Seaway II changed course by 11o to starboard.

[33]     I  do  not  accept  Mr Bolton’s  assertion.    It  is  contrary  to  the  available evidence.

(a)      When Mr Bolton was cross-examining Captain Pignéguy, he put it to him that he had turned Seaway II to starboard, into Classique’s path. Captain Pignéguy denied that.   Judge Davis then intervened.   He asked Captain Pignéguy a series of questions direct.  The following exchange occurred:

QOn a 286 degrees true course Mr Bolton says that you turned either incrementally, or perhaps even in one sharp turn, a further 11 degrees to your starboard and put yourself directly in his line, shall we say?

AAbsolutely  not,  sir.    There’d  be  no  reason  to  do  that unless  I  wanted  to  put  my  vessel  at  risk  and  my certificate.

(b)Mr Bolton, who appeared for himself at the hearing, did not put his thesis   to   Mr   Sweetman.      There   was,   however,   nothing   in Mr Sweetman’s   evidence   suggesting   that   Seaway II   turned   to starboard from its course of 286o true.

(c)      The expert, Mr Young, considered the possibility that Seaway II had turned to starboard.  He obtained the original photographs taken by Captain Pignéguy.     He  identified  distinctive  landmarks  in  the background to those photographs.  He used those landmarks to plot

the   heading   of   Seaway II   on   the   first   photograph   taken   by

Captain Pignéguy,  when  Classique  was  still  some  distance  from Seaway II.  He used the bow ramp on the vessel as a heading line. He then repeated this exercise on the third photograph taken immediately after Classique had crossed in front of Seaway II.  He estimated that Seaway II had turned approximately 2.4o to starboard between the first photograph and the third photograph.   Mr Young considered that it was difficult for any vessel to steer and maintain an exact course, and that a variation of 2–3o  either way on the part of Seaway II was an acceptable and natural variation, which did not contravene  the  relevant  requirements  contained  in  the  Maritime Rules.

(d)This evidence tied in with Captain Pignéguy’s evidence.   He gave evidence that it is almost impossible to hand steer a vessel with an accuracy of less than one degree, and that there will be a variation of

2–3o  either side of a vessel’s intended heading, even though it is

being steered to that heading.

(e)      Mr Bolton’s theory is inconsistent with the evidential interview that he gave to Mr Howden.   On three separate occasions during the course  of  the  interview,  Mr Bolton  was  asked  whether  or  not Seaway II altered course.  He said that he did not think at the time that  it  had  altered  course,  and  that  Seaway II  had  maintained  a straight course.

[34]     I  have  considered  the  photographs  taken  by  Captain Pignéguy  and  the submission made by Mr Eastwood about them.  They were all taken from the same position,  but  they  were  not  all  taken  in  the  same  direction.    The  first  two photographs  were  taken  looking  straight  ahead  over  Seaway II’s  vehicle  ramp. Classique was clearly on Seaway II’s port side.   The third photograph was taken looking to starboard.  It showed Classique shortly after she has crossed Seaway II’s bow in a port to starboard direction.   While the land mass of Rangitoto Island changes  in  location  between  the  photographs,  that  is  largely  because  the photographs  are  taken  in  different  directions.     There  is  nothing  to  support

Mr Bolton’s assertion that Captain Pignéguy altered the course of Seaway II by turning 11o to starboard.  Rather, it is patently clear from the photographs, and from the evidence, that Classique was on Seaway II’s port side and that Seaway II was on Classique’s starboard side.

Seaway II made the decision to create a risk of collision situation long before a crossing situation arose, and took photographs in anticipation

[35]     This submission overlaps with the first submission, and once again, I do not accept  it.     There  is  simply  no  evidence  to  support  it.    As  I  have  noted, Captain Pignéguy took three photographs.   The first photograph was taken some time before the risk of collision became imminent.   The second photograph was taken a little later, as the distance between the two vessels closed.   The third photograph  was  taken  immediately  after  Classique  had  passed  in  front  of Seaway II’s bow.  At that stage, Seaway II was virtually stopped.  There is nothing to suggest that the taking of the photographs interfered in any way at all with the proper performance by Captain Pignéguy of his duties as master of Seaway II.

Seaway II  was  travelling  at  over  twice  the  speed  of  Classique,  and  Seaway II

therefore dictated the ultimate relationship between the vessels

[36]     Once again, I do not accept that submission.  It is contrary to the Maritime Rules, which I discuss below.  Seaway II was the faster vessel at the time, but that is irrelevant.

Captain Pignéguy failed to sound Seaway II’s horn, but rather concentrated on his photography

[37]     This submission is spurious.  Captain Pignéguy did sound a horn.  He was obliged to do so in terms of the Maritime Rules.  Rule 22.34 provides that where vessels are in sight of one another, and there is doubt whether sufficient action has been taken by one of the vessels to avoid a collision, the vessel in doubt must immediately indicate such doubt by sounding at least five short and rapid blasts on its horn.

Seaway II failed to provide recordings of its position, and Captain Pignéguy relied on his own reckoning

[38]     Once again, there is no evidential support for that proposition, and in any event, it is irrelevant.  What is in issue is which vessel was obliged to give way to the other pursuant to the Maritime Rules, and whether it did so in accordance with those Rules.

Procedural defects

[39]     It was asserted that s 60 of the Maritime Transport Act 1994 placed a duty on   Maritime   New Zealand   to   notify   the   Transport   Accident   Investigation Commission of the incident, but that the Transport Accident Investigation Commission was not notified.

[40]     Again, I do not accept that submission.  First, there is no positive evidence to suggest that such notification was not given.   Mr Howden was asked various questions by Mr Bolton about the reports which had been prepared.   He was not asked specifically whether or not he notified the incident to the Transport Accident Investigation Commission.  Secondly, and in any event, the issue is irrelevant.  The Maritime  Safety Authority was  not  on  trial  for  failing  to  notify the Transport Accident Investigation Commission of the incident.

Special circumstances

[41]     Rule 22.40(2) provides as follows:

22.40   Responsibility

(2)       In interpreting and complying with these rules, due regard must be given to all dangers of navigation, collision, and any special circumstances, including the limitations of the vessels involved, that may make a departure from the rules of this Part necessary to avoid immediate danger.

[42]     It was submitted that there were “special circumstances”.  First, it was said that there is “shallowing” in the vicinity of Browns Island, its light, and its reef, and

that as a consequence, Classique could not turn to starboard, because it would have been turning into shallower water.   Secondly, it was argued that Seaway II, if it were sticking to its “regular run”, would have turned to port when it was adjacent to Browns Island, therefore avoiding any collision.   Thirdly, Mr Eastwood repeated Mr Bolton’s argument that the ferry turned starboard, towards Classique.

[43]     I do not accept any of these arguments.

[44]     There  was  clear  evidence  before  the  Judge  that  there  was  nothing  to preclude Classique from turning to starboard.  While there were some other vessels in the general vicinity, none were in a position that prevented a turn to starboard being made by Classique.  The relevant chart shows that there was plenty of clear water, of sufficient depth, to the north and north-west of the Browns Island light and the reef.  I do not know the state of the tide at the time, but the chart suggests that there was a minimum of approximately seven and a half metres of water in the area.  Classique drew only approximately two and a half metres.  Further, it was Mr Sweetman’s evidence that Browns Island light was approximately 460 metres off Seaway II’s port side.  There was plenty of sea room for Classique to alter its course to starboard.  Moreover, Mr Bolton always had the option of slowing down or stopping Classique to allow Seaway II to pass clear ahead.   There is no good evidence to compel the conclusion that the dangers of navigation or the limitations of the Classique justified a departure from the rules.

[45]     Secondly, there is nothing either in the rules or as a matter of fact to suggest that Seaway II was obliged to follow its “regular course”, whatever that may mean, and turn to port.  Captain Pignéguy gave evidence suggesting that Seaway II did not have a “regular course”.  Further, had he turned Seaway II to port, he would have been breaching the maritime safety rules.   Rule 22.17(1) required Seaway II to maintain its course and speed.  Rule 22.17(2)(b) provided that if Classique failed to give way, then Seaway II could take the appropriate action to avoid collision, but that it should not alter its course to port.

[46]     I  have  already  dealt  with  Mr Bolton’s  theory  that  Seaway II  altered  its course to starboard above.  I do not repeat those submissions.

[47]     In my view, none of the grounds of appeal advanced by Mr Bolton stand.

[48]     Rather,  the  circumstances  are  such  that  it  is  clear,  well  beyond  any reasonable doubt, that Mr Bolton breached the relevant requirements contained in the Maritime Rules.

[49]     For the avoidance of doubt, I set those rules out and apply them to the facts as follows.

The Maritime Rules

[50]     The Rules are made pursuant to Part IV of the Maritime Transport Act. Rule 22 deals  with collision situations.   Here,  both  vessels were under power. Pursuant to r 22.7 of the Maritime Rules, both vessels were obliged to use all available means appropriate to the prevailing circumstances and conditions to determine if the risk of collision existed.   If there was any doubt, then the rules required that such risk must be considered to exist.

[51]     Captain Pignéguy  properly  took  a  relative  bearing.    That  is  established maritime practice.  He considered that there was a risk of collision.  Mr Bolton said that he used what he called an “infallible rule of thumb”.   Patently, the rule of thumb was not infallible.  Further, the expert evidence of Mr Young was that there is no such rule, and that the method adopted by Mr Bolton was not appropriate to comply with the obligation detailed in r 22.7.  Had Mr Bolton adopted appropriate practice, he would or should have appreciated that there was a risk of collision. Even if he was in doubt, he was required by the rules to assume that a risk of collision existed.

[52]     On the evidence, it is clear that there was a risk of collision.

[53]     Once it had been determined that a risk of collision existed, then r 22.15 provides as follows:

22.15   Crossing situation

When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on its own starboard side must keep out of the way.  The vessel required to keep out of the way must, if the circumstances of the case allow, avoid crossing ahead of  the other vessel.

Seaway II was on Classique’s starboard side.   It was Mr Bolton’s obligation, as

master of the Classique, to comply with r 22.15.

[54]     Rule 22.16 further provides as follows:

22.16   Action by give-way vessel

Every vessel which is directed to keep out of the way of another vessel must, so far as possible, take early and substantial action to keep well clear.

Captain Pignéguy expected that Classique would alter its course to starboard, or alternatively slow down to comply with r 22.15.  Mr Bolton on Classique did not take either action.  It was Mr Young’s view that had Classique abided by rr 22.15 and 22.16, and by best maritime practice, she would have made a bold alteration of course to starboard, so as to pass to the port side of Seaway II.  If Classique had adopted best practice, this manoeuvre would have been clearly visible to Seaway II, and it would have avoided any risk of collision.  Classique could then have turned to port and resumed her course as the bearing of Seaway II changed.

[55]     Seaway II’s  obligations  were  set  out  in  r  22.17.    She  was  required  to maintain her course and speed.   The evidence clearly established that that is precisely what Captain Pignéguy did, until the risk of collision became imminent. He then took action to avoid collision by putting Seaway II’s engines into reverse, initially slowing down, and then more or less stopping the vessel.  He did not alter course to port.  Had he taken that step, he would have been breaching r 22.17(2)(b). He would have been steering into the path that Mr Bolton on Classique should have taken had he been alive to his responsibilities.

[56]     It is noteworthy that pursuant to r 27.17(4), Seaway II’s actions did not relieve Classique, as the give way vessel, of its obligation to keep out of the way.

[57]     By  failing  to  take  early  and  substantial  action  to  give  way,  either  by stopping or by turning to port, Mr Bolton as master of Classique caused a close quarters situation to develop, thereby causing unnecessary danger to those onboard Classique, and to those onboard Seaway II.  Mr Bolton on Classique failed to give way.  She passed dangerously close ahead of Seaway II, in breach of r 22.15.

[58]     The appeal is dismissed.

Wylie J