The Court was prevented from seeing the proximity of the shallows out from Browns Island light.
Appeal Points from Judge Toogood’s Decision Para 16,17
Judge Toogood quotes text from Rules & Judge Davis’s Decision …
Para 16 – Rule 22.8 sets out action that is required to be undertaken to avoid the collision. Rule 22.8(1) provides that any action to avoid a collision must be taken in accordance with the requirements of this section and if the circumstances allow, “be [positive], made in ample time and with due regard to the observance of good seafaring practice”. The Rule also provides “that if there is sufficient room for alteration of course alone must be the most effective action to avoid a close quarters situation provides that:
(a) It is made in good time;
(b) It is substantial; and
(c) It does not result in another close quarters situation.”
Para 17 – There is no dispute that on the day in question there was no other sea traffic in the vicinity of either the Seaway II or Classique such that if an alteration of course was [required] to be undertaken, and such alteration in course could have been done both in good time, and in a substantial fashion, and in a fashion that [would] have avoided a second close quarters situation. Rule 22.15 defines a crossing situation and provides as follows:
Rule 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 cross ahead of the other vessel”.
Bolton, in his Submissions on Appeal makes this point regarding…
Para 17 – It is not disputed that there was no other sea traffic in the vicinity preventing an alteration of Classique’s course. What the Court was prevented from seeing was the proximity of the shallows out from Browns Island marked by a light.
The ferry at trial said it was unwilling to travel through that area – as was Classique which has greater draft than the ferry therefore requiring deeper water.
Link for Seeing, Signing & Sharing Petition – http://maritimenz.com/AnnulConvictionGainedByAbuseOfCourtProcess
Maritime New Zealand, M Pigneguy & Barry Young prevented Judge Davis from seeing that
Browns Light & Reef area was a valid reason for Classique not to turn starboard especially
as Seaway’s normal route would be to follow the course from whence Classique had come.