M Davies (Crown lawyer) says he’s just going to step through the events in very simple terms – “You were on the course from Bayswater to Motuihe Island … & you saw Seaway approaching on your starboard side ?”
Bolton – “3 nmiles away, before Sth Motuihe & 2nmiles away as it turned towards Classique , yes on the starboard side … I was in the wheelhouse & taking the controls after leaving the vicinity of Nth Browns Island”
M Davies – “It was your assumption that the ferry would alter its course to port to go round Browns Island enroute Auckland & because of that you didn’t change your course at all & the ferry stayed on your starboard side ?”
Bolton – “Yes”
M Davies – “During the interview that you had with Mr Howden, you were shown a copy of photo 1 & you confirmed that showed Seaway on your starboard bow … You told Mr Howden in your interview that ‘The ferry seemed to be coming at me, he was not going away from me’ ?”
Bolton – “Quoting from the interview – I couldn’t figure why he was still apparently coming after me – I can tell you now with absolute certainty that he was altering his course & I couldn’t figure out why he apparently was chasing me”
M Davies – “You say at that point in time in photo 1, there was no risk of collision … ?”
“I’m going to read the evidence of the Capt of Seaway “I started sounding the blasts when he was about 80 mtrs away which is probably close to where that 2nd photo was taken because from there the relative bearing was changing very little from that in photo 1 & I still maintained within 1 or 2 degrees my original course & speed … if I didn’t do anything we were going to collide with the Classique, no doubt at all” In his mind, there was no doubt at all that there was going to be a collision, Mr Bolton.
Bolton – “If that was in his mind, so be it. That wasn’t in my mind & there was no risk of collision at all”
M Davies – “Now Mr Sweetman also gave evidence about that, he talks about seeing your vessel “At this point in time I observed a yacht, Classique at aprox 30 degrees on the port bow, under power, crossing from port to starboard. It was apparent to me that Classique was on a collision course with Seaway or at least there was risk of collision. I say this because the relative bearing of the approaching vessel did not appreciable change over the period of observation” (Sweetman had copied what M Pigneyguy incorrectly stated. Classique was about 5 degrees on the ferry’s port bow)
Bolton – “That lack of changing was entirely due to him coming up towards me” (The failure of using a Relative Bearing which required the ferry to be maintaining a straight course)
M Davies – “Ok, we’ll get to that. You say that this risk of collision was brought about by the fery changing its course ?”
Bolton – “Yes”
M Davies – “Coming back to Seaway being on your starboard bow, if the Judge finds that there was a risk of collison at that point, Rule 22.15 applies, meaning that Classique has to get out of the way, doesn’t it ?”
Bolton – “Special circumstances, I could go forward. I didn’t have to turn to my starboard because he was going to turn to port”
M Davies – “Mr Bolton, let’s go to 22.15 – there’s a crossing situation developing, isn’t there ?”
Bolton – “A crossing which if both keep to their course & speed, there’ll be no risk of collision”
M Davies – “That’s what you say. You understand that the other witnesses don’t agree with you, that’s for the Judge to make a finding on ? … Assuming there is a crossing situation involving risk of collision, the vessel which has the other on its starboard side must keep out of the way, that’s Classique, isn’t it ?”
Bolton – “No, there was no risk of collision at the taking of either the 1st or 2nd photo because that’s where the ferry was meant to be going in both photos” (Round Browns Island)
M Davies – “We understand what you’ve said about that – that’s going to be for the Judge to make his mind up. Let’s assume for the moment that there is risk of collision, Classique is the give-way vessel under rule 22.15, isn’t she ?”
Bolton – “If there is risk of collision that’s so”
M Davies – “If there’s risk of collision 22.15 says that the vessel required to keep out of the way must if the circumstances allow, avoid crossing ahead of the other vessel ?”
Bolton – “And again special circumstances come into it”
M Davies – “So these special circumstances are your assumption as to the course of Seaway ?”
Bolton – “And the course of risk assessment”
M Davies – “Mr Bolton, you didn’t take any action to change your course or speed because of your assumption as to what you thought Seaway’s course might be ?”
Bolton – “In this situation we are both to keep our course & speed & pass clear, so I kept my course & speed because I had no need to accelerate which was an option if I had to take avoiding action. That being the preferable action for me to take compared with turning starboard into the expected course of the ferry on a normal run”
M Davies next wants to look at Rule 22.7 Risk of Collision
Classique saw the ferry 1st about 3 nmiles away from Nth Browns Island.
At that point the ferry was steering 260*T on a reciprocal course to Classique &
had yet to turn at Sth Motuihe to head towards Classique
Photo 2 shows Classique ahead of the ferry although the ferry has continued turning up.
About 1/4 nmile separation. Classique is not likely to turn into the shallows of
Browns Light obscured behind the left side window post.
The ferry is expected to be turning to its port about where Classique is.
Photo 1 with the location of Browns Light marked on the window post &
Browns Island out of the photo to the left side.
Classique is not intending turning starboard with obvious reason which
the prosecution is keeping Judge Davis from being aware of.
A deep draft keel yacht drawing more than the ferry is certainly not turning starboard & running out of water.