Bolton’s 2nd ground of defence was misinterpreted & not understood by Judge Davis

Bolton’s 2nd ground of defence was misinterpreted & not understood by Judge Davis who went on to state in his Judgement that “Bolton was maintaining his course & speed because he anticipated Seaway to alter its own course to port, which in Mr Bolton’s experience, was the ferry’s usual practice.Mr Bolton suggested that a custom had developed that enabled the Maritime Rules to be put to one side & for local sailors to use their own local knowledge of the ferry’s path to navigate around the harbour. There was no evidence presented to me other than Mr Bolton’s own bold assertions as to whether indeed there was a general body of law or custom that prevailed on the Hauraki Gulf & 2nd, whether this specific custom Mr Bolton referred to formed part of the body of customary law.
Accordingly I reject Mr Bolton’s suggestion that a custom or body of practice had developed that enabled skippers of vessels to ignore the Maritime Rules.
Secondly, I reject the validity of Mr Bolton making assumptions as to the course the ferry might take.. Rule 22.7 provides that: “Assumptions must not be made on the basis of scanty information especially scanty radar information”
The critical point is not whether radar information is being used but scanty information & in my view, that is precisely what Mr Bolton’s view as to what the ferry might do is both an assumption & based on scanty information.
Accordingly I reject that as any grounds of defence.”
This erroneous decision made by Judge Davis becomes an interpretation of Maritime Rules for the Maritime Community to follow in areas where ferries have Regular Runs not only in Auckland but in all NZ waterways.
The Judge did not come to this decision on his own – nautical matters were unfamiliar to him – neither Mr Howden nor Mr Young allowed Judge Davis to believe that a navigator should take the known regular run of a ferry into his calculations.
Bolton has been round Auckland Harbour since he carried out his 18 year old Naval Training on Motuihe Island & Devonport Naval Base in 1956 then began Auckland ‘A’ Division yacht racing in the 1970s.
What other harbour users do on a regular basis becomes 2nd nature to a local navigator & automatically part of his Risk Assessment & Risk Management. This is not setting Rules aside but incorporating a full application of the Rules – certainly not ‘Scanty’ information in Bolton’s experience especially when an AIS report is provided to the Court showing the Regular Runs made by this ferry in particular.
Farwell in his ‘Rules of The Navigational Road’ says “If at any time 2 vessels are seen keeping courses to be expected with regard to them, they are not so crossing if the course which is reasonably to attributed to either vessel would keep her clear of the other. The question therefore always turns on the reasonable inference to be drawn as to the vessel’s future course from her position at a particular moment & this greatly depends on the nature of the locality where she is at the moment”
If Judge Davis was nautically inclined he would not have been mislead on this fundamental navigational practice which Bolton was entitled to exercise.
The plottings that Bolton drew to recreate the ferry’s course are next called a ‘red herring’

An AIS record of the Regular Runs made by Seaway turning at Browns Island enroute AucklandAISworded

Motuihe Island – HMNZS Tamiki, Naval Training establishment was on this Northern Peninsular
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This water tower is still visible these days as is an early cemetary & gun emplacement
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A typical intake of 18 yearolds at HMNZS Tamiki on Motuihe Island back in the 1950s

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6 thoughts on “Bolton’s 2nd ground of defence was misinterpreted & not understood by Judge Davis

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