Interpreting the Maritime Rules Part 22 (Julian Joy Report)
The Rules of Part 22 involved : 22.15 – Crossing Situation.
When 2 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…
This approach did not apply to the present incident –
It is a conventional right angled approach
22.16 – Action by give-way vessel.
Every vessel which is directed to keep out of the way of another vessel must … take early & substantial action to keep well clear.
22.17 – Action by stand-on vessel.
(1) If one of the 2 vessels is to keep out of the way, “the other must keep its course & speed …including (2) (3) & (4)
22.40 – Responsibility.
(1) … precaution required by the ordinary practice of seafarers or special circumstances of the case.
(2) … reasons that may make a departure from the rules of this part necessary to avoid immediate danger.
The ‘Rules of the Road’ at sea have a fundamental difference to the rules of the road on land in NZ. That is due to Part 22.40 & 22.17(3). For this reason, if in this incident a collision had occurred, under MTA sec 94, blame would have been shared equally until proven otherwise & apportioned accordingly.
As there was no collision & Classique did not have to take urgent last moment avoiding action, responsibility for the incident in my opinion remains 100% with Seaway ll.
M Pigneyguy & B Young in evidence said Seaway was not permitted to turn to port throughout the incident time. This is in my opinion incorrect. When over 1 nmile & 3 minutes was between them (ie. Twice the width of Auckland Harbour) Seaway could do what it liked & could go port or starboard to a new course but not to manufacture a stand-on situation.
My plot shows that Seaway transgressed by incrementally turning to starboard, otherwise there was no need for either vessel to alter course or speed.
At any point after that shown in photo 2, a prudent Seaway master would have turned to port, as Classique was ahead & not on the ferry’s port side as maintained by M Pigneyguy.
Again, it cannot be repeated too often, my analysis shows the close quarters situation was caused by Seaway incrementally altering course to starboard. Classique was by definition a crossing vessel but there was clearly no risk of collision if Seaway had maintained course & speed. Therefore Rule 22 did not apply as they were not crossing so as to involve risk of collision. Classique did not expect to have to take avoiding action & in his evidence, Mr Bolton was surprised at how Seaway appeared to be ‘following’ him.
Seaway is not permitted to manufacture a give-way situation by changing course progressively as she did. In fact the case has similarities with that of Spyros v Rebecka E in UK Admiralty Division, in which Lord Merriman said –
“the Spyros is not entitled to invoke the crossing rule when she herself creates the situation, in which it would theoretically apply, by her own negligent action”
Lloyds List Law Reports – ‘Applicability of crossing rule.’
This ruling example overrides the belief of Mr Young when he said “It is simply that it would be very difficult for the give-way vessel to argue that the stand-on vessel was in some way at fault & to use that as an excuse for it not taking the action it should have”
No, the photographic evidence, in my opinion, has proven the matter sufficiently beyond reasonable doubt that Seaway is “not entitled to invoke the crossing rule when she herself created the situation, by her own negligent action”