Julian Joy further Rebuts the Affidavit of Barry Young & Counsel’s statements

Julian Joy further Rebuts the Affidavit of Barry Young & Counsel’s statements.
Mr Young is simply incorrect in his assessment of Seaway being heavy, flat bottomed & not manoeuvrable Mr Pigneyguy says in evidence that Seaway is a catamaran, very manoeuvrable & can turn much more rapidly than Classique.
Mr Young then makes the inaccurate gross generalisation that “the majority of conclusions in Mr Joy’s Report are based on the assumption that Seaway changed course 11* to starboard & are therefore not valid”
Mr Joy states that this is an untrue misleading statement & clarifies “My Page 64 is simply a summary of facts, no calculation or opinion is involved except regarding keeping a lookout. My Page 65 has no reference to the amount of the angle of course alteration, it simply states that Seaway incrementally altered course to starboard, which is an agreed proven fact & my conclusion is that if both vessels had maintained course & speed, no incident would have occurred. I give a passing distance of about 120 mtrs, which is based on 11* course change. Using Mr Young’s corrected figure of 3.4* we get a passing distance of 78.5 mtrs – hardly a difference to question fundamental validity. My page 66 has no reference to turning starboard, it contains a discussion on the non-compliant horn & its ineffective use, a discussion on the issue of turning to port & a discussion on the issue of considering normal voyage patterns of Seaway when assessing risk of collision.
Mr Joy continues with his response on aspects of Crown Law Counsel Mark Davies for MNZ in opposition to Bolton’s application for Rehearing.
In Mr Davies submission is stated “The defendant is now represented & has provided a purported expert’s report from Mr Julian Joy who was present throughout the hearing”
The use of the word “purported” is clearly aimed at discrediting my expert value. This is unjustified & would not stand up to comparison & my curriculum vitae presented in open manner to the Court was considered sufficient. It can be argued that I am More expertly qualified than Mr Young. The fact that I was present for most of the hearing was a reason for my acceptance by the Court.
Mr Davies states that I was “an expert witness who was readily available to the applicant at all material times”
This is an incorrect statement & indeed on one occasion that Mr Bolton asked me for advice in the courtroom, during a lunch break, Mr Davies approached me & Mr Bolton & prevented me from reading the morning’s court transcript that Mr Bolton was referring to. This was conduct by Crown counsel not consistent in my view with the suggestion that I was readily available to the applicant at all material times.
Mr Davies calls “Mr Young, an independent expert …”
Mr Young did not in my opinion act as a fully independent expert, as when approached by me following my appointment to produce a report, he would not discuss the case, saying that we could not discuss it. This is not what I expected as the action of an independent expert rather than of a witness representing one party to the case.
Mr Davies states “ It is submitted that the weight to be given to the Joy report must be diminished given the partiality & inappropriate views on the ultimate outcome that have been expressed”
In my Report conclusion I state that “ My investigation of this matter brings me to the conclusion that MNZ & their expert witness did not complete an adequately professional standard investigation of this matter. In my opinion & largely as a result of the inaccurate advice given to the Court, the wrong conclusion to this matter was reached”
I stand by that conclusion as a finding of my “Review of Evidence”
Mr Davies states that “despite having Mr Joy available at the hearing …”
I repeat I was not available to Mr Bolton at the hearing. My employment would not have permitted this with Mr Young acting as a witness. I & a NZ Maritime School colleague attended the public hearing as public observers such as we were able to fit such attendance around our work, to see the conduct & outcome of the case.
The Seaway crew member Mr Sweetman was at the time a student at our Maritime School, so we had an interest from several professional angles.
Mr Davies states that “ Mr Pigneyguy was considered an expert”
In the ”vote of experts” which Mr Davies conducts, it cannot be valid to include Mr Pigneyguy, as he is obviously not independent.
Mr Davies raises the matter of “the central issue of the alleged 11* course change …”
In these comments he ignores the finding in my Report that he amount of course change of Seaway is not critical & even using Mr Young’s figures is sufficient to prove that Seaway incrementally turned to starboard in contravention of the Rules, thereby causing the close quarters situation.
Mr Davies raises the matter of the crossing situation but shows an incomplete understanding of the relationship between ‘crossing’ & ‘risk of collision’.
The arguments raised by Mr Davies are misleading as there is no disagreement regarding that a crossing existed or that Seaway incrementally turned to starboard – the photos show this & all parties including Mr Young are agreed – the only disagreement is regarding the amount of turn to starboard & the effect of the turning in relation to the rule requiring Seaway to maintain course & speed.
Regarding the speed issue – there is no proof that Seaway slowed down & also in any case in my report, I concluded that “Mr Pigneyguy’s evidence that Seaway slowed down has no effect on the outcome of this analysis – he would have had to slow down only because he placed Seaway in a dangerous position, not because of anything that Classique did.
Mr Davies states that “Mr Pigneyguy denied that he turned towards Classique” & refers to several of the many places in the court record where this was discussed.
However it is agreed by the experts that the photos Mr Pigneyguy himself took prove that he did turn progressively to starboard & therefore towards Classique’s path which is not the same as “towards Classique”
Mr Pigneyguy has also shown he had no documented evidence of his ship’s navigation track that day & this combined with his own photos proving he was turning to starboard without apparently his knowing that he was doing so raises questions regarding the standard of his navigation.
Mr Davies states that “both the Joy Report & earlier correspondence from him suggest that he has inappropriately assumed the role of advocate for the applicant”
My position was stated in my Disclosure. In addition, as an expert, it is a requirement that I make professional findings regarding a professional industry standard of navigation & behaviour in the maritime environment. It is therefore inevitable that my findings would lean towards allocating responsibilities & indicating which parties may not have carried out their professional responsibilities fully or partly. In this case I found that the applicant does not carry responsibility for the situation; this does not mean I am solely an advocate for the applicant. Refer also to my concluding remarks to this document”…
“ My investigation of this matter brings me to the conclusion that MNZ & their expert witness did not complete an adequately professional standard investigation of this matter. In my opinion & largely as a result of the inaccurate advice given to the Court, the wrong conclusion to this matter was reached.”

Diagram drawn by Mr Joy showing the turning towards the path of Classique

Using Photo 1’s view of the North Shore, Mr Bolton plots where a course of 286* heads
& how far Seaway turned by the time of the taking of Photo 3.

A comprehensive plotting by Mr Bolton of the situation &
how M Pigneyguy reduced the clearance that was available if the ferry had kept to a straight course

Website Pin Facebook Twitter Myspace Friendfeed Technorati del.icio.us Digg Google StumbleUpon Premium Responsive

Leave a Reply

Your email address will not be published. Required fields are marked *

CommentLuv badge