Judge Wylie continues – “Submitted was, that there were Special Circumstances …
First it was said there is shallowing in the vicinity of Browns Island, light & reef & that as a consequence, Classique could not reasonably turn to starboard because it would have been turning into shallower water. Secondly, it was argued that Seaway, if it was sticking to its Regular Run, would’ve turned to port when it was adjacent to Browns Island, thereby avoiding any collision. Thirdly, Mr Bolton’s argument was repeated that the ferry turned starboard towards Classique”
25: Judge Wylie did not accept any of those arguments.
He determined “ That there was clear evidence before Judge Davis that there was nothing to preclude Classique from turning to starboard. While there were some other vessels in the general vicinity , none were in a position that prevented a turn to starboard being made by Classique. The relevant chart shows that there was plenty of clear water of sufficient depth, to the North & Nth West of the Browns Island Light & reef. I do not know the state of the tide at the time but the chart suggests that there was a minimum of aprox 7.5 mtrs in the area. Classique drew only aprox 2.5 mtrs. Further it was Mr Sweetman’s evidence that the Browns Island Light was aprox 460 mtrs off Seaway’s port side. There was plenty of sea room for Classique to alter its course to starboard. Moreover, Mr Bolton always had the option of slowing down or stopping Classique to allow Seaway to pass clear ahead. There was no good evidence to compel the conclusion that the dangers of navigation or the limitations of Classique justified a departure from the rules” (Bolton didn’t ask for any departure)
This reasoning is from 2 Judges without nautical qualifications who have taken what suits them from the erroneous evidence given to them by the prosecution esp B Young who purposely refused to allow M Pigneguy’s Photo 1 to reveal the proximity of Browns Island, Beacon & reef area. (Neither is Phillip Sweetman recorded as giving any evidence regarding there being 460 mtrs between Classique & the Light at Photo 1 where B Young suggest Classique should’ve turned starboard – no one mentioned a figure for that. P Sweetman just copied the figures given him by M Pigneguy for the location of the taking of the incident at Photo 3 as 020*x0.25’)
Judge Wylie is wrong to say there is clear evidence that nothing precluded Classqiue turning Starboard. His reading of the chart re depths Nth & Nth west of Browns Light is nautically unintelligent considering M Pigneguy was reluctant to take his ferry there when it draws ½ that of Classique. Both the chart & M Pigneguy say there is a 5 mtr contour line where Classique was & inside that is 4 mtrs shallowing up towards insufficient water out from the Light. The Depth Judge Wylie sees is out where Photo 3 was taken. Bolton with long familiarity of the area had Classique at a prudent distance out & given the situation emerging, no navigator is going to start checking charts, tide tables & depth sounders – he will remain in safe water . Further more the turning of Classique to starboard would’ve been into the expected path of the ferry. The slowing or stopping of Classique would also have impeded the normal passage of the ferry – it was better for Classique to proceed ahead giving more clearance astern to the ferry especially as there was no Stand-on Give-way Rule applying but each to keep course & speed to pass clear of each other starboard to starboard.B Young begrudgingly admitted Seaway turned towards Classique.
It is inappropriate for an outside party to theorize – it is for the incumbent navigator to draw upon his experience & knowledge of vessel & locality to implement his best actions.
Rule 22.40 – Responsibility & Special Circumstances as well as Farwell – “Vessels are not crossing with risk of collision if the course which is to be reasonably attributed to the other vessel would keep her clear of the other. The question therefore always turns on the reasonable inference to be drawn as to a 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.” This would describe Seaway on its Regular Run
No navigator would willingly turn directly towards Browns Light & shallowing water.
All Classique had to do was keep going ahead to let Seaway go astern or turn towards Auckland –
not turn the opposite way & reduce the clearance behind Classique
This could’ve been the chart provided by M Pigneguy which Judge Wylie referred to –
it shows 7 mtrs near location of incident. Classique was on the edge of the shallow area
at the time when B Young & Judge Wylie expected Bolton to turn starboard into jeopardy.