Judge Wylie decides that a Regular Run of a Ferry doesn’t Count
He states “There is nothing either in the Rules or as a matter of fact to suggest that Seaway ll was obliged to follow its “regular course”, whatever that may mean & turn to port. M Pigneguy gave evidence suggesting that Seaway did not have a “regular course”. Further, had he turned Seaway to port, he would have been breaching the maritime safety rules.
Rule 22.17(1) required Seaway to maintain course & speed. Rule 22.17(2b) provided that if Classique failed to give way , then Seaway could take the appropriate action to avoid collision but that it should not alter its course to port”
26: Judge Wylie is wrong to say there’s nothing to suggest the ferry was obliged to keep to its regular course & speed which was normally around Browns Island to Auckland.
M Pigneguy gave a chart of its regular course to which it was obliged to keep – Rule 22.17(1) He also described during the hearing, his regular run as such.
As Classique was ahead of the ferry at Photo 2 position, there was nothing preventing the ferry turning to its port as it normally would, Rule 22.17(2b) didn’t apply – Seaway could maneuver freely.
Judge Wylie didn’t read in the evidence given that the definition of keeping course & speed didn’t necessarily mean that it must be on the same compass bearing & engine revolutions but it means to keep the course & speed in following such nautical maneuvers in which to the knowledge of the other vessel, the vessel is at the time engaged.
Seaway on its usual route was to keep to its customary track which M Pigneguy gave in written & verbal evidence further verified by his drawn chart – Judge Davis noted that for some unexplained reason on the day, M Pigneguy chose to not follow Seaway’s Regular Run. The public AIS records show that Seaway normally turns at Browns Island to head for Auckland.
At any time a vessel can indicate its intention to alter its course by making the appropriate directional signal & making any alteration of course early enough & big enough to be seen.
If Seaway had a horn complying with audibility & frequency used appropriately by M Pigneguy, this incident would not have occurred but there appears to be an intention to have Bolton prosecuted for the violations perpetrated by M Pigneguy in failing to follow Maritime Rules designed to prevent close quarters happening.
AIS Record of Seaway’s course from Waiheke, round Browns Island to Auckland.
Knowledge of this Regular Run was correctly taken into account in
risk assessment by Bolton as other navigators in the area would also.
The chart provided by M Pigneguy to illustrate his usual course
round Browns Island to Auckland which he failed for his own
reasons to keep to on the day Classique was heading out
from Browns Light area to anchor at Sth West Motuihe