Special Circumstances weren’t Properly Considered in Appeal

Special Circumstances were not properly considered in Appeal.
Rule 22.40 – Responsibility –
1 : It covers neglect of any precaution which may be required by the ordinary practice of seafarers, or the special circumstances of the case.
2: In Interpreting & complying with all these Rules, due regard must be given to all dangers of navigation, collision & any special circumstances, including the limitations of the vessels involved, that may make a departure from the Rules of this part necessary to avoid immediate danger.
Judge Wylie was given this additional submitted evidence
(a) Shallowing in the vicinity of Browns Island, its Light & reef area deterred both the ferry & Classique from turning there. Seaway’s draft is much less than that of Classique who was said to have had no reason for not turning to her starboard & consequently into that shallower water. B Young has not allowed proximity to Browns Island & Light to be seen by the Court – he says “I don’t think we can make that assumption …I don’t feel comfortable making assumptions on things not shown in photos … I’ve discounted that” B Young wrongly denied that navigators do use an orthodox method of determining position & Location as shown by Bolton.
(b) It was agreed by Judge Davis, that the ferry was said to be on a Regular Run but Bolton submits that was only until Classique was observed by the ferry as it turned at Sth Motuihe. “Seaway deviated from its Regular run to make it an Irregular Run” All the ferry had to do was to either keep to its Regular Run by turning where it usually does at Browns Island or at least hold a straight course to pass with adequate clearance astern or Starboard to Starboard of Classique but Judge Davis said “For some reason which has not been explained, he chose not to – he was doing something other than he would normally do” Judge Davis obliquely refers to Special Circumstances in relation to the conduct of Seaway but fails to give any consideration to this conduct of Seaway deviating from its Regular Run, in coming to his conclusions regarding the actions of Classique
(c) The incremental turning of Seaway towards the path of Classique. This perhaps came about because as the AIS records show, the usual course taken around Sth Motuihe is a gradual curve but due to its preoccupation with Classique, the ferry didn’t arrest its gradual curving Northwards before the point at which it would begin curving West to go round Browns Island.
Judge Wylie disregards that evidence & says “ none of the grounds of appeal advanced by Mr Bolton stand.” J Wylie goes on to support the erroneous decision Judge Davis made as to Bolton breaching the relevant requirements contained in the Maritime Rules. He then sets out the Rules & applies them to what he called “facts” – these being the misleading & incorrect evidential fantasies given by the prosecution, unwittingly accepted by Judge Davis.
Judge Wylie makes no reference to the many violations of M Pigneguy which are 100% responsible for the incident or considers the Special Circumstances which are associated with the area including Seaway’s Regular Run as part of the Risk Assessment & Management rightly applied by Bolton.
The miscarriage of Justice continues …

One method correctly used by navigators to
determine location & features but denied by B Young

A second method used by Bolton to identify the location of Browns Island
& Browns Light obscured by the framework of Seaway’s wheelhouse –
also denied by B Young

For Judge Wylie to rubber stamp the erroneous decision of Judge Davis
in face of Bolton’s evidence to the contrary,
would appear to be a severe Miscarriage of Justice.

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