Matters not properly considered, rather than fact, concludes …
1 : End of Matters of Fact section of Appeal before Judge Wylie
P35 – He says “there is nothing to suggest that the taking of the photos by M Pigneguy interfered in any way at all with his proper performance of his duties as master of Seaway.”
For Judge Wylie to say that, indicates that he doesn’t know what the proper performance should’ve been for M Pigneguy to carry out his duties as master of Seaway according to Maritime Rules.
All Judge Wylie does is repeat the erroneous conclusions of Judge Davis even though all the evidence is there that M Pigneguy violated every one of his mandatory duties & responsibilities.
It is wrong to say there is no evidence to support the submission Bolton made that M Pigneguy made a decision to create a risk of collision & took photos instead of fulfilling his obligations according to the rules governing an approach.
There was the identifying of Classique as Seaway turned at Sth Motuihe & the discussions with Phillip Sweetman re the taking of photos instead of sounding his concern at that point or soon after but Seaway traveled a further 1.5 nmiles before taking Photo 1.
M Pigneguy should’ve at the very latest, sounded his signals then but he continues on to take a 2nd photo without sounding his horn until he is 80 mtrs away from Classique – that is severely in violation of Rule 22.34.4 which states “The vessel in doubt must signal IMMEDIATELY indicate such doubt” – (that would’ve been prior to Photo 1 but then the aerosol horn would not be adequate)
It was also untrue for M Pigneguy to say about 7 times in Court that that he virtually stopped the ferry, dead in the water etc. This obviously was used to misleadingly dramatize the close quarters he had purposely manufactured – 2 witnesses on Classique testified that the ferry neither slowed nor stopped. There is no evidence it slowed at all or signaled that it applied astern propulsion according to its obligations in Rule 22.34 – 3 blasts means astern propulsion.
There’s an inconsistency between “slowing” in M Pigneguy’s claim & his saying in Court that Seaway was “stopped”
P44 – Judge Wylie is wrong to repeat the misleading claim by the prosecution that there was nothing to preclude Classique turning to starboard in face of the evidence that Browns Light & reef area were a very valid reason for deep draft Classique to not do so.
Judge Wylie’s reading of the chart re Nth & Nth West of Browns Light is nautically unintelligent. The depth he quotes is not for the area concerned & without knowing the state of tide says “there was plenty of water”. – rocks & reef with a warning Beacon are for the incumbent navigator drawing upon his experience & knowledge of the area, to decide upon at the time & his decision would be respected by an appropriate Court.
The ferry was reluctant to go there when it draws half the draft of Classique, further more the turning of Classique to starboard would’ve been into the expected path of the ferry. The slowing or stopping of Classique suggested by the prosecution & repeated by Judge Wylie would also have been impeding the normal passage of the ferry – it was better for Classique to proceed ahead giving more clearance astern. In a situation such as this it is neither the time nor place for Classique to be studying a chart or depth sounder but to adhere to a familiar course maintaining a prudent distance off the known hazards of the shallows & reef marked by Browns Light. This particular area was hidden from both Judges in Photo 1 – B Young was particularly insistent on proximity to Browns Is & Light not being able to be deduced.
P45 – Judge Wylie is also wrong to say there’s nothing to suggest the ferry was obliged to keep to its course & speed which was normally around Browns Island. M Pigneguy gave a chart of its regular course to which it was obliged to keep – Rule 22.17.(1) If Seaway considered itself to be a stand-on vessel, it must keep its course & speed – which is to the knowledge of the other vessel, the maneuver it’s involved in at the time in a particular location – in this area, normally turning round Browns to head for Auckland.
Judge Wylie repeated the prosecution’s wrongful interpretation that course & speed was to be straight & for a stand-on vessel to be avoiding a turn to port for a vessel on its own port side misleading Judges Wylie & Davis to believe Classique was on the port side of the ferry but regardless of what Barry Young said, Classique is ahead of the bow of the ferry at Photo 2, at which point the ferry is no longer bound by Rule 22.17 & could freely maneuver as it might choose to.
Farwell – “Prudent seamen must consider the way point phenomenon in predicting possible movements by other vessels in the area” “Recent cases have found fault on the part of a stand-on vessel for failing to maneuver when she would be permitted to”
P51 – Judge Wylie repeats the acceptance by Judge Davis of M Pigneguy taking a Relative Bearing as the proper Maritime practice for determining risk of collision.
M Pigneguy improperly uses his relative bearing which required that he kept a straight course for it to work as an assessment method – it’s a faulty method in comparison with Bolton’s Line of Sight transferred to the background which is even better than using a compass. Barry Young was wrong to deny that it was a very accurate way to determine risk of collision especially in situations where either a compass is absent or its use is impractical
Application of Maritime Rules – Law follows.
The Relative Bearing used by M Pigneguy without keeping a straight course,
caused him to wrongly determine Classique was responsible for the risk of collision
Seaway was creating by turning towards Classique & bringing the bearing up as it was turning.