Maritime New Zealand v Birchall (CA)
IN THE COURT OF APPEAL OF NEW ZEALAND
CA415/2008
[2009] NZCA 119
BETWEEN MARITIME NEW ZEALAND
Appellant
AND DAVID WILLIAM BIRCHALL
Respondent
Hearing: 11 February 2009
Court: O'Regan, Hugh Williams and Miller JJ
Counsel: K I Murray for Appellant
P A McBride and G G Ballara for Respondent
Judgment: 6 April 2009 at 11.30 am
JUDGMENT OF THE COURT
A The appeal is allowed.
B The respondent, Mr Birchall, came within the definition of “Master” under s 2 of the Maritime Transport Act 1994 during his conduct of the vessel Santa Regina exiting Tory Channel on 9 June 2005.
C The High Court order quashing the respondent’s conviction is not set aside.
REASONS OF THE COURT (Given by Hugh Williams J)
Issue
[1] “Master” is defined by s 2 of the Maritime Transport Act 1994 as:
... any person (except a pilot) having command or charge of any ship.
(All statutory references in this judgment are to the Maritime Transport Act 1994 unless otherwise specified.)
[2] This appeal arises through MacKenzie J granting the appellant, Maritime New Zealand, leave to appeal to this Court. The application did not clearly set out the point of law for decision but it is clear from the context that the question was:
Was the respondent, Mr Birchall, Master of the Santa Regina at the time of an incident on 9 June 2005?
[3] The application for leave was not contested. Counsel for Mr Birchall abided the decision of the Court which makes it puzzling that, as later discussed, counsel argued this Court had no jurisdiction to hear the appeal.
Factual and Statutory Background
[4] The matter commenced with a prosecution in the District Court. There Judge John Walker commenced his judgment (DC WN CRN 0500-6501548 28 May 2007) by saying:
[1] On the night of 9 June 2005 a Cook Strait ferry “Santa Regina”, commonly known as the “Bluebridge” was making passage through Tory Channel in the Marlborough Sounds bound for Cook Strait and Wellington. ...
[2] As the vessel passed Taranaki Rock and began a starboard turn to proceed through the entrance, the tide flowing into the Channel pushed the vessel on the starboard bow and moved her across the Channel entrance towards its northern shore and the rocks at East Head. The ship came within approximately 100 metres of the rocks.
[5] The two men on the bridge at the time were Mr Smith and Mr Birchall. Mr Smith described the incident in the following way:
As we passed Scraggy Point the vessel was slightly to the north of the track in the Passage Plan.
The vessel entered the fixed light sector at East Head and then proceeded on a course to the south of East passing close to the north of Taranaki Rock. About this time [Mr Birchall] left his conning position and went to adjust the ECDIS unit, which is on a panel ahead of the conning position.
[Mr Birchall] returned to the conning position, but meanwhile the vessel was heading on a track south of east. [Mr Birchall] said that he thought we were a little bit close to Taranaki Rock, which is on the south side of the channel. [Mr Birchall] then attempted to straighten the vessel up using the autopilot, which gave 15 o of rudder to steady the ship’s course.
At this point I told [Mr Birchall] that the vessel was not coming around quickly enough. We were heading straight for the south point of East Head at 15 knots and coming out into the tidal stream….
I heard the autopilot’s alarm go off meaning a large change of course was being put into the autopilot unit. [Mr Birchall] then took manual control of the vessel, switched the helm on to non-follow up, and applied starboard helm hard over.
... I then ran out on to the port bridge wing because the vessel was transferring over in that direction as she turned. ... I knew that we would be turning hard to starboard and I thought that we were going to hit the rocks by East Head.
From the bridge wing I could see that we were very close to the rocks by East Head. Looking aft, I could see that the stern was swinging even closer to East Head as we turned. I think we were probably 50 or 60 metres away.
I shouted to [Mr Birchall] that he had better straighten the ship up. He applied port helm and we straightened up and headed out of the Sounds.
[6] It is unnecessary to relate Mr Birchall’s rather more detailed description save to note he said he brought the heading about 40o to starboard – from 052o to 090o on the gyro – found the “tide had her”, overrode the autopilot and manually applied 20o or 30o of starboard rudder to counter the lee bow tidal effect. The ship was then heading 150o gyro. Mr Smith shouted to apply port helm because the turn had slewed the port quarter of the vessel “uncomfortably close to rocks at East Head”. Mr Birchall applied port helm, brought the vessel to 130o gyro and the ship passed safely into Cook Strait. He reported the incident to Maritime NZ four days later.
[7] As a result of what occurred, Maritime NZ laid two informations against Mr Birchall under s 65(1)(a) asserting as the Master of the Santa Regina he operated the ship in a manner causing unnecessary danger or risk to other persons or to property, and a third information under s 71(1) asserting that, as Master of the Santa Regina, a ship involved in an incident, he failed without reasonable excuse to comply with s 31(1) by failing to notify the incident to Maritime NZ as soon as practicable.
[8] Section 65(1) provides:
65 Dangerous activity involving ships or maritime products
(1) Every person commits an offence who—
(a) operates, maintains, or services; ...
any ship or maritime product in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs.
[9] Section 71 makes it an offence for any person without reasonable excuse to fail to comply with a number of sections in the Act including s 31. Section 31(1) reads:
31 Obligation to notify all accidents, incidents, etc
(1) The master of—
(a) any New Zealand ship; or
(b) any foreign ship in New Zealand waters—
that is involved in a mishap that results in serious harm to a person, an accident, or an incident, shall notify the mishap, accident, or incident to the Authority as soon as practicable.
[10] The following definitions in s 2 are relevant:
incident means any occurrence, other than an accident, that is associated with the operation of a ship and affects or could affect the safety of operation
operate, in relation to a ship, means to sail or use the ship, or cause or permit the ship to sail, be used, or be in any place, whether or not the person is present with the ship
[11] Section 19 defines the duties of a Master:
19 Duties of master
(1) The master of a ship shall–
(a) be responsible for the safe operation of the ship on a voyage, the safety and wellbeing of all passengers and crew, and the safety of cargo carried; and
(b) have final authority to control the ship while in command and for the maintenance of discipline by all persons on board; and
(c) be responsible for compliance with all relevant requirements of this Act and regulations and maritime rules made under this Act, except in an emergency when, in the interests of safety, immediate action in breach of this Act or of regulations or maritime rules made under this Act is necessary; and
(d) where an emergency requires that in the interests of safety an action is necessary that breaches this Act, or regulations or maritime rules made under this Act, as soon as practicable, notify the Director of the action and the circumstances which necessitated it and, if requested by the Director, provide to the Director a written report in respect of the action.
...(4) Every Master commits an offence and is liable to a fine not exceeding $5,000 who, without reasonable excuse, fails to comply with subsection (1)(d).
District Court Judgment
[12] Dealing with Mr Birchall’s status on the evening in question, Judge Walker began with the following observations:
[11] This issue arises out of the crew arrangements operating on board the Santa Regina. The ship owners had appointed only one master in the sense that the word is commonly understood, that is the captain of the ship, the occupant of the master’s cabin and the person in charge of discipline and the person directly responsible to the ship’s owners. That person was Captain Hoedemaeckers.
[12] The ship however almost continuously sailed on its timetable back and forth across Cook Strait and provision had to be made for Captain Hoedemaeckers to rest on board the ship. On these occasions the procedure on board was for Captain Hoedemaeckers to hand over the navigation of the ship to the First Mate, Mr Birchall, who was then described as the Mate / Master for the time Captain Hoedemaeckers was resting or, as it was described in evidence, “on his watch below”.
[13] Judge Walker noted that though s 31(1) is expressly concerned with actions of Masters, s 65(1) is of broader application. That notwithstanding, Maritime NZ had chosen to include the assertion that Mr Birchall was acting as Master in relation to the matters which gave rise to the information under s 65(1). Therefore, though focusing the s 65(1) consideration on whether Maritime NZ proved Mr Birchall was operating the vessel at the relevant time, the Judge also extensively discussed whether Mr Birchall was Master at that time.
[14] He turned to the elements of s 65 and the evidence as to what occurred that evening. He noted Mr Birchall’s preference to steer the vessel himself through the restricted area of Tory Channel rather than use the helmsman on the bridge, partly because that was the standard procedure prescribed by the vessel’s owners.
[15] The Judge analysed the expert evidence. The prosecution’s expert was of the view that Mr Birchall had failed to execute a “controlled turn to starboard on to the leads” as required by the passage plan and that, in taking the vessel across an opposing flood tide of about 5.6 knots, Mr Birchall “exposed the vessel unnecessarily to an increased force on her starboard bow so that she would inevitably set rapidly and bodily northwards across Tory Channel towards its north-eastern shore”. This was also contrary to a warning in the passage plan: at [58]‑[60]). The expert’s opinion as to direction of the tidal stream was at odds with the defence expert, Captain Brown, who transited Tory Channel over 15,000 times in the 30 years to 2001 and regarded the chart’s tidal flow indicator at Tory Channel entrance as being out by up to 90 o.
[16] The Judge held the definition of “Master” extended “beyond the person listed in the ship’s company as Master” (at [18]) and that Mr Birchall operated the vessel in Tory Channel on 9 June 2005. After a detailed review of the evidence he dismissed both s 65(1) charges because the evidence did not satisfy him beyond reasonable doubt that Mr Birchall’s manner of operating the ship caused unnecessary danger or risk: at [89].
[17] The Judge found the s 71(1) charge proved, saying:
[90] I turn finally to consider the charge under s71. Mr Birchall is charged with failing to comply with the obligation placed on a Master of a vessel which has been involved in an incident to notify Maritime New Zealand of the incident. This obligation extends to mishaps which cause serious harm, accidents and incidents. Accident is defined in s 2 and covers a number of events which would require immediate notification to Maritime New Zealand, failure of equipment affecting seaworthiness for one, the ship sustaining damage which poses a threat to safety is another. It seems to me to be consistent with these possibilities that the obligation to report is cast on the person who at the time if [sic] the event is within the definition of “Master”, that is the person who has charge of the ship. There was an obligation on Mr Birchall under the section to report the incident as soon as practicable. That could have been done by fax as the vessel crossed Cook Strait and certainly when the ship reached Wellington. It was not done for 4 days. Mr Birchall has not established a reasonable excuse for this failure. This charge is proved.
High Court judgment
[18] Mr Birchall’s appeal against the s 71(1) conviction was allowed (Birchall v Maritime New Zealand HC WN CRI-2007-485-79 29 May 2008). MacKenzie J held the prosecution had failed to establish Mr Birchall was Master of the vessel at the relevant time: at [37].
[19] After setting the stage with citations from the judgment bearing on Judge Walker’s finding that Mr Birchall was Master during the incident, MacKenzie J (at [8]) quoted Mr Hoedemaeckers’ description of his role. His brief said he was Master of the Santa Regina but at 1800 hours signed command of the vessel to Mr Birchall, that change being recorded in the deck, bridge or radio log book. (The terms seem to have been used interchangeably in the case and not as terms of art and we hereafter use the phrase “deck log book” or “deck log”.) He said Strait Shipping Limited operated a system providing for two Masters on board the vessel, one as the Master and the other as Mate/Master, to enable the vessel to be operated continuously. Mr Hoedemaeckers said as Master he had “primary responsibility at all times for all aspects of management on board” but when command was signed to the Mate/Master the latter was “in charge of the safe navigational conduct of the vessel both at sea and within pilotage waters”. Tory Channel is a pilotage area.
[20] The Judge then (at [9]) recounted portions of cls 3.3 and 4.1 of the owners’ Ship Management Manual, which read:
3.3.2 The Master
3.3.2.1 The Master is responsible for the safe and efficient navigation of his vessel, the prevention of pollution and the protection of the environment.
…
3.3.2.4 He/she is responsible for discipline aboard, for the health, safety and comfort of the crew and passengers, and generally for all matters in connection with the ship’s business and the receiving, handling, stowage and discharge of cargo. It is the responsibility of the Master to ensure that his vessel goes to sea fully sound, seaworthy and provided for in all respects. He/she is held responsible for the stability and watertight integrity of his ship, and the proper distribution of cargo, bunkers, fresh water and ballast.
3.3.2.5 The Master is responsible for all the overall maintenance, good order and cleanliness of his vessel, and although many of his duties may be delegated to the various officers under his command, the Master is held primarily responsible for the entire management of his ship. He/she shall at all times protect the interests of the Company and report to management any matters that might affect the successful operation of the vessel, or its classification.
…
3.3.2.7 The Master shall ensure that all certificates required for the operation of the vessel are current and available on board. He/she shall ensure that the vessel complies fully with all the appropriate requirements of International and New Zealand maritime laws, regulations or rules, and the requirements of the Classification Society. He/she shall ensure that all documentation that is designated as “controlled” is kept up to date and issued as per company procedures.
…
3.3.2.10 In all situations, where necessary, the Master has overriding authority as prescribed in the Safety Management System SSL-02, Safety Management Manual, Section 2.1.1.3.
3.3.3 The First Mate/Relief Master
3.3.3.1 The First Mate is the principal Executive Officer aboard and is responsible, under the Master, for the proper observance of routine and for the good order, discipline and cleanliness of the ship.
3.3.3.2 Where required the First Mate will relieve the Master and take over command of the vessel. Any changes of command shall be recorded and signed for in the Official Log Book, and/or the Deck Log book of the vessel.
…
3.3.3.4 At sea, the First Mate shall be responsible for the safe navigation of the ship during his/her watch, and in port, if the Master is absent, he/she shall act as the Master’s deputy in all matters affecting the ship.
3.3.16 Change of Command
3.3.16.1 Between Masters
(i) The change of command between Masters shall be recorded and signed for in the Official Log Book as prescribed by Maritime Rules – Part 73.
(ii) The Master being relieved shall fully brief the Master who is relieving him on all matters appropriate to the vessel’s operation, and shall support such briefing with written “Hand-over notes”.
3.3.16.2 Master relieved by Mate
(i) Subject to having the necessary qualifications and Pilotage Exemptions the First Mate may be required to relieve the Master in order that appropriate rest periods and prevention of fatigue can be achieved as required by Maritime Rules – Part 31A.
3.3.16.3 Where the First Mate relieves the Master of command the following rules shall apply:
(i) The First Mate remains in command of the vessel until the Master resumes command.
(ii) The Master may resume command of the vessel from the First Mate at any time he/she so chooses, and the First Mate must relinquish command when requested to do so.
(iii) The Master may resume command at any time when requested by the First Mate to do so.
(iv) The transfer of command from the Master to the First Mate, and its reversal, shall be recorded in the Deck Log Book.
…
4.1.2.2 The Master is responsible for the safe navigation of the vessel, and will see to it that all courses are well clear of headlands, obstructions to navigation and other dangers. When navigating, safe operating practices shall be followed at all times, safeguarding the vessel and its personnel. The master will ensure that he is present on the bridge prior to entering, and during the transit of pilotage waters in sufficient time to safely take cognisance of traffic, weather and the prevailing circumstances[.]
[21] The Judge held (at [10]) that at the time of the incident, Mr Hoedemaeckers, though on the vessel, had signed command to Mr Birchall at 1800 hours. This was recorded only in the deck log not the official log. The Judge noted Mr Hoedemaeckers’ evidence that “at any time he could decide to retake command of the con of the vessel” and that Mr Birchall was “always subordinate to him” and had to relinquish command when requested. The Judge concluded the change of command was under cl 3.3.16.2, not 3.3.16.1.
[22] After noting Mr Smith’s evidence that Mr Birchall was Master of the vessel at the time though Mr Hoedemaeckers remained in charge and could retake command – which was consistent with the Management Manual – MacKenzie J then related the following evidence:
[12] Mr Billington, an expert called by the prosecution, was asked in evidence in chief to give his explanation of the difference between the roles of the master, the helmsman, and the person conning a vessel. He said:
My understanding is that the master of the vessel is the person who’s in sole charge and overall responsible for the safety of the vessel and all management aspects that go with it. The helmsman is the person who is designated just to do that, take the helm of a vessel when directed so by the officer of the watch or the master. ...
[13] He was also asked about his experience with dual master systems and said:
The systems I’ve been used to operating to depending on the ship size, the bigger ships had two masters on board who used to work a period of 12 on, 12 off. ...
[14] In cross examination, he was asked:
Q. And do you now accept the evidence of Captain Hoedemaeckers and Mr Smith that on the night in question Mr Birchall might have had the con but was still in a role subordinate to Captain Hoedemaeckers?
A. No, I don’t accept that because in the deck log there was actually a signature from Mr Hoedemaeckers, signature from Mr Birchall and the heading was “change of command”. Change of command is far different than a con. To be in command of the vessel, the only person in command of the vessel is a master. If you’ve got the con of the vessel, that doesn’t mean to say you’re in command of the vessel, there is a difference.
[15] Mr Munro, a retired ship’s master called by the defence as an expert, was asked to give his opinion on the characteristics of a master. In his brief of evidence he said:
21. In my opinion, and in my experience, there can be only one Master of the vessel at any one time. That is the person with ultimate authority and responsibility on board the ship. ...
23. The Master of the vessel is at all times in overall command, and responsible for the vessel. For that reason, the Master will always take charge in the event of an emergency arising, even if another officer was previously navigating the ship. ...
[16] He further discussed the concept of “mate/master” and said:
37. With any operation utilising a “Mate/Master” concept, the Mate/Master can only be taken to be junior to, and subordinate to the Master. The Mate/Master is not themselves the Master or even a Master.
40. A Mate/Master can only act under delegation from the Master, as and when the Master decides. …
...
[18] Mr Brown, another retired master, called as an expert for the defence, said in his evidence in chief:
21. In my experience and opinion there is only ever one Master of a ship at any particular time. Certainty is required as to command ...
22. If the Master is to change at sea, or in port with a second Master remaining on board (as happens with the Interisland Line) then there is in my experience always an absolute change of command of the ship. The incoming Master is of equal rank to the outgoing Master, and assumes absolutely all power and responsibility for the ship. An off duty Master then has no power to resume an active role, except by delegation from the on duty Master, or by agreement with him. Put another way, the off duty Master cannot ‘pull rank’.
23. In my experience, the ship’s Official Logbook (as opposed to any other document) will always record who the Master is at any particular time. ... That is precisely so that there is only one Master (one person in command, having overall responsibility) at any one time and there is clarity about who that is.
…
24. The Master may be in his/her cabin asleep, but is nonetheless still the Master. S/he still has the power to resume an active role on the bridge if s/he wishes to do so, or if those s/he has delegated to keep watch wish him/her to do so. Command of watch or the con of the ship might be handed over (delegated) for a period, but command of the ship nonetheless remains with the Master.
25. In my opinion the identity of Master can readily be determined by asking who has ultimate control or command on board a ship.
27. My opinion as to the identity of the Master on Santa Regina at relevant times is then apparent. The First Mate or Mate/Master was delegated some powers by the Master, rather than having full powers of Master themselves.
…
[23] After summarising counsel’s submissions the Judge said:
[24] The issue is whether, in the light of the evidence as to Mr Birchall’s status, he was the “master” in terms of s 31. There are two possibilities that need to be considered; first, that the transfer of responsibility from Mr Hoedemaeckers to Mr Birchall was of such a nature that Mr Birchall became, from the point of transfer, the master in place of Mr Hoedemaeckers; second, that at the relevant time Mr Hoedemaeckers and Mr Birchall each fell within the terms of s 31.
[25] I deal first with the second possibility. As I have noted, “master” is a defined term. It means “any person (except a pilot) having command or charge of any ship”. An important issue is whether, in terms of that definition, there can be more than one person meeting that description for a particular vessel at a given point in time. The reference to “any person” might suggest that there can be more than one. However, the reference to “having command or charge”, might suggest an overall level of responsibility such that only one person is capable of meeting that description for a particular vessel at any given point in time. I consider that, generally speaking, that latter view is to be preferred. The evidence of Mr Munro and Mr Brown is that their understanding of maritime practice is that command is sole and individual. That suggests that the words “command” or “charge” are to be understood as not including a form of control which is itself subject to some overriding command.
[24] Reviewing the “surprising dearth” of authority on the topic, the Judge discussed Slater v Reed and McGrath (The “Varos”) [1980] 2 Lloyd’s Rep 581 where Waller LJ and Stephen Brown J in the Queen’s Bench Division (Divisional Court) held the words “charge or management of the vessel” in the definition of “Master” in the Port of London Act 1968 (UK) meant there could be two Masters of a vessel simultaneously. After considering authority dealing with dual Master systems, MacKenzie J took the view that the decision in The “Varos” was fact specific and affected by the inclusion of “management” of a vessel in the definition, something not found in the definition of “Master” in our Act.
[25] The Judge reached the view it was unnecessary to decide whether the s 2 definition of “Master” is such that “there can only be one person who has command or charge of a vessel at any point in time” because s 31 referred to “the” Master. He held the “use of the definite article clearly indicates that, for s 31 at least, there can only be one master” and “use of the definite article suggests a single responsibility”: at [31].
[26] Considering counsel’s submission that an interpretation consistent with maritime safety was indicated, the Judge held that policy did not “support an interpretation of s 31 which would impose reporting obligations on potentially more than one person in respect of any particular incident”: at [32]. The Judge continued:
[32] … If there are potentially two or more persons who may each have the obligation of “the master” under s 31, that might well lead to confusion and uncertainty as to the performance of the obligation. To take as an example a variant on the facts here: if, during the course of the incident in Tory Channel, Mr Hoedemaeckers had become aware of what was happening and resumed command, who would have been obliged to report? Mr Birchall who was in command at the start of the incident, or Mr Hoedemaeckers who was in command at the end? And if both, what is the position if each understood it was the other’s responsibility? Would that amount to a reasonable excuse under s 71? … The objective of maritime safety, in ensuring such incidents are reported, seems likely to be better achieved if the obligation to report an incident under s 31 is clearly imposed upon one person: the person who is, at the time of the incident, “the master” of the vessel. The master will not necessarily be aware of every reportable incident as it happens. That may be so whenever the master is not on watch, whether or not there has been a change of command under clause 3.3.16.2. It is his responsibility to ensure that measures are in place so that incidents are notified to him so that he is able to meet his s 31 obligations.
[33] The conclusion that there can, as a matter of law, be only one master for the purposes of s 31 at any one time means that it is necessary to consider whether the master was Mr Hoedemaeckers or Mr Birchall.
[27] The Judge then held (at [34]) that cases involving dual Masters, each with “total command” for different time periods, was “the situation provided for in respect of the Santa Regina when a change of command is effected under clause 3.3.16.1 of the manual” but:
[34] ... That is not the situation provided for in clause 3.3.16.2. The transfer of command is not for a defined period of time, and it is not total, as it is subject to the ability of the master to resume command at any time. The person able to resume command does, at all times when that situation exists, have command or charge of the vessel, and could not, at the relevant time, be described as having any other role than that of master.
[35] That conclusion appears to me to be reinforced by clause 4.1.2.2. It is “the Master” who is responsible for the safe navigation of the vessel, even when he is not on the bridge. That term, capitalised, seems clearly intended to refer to “the Master” referred to in Clause 3.3.2. Specific provision would be necessary if Clause 4.1.2.2 was intended to include the First Mate/Relief Master referred to in clause 3.3.3, while that person was relieving that Master under clause 3.3.16.3. The responsibilities of the First Mate at sea are set out in clause 3.3.3.4. …
Submissions
[28] For the appellant, Mr Murray emphasised this was not a dual, tandem or “tag” Masters case. Only one person could have been Master of the vessel at the relevant time. His approach appeared to differ from that which he took in the High Court where, as our quotations from MacKenzie J’s judgment indicate, the argument appears to have been that the vessel could have two Masters.
[29] In light of that, Mr Murray submitted that MacKenzie J, whilst correct to say Mr Hoedemaeckers could have assumed control at any time but did not do so, fell into error when he therefore concluded Mr Birchall was not in command. Once the change in command evidenced in the Santa Regina’s deck log was accepted, then, so Mr Murray submitted, all the s 19(1) duties of Master devolved on Mr Birchall. He emphasised the entry in the “Change of Command” section of the deck log showing Mr Hoedemaeckers “Being Relieved” and Mr Birchall “Taking Over” at Picton at 1800 hours on 9 June 2005. Whoever was Master at the particular time was identified by the deck log, although he acknowledged that cl 3.3.16.1 required a change of command between Masters to be recorded in the official log and this did not occur. He drew attention to passages in the Management Manual supporting that submission, particularly cl 4.1.2.2, requiring the Master to “ensure that he is present on the bridge ... during the transit of pilotage waters”.
[30] He said dual Master systems are used in ocean-going vessels undertaking lengthy passages and in ferry operations involving continuous short voyages. Those ships have two fully certificated Masters on board and the change in command is as mandated by the ship’s operator. Strait Shipping used a variant of the system with a fully certificated Master and a First Mate who was also fully certificated as a Master and took over as Master by virtue of the “Change of Command” procedure. Mr Murray submitted any ambiguity for legal purposes in such situations was resolved by identifying the person actually performing the role of Master at the particular time in the sense of having command or charge of the ship.
[31] Mr Murray submitted MacKenzie J’s analysis of whether Mr Birchall was Master at the relevant time overlooked the reverse onus in s 414:
414 Presumption as to Master of ship
(1) Where, in any proceedings for an offence against this Act or any regulations made under this Act, the informant alleges in any information that any person was, or was not, the master of any ship at any specified time, the allegation shall be presumed to be true in the absence of proof to the contrary.
(2) The presumption in subsection (1) of this section shall apply whether or not separate or further evidence is adduced by or on behalf of the informant in support of the relevant allegation or presumption.
[32] Mr Murray also submitted the Judge’s analysis at [24] was in error: the possibilities were that either Mr Hoedemaeckers or Mr Birchall was Master. However, he accepted the Judge was correct in the similar analysis he undertook at [33]. Mr Hoedemaeckers’s capacity to retake command at any time was correct as far as it went but overlooked the Management Manual capacity for Mr Hoedemaeckers to relinquish command to Mr Birchall. The Judge’s conclusion that there were two Masters at the relevant time (at [35]) was not borne out, either by the Manual or by the facts, Mr Murray submitted.
[33] The definition of “Master” should be considered on ordinary principles of statutory interpretation within the statutory purpose of maritime safety and the many other issues in the Act. Safety, Mr Murray submitted, with extensive reference to definitions and sections in the Act, was a prime statutory purpose. Maritime law in this country has long accepted that relevant legislation should be read consistently as far as possible with the law of the sea: Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 at 57 (CA). Both the Convention on the International Maritime Organization (1958) and the International Convention for the Safety of Life at Sea (1974) (in force in New Zealand since 9 November 1960 and 23 May 1990 respectively), contain codes for the investigation of, and reporting on, marine casualties. Those obligations are part of the wider maritime transport safety regulatory system which includes investigative powers.
[34] That, he submitted, was reinforced by parts 73 and 90 of the Maritime Rules made under part 4 and required by s 39(1) not to be inconsistent with international standards of maritime safety and the health and welfare of seafarers. Rules 73.4 and 73.5 require all owners and masters to ensure ships carry an official log book in which the record of command must be entered and r 90.5(2) and (3) requires each ship to carry a pilot in pilotage areas unless the “master holds a master’s pilotage exemption”. Both Messrs Hoedemaeckers and Birchall held such an exemption for Tory Channel.
[35] In light of those considerations, Mr Murray submitted s 31 prescribed a hierarchy of reporting obligations by Masters, operators and others, with the primary obligation being on the person with immediate authority over the ship’s operation.
[36] Mr McBride, leading counsel for Mr Birchall, submitted that, now the appellant acknowledged Santa Regina had only one Master at the time of the incident, the factual findings in the District and High Courts against Maritime NZ should be upheld. Mr McBride also stressed the “Change of Command” in this instance was only entered in the deck log, contrary to the Management Manual. Mr Hoedemaeckers remained Master at all times in the official log. What occurred on 9 June 2005 was thus a delegation by the Master, Mr Hoedemaeckers, to the mate of some duties for the duration of the Master’s choice with Captain Hoedemaeckers retaining “primary responsibility at all times for all aspects of management on board”. Therefore, he submitted, Mr Birchall was never in charge of the ship as opposed to having control of the ship to a degree. So, as a matter of fact, Mr Birchall’s authority and actions did not come within the duties of a Master as defined by ss 2 and 19. He particularly stressed the Master’s “final authority to control the ship while in command” under s 19(1)(b).
[37] Mr McBride directed attention to passages in the evidence where Mr Hoedemaeckers accepted his primary responsibility for reporting to owners or authorities and any report by Mr Birchall to the company would be through him; that he signed on and off as Master in the ship’s official log; that Mr Birchall was always subordinate to him and he could take over from Mr Birchall at any time; that he retained ultimate discipline over the crew, including the Mate/Master; and that responsibility for compliance with the ship’s safety procedures was his. However, he accepted Mr Hoedemaeckers disagreed when asked if he was “still ultimately responsible for the ship even if Mr Birchall had the con” because he had “already signed over command to him”.
[38] Mr McBride submitted s 31 was focused on matters beyond the person with the “con”, pointing to s 31(2) imposing reporting obligations on the operator in the event of the Master’s incapability.
[39] On the issue of statutory interpretation, Mr McBride relied on the definition of “Master” that the person must be in charge “of any ship”, not, he submitted, only aspects of the ship’s navigation and management, something he submitted was also confirmed by s 19. He contrasted the definitions of “Master” and “pilot” in s 2 with the latter being a person who had the “conduct of the ship”. As in the Courts below, he stressed the use of the definite article in s 31(1). He submitted Masters are differentiated from other persons on board in a number of other sections of the Act. They included the s 2 definition of “crew” which excludes the Master, s 9 preserving Masters’ traditional rights and liens for wages as a member of the crew, ss 60A and 60B which make the Master responsible for the provision of pilotage, and provisions such as ss 237, 238, 239, 263 and 264 creating offences for discharge of harmful substances into the sea, failing to report pollution incidents and offences relating to the unlawful dumping of waste overboard. The Master has express obligations in those respects as do other persons involved in the operation of the ship. He stressed the provisions of s 461(1) which requires consular offices to be notified of the detention of foreign ships followed by proceedings against the owner “or any other person for the time being responsible for the navigation or management of the ship or against the master of the ship”. In light of those provisions, Mr McBride submitted, it would be incorrect to construe s 31(1) by equating the position of persons responsible for navigation and management with the “Master”.
[40] Mr McBride also noted the definition of “Master” remains as it was under s 2 of the Shipping and Seamen Act 1952 and that in MacFarlane v Erber [1990] 2 NZLR 69 at 75 (HC), Tipping J held, in a judicial review of the District Court’s refusal to dismiss an information creating an offence of negligent navigation or operation of a ship (s 290 of the 1952 Act), that:
… it seems to me that s 290 as a whole is drafted on the premise that the master of a ship is prima facie absolutely responsible for the navigation and operation of his ship and its machinery and equipment.
[41] Finally, despite the neutral view he took in relation to Maritime NZ’s application for leave to bring this appeal, Mr McBride submitted no appeal properly lay to this Court. He relied on Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 at [25] where the Supreme Court held that though a statutory test is a matter of law, the satisfaction of such test is a question of fact. Here, he suggested, the latter applied.
Discussion and decision
[42] We take the view that Mr McBride’s point based on Bryson cannot prevail. The question of law as we have formulated it is a mixed one of fact and law and, leave to appeal having been granted with Mr McBride’s acquiescence, we consider it preferable to deal with the appeal on that mixed basis.
[43] There are three approaches to the question whether a person in Mr Birchall’s situation during the incident was “Master” for the purposes of s 31: interpretative, historical and factual.
[44] The interpretative approach first makes clear that the definition of “Master”, in referring to “any person”, does not require that a single person be the Master of a vessel at all times, but rather applies to the person who fulfils the qualifications of the definition at a particular time. Section 31 imposes its obligations on “the” Master which suggests those obligations can only reside in one person at any one time, but that goes no further than to show that the definition of “Master” and the ambit of s 31 are intended to be both facultative and functional, that is to say, to impose the s 31 obligations on whoever happens to fulfil the definition al requirements at the time the reporting obligations in s 31 arise.
[45] Next, the definition of “Master” focuses on the person “having command or charge” of a ship (emphasis added). The use of the disjunctive must have been intentional (as the historical section of this judgment confirms) and the lack of statutory definitions of the words “command” and “charge” embraces both formal requirements such as compliance with Management Manuals and the Maritime Rules and the factual circumstances.
[46] There being no statutory definition of “command” or “charge”, the dictionary definition of “command” as a noun should be adopted: “the faculty of commanding; exercise of authority; rule; control; sway; spec that of a military or naval commander” (Oxford English Dictionary (2ed Vol III) at 541). Similarly, the dictionary definition of “charge” is of assistance: “the duty or responsibility of taking care of [a person or thing]; care; custody; superintendence” (OED (2ed Vol III) at 36).
[47] The adjectival use of the present participle “having” in the phrase “having command or charge” also denotes the nouns being restricted to persons who possess the quality or state denoted by the adjective. It thus centres attention on the actions of the person factually having the functions of “command” or being “in charge” at the relevant time, rather than on the rank of any other person on the vessel who could take command or charge but has not actually done so.
[48] Focusing on the functions being fulfilled by the person whose actions are under consideration and thus whether they meet the definition of “Master” could mean a person falling within that definition though not certificated or qualified in formal terms to be a “Master”. Such should never occur, but nonetheless the obligations under ss 19 and 31 devolve on the person “having command or charge” of the ship at the relevant time and thus coming within the definition of “Master” even though not authorised in formal terms so to do. However, it does not follow that, where a qualified Master is on board, the Court would find that an attempt to pass over command or charge of the vessel to an unqualified person was effective, or that the vessel was without a Master at any given time.
[49] Therefore, providing the person whose actions are under consideration either has command – in the formal or factual sense – or is in charge of the ship in the sense of having its overall management – that is, being responsible for her navigation and for the ship’s complement, passengers and cargo – that person would be the Master of that ship and would incur the reporting obligations in s 31.
[50] Interpreting the word “Master” in that sense also conforms with the broader aims of the Act and in particular the statutory and regulatory focus on safety at sea, coupled with the investigation and reporting of marine casualties with a view to enhancing safety at sea. It is of significant importance that the person actually in command or in charge of the ship is to have the statutory obligations required by the overall statutory purpose of safety at sea and the obligation to respond to subsequent investigation.
[51] Though doubtless intended to militate against the taking of technical points in prosecutions where safety at sea is often an issue, s 414 is not of great assistance in the present case. The presumption that a defendant charged as Master was in fact the Master until proved otherwise does no more than focus on whether the defendant can be shown to come within the statutory definition of “Master”.
[52] On that basis, while the formality of the “Change in Command” between Messrs Hoedemaeckers and Birchall was of importance in deciding which was shown to have had “command” of the ship at the time of the incident, it was not definitive given Mr Birchall was at least in operational control of the ship at the time. Although the “change of command” between Masters was not formally endorsed in the official log, cl 3.3.16.3(iv) only required changes of command from Master to First Mate and reversals to be recorded in the deck log. We think, with respect, MacKenzie J’s discussion on this topic might have been more pertinently focused on cl 3.3.16.3(iv) of the Management Manual.
[53] Even if compliance with cl 3.3.16.1(i) was additionally required, the entry in the deck log was sufficient to indicate that as between Messrs Hoedemaeckers and Birchall the former had handed over command or charge of the ship to the latter. Thus Mr Birchall was in command or charge at the time of the incident. This was not a mere relieving of the Master by the First Mate under cl 3.3.16.2.
[54] In summary on this point, “Master” is defined to mean the person having command or being in charge of a ship. It is not an “includes” definition. It focuses on the functions being fulfilled. Do they amount to “command” of the ship? Do they amount to the person being “in charge of” the ship? If, as a matter of fact they do, then the person fulfilling those functions is the “Master” of the ship at that time and incurs the Master’s statutory obligations, including that of reporting under s 31.
[55] Turning to history, the definition of “Master” is venerable and widespread. It appears, at the latest, in s 2 of the Merchant Shipping Act 1854 (UK) and was repeated in s 742 of the Merchant Shipping Act 1894 (UK). The latter was the template for s 2 of the Shipping and Seamen Act 1908, and has remained unchanged through s 2 of the Shipping and Seamen Act 1952 to the present time. It is repeated in other jurisdictions such as s 3(1) of the Navigation Act 1912 (Cth).
[56] Had there been difficulties over the years in deciding whose actions constituted him or her as “Master”, much precedent might have been expected. As it is, however, as MacKenzie J noted, there are few decided decisions on the point. The decision in The “Varos” does seem to be influenced by the inclusion of “management” in the definition of “Master” in the relevant statute. However, we note that in Beilby v Scott (1840) 7 M&W 93 at 101; 151 ER 692 at 696 the “conduct and charge” of a vessel was held to include selection of a course.
[57] As expected, a modern day Master’s rights and obligations are, for the most part, statutory and regulatory but nonetheless history suggests that, in interpreting the phrase “having command or charge” of a ship, a broad factual approach is mandated. Who was it, at the time in question, who was in command of the ship or in charge of her?
[58] That brings us to the factual analysis.
[59] In semi-formal terms – not totally in compliance with the Management Manual – Mr Hoedemaeckers changed command of the Santa Regina to Mr Birchall at 1800 hours on 9 June 2005 by the entry to that effect in the deck log. Thereafter, it was Mr Birchall who was in “command” of the vessel unless and until command was retaken by Mr Hoedemaeckers. Although Mr Hoedemaeckers could have re-taken command as permitted by cl 3.3.16.3(ii), we do not see this as supporting the proposition that Mr Birchall was not in command or charge of the ship at the time of the incident. Unless and until Mr Hoedemaeckers re-took command, the responsibilities of Master remained with Mr Birchall, particularly that provided for in cl 4.1.2.2 of the Manual.
[60] Then, focusing on the disjunctive phrasing in the definition of “Master”, there can be little doubt that Mr Birchall had “charge” of the ship during the Tory Channel manoeuvre. He had the “con”. He overrode the auto pilot and undertook manual steering. He turned the ship first to starboard and then to port. Although he took those actions himself, additionally he had the power to “command” the helmsman to undertake them. He therefore had “charge” of the ship during the incident.
[61] Mr Birchall was thus in “command” or “in charge” of the Santa Regina during the Tory Channel incident.
[62] True, certain residual obligations or rights remained with Mr Hoedemaeckers throughout the incident, as appears from passages in MacKenzie J’s judgment and the summary of Mr Hoedemaeckers’ evidence earlier in this judgment. In that sense there was certain weight in Mr McBride’s submissions that, in quite significant respects, Mr Hoedemaeckers had “final authority” in terms of s 19(1)(b) to control the ship. But that does not, in our view, undermine to any significant degree the view that, functionally, at the time of the Tory Channel incident Mr Birchall was in “command” or in “charge” of the Santa Regina. The functions mentioned by Mr Hoedemaeckers were matters which did not require exercise of his authority at the relevant time. His evidence appeared to suggest that they would be dealt with when he was in actual command, ie when he was again acting as Master. However, as we read the Manual, Mr Birchall could have exercised those functions if the need to do so had arisen during the time that he was acting as Master. The fact that Mr Hoedemaeckers envisaged that he would deal with matters of that type when he was in actual command or charge of the vessel does not undermine the fact that, once the handover to Mr Birchall had occurred, Mr Birchall was the Master.
[63] The fact that the Act spreads a wide net in relation to those who may be guilty of offences reflects the statutory purpose of enhancing safety at sea. And the fact that the Act may be inconsistent in its descriptions – such as those in s 461(1) – does not detract from the fact that Mr Birchall was prosecuted under s 31(1) and that section centres on whether he was proved to have been “Master” as the relevant time.
Result
[64] In light of that discussion, we take the view that Mr Birchall was the person “having command or charge” of the Santa Regina at the relevant time. That result is consistent with the statutory obligation of the person holding that position including responsibility for the safety of the ship, complement and cargo and the reporting obligation to comply with s 31. That conclusion is also consistent with such authority as there is and fits the factual circumstances.
[65] In the result we allow the appeal and hold that the respondent, Mr Birchall, came within the definition of “Master” under s 2 of the Maritime Transport Act 1994 during his conduct of the vessel Santa Regina exiting Tory Channel on 9 June 2005, he having “command or charge” of the ship on that occasion.
[66] The elements of an offence under s 31 of the Maritime Transport Act 1994 by Mr Birchall were accordingly correctly held to have been made out in the District Court but, since Maritime NZ did not seek reinstatement of Mr Birchall’s conviction which was quashed by the High Court, no more than our recording of that conclusion is required.
Solicitors:
Maritime New Zealand, Wellington, for Appellant
McBride Davenport James, Wellington, for Respondent