Birchall v Maritime New Zealand

WELLINGTON REGISTRY
CRI 2007-485-79

DAVID WILLIAM BIRCHALL
Appellant

v

MARITIME NEW ZEALAND
Respondent

Hearing: 22 April 2008

Appearances: P A McBride for appellant
K I Murray for Respondent

Judgment: 29 May 2008

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 12.45pm on the 29th day of May 2008.

RESERVED JUDGMENT OF MACKENZIE J

The issue on this appeal

[1] The appellant, Mr Birchall, was charged in the District Court at Wellington on three charges under the Maritime Transport Act 1994 (the Act), arising out of an incident when the Bluebridge Cook Strait ferry “Santa Regina” was making her passage through Tory Channel in the Marlborough Sounds bound for Cook Strait and Wellington on the night of 9 June 2005. In a reserved judgment delivered on 28 May 2007, following a defended hearing in March 2007, he was acquitted on two counts, under s 65(1)(a) of the Act, of operating the ship in a manner causing unnecessary danger or risk to property. On the third count, alleging a failure to comply with s 31(1) of the Act, (that being the master of the vessel involved in an incident, he failed to notify the incident to Maritime New Zealand as soon as practicable) he was convicted. He appeals against that conviction.

[2] The essential question on this appeal is whether, at the relevant time, Mr Birchall was the “master” of the vessel. The term “master” is defined in s 2 of the Act. In the Act, unless the context otherwise, requires ““master” means any person (except a pilot) having command or charge of any ship”.

The Judge’s findings on this issue

All three charges alleged that Mr Birchall was the master of the Santa Regina. However, under s 65, that allegation was not an essential ingredient of the offence. Under s 31 it was. Section 31(1) provides as follows:

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.

Under s 71, every person commits an offence who, without reasonable excuse, fails to comply with s 31.

[3] The question whether Mr Birchall was the master of the vessel was addressed by the learned District Court Judge when dealing with the s 65 charges in these terms:

[10] Much has been made in this case of whether Mr Birchall was or was not the master of the Santa Regina. It is alleged in the charges that he was.

[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 that 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] In considering this issue, the starting point must be the words of s 65(1) which I now set out:

65 Dangerous activity involving ships or maritime products

(1) Every person commits an offence who–

(a) Operates, maintains, or services; or

(b) Does any other act in respect of –

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.

[14] In my view it does not matter that Mr Birchall is described in the charge as Master. The capacity in which Mr Birchall is alleged to have operated the ship, whether as Master, Mate/Master, Officer of the Watch, is irrelevant to the real inquiry which is whether it is proved Mr Birchall, at the relevant time, “operated” the Santa Regina.

[15] Liability under s 65 is not dependent on rank. It arises in relation to the operation of the ship.

...

[17] Accordingly, it is not necessary for the Informant to prove that Mr Birchall was the master. The charge could omit those words and still properly charge an offence under s 65 of the Act.

[18] The Act contains the definition of “Master” which extends the description beyond the person listed in the ship’s company as master:

Master means any person (except a pilot) having command or charge of any ship.

[19] The definition, by excluding a pilot, recognises that a person other than the master in the ordinary sense, may have charge of a ship. A pilot may have charge of a ship, may have the con, may be giving the navigation orders, but that does not bring him or her within the definition of master.

[20] I am satisfied on the evidence that Mr Birchall operated the Santa Regina in Tory Channel entrance on 9 June 2005.

[4] The Judge returned to this issue when dealing with the charge under s 71 (alleging a breach of s 31), where, in contrast to the s 65 charges, liability was dependant upon the prosecution proving that Mr Birchall was the master of the vessel. He said:

[90] I turn finally to consider the charge under s 71. 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 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 reach Wellington. It was not done for 4 days. Mr Birchall has not established a reasonable excuse for this failure. This charge is now proved.

[5] In the course of his judgment, the Judge made certain statements which Mr McBride submits amount to findings of fact to the effect that Mr Birchall was not the master of the Santa Regina. He refers in particular to paragraph [11], which I have set out, and to a number of other passages in which he referred to Mr Hoedemaeckers as “the master”, and also to passages where he referred to Mr Birchall as “subordinate”.

[6] The question whether Mr Birchall is the master of the vessel or not is a mixed question of fact and law. It involves two questions:

(a) What are the relevant facts concerning the appellant’s status on the vessel at the relevant time? and

(b) Does that factual status bring the appellant, as a matter of law, within the term “master” as that term is used in s 31?

[7] Because the Judge held that the appellant’s status, whether as master or mate, was not relevant to the two more serious charges under s 65, to which the case before him was principally directed, and which formed the principal focus of his judgment, there are limited factual findings on the appellant’s status. It would not be appropriate, in those circumstances, to confine consideration, on the first question, to the Judge’s findings. A wider examination of the evidence on this issue is required and it is necessary to venture beyond the findings of fact made by the Judge. The evidence on the issue

[8] The master of the vessel on 9 June 2005 was Mr Hoedemaeckers. His evidence in chief was given by way of a written brief in which he said:

[5] On 9 June 2005 I was the master of the Santa Regina. At 1800 hours I signed command of the vessel over to David Birchall. This was recorded in the Santa Regina’s deck Radio Log.

[8] Strait Shipping Limited operates a system whereby they have two masters on board the vessel. One is the master. The other is the mate/master. This system enables the vessel to be operated for 24 hours while ensuring that both the master and the mate/master do not work excessive hours. As master of the vessel, I have primary responsibility at all time for all aspects of management on board the vessel. But to enable me to rest I sign command of the vessel over to a mate/master. The mate/master is in charge of the safe navigational conduct of the vessel both at sea and within pilotage waters. The change of command is recorded in the deck logbook.

[9] At the time of the incident the process for handing over change of command was set out in Strait Shipping Ltd’s Ship Management Manual at section 3.3.16.

[9] The allocation of duties and responsibilities on the vessel, and the procedures for change of command to which Mr Hoedemaeckers referred, are set out in section 3.3 of the Ship Management Manual of the owners of the Santa Regina. The most relevant provisions for present purposes are as follows:

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/her 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 must 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 water in sufficient time to safely take cognisance of traffic, weather and the prevailing circumstances.

[10] At the time of the incident on 9 June 2005, Mr Hoedemaeckers was on the vessel, as master. He had signed command of the vessel over to the appellant at 1800 hours, and this was recorded in the deck radio log. In cross examination, Mr Hoedemaeckers agreed that at no time on that day was Mr Birchall signed on as the master in the ship’s official log book, and he agreed that at any time he could decide to retake command of the con of the vessel. He agreed that in terms of the hierarchy on 9 June 2005, Mr Birchall was always subordinate to him and he agreed that he could take back command of the watch at any time and Mr Birchall, as first mate, must relinquish that when requested to do so. I consider that it is clear on his evidence that the change of command was under 3.3.16.2, not 3.3.16.1.

[11] Mr Smith, who was the officer of the watch on the voyage in question said in his brief of evidence “David Birchall was the master of the Santa Regina”. In cross examination, he agreed that Mr Hoedemaeckers remained in charge throughout and could retake command at any time he chose and that Mr Birchall had not signed on as master in the official log book. His evidence was also consistent with the change of command being in accordance with 3.3.16.2 rather than 3.3.16.1.

[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. Conning the vessel would be whoever is in charge of the navigational watch who has the con obviously must ensure that the course and speed of the vessel is one of safe at all times, so the master doesn’t necessarily need to be in charge of the bridge. It could be a second officer who is in charge of conning the vessel.

[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. Depending on the roster generally, both Masters would relieve at midnight and they would sign in the logbook the words to the effect that they take command of the vessel. On smaller vessels similar to the Santa Regina, we operated a very similar system to what Strait Shipping do, where you have a night master on board the vessel and a fulltime or generally what they used to call a senior master, and the night master would sign and take over command of the vessel so the senior master then could get his hours of rest.

[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. That concept applies irrespective of the type of ship or operation that is being considered.

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. Documented emergency procedures will invariably show who is ultimately in charge of 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.

41. I do not believe a vessel should be operated with this Mate/Master system. A Master of the vessel can, and should be, in my opinion only ever be “relieved” by another Master or equal rank, and not by the Mate or any other lower rank.

[17] In cross examination, when being questioned about Mr Birchall’s pilotage exemption (a topic to which I later return) he was asked: “So you’d accept that Mr Birchall was only told to rely on his pilotage exemption when he was in command of the vessel?”. And his answer was: “Well, Mr Birchall, in my opinion, was not in command of the vessel. Mr Hoedemaeckers was in command of the vessel.” When the point was pursued with him he gave the following answer: “Well, it doesn’t alter my view, Sir, that in my opinion Mr Birchall was the mate doing the pilotage at the time. He was not the master in command of the vessel in total overall command.”

[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 – to take an extreme example, which of two Masters is to be obeyed by a helmsman, if one gives an order to turn to Port and another to Starboard?

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. Certainly a formal signing over in the Official Logbook has always occurred in my experience at the time of a change of Master. 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.

28. Indeed, in my opinion the arrangement operated on the Santa Regina is a more sensible, professional and probably internationally accepted one than that in operation in the Interisland Line.

[19] That evidence was not substantially affected by cross examination.

Was Mr Birchall the ‘master’ under s 31?

[20] In the light of the Judge’s findings, and supplementing those findings to the extent that I am able from the evidence, I must now consider the essential question on this appeal, namely whether the prosecution had proved, beyond reasonable doubt, that Mr Birchall was the master (as that term is used in s 31 of the Act) of the Santa Regina at the time of the incident in Tory Channel on 9 June 2005.

[21] I first summarise briefly the main submissions of counsel on this issue.

[22] Mr McBride for the appellant submits that the words “the master” in s 31(1) of the Act have a meaning which accords with the meaning of those words in ordinary maritime parlance. He submits that the definition in s 2 requires command or charge of any ship, not merely charge of some aspect of the ship’s operation, such as navigation, or the con of the vessel. He submits that it requires much more than being the on the spot second tier manager, and that overall command of the ship, or overall charge of the ship, is required. He submits that that definition is supported by the wording of the Act, by the scheme of the Act, and its legislative history, and by the general maritime context. He submits that it is elementary that (save where the peculiar statutory provisions require a different answer) a ship only ever has one master at any one time, that no different answer is required by the Act, and indeed a different answer is not consistent with the Act; that under the Act the master, even when not on watch, has accountability of the ship’s operations, and delegation of duties in relation to navigation does not make the delegate “in charge of the ship” and therefore master, even if the delegate becomes “for the time being responsible for the navigation”.

[23] Mr Murray for the respondent submits that:

(a) The facts of this case are special because the operator elected to utilise a dual master system;

(b) There was a clear hand over of command from one master to another as officially recorded in the deck log book;

(c) The appellant clearly falls within a plain meaning interpretation of s 31 and the definition of “master”;

(d) Both the appellant and his employer clearly accepted that it was the appellant who had the obligation to report the incident and he did so, albeit four days late;

(e) The plain meaning interpretation contended for by the respondent is consistent with the context of the reporting obligation which is the starting point for accident and incident investigation procedures in the Act and in the Transport Accident Investigation Commission Act 1990. Those procedures are an essential means for achieving the safety purposes of both Acts and they give effect to international law;

(f) The domestic context is the provisions in the Act creating New Zealand’s safety regulatory system in which the director of the respondent needs to be in a position to take urgent safety measures in response to an accident or incident; and

(g) A purposive construction therefore supports the argument that the person in command or charge of the ship at the time of the incident becomes subject to the obligation in s 31.

[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.

[26] There is a surprising dearth of authority on the point. Counsel’s researches have discovered one case in which two persons (including one who was clearly in a subordinate position to the other) were each held to be a “master” of the vessel at the time in question. That is the case of Slater v Reed and McGrath (The “Varos”) [1980] 2 Lloyds Rep 581, a judgment of Waller LJ and Brown J in the Queen’s Bench Division (Divisional Court). In that case, the vessel Varos had been hired for an excursion on the River Thames. Mr Reed was master of the vessel and Mr McGrath was mate. Shortly after leaving Tower Pier, Mr Reed handed the wheel to Mr McGrath with instructions to continue upstream in the same straight course in the centre of the river, while Mr Reed went below to the saloon to attend to other matters. A radio message was received by Mr McGrath to the effect that some passengers had been left behind and he turned the vessel to return to Tower Pier. In the course of that manoeuvre a strong ebb tide caused the vessel to collide with a buttress of Southwark Bridge. Informations were laid against both Mr Reed and Mr McGrath. The relevant offence, under the Port of London River Bylaws, had as a necessary ingredient that the person concerned was a master navigating his vessel. The Justices concluded that Mr Reed remained master of the vessel throughout but was not navigating at the time of the incident, while Mr McGrath was navigating at the time of the incident but at no time was he master of the vessel. A number of questions were stated for the opinion of the High Court, including the question of whether Mr McGrath was master of the vessel. The term master was defined in the relevant legislation to mean “any person having or taking the command, charge, or management of a vessel for the time being.” Brown J said:

I am quite satisfied, after some initial hesitation, that “Master” does have the particular meaning which the appellant contends for in this case. It is conceded, indeed the Justices found, that Mr Reed was at all times the master within the meaning of the section. In relation to Mr McGrath, on the finding of the Justices, he must at least have been a person having “the management of the vessel for the time being”. It is pointed out, and I accept, that the definition of master does not stop at “command”, it includes “charge or management of the vessel for the time being”. It is disjunctive and it envisages a temporary situation in the words “for the time being”. I think there can be no escape on the facts actually found by the Justices from the conclusion that Mr McGrath was a person who at the relevant time at least had the management of the vessel for the time being. Therefore he was the master, since it is not contested that he was navigating the vessel. It must follow that the Justices ought to have found that both informations under s 108 in relation to Mr McGrath were established.

[27] Waller LJ said:

It is in my view, beyond doubt that the respondent McGrath had the charge or management of this vessel for the time being. That is the statutory definition of “Master” for the purpose of this act and the rather surprising fact that in addition to the real master of the vessel there could also be a master complying with the subsection no doubt caused difficulty in the Magistrates’ minds. But I am quite satisfied that the construction given in the judgment which has just been delivered is the correct one.

[28] Counsel for the appellant also referred to a decision of the UK Employment Appeal Tribunal in P&O Ferries (Bermuda) Ltd v Spencer (28 February 2005). That case dealt with the terms of employment of masters employed on P&O’s cross channel ferries, where a system of dual command was operated. The Tribunal noted that on these ships two masters are employed. It described this as exceptional in the shipping industry in that most ships have only one master, but the special demands of cross channel ferries are such that two masters are employed. Each of the masters was rostered to be in command for a defined period of time. Counsel for the appellant draws attention to the description of the Tribunal of the practise as being “exceptional in the shipping industry” and that “most ships have only one master”.

[29] Another case in which a dual master system was used is McDermid v Nash Dredging and Reclamation Co Ltd [1987] 2 All ER 878 (HL). That case involved a tug engaged in operations that continued round the clock so that the complement of the tug worked shifts. There were two masters of the tug, each of whom worked a 12 hour shift. That case proceeded on the basis that it was the on-duty master who was the master for the purposes of determining the liability of the defendants.

[30] I consider that the decision in The Varos is to be seen as depending heavily upon the facts in that case, and the particular wording of the regulations in question. Both Judges clearly found the conclusion that there could be two masters at the same time a surprising one. Considerable reliance was placed on the words in the definition of master, "the management of the vessel for the time being”. The preceding words in the definition of master are similar to that in s 2 of the New Zealand Act, but these additional words are absent from it. It seems clear that, without the addition of these extra words, Mr McGrath would not have fallen within the definition. On the wording of the s 2 definition, I too would find surprising the conclusion that there can at the same time be two masters.

[31] It is however unnecessary for me to decide whether, in all contexts, 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. This case is concerned with s 31, which refers to “the master”. In my view, the use of the definite article clearly indicates that, for s 31 at least, there can be only one master. In reaching that view, I do not overlook s 33 of the Interpretation Act 1999 which provides that words in the singular include the plural, and vice versa. Here, the use of the definite article suggests a single responsibility. That amounts, under s 4 of the Interpretation Act, to a contextual requirement for a different interpretation than that prescribed by s 33.

[32] Mr Murray places considerable reliance upon the need for maritime safety to prevail, and for the need to ensure an interpretation consistent with New Zealand’s international obligations in respect of safety at sea. Both of those matters are indeed very important. But I do not consider that those considerations support an interpretation of s 31 which would impose reporting obligations on potentially more than one person in respect of any particular incident. That may hinder, rather than help, the objective. 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? These questions tend to show that, rather than improving accountability for reporting incidents, imposing liability on more than one person is likely to lead to uncertainty. I consider that the important considerations to which Mr Murray refers are better ensured, in relation to s 31, by the application of President Truman’s motto “the buck stops here.” 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.

[34] Under a system of dual masters, one master will have total command for a defined period of time, and another for a different defined period of time. That appears to be the situation envisaged in the P&O Ferries case. It was the situation in McDermid v Nash Dredging and Reclamation Co Ltd. It is also 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. 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. As the sections in the manual dealing with other officers (not reproduced in this judgment) make clear, those responsibilities are those of an officer of the watch, not of a Master. If the First Mate who has relieved the Master under clause 3.3.16.2 is a “master”, that necessarily involves the proposition that there were, at the relevant time, two masters.

[36] It is necessary to consider one further aspect. Tory Channel is situated within a compulsory pilotage district. Under part 90 of the Maritime Rules, made under the Act, pilotage in such a district is compulsory. There is under r 90.5(3), an exception in that “the master of a ship … is not required to ensure the carriage of a pilot on the ship in a pilotage area if the master holds a master’s pilotage exemption …”. Both Mr Hoedemaeckers and Mr Birchall held an appropriate pilotage exemption. How the practices of the owners of the Santa Regina for transfers of command between Master and Master/Mate fit with that requirement is not an issue which is before me. I express no view on it. I do however observe that, to the extent that reliance may have been placed upon Mr Birchall’s pilotage exemption at the time of this incident, I do not find that reliance to be of assistance in determining the question which I must determine, namely whether Mr Birchall was “the master” for the purposes of s 31 at the relevant time.

Result

[37] For these reasons, I consider that an essential element of the charge against Mr Birchall, namely that he was at the relevant time the master of the Santa Regina, has not been established by the prosecution. Accordingly, the appeal is allowed and the conviction is set aside.

[38] Counsel may submit memoranda as to costs.

Solicitors: McBride Davenport James, Wellington, for appellant
S Winson, Maritime New Zealand, Wellington, for respondent