Wright v Maritime Safety Authority

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CRI 2007 409 80

JOHN GLENVILLE WRIGHT
Appellant

v

MARITIME SAFETY AUTHORITY
Respondent

Hearing: 14 June 2007
Appearances: O G Paulsen for Appellant
RKP Stewart for Respondent
Judgment: 27 June 2007

JUDGMENT OF CHISHOLM J

[1] As the result of an incident involving the appellant’s fishing boat and a chartered boat on 28 January 2006, the appellant was charged with two offences alleging breaches of the Maritime (Offences) Regulations 1998. Following a summary hearing in the District Court the first charge, which alleged that the appellant had breached Rule 22.7 (Risk of Collision) of the Maritime Rules, was dismissed. The appellant was, however, convicted on the other charge which alleged that he had breached Rule 22.8 (Action to Avoid Collision).

[2] The appellant appeals against his conviction for breaching Rule 22.8. It is alleged that in finding the charge to have been proved the Judge made several errors of law. Although there is no appeal against the sentence, which required the appellant to pay Court costs and a solicitor’s fee, it is alleged that some of the remarks made by the Judge when sentencing the appellant confirm that the conviction is unsound.

Background

[3] For many years the appellant, a commercial fisherman, has fished for groper at “Toddy’s Patch” which is located approximately 13.5 kilometres off the Akaroa Heads. It is believed that at this location there is a large rock about 75 metres below the surface where pyramid shaped schools of groper congregate and move from side to side depending on the tide.

[4] When fishing at this location the appellant uses three “Dahn lines”. Each line has 15 hooks and a grapnel which enables the bottom of the line to be attached to the ocean bed. Once the line has been laid the other end of the line is supported by a surface and some sub-surface buoys which drift with the tide, thereby taking the hooked part of the line through the school of groper.

[5] After the three Dahn lines have been deployed the appellant retrieves the Dahn lines by travelling to the point where each surface buoy has drifted, which is approximately 50 meters down tide from where it was launched. The Dahn line is winched back on to the boat which drifts with the tide. As fish are removed the line is re-baited following which the appellant relocates the school of fish and relaunches the Dahn line above the school.

[6] At around 8am on 28 January 2006 the appellant began fishing at Toddy’s Patch from his vessel, the Cherilyn J, which is 35 feet in length. Later that morning a chartered vessel, the Hydro Express, also arrived to fish in the same area. The Hydro Express is 8.75 metres in length. It had been chartered by eight fishermen. There has been a history of bad blood between the skippers of the two vessels.

[7] The skipper of the Hydro Express, Rodger Withell, alleged that after the fishermen on board his vessel had begun to fish from all points around the vessel, he noticed that the Cherilyn J was approaching. Although the two outboard motors on his vessel were idling, they were in neutral and the propellers were stationary. At the time Mr Withell was at the stern of his vessel supervising his clients.

[8] According to Mr Withell, the Cherilyn J circumnavigated his boat from a distance of about 30 metres. His evidence was that the Cherilyn J was travelling at about 5 knots and that after it had circumnavigated his vessel it then set a course which would have seen it collide with the outboard motors at the rear of the Hydro Express had he not quickly moved his vessel forward by four or five meters to allow the Cherilyn J to pass astern.

[9] The appellant admitted that he had approached the Hydro Express and circled it while travelling at about five knots and that he had stopped about four or five metres from the stern of the Hydro Express. His explanation was that he was searching for the school of groper on his depth sounder so that he could drop a Dahn line. He said that he carefully motored around the Hydro Express at idle speed before locating the school and dropping his Dahn line about four or five metres from the stern of the Hydro Express.

[10] Two fishermen on board the Hydro Express gave evidence. Neither supported Mr Withell’s version of events. They said that they did not feel that their safety had been endangered by the Cherilyn J. The two fishermen also said Mr Withell did not move the Hydro Express forward until after the Cherilyn J had stopped and dropped its Dahn line.

[11] It is common ground that after the Hydro Express moved forward at least one of the fishing lines off the Hydro Express became snagged. Whether this was attributable to the appellant’s Dahn line is not entirely clear, but this is not a matter of crucial significance in the present context.

[12] Following this incident a complaint was lodged by Mr Withell with Maritime New Zealand and the two charges were laid. The appellant was interviewed by Ms Brangwin, an officer of Maritime New Zealand, who later gave evidence, including opinion evidence, in support of the prosecution. There is a preliminary issue about the admissibility of the opinion that she expressed. I will return to that matter shortly.

The Maritime Rules

[13] Section 36 of the Maritime Transport Act 1994 authorises the promulgation of Maritime Rules and the rules relevant to this appeal are included in Part 22 which is headed “Collision Prevention”. The Rules record that the objective of this Part is to provide “steering and sailing rules (rules of the road) for ships … for collision avoidance”. It is not disputed that these rules applied to the appellant.

[14] The first section of Part 22 deals with “steering and sailing” and the first subsection within that section is headed “Conduct of Vessels in any Condition of Visibility”. Under that sub-heading there are a set of Rules covering look-out, safe speed, and the following:

“22.7 Risk Of Collision

(1) Every vessel must use all available means appropriate to the prevailing circumstances and conditions to determine if the risk of collision exists. If there is any doubt, such risk must be considered to exist.

(2) Proper use must be made of radar equipment, if fitted and operational, including longrange scanning to obtain early warning of the risk of collision and radar plotting or equivalent systematic observation of detected objects.

(3) Assumptions must not be made on the basis of scanty information, especially scanty radar information.

(4) In determining if the risk of collision exists, the following considerations must be among those taken into account—

(a) such risk must be considered to exist if the compass bearing of an approaching vessel does not appreciably change; and

(b) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.

22.8 Action To Avoid Collision

(1) Any action to avoid collision must be taken in accordance with the requirements of this Section and, if the circumstances allow, be positive, made in ample time and with due regard to the observance of good seafaring practice.

(2) Any alteration of course or speed or both to avoid collision must, if the circumstances of the case allow, be large enough to be readily apparent to another vessel observing visually or by radar. A succession of small alterations of course or speed or both should be avoided.

(3) If there is sufficient sea-room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that—

(a) it is made in good time; and

(b) it is substantial; and

(c) it does not result in another close-quarters situation.

(4) Action taken to avoid collision with another vessel must be such as to result in passing at a safe distance. The effectiveness of the action must be carefully checked until the other vessel is finally past and clear.

(5) If necessary, to avoid collision or to allow more time to assess the situation, a vessel must slacken its speed or take all way off by stopping or reversing its means of propulsion.

(6) (a) A vessel that, by any rules in this Part, is obliged not to impede the passage or safe passage of another vessel must, when required, take early action to allow sufficient sea-room for the safe passage of the other vessel.

(b) A vessel that is required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision. It must, when taking action, have full regard to the action which may be required of itself and the other vessel by this section of Part 22.

(c) A vessel the passage of which is not to be impeded remains fully obliged to comply with this section of Part 22 when the two vessels are approaching one another so as to involve risk of collision.”

The remaining Rules in this subsection cover “narrow channels” and “traffic separation schemes”.

[15] In terms of s 3 of the Marine (Offences) Regulations 1998 persons failing to comply with Rule 22.39 of the Maritime Rules commit an offence. Rule 22.39 requires owners and persons responsible for the navigation of vessels to observe the Rules in Part 22.

District Court Decision

[16] When concluding that a breach of Rule 22.7 had not been established the Judge made a number of findings: at the relevant time the conditions “were near perfect, being calm and clear”; the Hydro Express and its owner were known to the appellant; the appellant was able to use his eyesight to plot the Hydro Express’s course; he was able to observe that the passengers were fishing from all around the vessel and that Mr Withell was standing at the stern of the vessel; the appellant would have been aware from the fishing activities on the Hydro Express that “although its engine was running it would be in neutral and would remain so until the fishing lines had been reeled in” and that the appellant was entitled to assume that Mr Withell would be properly in charge of his vessel while in that situation.

[17] The Judge then considered Rule 22.8. He noted that the purpose of Part 22 was to establish rules in order to prevent collisions at sea and that Rule 22.8 only applies where there is a risk of collision. But he considered that the defence submission that there was no risk of collision in this case was “flawed”. The Judge reasoned:

“[41] If Rule 22.8 is looked at in the context of Part 22 of the Rules dealing with “collision prevention”, it becomes obvious that there is a risk of collision whenever two vessels are in the same proximity and one of them is making way.

[42] Accordingly, the master of a vessel at sea is required to navigate that vessel in such a fashion that he passes any other vessel in the vicinity by alteration of course and/or alteration of speed. In doing so, his actions must be:

a) Positive

b) Made in ample time

c) With due regard to the observance of good seafaring practice

d) Be large enough to be readily apparent to another vessel observing visually or by radar; and

e) Must be taken early if his is the give way vessel.

[43] Importantly, the steps taken must be appropriate to the circumstances and conditions at the time.

[44] In the present instance the conditions were calm and visibility was good. The Hydro Express was drifting in the tide while its occupants were fishing. Its master was not at the helm, but was supervising his fishing passengers. The presence of fishing lines around his vessel meant that this situation was not likely to change precipitately.

[45] The defendant was aware of the presence of the Hydro Express and kept it under constant observation throughout the manoeuvre in question. He has had forty years experience at sea dropping and retrieving crayfish pots and Dahn lines. As a result, he is extremely proficient at controlling his boat.

[46] At no stage during the manoeuvre in question did he exceed five knots. At that speed, and with his experience, the defendant was quite capable of dealing with any emergency which might have presented itself.

[47] Whatever the reason for the defendant taking the Cherilyn J in a circle around the Hydro Express, there was a 30m separation distance between the vessels. In those conditions and at that speed I find that this manoeuvre involved passing at a safe distance and did not qualify as a close quarters situation. It also allowed sufficient sea room for the passage of the Hydro Express as it drifted in the tide.

[48] At the conclusion of this manoeuvre the defendant positioned his vessel four or five metres behind the Hydro Express where he then dropped his Dahn line.

[49] Counsel for the prosecution submitted that the defendant deliberately created an unnecessary close-quarters situation which could have been easily avoided by simply waiting a minute or two for the Hydro Express to drift off the point at which he wished to drop the Dahn line.

[50] Although the two vessels were approximately 11 ½ nautical miles off the coast, they were both trying to fish a relatively tiny area estimated as being the size of a courtroom. Inevitably, this would have meant that they would be fishing in close proximity to each other. The defendant’s history of two vessels operating in harmony to fish this spot shows that this can be achieved safely, even with minimum separation distances, so long as both crews are co-operating and in good communication with each other. But that is not the situation that presented itself on 28 January 2006.

a) The two vessels were utilising quite different fishing methods;

b) There was a history of animosity between the two skippers;

c) They were not co-operating in any fashion, and

d) There was no communication between them.

[51] Good seafaring practice would have entailed both vessels sharing the fishing over “Toddy’s Patch” with Mr Withell allowing his passengers to fish while the defendant was away retrieving one of his Dahn lines and then moving away to allow the defendant to re-set that Dahn line.

[52] I have been given no acceptable reason for the defendant’s decision to drop his Dahn line so close to the stern of the Hydro Express when he could simply have waited a minute or two for it to drift off his mark. The suggestion, made by the defendant in reexamination, that if he had sat back and waited Mr Withell was likely to have decided to stay in the area once he had hooked the fish, simply supports the prosecution submission that the purpose of the defendant’s action in dropping his Dahn line so close to the stern of the Hydro Express was to intimidate Mr Withell and force him to move away from the school of fish over “Toddy’s Patch”.

[53] I, therefore, find that the defendant’s actions in dropping his Dahn line four or five metres from the stern of Hydro Express was the deliberate creation of an unnecessary closequarters situation when he had every opportunity to observe good seafaring practice by slackening the speed of his vessel or taking all way off by stopping or reversing.”

It is alleged by the appellant that in para [41] the Judge formulated a proposition that was much too wide, that in paragraph [42] he cobbled various components of Rule 22.8 together instead of identifying the individual elements of each requirement and that in [52] he convicted the appellant of an offence that did not exist.

[18] When sentencing the appellant the Judge commented that there were some unusual features about the offending that distinguished it from the cases that had been cited by Mr Stewart. He noted:

“All those cases involved seafaring vessels, one in fog and some at night, where the basic safety requirements were not followed resulting in close quarter situations and genuine serious risk of a collision which could have caused significant financial loss, let alone loss of life. In the present case there was never such a situation, the only risk was to the fishing gear on the Hydro Express …”. (Underlining added)

It is alleged by the appellant that the underlined words illustrate that there was no risk of collision in this case.

Preliminary Issue - Ms Brangwin’s Evidence

[19] During her evidence Ms Brangwin expressed opinions about whether the appellant’s conduct breached the maritime rules. It is alleged by the appellant that when counsel for the appellant (not Mr Paulsen) objected to the opinion evidence, the Judge indicated that he would make a ruling as to its admissibility but that he omitted to do so. This is disputed by the respondent who maintains that the Judge was satisfied as to the expertise of Ms Brangwin and allowed her evidence to proceed.

[20] Affidavits have been sworn by counsel involved on each side in the hearing before the District Court. It is impossible for me to resolve the conflict on the strength of untested affidavits. Given that there is no reference in the judgment to Ms Brangwin’s evidence and that her evidence is patently based in material respects on Mr Withell’s version of events which was rejected by the Judge, I am not prepared to place any reliance on her evidence.

Discussion

[21] As the title and objective of Part 22 of the Maritime Rules indicate, the objective of the rules is to prevent collisions at sea, and the rules in that Part have been promulgated for that purpose. These rules include rule 22.7 which requires all available and appropriate means to be used to determine if the risk of collision exists and rule 22.8 which specifies the action that must be taken to avoid a collision. As the Judge stated, there must be a risk of collision before rule 22.8 can apply. I now address that issue.

[22] Except for the direction in rule 22.7(1) that if there is any doubt such a risk must be considered to exist and the specific directions in 22.7(4) which have no application in this case, the rules do not define when a risk of collision exists. The Judge considered that a risk of collision exists “whenever two vessels are in the same proximity and one of them is making way”. Having formulated this test the Judge then went on to determine whether or not there had been a breach of rule 22.8.

[23] Mr Paulsen argued that the test formulated by the Judge amounted to a serious error of law and was logically unsustainable. He claimed that whether or not a risk of collision exists is a factual inquiry to be determined on a case by case basis and that a person cannot be said to be required to avoid a risk of collision when there is in fact no possibility that such a collision could ever occur. He also argued that the test adopted by the Judge is inherently uncertain.

[24] In response Mr Stewart accepted that without qualification as to what amounts to “the same proximity” or the making of allowance for the relative bearings, weather, sea conditions and the like, the Judge’s pronouncement might have gone too far. He noted, however, that if there is any doubt about the matter, rule 22.7(1) requires the Court to proceed on the basis that a risk of collision exists. In all the circumstances, submitted Mr Stewart, the Judge was entitled to reach the conclusion that a risk of collision existed in this case.

[25] As Mr Stewart acknowledged, not every situation where two vessels are in close proximity and one of them is making way will give rise to a risk of collision. An obvious example is a situation where the vessel making way is heading away from the other vessel. Moreover, as Mr Stewart also acknowledged, the weather and sea conditions and the like are likely to be relevant. Even allowing for the direction in rule 22.7(1) that in cases of doubt a risk of collision must be considered to exist, it is my view that the test formulated by the Judge was too wide. Whether or not there is a risk of collision will depend on all the circumstances and may well vary from case to case.

[26] Was there a risk of collision in this case? If not, rule 22.7 could not apply and the conviction could not stand. On the other hand, if there is a risk of collision it will be necessary for the Court to determine whether there has been a breach of the rule.

[27] Given that the charge alleging a breach of rule 22.7 was dismissed, the prosecution case comes down to an allegation that after completing the circle of the Hydro Express the appellant created a risk of collision by moving from around 30 metres into a close quarters situation of four to five metres. The allegation is that the Judge found as a fact that both vessels were in “close proximity” when they attempted to fish an area that was estimated to be no bigger than a Courtroom and that so long as the vessels remained in such close proximity with no communication or co-operation between the skippers of the vessels a risk of collision continued to exist. Mr Stewart submitted that although the Judge did not specifically use words to the effect “this created a risk of collision”, to do so would have been stating the obvious.

[28] On the other hand, Mr Paulsen submitted that it was very significant that the Judge did not at any stage make a finding of fact that there was a risk of collision and that the Judge’s findings were in fact incompatible with that conclusion. He emphasised that the Judge had rejected Mr Withell’s evidence about the Cherilyn J having been on a collision course and that the Judge had found that the appellant was proceeding very slowly, was extremely proficient in handling his boat, and was quite capable of dealing with any emergency that might have presented itself. Mr Paulsen also contended that the issue was put beyond doubt by the Judge’s comment during his sentencing remarks that the only risk was to the fishing lines.

[29] When he dismissed the charge based on rule 22.7 (which alleged that the appellant had failed to use all available means to determine if the risk of collision existed) the Judge expressly proceeded on the basis that the appellant had circumnavigated the Hydro Express at a distance of around 30 metres before dropping a Dahn line four metres off its stern: see paragraph [25]. In other words, when reaching the conclusion that the charge could not be sustained the Judge must have taken into account that the two vessels came to within four metres of each other. But he found that there was no breach because the appellant was able to observe that the passengers on the Hydro Express were fishing from all points around the vessel, its skipper was standing at the stern, and that the Hydro Express was in neutral and would remain so until the fishing lines had been reeled in.

[30] Later, when he was determining the charge based on rule 22.8, the Judge made further findings that must have been highly relevant to the issue of whether there was a risk of collision: the appellant kept the other vessel under “constant observation”, he was “extremely proficient” at controlling his boat, at no stage did he exceed five knots, and the appellant was quite capable of dealing with any emergency that might present itself. Another relevant factor was the size of the two boats.

[31] The precise basis on which the Judge found that there was a risk of collision is obscure. No doubt the test formulated at paragraph [41] played a part. The Judge also appears to have been influenced by the lack of co-operation and communication between the skippers (paragraph [50]) as well as the appellant’s motivation and issues of seafaring practice (paragraphs [51] - [53]). However, there are problems with each of these matters. The test was too wide. It is difficult to see how the Judge’s factual findings (particularly the excellent conditions and visibility, the appellant’s experience and control of his boat, and the fact that the Hydro Express was not under way and would not unexpectedly get under way) could be outweighed by any lack of co-operation and communication. And the appellant’s motivation and issues of seafaring practice could not give rise to a risk of collision if there was in fact no such risk.

[32] In the end I am driven to the conclusion that this conviction is unsafe. There are several reasons. First, the Judge used an incorrect test for determining whether there was a risk of collision. Second, taken as a whole the factual findings indicate that the prosecution had failed to prove that a risk of collision existed. Third, the absence of any specific finding explaining why there was a risk of collision undermines the possibility of confidently drawing any inference to that effect. Finally, the Judge’s observation during sentencing that the only risk was to the fishing gear on the Hydro Express effectively destroys the allegation that there was a risk of collision between the vessels which was, of course, the allegation against the appellant. When the definition of “ship” and “vessel” in the rules are applied to the circumstances of this case there is no possibility that the risk to fishing lines could amount to a breach of rule 22.8.

[33] I should add that at the conclusion of the appeal hearing I asked counsel to research whether there were any authorities relating to the use of sentencing notes in relation to a conviction appeal. No authorities were located. However, in a situation where the precise basis on which guilt has been determined is obscure and the sentencing remarks are capable of shedding light on that issue, it would be contrary to the interests of justice if the sentencing remarks were ignored. I am certainly not prepared to ignore them in this case.

[34] Given the conclusion that I have reached in relation to the risk of collision, it is unnecessary to consider the other grounds of appeal relied on by the appellant.

Outcome

[35] The appeal against conviction is allowed and the conviction is quashed. I am not prepared to order a rehearing.

[36] Costs are sought by the appellant. Submissions in support of that application are to be filed and served by 10 July 2007, those in opposition by 17 July 2007 and any in reply by 24 July 2007.

Solicitors: Cavell Leitch Pringle & Boyle, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent