Harris v The Vessel "Marie II"

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
AD. NO 924
ADMIRALTY ACTION IN REM AND IN PERSONAM

BETWEEN
ROBERT GLENN HARRIS
Plaintiff

AND
THE VESSEL "MARIE II"
First Defendant

AND
W.G. SINCLAIR
Second Defendant

Hearing: 28 and 29 September 1999

Counsel: Ms Tracy Stewart for Plaintiff
Mr Peter Cockle for Defendants

Judgment: 4 November 1999

JUDGMENT OF WILLIAMS J

Solicitors: McElroys, DX CP20526, Upper Shortland Street, Auckland for Plaintiff
Beckerleg Cockle, PO Box 6360, Wellesley Street, Auckland for Defendants

[1] The parties to this case agree that between about 9.30-10.00 p.m. on the evening of Friday 11 July 1997, there was a collision between the "Geisha", a 57 foot Vindex launch owned by the plaintiff, Mr Harris, and the first defendant, the "Marie II" owned by the second defendant, Mr Sinclair, in Waitemata Harbour, somewhere off the northern end of Princes Wharf. But they agree on little else. Indeed, on the question of who is to blame for the collision, their views are diametrically different.

[2] The claim is for $43,541.51, the cost of repairing "Geisha", plus interest and costs. Mr Harris submits that "Marie II" and Mr Sinclair were in breach of the Shipping (Distress Signals and Prevention of Collisions) Regulations 1988 ("the Collisions Regulations") in a number of respects and, in particular, r 13, the overtaking rule. Mr Sinclair has counterclaimed for $1,749.37, the estimated cost of repairing "Marie II". He alleges that "Geisha" was similarly in breach of the Collisions Regulations.

[3] Mr Harris has had a lifetime's experience in boats. He bought "Geisha" about a fortnight before the collision. He took her out nearly every day. There was a fault in the fuel system causing her to surge. He and his friend, Mr Broome, spent most of 11 July working on the fuel system to overcome the fault. About 6.30-7 p.m. they decided to take her out on a test run to check if their repairs had been successful. A Ms Gardner and her baby were also on board. They said there was a southwester blowing at about 15-20 knots with intermittent showers. On the way down the harbour towards Devonport, they got the boat up on the plane which means they must have been exceeding about 13 knots. By about 9.30 p.m. they were heading back, intending to have a look at the then new frigate "Te Kaha" which was moored at the Navy's Calliope Wharf on the northern shore of the harbour. They also travelled as far east as Victoria Wharf at Devonport. Though there was some imprecision in their recollections, both Mr Harris and Mr Broome said that they inspected the "Te Kaha" first and then travelled on east to Victoria Wharf, whence they turned to travel back to the Westhaven Marina situated on the southern shore of the Waitemata Harbour immediately to the east of the Auckland Harbour Bridge. It was during this voyage that the collision occurred.

[4] "Geisha" has a flying bridge above the cabin. It was encircled by clear plastic blinds mounted on a rigid support. The plastic being slightly opaque, parts of the blinds can be unzipped and rolled up for better visibility. Mr Harris said that he had the blinds open immediately ahead of him, the better to see where they were going, notwithstanding the occasional shower and the fact that they were heading into the southwester on this winter's night.

[5] Ms Gardner had just settled her baby in the cabin on the port side and had returned to the flying bridge and was seated on the starboard side. Mr Harris and she were in conversation. Mr Harris was steering with the wheel in the flying bridge.

[6] "Geisha's" navigation lights were on. Both Preliminary Acts asserted and accepted that her cabin and flying bridge lights were also on.

[7] Mr Broome, who has also had a reasonable amount of boating experience, walked from the starboard sidedeck, across the foredeck and was proceeding down the port sidedeck, holding on to the cabin about eight feet forward of the cockpit, when he saw "Marie II" coming towards them on a collision course with "Geisha". He initially said that she was about 20 feet away when first he saw her but, in the courtroom, extended that to about 10-12 metres. He first said that she was at about 7 o'clock when first he saw it, that is to say, proceeding at a bearing of about 30 towards "Geisha's" line of travel, but using models in the courtroom altered that to between 7 o'clock and 8 o'clock.

[8] Mr Broome called a warning to Mr Harris, telling him to "turn right" rather than starboard. Mr Harris looked behind him to port. His view was partially obscured by the opacity of the blinds and the conning tower but he said that when he saw "Marie II" she was about 50 feet from "Geisha's" port side coming from about 7 o'clock and doing about 12 knots to "Geisha's" 6-7 knots. Both Messrs Harris and Broome said they could see into "Marie II's" lighted wheel house and it was unoccupied.

[9] Mr Harris swung the wheel hard to starboard. He had no time to accelerate in what he said was approximately five seconds between his first sighting "Marie II" and impact. Ms Gardner braced herself. Mr Broome rushed into the cockpit and down the companion way to get the baby. Mr Harris said that "Geisha" began to answer her helm to starboard but "Marie II" maintained her course and hit "Geisha" amidships with what he described as a "glancing blow". Mr Broome saw the port side of the cabin buckle inwards, and splinter. He grabbed the baby, fortunately unhurt, gave it to Ms Gardner and went on deck. Both he and Mr Harris said that a man whom they now know to be Mr Sinclair then appeared in "Marie II's" wheelhouse and spun her wheel to port. Mr Broome said that Mr Sinclair had "come up from the bottom of the boat". They agreed that Mr Sinclair then proceeded to "Marie II's" foredeck. Enquiries were exchanged as to damage and injury. Mr Harris said that both boats were stationary by this time with "Geisha" about 50 metres ahead of "Marie II".

[10] In cross-examination, he acknowledged that when he spoke with the Maritime Safety Authority about the incident he did not assert that the wheelhouse was unoccupied when first he saw it. But he said that even at that stage he accepted that Mr Sinclair entered the wheelhouse before impact and may have been there all the time and was turning the wheel to port before impact.

[11] He denied that "Geisha's" stopping 50 metres ahead of "Marie II" indicated she was travelling much faster than his estimate.

[12) Messrs Harris and Broome ascertained that "Marie II's" berth was in the Viaduct Basin on the southern side of the harbour, east of Westhaven. They agreed to follow her there. Both were critical of her course and speed in making her way to the Viaduct Basin and of what they saw of Mr Sinclair's actions in unloading his vessel and perhaps not notifying the Police once "Marie II" was berthed. But those factors, whilst perhaps having some slight influence on credibility, play little part in deciding on fault for the collision.

[13] Mr Harris said it was difficult for them to see the damage that night but he was of the view that the point of impact on "Marie II" was to the belting and bulwarks on the starboard bow.

[14] Asked about drinking, Mr Harris said that he had had one beer about 4.00 p.m. and had been given another shortly before impact. He strongly denied drinking alcohol to any greater extent than that. He was supported in that assertion by Mr Broome despite Mr Sinclair's contrary views.

[15] In cross-examination, Mr Broome accepted that he said to the Maritime Safety Authority the wheelhouse was dark, he noticed no lights at all on the boat but there were some lights shining through the wheelhouse.

[16] In the collision, "Geisha" suffered a gash to her port side about one-third of the way between the belting and the waterline but there was a sharp difference of view as to whether the indicia of damage indicated that it increased as it went forward or the reverse. Although that was an issue not without importance, its resolution was not assisted by the fact that although photographs were apparently taken of the damage prior to repairs commencing, they were not discovered by the plaintiff and were unable to be located during the hearing.

[17] Mr Harris said that the damage began with a scrape approximately below the aft end of the superstructure on the port side and worsened as it proceeded forward for up to two metres, including puncturing of the hull. Though the weight of his evidence was diminished by his acknowledgement that he did not claim, when interviewed by the Maritime Safety Authority, that the damage to "Geisha" ran forward, Mr Harris was supported by Mr Kingston of Boatbuilding & Shipwright Services Limited, the successful tenderer for the repair work, who said that it "definitely came from aft and carried forward" and was a horizontal cut about 10 centimetres wide and three metres long, commencing with scratches aft and ending in a hole forward. Repairs included replacing parts of the port stringers and repairing ribs in the bilge under the fuel tanks.

[18] However, Mr Silby, a marine surveyor and shipwright who was called by Mr Sinclair and who knows both vessels said that the damage to "Marie II" occurred going forwards and was consistent with it being overtaken by "Geisha". The repairs to "Geisha" were, he asserted, consistent with impact at speed. He said to have sustained the damage described, "Geisha" must necessarily have been travelling at least five knots faster or slower than "Marie II". It should be noted that Mr Silby's examination of the damage to "Geisha" was confined to driving past the vessel on the hard.

[19] Evidence was given as to the vertical distance between the damage on the two boats and the waterlines but, in the view the Court takes of the matter, this evidence is of no significant assistance in determining the direction of impact since it was only lightly touched upon by the expert witnesses, and although photographs were produced of "Geisha" as she now is, the major alterations undertaken by Mr Harris after the collision may well have altered her freeboard.

[20] Mr Pope, an experienced loss adjuster and yachtsman, also confirmed the site and extent of the damage. He was of the view that it was consistent with speed on the part of "Marie II". He supported his view, from its increasing severity, that the damage commenced aft and moved forward.

[21] Mr Sinclair's view of the mishap was very different. He has been a launch master for about 15 years operating fishing trips out of Auckland. He has owned the "Marie II" for ten years and has over 20,000 hours operating her as a ferry and charter boat on the Waitemata Harbour.

[22] He said he left Rakino Island in the Hauraki Gulf at 8.15 p.m. on 11 July, travelling at "Marie II's" maximum speed of nine knots. As he passed 9 Buoy to the south of North Head, he set a course for the beacon on the northeastern tip of Princes Wharf. He maintained that he was at the wheel throughout the voyage to "Marie II's" berth in the Viaduct Basin. As he progressed up Waitemata Harbour, he was concerned to keep a look-out for the Devonport Ferry which leaves Auckland at 10.00 p.m.

[23] Mr Sinclair said that the weather was fine, the sea flat tending to glassy, without significant wind.

[24] Mr Sinclair said that at about 9.55 p.m., looking over his right shoulder he noticed a vessel overtaking "Marie II" at a speed which he estimated as considerably in excess of his own. The vessel, which was "Geisha", was on a collision course with "Marie II" and he said was so close that there was no time to react. He said that the collision was between "Marie II's" starboard bow and belting, about four metres aft and the port side bulwarks of "Geisha".

[25] Mr Sinclair said that immediately following the collision, he punched the "man overboard" button on his global positioning system unit ("GPS"). A photograph of the GPS screen was produced showing a way point numbered 062 some distance to the north-east of Princes Wharf and approximately opposite half way between Princes and Queens Wharves.

[26] Mr Sinclair agreed that "Geisha" stopped about 30 metres ahead and that after the mutual enquiries as to damage and injury had occurred, the pair proceeded in convoy to Viaduct Basin. He said he alerted the Police on the way.

[27] A deal of evidence was devoted to trying to pinpoint the precise position where the collision occurred but, in the Court's view, no accurate finding can be reached in that regard.

[28] The Court declines to accept Mr Sinclair's GPS way point as anything more than the most approximate positioning of the collision because GPS systems, if not precisely calibrated, can have a margin of up to 100 metres and Mr Sinclair's GPS had not been so calibrated. That was demonstrated by the fact that many of the tracks of previous voyages by "Marie II" transacted Princes and Queens Wharves.

[29] Similarly, the crosses placed on various charts by Mr Sinclair or his counsel could be no more than approximations.

[30] Both Messrs Harris and Broome endeavoured to draw "Geisha's" course from Victoria Wharf on transparencies (though these were not formally produced in evidence) but were clearly uncomfortable in so doing because they had simply had no occasion to mark the track of their voyage accurately. All that they could say was that after leaving Victoria Wharf, "Geisha" proceeded on a track more southerly than the direct track from Victoria Wharf to Westhaven Marina. Inaccurately, as a matter of etymology, but graphically, as a description, Mr Harris described their course back from Victoria Wharf as "ovular". Both Messrs Harris and Broome were similarly uncomfortable and consequently imprecise in trying to mark the collision point on charts before the Court.

[31] A Mr Austin, a highly experienced marine surveyor, loss adjuster, seaman and yachtsman, gave evidence as to his reconstruction of the application of the Collision Regulations to this mishap. He fixed the collision point as 2-300 metres north of Princes Wharf. He said that the direct course from 9 Buoy to Princes Wharf is approximately 265º true and would lead "Marie II" about 50 metres north of the wharf. There was no explanation why the vessel may have been somewhat further north, up to the 2-300 metres to which Mr Harris referred. The GPS way point was calculated at about 200 metres off Princes Wharf and the cross on the chart at about 120 metres. "Marie II's" Preliminary Act gave the position of the collision as approximately 300 metres north of Princes Wharf. "Marie II's" statement of defence and counterclaim fixed the point as 300 metres north. Mr Austin plotted the latitude and longitude coordinates shown in the GPS photo at about 250 metres back towards 9 Buoy from the position nominated by "Marie II" in its Preliminary Act but his reconstruction in that regard was not helped by the compass coordinates being incorrectly reproduced in the Preliminary Act and only amended to those shown on the GPS photo at trial.

[32] That review of the evidence shows that it is no longer possible to fix the point of the collision precisely. All that can be said is that it is reasonably clear that the collision occurred to the north of the direct track from 9 Buoy to the northern tip of Princes Wharf, perhaps by as much as 2-300 metres and probably at a point roughly equidistant between the prolongation of Princes and Queens Wharves, though still on the southern side of the harbour. That finding means that "Marie II" was somewhat to the north of her direct course at the time of the collision and that Mr Sinclair was giving Princes Wharf a more than usual clearance and had not commenced rounding the wharf to port when the collision occurred. That finding also means that "Geisha" was on course, having regard to the route chosen by Mr Harris to return from Victoria Wharf to Westhaven somewhat to the south of the direct line between those two points. No party suggested that the tide or other sea conditions played any relevant part in this collision.

[33] The evidence concerning wind direction was confused. In his Preliminary Act, Mr Harris said that there was a northeaster of between 15-20 knots blowing. Mr Austin relied on that in his reconstruction. However, in evidence, Mr Harris said that on the evening in question, the wind was a southwester of about 15-20 knots. Mr Sinclair in his Preliminary Act said that the wind was 0-5 knots from the southwest but in his evidence said the sea surface was glassy. The Court finds that the wind on the night in question was from the south-west but that, in all probability, it was less than 15 knots and, other than in one respect to be noted later, is of no significance in relation to this collision.

[34] As to lights, the Court finds that both vessels were carrying the required navigation lights. However, whilst both vessels in their Preliminary Acts accepted that "Geisha's" internal cabin and flying bridge lights were on, it may be of significance that "Marie II" does not assert that she was carrying any lights other than navigation lights. In particular, there was no assertion that the wheelhouse light was on. It may have been unfortunate that neither vessel produced a plan of her flying bridge or wheelhouse respectively, neither apparently thought it appropriate to apply to inspect the other pursuant to r 322 and, given the notoriety of internal reflections affecting occupants' ability to see lights outside a lit space at night, neither conducted experiments on that topic.

[35] The critical question in this case is the vessels' speed. To put it more precisely, there was little dispute that "Marie II" was throughout travelling at her maximum speed of approximately nine knots so the critical question is whether "Geisha" was travelling, as Messrs Harris and Broome said, at 6-7 knots or, as Mr Sinclair asserted, at above her planing speed of perhaps 14 knots and perhaps at as much as her maximum speed of about 18 knots.

[36] A further aspect to this question is whether "Marie II" was the overtaking vessel or the vessel being overtaken.

[37] Those questions are critical because of the provisions of rr 5, 6, 8, 13, 15, 16 and 17 of the Collisions Regulations which were pleaded or relied upon - there was a complete coincidence between the two - and which read:

"RULE 5

Look-Out

Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

RULE 6

Safe Speed

Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.

In determining a safe speed the following factors shall be among those taken into account:

(a) By all vessels:

(i) The state of visibility:

(ii) The traffic density including concentrations of fishing vessels or any other vessels:

(iii) The manoeuvrability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions:

(iv) At night the presence of background light, such as from shore lights or from back scatter of her own lights:

...

RULE 8

Action to Avoid Collision

(a) Any action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time, and with due regard to the observance of good seamanship.

(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

(c) If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation, provided it is made in good time, is substantial, and does not result in another close-quarters situation.

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

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

(f)

(i) A vessel which, by any of these rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea-room for the safe passage of the other vessel.

(ii) A vessel 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 and shall, when taking action, have full regard to the action which may be required by the rules of this Part.

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

RULE 13

Overtaking

(a) Notwithstanding anything contained in the rules of Sections I and II of Part B of these rules, any vessel overtaking any other shall keep out of the way of the vessel being overtaken.

(b) A vessel shall be deemed to be overtaking when coming up with another vessel from a direction more than 22.5 degrees abaft her beam, that is, in such a position with reference to the vessel she is overtaking that at night she would be able to see only the stemlight of that vessel but neither of her sidelights.

(c) When a vessel is in any doubt as to whether she is overtaking another, she shall assume that this is the case and act accordingly.

(d) Any subsequent alteration of the bearing between the 2 vessels shall not make the overtaking vessel a crossing vessel within the meaning of these rules or relieve her of the duty of keeping clear of the overtaken vessel until she is finally past and clear. 

RULE 15

Crossing Situation

When 2 power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel. 

RULE 16

Action by Give-Way Vessel

Every vessel which is directed to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear. 

RULE 17

Action by Stand-On Vessel

(a)

(i) Where one of 2 vessels is to keep out of the way, the other shall keep her course and speed.

(ii) The latter vessel may however take action to avoid collision by her manoeuvre alone, as soon as it becomes apparent to her that the vessel required to keep out of the way is not taking appropriate action in compliance with these rules.

(b) When, from any cause, the vessel required to keep her course and speed finds herself so close that collision cannot be avoided by the action of the give-way vessel alone, she shall take such action as will best aid to avoid collision.

(c) A power-driven vessel which takes action in a crossing situation in accordance with paragraph (a) (ii) of this rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.

(d) This rule does not relieve the give-way vessel of her obligation to keep out of the way."

[38] Applying those rules, Mr Austin made the point that any vessel ahead on a crossing course, or and to starboard of "Marie II" which was not overtaking her, or both, would have the right-of-way.

[39] This case primarily depends on its facts and the Court's findings as to credibility and accordingly extensive reference to precedent is unnecessary.

[40] However, the Court accepts that precedent demonstrates how important is compliance with r 5 and that there is a major obligation on an overtaking vessel to keep clear of that being overtaken (The "Iran Torab" [1988] 2 LI.LR 38, 43).

[41] In helpful submissions, Ms Stewart, counsel for the plaintiff, also drew the Court's attention to the necessity for strict compliance with r 8 as demonstrated by cases such as The "Pulkakovo"and "Oden" [1989] 1 LI.L.R 280, 287.

[42] The primacy of r 13 and the importance of compliance was emphasised in a case with somewhat similar factual circumstances to this, namely, The "Franchonia" (1876) 2 PD 8, 12, 13-4. (See also The "Kylix " and "Rustringen" [1979] 1 LL.L.R 133, 142; The "Iran Torab " (supra) at 43.

[43] For the defendants, Mr Cockle, submitted that the standard of proof that "Geisha" was being overtaken by "Marie II" was the balance of probabilities (43 Hals Laws 4th ed, para 950 p.661). The Court accepts that.

[44] Mr Sinclair was adamant that "Geisha" was travelling at something close to her maximum speed and was overtaking "Marie II". He drew that conclusion from the fact that when he first saw her over his right shoulder she appeared to be travelling quickly as she overtook "Marie II" and there was no time to avoid collision. He also relied on Mr Silby's evidence.

[45] Mr Sinclair also relied on Mr Cockle's cross-examination of Mr Austin as to the relative bearings between converging vessels at different speeds. Mr Austin agreed with Mr Cockle that if "Geisha" was at six knots and "Marie II" at eight and a half, and if there was a convergence angle of 30º, the bearing of "Marie II" from "Geisha" would have been about 100º to port with that bearing changing as the speeds changed, "Marie II's" bearing reducing the faster "Geisha" was found to be travelling but with "Geisha" being very visible from "Marie II" if the angles between the paths remained at about 30º. "Geisha's" visibility reduced as the angle of convergence lessened.

[46] Whilst the Court accepts that evidence, it must, of course, be subject to the Court's findings as to the speed at which "Geisha" was travelling in the period leading up to the collision.

[47] Having considered the evidence on the topic carefully, the Court finds as a matter of credibility that the estimates of speed given by Messrs Harris and Broome are correct and that "Geisha" was travelling at no more than 6-7 knots and perhaps slightly less in the period prior to impact.

[48] Amongst the reasons for the Court reaching that view are, first, that "Geisha" was on a pleasure voyage with no timetable to keep. Having tested that the fuel problem had been overcome, the vessel was, as Messrs Harris and Broome put it, "merely meandering" back to Westhaven. The time elapsed in such a short voyage tends to confirm that. Secondly, "Geisha" was heading into a slight southwester with the clear blinds rolled up for better visibility. Given the lack of time constraint, in a night cruise in mid-winter into the wind there would have been no reason for "Geisha" to be travelling at more than "meandering" speed and good reason not to add additional boat speed and discomfort to the moderate velocity of the southwester blowing into the flying bridge. Thirdly, the complement of "Geisha" also had the comfort of the sleeping baby to keep in mind.

[49] As against that, in the Court's view Mr Sinclair may well have been concentrating on the lights and possibility of other vessels, particularly the Devonport Ferry, to port. For some reason he was travelling somewhat north of the direct and his usual line and in an area of Waitemata Harbour where the principal traffic is pleasure craft. He may well not have been expecting such craft to be on the harbour late on a Friday night in the middle of winter. The construction of "Marie II's" wheelhouse may have obscured his vision and, if the wheelhouse light was on, the visibility may have been further reduced by internal reflection.

[50] In reaching that view, the Court has not overlooked the evidence as to the direction of damage on the two vessels but, for the reasons earlier discussed, that evidence in this case must be treated with a certain degree of caution. Despite the absence of photographic support, the Court accepts as more likely Mr Pope's independent and experienced view that "Marie II" collided with "Geisha" whilst overtaking her from aft and that the direction and severity of damage increased as it moved forwards, thus supporting the view that "Marie II" was the overtaking vessel.

[51] The Court has also not overlooked the evidence from Mr Silby that a speed differential of about five knots would have been required for the damage to the vessels to be as it was but, again, for the reasons earlier discussed, Mr Silby's evidence must also be treated with certain caution, notwithstanding that Mr Austin was of a similar view. If the damage to "Geisha" indicated that the speed differential between the two vessels must have been of the order of 4-5 knots, given that it is accepted that "Marie II" was travelling at nine knots, "Geisha" must have been travelling slightly slower than the estimates given by Messrs Harris and Broome. The latter acknowledged in evidence that his estimate was a guess.

[52] In the light of all of that, in the Court's view Mr Harris has shown to the required standard that "Geisha" was being overtaken by "Marie II" and accordingly the primary responsibility for avoiding collision lay on "Marie II". As the overtaking vessel from more than 22.5º abaft of "Geisha's" beam with "Geisha" on her starboard side she failed to take early and substantial action or keep out of the way of the vessel being overtaken and was accordingly in breach of rr 13, 15 and 16.

[53] "Marie II" was also in breach of r 6 in not travelling at such a speed as to be able to avoid the collision or stop, particularly having regard to the factors listed in r 6(a). She may also have been in breach of r 8 in not heading off to port in ample time, but as r 8 was not pleaded by Mr Harris, that possibility can be put to one side.

[54] The Court is also of the view for the reasons earlier discussed that "Marie II" was in breach of r 5 in failing to keep a proper look-out in the circumstances.

[55] It accordingly follows that Mr Harris is entitled to judgment against each of the defendants.

[56] As to quantum, although Mr Harris took the opportunity whilst "Geisha" was laid up for repairs to undertake major modifications to her, Mr Pope who was concerned to ensure that Mr Harris' insurer met only the accounts arising from the collision, assured the Court that the quantum of the claim related only to collision damage. That proposition was not seriously challenged at the hearing.

[57] The defendants counterclaimed against Mr Harris for the projected cost of the repairs to "Marie II", asserting that he was in breach of rr 5, 6, 13 and 17 of the Collision Regulations.

[58] For the reasons already outlined, the Court is of the view that the counterclaim under rr 6 and 13 cannot be sustained.

[59] Further, in the circumstances, the Court finds no breach by "Geisha" of r 17. She maintained her course and speed but then, when the collision seemed inevitable, she took appropriate action by attempting to turn to starboard to avoid impact.

[60] However, as far as the counterclaim under r 5 is concerned, the Court is of the view that Mr Harris should have kept a better look-out in the circumstances. The "Geisha" was a pleasure vessel operating in an area close to which commercial and possibly other traffic might have been expected and although pleasure vessels may not have been expected on Waitemata Harbour at that time and season, there was no reason for Mr Harris not to expect commercial vessels to be plying their trade at that time. He should have realised the difficulty in seeing other vessels, particularly those to port, against the background of the city and harbour lights. It would appear that his concentration was forward when his obligation was to maintain an all-round look-out. It does not appear that Ms Gardner and Mr Broome had been particularly asked to keep a look-out. In Mr Harris' case, the flying bridge lights were lit and in those circumstances he too should have recognised the additional difficulties in visibility arising from reflection.

[61] In all those circumstances, the Court is of the view that Mr Harris was in breach of r 5 but that his share of responsibility is relatively modest. Pursuant to the Maritime Transport Act 1994, s 94, the Court fixes it at 15%.

[62] In summary:

[a] The plaintiff is entitled to judgment against each of the defendants for the sum of $37,010.28, being 85% of his claim.

[b] The defendants are entitled to judgment against the plaintiff for the sum of $262.40, being 15% of their claim.

[c] Pursuant to r 536 the judgments may be set off against each other.

[d] The plaintiff is entitled to an award of costs for the proceedings.

[63] As to costs, if the parties are unable to agree they may submit memoranda signifying, if they think it appropriate so to do in those memoranda, that the Court may determine all questions of costs without a further hearing. If memoranda are to be filed, that from the plaintiff is to be filed within 28 days of the delivery of this judgment and that from the defendants within 35 days. In addition, the plaintiff is entitled to disbursements as fixed by the Registrar but to include the cost of preparation of the agreed bundle (with a deduction for photos 7 and 8).

[64] As to interest, the Court's inclination is that Mr Harris should be entitled to interest for the net sum payable to him at 11% per annum from the date of commencement of this proceeding, 16 April 1999, down to the date of judgment and from the date of judgment to the date of payment, but if counsel are of a different view they may canvas that topic in their memoranda.