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A Bluebridge ferry master has been cleared of causing unnecessary danger to passengers after an incident at the entrance to Tory Channel in the Marlborough Sounds in June 2005.
In a decision released today, Wellington District Court Judge John Walker said he was not satisfied beyond reasonable doubt that David William Birchall's manner of operating the Santa Regina ferry caused unnecessary danger or risk to passengers or property.
However, he found Birchall, from Palmerston North, guilty of failing to notify Maritime New Zealand of the incident within sufficient time.
It took four days before Birchall advised MNZ and Judge Walker said he had not established "a reasonable excuse for this failure."
Birchall was charged after MNZ investigators decided it was his navigation that got the Santa Regina into trouble, causing it to narrowly avoid rocks at East Head in the Tory Channel on June 9, 2005.
Birchall, who was the mate/master on the Picton-Wellington crossing with 32 crew and 57 passengers aboard, denied the charges.
Judge Walker said that as the vessel began a starboard turn to proceed through the channel entrance, the tide flowing into the entrance pushed the vessel on the starboard bow and moved her across the entrance towards its northern shore and the rocks at East Head. The ship came within about 100 metres of the rocks.
"I do not understand there to be any criticism of the manner in which Mr Birchall extricated the ship from her predicament," Judge Walker said. "The issue for me is the manner of operation which placed her there."
Judge Walker said in reaching his decision, he preferred to rely on the evidence of the defence witness, Captain John Brown, "a highly experienced mariner" who had made 15,000 crossings of Cook Strait, almost all of them travelling through Tory Channel.
Capt Brown said Birchall had properly accounted for the predicted tidal flow by his positioning of the ferry.
He said being caught by expected strength of tide was simply an "occupational hazard". It was a situation that had to be managed as and when it arose.
"In my experience of Tory Channel that is not at all uncommon, and is not something that any seafarer can always avoid -- even with the best skills or equipment in the world."
Capt Brown said the bridge layout of the Santa Regina, while common for a ship of its age, was unsuitable for the modern requirements of navigating Tory Channel. He was critical too of the ferry's passage plan, saying it was difficult to understand.
Judge Walker said that while there was risk to passengers and property, it was not avoidable danger or risk and dismissed the two charges relating to unnecessary risk.
Birchall is to be sentenced on failing to notify MNZ of the incident at a later date.
MNZ general manager of maritime operations, John Mansell, said the organisation respected Judge Walker's decision, but believed it important to bring the case before the court in the interests of public safety.
"It is also important to remember that this incident happened almost two years ago in a different maritime environment than today and before conclusion of the Independent Review of Safety in Cook Strait.
"Since then, safety standards have been significantly improved, and we are continuing to work closely with ferry operators to ensure that they provide the New Zealand public with the high level of safety that they should rightfully expect."
- NZPA
