yacht collision off Cowes

[Keith Tindell]

The truth was this pratt did not know that those large ships inbound travel down the Island side of the Solent, then off of Cowes they turn to the North to round the Brambles bank, ah, maybe now he knows what all those red and green buoys are!!!. I think his crew are now confirmed landlubbers KT

[Captain Kong]

It only cost him £103,000 in fines and costs.
Not a lot for a chappy of his means.
Cheers
Brian.

[leratty]

Brian, be jabbers that is some fine, costs could be equal wonder if he has that sort of loose change? If not then guess no bank will loan him it unless a mortgage or selling of yacht?

[robpage]

let me think 10 M yacht £103,000 in fines and costs for a prat of a skipper , That is £10,300 a Metre Costa Concordia 290 M , does that mean Capitano Schettino could be facing a £2,900,000 bill

[leratty]

Oops dash of cynicism creeping in I'm mortified (: Are we not tarring all RN officers with the same brush, possibly a tad harsh as in my short time at sea saw some doozies by the bridge a couple of which I have mentioned previously.

[Captain Kong]

Brian, be jabbers that is some fine,
.
Hi Richard,
The cost could have been a hell of a lot higher, into millions, if the Tanker had altered course to miss him, hit the bottom off Mother Bank, cracked the hull and an oil disaster covering the whole of the Solent area.
The Tankers have "Clear Channel, " yachts do not.
A lot of yachties do not know that.
Cheers
Brian.

[robpage]

I don't think anyone is being grouped either RN Officers or Yachties , There are good and bad in both groups , and this guy did neither any favours , He was a total prat and when he writes the £103,000 cheque I hope he realises it . There is a well known channel there , and to ignore it was arrogance , he admitted seeing the tanker a good distance away , but failed to start his engines and avoid an act of stupidity . I believe , from Yacht owning friends that he is an RYA instructor , which makes his actions beyond belief !!

AND as an RYA instructor I would expect him to be able to read a chart . maybe not !!!

[Red Lead Ted]

I don't think anyone is being grouped either RN Officers or Yachties , There are good and bad in both groups , and this guy did neither any favours , He was a total prat and when he writes the £103,000 cheque I hope he realises it . There is a well known channel there , and to ignore it was arrogance , he admitted seeing the tanker a good distance away , but failed to start his engines and avoid an act of stupidity . I believe , from Yacht owning friends that he is an RYA instructor , which makes his actions beyond belief !!

AND as an RYA instructor I would expect him to be able to read a chart . maybe not !!!

Rob, If that is true I find his actions in that part of the Solent beyond belief, I wouldn't be handing him the gravy boat,,,,,,, At the dinner table this xmas let alone let him skipper a kipper Terry.

[robpage]

Two different acquaintances told me that story, but , i thought these allegations may just be a yachtsmans rumour , so I checked , and ashamedly I am wrong , he has no formal RYA qualifications , but does have a RN Bridge Officers Watchkeeping Certificate , so apologies to Mr Wilson for my repeating misinformation . But in the report fropm the court below , The Qualifications of the Navigator are excellent and he is an RYA instructor , I make mistakes occasionally !!!! I Have highlighted them as the rest is probably only interesting to ex navigators ,

THE WEST HAMPSHIRE MAGISTRATES' COURT




BETWEEN: -

MARITIME AND COASTGUARD AGENCY

and



ROLAND WILSON







JUDGMENT



Coram: - Callaway



Introduction - Yacht Collision, August

1. 3 years before the founding of the Royal Yacht Squadron in the official regatta came to be held in the waters of the Solent. years later on the August that same club was to organise the first, as it then was, 3 day regatta comprising
yacht racing in what came to be later known as Cowes Week ('the regatta'). Save for periods interrupted by the wars of the Century, this fixture has evolved into the largest sailing regatta of its kind in the world and which currently stages 40 daily races consisting of approximately 1000 boat entrants of different classes and invariably attracting a draw in the order of 8,500 competitors during any one week.


2. The heaviest sailing activity during the regatta takes place within the area of the Central Solent usually commencing between 10.30 hrs. and 13.00 hrs. and utilising 2 start lines under the overall control of the Principal Race Officer and Chief Race Officers stationed on the Royal Yacht Squadron Platform and designated Black Group and White Group.

3. Adjacent to Cowes on the Isle of Wight is the Port of Southampton on the mainland and in particular the oil refinery at Fawley. Commercial traffic utilise Southampton docks at the same time as the regatta, and indeed during the course of other yachting events throughout the year, and, as a consequence, is the subject of rigid control from the perspective of the regatta and commercial traffic. Of special importance to this case specifically, although equally from the point:,pf view of the management of leisure craft and commercial traffic generally, is the subject of the Precautionary Zone situated to the west and south west of the Bramble Bank and West Bramble buoy (50d.47m.N; It means the main navigable channel which lies between those 2 buoys and an imaginary line drawn between Black Jack and Hook buoys as defined by Southampton Harbour 2003. Bvelaw 11 I attach to this judgment at Annex A a copy of a chartletused throughout the evidence in the case where this feature is manifest. I shall refer again to this document later during the course in these reasons and in other respects. I shall additionally refer to the Southampton Harbour Bvelaws 2003 as ('the Byelaws').


4. The purpose of the Prohibited Zone ('PZ') is to aid the transit and turning and turning circle of large commercial vessels, usually from the east, and their passage to Southampton Water. Such vessels enter the Solent from the Nab Channel to the east of the Island, track westward, south of the Ryde Bank, pass north of the Prince Consort buoy {a North Cardinal mark at 50d.46m.N; and then to turn east of the North Gurnard buoy (similarly a North Cardinal mark at 50d. 42m N; 18 m. W) into the PZ and thence to the Thorn Channel having a maintained depth of 12.6 metres for this purpose and then to navigate into Southampton Water and the Port of Southampton. The chart states and the Byelaws -



vessels over m in length navigating in the PZ will be given a Moving Prohibited Zone of 1000m and 100m. to side of the vessel while it is navigating within the 'PZ'. ' ('MPZ').


That Byelaw is supplemented by Notice to Mariners No. 23 of 2012 dated the

July not plainly in operation at the time of this incident



Bvelaw states: -


'For the purpose of indicating the presence of the MPZ the master of any vessel of over 150 m length overall shall display on the vessel where it can best be seen, by day, a black cylinder ...' (other characteristics arise at night and which do not fall for consideration here).


5. Accidents as between yachts and more particularly between yachts and commercial traffic are rare. I am told that what I am about to relate is the first incident of its kind within Cowes Week and the first within the PZ at any time of the year for in excess of 7 years (see Investigation report by Deputy Harbour Master of the Port of Southampton dated 13th March 2012 para. 44). It is a moot point as to whether this is a consequence of the tight organisation of the event, the skills and seamanship of those who take part or both. The area is busy particularly throughout the summer, and irrespective of organised regattas and events of which Cowes Week is an example and the Round the Island Race perhaps another. I mention the point since an issue has arisen during the course of this case about safety in general and the propriety of mixing a regatta with the continued passage of commercial traffic. I shall make further comment about this aspect of the case later during the course of this judgment.


6. This is a story of an accident which occurred on the day of Cowes Week

in the mid-afternoon of Saturday 6th August and involving a Corby 33 sailing yacht "Atalanta of Chester', 12m in length, owned and skippered by a Roland Wilson and 7 crew members, (Shrives, Wheal, Hilditch, Briant, Clarke, Flanagan and Tarr) all of varying degrees of experience to which I shall later turn, competing in a Class 4 race, subject to Black Group Sailing Instructions compiled and issued by Aberdeen Asset Management for Cowes Week (B: pp. 7-22), when sailing under main and gennaker. came into collision with the 'Hanne Knutsen,' a fully laden tanker inbound from the Norwegian oil fields to the Esso Fawley Marine Terminal via the Nab Channel at the eastern end of the Solent under the command of Captain Robert Rafaelsen. I shall refer to and Knutsen' as yacht' and 'the
respectively.

7. The tanker was 264.68m (LOA) with a beam of 46m having a total gross tonnage of 72,245 tons and a maximum draft of 14.4m. She was a modern vessel built in
2000. Technical data concerning the tanker and made available for this trial indicates that the tactical diameter of turn, given full load conditions, full rudder at 14.4 knots equates to She was allocated 2 pilots, a John Milosevic, the First Pilot of 23 years experience, who at the material time had the 'con' of the tanker and the assistance of the Second Pilot Paul Twelftree, a pilot of 17 years experience. They boarded the tanker at hrs. at the Nab and headed west. At the stern of the tanker was stationed Escort Tug 'Apex', under the command of a Tim Hooper having a
100m steel hawser attached to the stern, subsequently shortened to 60m prior to a subsequent turn and prior to the collision. There is a discreet issue as to whether the tug was stationed on the port or, alternatively the starboard quarter of the tanker. In addition, the tanker had standing by, the assistance of Southampton Patrol vessel (hereinafter referred to as 'SP') under the command of Simon Lusty (1st Coxswain) and a Nigel Lamming Coxswain). The tanker was displaying the correct daymark for that vessel which I have already identified and is described by the 1st Pilot as
'manoeuvrable' as a consequence of her high lift rudders. As a fact there is a

blind spot ahead of the tanker as seen from the bridge. Lookouts were apparently posted in the bow of the tanker who were in short wave radio contact with the bridge.


8. The weather was fine and described as 'good - sunshine with broken cloud", visibility was good at miles and the wind light (Force 3) at knots from the south west. The tide was at flood and setting east, and at 70% of springs, with HW at and having a 4.4m. rise. It was the intention of the pilots to arrive the tanker at
Southampton at slack water.



9. The collision occurred north east of the North Gurnard in PZ as the tanker was turning towards the Thorn Channel and having the benefit of MPZ as dictated by the Byelaws to which reference has been made. The yacht was sailing between racing mark Aquaspec in the Western Solent (50d. 45m N, 25m W) and the South Bramble (50d. 46m N, 46m W). The tanker meanwhile, upon rounding Prince Consort at steadied at 256 - 260 degs, ahead at 9 knots; 6 minutes prior to the collision. There is an issue as to the speed of the tanker and to which I shall give separate consideration. However, there was another vessel in PZ at the time of the

turn and with which I need to deal, the presence of which was of significance. That afternoon as the events I have described were unfolding, the Extreme racing event was taking place inshore and just off West Cowes. Whilst this was not new to they had raced in previous years, in order to give these fast and high performance catamarans scope to exercise their performance, a racing area was designated just off Egypt Point to the West of Cowes and to which all craft were save for the Extreme 40 competitors from 15.00 hrs. and all vessels were
required to keep clear as specified in Cowes Week Sailing Instructions. The Northern boundary of this area is contiguous with the PZ in the vicinity of the North Gurnard. Craft were at liberty to observe from seaward as spectators were free to watch from the shore. One such observing vessel, if I can so describe it, was a Sealine SC35
Sports Cruiser owned, helmed and skippered by a Peter Joyce and based at Ocean Village: the 'Joy Sea'. I shall refer to this vessel as 'the power boat'. Having travelled from the River with, coincidentally like the yacht, 7 other persons in order to observe the Extreme 40's, at about 15.10 hrs. the starboard engine
appeared to overheat and was closed down, with the skipper maintaining neutral on the port engine. One feature of the power boat presented a major problem, however: it had no rudder system and depended for its control on vectored thrust and movement of the'Z' drives by power. In other words in order to move the boats' hydraulics it required power which could only be obtained from the starboard unit now shut down. The consequence was that power boat could only manoeuvre in a circle to starboard. It was effectively disabled and would technically become 'a vessel not under command' for the purposes of Rule 27 of the Convention on the International Regulations for Preventing Collisions at Sea as amended, (hereinafter referred to as "the Regulations'). Commodore Twitchen RN, the defence expert, comments that such a design presents as a and (an) feature that limits steering control' (See Experts B: p.44, para. For the purposes of this case I do not think I should comment further, since this is not directly pertinent to the issue before me and
I do nof have expertise in this field.



Just prior to the collision at about hrs. and at 2 cables north east from the North Gurnard the tanker made her turn to starboard. Because of the presence of traffic Tug Apex shortened the line to 60m and 1 short blast was sounded by the tanker to foreshadow the turn and manoeuvre. SP. having noticed the power boat in a

potentially dangerous position approached her and requested her to move west as soon as practicable unaware at that point that the vessel was disabled. I have been informed by the evidence that upon the tanker being committed to the turn she came
within a and matters were soon to become critical.



As to the yacht, it is agreed that she was not at this stage in a competitive position in the race having accumulated a quantity of weed on the keel, picked up in the Western Solent that day, and was losing some 1.5 knots to other competitors, but I have read a 1 and a half page undated document headed 'Joint statement from Navigator (Mr. Mike Shrives) and Skipper (Lt. Wilson)'(B: some handwritten appended notes and have heard their evidence. They state that the tanker was observed as far as 5 miles away in the Fishbourne-Norris area of the channel astern of SP and was considered to be on course to foul the yachts line on her approach to the West Bramble as she turned. 2 options presented themselves. Firstly, to gybe onto the port tack and close the mainland shore ('Option 1'), or alternatively to continue on their existing starboard tack and close the Island shore ('Option noting that this latter option would place them close to the Extreme 40 series of races then in progress. The latter option ('2') was decided upon since the former 'gybe' option would, it was considered, potentially infringe the tankers' MPZ. It is an important question for this trial whether option carried the risk itself that the MPZ would still be infringed given that it necessitated adopting a course that closed the tanker as it turned, and more importantly, make the risk of collision all the greater.
all events the report asserts that a constant watch was maintained, the intention being to pass the tanker port to port. Following the starboard signal given by the
tanker pursuant to Rule 34(a) of the the collision report of the yacht states:



this stage having been constantly assessing the relative bearing between ourselves and the ship, we judged that we would still stay outside his moving exclusion zone as the bearing was moving steadily left. Following this the pilot vessel stopped by a motor boat close under the bows of the ship and then both motor boat and pilot vessel manoeuvred around each other. At this stage, one minute prior to collision, it appeared the tanker had not turned to starboard and so we came close to the wind as possible given the current sail plan, but having had good boat speed sailed into a in the wind and stopped.'



This account concurs with the evidence I have heard from Mr. Shrives.



On the bridge of the tanker, the pilot became aware of the problem of the power boat having been so informed by one of the lookouts and a reference within the transcription appears. There is an issue as to whether or not lookouts were stationed on the tanker in order to inform the bridge. In order to avoid crushing the power boat the tanker arrested his turn to starboard by applying port of 10 degrees. It is also the case that SP, as well as attending to the power boat, is said to have attended the yacht, and instructed the skipper that he should head west as he had similarly instructed the power boat. The evidence here is contradictory and requires
resolution



The power boat was able to regain some control and in a manoeuvre too close to call was able to slip down the starboard side of the tanker, restart the overheated starboard engine, obtain control and move away to safety.


14. This left the yacht, upon one view of the evidence on the starboard bow of the tanker, within the MPZ the gennaker having luffed and without way for either propulsion or steerage. Another view of the evidence is that the yacht was on the port side of the tanker. The evidence of the navigator, Mike Shrives is as follows: -


saw the tanker port to port, not starboard. A patrol boat put its lights on and went to one of our boats. We came further to starboard to take us clear of the tanker. Suddenly the yacht stopped. We were doing 7 knots port to port:
200 metres per minute, then to starboard to open the distance, then for reasons I don't know we came to a stop. In turning we were luffing or wind was affected by the tanker.


Q. How was it that she (the yacht) was in that vulnerable position?



A. We had a false expectation that it (the tanker) would take a track which it did not take and would follow the patrol boat and we would go port to port.

This is the view of Mr. Wilson who shows common cause with his navigator. During interview on the September with Mr. Lee at MCA headquarters, he states: -


'We were sticking to our plan of passing port to port so we the tanker originally in the Fishbourne to Norris area of the channel and we continued to monitor her with us well clear on her port side, she got to Prince Consort and as expected she made a turn to port which slightly closed the angle between my track and the ships head but nevertheless we remained safely on her portside and we judge we would have remained outside of the MPZ...' (p.23 of63;B . p.69).


In evidence, Mr. Wilson maintained that position, as indeed did Mr. Shrives and Mr. Wheal. Mr. Wilson explained that he draws a distinction between the relative bearing of the tanker to the yacht and its true bearing. I set that point in context of the entirety of the evidence and shall address the question it raises (i.e. where was the yacht?) in due course.

The collision report of the yacht is silent upon the question of applying auxiliary power. Commodore Twitchen in his report puts the matter thus:



is no specific reason why the yacht could not have started, but not used, the engine earlier. However, given the speed of approximately 6 kns., under sail the engine would have provided no more speed to increase the rate of change of bearing but would have provided manoeuvrability when she lost
wind close to the bow of the tanker.' (Experts. B. p. 22, para. 46).



It appears that the controls for starting the engine are below decks and cannot be started from the helmsmans' position. They are situated above the chart table. Commodore Twitchen makes the point that such an arrangement as a poor design layout not conducive to good (Experts. B. para.45). A decision was made not to start the engine, a matter I shall need to consider later, but I decline to make comment upon the design aspect of the case since, rather like the position which pertained in relation to the power boat, it does not bear upon the fundamental issue and I do not have that expertise to further comment.


S



At 15.16 hrs. 40 the yacht and the tanker, following the tanker giving 5 short blasts and directed to the yacht as it seemed to me, and not the power boat (that the tanker did not understand the intentions of that vessel: Rule 34(d) of the Regs.) collided with one another, the yacht being close to beam on the tanker's bow. The collision and its immediate aftermath were filmed from West Cowes and, as well as being shown as part of the evidence in this case has been shown on You-Tube. The case, and the footage in particular, has attracted widespread interest in yachting circles and elsewhere, the footage alone having attracted in excess of 924, 000 viewings.


17. Prior to the collision one member of the yachts crew, Adrian Wheal jumped overboard and swam down the tanker's starboard side, another, Mark Flanagan suffered concussion as a consequence of falling rigging and which resulted in him being hospitalised. The yacht was dismasted and SP went to her aid as well as other safety boats. Fortuitous it was that there was no loss of life, since, and without wishing to minimise the fact that this was on any view a serious incident in itself, the potential for even greater and tragic consequence is apparent. It has been submitted at the close of the case that the public interest test in prosecuting this case has not been met: it was not serious in so far as injuries are concerned; there was no culpability, the prosecution is not a proportionate response and other reasons upon which reliance is placed. Since the points have been taken I should comment. It is not the task of the court to decide whether or not a case should or should not be brought. It is well established that if a on reasonable grounds feels that a prosecution should not be brought, this is reflected in penalty alone (see Arch. Criminal Pleading, Evidence and Practice 2013. 4-58; DPP v 19771 HL per Lord Salmon at p. 46C-F. However. I also bear in mind the point which the defence themselves which took in cross-examination pointing out that the consequence of this case was close to being one of very great seriousness and which potentially could have catastrophic consequences resulting in manslaughter or a death as a result of an unlawful act.

The Prosecution and Defence Arguments



There is much in this case which is common ground and the court has been much assisted by the work of Dr. Neil of the Company Avenca Ltd. which specialises in the downloading and the analysis of digital data from a variety of sources. The Company has worked extensively in the marine field utilising Voyage Data Recorders, Automatic Identification Systems, Global Positioning Systems, Video Recordings, Radar traces, MADAS software and other devices. This case is an example of its work and from material obtained from the tanker of the kind referred to and the yacht, a GPS handheld unit, and SP, Dr. Baines was able to produce an animated replay of the collision in the form of the vessels being superimposed on a chart of the relevant area and the relative positions of the main players: the tanker, the yacht and SP can be seen both prior to and after the collision. Dr. Baines was called
as the first witness on the first day.



I very much take the point made by Mr. Taylor on behalf of the Defendant that the animation is incomplete since it does not include the power boat in any of its references. Mr. Wilson has, I think accurately, described the animation as 'a reconstruction'. That is no criticism of Dr. Baines since he did not have any data appertaining to the power boat by way of example. That concession having been there is, in my other data concerning the power boat whereby a satisfactory picture can be obtained of its movements and position immediately prior to and after the collision so that its relevance and bearing upon the matters before this court can be adequately assessed. In particular, there are still photographs of the power boat taken from SP prior to the collision with the yacht; there is the video footage which shows, upon close examination the power boat moving around the starboard bow of the tanker; the evidence of the crew of SP, and the evidence of the owner and skipper, Mr. Joyce called on the third day. Accordingly, I am entirely confident that the precise position of each relevant including the power boat,
can be measured.



20. Equally, there is no doubt and no dispute that at the material time the yacht was under sail; that the tanker was a vessel constrained by her draft (not one restricted in her ability to manoeuvre); that the collision occurred in a narrow channel; that the

yacht came within the PZ and additionally within the MPZ of the tanker prior to and at the point of impact; that the power boat was approached by SP and advised to move west, and there is no doubt that the collision occurred as so many have observed on You Tube and otherwise. There is a substantial dispute as to whether SP approached the yacht and issued any instructions to move west or at all, similar to the position that pertained in relation to the power boat. This issue requires a specific finding since, if it were the case that SP did approach the yacht and warned her to move whether to the west of elsewhere, for these purposes it matters not, the prosecution case would be materially amplified, since this would permit an inference that the yacht was holding a
dangerous course towards a potential collision against the advice and/or instruction of





21. The prosecution assert that responsibility for this collision lay with the yacht in that she failed to maintain a proper look-out, not in the sense that the skipper and those acting under his authority failed to 'see' the tanker in the strict sense: indeed, anyone in the Eastern Solent that afternoon would have 'seen' the tanker in its track but failed to 'see' the tanker 'so as to make a full appraisal of the situation
(that of the tanker and her own) and the risk of collision'. In their failure to make such an appraisal the wrong decisions were effected, the wrong manoeuvres maintained and the yacht and her crew were placed into danger. As a consequence of those matters the track of the tanker was impeded, a specific reference to the fact that her MPZ was infringed, and, moreover, the yacht crossed a narrow channel, across the bow the tanker with the result that a collision occurred.


22. The defence draw attention to a number of factors which, they contend, are relevant to a consideration of this case, its overall context and ultimately the criminal liability on the part of the yacht as contended for by the prosecution: This was the first day of Cowes Week Regatta The Central Solent was exceptionally busy; made all the more so by the presence of the Extreme 40 Catamaran racing off Egypt Point, exacerbated by the presence of water borne spectators of which the power boat was an example. The presence of the tanker at the time of its passage into the Thorn Channel in mid-afternoon made a complicated scenario much worse, although above all the yacht had seen the tanker many miles away, had noted that her track and that of the yacht could potentially converge upon the turn of the tanker, and. above all, had


11

formulated a plan for collision avoidance: namely to pass the tanker port to port, and keeping the tanker to the east: Option (2) as has already been described. The tanker, it is suggested, was moving fast: too fast for the prevailing conditions and the proximity and density of other vessels, and doubt is cast upon the effectiveness of SP in patrolling and managing the turn of the tanker into the Thorn Channel. I am advised by the Defence expert to consider the disability of the power boat and the collision of the yacht and the tanker as part of one incident: not 2 separate events. As a consequence, if that is correct, how can the yacht be blamed? These events are beyond her (the yachts') control, in particular the fact that the tanker was obliged to slow her starboard turn to avoid crushing the power boat. That resulted in the tanker standing on for longer than was expected. As a result, as I understand the case as posited, the port to port manoeuvre with the tanker was no longer was possible, and the collision became the result.



Law



23. In cases of this kind it is easy to loose sight of the fact that the court is not embarked upon a civil exercise and the apportionment of blame according to a balance of probabilities. This is a criminal trial and which requires appropriate criminal directions.


24. The prosecution bring 3 separate summonses: -


(1). Failing to maintain a proper look-out by sight and hearing as as by all available means so as to make a full appraisal of the situation of the risk of collision with the tanker. Contrary to Rule 5 of the Regulations and Regulations 4 and 6 of the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996; and Sections 85 and 86 of the Merchant Shipping Act as amended.


Impeding the passage of the tanker in a narrow channel, namely the

Solent. Contrary to Rule 9(b) of the Regulations and as aforesaid.







12

(3). Crossing a narrow channel of the Solent and impeding the passage of the tanker. Contrary to Rule 9(d) of the Regulations and as aforesaid.


25. Each summons requires separate consideration one from another and an examination and consideration of the evidence separately from one another. They do not stand or fall together.


26. Roland Wilson is 32 years of age and a man of not just good, but exemplary character: He is a naval officer, now a reservist, who, at the time was based at CTCRM Lympstone, a married man with a baby son. He has a considerable degree of sailing experience. He does not have formal RYA qualifications, yet adheres to the opinion, as I know many sailors do, and as he stated in his interview, that experience is more important than paper qualifications. That is not to say that his broad qualifications are otherwise impressive. A physics graduate of Durham University who, following graduation went to and passed out of BRNC Dartmouth, and is a qualified watchkeeper who has served on 3 RN ships as part of his career. He is entitled to receive both limbs of a good character direction. Firstly, that so far as matters of credit are concerned, the fact of his good character means that he is more likely to be believed on oath than if the contrary were to be the case; and secondly, as to propensity: he has an unblemished character and is less likely to behave in the manner the prosecution allege by this prosecution than were it to be the position that he had previous convictions for the same or a similar matter or matters. The specific significance of Mr. Wilson's skills 1 shall consider later.


27. Experts. The receipt of such evidence is now governed by the Criminal Procedure (Amendment) Rules 2009. SI The court has had the benefit of hearing on the 3rd day and reading the reports of Mr. Roger Towner on behalf of the prosecution and Commodore Twitchen on behalf of the Defence. They have both met before the hearing of the case and have compiled a joint report setting out their respective agreements and disagreements and as provided by the rules dated the September The court is grateful to them both. They are both experts in their field and
entitled to comment upon matters which they have. In law the purpose of an expert is to provide evidence of opinion on matters which are, ordinarily outside the everyday
experience of the court: they do not decide the issue: see Phipson on Evidence.


13

para. 33-12. p. 1076; R v Lanfear 2 OB 77; 1 All It is therefore open to a court to disregard the expert evidence it has received notwithstanding its obligation to have proper regard to it: see R v Stockwell [1993] 97
ADD. R 260. In certain extreme cases it is possible for expert evidence to be dispositive of the case, as where there is evidence which only an expert could provide and which is unchallenged: see Anderson v R [1972] 100 This is not such a case. The experts here, whilst being in a position to make a judgment about how the court should dispose of the case, as they both have: both being in receipt of all essential material, still challenge each others findings about which the court must rule.


28. The burden of proving this case and each and every element of the 3 summonses the prosecution choose to bring rests upon the prosecution to prove those matters to the high criminal standard of proof. The defendant has no obligation to prove anything. Where there is any doubt, he is entitled to the benefit of such doubt by operation of law.


29. S. 85-86 Merchant Shipping Act 1995 is entitled 'Safety and health on ships (summarised). It gives power to the Secretary of State to make safety regulations for the purpose of securing the safety of ships and persons on them. The Merchant Shipping (Distress Signals and Prevention of Collision) Regulations 1996, provide that certain bodies specified in a Merchant Shipping Notice may give type approval in respect of equipment and other arrangements for ships in connection with a variety of matters including the International Regulations for Preventing Collisions at Sea 1972 (as amended in (See Stones' Justices Manual. 2013; 7-6356). These regulations come into force as secondary legislation made by the Secretary of State pursuant to delegated powers on the 29 November 2003.


30. The Regulations which are material to this prosecution are as follows: -



(i). Rule 1. The Rules shall apply to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels.


(ii). Rule 3(h). The term 'vessel constrained by her means a power- driven vessel which because of her draft in relation to the available depth and


14

width of navigable water is severely restricted in her ability to deviate from the course she is following.


(iii). Rule 5. 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.


(iv). Rule 6. 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.


(v). Rule 7(a). Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists.
there is any doubt such risk shall be deemed to exist.



Rule 8(a). Any action taken to avoid collision shall be taken in accordance with the Rules ... and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.


(vii) Rule 8(b). Any alteration of course and/or speed 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.


(viii). Rule 8(c). If sufficient sea room, alteration of course alone may be the most effective action to avoid a close quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.


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




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(x). Rule 9(b). A vessel of less than 20 metres in length or a sailing vessel shall not impede the passage of a vessel which can safely navigate only within a narrow channel or fairway.


(xi). Rule 9(d). A vessel shall not cross a narrow channel or fairway if such crossing impedes the passage of a vessel which can safely navigate only within such channel or fairway.


31. also record that the term 'right of way' does not appear in the Regulations, nor is the term 'narrow channel or fairway' the subject of specific definition.


32. The Defence also deploy what is commonly referred to as the 'statutory defence' asserting that the skipper has done all he reasonably could to avoid the collision. Where the issue is so raised it is for the defence to discharge the burden of
proving the statutory defence on a balance of probabilities.





Evidence



32. 1 have heard this case over the course of 5 days. I attach hereto a schedule of the witnesses from whom the court has heard and marked Annex B.


33. As to written evidence I similarly attach the material that has been presented at

Annex C. Discussion
34. It is apparent when the rules I have identified are considered both individually and collectively that essential purpose is directed to the avoidance of collisions at sea or close-quarter situations. In this case there was a collision, but it does not follow that for a prosecution to be considered in any given case that there has necessarily to be a collision or some form of accident or close-quarter manoeuvre. There may be a breach of the regulations in the absence of any such event. I so state perhaps for obvious reasons a lot of the evidence in this case has been taken up

with reconstructing the collision from the problem of identifying causation. What would have happened had the power boat either not broken down or not been there at and caused the tanker to slow its starboard turn? Would the tanker have been able turn to starboard quicker and would there have been no incident? Should SP have affected a more thorough patrol of the PZ and the MPZ in particular? What if the Extreme 40 catamaran racing had not been ongoing? Would the yacht have had more sea room with which to avoid the developing close-quarter manoeuvre? Was the Central Solent congested that Saturday afternoon? If yes, did that crowd the yacht and the tanker for that matter, and which forced them into a close-quarter manoeuvre that neither wanted? Should commercial and regatta traffic mix at There is nothing wrong with the issues so raised by questions of that or a like kind, but I have concluded that they are not central considerations in this case and whilst they may shed light upon how this collision occurred they do not directly bear upon the allegations of breach of the collision regulations, they may inform the decision but are not determinant of it.


35. I take as my starting point the position with SP, the patrol vessel under the overall command of Simon Lusty from whom I have heard on Day 4. One issue needs to be clarified at the very outset. It appears that there is, or certainly was, a misunderstanding as to what SP is and was on the day in question. There is some suggestion in the evidence of Mr. Shrives and also within the joint report compiled with the skipper that SP was a form of leading escort vessel dedicated to lead the tanker on its intended track and on its turn into the Thorn Channel. The error, as I find it to be, is repeated in the defence statement. It is and was not. This misunderstanding was identified by Roger Towner in his report of the September
2013. He states:

function of SP ... is to patrol the MPZ to ensure a clear passage, it is not intended SP should act as a pilot and the large vessel through the (See Experts B: para. 20, 14).


36. A practical illustration of this feature arose in this case since SP, on the video and the chart overlay, can be seen at times leading the tanker, but also breaking off and attending the power boat. That, in my judgment was entirely appropriate and makes the point that SP was a vessel' not a During his evidence Mr. Wilson


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appeared to correct what I find was implicit in the joint report about the function of





37. However, more importantly, did SP attend the yacht and offer advice to clear to the west? The evidence is conflicting. Nigel Lamming, the 2nd Coxswain explained that he first saw the yacht, prior to seeing the power boat. SP was travelling west with the tanker astern from the West Ryde Mark. A decision was made to approach the yacht and a visual signal was made towards it. Attention was then given to the powerboat. Simon Lusty, the Coxswain, who gave evidence on the 4th day, stated that he approached the yacht in SP, which, as he put be a bit of a nuisance
...' and which he describes as 'pink spinnaker' and, at metres shouted '.. . start engine and clear, a tanker's coming This is slightly different to Mr. recall. The yacht he describes as 'sailing well and had steerage way'. He
then navigated to the power boat. I have read a statement of Mr. Lee Gallagher Pilot Launch Coxswain on SP) dated the 1st August and have heard from him who reports no less than 3 approaches to the yacht. This is evidence I utterly reject: this did not happen. This evidence, moreover, is in direct conflict with that of Lanning and Lusty. Evidence from Mr. Shrives and Adrian Wheal, the navigator and mainsail trimmer on the yacht respectively recall matters differently. Mr. Shrives asserts that the patrol did not speak to us beforehand (i.e. before the collision) only after the collision.' Mr. Wheal, who was on deck throughout the critical moments leading up to the collision does not recall any approach from SP. Mr. Wilson seems to recall, and I appreciate that other and more pressing matters were on his mind at this point, that SP may have approached the yacht and balled out 'What the **** do
you think you are doing'?



37. I need to factor the length of time that has elapsed since these events: 4 months. Events, moreover, that were fast moving and complex to recall in detail. In order to weigh this aspect in the balance of the case in favour of the prosecution I have to be sure: the law so states. Mr. Shrives in his evidence did indicate that SP did to another yacht in their class as he recalls: not them, i.e. the yacht which is the subject of this case.. Given the poise of the evidence I am not satisfied that the yacht was approached by SP. I have no doubt that this was a complex and difficult afternoon: SP was much a point remarked upon by both experts in their


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joint report, but 1 do not think it is safe to place reliance upon this aspect of the matter and I leave it out of account.


38. Speed and the tanker. It is an important part of the Defence case that throughout her transit down the eastern Solent and in her turn, the tanker was going at an excessive speed. This in itself would be in breach of Rule 6 (safe speed). The prosecution expert expresses himself thus:



hindsight it could be argued that she should have done. However, with the majority of vessels keeping clear of the MPZ there was no need to specifically reduce speed under Rule (Exp. B. p. para.25).


Commodore Twitchen points additionally to the fact that it appears there is no order or indication of a reduction in speed (Rule 8(e)), only after the collision and with a man in the water are the engines stopped. (Exp. B. p. 48, para. 50), and by reference to a plan document in relation to the same vessel but on the December months later) it is sought to demonstrate by reference to passage times that
the tanker was speeding.



39. I have heard from Mr. John Milosevic, the first pilot. Not only was he an experienced pilot but he was also a strong witness. Upon any view if the Solent was crowded for the yacht, a point stressed by the defence, it must have been all the more so for the tanker and Mr. Milosevic in particular, not assisted by a disabled power boat on his bow. He asserts that the tanker at the material time and just prior to the collision was not going an excessive speed. Fundamentally, 2 questions arise about this aspect of the case. Firstly, as a matter of primary fact, was the tanker moving at an excessive speed? Secondly, is it relevant to the incident and the issues in the case? It is a fact, as I find that the tanker was at the point of the turn reducing from knots to 9.4. What is a safe speed is, for reasons which do not need to be amplified, is highly dependant upon context, circumstances and pressure of events. I bear in mind the objective upon which the pilots were embarked: to turn a very large and fully laden vessel, restricted in its draft through an arc of turn into a channel to the starboard of which was the Bramble Bank and to port was an easterly setting spring tide at 70%. Control of the vessel was the critical path and for which speed was


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necessitated. When a pilot of the experience of Mr. Milosevic tells me that the speed of the tanker for which he was responsible was appropriate and 'common practice', is the court going to disagree. It could, and the defence point to the 2 experts who have come to some agreement upon the point to show me how. I have dealt with the law on experts: I do not have to accept what they say, and my conclusion is that I need very much more in evidence to make a finding that this tanker was travelling through
the water at excessive speed in breach of



40. Even if I am wrong about that, is speed relevant? I have heard some evidence about speed limits which appertain, as I understand the evidence, to the area of the Solent within the jurisdiction of Portsmouth and the QHM. That jurisdiction ends at about Old Castle Point on the Island side, near East Cowes, and, to the west of which the jurisdiction of the Port of Southampton begins. Of significance is the fact that the jurisdiction of Southampton has no limit whereas Portsmouth has. The apogee of the defence case, therefore, can only be that the speed in the Southampton was excessive in all the circumstances, absent any limit. I find that the speed was appropriate and
accept the evidence of John Milosevic and Paul Twelftree.



The Yacht. The Crew and the Collision. There is no dispute other than the Rules in respect of collision avoidance applied to the yacht, that the tanker was the stand on vessel within the PZ and that the yacht was obliged to give way. Save for the weed on the keel the yacht was fully operational, able to sail well and had the benefit of an auxiliary engine. What of the crew? In their closing submissions last Wednesday the prosecution referred to the actions of the crew and skipper as, inter alia, 'arrogant'. I strongly disagree with that analysis. I think it is a significant feature of this case that this crew were strong, experienced and able. Frankly, I doubt that many amateur crews in the regatta or at any other time could field a better team, at least on paper. Leaving the skipper aside, who I found to be an intelligent, articulate and personable man, there was the navigator; Mike Shrives, an ex-Commander RN Commodore of the RNSA, Yacht Master Instructor, a former Captain of a minesweeper in the having 41 years sailing experience and many Cowes Week experiences. At the material time he was on the Adrian Wheal: mainsail
a Commander in the RN still serving. He had previous Cowes Week experience, qualified as an offshore yacht master with commercial endorsement and


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cruising instructor, experience of 3 Fastnet Races, 1 Sydney-Hobart Race, 1 South China Sea race (comprising a run of over 600 miles from Hong Kong to the Philippines). He had previous experience on this yacht. Mark Flanaghan, spinnaker trimmer, a serving PO in the RN with 20 years sailing experience, qualified to RYA Blue Badge at advanced level. Clare Hilditch, a serving PO in the RN, and an RYA Day Skipper with experience of the Fastnet Race, the Sydney-Hobart Race, Cowes Week, Dartmouth Regatta and experience on this yacht. I have no other evidence of the other 3 crew members, but no reason to suppose that they were unable to supply appropriate support.


42. This was a serious yacht, crewed by serious people, in the regatta for a serious purpose, and as I find, well equipped in terms of experience and ability to deal with any situation be it weather influenced, tidal influenced, other vessel influenced or otherwise. This was not some Saturday afternoon jaunt by some inadequate vessel, crewed by the inexperienced, the clueless and foolhardy who had no business being on the water at all.


43. I have heard a lot about conditions in the Solent that afternoon, and in particular, the degree of congestion both for and against. Simon Lusty tells me that from his view of the video and recall, it was light for Cowes Week. The skipper of the Tug, Hooper, in the letter I have seen (not I record strictly admissible evidence) speaks of it being congested. Voice recording on the tanker speaks of 'a large race coming What do I find? I have seen the video as well many times throughout the
course of this trial. Frankly, I am not sure. What is congested or not is highly judgmental and I, in fairness to the defence, resist the temptation to impose my own judgment on the video footage. It can only be part of the whole; the footage is overlain by a commentary which makes it appear 'busy'. I am prepared to accept the from the defence that the area was congested and made worse by the Extreme 40
catamaran boundary.



44. Point is taken by the defence that the decision and the steps taken to avoid the collision was a joint exercise between Mike Shrives and the skipper and the production of the joint report post event. The irony does not escape my attention. Mike Shrives is probably the most experienced person aboard, he was part of the


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decision which is on trial here, yet he is a prosecution witness and Mr. Wilson is the defendant. How just is that? The answer, as Mr. Wilson knows better than anyone given his naval background, is that the skipper has the ultimate say and carries responsibility accordingly. That is the position from time immemorial.


45. What then went wrong? Nobody sets out in Cowes Week to have a collision, let alone with a tanker, any more than a person sets out in their car in the morning to have a crash. Accidents do happen: they are product of cause and effect.


46. A decision, which was ultimately that of the skipper to make, was taken to close the Island shore (Option 2) and to reject (Option 1) to gybe onto the port tack and close the mainland shore. Accepting, particularly in the sailing world, that there are different approaches to accomplishing a given task with safety, and with appropriate deference to the discretion of the skipper, the option chosen does not seem to me to be the obvious one. I make the following points about it: -


(i). To gybe onto the port tack and to close the mainland has the advantage of maintaining speed and steerage way on the yacht. The wind was from the SW and the yacht would have the advantage of favourable tide. The yacht would be on a run before the wind and little adjustment to the sail plan would be needed. Probably to ease the main out to starboard.


(ii). The reason why this course was not adopted was because of a fear that the MPZ of the tanker would be infringed. Given the speed of the yacht (7-8 knots) and with the benefit of favourable tide I believe that is unlikely when the time taken for the tanker to turn is considered. But, even if I am wrong about better it must be to infringe the perimeters of the MPZ (in breach of the Byelaw) whilst moving away from the than it was to move towards the vessel and risk a collision.


(iii). The option taken was to move towards the tanker on a tack which in sailing terms cannot have been as favourable to the yacht as the other option. Viewing the video, it looked to me that the yacht was pointing quite high on the wind to the point of luffing at some distance from the tanker and, therefore

losing way. Mr. Wilson tells me that even with the gennaker; this yacht can point quite high. This is Mr. Wilson's' yacht: if that is his view of the boat he knows, I am not going to disagree.


(iv). Those on the yacht and the skipper in particular, knew that a close quarters situation was developing: there is no doubt as to that because there was discussion aboard about it. The engine was available, in working order and it was not started in readiness for use. There would have been plenty of time to do so and to switch it on and off numerous times if necessary. I have no good reason why no use and nor has Commodore Twitchen.The yacht was not in a competitive position; the rules of racing permit such usage subject to the reporting of such use to protest, but these details come nowhere to safety of crew, the need not to impede and/or endanger other vessels and the need to avoid the risk of collision.


47. Position of Yacht and Tanker. The purpose of the work of Dr. Baines was to obtain all the material he was in order to reconstruct the tracks of yacht, tanker and SP. has been criticised for being 'sanitised', for being for being a in that its images are not the real thing. I am being asked to approach
its conclusions with caution. There is nothing wrong with those points. However, it is clear from the track reconstruction that the yacht approaches the tanker on it's, the tanker's, starboard bow. The skipper maintains that at all material times the yacht was to port of the tanker. Is Dr. Baines wrong or is their doubt about this work that I should disregard it? Upon any analysis this is an impressive piece of work and whatever deficiencies there may be: absence of the power boat, absence of other is he wrong about the position of yacht and tanker? I think he is correct and I
can base conclusions upon the plot. I find that, although the skipper honestly believes that his yacht was to port, in this matter he is mistaken: he was to starboard and approached the tanker, without way, without sails and without engine. In my judgment this conclusion accords with the video footage whereby, following the collision, the yacht slipped down the port side of the tanker in a dismasted and damaged condition. The recall of the skipper cannot be reconciled with the evidence and in my judgment, adversely colours his interpretation of events and the reliance that can be placed upon them.


23



48. Much has been made of the power boat and SP. Had the power boat not been there, then there would have been no collision. As is clear, this case does not depend upon there being a collision: so much is clear from the wording of the summonses and the law. The power boat was undoubtedly a complicating aspect of an unfolding problem. The yacht took a decision, and the wrong decision, to sail towards that problem, and into the path of the tanker across a narrow channel It should have kept clear, and, in the worst event used the engine as a last resort.


49. As to SP, there has been criticism here as well: unprofessional, corporate neglect and so on. SP was not responsible for any developing problem that afternoon. It was there to patrol the area as we have seen. It did exactly that. In reality it had 2 disabled vessels in its vicinity crowding that tanker: the powerboat without steering (to which SP attended twice) and the yacht without sail power, mechanical power or steerage. That was too much for it to bear and to be expected to cope with in such a short and compressed time frame.


50. Does there exist any means by which the yacht can be absolved from responsibility: the statutory defence and a finding that she did all she could to avoid the risk of collision? A burden she in the form of her skipper, must discharge. The crowded conditions and the small area of water into which she was sailing as product of the Extreme 40 events are prayed in aid: 'the slither of water' as is has been described. This, I accept, may have been difficult sailing and manoeuvring. Yet, with this quality of crew and a sound and undamaged yacht I am quite sure that their abilities (individual and collective) were sufficient to' sail that yacht, 'Atalanta of Chester' out of danger and to avoid risks to others, most particularly "Hanne Knutsen'. The fact that they did not do so was a product not of their lack of skill but the product of the wrong decision at the wrong time for which the skipper, Roland Wilson must take responsibility.


The 3 Summonses



find each of the 3 summonses, separately considered, proved to the high criminal standard required by the law.



The Future



52. Finally, may I briefly comment on certain changes which the organisers of Cowes Week and its regatta have made in relation to organisation and safety? Now is neither the time nor the place to examine them in detail. The defence have referred to some of them as part of their case. It is clear that sailing is a risk sport and whilst efforts to improve safety for all concerned are to be welcomed, the inherent risk associated with its pursuit cannot be extinguished altogether.


53. The mere fact that improvements have taken place is not to form a conclusion to the effect that arrangements were either defective or inappropriate or to be found wanting in That is unfair to the organisers and their efforts to improve safety for all in subsequent years.


54. The owners of Hanne Knutsen conducted their own enquiry post this event. It has been referred to in evidence. The effect of part of the report was to question the wisdom of having a regatta mixed with the passage of large commercial vessels of which Hanne Knutsen is an obvious example. Regrettable it is for all who were involved in this accident and in particular skipper Roland Wilson, but this collision needs to be seen in its proper context: this was an isolated incident borne of its own circumstances. Attempts to call into question the future of Cowes Week in its present form are unjustified and unnecessary.


55. The Collision Regulations in their present form were in force in as they are in force today. The ultimate key to collision avoidance is not to be found in the reorganisation of the regatta; it is to be found in the understanding and application of the existing the responsibility for which rests with the skipper of each competing yacht.




ANTHONY CALLAWAY DJ



25™ OCTOBER


25

[leratty]

Brian yes absolutely correct & thank the Lord it did not occur what a tragedy that would have been. It is seriously perplexing in many parts of the world that yachtsmen both sailing & motor do not know or realise that. My experience with yachting is that it is often the person who has not grown up sailing or spent any time at sea who are involved, though obviously not as common sense just flew out the port hole. Also those that are now days able to buy bigger & bigger vessels before learning on smaller then graduating both yachts & motor are oft unable to handle them. In Hong Kong the crazy things we saw on the water by expats on big boats was horrifying, their anchoring skills often non existent. Worse their complete lack of control of imbibing alcohol scary! Many we would not go out aboard after one experience. Yet to watch a sampan or junk manoeuvre both in Shanghai & Hong Kong was a true treat as to seamanship-skill. How they must have muttered at the carrying on of some of the expat's on their Gt gin palaces.