The wreck of the smaller vessel remained submerged for 37 days before salvors managed to deploy one of Asia's largest floating derricks - the “Hua Tian Long” - to lift the vessel to the surface

The Ukrainian master of the offshore supply vessel “Neftegaz- 67”,Yuriy Kulemesin  was handed the stiffest sentence  after being found guilty of breaking Collision Regulation rules five, eight and nine.

These basically cover failure to keep a proper lookout, failure to avoid a collision and failure to navigate properly in a narrow channel.

The court heard that the offshore supply vessel’s captain stayed in the middle of the channel despite seeing the mainland bulk carrier approaching. The Ukrainian master said that he did not hear the warning whistle blasts issued by “Yao Hai”.

Worst Marine Accident in Hong Kong since 1971

The “Neftegaz-67”/ “Yao Hai” collision is Hong Kong’s worst maritime accident since 88 people died when the Hong Kong-Macau ferry Fat Shan capsized during Typhoon Rose in August 1971.

The prison sentences were handed down  almost two years after 18 Ukrainian crew on the, “Neftegaz-67”, died when she capsized and sank after a collision with the panamax bulk carrier, “Yao Hai”, on March 22, 2008 in Hong Kong waters. District Court Judge Madam Susan D’Almada Remedios cited serious errors of judgement in navigation as the basis for the heavy sentences. The words “gross” and “negligent” were used. She added that the “18 lives lost cannot be ignored”.

Inconsistent Approach in Hong Kong

The same legislation was not invoked in 2003 when a container vessel owned by Singapore operator, Pacific International Lines, “Kota Hadiah” collided with a dredger “AM Vella” in Hong Kong waters causing considerable loss of life. That collision action was settled at the start of this month in the High Court of Hong Kong before it got to a hearing. The only governmental involvement in that collision was a pilotage enquiry. There was no criminal prosecution of the crew or pilots.

Errors in Navigation

While both ships were heading for exactly the same position, those onboard did nothing to avoid the other ship until approximately one minute before the collision. By that time it was too late and the “Yao Hai” hit the “Neftegaz-67” midships, holing the supply vessel below the waterline.

The District Court Judge said the vessels were sailing within a 520 m wide buoyed channel with no other vessels in the vicinity, with good visibility at night and plenty of searoom for either vessel to manoeuvre out of the way.

Sentencing Logic

Judge D’Almada Remedios in her Reasons for Sentencing initially went to some lengths to avoid a comparison between causing death by drunken driving and negligent navigation of a vessel but then contrary to her earlier distinction went on to equate breach of the “collision regs” with a breach of any statutory enactment which, if they carried criminal sanctions should be invoked, just like any criminal offence for its deterrent factor.  Failure to act and last minute action by the seafarers were treated as very serious breaches of navigation.

Yuriy Kulemesin, the Ukrainian master of “Neftegaz-67”, received the longest sentence of 3 years 2 months imprisonment.

Tang Dock-wah, the senior pilot onboard the 69,497 dwt bulk carrier, was jailed for three years. The Yao Hai ’s master, Liu Bo, and its junior pilot, Bruce Chun, were both sent to prison for 28 months.

Is The Deterrent Factor The Right Approach?

Thus lack of any previous convictions, good character, remorse, plain bad luck in being on board in the case of one trainee pilot were not genuinely taken into account.

Is it appropriate to treat errors of navigation in the same way as reckless driving offences?

Most shipowners think not. They refer to (the sometimes) lack of visibility, the sheer size of the vessels, the distance from the bridge to the waterline below, the effect this decision will have as regards recruiting new or young seafarers into the industry, the legal costs burden on the individual crew members such as the Master or Chief Officer where the vessel’s P&I club may pay the Owners costs in defending a civil claim but not the costs of these individuals in a criminal prosecution. Where is the justice?

Outcome

One could say there is a certain irony here. What is essentially a case about navigation was not tried in the admiralty court but in a criminal court (for obvious reasons). Putting on one side which lawyer within the Department of Justice came up with the idea of examining the relevant crew and pilots’ conduct on a criminal basis, the presiding judge appears to have reached the right conclusions (mostly) on the navigation aspects and then appears to have gone “overboard” on sentencing. Cases relied on by the judge for sentencing were all criminal non-maritime decisions save one, “Chow Tin Shing” [2007].

There was criticism within the public gallery about the length of some of the sentences, including those handed down to the mainland Chinese master of the bulk carrier and the junior pilot.

Two weeks ago, the Chinese crew of the “Yao Hai” bulk carrier applied for bail and succeeded. One assumes now that should a volunteer offer to cover the costs of the not so lucky crewmembers involved, there will be an appeal.

Seafarer Unions around the world are watching this case and any potential appeal closely.

Epilogue: Court of Appeal in Hong Kong Sees Sense

By two sets of applications, both convicted masters and pilots of “Yao Hai” and “Neftegaz 67” sought bail pending an appeal (likely to be in 2011).

The Court of Appeal Judge, Vice President Tang referred to the prosecutions under the Shipping and Port Control Ordinance (Cap 313), namely endangering lives at sea by unlawful acts. The offences derived from breaches of the Collision Regulations.

Bail had been or was granted on two grounds: merits and time already served. The former is or was speculative because the bail application necessarily only briefly considered the facts whereas the District Court trial lasted 91 days. VP Robert Tang took into account, in this case, the Ukrainian Master’s circumstances, character,  a desire to clear his name and granted bail without a prohibition against travelling outside Hong Kong and a relatively small cash and cash security deposit.

In other words, common sense and reasonableness prevailed.

~~~ Update ~~~

The United States Supreme Court Denies Petition for Certiorari

On March 22, 2010, the United States Supreme Court issued a Summary Order in The Shipping Corporation of India, Ltd. v. Jaldhi Overseas Pte Ltd., denying Shipping Corporation of India, Ltd.’s (“SCI”) a petition for a writ of certiorari.  The Court’s Order did grant the motion of the Maritime Law Association (“MLA”) for leave to file a brief as amicus curiae - so called Friend of the Court.

Put simply the rule B attachment is not coming back!

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.