Wait for decision in ferry appeal

A Palmerston North ferry captain controversially convicted over a near-grounding incident in the Cook Strait has appealed his case in the Wellington High Court.

But Captain David Birchall faces a nervous wait after the judge last week reserved his decision.

It is expected to be released next month.

The case is being closely followed in the nautical profession worldwide, as it could set a precedent on questions of criminal liability.

Mr Birchall was found guilty of failing to report an incident as soon as practicable to Maritime New Zealand in June 2005, in which a strong tidal stream pushed the Bluebridge ferry Santa Regina within 100m of rocks in Tory Channel.

He was cleared of the more serious charges of operating the ferry in a manner causing unnecessary danger or risk to other persons and property. Thirty-two crew and 57 passengers were on board.

The near-grounding was reported four days later.

Mr Birchall, 51, was convicted on the grounds he was acting as "master" and was in charge of the ship when he took corrective action to save the vessel.

But in submissions before the court, his lawyer, Paul McBride, argued that this was not the case.

The Santa Regina's master, Captain Stephen Hoedemaeckers, had delegated the con and therefore command of the ship to Mr Birchall while he went to rest in his cabin.

But this "does not make the delegate 'in charge of the ship' and thereby master, even if the delegate becomes 'for the time being responsible for the navigation'," Mr McBride said.

Under the Maritime Transport Act, the master, even when not on watch, has accountability for the ship's operations, as he is the only one with absolute authority, he said.

But Maritime New Zealand, which brought the prosecution, argued Strait Shipping Limited used a dual- master system for operating the Santa Regina. Mr Hoedemaeckers was the master and Mr Birchall was the mate/master.

The latter had been handed command of the ship before it left Picton, lawyer Kim Murray said.

Mr Murray said Mr Birchall had relied on his pilotage exemption certificate to act as master while navigating pilotage compulsory waters.

Speaking outside court, Mr Birchall said the case was controversial because it had ramifications for anyone taking the con of a ship.

"Essentially it means if you are given temporary command you could get a criminal record in instances like this," he said.

"So if the appeal is unsuccessful then others in my line will be thinking 'well, if I'm now liable, surely that should be reflected in my rank and pay'.

"It's definitely a very interesting case, even for me in the middle of it."

- © Fairfax NZ News