Final farewell for Nina as legal questions asked
A flawed decision by three jurists is costing lives at sea and New Zealand taxpayers millions of dollars in fruitless searches but Parliament will not do anything about it, a maritime legal expert believes.
Victoria University maritime law lecturer Bevan Marten says a single Court of Appeal ruling is "exercising a negative influence over New Zealand's maritime law".
He has appealed to Parliament to amend the law, even if only to save lives.
"They listened politely but said it was too hard."
The flawed decision found foreign flagged yachts departing New Zealand were not legally obliged to comply with the safety standards then established by Maritime New Zealand (MNZ) requiring boats to have long range radios and emergency locator beacons on board.
"There is the economic argument which says if we force them to carry this gear, we will save a lot of money later with Orions looking for a needle in a hay stack."
The Sunday Star-Times revealed last week the US flagged Nina was unseaworthy but because it was foreign flagged it was not required to have a "Cat-1" inspection.
Its skipper and owner David Dyche refused to carry a long range radio and other "gadgets".
The search for Nina has now been called off and families of the people on board have held a memorial service for them in Florida. Many intend on coming to New Zealand to pay further tributes to the lost people.
Up until 1998 inspections were mandatory for all boats.
Then came the case of sole eccentric sailor William Sellers and his 10 metre Malta flagged cutter Nimbus. He refused to have a radio and an emergency locator beacon or epirb.
In a Court of Appeal judgment written by Sir Ken Keith, now on the International Court of Justice deciding on Japanese whaling, Sellers said he based his maritime art on the mystery of the sea.
"It is religious to me, being alone, simple and strong with the sea - not with radios - the radio has stuffed everything...but the mystery of the ancient sea will outlast man. I am protesting on religious grounds to attempts to restrict free and private movement on the open sea.''
He sailed without inspection and when he returned was charged and convicted in the district court. It was upheld in the High Court but then went to appeal where in addition to Keith, tax specialist Sir Ivor Richardson and Sir Peter Blanchard, now retired from the Supreme Court, sat.
They ruled in a 62 page judgment that safety inspections could not be required of foreign flagged yachts.
Sellers claimed he had the freedom of the high seas.
The three jurists decided that under the United Nations Convention on the Law of the Sea, New Zealand did not have the right to regulate the extraterritorial operations of a foreign-flagged vessel.
Around 500 yachts depart New Zealand each year and as the court noted a number of them get into difficulties in New Zealand's 15 million square kilometres search and rescue areas.
"The most useful aids to effective search and rescue missions are emergency locator beacons and radio transceivers,'' Keith said.
Marten, who did his PhD at Hamburg's Max Planck Institute on port state maritime controls with particular focus on Sellers, says the case law was inhibiting the ability of MNZ to carry out its responsibilities.
The United States, European Union, Australia, or other states with which New Zealand generally compares itself believe they have the right to inspect boats on safety grounds
"I think we should enforce basic safety requirements for yachts; we are not going to force them to redesign the hull but we should force them to carry radios and epirbs."
He dismisses the argument that New Zealand was trying to enforce extra-territorial implications.
A radio could have been installed in compliance with New Zealand laws.
"If the skipper so wished the radio could be thrown over the side upon reaching the high seas and New Zealand could do nothing about it unless the vessel returned to a New Zealand port," he says.
"This is not a fringe argument. The majority of international law experts I have spoken with in Europe also believe our current position to be simply wrong."
The lost 21-metre vintage schooner Nina set off from Opua in the Bay of Islands to Newcastle on May 19, but has not been heard from since a text message on June 4.
On board the Nina, built in 1928, were Americans David Dyche III, 58; his wife, Rosemary, 60; and their son David Dyche IV, 17; their friend Evi Nemeth, 73; Kyle Jackson, 27; Danielle Wright, 18, and Briton Matthew Wootton, 35.
According to the Florida News Herald, local relatives hosted a candlelight vigil at St Andrews Marina in Panama City, Florida, last week.
The Dyche family formerly lived in Panama City's Cove neighbourhood and were popular members of the local boating community.
"We wanted this vigil for our family friends, for supporting us ever since they went missing," Justin Donovan told the News Herald.
"And for the people who knew my parents and were close friends with them, and to let them express their feelings of hope or closure."
Justin Donovan said that, for him, the vigil was more about closure.
"It was pretty devastating," he said.
During a prayer at the vigil, a candle was lit for each of the missing. Afterward, a wreath was placed in the water at St. Andrews Marina where the Nina set off from.
St Andrews Marina was chosen as the vigil site because Rosemary Dyche worked there for several years, Justin Donovan said. Friends of the Donovan brothers and the Dyche family wrote messages, prayers and other thoughts of support for the Nina crew, which were placed into bottles during the vigil.
The bottles will be mailed to New Zealand and released into the sea.
"God speed," wrote Marcus Cowan, a friend and co-worker of Justin Donovan.
Cowan was among more than 60 people who attended the vigil, the News Herald said.
"Please come home," wrote Michael Dililla, Rosemary Dyche's former co-worker at the marina. "We love you and we miss you."
"They're still out there," Dililla said.
"My head says otherwise, but my heart says they're still out there."
The News Herald said flowers were bought to the service.
"You never give up hope, I would think," said Sam Combs, a friend of Rosemary Dyche.
"They could be out there on a lifeboat, so it's hard to give up hope. But I think most people have accepted that they're gone."
But some family members are holding out hope.
"Some of us are hoping, we just feel like everybody coming together with this visual will bring positive vibes to have them found," said David Dyche's sister, Cherie Martinez.
- © Fairfax NZ News