A Hong Kong Court Roils the Harbor

In a case that is continuing to rile many in Hong Kong's maritime industry, on Jan. 15, a District Court judge gave four highly-trained and experienced seafarers prison terms for their roles in a collision between two ships that resulted in the sinking of one with the loss of 18 lives. The case could bring the territory's reputation into jeopardy over the application of rules and laws

The convictions were handed down to the master of the 81-meter Ukrainian oil rig supply vessel Neftegaz 67 which sank, and the master and two Hong Kong pilots on board a 225 meter Chinese bulk carrier Yao Hai. The Neftegaz master got three years and two months, the senior pilot of the Yao Hai three years and the master and junior pilot two years and four months.

The judgment was given by a District Court judge sitting alone without benefit of expert assessors and without a jury – which might have been appropriate for a case of criminal charges carrying long prison terms.

But equally troublesome was that the charges were brought by the HK government despite the fact that its own Marine Department's report on the incident has not been released and in key respects is understood to be at odds with the judge's interpretations on which she based her finding and sentencing.

There is a strong sense of grievance in the industry, and from those involved with both ships, that the judge was more concerned to exact retribution for the 18 deaths than to make a fair assessment of whether the fault lay with conflicting but legitimate interpretations of rules and poor communication stemming from language barriers than from negligence of such severity as to demand custodial sentences.

The collision certainly seemed man-made, taking place in clear weather in a well known and marked shipping channel. However those concerned on both ships were alert and took what they each considered to be the correct actions to avoid collision, but which sadly conflicted with disastrous results.

The master of the Ukrainian vessel, believing that he was navigating under normal sailing conditions, acted according to the Crossing Rules of the International Regulations for Preventing Collisions at Sea. As the Yao Hai started to cross his bow, the Ukranian skipper turned his vessel to port to make room for the other to pass to starboard. However the master and pilots of the Yao Hai considered they were navigating in a narrow channel and applied Rule 9 of the International Regulations. This provides for ships to keep to the starboard side of a fairway. The Yao Hai assumed the Neftegaz would turn to starboard not port and so it turned to starboard shortly before the Neftegaz turned to port. They were now on direct collision course and very close.

That still left both ships needing to take whatever action was necessary to avoid collision regardless of the rule book. Unfortunately they collided.

It could reasonably be argued, as did the judge, that both sides were to blame in this failure to avoid a fatal collision. They could have slowed, had lookouts etc. However, informed observers suggest that both were acting according to what they believed was the correct rule. What makes the Judge's decision particularly illogical to some is that her interpretation of the correct rule appears at odds with that of the Marine Department. She found that the area in question was a narrow channel which is contrary to the Department's views, and their publications and website do not describe it as such, even though it is marked by buoys. It is nearly one mile wide. It is, experts say, a buoyed deep water route, not a narrow channel.

Despite this the judge, not a person known to have any experience of helming a vessel of any sort, concluded that they had all committed serious errors in navigation – and handed out sentences normally reserved for those causing death by drunken driving.

Doubtless these issues will come up on appeal. The Neftagaz captain would presumably argue, among other points, that the rules require a right of way vessel to maintain its course and speed.

But the appeal could also raise the whole question of the nature of the proceedings which require one side to claim that it was the other's fault when in practice the problem seems to be rules which can be contradictory if language is not precise or written rules and charts do not accord with local usage. All now facing prison terms (they are currently on bail pending appeal) would probably be better off arguing the case that both acted promptly and in good faith.

Other issues are at stake too – civil liability. At least civil suits can apportion relative blame on the balance of probabilities. Criminal law has few shades. But because the civil action is still pending, it appears almost impossible for the two parties to come to an understanding to fight the criminal convictions and sentences jointly.

Anyone, professional or not, who has sailed regularly in Hong Kong waters recognizes that many international rules are not enforced and that local traffic sometimes acts according to assumptions that may not be recognized by foreign captains. English is not the first language of the Ukrainian master and the Yao Hai pilots apparently communicated among themselves in Putonghua and Cantonese.

The gravity of the tragedy is beyond doubt. But thus far the courts have merely further muddied the waters around Hong Kong rather than clarified the underlying causes of this accident and thus make it possible to put clearer rules and safety measures in place (and enforced) for waters crowded with vessels of many sizes and speeds.