Maritime Management All at Sea

SCMP June 2

In spite of the importance for Hong Kong of its port and shipping centre roles, all is not well in the jurisdiction of maritime affairs. The attitude of the Marine Department to the Lamma IV disaster is extremely disturbing and cries out for independent investigation, not the light touch expected from fellow bureaucrats of the Transport and Housing Bureau.

But the department was quite innocent in the gross miscarriage of justice in another maritime tragedy, the 2008 sinking of the Neftegaz-67 in which 18 sailors died. Judges took it upon themselves to know more about navigation in Hong Kong waters than the responsible authority, the Marine Department, and sent a Ukrainian captain to jail on grounds that defy logic and fair play.

In the case of the Lamma IV, in which 39 people died, the head of the Marine Department has finally come out with a lame apology. This was more than six months after the tragedy and weeks after an indictment of the department by the independent Commission of Inquiry.

Anyone reading that report would conclude that criminal charges should have been brought against officials from the department and the company. It concluded that some deaths were directly due to the structural failings of the Lamma IV, its hull, its weight distribution and its seat fittings, several of which were not according to specification, and the lack of children's life vests. In other words, the deaths were not simply due to navigational errors but also to the inadequacies of the vessels, due to some combination of negligence, incompetence and possibly collusion.

It is now probably too late to bring any new charges. The damning conclusions relating to the department and company were not redacted from the published report. In other words, there appears to have been a silent conspiracy to pin the blame on the vessel captains who have been charged with manslaughter. So, the overworked captains with heavy responsibilities, but mostly paid less than junior government clerks, are singled out while officials are likely to escape with reprimands. It appears that the law for the public at large does not apply to the priestly caste of civil servants.

Similar accusations of furthering injustice could be applied to the government in the case of the March 2008 sinking of the supply vessel Neftegaz-67. Eighteen Ukrainian crew died when their vessel collided with a large bulk carrier, the Yao Hai, off Lantau and sank. Earlier this year, the captain of the Neftegaz-67, Yuriy Kulemesin from Ukraine, lost his case in the Court of Final Appeal against conviction for responsibility for the accident and is now serving time in prison. The decision - and the quashing of the conviction of the Hong Kong pilot of the mainland-owned Yao Hai - caused astonishment in international maritime circles.

The conviction was on the basis that the accident took place in a "narrow channel" where, according to Rule 9 of International Regulations for Preventing Collisions at Sea, different collision avoidance principles apply than in open waters.

Given that Hong Kong waters are not large, are crowded and that Hong Kong is home to the fourth-largest fleet in the world, one would assume that it was the Marine Department's role to determine what constituted a "narrow channel" and inform mariners of it. But there is nothing marked on the department's charts or in any of its notices to shipping to indicate that the sea where the accident happened is such a channel. The waters are heavily used but quite wide. The department had considered marking a fairway but deemed it unnecessary given the width of the channel.

The department is the sole authority for all navigational matters in our waters. Yet visiting judge Lord Clarke of Stone-cum-Ebony rejected the statement of a Marine Department expert that this was not a narrow channel. The courts also deemed that a letter from the director of marine to his counterpart in Ukraine, saying that Rule 9 did not apply, could not be used in evidence. Nor did the marine police, few of whom are qualified mariners, seek Marine Department opinion before prosecuting.

The Ukrainian captain correctly stated that there was no reason from the charts or buoys or from his own experience in these waters to believe that it was a narrow channel. He acted in accordance with normal collision avoidance rules in a situation where his vessel had right of way. While fairways, or shipping channels, are marked on charts of Hong Kong waters, there was no narrow channel marked in the area where the collision occurred. There are buoys but these were installed by CLP Power to guide deep-draft coal carriers needing the deepest water. Most vessels, including the Yao Hai and Neftegaz, did not need it.

Overruling the Marine Department's jurisdiction, the courts deemed that, despite the lack of specific evidence in this case, and the absence of any definition of narrow channel in Rule 9, it was a narrow channel. So Kulemesin was convicted for following normal collision-avoidance rules!

In reality - as also in the case of the Lamma IV - both ships took evasive action too late. But to place the main blame on the Ukrainian was a gross miscarriage of justice. This bizarre ruling demands further investigation.