Rats 28 Posted June 26, 2012 Share Posted June 26, 2012 Silly, dumb and tragic but some real implications for owners/skippers Off-duty skipper found at fault ROSA STUDHOLME A Timaru man has been convicted in relation to a fatal boating accident despite being the passenger and not the operator on the day. Timaru man Frank Sanders died when a rowboat capsized on Lake Alexandrina on April 22 last year. David Lloyd Batchelor, 68, was found guilty of permitting the operation of a boat in a manner which caused unnecessary danger or risk to others, including Mr Sanders and two others. A sentencing date is yet to be set down. In his findings released yesterday, Judge John Macdonald said he was satisfied the charge had been proven. "The failure to have life jackets on the boat and to have worn them when embarking on that last fateful journey was the most obvious failing." He said there was further fault in the consumption of alcohol. While Judge Macdonald accepted "the defendant's status as the owner and supplier of the boat did not automatically make him the operator or the skipper", the key point was that Batchelor permitted his boat to be used. He said it was a "tragic but eminently avoidable" accident. In a defended hearing earlier this month, the court was told the men had taken a dozen cans of beer and a bottle of whisky on the trip. They also drank rum at a friend's bach that afternoon. Maritime New Zealand investigations had not determined what caused the boat to capsize. However, it became windy and the lake had chopped up. The experienced boaties were not wearing lifejackets and were carrying only one flotation device with them. Prosecutor Brent Stanaway said it was a tragic accident but was preventable if basic boating rules had been followed. Defence counsel Wayne van Vuuren argued it had not been proven Batchelor was the boat's operator on the day. Judge Macdonald said two passengers who gave evidence had been reluctant. "I sensed too that they took the view that each man was responsible for his own safety and that the defendant had no greater responsibility than anyone else for what happened." The court was told the men were 100 metres from the shore when the dinghy capsized. They clung to the boat for around two hours while it drifted to shore. It was discovered that Mr Sanders could not swim. Although only 10 to 15 metres from shore, he panicked and disappeared under the water. A pathologist attributed the death to cold water immersion and drowning. Mr Sanders had a pre-existing heart condition and a blood alcohol level of 133 milligrams of alcohol per 100 millilitres of blood. Water Safety New Zealand chief executive Matt Claridge said all vessels needed a designated skipper, who was ultimately responsible for the safety and well-being of everybody on the boat. He said there were few cases where there was confusion around that. Around 15 to 20 people drowned in boating accidents each year. The key to reducing the toll was education and increasing awareness, Mr Claridge said. "That responsibility [as skipper] should never be taken lightly." - © Fairfax NZ News Heres my question- if I go out fishing with my buddies and I am the only one on board with a skippers ticket does that automatically make me the skipper whether I choose to be or not...? Link to post Share on other sites
Guest Posted June 26, 2012 Share Posted June 26, 2012 Odd, wish there was a bit more info in there. Link to post Share on other sites
Murky 1 Posted June 26, 2012 Share Posted June 26, 2012 Heres my question- if I go out fishing with my buddies and I am the only one on board with a skippers ticket does that automatically make me the skipper whether I choose to be or not...? Lots of facts in there and different ways of looking at them, I guess. My perspective would be that most of us would be on a higher level of alert with a non-swimmer on board and would start to consider the lifejacket position at that point. A non-swimmer with a heart condition. The quote from the judge does somewhat address your question: While Judge Macdonald accepted "the defendant's status as the owner and supplier of the boat did not automatically make him the operator or the skipper", the key point was that Batchelor permitted his boat to be used. Bearing in mind that the charge was "permitting the operation of a boat in a manner which caused unnecessary danger or risk to others". Terrible thing to lose a life within 15 metres of shore though. Link to post Share on other sites
w44vi 17 Posted June 26, 2012 Share Posted June 26, 2012 I wonder if we are getting the full story? As an analogy, say I am a truck driver, if I am a passenger in my car he as the driver doesn't put on his set belt and we have an accident, does that mean that I could be charged? Link to post Share on other sites
Guest Posted June 26, 2012 Share Posted June 26, 2012 All boaties need to be aware of Maritime Rule, Part 91, Navigation and Safety (and repeated in local bylaws).. 91.4 Personal flotation devices (1) No person in charge of a recreational craft may use it unless there are on board at the time of use, and in a readily accessible location, sufficient personal flotation devices of an appropriate size for each person on board. The person in charge is defined as the master. Some bylaws go further and include "..allow it to be used..". How bad does it have to get? Alcohol, dinghy, cold water, late in the day, non-swimmer.....!! Link to post Share on other sites
grant 40 Posted June 26, 2012 Share Posted June 26, 2012 in addition Section 65 of the Maritime Transport act, which is not new, says: [This is the section most recreational boaties in NZ get prosecuted under] 65 Dangerous activity involving ships or maritime products (1)Every person commits an offence who— (a)operates, maintains, or services; or (b)does any other act in respect of— any ship or maritime product in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs. (2)Every person commits an offence who— (a)causes or permits any ship or maritime product to be operated, maintained, or serviced; or (b)causes or permits any other act to be done in respect of any ship or maritime product,— in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs. (3)Every person who commits an offence against subsection (1) or subsection (2) is liable,— (a)in the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000: (b)in the case of a body corporate, to a fine not exceeding $100,000: ©in any case, to an additional penalty under section 409. Compare: 1990 No 98 s 44 Link to post Share on other sites
Rats 28 Posted June 26, 2012 Author Share Posted June 26, 2012 LMFAO Motorbike, Well at least we clearly see the threshold for action from MNZ has to involve death- everything else we'll just leave it too the harbourmaster If Only: I agree that this had recipe for disaster written all over it and it seems that they(MNZ) had trouble pinning it to someone, sounds like all parties concerned were shrugging their shoulders and pointing to the other guy and they pinned it on the owner of the boat for allowing it and yet is it not the masters (possibly another person in this instance )responsibilty to ensure safety? Link to post Share on other sites
rigger 47 Posted June 26, 2012 Share Posted June 26, 2012 stirring here but is this a precedent - if so would it allow the owners of the Rena to be held accountable? Link to post Share on other sites
Rats 28 Posted June 26, 2012 Author Share Posted June 26, 2012 Think Grant has just clarified my "if only" question Link to post Share on other sites
Guest Posted June 26, 2012 Share Posted June 26, 2012 Looks like in the circumstances he was considered responsible because he was the owner and was on board. Link to post Share on other sites
Rats 28 Posted June 26, 2012 Author Share Posted June 26, 2012 Rigger-certainly a precedent but it would take a skilled admiralty lawyer to pin it on the owners when the captain acts as their agent and is responsible for the safe navigation etc. of said ship Link to post Share on other sites
rigger 47 Posted June 26, 2012 Share Posted June 26, 2012 Rigger-certainly a precedent but it would take a skilled admiralty lawyer to pin it on the owners when the captain acts as their agent and is responsible for the safe navigation etc. of said ship Yeap I know, was just stirring - Though if the fin fatigue caused by the schedule is a contributing factor.... will leave it to the ren thread. Back on topic - I see this ruling / judgement to shows the general public that owners of vessels must provide / maintain their vessel in good condition with adequate safety gear, Perhaps the publication might make some people take their responsibilities more seriously instead of leaving it to the she'll be right attitude. Then again people make bad decisions every day - sadly some end up injured or dead. Link to post Share on other sites
Rats 28 Posted June 26, 2012 Author Share Posted June 26, 2012 The sad implication is that if the owner had the said safety equipment on board and still the poor fellow had drowned he would not have a case to answer.... it would have been put to bed under "death by misadventure" Perhaps if we changed the way it was reported so instead of "tragic drowning accident" it was reported as "Another silly bugger got pissed and then decided to go boating!" it might get through. Link to post Share on other sites
rigger 47 Posted June 26, 2012 Share Posted June 26, 2012 Not a bad idea Link to post Share on other sites
Terry B 71 Posted June 26, 2012 Share Posted June 26, 2012 Rats, I agree. This was NOT an accident. Wish the media et al would stop talking about these sort of things this way. Makes (some) people think "More regulation, that's the answer!" And it isn't. These guys were bloody stupid. And you can't regulate stupidity out of existence. And I'm speaking as someone who has done his share of stupid "Darwinesque" things from time to time! Link to post Share on other sites
Guest Posted June 26, 2012 Share Posted June 26, 2012 IMHO this is a good judgement and a watershed case that may (hopefully) wake up a few dickheads out there. It doesn't address the "commercial ticket on a recreational vessel" aspect which is a concern to me in my work but I deal with that in other ways. Link to post Share on other sites
Tim C 23 Posted June 26, 2012 Share Posted June 26, 2012 How many people go ashore in their dinghies from their yachts with enough life jackets aboard? If you only have the nice inflatable ones, do you leave them in the bilge of the dinghy while you walking or shopping ashore? So easy to see they won't be there when you return. There isn't an easy fix here, but a huge amount of vulnerability and responsibility for us all... Link to post Share on other sites
wheels 543 Posted June 26, 2012 Share Posted June 26, 2012 Yeap I know, was just stirring - Though if the fin fatigue caused by the schedule is a contributing factor.... will leave it to the ren thread. Yes owners can and have been convicted for "accidents" and yet not been in on or near the "vehicle". The operator has a certain amount of responsibility, but it is also up to the owner to ensure the operator is following all procedures. Remember that Keel failure incident. The company owner was prosecuted along with the person that did the Welding. Link to post Share on other sites
Guest Posted June 26, 2012 Share Posted June 26, 2012 How many people go ashore in their dinghies from their yachts with enough life jackets aboard? If you only have the nice inflatable ones, do you leave them in the bilge of the dinghy while you walking or shopping ashore? So easy to see they won't be there when you return. There isn't an easy fix here, but a huge amount of vulnerability and responsibility for us all... Bloody good point. I have a can of worms, anybody got a can opener? Guilty as charged. Link to post Share on other sites
Megwyn 2 Posted June 26, 2012 Share Posted June 26, 2012 How many people go ashore in their dinghies from their yachts with enough life jackets aboard? If you only have the nice inflatable ones, do you leave them in the bilge of the dinghy while you walking or shopping ashore? So easy to see they won't be there when you return. There isn't an easy fix here, but a huge amount of vulnerability and responsibility for us all... Our son is the life jacket police. For years he has not allowed us in the dingy without our life jackets. He will not get in the dingy without it. Many times we have left our jackets in the dingy while ashore. I for one am guilty of forgetting it is on, and have walked into town looking a right nong. LOL. Spot the yachty. Link to post Share on other sites
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