Fair Play on Trial
The findings of the Neftegaz-67 collision probe indicates no grounds for the jailing of its captain and will put Hong Kong's reputation at risk
SCMP July 14 2013
Hong Kong's justice system is in contempt of common sense and fair play in the case of Ukrainian ship captain Yuriy Kulemesin. He is serving an 18-month jail term having been convicted of prime responsibility for the sinking of his supply vessel, the Neftegaz-67, and the deaths of 18 of his crew following a collision with the Chinese bulk carrier Yao Hai in Hong Kong waters.
I wrote about this miscarriage of justice a few weeks ago. But, at that time, it was only possible to point to legal decisions, including those of the Court of Final Appeal, which appeared to fly in the face of navigation rules for Hong Kong waters as laid down by the responsible authority, the Marine Department, and the broader opinion of Hong Kong's maritime community.
Now, the publication of the report of the independent Marine Accident Investigation Section of the Marine Department makes it clear that Kulemesin did not bear primary responsibility for the accident but, rather, the Hong Kong pilots aboard the Yao Hai.
The report by the expert panel found that the Yao Hai - the "give way" vessel - appeared to have failed to comply with a number of international regulations for preventing collisions at sea. These included: that the Yao Hai did not take early and substantial action to keep well clear of Neftegaz-67; that it did not proceed at a safe speed before the collision; that the avoiding action taken by Yao Hai was not positive, not made in ample time and was not large enough to be readily apparent to the Neftegaz-67; and that before the collision, the Yao Hai had not reduced, stopped or reversed engine to avoid a collision or allow more time to assess the situation.
Given that the Marine Department is the competent authority and the expert panel best qualified to interpret the rules and the actions of the respective vessels, whose movements were precisely tracked and recorded by the port radar system, one would have expected the investigation to form the basis of any subsequent prosecution.
But in this instance, not only was the case handled instead by the Marine Police, because of deaths, but they do not appear to have consulted the Marine Department. The Marine Police are mainly engaged in anti-smuggling activities in small boats, and supposedly ensuring that vessels obey speed and other restrictions - which they consistently fail to do in the case of fast leisure craft.
The court proceedings took an especially troubling turn when, after the first hearing, the charges against Kulemesin were amended to include one which appeared to be drawn directly from the defence case of the pilots. This was the most serious charge on which Kulemesin was convicted because it alleged that he was in breach of Rule 9 of the international regulations relating to actions in a narrow channel.
The pilots maintained that the location of the collision was a narrow channel where different rules apply than in open waters. Kulemesin's defence argued in vain that there was nothing in any Marine Department chart, advisory notice or other official document to mark the area as a narrow channel. Even though other channels in Hong Kong waters were marked, buoys in that area indicated a deep water channel, not a narrow one.
The judges, however, seemed to believe they knew more about navigation matters than the responsible department which implements laws pertaining to navigation in local waters. In effect, they set themselves above the very laws they are supposed to administer. They did so while knowing unofficially - because all parties directly involved had been given copies of the investigation report - that the report had made no mention anywhere of Rule 9 being involved and that it placed primary blame on the Yao Hai. However, the report was deemed to be sub judice and hence could not be made public or used in Kulemesin's defence. Only now that it has finally been published can the public get a detailed picture of the injustice that has been perpetrated.
At best, this is a case of lawyers bamboozling judges who like to see themselves as above the level of independent technical expert and responsible government official. The Marine Department has rightly been savaged for its failure to enforce safety regulations in the case of the Lamma IV tragedy. But, in the Neftegaz-67 case, its regulations and opinions were dismissed as irrelevant.
The issue now is whether the chief executive, who has the power under the Basic Law to offer a pardon to Kulemesin, has the courage to do so, using the publication of the investigation report to show that the captain was largely acting in accordance with the rules of the territory.
The case has attracted little attention in Hong Kong, doubtless because the original incident was five years ago and all the deaths were of Ukrainians. But it has attracted much critical notice in international shipping circles, and the report could prompt a response from Ukraine or the International Maritime Organisation.
Hong Kong's ship registry and ship management business has been expanding, but any suggestion that the courts may be biased in favour of local interests would be a big setback. As it is, the case also spotlights the fact that the Pilots Association is a self-perpetuating closed shop.