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Old 23-06-2008, 23:03   #46
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You should note that I made no claim whatsoever that such was not enacted in the legislation of New Zealand.

As some people here know I have reason to have more than a passing knowledge of NZ's maritime legislation - I make that comment to save you the future effort of cutting and pasting it for me.

Again you say, incorrectly, in the quote below "UNCLOS does compel mariners to act throught the nations' statutes" which is totally incorrect - the UN has no ablity to compel mariners at all to act through the legislation of their country. It should also be pointed out that the USA has been among the non signatories of UNCLOS so your near neighbours over the border have been even further from being "compelled" by the UN to act according to the legislation of the USA.


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Originally Posted by Lodesman View Post
Pedant! In becoming signatories to UN Conventions, countries agree to make them law. The point being, there are few countries that are not signatories to UNCLOS, so ultimately in most nations UNCLOS does compel mariners to act throught the nations' statutes. In NZ, it's the 1994 Maritime Transport Act, article 32.

32 Duty to assist persons in danger and to respond to distress calls
(1) The master of a New Zealand ship and the master of a foreign ship in New Zealand waters shall, so far as the master can do so without serious danger to the ship and persons on board -
(a) Render assistance to any person found at sea in danger of being lost:
(b) After a collision, render assistance to the other ship, its crew, and its passengers:
(c) After a collision, inform the master of the other ship of the name of his or her own ship, its port of registry, and the nearest port at which it will call.
(2) On receiving a signal that a ship, aircraft, or survival craft is in distress, the master of a ship referred to in subsection (1) of this section shall -
(a) Proceed with all speed to the assistance of the persons in distress and, if possible, inform them of that fact; and
(b) Comply with any requisition to the master's ship by the master of the ship in distress by continuing to proceed with all speed to the assistance of persons in distress.
(3) Subsection (2)(a) of this section does not apply if -
(a) The master is unable, or, in the special circumstances of the case, considers it unreasonable or unnecessary, to proceed to the assistance of the persons in distress; or
(b) The master is informed that one or more ships have been requisitioned and are complying with the requisition.
(4) Neither paragraph (a) of subsection (2) of this section nor, if the ship has been requisitioned, paragraph (b) of that subsection, shall apply if the master is informed by the persons in distress or by the master of another ship which has reached the persons that assistance is no longer necessary.
(5) The master of a New Zealand ship that is required to carry a logbook shall enter in the logbook a record of every distress signal received and any reason for failing to go to the assistance of persons in distress in accordance with subsection (3)(a) of this section.
(6) Every person commits an offence who fails to comply with this section and is liable to -
(a) Imprisonment to a term not exceeding 12 months; or
(b) A fine not exceeding $100,000; or
(c) Both.
Source: New Zealand Maritime Law - Maritime Transport Act 1994
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Old 23-06-2008, 23:50   #47
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As I know it, the US is a signatory - they haven't ratified it yet, as they dispute part XI. They do agree to the other parts, and have the legislation to enforce those.

I wasn't suggesting you have no knowledge of your maritime acts - I posted art. 32 for the benefit of all.

I didn't say the UN compels anything - I said UNCLOS does. I don't see how you can say that is "totally wrong" since you as a Kiwi are compelled to act, and anyone in Kiwi waters is compelled to act - yes, due to NZ Maritime acts, but those acts were enacted because of UNCLOS.
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Old 24-06-2008, 00:15   #48
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I think all law aside, many of us would act out of normal Moral and/or Human nature. I know that if I could go to someones aid, I would go to someones aid. Maybe I expect too much and so I guess some may not.
Actually, it reminds me of the Stewart Island Fisherman that rescued a yachtie and then wanted salvage. I thought that was a bit low, even though the Fisherman was legally entitled, it was still something a little immoral in my view and with the debates that arose at the time, I think many other views were similar.
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Old 24-06-2008, 01:54   #49
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That's a good point Wheels; I think most decent folk would help out a fellow mariner in distress. I think though there is a distinction between rescue and salvage. Fisherman rescues yachtie and gets him to safety with no expectation of recompense. If said yachtie turns to the fisherman and says "hey bud, can you save my boat", then by all means the fisherman should be entitled to fair and reasonable salvage.
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Old 24-06-2008, 03:53   #50
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The boat was solid as can be seen here:
John Welsford Small Craft Design
during the 2 year building her.

The sailor turned on this distress beacon as soon as he landed on the rocks so he could be rescued in less than an hour.

He couldn't wait a weather window due to his visa running out.

There is another solo sailor missing today very close to the very same rocks as seen here Solo sailor's yacht found drifting at sea - 24 Jun 2008 - NZ Herald: New Zealand National news

Lot of information to learn from.
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Old 24-06-2008, 04:10   #51
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He couldn't wait a weather window due to his visa running out.
NZ is not quite as barbaric as that. You don't get forced out into storms due to Visa's running out. In fact, there is provision within law somewhere I think, that allows someone to seek shelter in an emergency with out the need for Visa or entry to a country. I am sure someone will give the correct and actual wording.
But that still does not explain why he was where he was after having left some time earlier and asleep while he was there.
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Old 24-06-2008, 05:02   #52
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Quote:
Originally Posted by Lodesman View Post
I don't see how you can say that is "totally wrong" since you as a Kiwi are compelled to act, and anyone in Kiwi waters is compelled to act
Read the legislation you quoted, it does not say anything like that at all and for good reason.

Furthermore, Article 98 does not say anything like that either with respect to any waters, again for good reason.
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Old 24-06-2008, 05:12   #53
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Quote:
Originally Posted by Alan Wheeler View Post
NZ is not quite as barbaric as that. You don't get forced out into storms due to Visa's running out. In fact, there is provision within law somewhere I think, that allows someone to seek shelter in an emergency with out the need for Visa or entry to a country. I am sure someone will give the correct and actual wording.
Without hunting it out I can't give you the exact wording - however, NZ Customs actually give a freephone number to call if due to extenuating circumstances one cannot depart immediately upon clearance. Maybe his circumstances were not extenuating enough?
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Old 24-06-2008, 05:31   #54
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Originally Posted by MidLandOne View Post
... NZ Customs actually give a freephone number to call if due to extenuating circumstances one cannot depart immediately upon clearance...
All craft departing overseas from New Zealand must depart from a Customs port of entry. A Customs officer will attend at the agreed time and place of departure.

On completion of Customs and Immigration formalities, the owner/master will be issued a Certificate of Clearance. Once the Certificate of Clearance is issued, the craft is required to proceed directly to the intended overseas destination.

Under no circumstances is the owner/master to cause the craft to go to any other place in New Zealand. If due to extenuating circumstances you are unable to do so, you must immediately advise:

* the New Zealand Customs Service on 0800 654 279, or
* Taupo Maritime Radio on VHF Ch 16 or 2182Khz or 4125Khz.

New Zealand Customs Service - Marine Section
Yacht and Small Craft Departure

Goto:
Yacht and Small Craft Departure
and:
Fact SheetÂ*33 - Departure of Yachts and Small Craft From New Zealand
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Old 24-06-2008, 05:32   #55
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Originally Posted by Lodesman View Post
you shouldn't assume a small boat will be seen visually or on radar.
That's probably a fair comment, with exception that we're a 70' steel trawler (also, in nice weather, some of these radars can even pick up small alloy dingies from a distance). As you're most probably aware (being a Naval Officer (& I assume with many hours under under watch keeping duty)), a 70' steel trawler should show up very well on a radar screen in nice weather, it should also be seen visually. Why did they turn at the last minute? I can only assume that someone finally heard us on vhf 16 & looked out the window. Also, I don't know why the cargo vessel was so close to shore, they normally go at least 10nm off.

Quote:
Shipping lanes are irrelevant. Routing can change to take advantage of favourable conditions, or to avoid bad weather. Cargoes can change hands (and destinations) while en route. And there are a lot of ships out there that deliberately avoid "shipping routes", such as warships.
This also is probably a fair comment. Going by your example, commercial shipping is going to take the fastest route (for their draft) getting to their destination in the best weather (i.e. around bad weather). An experienced single handed sailor is going to note this & act according by changing his plotted course to compensate for any major weather systems he may encounter.

In regards to Naval ships, they normally have full watch crew, high end radars & possibly even night time (or thermal) vision (perhaps you should correct me if I'm wrong (given you're a Naval Officer)). In the highly unlikely scenario of a collision with a single handed sailor in a 25'-45' yacht, a 300'+ Naval cutter is going to come off the winner.

Quote:
You may want to check article 32 above - a year in jail and a $100,000 fine is pretty compelling.
Another fair point. Perhaps I should've been more clearer in my last posts. If the rescuer is going to put limb/life/vessel in danger, then its his discretion as to whether he undertakes the rescue. In regards to receiving any such fine (should I decide to not undertake a rescue due to rough weather), I'd have no prob paying that on a "without prejudice & under protest basis" & then challenging it in court.

Quote:
Slocum didn't do the BOC Seriously, what's your point? Do you want to check the rescue stats for the BOC races?
OK, perhaps the BOC was not a good example (given they race in rough weather whereas a single handed sailor would not). My point is that in my opinion, an experienced single handed sailor is not of significant danger to anyone. Having said that, I think that both your opinion & my opinion are probably going to keep differing on this issue. Perhaps its better to "agree to disagree", rather than go in an "infinite loop".
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Old 24-06-2008, 05:51   #56
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Quote:
Originally Posted by Alan Wheeler View Post
I think all law aside, many of us would act out of normal Moral and/or Human nature. I know that if I could go to someones aid, I would go to someones aid. ... reminds me of the Stewart Island Fisherman that rescued a yachtie and then wanted salvage.
There's only one time we rescued a yuppie yachtie whereas I felt we should've sent the bill afterwards. And that was when it was discovered (by the police investigation) that he hadn't been servicing his diesel.

Would I charge someone for rescue? No. Real salvage? Perhaps only if they left their vessel behind in the ocean (e.g. after helicopter rescue), but in that situation, there's probably insurance coverage.

Alan, I do know that the yachtie that rescued the "Rights of Man" crew (ex Carey based in Picton) wanted a medal. Oh & the greenies wanted to know about the fuel tanks (on the bottom after she burn't to the waterline)
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Old 24-06-2008, 06:07   #57
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Another fair point. Perhaps I should've been more clearer in my last posts. If the rescuer is going to put limb/life/vessel in danger, then its his discretion as to whether he undertakes the rescue. In regards to receiving any such fine (should I decide to not undertake a rescue due to rough weather), I'd have no prob paying that on a "without prejudice & under protest basis" & then challenging it in court.
I suspect that in NZ it would be extremely unlikely that a master's decision not to provide assistance or rescue would ever be challenged in court unless the decision was a very cavalier one.

The legislation is full of placing responsibilities on the master as that is where they best lie - the master will be regarded as the one best able to make a decision as to the capabilities of his vessel (and crew and passengers) in the conditions of the time in any decision to assist or not. He will be entitled to be conservative in making that decision.

While I do recall there having been cases where a master has considered it not prudent to provide assistance I do not recall any case where his decision has been tested in any way. It is certainly not something I would worry about if the situation arose for myself if in charge of a vessel.
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Old 24-06-2008, 13:42   #58
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Quote:
Originally Posted by Alan Wheeler View Post
NZ is not quite as barbaric as that. You don't get forced out into storms due to Visa's running out. In fact, there is provision within law somewhere I think, that allows someone to seek shelter in an emergency with out the need for Visa or entry to a country. I am sure someone will give the correct and actual wording.
But that still does not explain why he was where he was after having left some time earlier and asleep while he was there.
Sorry Wheels, I didn't ment that. In fact I read that piece of information in jwbuilders : John Welsford Builders (John Welsford yahoo group).

"Charlie is going to Hawaii to meet up with freinds and family, 4800
miles is his test sail. He has run out of immigration visa after three
extensions, and to leave from here for Cape Horn at this time of year
would put him at the Cape at 65 south, in the worst weather zone in
the world in the middle of winter, the worst possible time. Going to
Hawaii and waiting there for a few weeks will put him at Cape Horn
about late January which is as good as it gets."

Usually the cause of disasters is a cummulative combinations of unfortunete factors and/or mistakes. Surely this case is not the exception.
I hope the fortunate sailor (he's alive) will share his experience when everything calms down, so I can learn from his circunstances.
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Old 24-06-2008, 18:46   #59
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Originally Posted by MidLandOne View Post
Read the legislation you quoted, it does not say anything like that at all and for good reason.

Furthermore, Article 98 does not say anything like that either with respect to any waters, again for good reason.

Quote:
Article98
Duty to render assistance
1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:
(a) to render assistance to any person found at sea in danger of being lost;
(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;
(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

Source: UNCLOS and Agreement on Part XI - Preamble and frame index

Again I put this up, not for your benefit, but for the benefit of the forum. You have your interpretation; I have mine; they differ; let's leave it at that. - Kevin
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Old 24-06-2008, 19:16   #60
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As others will see, but you apparantly do not, Article 98 states that only the master of the ship has any duty - as does the NZ legislation that you posted before.

So your claim
Quote:
Originally Posted by Lodesman View Post
... since you as a Kiwi are compelled to act, and anyone in Kiwi waters is compelled to act.
is as I said incorrect, it is only a master of a ship that is required to, and that only if he considers it safe to do so (so he is also not "compelled" as you continue to claim), no one else has any duty to - not even your "anyone" or your "Kiwi".

I am sure that most of us are aware as to why it is only the master - and I alluded to why earlier.
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