Narrow channels — a recipe for injustice

By Harry Hirst

On 22 March 2008, the Ukrainian flagged oil rig supply vessel NEFTEGAZ 67 (N67) collided with the Chinese flagged panamax-sized bulk carrier YAO HAI (YH) in the western approaches to Hong Kong harbour in the vicinity of the Brothers Islands between North Lantau Island to the south and the mainland of Hong Kong to the north. The damages sustained on collision caused the N67 to sink rapidly with the tragic loss of the lives of 18 of its crew.

The cause of the collision was immediately investigated by the Hong Kong Marine Police and Captain Kulemesin of the N67 was subsequently charged with endangering the safety of the lives of others at sea contrary to section 72 of the Shipping & Port Control Ordinance. Captain Kulemesin was found guilty of the offence charged, and sentenced to 38 months imprisonment. He was later released on bail pending an appeal after spending 45 days in prison. His appeal was heard in 2011. The Court of Appeal upheld Captain Kulemesin’s conviction but reduced his sentence to 18 months’ imprisonment. He immediately sought and was granted leave to appeal to the Court of Final Appeal (CFA). The CFA gave judgment in January of this year upholding Captain Kulemesin’s conviction.

This paper examines that judgment and the case against Captain Kulemesin on the narrow channel. It illustrates how the application of Rule 9 can be a recipe for injustice, which in the case of Captain Kulemesin, was both grave and substantial…

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