Captains, crews of boats that collided could face jail
Rules cover keeping look-out, giving way, acting to avoid collision and providing assistance, and criminal charges are likely, legal insiders say
The captain and crew of both the ferries in Monday's deadly collision could each be jailed for up to four years and fined HK$200,000 if they are charged and convicted of endangering life at sea, lawyers say.
"The Marine Department will be under a lot of pressure to nail somebody," said one maritime legal source, who like other sources declined to be named in case he was involved in subsequent criminal or civil action. He added: "Criminal charges are almost 100 per cent to be brought, but whether a conviction arises [is more uncertain]."
Another legal insider likened the accident to the collision off Lantau Island in March 2008 when 18 seamen died after an oilfield support ship, Neftegaz-67, capsized and sank when it collided with a massive cargo ship.
In the subsequent court case the captains of the two ships and the two pilots on board the cargo vessel were all jailed for between two years four months and three years two months.
But the captain of the cargo ship and the junior pilot were later freed on appeal. The captain of the support ship, Yuriy Kulemesin (left), and the chief pilot, Tang Dock-wah, had their sentences reduced pending an appeal at the Court of Final Appeal that is due to be heard in January.
"Four years' jail and a substantial fine are the maximum allowed under Hong Kong law," the legal insider said.
Under international regulations for preventing collisions at sea, which are incorporated in Hong Kong's merchant shipping regulations, crew have a duty to keep a proper look-out and take action to avoid collision.
Lee Kwok-keung, from the Amalgamated Union of Seafarers, thought the Sea Smooth should have stayed to help passengers and crew from the Hong Kong Electric ferry. He said failure to provide assistance after a collision could result in a HK$50,000 fine.
But a senior maritime-collision expert said the coxswain of the Sea Smooth "was in his rights to think of the safety of his passengers first", especially as the ferry was damaged and taking on sea water.
Captain Tony Yeung Pui-keung, manager of the Maritime Services Training Institute, and Chan Yuk-wah, head of maritime studies at Hong Kong Sea School, said ships should not leave their positions until a proper assessment is made after a collision.
Yeung said the coxswain might have made the decision to leave because he was in a panic or the passengers had interfered, but added that the Sea Smooth should have at least waited until rescuers arrived. "Even if it's leaving, people should have thrown the life jackets and buoys to the sinking boat. That move could have saved lives," Yeung said.
While neither ferry had absolute right of way, Chan said that under maritime rules vessels should generally give way to ships on their right. The main damage to both was on the left side, and Chan said it was highly probable Sea Smooth should bear the greater responsibility. "But then the Hongkong Electric ferry also had responsibility to avoid the collision by moving out of the way if it saw the other ferry was not giving way," he said.
Another maritime insider said bow and stern damage to both on the left side suggested the Lamma IV might have reversed into the path of the Sea Smooth.
There are also indications the Lamma IV breached a Marine Department notice of September 14 for ships attending the fireworks display. In the six-page notice, owners, operators and coxswains were advised that "all children on board are required to don a lifejacket at all times". But many children were seen without a life jacket when rescued. Five of the 38 who died were children.