Inconsistency’s and probable bias of the Judge
I have read the Honorable Madam Justice A.W. MacKenzie Decision and completely disagree with relevant assertion, interpretations and assumptions! First let me state in my opinion. I find it completely unconscionable that The Honorable Madam Justice A.W. MacKenzie took a 22 year old Wake Borders testimony as absolute fact. Considering that three eye witness on shore countered his testimony. The fact that he also is a Power Boater and a Wake Bordered concerns me, I am fully aware of the long history of animosity that Power boaters, Wake borders, Jet skiers and Water skiers have for Rag Hangers, Rag Hangers as we all know is the derogatory term these individuals use in reference to slow moving Sailboats, Sailboats that almost always have right away to their activities causing in their eyes much unneeded aggravation and inconvenience. It is common knowledge that almost all of these individuals harbor some form of animosity towards sailors and sailboats. His testimony could possible have been the result of ulterior motives such as coming to the rescue of a fellow Power boater. First His testimony came after the initial investigation and apparently was never taken by investigators at the scene, then he states that he was asked to help the search and rescue team then he was rudely told to leave. Surely if this was the case then one of the first responders would have remembered him. Then after reading about it in then news paper, out of the kindness of his heart he decided to tell his story. This sounds suspicious to me. Surely three eye witness on shore who have no obvious reason to lie and who’s testimony are contradictory to his should have been sufficient to question the reliability of his testimony. There were quite a few portions of testimony by either Ms. McKenzie, Mr. Schell and Mrs. Mellow that indicated quite clearly that MR Thatcher’s sailboat did indeed have its running lights lit. Yet the Honorable Madam Justice A.W. MacKenzie decided that our 22 year old Power boater was indeed the most reliable. And that his testimony alone out weighed all the eye witnesses on shore “Ms. McKenzie said she yelled at Mr. Schell just before the accident because a big green light suddenly appeared.” This could have been Mr. Thatcher’s starboard navigation light and indeed a green light would have been visible if he had turned to port as he claimed. The Honorable Madam Justice A.W. MacKenzie stated that she believed these to be reflections from Mr Schell own boat. Because MR Thatcher’s tiny lights could not have possibly produced such a bright light. What does she base this fact upon? possible bias?. Tiny or not if Mr. Thatcher’s running lights where lit as I believe them to be, then his nav lights met the requirements at the time the vessel was commissioned. And it’s not up to The Honorable Madam Justice A.W. MacKenzie to redefine internationally agreed upon requirements. “Mrs. Mellow also thought the light on the sailboat was red” This is of particular importance! If I fully understand the heading of both vessels. Mr Thatcher said he turned to port “In the direction of the shore” if this was indeed the case then Mrs. Mellows who was on shore would have indeed seen his red port light. To me this indicates consistency, not inconsistence as The Honorable Madam Justice A.W. MacKenzie stated. Once again possible bias? The Honorable Madam Justice A.W. MacKenzie stated Quote “Apart from the fact there is no evidence before me of a speed limit on the lake” Mr. Schell was in direct violation of rule 19 b “Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and condition of restricted visibility. A power driven vessel shall have her engines ready for immediate maneuver.” According to Ms. McKenzie own testimony Quote “She could only guess how far from the shoreline the boat was and she did not wish to hazard a guess in these circumstances. Because it was dark, you could only see a few feet in front of the boat.” Quote “Because it was dark, you could only see a few feet in front of the boat” once again rule 19b “Every vessel shall proceed at a safe speed adapted to the prevailing circumstances” According to all testimony it was a very dark evening and the water was like glass, I fully believe that operating a power driven vessel at high speed on a plane during hours of reduced visibility is in direct violation of rule 19b and that Mr. Schell should have reduced his vessel to displacement speeds and preceded with caution. Especially considering their vessels proximity to shore. A shore line where high power shore lights can reflect onto the water easily over powering a small vessels navigation light. Lights reflecting onto the water from bright street lights, homes, and especially shore based signal lights (RED and Green) make it very difficult to ascertain whether a light on the water is a reflection or a boats navigation lights ! Quote “He and Ms. McKenzie were behind the windshield.” Was this a plastic windshield, was it in good condition was there glare on it. Or for that matter what was the dew point? could condensation on the windshield have further reduced their visibility if so could this have affected their ability to keep a proper look out at night as required. Once again Mr. Schell should have reduced his vessel to displacement speed and proceeded with caution. The Honorable Madam Justice A.W. MacKenzie stated Quote “I find that Mr. Thatcher’s sailboat was either unlit, or, if it did have on its small red/green running lights, that lighting was so deficient that the sailboat was not visible to the defendants,” Quote “[89] Rule 21(e) is also particularly relevant because it defines the required “all around light” as a light showing an unbroken light over an arc of the horizon on 360 degrees. I have clearly found that Mr. Thatcher’s boat, which is subject to the Rule, displayed no such white light, or any light for that matter, on its stern.” This where The Honorable Madam Justice A.W. MacKenzie made a serious error in interpretation. This error could be grounds for possible appeal Rule 21 (e) is not a rule per say but a definition of terms used in following subsections . Rule 21 (e) is merely a definition and defines that an “all around light is a light visible in a 360 degree arc. Rule 21e does not define whether or not Mr. Thatcher 26 foot sailing vessel requires such a light. As The Honorable Madam Justice A.W. MacKenzie apparently interpreted. >>> Possible cause for appeal It is Rule 23 that clearly defines the required navigation lights. Mr Thatcher overall boat length is below 12 meters and above 7 meters Mr. Schell boat falls below 7 meters On motor driven vessels less then 12 meters and greater then 7 meters an all around white light is optional and not a requirement! The requirement is a forward facing white light"steaming light", red and green side lights and a white light facing aft. Or an optional all around white light replacing the rear and forward facing white lights. A copy of Rule 23 along with Rule 21 will be posted It is painfully obvious that The Honorable Madam Justice A.W. MacKenzie either did not fully read the relevant rules or was unable to fully understand them. In either case The Honorable Madam Justice A.W. MacKenzie’s misinterpretations of the relevant rules and circumstances to which they apply shows that justices should be required to have experience dealing with maritime issues before being allowed to preside over maritime cases
Just because 20 years of experience has shown me that it appears sailors seem to have more respect and understanding for the ocean and boating then power boaters do, does not mean I hate power boaters, that is merely your interpretation of my post.