The Enchanter verdict: can accidents at sea occur without human error?

The much anticipated judgment of the District Court in Maritime New Zealand v Goodhew was delivered on 22 July 2024. Mr Goodhew was found not guilty of breaching his duties as a worker onboard the vessel Enchanter under ss 45 and 48 of the Health and Safety at Work Act 2015 (HSWA).

The judgment followed a three-week trial in the Whangarei District Court in May 2024, in which McElroys lawyers Stacey Fraser and Nana Jacobson appeared for the defendant, along with Fletcher Pilditch KC.

On 20 March 2022 the Enchanter was returning to the North Cape from a five-day fishing charter trip at the Three Kings Island when it was struck by a large wave just before 8pm off the North Cape. There were ten people onboard, including eight passengers. The wave’s destructive force destroyed the vessel and tragically five of the passengers onboard did not survive.

Maritime New Zealand (MNZ) charged Mr Goodhew with breaching his duties as a worker onboard the vessel under ss 45 and 48 of HSWA.¹ MNZ alleged Mr Goodhew should not have left the Three Kings on 20 March 2022, and instead should have stayed for another night and returned to Mangōnui the following morning, as this would have eliminated the risk of the Enchanter being capsized by a large wave. For this allegation, the MNZ relied mainly on the MetService forecast, arguing that based on this, the risk of the Enchanter encountering a 10-metre wave beam onto the boat was reasonably foreseeable to a mariner in Mr Goodhew’s position.

The charge against Mr Goodhew included several allegations relating to the manner in which he navigated Enchanter around North Cape. However, after almost three weeks of evidence and before closing submissions, MNZ abandoned these aspects and confined its case to the allegation that Mr Goodhew should never have left the shelter of the Three Kings. The Prosecution therefore had to prove beyond reasonable doubt that no reasonable charter boat skipper in Mr Goodhew’s position would have made the decisions that he made.

Mr Goodhew denied that he breached his duty of care and said his decision to leave the Three Kings for the North Cape was prudent under the circumstances, based on the weather information which was available to him (which included the MetService forecast among several other weather sources), his significant local experience and the known seaworthiness of the Enchanter.

Judge Rzepecky found MNZ had not proved that a reasonable mariner with Mr Goodhew’s experience would have decided not to leave the Three Kings Islands when he did. He was not satisfied that there was any compelling evidence to show the prevailing and reasonably likely weather conditions near North Cape could result in the Enchanter encountering a 10-metre wave.

In making these findings, the Judge said it was important to focus on the information available at the time of the operative act and not make a hindsight assessment of the circumstances, including any catastrophic outcomes.

The Court was satisfied on the evidence that when Mr Goodhew decided to leave the Three Kings Islands, the prevailing weather conditions had improved significantly. This was supported by observations and evidence from Mr O’Neill, Enchanter’s deckhand, and the three surviving passengers. None of the witnesses from onboard the Enchanter expressed any doubt about Mr Goodhew leaving the Three Kings when he did, nor any feelings of anxiety or caution in relation to the decision. His Honour noted the witnesses were experienced boatmen and fishermen in their own right. The MetService forecast was only one of several sources of information Mr Goodhew had available to him, and he obtained up to date weather information throughout the trip.

Having heard detailed evidence from several experts, the Court acknowledged that rogue waves are a real phenomenon that can occur. Judge Rzepecky noted rogue waves occur infrequently and at random locations, including either shallow or deep water; they are completely unpredictable; and while they will (by definition) be greater than twice the average wave height, they are often reported as significantly larger.

The Court found that the wave which destroyed Enchanter was a rogue wave, describing it as meeting “all the hallmarks of an unpredictable random rogue wave of significant destructive force.” Such a wave was not reasonably foreseeable to a notional careful mariner in Mr Goodhew’s position, given what he knew before leaving the Three Kings. The Court added that at the time the wave struck the Enchanter the prevailing weather conditions were light to moderate.

The decision is a reminder that, even where there are tragic consequences, accidents at sea can occur without human error. It cannot be assumed from the fact of an accident that it must have been the result of culpable failings on the part of the relevant navigator or operator.

1. MNZ also laid charges against Enchanter Fishing Charters, however it withdrew these shortly before the start of trial.

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