The Court of Magistrates (Malta) as a Court of Criminal Judicature, presided over by Magistrate Doreen Clarke, in the case “Police vs Frederic Alexander Johannes Brenneisen” on June 21, 2012, decided that there was nothing Mr Brenneisen could have done to avoid a collision, especially since a pole (which was embedded in the reef) could not be seen in the dark. It was noted that the Notice to Marines dated January 30, 2008 did not warn mariners on the danger created by the pole in question.

The facts in this case were as follows.

... the notice was issued primarily to inform mariners that the light beacon indicating the “merkanti” reef had been destroyed and that there was no light to mark the presence of the reef. It did not mention anything about the hazard posed by the pole

Criminal proceedings before the Court of Magistrates as a Court of Criminal Judicature were initiated against Frederic Alexander Johannes Brenneisen.

The police charged Mr Brenneisen:

• For causing grievous bodily harm to Sacha Horn and Messaudi Nacer, as well as for injuring Lianne Psaila, Alison Psaila, and Nicholas Proschek;

• For not keeping a proper lookout;

• For driving the speed boat at a dangerous speed, risking life and limb causing the collision by his carelessness, non-observance of regulations, imprudence and unskilfulness.

Reference was made to sections 225,226 (1) (a) (c) of Chapter 9 of the Laws of Malta, Legal Notice 340 of 2003, Regulation 5 of the Convention on the International Regulations for Preventing Collisions at sea of 1972 and Regulation 26 of Legal Notice 183 of 2008.

In reply, Mr Brenneisen pleaded not guilty and claimed in defence that the pole was not visible in the dark. He contested responsibility for the incident, as well as any negligence on his part.

It was stated that on July 7, 2008 Mr Brenneisen drove the speedboat MV Red Hot from the Grand Harbour Marina to the Portomaso Marina at 9.15 p.m. with five passengers on board.

Mr Brenneisen crashed into a pole, which was fixed on a reef known as is-sikka tal-merkanti, just outside the Portomaso Marina.

From an on-site inspection, it resulted that the pole showed signs of having been hit by the boat. The damage to the pole corresponded with that sustained by the boat, on collision with the pole.

On impact, all passengers were flung into the sea, suffering injuries. The nature of the injuries varied from slight to grievous.

It so happened that the pole was not visible in the dark. The purpose of the pole was originally to have a light beacon, in order to indicate the presence of the reef to mariners. However, the light beacon affixed to the pole was destroyed before January 30, 2008.

A notice to mariners was issued on January 30, 2008 to inform mariners that this light beacon had been destroyed.

According to the notice, “the bottom structure may still be close to the above position (i.e. the bearing indicated in the notice) just below the surface”.

However, the court-appointed expert reported that what was left was a rectangular metal pole, measuring circa nine inches which was embedded in the reef about two feet below sea level. The pole protruded two feet above the surface of the sea.

The beacon was only repaired some time after this incident and on July 16, 2008 another notice was published in order to announce that this beacon had been repaired.

The court had no doubt that the boat hit the pole and not the reef.

Mr Brenneisen was not aware of the presence of the pole, which was left jutting out of the reef, after the beacon had been destroyed. He knew that there was a reef. The pole, however, constituted a dangerous obstacle, especially since it could not be seen in the dark.

The police put forward the argument that once a notice to mariners had been issued, Mr Brenneisen should have been aware of the existence of the pole. It was argued that he should have kept a proper lookout when approaching the area where the pole was embedded in the reef.

The court disagreed with the police. It said that the notice to the mariners was issued primarily to inform mariners that the light beacon indicating the “merkanti” reef had been destroyed and that there was no light to mark the presence of the reef. It did not mention anything about the hazard posed by the pole.

Further, the notice wrongly stated that the bottom structure was dislodged and that it could be close to that position. This interpretation was confirmed by the representatives of the Yachting Directorate of Transport Malta, who testified that the bottom structure of the pole had been removed.

This was not correct, pointed out the court. The pole on which the beacon was attached was, in fact, still embedded in the reef and protruded up to a height of two feet above the water surface. To make matters worse, it was not visible in the dark and it was not marked in any way.

For these reasons, on June 21, 2012, the Court of Magistrates decided that there was nothing Mr Brenneisen could have done to avoid the collision, especially since the pole could not be seen in the dark.

The court concluded that the charges against the accused were not proven. It declared that he was not guilty of the charges and acquitted him.

Dr Grech Orr is a partner at Ganado & Associates.