Filipowski Barbara v Magnavia Schiffahrtsgesellschaft MBH & Co... [2007] NSWLEC 404 | Case summary

Filipowski Barbara v Magnavia Schiffahrtsgesellschaft MBH & Co... [2007] NSWLEC 404 | Case summary | Zoe

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JUDGMENT 1 Talbot J: On 2 March 2005 the vessel Magnavia sailed from Brisbane for Sydney where she berthed at No. 4, Brotherson Dock, Botany Bay at 2356 hours. At that time Captain Dion Pablo (the Master), was the Master of the vessel and Mr Branko Suzanic was the Chief Engineer. It was owned by Magnavia Schiffahrtsgesellschaft MBH & Co.Kommanditgesellschaft. 2 At approximately 1000 hours on 3 March 2005, officers of the Sydney Port Corporation (SPC) noticed a sheen coming from the area around the bow of the Magnavia. The oil sheen was variously described by SPC officers as: - (a) 200m long and 60m wide (Craig David Watson) (b) 150m long and 10m wide (Craig Campbell Gibson) (c) 200m long and 25m wide (Peter Joseph Bagnell-Sketch) 3 One of the officers Mr Bagnell gave evidence that he could see oil globules rising to the surface of the water from the starboard bow thruster tunnel of the Magnavia. According to him "these oil globules rose to the surface and spread out and joined the oil sheen around the "Magnavia's" starboard bow and across the water's surface of Brotherson Dock". 4 Mr Bagnell also observed that these globules rose consistently at the rate of approximately 2 per second. Other descriptions of the size of the globules included that they were "one to two centimetres in diameter" "the size of a fifty cent piece", "just like bubbles of air" and "the size of a twenty cent piece and sometimes a little bigger". The bubbles continued to surface throughout the day. 5 The Master at various times stated, or made a record of, 0920 hours as the time when he first observed the oil sheen around the bow of the vessel. In other evidence Captain Pablo, said that the first time he became aware that there was oil in the water near the bow of the vessel was when it was brought to his attention as he was spoken to by Mr Gartenfeld, an SPC officer. Given that the sheen was only first observed and reported at 10:00am, I am satisfied that the Master was in error when he referred to 0920 hours as his conversation with Mr Gartenfeld could not have taken place until about 1020 hours. The discrepancy in the Master's evidence has not been explained except by Mr Nell (who appears for him) who suggests that as the ship had come from Brisbane the day before, he may not have adjusted his watch from Queensland time. However, as there is no evidence that suggests Captain Pablo observed the oil on the water before being approached by Mr Gartenfeld, I accept his corrected evidence that he first became aware of the presence of the oil at about 1020 hours on 3 March 2005. 6 Immediately he was told of the presence of the oil, Captain Pablo contacted the Chief Engineer Mr Suzanic by radio and directed him to close a valve leading to the bow thruster and to put markings on a header tank sight glass in order to check whether the level of oil changed after closing the valve. 7 Mr Suzanic went to the starboard forecastle into the bow thruster room. A few minutes later he informed the Master that the valve was closed and the markings had been put in place. The tank was marked with chalk. When checked at a later time, the level in the tank remained the same. 8 SPC employees put out booms to contain the spill and samples were taken from the oil in the water, the bow thruster header tank in the vessel as well as from the top of the thruster gearbox. 9 Divers were called and entered the water to investigate the leak at approximately 1600 hours. A diver subsequently reported as follows: - I found several litres (estimate only) of caramel coloured oil was trapped in the top of the bow thruster arch. I photographed this … and then thoroughly purged all the oil out of the arch with my expired air bubbles. I then waited and watched closely to see if any further oil accumulated and to try and see where it was leaking from. Over a period of five minutes, a "couple of egg cups" worth of oil built up in the recess at the top of the Bow thruster housing. I again photographed this leak. I could not see any oil coming from around the blades, the shaft, the access ports or the thruster housing. The oil appeared to be coming from the join between the bow thruster leg and the hull. I was aware that this was an unlikely location for a leak as this seal was not a moving part. I photographed these areas… I repeated the purging of the oil and watched for leaks again. The result was the same; I then purged the oil again and exited the water at 17:32. 10 At 1930 hours the diver reinspected the bow thruster arch and reported that there had been no further build up of oil. Divers also inspected the bow thruster at 1230 the following day, 4 March 2005, and found that only a small amount of oil had accumulated overnight. They estimated about 50 millilitres. 11 At 2000 hours on 3 March 2005, an Australian Maritime Safety Authority (AMSA) marine surveyor, Mr Yeung inspected the internal bow thruster space of the vessel. It was reported to him that there was a suspicion the bow thruster housing had cracked. However, he did not find any structural failure, distortion or water seepage into the ship. The bilge was substantially dry. 12 Upon Mr Yeung's recommendation the vessel's Classification Society was notified and Mr Wilkinson a surveyor from Germanischer Lloyd met Mr Yeung onboard the vessel on 4 March 2005. Mr Wilkinson found a plastic pipe fitted to the filling cap of the shaft gland seal oil header tank No. 4 above the bow thruster. The pipe was 6.7 metres in length and contained approximately 6 metres of oil. When Mr Wilkinson removed the pipe he observed off white emulsified oil in the pipe. When he opened a valve, identified as valve "F" leading from the tank No. 4 a further amount of emulsified oil emerged. 13 Mr Wilkinson relevantly reported his findings as follows: - Diver inspection found oil collecting in way of ship's hull and bow thruster leg connection indicating leakage through seal "O" ring #90 DWG 8496469. No external damage reported by divers. Internal inspection found no evidence of internal damage or malfunction.

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However a plastic vent pipe was found fitted to the filling cap of shaft gland seal oil header tank #4, giving excess head pressure of some 6 metres. This pipe had the appearance of being fitted some time ago. The header tank valve was found in the closed position (Instruction manual shows normally open). Hose reomoved(sic) and vent valve opened. No ingress of oil noted in static conditions at 9.6m draft. Drained oil from gland shows signs of emulsification. 14 There is a serious contention as to the source of the leak and the quantity of oil that escaped from the vessel into the waters of Brotherson Dock. 15 It is not disputed that oil did escape from the ship after it docked. However, there is no direct evidence of the source of the leak from the bow thruster area. The prosecutor relies on the evidence of Peter Burge a consulting marine engineer, marine surveyor and management consultant to explain the cause of the leak based upon his expertise and the available evidence. The defendants rely on the evidence of Nicholas Chell a consulting marine engineer. 16 Estimates of the amount of oil spilled range up to as much as 143.9 litres according to how the evidence of the eyewitnesses is construed. The alleged discrepancies arise as a consequence of inconsistent reports from witnesses in relation to the extent of the sheen of oil observed on the water in the area extending from and around the bow of the ship (see paragraph 2 above). The prosecutor relies on the expert evidence of Dr Brian King in this respect. Although the defendants challenge Dr King's conclusion, no alternative expert evidence has been called on this aspect. 17 Mr Burge had cause to produce a second report after he had the opportunity of reading the first report of Mr Chell. Both experts submitted further supplemental reports before the hearing commenced in March 2007. The expert witnesses have made a number of assumptions which lead to different possible conclusions, regarding the cause and volume of the spill. The Legislation 18 The charges against the owner and the Master of the ship are brought under s 8(1) of the Marine Pollution Act 1987, which provides as follows: - Prohibition of discharge of oil or oily mixtures into State waters (1) Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship are each guilty of an offence punishable, upon conviction, by a fine not exceeding:

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23 It is common ground that the oil observed at Brotherson Dock on 3 and 4 March 2004 was discharged from the ship Magnavia and came from the starboard bow thruster. 24 The vessel was fitted with a conventional athwartship tunnel thruster. The propeller is driven by an electric motor. The starboard bow thruster has two lubrication systems. 25 The gear casing is filled with oil and maintained under a static head of pressure by means of a header tank. The header tank No. 1 is located higher than the surrounding sea water to provide a static pressure to the oil within the propeller assembly to prevent any leakage of water into the gear case. The header tank is fitted with a sight glass and low level alarm. 26 The propeller shaft is provided with a shaft seal assembly, which consists of three seal rings. One inner seal ring prevents oil leaking from the gear casing and two outer seal rings prevent water ingress into the gear casing. The annular space between the inner and outer seal rings is connected to the shaft seal lubricating oil header tank No. 4. The shaft seal is sometimes referred to as a gland seal. 27 The shaft seal lubricating oil tank No. 4 is a small tank, which is filled with oil and provides lubrication for the shaft seal rings. A vent valve is fitted to the tank. It is normally open, to allow the expansion and contraction of the oil in the tank. This tank is located 1metre above the top of the bow thruster tunnel. 28 Mr Chell has explained that if the inner shaft seal leaks then the oil from the bow thruster gear case will flow into the annular space between the seals and then flow into the shaft seal lubricating oil tank No. 4, filling the tank causing it to overflow internally from the vent valve. The loss of oil from the gear casing will cause the oil level in the header tank No.1 to fall and eventually the low level alarm will activate. If the outer seals leak, water will flow into the shaft seal lubricating oil tank No. 4 causing it to overflow. 29 During an interview with an SPC officer the Chief Engineer Mr Suzanic expressed a belief that it was probably a broken seal "O" ring that caused the discharge to enter the water. 30 Mr Burge has expressed an opinion that oil could have leaked out of the bow thruster from a limited number of possible sources. They are: - (a) The shaft gland seals; (b) The blade seals; (c) The "O" ring seals for the two dome shaped covers at both ends of the propeller gear-casing/hub assembly; (d) The gear-case if it was cracked or otherwise damaged in such a manner that affected its watertight integrity. 31 Both Mr Chell and Mr Burge have discounted the suggestion that the oil leaked out of the bow thruster and into the water through the "O" ring identified by the Chief Engineer during the interview. There is no evidence that the gear case was cracked or damaged or that the leak originated from the dome covers. 32 According to Mr Burge, when the plastic vent pipe, observed by Mr Wilkinson, was fitted to the filling cap of shaft gland seal oil header tank No. 4, and filled with oil it had the effect of significantly increasing the column or head of oil above the shaft gland seal and accordingly, increasing the pressure within the tank, the piping system below it and the annular space between the shaft gland seals within the bow thruster gear case. 33 Notwithstanding criticisms by Mr Chell, Mr Burge's summarised his conclusions in a third report as follows: - (a) An amount of oil, possibly as much as 120 litres, leaked out of the bow thruster. (b) The facts suggest that the oil may have leaked past either or both the propeller shaft gland seals or the blade seals. (c) There was a known history of oil leaks from the bowthruster seals. (d) A temporary "home-made" device, the 6.7 metre long plastic pipe, had been fitted to the shaft gland seal oil head tank No. 4 to increase the pressure within the head tank and shaft gland seal and thus to prevent sea water form leaking into the bow thruster past the shaft gland seals. This would also have had the effect of forcing oil past the shaft gland seals into the sea when the vessel's bow was high in the water as it was at the time of the oil spillage. (e) The presence of emulsified oil in the plastic pipe and the head tank No. 4 are firm evidence that water was leaking in, past the outer shaft gland seals. (f) A slightly emulsified oil in the oil sample which was said by the Master to be "from the bow thruster" indicates that sea water has entered the gear casing. (g) Repair work carried out in Singapore shortly after the oil spillage included work carried out on the blade seals and the shaft gland seals suggesting they were defective.

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5.3 At the time, the source of the leak was considered to be due to leakage across O-ring No. 90, however, the bow thruster drawing shows that if this O-ring was leaking, then water would have entered the bow thruster compartment. Any external leakage from the bow thruster would collect at the top of the bow thruster tunnel. In my view, the leakage was most likely to occur when the bow thruster was running. The reason no leakage was observed from these areas by the diver is probably that the leakage had stopped when the bow thruster was shut down. 5.4 The plastic pipe was fitted to the shaft seal lubrication oil tank #4. The height of the plastic pipe was lower than the height of the header tank #1 and if the pipe was filled with oil, this would not have increased the static oil pressure in the bow thruster system and would not have prevented any oil leakage, if any of the seals and O-rings were leaking. If the shaft seal was leaking, then oil would have flowed from the bow thruster gear case into the shaft seal lubricating oil tank #4. The plastic pipe fitted to this tank would have over flowed into the bow thruster compartment. 36 In his second report Mr Chell discounts the evidence relied upon by Mr Burge to support the latter's conclusion that there was a history of leaking shaft seals prior to the leakage in March 2005 namely that the propeller shaft's gland seals had been found to be leaking and were replaced at the previous dry docking in February 2001. Rather, in his view the subsequent machining of the blade seal arrangement during a subsequent dry-docking at Singapore in May 2005 suggests that the source of the oil leakage may have been due to one or more of the blade seals leaking. 37 As the plastic pipe was fitted to the filler cap of the gland seal lubricating oil tank No. 4, Mr Chell suggests that the plastic pipe had been fitted as a means to provide an easier method of topping up the tank with oil rather than having to carry a can of oil to the bottom of the bow thruster space. It is his opinion that the plastic pipe could not have been fitted to prevent water ingress into the gear case as it would not be possible for water to enter the gear case as the static pressure head within the gear case was always greater than the static seawater head. At the time of his second report he had seen no evidence that there was any emulsified water in the bow thruster gear case. 38 In his view, accepting Mr Burge's evidence that header tank No. 1 was maintained half full, then Mr Chell says approximately 35 litres of oil would have to be lost from the bow thruster system before the header tank low level alarm was activated. There is no evidence that this occurred. Accordingly in his view it is likely no more than 35 litres of oil was lost from the system. Based upon the description of the oil sheen and using the Bonn Agreement Oil Appearance Code [BAOAC] figures, Mr Chell estimates that only as much as 3.6 litres of oil could have leaked out of the bow thruster system. 39 In summary therefore the prosecutor submits, relying on Mr Burge, that the oil was lost from either or both the bow thruster propeller shaft gland seals and the propeller blade seals whereas the defendant, relying on Mr Chell, submits that oil that was discharged into the water from the ship escaped from the No.1 tank of the bow thruster via the blade seals.

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The evidence of Mr Wilkinson 40 In addition to the white emulsified oil observed in the plastic pipe [12], Mr Wilkinson was shown an oil sample which was said to be "from the bow thruster". This sample showed only slight signs of emulsification. It was different to the emulsified oil that came out of the plastic pipe and valve "F" as it only showed signs of slight emulsification. He assumes that the sample of slightly emulsified oil was taken from the bow thruster gear box drain which is valve "K". 41 Mr Wilkinson found the plastic pipe that was fitted to the No. 4 header tank filling cap difficult to reach and in his opinion to suggest that the plastic pipe was fitted to the filling cap for the ease of the filling of the No. 4 header tank is unrealistic. The only purpose that he could see for the plastic pipe to be connected, as it was to the filing cap of the No. 4 header tank, was to increase the oil pressure in the bow thruster propeller shaft seal. 42 In his opinion the amount of oil and the duration of the oil bubbling up would indicate that the oil did not come from the gland seal system as the only evidence of loss of oil from the gland seal system was approximately 700mm from the open top of the plastic pipe, connected to the No. 4 header tank. 43 As the plastic pipe was 12mm in internal diameter. The approximate 700mm would only be 0.8 of a litre. From the evidence that he had seen in the video produced to the Court and from the other affidavit evidence relied upon by the prosecutor, he says it is clear to him that the quantity of oil which leaked is well in excess of 0.8 of a litre. 44 In the concluding paragraph of his affidavit he expresses the following opinion: - In my opinion the origin of the oil bubbling up is that the oil came from the bow thruster blades seals. These seals are marked 81 on drawing 1509214-215. The oil from the blade seals would collect in the bow thruster tunnel and remain when the blades were in the zero pitch position ie: there would be no cross current in the bow thruster tunnel. This oil would then slowly come to the surface and become noticeable over a period of time due to changes in the tidal flow and changes in the ships disposition during cargo and other operations. The evidence of Zbigniew Szostakowski 45 Mr Szostakowski is employed as a superintendent by Herm Dauelsverg the managers appointed by the owners of MS Magnavia and responsible for the day to day running of the vessel. He has sailed as a chief engineer and obtained experience with many different types of machinery including bow thrusters, implementing new maintenance programs and overseeing the repair of vessels whilst in dry dock. He produced various certificates and documents of compliance including surveys for the vessel. He personally, as well as the operational team at Dauelsverg has investigated the incident that occurred at Sydney and attempted to find the cause of the spill so that steps can be taken to prevent such an incident from occurring in the future. Following that investigation it is still not possible to explain precisely how the spill occurred. 46 After the incident at Sydney the vessel was inspected by the Germanischer Lloyd surveyor and conditions were imposed on the use of the bow thruster namely: - a) That until checks for oil leakage were carried out by divers for a minimum of 5 minutes, the bow thruster was not to be used;

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47 These conditions were complied with and repairs were carried out to the vessel in dry dock at Singapore in May 2005. 48 Apart from acknowledging that the installation of the plastic pipe to the filler cap of No. 4 header tank could have an effect of increasing pressure in the gland system, Mr Szostakowski was unable to provide any direct explanation of the spill during cross examination. He did explain however that in order to function correctly, the seals in question require back pressure from the water side so that during dry docking the seals should be removed and header tanks No. 1 and No. 4 drained. 49 In his opinion the plastic pipe was probably originally installed by a lazy crew member who was seeking to avoid climbing down the stairs into the bow thruster room carrying a bucket of oil to fill the No. 4 tank. The evidence of Branko Suzanic 50 Mr Suzanic was the Chief Engineer of MS Magnavia at the time of the incident at Sydney on 3 March 2005. He resides in Croatia and was made available to give oral evidence through a video link to Croatia. 51 Mr Suzanic explained the number of checks that are made in respect of the bow thruster in accordance with the safety check lists for the vessel. He first inspected the bow thruster on the Magnavia when he took up the position of Chief Engineer on or around 31 October 2004. In addition to weekly and other checks required by the safety check lists, other checks are undertaken as a matter of common engineering practice. During weekly inspections of the bow thruster room, engineers check the oil tank levels of header tank No. 1 and the shaft gland seal header oil tank No. 4. 52 He carried out personal inspections of the bow thruster unit one to two times per month on average, including a specific check of the oil levels in the two tanks. His evidence is that the regular inspections of header tank No. 1 and header tank No. 4 did not show any increased oil consumption for either tank during his time on the vessel. He was never informed of any problems with the bow thruster unit, its related tanks or seals prior to the incident at Sydney. 53 The bow thruster was used on departure from Brisbane on 2 March 2005 as well as on arrival at Sydney on 3 March 2005 at 2354 hours. The first time Mr Suzanic became aware of the oil sheen was when the Master called him. He went to the bow thruster room. Nothing appeared to be unusual. He closed the valve on tank No. 1 and marked the tank levels with chalk. The bilge was found to be empty. 54 Mr Suzanic says that he did not know of the existence of the "home made" pipe connected to the filling cap at the top of the shaft gland seal oil head tank No. 4 until after the inspection by the Class Surveyor. He states that if he had known of the existence of the pipe he certainly would have investigated further and if there was no good reason for its being there and it was not in compliance with usual arrangements, he would have arranged for its removal. In addition he says he did not know that valve "F" was closed and does not know how it came to be closed. Although he did close the valve on the header tank No. 1 after discovery of the oil sheen, he did not close the valve "F" on the smaller tank No. 4. 55 Since being an apprentice engineer in 1994, Mr Suzanic has worked generally on bulk carriers and obtained his full Chief Engineer's licence in 2001. Prior to this incident he has never been involved in an oil spill and has never come across a similar incident involving a bow thruster. He still does not know precisely how the incident at Sydney occurred despite having spent much time considering the possible cause. Originally he offered the opinion to SPC officers that the leak may have come from the "O ring", but since then he has realised that this could not be the case as if the "O ring" was faulty, sea water would enter the bow thruster room and oil would not escape. 56 During cross examination Mr Suzanic conceded to Mr Hill that if he had become aware of the emulsified oil in the plastic pipe, he probably would have realised that sea water was entering though the outer gland and, as well, he probably would have suspected that the inner seal was leaking. These answers were given in the context that if something is wrong with the bow thruster seals then either the oil level will drop or water will enter the ship. Beyond that he protested that he was not an expert on the functioning of seals. The oral evidence of Mr Burge 57 In his oral examination Mr Burge suggested a number of measures that the Master could have taken to avoid the spill. They are basically: - (1) Order the engineers to drain the oil from the bow thruster casing; (2) Order the engineers to isolate the gravity tank No.1 by turning off valve R; (3) Order the engineers to remove the plastic pipe attached to the filler cap of tank No.4; (4) Order the engineers to open drain valve F attached to tank No. 4; (5) Replace the drained oil with an inert gas or environmentally friendly liquid; 58 In cross examination he recognised that although the Master has overall responsibility for everything, nevertheless the day to day responsibility for carrying out inspections in relation to the bow thruster would normally fall upon the engineers and in particular the Chief Engineer. 59 During further cross-examination Mr Burge agreed that if the inner seal was leaking and the outer seals were not leaking it will be oil from the main lubricating system that will leak into the annular space between the inner and outer seals thereby displacing any oil that is already in that space to the point of pushing it out the top of the pipe attached to the cap of the No. 4 tank.

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60 Mr Burge continued to maintain that if both the outer seals were leaking the addition of the pipe filled with oil would raise the pressure within the gland seal thereby excluding further inclusion of water. If the outer seals were working then there would only be a "very tiny amount" of penetration into the annular space irrespective of the plastic pipe. However, he does not expect that the amount of water to enter naturally would be noticeable in an emulsified form, even over five years. 61 Mr Burge agreed with Mr Nell that the connection of the plastic pipe to the No. 4 header tank would have no effect on the head of pressure in the main lubricating system irrespective of whether the inner seals are effective. Even if the innermost seal is defective or leaking there would be no effect on that head of pressure. 62 He also agreed with Mr Nell that "if a blade seal was leaking then the likelihood is that oil would leak from the main lubricating system through the seal into the adjacent water", because the system is designed so that the head of pressure in the main lubricating system is greater than the head of pressure from the sea water to avoid leaking of water into the lubricating system. 63 Mr Burge accepts it was possible that the emulsification of oil that came from the main lubrication system as shown to Mr Wilkinson on 4 March 2005 could have been caused by either: - (a) Condensation; (b) Moisture entering the tank during topping up; (c) Tiny amounts of water entering though the blade seals as the propellers are operating; (d) Water entering though the innermost seal if water had entered the annular space and the equipment is operating and in a dynamic state; (e) Many other means. 64 He was not in a position to allocate a more likely cause. 65 Mr Burge recognised that in order for the gland seals to be a mechanism for loss of oil from the main lubrication system all three shaft seals would have to fail. Moreover he accepts that the amount of up to 0.8 litres is likely the amount that could have escaped from the gland system being the potential drop in level within the plastic pipe observed by Mr Wilkinson so that, if that was the case, the oil in the spill would have come from the No. 1 tank and the main lubricating system.

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66 Apart from assumptions he makes arising from an invoice for repairs in 2005 and observations of emulsification made by Wilkinson, Mr Burge can find no other evidence that the inner shaft seal was leaking. Nevertheless his suggestion that the leak occurred from the main lubrication system through the shaft seals is based on a conclusion or an opinion that the inner shaft seal must have been leaking. Ultimately however he is unable to say whether the blade seal or the inner seal is more likely to have been the cause of the emulsification that was detected in the main lubrication system. The oral evidence of Mr Chell 67 Mr Chell gave oral evidence by video link to the United Kingdom. 68 In chief he challenged the calculation by Mr Wilkinson that the amount of oil that could have been displaced from the plastic pipe fitted to tank No. 4 was 0.8 litres. He says this calculation is incorrect and the amount should be 0.08 litres. 69 In cross-examination he stated an opinion that the emulsification of oil in the No. 4 tank and the plastic pipe would be from a small amount of water leaking in through the seals. If the shift staff had filled the pipe with oil the pipe would have been full of clean oil, not emulsified oil. He thinks therefore that the pipe is filled from the bottom and not being filled from the top in order to increase the pressure in the No. 4 tank or in the gland space. The water would have built up over a long time due to slight water leakage that can occur during normal operation. Also if the seals were defective and leaking when the vessel was at its loaded draught, water that had come in through the seals in the gland system would be leaking from the top of that pipe. 70 Mr Chell agreed with Mr Hill that when the plastic pipe had 6 metres of oil in it that would raise the pressure in the annular space between the two outer seals and the inner seal. At some draughts the extra pressure in the annular space could have the consequence of retarding sea water coming into the annular space through the two outer seals if they were defective. At some draughts there is going to be a balance. When the vessel is deeply loaded it will not stop water coming in.

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71 Because someone had gone to the lengths of removing the filler cap, drilling a hole, making up the piece of plastic and brazing it to the filler cap, Mr Chell believes that the original purpose of the pipe was probably to top up the tank. However, he does not think it was being used for that purpose at the time the leak occurred. He acknowledged however that if he had carried out a thorough inspection of the bow thruster room as an engineer, he expects he would have seen the pipe and enquired about its purpose. 72 Mr Chell agreed with Mr Hill that any collective leaking of the shaft seals or of the blade rings would result in oil being lost from the gear casing and header tank No. 1 rather than ingress into the gear case. That is the way the system is designed. He confirmed to Mr Hill that from his point of view there are two possibilities of where the oil was coming from. It is most likely from the shaft seal arrangement or the blade seal rings. They are the two normal locations where one would expect to get an oil leakage on a bow thruster because they are moving components. 73 Once the valve R is turned off Mr Chell insisted that there can be no loss from the header tank No. 1 system. Any oil observed by the diver later in the day after the valve was turned off might well have been oil that remained in the water, accumulating back at the top of the bow thruster leg which itself could not have been leaking oil. The evidence of Dion Pablo 74 Master Pablo has provided two written statements of evidence and gave oral evidence by means of video link to the Philippines. 75 The Master first went to sea in 1981 as a cadet and obtained his Master's Certificate in 2000. He joined the Magnavia on 28 November 2004 as Chief Officer and assumed command of the vessel on 23 January 2005. It was his first command. He explained that his responsibility is overall in command of the vessel while the Chief Engineer is the head of the engine department and responsible for all machineries on board. 76 He confirmed that the bow thruster room was inspected every Saturday as required by the manual and the bow thruster was tested on a regular basis. Prior to the incident he had never been informed of nor observed any problem with the bow thruster. He did not observe nor was he informed that there was a home made pipe connection installed on to the filling cap at the top of the shaft gland seal oil head tank. 77 The first time he became aware that there was oil in the water near the bow of the Magnavia on her starboard side, was on the morning of 3 March 2005 when an officer from the Sydney Ports Corporation informed him that an oil sheen had been observed on the water near the starboard side. He thereupon asked the Chief Engineer Mr Suzanic to close the valve leading from the bow thruster and to put markings on the header tank sight glass. In his opinion the volume of oil in the water was a very small amount. 78 I have already referred to the apparent discrepancy between the times that he reported first seeing the oil in the water [paragraph 5] and I accept his logical explanation in that respect. 79 Mr Pablo was present when the GL surveyor Mr Wilkinson inspected the bow thruster room and identified the home made plastic pipe. He told Mr Wilkinson that he did not know why the pipe was there. He merely instructed the Chief Engineer to remove the plastic pipe but did not pursue an inquiry as to its purpose with Mr Suzanic. 80 At first Master Pablo could not be satisfied that the oil was leaking from the Magnavia and surmised that it may have come from a tanker at Brotherson Dock at the entrance to the berth where the Maganavia was tied up. 81 There was no history of leaks from the bow thruster of the Magnavia. He subsequently accepted that that the oil could be coming from the bow thruster. He could see an oil sheen on the starboard side about fifteen metres from the vessel and he was advised by Sydney Ports Corporation officers that they could see the oil coming out from under the Magnavia.

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The evidence of Dr Brian King 82 Dr King is a Senior Oceanographer who was briefed by the prosecutor to determine the quantum of oil released into the waters from the ship Magnavia on 3 March 2005. He has established a timeline of events associated with the spill from the statements, photographs and sketches generated by the prosecutor's witnesses. Dr King has calculated that the volume of lubricating oil spilt from the Magnavia was at least 113.9 litres and potentially as much as 143.9 litres. 83 He relied primarily on the evidence of Mr Watson to estimate the area of the slick at 6000m2. He has calculated that the thick portions of the slick being at least 0.1 mm thick covered a smaller area of between 900m2 to 1200m2. He estimated that the slick on the waters observed by Mr Watson up to 1030 hours on 3 March contained at least 90 litres [900m2 x 0.1 mm] and potentially 120 litres [1200m2 x 0.1 mm] of spilt lubricating oil. 84 Dr King then carried out a further calculation based on observations of globules made between 1030 hours and 1315 hours on 3 March 2005 and estimated that the volume of lubricating oil spilt during that period was at least 23.9 litres. 85 Owing to a paucity of information available to him he was not able to make an estimate of the volume of oil spilt after 1315 hours. 86 Dr King strongly disagrees with Mr Chell's estimates of volume because he used an inappropriate methodology not suitable for the case in hand and because he does not appear to take into account additional volumes of oil in regards to the rising globule observations. 87 In any event Mr Chell acknowledged during cross-examination by Mr Hill that he did not have any expertise in the measurement of oil that has been spilt on water. The evidence of Dr. Marcus Lincoln-Smith 88 Dr Lincoln-Smith is an Aquatic Ecologist engaged on behalf of the Prosecutor to prepare an expert report on the actual likely environmental consequences of the incident and to comment on the potential consequences to the environment had the spill escaped from Brotherson Dock. 89 Relying on the evidence of Dr King that the total amount of oil leaking into the dock water way was in the range of 113.9 litres to 143.9 litres, Dr Lincoln-Smith surmised that if the oil impinged upon the inter-tidal parts of Brotherson Dock, it could potentially have coated an area of up to 200 metres in length by 0.62 metres in height, constituting an area of 124 m2, representing a small proportion of this type of habitat within Brotherson Dock. 90 In his opinion it is likely that:- · the relatively rapid deployment of the containment boom, · the small (albeit undetermined) amount of oil outside the containment boom, · the tidal and wind conditions at the time of the spill and the likely limited ecological attributes of Brotherson Dock would have led to a small environment impact on aquatic flora and fauna as a result of the spill of lubricating oil from the Magnavia. 91 It is also likely that a small escape of oil would have caused some localised damage to aquatic flora and fauna but on a relatively small scale. 92 Had the containment boom not been put in place then impingement of oil upon Penrhyn Estuary or Foreshore Beach could have had serious environmental consequences. The potential maximum environmental consequences include: - · Damage or loss of marine vegetation, including mangroves and saltmarshes, which are protected under NSW legislation (Smith and Pollard 1999). It is unlikely that saltmarshes would have been affected due to the neap tidal cycle at the time, which would have high tides below the satlmarsh zone. · Impacts to intertidal invertebrates occurring on mud flats and sandy areas, which would affect secondary productivity in the area. · Impacts to bird waders in terms of food resources and potential oiling effects. Migratory birds occur in NSW through spring to autumn (URS 2003), hence there is a high likelihood that there would have been waders present at the time of the incident. In this event, a spill could have caused impacts to waders, triggered a costly cleanup and caused embarrassment in terms of international obligations.

[38]

For large companies, fines should be substantial enough to have real economic impact which, together with the negative publicity resulting from the prosecution, would create sufficient pressure on the management and shareholders of those companies to tighten regulatory compliance. 103 The prosecutor submits that the owner should receive a substantial penalty on the basis that a spill of between 113.9-143.9 litres of lubricated oil into the waters is not a minor offence, and that no satisfactory explanation has been given of how the plastic hose came to be fitted to the No. 4 oil tank. 104 However, the evidence does not support the above submission by the prosecutor. Rather the court has been satisfied that the discharge was in the low range and appears not to have been attributable to the installation of the plastic hose to the No. 4 tank. Moreover, there is no evidence to show that the leak, which occurred could have been foreshadowed. Check lists were in place and regular inspections of the machinery including the bow thruster were carried out by the engineers. There was regular liaison between the Master and the Chief Engineer. 105 Following the incident repairs were carried out to the bow thruster in dry dock in Singapore where it was fully serviced. Temporary repairs were carried out under the direction of the GL Surveyor. A plea of guilty was entered on behalf of the owners and the Master on 17 February 2006. I recognise that as being relevantly the earliest available opportunity in the context of the extent of discount to the penalty which would otherwise apply (R v Thompson; R v Houlton (2000) 49 NSWLR 383). It was only after the second report of Mr Burge was received in response to Mr Chell's initial statement of evidence that the Chief Engineer change his plea of not guilty to guilty on 15 December 2006. 106 No submission under s 10(1) of the Crimes (Sentencing Procedure Act) 1999 has been made on behalf of the owner. A plea of guilty constitutes an admission of the essential elements of the offence. 107 There is no dispute that a discharge of oil occurred from the ship Magnavia into the waters of the State at Brotherson Dock, thereby rendering the owner of the ship guilty of an offence under s 8(1)(b) and liable to a fine not exceeding 10 million dollars.

[39]

108 Each defendant has shown remorse and contrition and notwithstanding submissions to the contrary by the prosecutor in respect of the Master's reaction to the report of oil in the water, I am satisfied that each of the three defendants cooperated fully in seeking to ascertain the cause of the spill, taking remedial action immediately and subsequently put in place preventative measures to guard against future reoccurrence as far as practicable. 109 None of the defendants have any prior record in relation to this type of offence and there is no adverse evidence in relation to prior incidents. The owner 110 The submissions by the prosecutor rely on the volume of spill being between 113.9 and 143.9 litres and the lack of satisfactory explanation for the plastic hose fitted to the No. 4 tank. In circumstances where the plastic hose had obviously been fitted for some considerable time and had little or no bearing on the cause of the spill, there is no factual circumstance that causes the Court to find that the owner was overtly complicit in any action that had a direct bearing on the reason for the incident. In circumstances where an owner is not perceived to have failed to take due care and diligence with its instructions to crew and supervision of their activities it is not appropriate where the amount of oil discharged is between 30 to 40 litres, to impose a heavy penalty. 111 That the real cause of the escape of oil through the bow thruster mechanism has not been established beyond reasonable doubt and the fact that the prosecutor's expert Mr Burge took over a year to settle on the terms of a final report on the matter, and even then without strong conviction, it is not surprising that the potential for a leak went undetected until the oil was observed in the water by SPC personnel. 112 Nevertheless the owner has accepted liability by recognising its overall responsibility for management of the ship by entering a plea of guilty. 113 The purpose of the range of sentencing options up to $10 million in the case of a corporation identifies the concerns of the community reflected by the Parliament in terms of all pollution and in particular, at a location such as Sydney Harbour. The exposure of a corporation to a fine of $10 million signifies to corporate owners that their responsibilities in this respect are not to be taken lightly. It is fortunate in this case that the actual damage caused was minimal and that the amount of the spill was speedily curtailed by the responsive actions by the Master and Chief Engineer. 114 It is my view that an appropriate fine would be in a range up to $40,000. After allowing for an appropriate discount for an early plea of guilty, the good record of the defendant and its cooperative reaction, I consider it reasonable that the penalty be a fine in the sum of $25,000. I have also taken into account that the owner accepted responsibly for the cost of the clean up so that the fine is not the only impost against the company.

[40]

115 There have been considerable costs incurred in relation to this matter including three video links to witnesses overseas on different days. In all the hearing extended over six days. It might be expected that the owner will also be responsible for a significant sum for costs. The Master 116 The Master has been at sea since 1981 and obtained his Master's Certificate in 2000. It is acknowledged that he has never been convicted nor involved in any oil pollution incident either in Australia or anywhere in the world. Moreover, it is not disputed that Captain Pablo has never been convicted of a criminal offence either in the Philippines where he lives or anywhere else in the world. 117 He has given evidence of his regret that the incident occurred. I have already accepted that he cooperated with the authorities once the spill was discovered and that he acted promptly to take remedial action, even though when first told he found it difficult to accept that the oil observed on the water had escaped from the Magnavia. 118 The Act provides that the Master is strictly liable for the offence. By entering a plea of guilty he admits the essential elements of the offence namely, that he was the Master of the ship when oil was discharged into the waters of Sydney Harbour. 119 He has expressed regret that the incident occurred at all even though the day to day operations on the bow thruster and the other machinery in the vessel is more particularly the responsibility of the Chief Engineer. 120 Once again in relation to the penalty to be imposed on the Master, the extent of the spill and the actual consequences are relevant considerations. It is also difficult to conceive how Captain Pablo could have been previously made aware of any defect in the bow thruster and in particular the blade seals which are not readily observable. I agree with Mr Nell that realistically there is nothing that Captain Pablo could have done prior to 3 March 2005 to prevent the blade seals failing or leaking. That would also be so even if the leak was through the gland shaft seal. It is quite improbable that he would have become independently aware of any problem other than by way of a communication from the Chief Engineer. Even so, when informed about the discharge, he was sufficiently cognisant of the working of the machinery to order the closing of the valve to tank No. 1 and to shift the water ballast forward in the bow of the vessel in order to increase the draught of the vessel and thereby the pressure of the sea water in the area of the bow thruster. 121 I also agree with Mr Nell that as there is nothing further that Captain Pablo could have done to avoid the discharge, there is no public purpose to be served by recording a conviction or imposing a penalty in circumstances where he could not as a matter of practical reality have done anything to ensure that the offence or the adverse consequences did not occur (Thornelowe v Filipowski (2001) 52 NSWLR 60 at pages 74-75, 171 and 180). The element of general deterrence represented by the imposition of a penalty is adequately addressed by the penalty imposed on the owner. This therefore is an appropriate case in my opinion for the application of s 10(1) of the Crimes (Sentencing Procedure) Act 1999. The Chief Engineer 122 Having regard to the more direct responsibility assumed by a Chief Engineer in relation to the operation of machinery such as a bow thruster, the situation is not so clear cut as in the case of the Master whose responsibly is more divorced from the direct cause of the spill. 123 Here again however, the prosecutor's main case against the engineer is the presence of the plastic pipe attached to the filler cap of the No. 4 tank and the alleged consequence of increasing the pressure in the system having the effect of forcing oil out through the shaft seal while sea water pressure was reduced by the level at which the ship was riding at the time of the incident. 124 However, having found that there was no significant discharge out of the No. 4 tank lubrication system, if any, the presence of the plastic pipe is irrelevant even to the case against the Chief Engineer. Moreover, Mr Chell does not accept that the oil in the 6.7 metre length of pipe would necessarily have created sufficient pressure to cause a leak. Mr Wilkinson formed a similar view. It is not inconceivable that at some earlier time a member of the crew, now unknown, attached the pipe to the filler cap as a convenient facility to top up the No. 4 tank. 125 When he became aware of the incident Mr Suzanic responded to the Master's instruction and closed the valve to the No. 1 tank. He is still at a loss to explain how the spill occurred. 126 Mr Suzanic was in no better position than the Master to know that the seals were defective or likely to be leaking. 127 I do not accept the prosecutor's submission that it counts against the Chief Engineer that he originally entered a plea of not guilty. In this respect it is relevant to take into account that s 8A of the Act is directed at each crew member of the ship and each person involved in the operation or maintenance of the ship "whose act caused the discharge". At the point in time that the plea of not guilty was entered, the only evidence available by way of an independent expert report, apart from those experts who were involved at or about the time of the incident, was Mr Burge. Following the evidence filed by the defendants and in particular the evidence of Mr Chell, Mr Burge prepared a second report. Notwithstanding the conflict of opinions between Mr Chell and Mr Burge, the Chief Engineer nevertheless entered a plea of guilty at the next mention in December 2006. No doubt there were good reasons that motivated the Chief Engineer to enter a plea of guilty at that time. When he did so he admitted that in a relevant respect he participated in an act that caused the discharge, being an essential element of the offence. The prosecutor's case against the Chief Engineer focuses on his alleged knowledge that the plastic hose had been fitted to the filler cap of the No. 4 tank. Alternatively if he did not know of the existence of the hose then the prosecutor submits that the Chief Engineer should have known that the hose was there and that valve "F" was closed. I accept that the Engineer has recognised that he should have noticed the presence of the pipe and investigated the reasons for its installation. As it turns out the pipe and valve "F" have not been shown to play a significant role in the causation of the incident. 128 Section 10(3) provides as follows: - (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 129 There is no question that the Chief Engineer is of good character and he has no record of any prior conviction. The offence comprising the discharge of up to 40 litres of oil is at the lowest end of the scale of seriousness. There are significant extenuating circumstances. The Chief Engineer had no practical means of identifying the potential for the leak to occur. There is no evidence that any matters that could have warned him were previously brought to his attention. There is nothing in the prosecutor's case that persuades me that he ignored any proper procedure or process that would have enabled him to take evasive action. 130 In the whole of the circumstances I find that he is entitled to the benefit of s 10 and accordingly, the charge will be dismissed. Costs 131 There has been no formal argument on the issue of costs. In each case the offence has been proved and although the charges against the Master and Chief Engineer have been dismissed under usual circumstances the Court will nevertheless exercise its discretion and order the defendants to pay the costs of the prosecutor. I will assume that none of the defendants will be seeking a differential costs order. There has been no suggestion that an order should be made against one particular defendant rather than another. The order that I will make in order to bring finality to the proceedings is that each of the defendants will be ordered to pay the prosecutor's costs unless an application is made by way of Notice of Motion to the contrary within 14 days. Formal orders

Filipowski Barbara v Magnavia Schiffahrtsgesellschaft MBH & Co Kommanditgesellschaft, Pablo Dion and Suzanic Branco

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Judgment (44 paragraphs)

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Cases Cited (2)

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