Filipowski v Schiffsbeteiligungsges m.b.H. & Co KG; Filipowski v Kleemann [2004] NSWLEC 207 | Case summary

5 May 2004 No. 50068 of 2003 BARBARA FILIPOWSKI Prosecutor v SCHIFFSBETEILIGUNGSGES M.B.H & CO KG Defendant No. 50066 of 2003 BARBARA FILIPOWSKI Prosecutor v DIETRICH KLEEMANN Defendant JUDGMENT Introduction 1 The defendant Schiffsbeteiligungsges m.b.H & Co KG has pleaded guilty to a charge that on 30 April 2001 it was the owner of a ship, namely the ship "P&O Nedlloyd Fos" from which a discharge of oil occurred into State waters, namely, the waters of Brotherson Dock, Port Botany, in contravention of s 8 of the Marine Pollution Act 1987. 2 The defendant Dietrich Kleemann has pleaded guilty to a charge that on 30 April 2001 he was the master of a ship, namely the ship "P&O Nedlloyd Fos" from which a discharge of oil occurred into State waters, namely, the waters of Brotherson Dock,. Port Botany, in contravention of s 8 of the Marine Pollution Act 1987. 3 Section 8(1) of the Marine Pollution Act at the time of the commission of the offence was as follows: 8(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, and any other person whose act caused the discharge, are each guilty of an offence punishable, upon conviction, by a fine not exceeding: (a) if the offender is a natural person - 2 000 penalty units, or (b) if the offender is a body corporate - 10 000 penalty units. 4 The questions for determination are the appropriate penalty and costs. Both charges arise out of the same incident and accordingly both cases were heard together. The parties were unable to agree on a statement of facts. As a consequence it has been necessary to admit and consider a great deal of affidavit and documentary evidence, including some oral evidence, from which I derive the facts which I shall now describe. The incident 5 On 30 April 2001 Schiffsbeteiligungsges m.b.H & Co KG was the owner of the ship "P&O Nedlloyd Fos" ("the ship"). Captain Dietrich Kleemann was the Master of the ship ("the Master"). 6 On 30 April 2001 the ship was berthed at the No. 1 Berth, Brotherson Dock, Botany Bay, starboard side to. At about 8:30 am on that day the bunkering barge "ESAR Sydney" arrived alongside the ship and about thirty minutes later that vessel commenced bunkering the ship with heavy fuel oil. Bunkering operations were suspended at about 11:00 am on 30 April 2001 and the "ESAR Sydney" left the ship to refill its cargo tanks with heavy fuel oil. 7 At about 12:30 pm on 30 April 2001 the "ESAR Sydney" again berthed alongside the "P&O Nedlloyd Fos". Approximately thirty minutes later bunkering of the ship with heavy fuel oil was recommenced. At about 2:10 pm on 30 April 2001 there was an overflow of heavy fuel oil onto the ship's main deck from an overflow pipe and pumping from the "ESAR Sydney" was immediately stopped. The overflow pipe is connected to an overflow tank located on top of the bunker tanks and both the receiving bunker tank and the overflow tank were full. The Chief Engineer of the "P&O Nedlloyd Fos", Mr Theo Frey ("the Chief Engineer"), who was responsible for all bunker transfer operations, informed the Master within minutes of the overflow occurring. 8 All available crew and engine crew were immediately employed in cleaning up the oil, which at that time was fully contained on the ship's deck. All the ship's scuppers had been previously plugged. The crew used sawdust, granular absorbent material, shovels and drums to clean up the oil. At about 2:30 pm on 30 April 2001, the Master informed Mr John Southwell-Keely, the ship's agent, of the incident and requested the assistance of a contract cleaning company. The ship's agent promptly informed the Sydney Ports Corporation ("SPC") Harbour Control Tower that there had been an oil spill on board the "P&O Nedlloyd Fos" at the No.1 Berth, Brotherson Dock, during bunkering operations. 9 Mr Ross Gibson, an officer of SPC, went to the ship and observed fuel oil on the ship's deck. He states in his affidavit that the crew had made a reasonable effort to prevent the oil going overboard. Mr Gibson states that the crew concentrated their efforts in scooping, with shovels and buckets, the oil into the bunker spill trays. By collecting the oil in this method, considerable progress was being made and it appeared that none would go overboard. At about 5:00 pm on 30 April 2001 heavy rain fell and the situation changed. The loose oil on the ship's deck was lifted by the flowing rainwater and formed large pools of oil on water. Efforts were then directed towards preventing the oil flowing over the fish plate on the side of the ship and into the waters of Brotherson Dock. Heavy concentrations of "Glebe" absorbent boom and 3M pads contained the oil so that only rainwater flowed over the side, although it seems that a "trace" of oil accompanied the rainwater. Mr Gibson does not suggest that the clean-up activities by the crew were not appropriate in the circumstances. 10 Mr Stewart Blake, a marine supervisor employed by the SPC, states in an affidavit that he arrived at the ship shortly after 6:00 pm on the day of the incident. He observed heavy fuel oil on the ship's deck. Mr Blake states that heavy rain had been falling and concentrations of rainwater were entrapped on the deck and were heavily contaminated with fuel oil. The ship's crew (and SPC personnel) were engaged in laying oil absorbent boom and pads to prevent oil escaping over the side. Again, there is no criticism by Mr Blake to the effect that the measures being implemented to control the oil spill were inappropriate. 11 At about 7:00 pm on 30 April 2001 contract cleaners engaged by the ship's agent arrived and assisted in the clean-up operations. At about the same time heavy rain had been falling. At about 8:30 pm very heavy rain, described as "monsoon like", began falling and lasted for about twenty minutes. As a consequence the fuel oil contaminated rainwater flowed over the lip of the ship's freeing port and into the waters of Brotherson Dock. It is estimated that at least 200 litres of heavy fuel oil went into the waters of Brotherson Dock. After the rain had eased, an inspection by a representative of the SPC, with the Master and the Chief Engineer of the "P&O Nedlloyd Fos", identified heavy black fuel oil on the waters' surface between the starboard side of the ship and the wharf, with patches of heavy black fuel oil between the stern of the "P&O Nedlloyd Fos" and the bow of the ship astern. An oil containment boom was placed by the SPC personnel from the bow of the "P&O Nedlloyd Fos" to the wharf and from the stern of the ship to the wharf. Clean-up operations continued throughout the night. The ship departed the following morning. As it did so a SPC tug washed down the starboard side of the ship with water monitor action. The oil sheen on the waters' surface was broken up with propeller and water monitor action. After the departure of the ship, the tug cleaned up the oil remnants on the wharf face using water monitor action. 12 There is no evidence of any environmental harm as a consequence of the incident, although there was clearly a potential for environmental harm. 13 On 1 May 2001, before the ship left, both the Master and the Chief Engineer were interviewed. According to the Master, the person in charge of all bunkering operations was the Chief Engineer; and the cause of the discharge of heavy fuel oil from the ship was "oil on deck from overflow from bunkering operation - heavy rain caused oil to run off main deck". According to the Chief Engineer, he was watching a computer screen (which apparently shows how much oil was in the bunker tanks being filled) when it suddenly "jumped" from showing a filling level of 400 cubic metres to 437 cubic metres. The Chief Engineer said that a full tank is considered to be 425 cubic metres. When the tank overflowed he stopped bunkering immediately. He also said that he had not had any previous problem with the computer ullaging system. 14 The Master has furnished an affidavit. He was not available for cross-examination. The Court was informed from the bar table that the Master has now retired and is suffering from poor health. The Master says in his affidavit that he intended to be present at his sentencing hearing but has been advised by his doctor not to travel. This much is confirmed by a medical certificate annexed to the affidavit. Since the Master was not available for cross-examination the prosecutor submits that the Court should take account of the fact that the evidence in the Master's affidavit has not been tested. Nevertheless, that evidence is consistent with the facts that I have set out above and is also consistent with reports of the incident made by both the Master and the Chief Engineer to their employer to which I later refer. 15 The Master had 45 years seagoing experience before his retirement due to health reasons in January 2003. His first ship command was in 1974. He first joined the "P&O Nedlloyd Fos" on 1 April 2001 in Barcelona. When he joined the ship he met the Chief Engineer, the Chief Officer and the departing Master and discussed the ship and its operational issues with them. At that time there had been no problems with the computerised bunker tank measuring system. The Chief Engineer was someone the Master considered to be a very good Chief Engineer from previous voyages with him. It was the Master's usual practice to check the logbooks on assuming command of a ship and in this case the logbooks did not show any problem with the computerised bunker tank measuring system. The bunkering operation on 30 April 2001 was the first time the ship had taken on fuel since he had been on board. The Master knew, however, that the "P&O Nedlloyd Fos" was last in Port Botany on 16 February 2001 and took fuel on board on that occasion without any problem. 16 The Master states in his affidavit that the Chief Engineer is responsible for all the ship's engine-room activities including all bunker transfer operations and the loading of bunker tanks. The Master further states that the Chief Engineer makes plans for bunkering the ship and assigns different people in the ship's engineering department to be responsible for different aspects of the bunkering operations. The master has no active role in the bunkering operation, although he directs deck officers to assist with the plugging of the ship's scuppers before any bunkering commences. 17 The Master in his affidavit gives the following recollection of the incident: [10] I was on board at the time that the bunkering was taking place. At approximately 14:10 on 30 April 2001 there was an overflow of oil onto the ship's main deck from an overflow pipe. The overflow pipe is connected to an overflow tank located on top of the bunker tanks. The Chief Engineer informed me of this incident within minutes of it occurring. He had already ordered bunkering to cease and directed crew to commence emergency clean up procedures. I called the ship's agent as soon as I had been informed of the incident and he informed the Port Authority. [11] When I came down to view the spill the crew were already working hard pumping the oil into drums and returning it to the tank. In my view the crew responded quickly and professionally to the incident. [12] The crew used sawdust, granular "Kitty-Litter" absorbent materials, shovels and drums to clean-up the oil. The oil at that time was fully contained on the deck. Later, the Port Authority personnel arrived and brought additional equipment and materials on deck to assist with the clean-up. At this time, there were passing showers but from about 17:00 there was very heavy rainfall and some oil was washed over the ship's side by the rainwater. 18 After the incident the Master and the Chief Engineer furnished two joint reports on the incident to the ship's managing company, Reederei F Laeisz G.m.b.H, on 2 May 2001 and on 20 May 2001. Those reports describe what caused the incident. Shortly stated, the filling of the bunker tanks was monitored on the computer screen from the engine-room office of the ship. A crew member with a telephone link to the engine-room office was positioned at the port side bunker station. Tank No. 1 on the port side was filled and closed. The Hoppe fuel gauge (which I understand to be at the tank) was identical to the screen reading in the engine room office. Tank No. 1 on the starboard side was then opened. At the same time, tank No. 2 port side and tank No. 2 starboard side were also filling continuously according to the screen display. The 75 per cent-full alarm indication were activated and the transfer pressure was reduced to four bars by the bunker barge. The Chief Engineer then waited for the screen display to show the filling of each of the receiving tanks to reach a level of 425 cubic metres - about 97 per cent of their stated capacity - and to then shut the tanks. Suddenly the screen display showed readings of 436.2 cubic metres and 437.9 cubic metres respectively. At the same time the alarm of the overflow tank was activated for tanks No. 2 port and starboard side. Pumping was stopped immediately, but not before about 0.8 metric tonnes of heavy fuel oil had flowed onto the deck from the overflow tank. The Hoppe fuel gauge showed both tanks No. 2 as being full and the 75 per cent-full alarm indication lights were on, but the 95 per cent-full alarm indication lights were not. At the time of the overflow, the screen display reading showed tank No. 2 starboard side as 232.1 cubic metres and tank No. 2 port side as 273.3 cubic metres, although each tank was now at its capacity of 436.2 cubic metres and 437.9 cubic metres respectively. The second report states that if the 95 per cent-full alarm indication lights had been functioning properly then it would have been possible to shut down the pumping at an early stage. On 9 May 2001 the screen display reading of the tanks failed completely. 19 The ship's manager has a shipboard oil pollution emergency plan as part of its environment management system, which has been approved by Germanischer Lloyd Certification G.m.b.H, a well-known classification society. A classification society is an independent, non-profit foundation that aims to protect property, life and the environment through the implementation and certification of vessel and company standards in the marine industry. The shipboard oil pollution emergency plan states that its purpose is to provide guidance to the Master and officers on board the ship with respect to steps to be taken when an oil pollution incident has occurred or is likely to occur. There is no doubt that in this case the Master and the crew responded appropriately and in accordance with the plan when the overflow onto the deck of the ship occurred. Perhaps the only criticism in this respect is the delay which occurred before the external clean-up contractors arrived. 20 The ship's manager has also produced a bunker plan, headed "Fuel and Luboil Bunkering Procedure". This document clearly states that the Chief Engineer is responsible for bunkering operations in all respects. The document clearly sets out the bunkering procedure to be followed and includes a statement that fuel tank levels should be checked by manual sounding. It is apparent from the reports on the incident, with I have described above, that no manual sounding of the tanks was performed. 21 As noted in par [18] above, the manager of the "P&O Nedlloyd Fos" is Reederei F Laeisz G.m.b.H ("RFL") and as such is responsible to the owner of the ship for its operation. Mr Herbert Juniel, managing director of RFL gave evidence by affidavit and was cross-examined by video link from Hamburg. RFL has a fleet of 42 ships. It has about 1050 employees on board those ships and 100 in its offices. It has managed the "P&O Nedlloyd Fos" on behalf of the owner, MS "Pembroke Senator" Schiffsbeteiligungsgesellschaft m.b.H & Co KG, since 8 December 1997. RFL employs the crew and is otherwise responsible for the day-to-day operation of the ship. 22 Mr Juniel states in his affidavit that RFL was successfully audited in 1996 pursuant to Quality Management System DIN EN ISO 9001:2000 and the International Ship Management Code by Germanischer Lloyd G.m.b.H; and RFL was one of the first German ship management companies to be certified with the Environment Management System according to DIN EN ISO 14001 in 1997. Mr Juniel further states that in 1996 RFL implemented a safety management system to ensure environmental safety as well as vessel crew safety and cargo safety in relation to vessels managed by it, including "P&O Nedlloyd Fos". Mr Juniel also states that RFL also has a briefing procedure whereby all Masters and Chief Engineers must attend a briefing session prior to each new voyage. The briefing includes any relevant operational information about the vessel and the pending voyage. He confirmed that the Master and the Chief Engineer of "P&O Nedlloyd Fos" had attended such a briefing session before joining the ship. Mr Juniel states that the loading of fuel is one of the most regulated operations on board RFL's vessels, and that the regulations are very detailed and their importance is continually enforced. (In this respect the Court was provided with a copy of the Fuel and Luboil Bunkering Procedure, to which I have referred in par [20] above.) Mr Juniel notes that among the requirements of bunkering are the positioning of a crew member on the bunker station and of the Chief Engineer in the control room, the positioning of fire extinguishers and absorbent materials and the plugging of the vessel's scuppers. 23 As to the incident which gave rise to the present offence, Mr Juniel states that the spill response and environmental procedures for the "P&O Nedlloyd Fos" were fully complied with at the time of the oil spill. He also states that the cause of the incident appears to have been a failure in the computerised tank monitoring system. In cross-examination he said that the effective cause was the non-functioning of the 95 per cent-full alarm indication lights. This had never occurred previously on any ship managed by RFL and has not occurred since this incident. There was, however, a minor oil spill on another ship managed by RFL which also occurred in April 2001. That other ship was not owned by the corporate defendant in the present case. The present corporate defendant has never previously had an oil spill incident. Consideration on penalty relating to the shipowner 24 The shipowner had entrusted the management of the ship to a leading European ship management company, which employed the crew and was responsible for the day-to-day operation of the ship. That does not, however, absolve the shipowner, who must be taken to have been satisfied with what its agent was doing. This was apparently accepted by the shipowner in pleading guilty to the charge. The acts or omissions of the managing agent acting on behalf of the shipowner must be taken to be those of the shipowner. 25 The evidence shows that the oil spill occurred in the following circumstances. Firstly, the computer screen showing the level in the No. 2 bunker tanks malfunctioned. Secondly, the alarm lights which indicate when the tanks are at 95 per cent of their capacity failed to operate. Thirdly, although the oil spill was originally contained on the ship's deck and clean-up was proceeding satisfactorily, the sudden onset of monsoon-type rain caused some oil to escape over the side of the ship. 26 The prosecutor is nevertheless critical of what occurred: there was a failure to follow the Fuel and Luboil Bunkering Procedure in that there was no checking of tank levels by manual sounding; extra shore-based assistance could have been obtained earlier then 7:00 pm on the day of the incident; and the master made no attempt to close the freeing ports, through which the discharge of oil occurred into the waters of Brotherson Dock. The oil and rainwater on the deck was eventually removed by a road tanker and a suction pump, but the prosecutor submits that this could and should have occurred much earlier and before heavy rain began to fall. 27 On the other hand, there was no criticism of the way in which oil spill was being cleaned up, by either Mr Gibson or Mr Blake when they went onto the ship. Mr Gibson states that the crew had made a reasonable effort to prevent the spill going overboard and he does not suggest that the clean-up activities by the crew were not appropriate to the circumstances. Mr Blake makes no criticism of the measures being implemented to control the oil spill; neither does he suggest that those measures were inappropriate. Neither of these officers suggested to those managing the oil spill that a road tanker should be called in, neither do they suggest to the Court that this is what should have been done. 28 As to the original cause of the spill, there is no evidence of any prior knowledge of the failure of the computerised tank monitoring system and of the failure of the 95 per cent-full alarm indication lights. The failure of these two systems had not previously occurred. The odds of both systems failing at the same time must be extremely high. I accept as valid, however, the prosecutor's criticism that there had been a failure to check tank levels by manual sounding, that being an express requirement under the Fuel and Luboil Bunkering Procedure. 29 I accept that the defendant has a hitherto unblemished environmental record; that it has in place policies and management procedures designed to protect the environment; and that the ship's management company has been certified by a recognised classification society as having appropriate standards in the marine industry. I also note that Mr Juniel states that both RFL and Schiffsbeteiligungsges m.b.H & Co KG deeply regret the incident. 30 I accept the fact that there was no forewarning of the failure of the computerised tank monitoring system and no forewarning of the failure of the 95 per cent-full alarm indication lights, both of which were unprecedented. Nevertheless a spill of heavy fuel oil from a ship is not a minor matter. This is recognised by the legislation in making it a strict liability offence and fixing the maximum penalty for the offence at $1.1 million for a corporation and $220,000 for an individual, as it was at the time the offence was committed. It is fortunate that there is no evidence of actual environmental harm, although the risk was there. If there had been manual sounding of the tank levels then the oil spill onto ship's deck may nevertheless have been averted. And if the freeing ports had been closed or blocked then the oil spill may have been able to be contained on the ship's deck notwithstanding the heavy rain that occurred. 31 The corporate defendant, the shipowner, has already paid the cost of the clean-up incurred by the SPC, which was $18,616.80. 32 As I have noted above, the maximum penalty for the offence is $1.1 million for a corporate offender and $220,000 for an individual offender. Having regard to all of the above mentioned considerations, an appropriate penalty would be $75,000. In the present case the corporate defendant is entitled to a full discount of 25 per cent for its early plea of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419). Having regard to all relevant matters, including the early plea of guilty, a discount of 35 per cent should be applied, thus reducing the penalty to $50,000. Consideration on penalty relating to the Master 33 Mr G J Grogin, appearing for both defendants, submits that in the circumstances of the present case the individual defendant, the Master, should receive the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). The Master was not involved in the bunkering operation. The Chief Engineer was in charge. This is consistent with the Fuel and Luboil Bunkering Procedure, which states that the Chief Engineer is in charge. I accept the evidence as showing that the Chief Engineer was responsible for all bunker transfer operations and was responsible for assigning different people to be accountable for different aspects of the bunkering operation. Accordingly, in my view it was the Chief Engineer's responsibility to ensure that the Fuel and Luboil Bunkering Procedure was followed, including having a person checking tank levels by manual sounding. 34 The Master states in his affidavit that the Chief Engineer was someone he considered to be a very good Chief Engineer from previous voyages with him. It was thus reasonable for the Master to expect that the Chief Engineer would follow the bunker plan. It would not have been reasonable to expect the Master to double-check what the Chief Engineer was doing. 35 The Master says that he checked the ship's logbooks on assuming command of the ship and these did not show any problem with the bunker system. He thus had no reason to suspect that anything was wrong with the two systems that failed or that the Chief Engineer was not doing what he was required to do under the Fuel and Luboil Bunkering Procedure. 36 The only real criticism that the prosecutor makes is that the Master could have obtained assistance from the shore-based cleaners, including a road tanker and suction pump, earlier then he did. Further, the prosecutor submits that the Master could and should have directed the ship's freeing ports to be closed. 37 As to these criticisms, I have noted that neither Mr Gibson nor Mr Blake thought that the measures being undertaken to clean-up the oil spill were inappropriate. The Master himself says that the crew responded quickly and professionally to the incident. It seems that neither Mr Gibson nor Mr Blake foresaw the need for a road tanker to be called in, neither does it appear that they foresaw the need for the freeing ports to be closed. I have the impression that everything was proceeding satisfactorily until the heavy monsoon type rain began to fall which then continued for twenty minutes. 38 The prosecutor relies upon the judgment of Pearlman J in Hoogendoorn v MISR Shipping Company; Hoogendoorn v Hassan [2001] NSWLEC 171 in support of a submission that in a strict liability offence such as this the Master of the ship bears the responsibility of the incident notwithstanding that there is no evidence of personal fault on his part, and so he should not receive the benefit of s 10 of the Sentencing Act. 39 In my opinion, the decision of Pearlman J in Hoogendoorn must now be read in the light of the subsequent decision of the Court of Criminal Appeal in Thorneloe v Filipowski (2001) 52 NSWLR 60. In that case it was held that it is relevant to the exercise of the discretion pursuant to s 10 of the Sentencing Act and in the context of a strict liability offence, such as this, to consider what the defendant could, as a matter of practical reality, have done to avert the event that had occurred. In this respect one does not look for a standard of virtual perfection. 40 In applying the principles explained in Thorneloe, I have regard to the absence of any evidence of the actual environmental harm, the absence of any personal fault on the part of the Master, the fact that it was the Chief Engineer who was in charge of the bunkering operation, the Master's hitherto impeccable record after forty five years of seagoing experience, including some twenty nine years as a Master, the fact that matter was well under control until the monsoon type rain arrived, and the Master's expression of regret over the incident. The fact that the Master is now retired from service means that considerations of deterrence do not arise. In these circumstances it is appropriate to exercise the discretion under s 10(1)(a) of Sentencing Act in favour of the Master. Orders 41 The formal orders are as follows: No. 50068 of 2001

The defendant is convicted of the offence as charged.
The defendant is fined the sum of $50,000.
The defendant must pay the costs of the prosecutor in accordance with s 253 of the Criminal Procedure Act 1986.
The exhibits may be returned. No. 50066 of 2001
The offence is proved, but pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 no conviction is recorded and the proceedings are dismissed.
The exhibits may be returned.
No order as to costs. I hereby certify that the preceding 41 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Filipowski v Schiffsbeteiligungsges m.b.H. & Co KG; Filipowski v Kleemann

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