Filipowski v Thorneloe and Another

SOLICITORS: Blake Dawson Waldron

IN THE LAND AND Matter Nos. 50039 of 2000 ENVIRONMENT COURT And: 50046 of 2000 OF NEW SOUTH WALES Coram: Talbot J Decision Date: 12 December, 2000

Barbara Filipowski Prosecutor v Peter Charles Thorneloe Shell Tankers (U.K.) Ltd Defendants

Shell Tankers (U.K.) Ltd is summonsed to answer a charge that on 15 August 1999 it was the Owner of a ship, namely the vessel "M.T. Eburna" , from which a discharge of oil occurred into State waters namely the waters of Botany Bay, in contravention of s 27(1) of the Marine Pollution Act 1987 ("the Act").

The defendant, Peter Charles Thorneloe, as Master of the vessel, is summonsed to answer a charge in the same terms.

The maximum penalty in the case of the owner as a corporation is $1,100,000 and in the case of the master as an individual it is $220,000.

Both defendants entered a plea of guilty on the first return date.

The alleged offence took place when a quantity of unleaded petrol was discharged into Botany Bay. The estimates vary from a few litres up to 30 litres. On all accounts it was not large and did not require remedial action. It was barely detectable on the surface of the water.

Routine checklists were completed before the loading and unloading operations commenced.

During the previous 24 hour period rain fell at intervals and the scuppers were loosened and unplugged to allow rainwater to drain from the deck. Captain Thorneloe was physically on duty until he retired at 2300 hours the night before, but he nevertheless was on board thereafter and made inquiries of the chief officer at about 5.15 the next morning and was able to give instructions to deal with the incident when it occurred. He acted promptly and responsibly.

It should be observed that the spill was first noticed by an employee of the Sydney Ports Authority.

It appears that the 5 port Nakakita gauge had been sticking during the current watch. This was reported on the changeover of watch at 0400 on 15 August.

The Nakakita gauge is used to measure the ullage in a tank. It is used on board the majority of tankers operating around the world. It consists of a float in the tank, suspended on a wire which is attached to a drum mechanism on deck. There is an air supply and a spring in the drum which applies a tension to the wire. As the liquid level lightens, the float in the drum revolves, taking in the wire, and this is displayed on a digital readout on deck and in the cargo control room.

If the liquid does not lighten the load of the float sufficiently, the drum will not revolve and therefore a false reading is given. The float moves below the surface of the liquid and hence the term "stuck".

To confirm that the Nakakita gauge is stuck, the float is wound up a short way and then lowered back into the tank and the reading is compared before and after. This is repeated regularly.

The petroleum escaped from the deck through a scupper when the plug had not been fully tightened.

Pumping was stopped immediately and a crewman tightened the nut on the relevant scupper plate.

The petrol on deck was cleared up in a short time.

The cause of the discharge is described by Mr Sutherland, counsel appearing for the defendants, in terms which the Court respectfully adopts:- The discharge into the water of a portion of the unleaded petrol on deck was directly caused by the failure of the crew to have properly tightened a scupper plug or plugs on the port aft side of the ship. Scupper plugs had been in place and secured before the loading operation commenced, but had been slackened off to permit rainwater to escape on occasion through the procedure. The weeping of unleaded petrol through the scupper, and hence down the ship's side and onto the water, was stopped by a tightening of the bolt holding the scupper plug.

The discharge of unleaded petrol to deck was clearly caused by the failure of the Chief Officer to adequately monitor a Nakakita gauge indicating the level in the No. 5 port wing tank. The gauge had been reported as "sticking" when the Chief Officer came on duty.

Had the Chief Officer properly observed and monitored the gauge, and had he immediately reacted to the alarm which would have sounded as the tank approached completion, the discharge of petrol onto the deck would have been avoided.

The owner concedes that it is liable for the failure of the chief officer to adequately monitor the Nakakita gauge and also for the failure of an unidentified crew member to properly tighten the scupper plugs on the port side of the ship after they had been slackened off to permit rainwater to escape during the loading and unloading operation.

However, Mr Sutherland submits on behalf of the Master, Captain Thorneloe, that because his involvement in the events which caused the incident was such that there is no direct fault on his part and having regard to the penalty to be imposed on the owner, he should be given the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999 by dismissing the charge.

In Morrison v Peers; Morrison v Hull 1048 Leasing Pty Ltd (1995) 87 LGERA 39, Bignold J considered that the mitigating factors and the conviction and imposition of a fine upon the ship owner for an offence arising out of the same oil discharge incident which also constituted the basis for the master's liability under the relevant section were proper matters to consider in the exercise of the discretion then conferred by s 556A of the Crimes Act 1900 in favour of the master. His Honour went on to say that to go further and punish the master for the same oil discharge incident would be excessive and involve "the risk of a double penalty in respect of the one event" . Bignold J found that the failure did not occur as a result of defective equipment, inefficient cargo handling procedures, negligence or carelessness on the part of the ship's master or crew.

Again in Morrison v Dilmun Navigation Co Pty Ltd; Morrison v Turner (1995) 87 LGERA 257, Bignold J felt constrained by the conviction and fining of the owner and held that to punish the master for the same incident would involve an excessive sentencing response in the circumstances of that case. The conviction and fining of the owner was deemed to be a sufficient curial response on behalf of the public for the oil discharge incident.

The approach taken by His Honour in Peers and Dilmun can be further clarified by reference to his subsequent reasoning in Morrison v Ausmarine Fisheries Pty Ltd and Miato (1995) 88 LGERA 442 when, after considering Peers and Dilmun, he declined to apply the provisions of s 556A to the chief engineer who at that time was acting as master of the vessel. He reiterated what he said in Dilmun at 260 as follows:- … I would not wish my decision to be understood (either by itself or in combination with my earlier decision in Morrison v Peers ) as suggesting that where an owner is convicted and fined, the discharge of the master pursuant to s 556A of the Crimes Act will follow as a matter of routine. Far from it, and neither case (nor the cases taken together) can possibly justify such a proposition. Rather each case [is] decided on its own facts.

The chief engineer was recognised by His Honour as in all probability being highly familiar with the ship and its operational requirements in contrast to the circumstances in the earlier cases cited.

In Morrison v Valle; Morrison v Interchem Srl (1995) 87 LGERA 278, Bignold J again referred to Peers and Dilmun to distinguish them when he considered the master to be accountable for the pollution incident in what was a routine bunkering operation. He held that the greater blame in that case must be held to be with the master.

The Court of Criminal Appeal refused to disturb Bignold J's finding in Valle (NSWCCA, 22 November 1995, unreported).

Allen J who delivered the judgment for the Court of Criminal Appeal found that the decision by Bignold J was unassailable, there having been that want of care in an operation for which the appellant was ultimately in charge and responsible in law. Allen J made the following observation at 4:- It is a matter of notoriety that all too often it is not possible to sheet home to any individual responsibility for a spillage in the sense of establishing that it was his act or omission which caused it. The purpose of s 8 in imposing strict liability upon the owner and upon the master, as well as upon any individual found to be responsible, is to deal with this potential disaster of oil spillage by making the owner and the master responsible without personal fault. In those circumstances an argument that no punishment should be visited on a master, unless personal fault is established, is clearly untenable.

The opinions expressed by Bignold J in Ausmarine were expressly approved by the Court of Criminal Appeal.

Mr Sutherland asks me to follow the policy applied by me in relation to sentencing in Filipowski v Fratelli D'Amato Srl & Ors (2000) 108 LGERA 88 at 101:- However, the Captain of the ship is properly to be regarded as the direct and immediate representative of the owner while the ship is under his command. To punish the Master or Captain of the ship personally for an occurrence over which he had no personal control, except in a detached overall sense where the owner had already been punished on the basis of its vicarious responsibility and the person directly responsible will also be punished, would, in my opinion be an excessive and unreasonable punishment.

In that case it should be noted that both the owner and the person actually responsible were convicted and heavy penalties imposed on them.

Neither of the defendants have any record of prior convictions for this type of offence.

Differentiation in treatment of two persons who are convicted together of a crime or series of crimes is justified if the Court in considering the public interest has regard to the differences in character and antecedents of the two and discriminates between them because of these differences ( Lovelock v R (1978) 19 ALR 327).

The Master, Captain Thorneloe, has an impeccable record at sea dating back to 1973. He was first appointed master of a vessel in 1997. He has never had or been involved in spillage of product either as chief officer or as a master.

That record together with his plea of guilty clearly entitles him to a significant discount ( R v Thompson; R v Houlton [2000] NSWCCA 309) on the penalty which might otherwise be imposed absent those matters in mitigation.

Although the amount of product discharged from the ship may have been low (between 10 and 30 litres), nevertheless, the potential for significant harm arose as a consequence of the two established serious lapses in proper procedure. The master must ultimately bear a responsibility for these breaches as the person in overall charge of the ship's operations. It is not appropriate in the circumstances to apply the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999.

Both defendants have shown contrition in statements presented to the Court. Each cooperated with the authorities in the investigation of the incident. A company representative, Mr Salmon, and Captain Thorneloe are present in Court and flew out from the United Kingdom for that purpose.

The owner will be fined the sum of $38,000. This penalty takes account of the actual circumstances under which the offence occurred where there was a faulty gauge and operational error and carelessness on the part of the chief officer and an unidentified crew member, the clean record of the defendant, and the early plea of guilty. Otherwise the appropriate penalty would, in my view, be significantly over $50,000.

An appropriate fine for the master having regard to the whole of the circumstances is $7,000.

The formal orders of the Court are:- In matter No 50046 of 2000:- 1. I find the offence proved.

2. The defendant is convicted of the charge set out in the summons.

4. The defendant is ordered to pay the costs of the prosecutor in such sum as agreed or determined in accordance with the Land and Environment Court Regulation.

5. The defendant is allowed one (1) month to pay. In matter No 50039 of 2000:-

7. The defendant is convicted of the charge set out in the summons.

9. The defendant is ordered to pay such costs which have been incurred in addition to those incurred in matter No 50046 of 2000, if any, as agreed or determined in accordance with the Land and Environment Court Regulation.

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