Filipowski v Wallenius Lines Singapore Pte Limited & Anor

SOLICITORS Ebsworth & Ebsworth

JUDGMENT: IN THE LAND AND MATTER No. 50006 of 2002; 50007 of 2002 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 22/08/2002

Barbara Filipowski Prosecutor v Wallenius Lines Singapore Pte Limited and Benny Dirland Defendants

1. Each defendant in these prosecutions is charged with having committed an offence against s 8(1) of the Marine Pollution Act 1987 which relevantly provides:- 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. …
2. In proceedings No. 50006 of 2002 the defendant Wallenius Lines Singapore Pte Limited ("the Owner") is charged that on 24 April 2000 it was the owner a ship, namely vessel the MV Carmen ("the vessel"), from which a discharge of oil occurred in State waters, namely Darling Harbour, Port Jackson.
3. In proceedings No. 50007 of 2002 the defendant Benny Dirland ("the Master") was the Master of the vessel at the date of the offence. Each defendant has pleaded guilty to the charges and the Court is to assess the penalty in each case. By consent of the parties these prosecutions have been heard together. The Facts
4. The vessel is used for the purpose of carrying motor vehicles. It was built in 1982 and has a gross tonnage of 50,681. On 24 April 2000 the vessel was berthed at No. 8 Berth Darling Harbour with its starboard side to the wharf. At approximately 10.20am on that day an oil slick was observed on the water surrounding the port side of the ship. The Master promptly engaged the vessel's On Board Oil Pollution Prevention Team. The oil slick accumulating on the surface was described by Mr Graham Forsaith, a Boating Service Officer of the Waterways Authority, as "a large heavy black oil slick surrounding the port quarter" of the vessel. The oil slick was then observed to extend about 100 metres from the vessel and approximately 25 metres in width and around both sides of the vessel. The parties have reached agreement that the estimated volume of the spill is 500 litres.
5. Vessels operated by the Sydney Ports Corporation laid an oil absorbent boom from the port bow of the vessel to the wharf face and from the vessel's stern to the wharf face to isolate that portion of the discharge. The oil slick which extended beyond was broken up by the Corporation's vessels and was recovered using lengths of oil absorbent boom and oil absorbent pads. Approximately 26 x 3 metre lengths of oil absorbent boom were utilised in the clean up process which continued until 6.00pm on 24 April 2000. Cause of the Spill
6. The Master's evidence alleges that the cause of the spill was human error. At 6.30am on 24 April 2000 the soundings were taken in a bilge tank by a crew member and a record was made which suggested it was holding 44,000 litres of liquid. The capacity of the bilge tank is 55,000 litres. At 8.15am another crew member commenced to drain liquid from a sludge tank to the bilge water tank. At 8.45am another crew member began to transfer water from an aft bilge well to the bilge tank. The evidence does not disclose the total quantity of liquid that was being transferred into the bilge tank. The bilge holding tank filled to capacity and over flowed through a vent pipe into the waters of Darling Harbour.
7. The explanation provided suggests that an error was made by a crew member when he took the soundings in the bilge tank and that such tank was inadequate to accept the liquid being transferred to it. No other explanation has been proffered by the prosecutor.
8. When the discharge occurred, the Master was completing formalities concerning the discharge of the cargo. He immediately requested the Duty Engineer and the Chief Engineer to check all overboard valves and when he learnt they had been closed and blocked he carried out further enquiries to ascertain the cause.
9. The Master and the Chief Engineer were interviewed by officers of the Sydney Ports Corporation shortly after the discharge was notified. Mitigation
10. The Master had joined the vessel on the 5 April 2000. Accordingly, he had been in charge of the vessel for only 19 days before the discharge. The Master has extensive experience as a seaman having been at sea since 1963. He commenced employment with Wallenius Lines in 1975 as a Third Officer and obtained his Chief Officer's Certificate in June 1979 and a Master's Certificate on 20 November 1980. His first command commenced in August 1990. The Master is currently 56 years of age and would expect to continue in service until the age of 65 years.
11. Upon joining the vessel the Master checked all relevant certificates for the vessel to ensure that they were in order. He was unaware that the bilge tank was not equipped with a high level alarm. He understood that this device was a requirement of classifying authorities such as Lloyds with whom the vessel was registered.
12. The Master readily provided details to Sydney Ports Corporation investigators and co-operated fully with the authorities. He has ordered that a high level alarm be installed in the bilge tank and an auto stop mechanism be fitted to the bilge pump. Such equipment should ensure that there will be no repetition of the overflow.
13. The Master has expressed his contrition and his recognition of the importance of protecting the environment.
14. The Owner has, through its corporate structure, been engaged in shipping to Australian ports for more than 115 years. Vessels owned by the company make approximately 350 port visits to Australia and New Zealand annually. No prior prosecutions have been recorded in Australia or elsewhere and the Court is satisfied that the company is environmentally conscious and responsible. The company holds a Certificate of Approval in respect of its Environmental Management System which certifies fulfilment of criteria for environmental management system standards EN ISO 14001: 1996. Such certification is voluntary and the issuing authority conducts random checks for compliance.
15. The evidence discloses that the Company has endeavoured to undertake measures to reduce noxious omissions, fuel consumption and waste and is active in environmental awareness projects. The company has a published Environmental Policy and it prepares Environmental Management Training Packages for its employees which are available for viewing on the Company's intranet. The company has demonstrated its contrition for the offence. Penalty
16. An application has been made on behalf of the Master that the benefit of s 10 of the Crimes (Sentencing) Procedure Act 1999 be extended to him. In the absence of prior convictions and the circumstances surrounding the discharge, the submissions is made that the requirements of s 10 are satisfied.
17. In Valle v Morrison (unreported: CCA File No. 604329/95: judgment 22 November 1995) the New South Wales Court of Criminal Appeal dealt with the submission that the master of a vessel should be absolved from any penalty where the spillage was not caused by any act or fault of his own. The Court of Criminal Appeal said (per Allen J):- That submission, understandable though it is in human terms, is clearly contrary to the purpose of s 8 of the Act. 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 .
18. More recently the Court of Criminal Appeal has indicated that circumstances may justify the Court declining to impose a penalty: see Thorneloe v Filipowski (2001) 52 NSWLR 60, Spigelman CJ at 74; Filipowski v Tanner [2002] NSWLEC 95 at par [20] - [21]; Filipowski v Fratelli D'Amato S.r.1 and Others (2000) 108 LGERA 88 at 101 (cited with approval by Spigelman CJ in Thorneloe at 66).
19. Whether it is appropriate for the Court to waive any penalty must, as Spigelman CJ said in Thorneloe at p 74, be dependent upon whether the "relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur".
20. Applying this test the Court must consider whether, as a matter of practical reality, the Master could have been aware of the possibility of an overflow from the bilge tank resulting from absence of a high level alarm. According to the Master, it is not usual practice for a master coming on board a vessel to check the details of the design of the engine room systems, such as various tank alarms.
21. In this case the Master's own evidence establishes that he made an assumption that the bilge tank was fitted with a high level alarm. The Master deposed as follows:- I assumed, although I did not check, that the bilge tank was fitted with a high level alarm.
22. Having applied his mind to the need for a high level alarm the Master could have verified the basis of his assumption. In these circumstances it is apparent that the Master did not "as a matter of practical reality" (per Spigelman CJ) do all that he could have done to avoid the incident. For these reasons the Court does not consider it appropriate to accede to the request that s 10 of the Crimes (Sentencing Procedure) Act 1999 be applied.
23. In respect of the Owner, the Court notes its record and the high degree of environmental responsibility it has demonstrated in the past. However, these matters do not detract from the fact that the vessel was operating in such a state that an accident could have occurred resulting in an environmental disaster. It was probably a matter of good fortune that such an occurrence has not occurred to date, especially when human error could have readily caused such an occurrence at any time.
24. The Court notes that each defendant has made early pleas of guilty and in accordance with the principles referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and Cameron v R [2002] HCA 6; (2002) 187 ALR 65 the Court will take such pleas into account in assessing penalty. Additionally the Court observes that there is no evidence of any environmental damage having been caused despite the estimated spill of 500 litres. Orders
25. In respect of Proceedings No. 50006 of 2002 the Court makes the following orders:

1. The defendant is convicted of the offence as charged.
2. The defendant is fined the sum of $40,000 to be paid to the Registrar of the Court within one month of this date.
3. The defendant to pay the prosecutor's costs.
4. The exhibits be returned.
5. In respect of proceedings No. 50007 of 2002 the Court makes the following orders:

1. The defendant is convicted of the offence as charged.
2. The defendant is fined the sum of $10,000 to be paid to the Registrar of the Court within one month of this date.
3. The defendant is to pay the prosecutor's costs.
4. The exhibits be returned.

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