Hoogendoorn v MISR Shipping Company and Hassan

Land and Environment Court (NSW)|2001-06-20|Before: Pearlman J, Mr J

These proceedings involve two prosecutions both brought under s 8(1) of the Marine Pollution Act 1987. They relate to an incident on 31 May 2000 when a discharge of oil from the vessel Abidos occurred in the waters of the eastern basin at Port Kembla.

The owner of the vessel, MISR Shipping Company, has been charged under s 8(1), as has the master of the vessel, Captain Adel Hassan. The defendants have respectively entered pleas of guilty.

I have derived the facts concerning the incident from an agreed statement of facts furnished to the Court. On the day in question the Abidos was tied up port side to the grain berth at Port Kembla, receiving a part cargo of grain. At approximately 1200 hours an officer of the Port Kembla Port Corporation, Mr J M Giddings, observed an oil slick on the water's surface around the bow of the Abidos extending to the northern end of the grain berth. Sometime later, at about 1235 hours, another officer, Mr J R Robinson, observed that there appeared to be two slicks of oil on the water's surface, firstly a slick of about 35 m by 5 m of thick oil and secondly, a thinner slick of about 60 m by 5 m.

Mr Robinson went on board the Port Corporation's vessel and from it he inspected the Abidos and observed firstly, a fresh oil line along the starboard side of that vessel about 25 mm in height from the stern to the bow, and secondly, at the forward end of the ship, slicks of oil of about 15 m2. There were a number of slicks of that size and a few smaller ones.

Samples of the oil in the water were taken from certain parts of the vessel. The sample taken from the oil slick on the water's surface matched the sample taken from the engine room aft bilge of the Abidos. I am satisfied beyond reasonable doubt that the oil on the waters was discharged from the vessel.

The Port Corporation undertook a clean-up operation and approximately 40 litres of the oil were recovered. Mr Robinson estimated that the oil spill was of the amount of 150 to 200 litres.

Captain R A Tanner, the Assistant Harbour Master, conducted an interview with Captain Hassan. Captain Hassan gave the following answers: Q: Do you know what caused the discharge?

A: No, de-ballasting operations ceased at 0400 today.

A: The oil did not come from my vessel and I do not understand where it might have come from.

At this point it is appropriate if I make some remarks about the state of the evidence in this case. The Court remains somewhat in the dark, not only about the incident but about the environmental harm it might have caused. The prosecutor filed no evidence of actual harm nor of the potential for harm, nor the extent of such potential. The defendant filed no evidence of how the oil may have escaped or any explanation of why it may have escaped. There was no evidence in an admissible form as to the background of the defendant shipping company. There was no direct evidence of contrition on behalf of either of the defendants.

This is a case where there has been a plea of guilty. That plea is an admission on behalf of both defendants of the elements of the offence in each case. The defendants come to this Court expecting to receive some punishment for the commission of an offence and the prosecutor comes to this Court expecting that a fine of some magnitude will be imposed. But the Court remains completely in the dark about matters which would assist the Court in determining the appropriate penalty.

I am acutely conscious of costs in litigation and I understand that the preparation of matters in hearings before the Court are costly. Nonetheless, when both parties come to Court expecting, in the case of the prosecutor, the imposition of a penalty, and in the case of the defendants, some mitigation of the penalty that might otherwise be imposed, then I think it is incumbent upon the parties to furnish evidence that would assist the Court in that regard. They have not done so.

I turn now to each individual defendant. The shipping company, the corporate defendant, MISR Shipping Company, faces a maximum penalty of $1.1 million. In its favour and by way of mitigation I take into account that the amount of the spill was relatively small. I also take into account that there was no evidence of actual or potential harm, and that it has agreed to pay the clean-up costs incurred by the Port Corporation. The amount of those costs, as I understand from Mr Sexton SC, who appears on behalf of the defendants, has not been finally agreed, but it is in the vicinity of $11,800.

There was, as I have said, no direct evidence from either of the defendants, but I accept that the defendant shipping company has no prior convictions.

It is usual in these cases to take into account in mitigation firstly co-operation on behalf of a defendant and secondly contrition. In this case I have no real evidence of co-operation. All that the defendant shipping company did was, through the master of the vessel, to answer some questions. I cannot see what methods it has put in place to avoid any future occurrences of this nature, or indeed, as I have said, I have no idea how the incident occurred at all. As to contrition, I accept a statement made on its behalf by its counsel Mr Sexton, that the defendant shipping company is contrite, but I have no direct evidence of contrition.

In these circumstances I consider that a penalty of $60,000 is appropriate. I am however required by s 22 of the Crimes (Sentencing Procedure) Act 1999 to take into account an early plea of guilty and I do so. I think it is appropriate in view of that early plea of guilty to reduce the penalty to $50,000.

I turn now to the master, Captain Hassan. The master faces a maximum penalty of $220,000. Mr Sexton on his behalf suggested to the Court that it should apply s 10 of the Crimes (Sentencing Procedure) Act and not proceed to a conviction in his case. There was some debate during argument as to the applicability of s 10 in cases such as these which deal with environmental offences. I am not prepared to accept that s 10 could never be applied in such a case, but in this case it is inappropriate because there is simply no evidence of the matters which would sustain its application. Section 10(3) provides that in deciding whether to make an order under s 10 the Court is to have regard to the following factors: the person's character, antecedents, age, health and mental condition. I know nothing about those matters except the evidence from Mr Norman Sadd, a marine surveyor, filed on behalf of the defendant, which states that Captain Hassan has been employed by the defendant shipping company since 1987 in various capacities and has been a master from 10 September 1998 to the present.

Another factor to take into account in the application of s 10 is the trivial nature of the offence. In my opinion, this offence is not trivial. It involves a discharge of oil into water. That is a serious environmental offence. The amount of discharge was relatively small, but nonetheless I do not consider the offence to be trivial.

The Court is also entitled to take into account the extenuating circumstances in which the offence was committed. No evidence of any extenuating circumstances has been furnished to the Court.

I accept that there is no evidence of personal fault on behalf of the master of the vessel. But the master of the vessel bears the responsibility of the incident. That is clearly indicated by s 8(1), which provides that the master may be prosecuted where any discharge of oil occurs from a ship into State waters.

I think it appropriate therefore to impose upon the master, Captain Hassan, a penalty of $5,000.

My orders therefore are as follows: In matter number 50003 of 2001: (1) The defendant is convicted of the offence with which it is charged. (2) The defendant is fined the sum of $50,000, to be paid to the Registrar of the Court within one month of this date. (3) The defendant must pay the costs of the prosecutor in accordance with s 52 of the Land and Environment Court Act 1979. (4) The exhibits may be returned.

In proceedings 50004 of 2001: (1) The defendant is convicted of the offence with which he is charged. (2) The defendant is fined the amount of $5000, to be paid to the Registrar of the Court within one month of today's date. (3) The defendant must pay the costs of the prosecutor in accordance with s 52 of the Land and Environment Court Act 1979. (4) The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171 No 50003 of 2001 PROSECUTOR Hoogendoorn

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