Defence submissions
167Mr Nell's written submissions dealt with the following issues, in turn - environmental harm, the relevant sentencing considerations, the owner's submissions on liability and on penalty, and submissions made on behalf of the Master, including his application for a s 10 order.
168In terms of environmental harm:
169The defendants accept that, between 1030 and 1400 hours on 25 August, their ship pumped 72,000 litres of oil from its No 6 ballast tank into the waters of Newcastle port adjacent to Berth K4 (par 22).
170They acknowledge (in par 23) the evidence as to the spread of the discharge "over a large area" (T13.6.13, p15, L41), but especially in the area of berths K2, K3, K4, and K5 (Tp15, L36), with "some" oil on the other side of the river, opposite K4 and K5, "some further down that side of the river", "some down towards the entrance to the port", and some "travelling up the north arm" (pars 24-27, and Tp15, LL34-50).
171They do not "downplay ... a large quantity ... spread within the port", with "a varying range of contamination within different areas within the port, extending over ... a large area but not the whole of that large area" (T13.6.13, p16, LL7-8, and LL3-5).
172They acknowledge also that it took ten days to clean-up the "priority one" area, and five weeks (c.f. [162(4)] above) altogether, but that there would be "some residual harm thereafter", but not for an "extended" time (T13.6.13, p16, LL29-33). Two years after the event, the damaged areas had "largely recovered" and looked good (Tp17, LL1-3).
173The defendants acknowledge that the presence of HFO in the water is "likely to have some impact on organisms in the water", but there is no evidence of any such impact, its extent, its "lasting" character, or its significance (see par 34, T13.6.13, p16, LL22-27, and p17, LL5-12).
174Evidence of actual environmental harm, it is submitted, is confined to the effects of oil on the Spit, conceded by Mr Nell to be an ecologically significant area, albeit that the oil was confined to the southern end of the National Park on the east bank of the Hunter, and was present after the deployment by the prosecutor of a boom. That deployment occurred only after oil had passed through the entrance channel, into the lagoon (ASF 15, 19, 22, 23, and 27, Scanes p82, subs pars 37-38, and T13.6.13, p18, L13-p19, L5.).
175That harm consisted of (subs pars 39-46):
(a)oil contamination of pelicans
Approximately 40-50 pelicans were oiled, and 32 required intensive care and rehabilitation for up to two weeks. Migratory birds do not arrive in this area until October, and the clean-up avoided more serious outcomes (ASF 24 and 25, set out in [43] above).
and
(b)oil spotting of protected saltmarsh and mangrove vegetation
Light oil spotting was observed on protected salt marshes and mangroves, necessitating their removal so as to minimise possible harm to the pelicans and migratory birds.
The pruning of oiled foliage, as part of the clean-up, damaged the plants, but not the long-term health of the salt marsh, and there is no evidence of adverse impact on the mangroves (ASF 24-26 - in [43] above).
and
(c)contamination of invertebrate animals on mudflats (ASF 27)
The only evidence of such an impact is the observation of oil on snails and in crab holes. Other "ground dwelling organisms" would have been removed/killed by the clean-up (Scanes par 71), and there is no more precise evidence of this harm, and no evidence of any substantial or long lasting impact.
and
(d)the production and disposal of oil contaminated waste (Scanes, par 76)
The only evidence in respect of this is Scanes's observation of waste, and Mr Nell submits (pars 45-6):
Whilst the fact that the impact of or harm caused by the discharge occurred in areas of ecological value meant that the harm was ecologically significant, there is nevertheless no evidence that the actual impact or harm was in fact significant or lasting.
Indeed, according to Dr Scanes, the extent and duration of the harm was minimised as a consequence of the rapid action taken to clean up the oil. Oil persisted on the Stockton Sand Spit for 10 days. On low priority parts of the shoreline, it remained for up to 5 weeks.
176Finally, on harm, Mr Nell submitted (pars 47-8):
Cpt Howes inspected the wetlands on 30 August 2010 and observed evidence of the discharge and cleaning that had been carried out and which was still in progress. At the time of his inspection, the amount of oil pollution was not extensive. Cpt Howes inspected the wetlands again on 21 August 2012, and found the foreshore to be pristine, the water to be clear, mangroves and foreshore flora healthy and abundant wild life.
Had the discharge not been contained and cleaned up, it had the potential to have a greater impact on the environment, in particular in the respects identified in ASOF paras. 24 and 29. But no such actual harm occurred. The potential for this further harm was avoided by the clean up operation that was carried out, and the absence of the international migratory birds at that time.
177Addressing the sentencing considerations enumerated in relevant provisions of the CSP Act, Mr Nell relied on the following items of s 21A(3), in terms of mitigation (c.f. my list of items in [119] above):
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
...
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
...
(i) the remorse shown by the offender for the offence...
...
(k) a plea of guilty by the offender (as provided by section 22),
...
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
178He also relied on the guilty pleas, and the earlier admission of liability, made well before the summonses were issued.
179He also addressed (subs par 57, and T13.6.13, p19, LL11-39) the question of how the court should approach the 2002 dramatic increase in the maximum statutory penalties for this offence. He submitted that the fact of such an increase "does not per se justify an automatic" multiplication of the penalties the court would have imposed for an offence "before the increases". He pointed the court to Cabonne (see [139] above), and, in particular, also to three marine pollution cases heard since 2002: Filipowski v Vopak Terminals Sydney Pty Ltd ("Vopak") [2006] NSWLEC 104, at [123]-[125]; Defence Maritime at [60], and Hemina at [16].
180Mr Nell submits that (1) neither defendant had, prior to the spill incident, any warning or indication of the possible existence or development of the offending hole, or any reason for concern, such as would give rise to a need to open a hatch to check inside the No 6 tank, and (2) there is no evidence that they failed to sound it before de-ballasting on the 25th (T13.6.13, p24, LL13-22). If Mr Czech's theory or opinion is to be accepted, the rust-nib would suddenly "pop" out, leaving such a hole, which is not readily observable, even from inside the tank.
181There was no cause for inspection to be made prior to 23 August 2010, because:
(1)the vessel was "in Class", having completed its five-yearly, very comprehensive Special Survey only in September 2009, and plate thicknesses were measured in June 2009, with diminution found to be well below the maximum allowable;
(2)the annual Class Survey was conducted in Hong Kong on 1 June 2010, soon after the Master assumed command, and it revealed no cause for concern; and
(3)the vessel's planned maintenance and inspection system includes routine inspection of all ballast tanks annually, although some companies inspect six-monthly.
182In regard to (3), Mr Nell submits (T13.6.13, p19, LL45-8) that there is no suggestion that the offending hole in the tank wall resulted from any lack of maintenance, and no evidence of any prior warning or indication of its existence. He also submits (pars 71-73) that the experts' agreement that a "highly prudent" Master or owner might check the ballast tank more frequently than annually is "not the appropriate test, either generally or for this vessel".
183Annual inspections were described in the expert evidence as "appropriate, usual and proper practice", and Mr Nell submits that they are "appropriately adequate" (T13.6.13, p20, L9). There was (LL23-6) "nothing to suggest ... either any more frequent inspections or ... an inspection on 23 August ... as a matter of or in accordance with good shipping practice".
184Greater frequency of inspections would depend on the condition of the tanks as surveyed, the circumstances of their use, and the likelihood of their being damaged. In the present case there were no grounds for such concern or suspicion. In any event, there had been an "extra" inspection on 27 February 2010, which reported nothing which would raise concern or suspicion.
185Magdalene was a little over 20 years old at the time of the discharge, but, while age and lack of use of the ballast tank are relevant factors to consider, in terms of what to expect of a highly prudent Master or owner, Mr Nell submits that age "is not of itself a factor ... that should call for more frequent inspections or ... an inspection any time you are going to use the ballast tank" (T13.6.13, p20, LL48-50). As the experts noted, the Master or owner "can order an inspection at any time they have concerns with a tank, such as the time since the tank was last used" (T13.6.13, p21, LL7-8).
186In all those circumstances, Mr Nell submits (par 76) that the failure to order an inspection prior to ballasting on 23 August 2010 was "not a failure to comply with proper practice".
187In his oral address, Mr Nell submitted (T13.6.13, p26, L5 to p27, L5) that the court should accept Quinlan's evidence that, although "clearly foreseeable where you have adjoining tanks", "the contamination of ballast water by fuel is a rare event ... and ... generally an unexpected event", and, therefore, although "one should take steps to avoid it", there is no necessity to adopt a "counsel of perfection ... whereby every time you operate a ballast tank, or operate a ballast tank where it hasn't been used for some unspecified period of time", the owners should instruct the crew to, or the Master should, routinely open the hatch to inspect the tank. All that is required is "compliance with the ordinary standards of practice or good practice".
188Neither owners nor crew were aware or suspicious of the presence of oil in the ballast tank, and there is no "evidence to suggest that they ought reasonably to have been aware of" it (T13.6.13, p23, LL17-18). The fitting and use of perforated sounding pipes are neither a Class requirement nor a statutory rule.
189As Quinlan opines, the air ventilator system is not designed for use to check the volume of the tank, and there is no evidence that it is normal or proper practice. There was nothing to raise concerns about the normal sounding system, or to raise any suspicion of contamination by oil. Mr Nell submits that there is no evidence that a manhole check should have been done in this case - even Michaels described it as a "last option" (see T13.6.13, p23, LL15-42). "The evidence ... doesn't suggest that that was either good practice or common accepted international practice" (T13.6.13, p23, LL45-6).
190On the question of watch-keeping, Mr Nell's written submissions accept the obligation on the crew to maintain a good watch, especially during cargo operations. The officer responsible for the de-ballasting (par 86) "will occasionally look over the side" to check the eductor system, but such a system can be left unattended, and in the present case it would initially discharge water. Mr Nell concedes, however (in par 87), the experts' view that "with a more vigilant watch, the discharge would have been detected earlier".
191In his oral submissions, he relied on Quinlan's comments that he would expect an officer to observe the commencement of the pump-out operation, and, "if it looks all right at the beginning", then go off to "his other duties", (T13.6.13, p12, LL36-7). The officer of the watch has other things to do (p14, LL7-9). In any event, there would be limited visibility over the port side (p14, LL23-30).
192In his oral closing submissions regarding the watch issue, Mr Nell noted (T13.6.13, p31, LL5-10) the prosecutor's submission that any failure in that respect should be visited upon the owner, and not the Master, whereas the failure to inspect can be blamed on both of them. He later returned to the question (p35, L35), and noted (LL41-4) that (my emphasis):
There was a watch, your Honour will recall the record of interview records and also the joint expert report records that the second officer and third officers were the deck officers on watch, the joint expert describes them as qualified personnel.
193In terms of the adequacy of Magdalene's watch system, Mr Nell noted (Tp36, L41-p37, L15) that there may have been a lack of "express or explicit" commitment to the need for "good watch keeping" in the ship's operational procedures (there being no manual, or evidence of one, before the court), but also that there "would be no basis upon which [I] would find that there was no system to ensure that a watch was kept on the particular day". Mr Nell submitted that this adequacy question had to be considered in light of the uncertainty as to when the oil began to flow into the water during the relevant period.
194In his oral closing submissions, Mr Nell made the following additional comments on liability (T13.6.13, p37, L47 - p39, L5):
Your Honour can't draw any findings particularly beyond reasonable doubt as to what is a proper system, what is the proper practice and whether in the circumstances that proper practice would have as is suggested resulted in discovery at an early stage and without that damage.
...
...the officer on the watch nonetheless has regard to the marine environment and if he sees something that's affecting the marine environment he would deal with it but what the experts say is we are surprised and if a more vigilant approach had been taken we would have expected it to be detected, not a proper system but a more vigilant and that's in our respectful submission along the same lines as the highly prudent master or ship owner.
...
...we don't accept that your Honour can make a finding that had either compliance with what Mr Michaels suggested is proper practice taken place it would have had that effect of discovering it at an earlier stage without significant environmental damage.
...
...the mere fact that we could have had an AB standing directly above the outlet watching the whole time which may have been a simple and cost effective thing is not a factor that ought be considered against the defendants in the same way as the inspection of the hole.
195Mr Nell's written submissions then deal with contrition (par 88), record (89), post-spill repairs and other actions (90-3), and clean-up (94), before dealing with the question of environmental harm (95-6, but see also earlier pars 34-48, and [168]-[176] above).
196In the next two paragraphs of his written submissions (pars 97 and 98), Mr Nell named 14 marine pollution cases. He referred (in 97) to four cases which he noted were dealt with under the regime of increased penalties applicable to the present matter. All of them were heard since 2006, and the sizes of the spills involved ranged from 5 to 124 litres.
197He went on (in par 98) to identify ten other cases, the discharges in which he described as in the "medium to upper ranges" of seriousness. In contrast to the scaling adopted by the prosecutor (see above), Mr Nell's ten cases covered spills which involved volumes from 140 to 294,000 litres.
198While I will return to relevant cases, in the "consideration" section of this judgment ([205] below), I should note here that Mr Nell's written submissions do not identify the types of polluting liquid involved in the 14 cases to which he referred, and he draws no conclusions, for the court, from the two lists. However, in the ten cases (in par 98), dealt with between 1995 and 2005, and the volumes involved, in decreasing order, were 294,000 litres (D'Amato), then 3,343 litres (the second largest volume involved), 500 litres (in each of 2 cases), and 140-200 litres (in the other six matters in the list of ten).
199Mr Nell concedes (par 99) that Magdalene's is a "significant" spill, but he notes that it involved only 25% of the volume of oil in D'Amato.
200Mr Nell submits (par 101): (a) that the actual damage here is "no greater" than in D'Amato, (b) that the owners took adequate measures to guard against oil escaping into the ballast tank, and were not guilty of either negligence or conduct inferior to "proper practice", (c) that the discharge in the present circumstances was "rare and unexpected" ([187] above), and so (d) that the circumstances of this discharge "are no more culpable", and indeed are "less" culpable, than in D'Amato, rendering this (par 102) "a less serious and substantial offence".
201Turning to the relevant subjective considerations, Mr Nell submitted that the defendants' early admissions and early pleas had major "utilitarian benefits" in terms of the prosecutor's costs and expenses in proving the charge (par 103), and should attract the "discount of 35% to 40% usually afforded in recognition" of such factors. Discounts of 35% were found "appropriate" by Spigelman CJ in Thomson/Houlton (at [162], quoted in [125] above). In the present case, significant admissions were made very soon after the incident, and well before any proceedings were commenced (ASF 32-4). Mr Nell suggested, during his oral submissions (T13.6.13, p30, LL20-25), a discount "in the order of 35 to 50% including other exculpatory factors".
202On the question of contrition, Mr Nell rejected the prosecution suggestion that the contrition expressed by both Czech and the Master "should not be given perhaps its full effect for a number of reasons" including their failure to modify the sounding pipes or sounding procedures. He submitted that, as they took steps to "remedy the hole ... and ... make sure that the problem didn't happen again", their statements of contrition and remorse should be given "full effect" (T13.6.13, p24, L44-p25, L35).
203The early attention to conducting repairs in a "two stage process ... does not detract from" the defendants' desire to prevent a recurrence, even if there were other economic considerations involved (T13.6.13, p27, LL26-33).
204In terms of Mr Nell's submissions seeking a s 10 order in favour of the defendant Master, I note his reliance on:
(1)the points he put in mitigation, on behalf of the owner (see, generally, [177]-[202] above);
(2)the Master's:
(a)assumption of command shortly prior to the ship's Annual Class Survey,
(b)lack of direct involvement in, or direct responsibility for, the ship's cargo and de-ballasting operations at the time the discharge occurred, those functions being the responsibility of the Chief Officer (who has not here been charged),
(c)appropriate reliance on other "duty officers" to maintain appropriate watch,
(d)extensive cooperation with the prosecutor, and his general frankness at interview,
(e)exemplary record 1989-2010,
(f)expressions of regret and apology for the discharge and any resulting damage,
(g)early admissions and plea, and
(h)justifiable concern about the consequences of a conviction;
(3)the failure of the prosecutor to identify anything he could have done to avoid either the leak or the discharge; and
(4)the lack of any "public purpose" to be served by recording a conviction against him, or imposing a penalty on him, in addition to any admonition of, and any penalty imposed upon, the owners.