and
"… the offence … involved an obvious element of carelessness by the ship's crew in leaving open the starboard scupper."
84 His Honour fined the owner $20,000 and the Master $10,000 for this discharge described by his Honour as "at the very low end of the spectrum of seriousness."
85 In Leighton v Office of Marine Administration (supra) the owner, the Master and the Third Mate were charged. Oil escaped via a vent pipe from a water ballast tank. At the time the Third Mate was filling a heeling tank with ballast. The ultimate cause was due to the wasting, and presence of a hole, in a ballast pipe. The quantity discharged was between 1.5 and 2 tonnes.
86 At trial, Bignold J had found the charges made out. His Honour refused to apply s556A and sentenced all the defendants. Although the Master had had an unblemished prior record, he was fined $10,000. It was from this that the Master appealed.
87 Ireland J, a judge with considerable personal knowledge of the merchant marine and with whom Gleeson CJ and Bruce J agreed, said:
"With respect to the appellant, it was submitted that having regard to his prior unblemished seafaring record throughout his career, he also should not be the subject of penalty. …
Notwithstanding the mitigating factors to which he made reference, his Honour was firmly of the opinion that the offences charged in this case were so serious and the circumstances of their commission so grave that convictions in respect of the offences committed by both the owner and the Master were undeniably justified."
88 His Honour discussed the relevant case law and concluded:
"This is not a case in which a statutory offence has been established in the absence of knowledge on the part of the Master of a vessel of circumstances which could give rise to the offence unless properly attended to. Unfortunate as the consequences of the imposition of a penalty are to a person of unblemished record in the position of the appellant, in my view it could not be said in the circumstances of this case that the failure on the part of the learned sentencing judge to exercise the discretion available to him not to proceed to conviction by exercise of the powers available under s556A of the Crimes Act miscarried."
89 In Filipowski v Ryong [1998] NSWLEC 63, 500 litres of soya bean oil was discharged into White Bay. About 98 percent of the soya bean oil was recovered. No environmental harm ensued from the discharge and Sheahan J placed the discharge in a "less serious" category of case. The owner was fined $50,000 and the Master $25,000. His Honour said that the two Defendants were "not entitled to the benefit of s556A". It should be noted, however, in this case that the Defendants, the owner and the Master, did not respond to the service of process and the proceedings were conducted ex parte.
90 Filipowski v De Ocampo [1998] NSWLEC 119, involved a spill of fuel oil from a vessel, the Stolte Otome, berthed at Kurnell. The Stolte Otome was bunkering 60 tonnes of diesel bunkers. Prior to the load being finished, one of the bunkers overflowed the ship's starboard diesel tank. The Chief Engineer asserted that the ship had already received 60 tonnes, but the tank gauges on the delivery tank showed that only 50.5 tonnes had been delivered. Most of the oil that had overflowed onto the deck was mopped up, however, about 20-30 litres of oil overflowed the side of the ship and spilled into the waters of Botany Bay. After the immediate clean up operation, the oil was dispersed; there was no evidence of any oil on the water (or of any environmental harm) later that day.
91 Lloyd J found the reason for the discharge was that either the crew did not adequately monitor the rising level of fuel in the recipient tank, or they did not direct the shore base loading personnel to stop the delivery of fuel oil in sufficient time to avoid the spillage. His Honour said that the responsibility for the spill "lies on those receiving the fuel oil to ensure that the receiving tank does not overflow" (at [25]). Both the owner and the Master pleaded guilty; the Chief Engineer did not. However, since the Chief Engineer admitted that he was on duty supervising the bunkering operations at the time, his Honour was satisfied that the Chief Engineer was a person whose act "caused the discharge" (s8(1)) and was also guilty of the offence.
92 Lloyd J noted that the owner had not previously been charged with a pollution offence. His Honour compared the penalties imposed on owners in relation to similar cases "of a minor oil spill" and said that having regard to the circumstances of the case, it should be fined $30,000.
93 However, in relation to the Master, his Honour noted that the Master "was not on duty when the incident which gave rise to the present charges occurred. He had apparently left the chief engineer in charge of the bunkering operation" (at [26]). When the alarm sounded the Master proceeded to the deck and took command of the crew in relation to the clean up operation. The Master had been at sea for 18 years and never previously been involved in an oil spill. Lloyd J said:
"In light of all these facts, to go further and punish the master for the same oil discharge incident, where the mere fact that the basis for his liability under s8(1) of the Act arises by dint of his status would, in this instance, be an excessive response.
Accordingly, I accept Mr Williams' submission that the court should exercise its discretion under s556A of the Crimes Act 1900 in favour of the master. This approach is consistent with the approach to penalty adopted by Bignold J in Morrison v Peers … and in Morrison v Dilmun Navigation … although the facts in other cases need not necessarily call for the same approach." (at [26]-[27])
94 The Chief Engineer, whom his Honour found was the person whose act caused the discharge, was fined $10,000.
95 In Filipowski v Esar Bunkering Group Ltd (Lloyd J, 17 November 1998, unreported) both the Master and the owner pleaded guilty to an offence under s8(1) of the Act. The circumstances of the case were that the Esar Sydney, a bunkering barge, was berthed unattended at Brotherson Dock at Port Botany. While berthed, there was a discharge of oil into the waters from the vessel. This happened on 26 January 1997. The discharge was not discovered until 29 January 1997. At that time, it was cleaned up satisfactorily and there was no evidence of any environmental damage as a consequence of the incident.
96 The discharge occurred because one of the scupper plugs had been left in the inboard position. Rain which fell while the vessel was unattended flowed into the slop tank instead of overboard. The slop tank filled and the bunded area of the vessel overflowed and oily water in turn overflowed onto the waters at the dock. It was estimated that the quantity of oil spilled was small and that the discharge was a light sheen covering less than 100 square metres. There was no evidence of any environmental damage.
97 At the time of the incident, the owner had a set of standing operation instructions ("marine standing orders") which contained maintenance and operating instructions of a general nature. They did not refer specifically to the operation of scupper valves. Nevertheless, it was asserted by the owner's general manager that written instructions were given to all crew specifically instructing them that the scupper valves were to be left in the overboard position when the vessel was unmanned and in the slop tank position when work was being carried out.
98 After the incident, the scupper valves were reconditioned and a sign was placed adjacent to each stating that they were always to be locked in the overboard position when the vessel was unattended.
99 The owner had a prior conviction. (The circumstances of that previous conviction were similar in that a scupper valve had been left in an inboard position which caused an overflow of oily water into Berry's Bay.) His Honour said that whilst the maximum penalty should be reserved for the worse case of offence, "a repeat offender should not obtain the leniency which might otherwise be afforded even in a case involving a small discharge without any environmental damage" (at [13]). His Honour fined the owner $50,000.
100 The factors in mitigation argued in respect of the Master were that it was his first offence, the incident rose out of an "inadvertent incident" and that there was no evidence that the Master was personally aware that the valve was in the wrong position. Lloyd J referred to the passage of Allen J in Vale v Morrison referred to above and which was also quoted by Talbot J in this case. His Honour then said:
"In applying what was said by the Court of Criminal Appeal in Vale above, I also take into account the evidence of Mr Green [the general manager], to which I have referred in paragraph 8 above: the Master is the person responsible for pollution prevention and it is his responsibility to check that the scupper valves are turned to the outboard position rather than the inboard position when the vessel is to be left unattended. In my view, these considerations lead to the conclusion that the Master should not receive any special leniency. It was his responsibility to check the valves when the vessel was to be left unattended. I can only conclude that he did not do so." (at [16])
101 The Master was fined $20,000.
102 Filipowski v Terminals Pty Ltd (1999) 105 LGERA 165 was a decision of Pearlman J. Nonyl phenol was discharged into Botany Bay during the unloading of a vessel. A stainless steel ball valve on the pressure relief line had been left open. The amount discharged into the water was less than 40 litres.
103 The owner and an employee were charged; both pleaded guilty. In relation to the s556A argument, her Honour said:
"I do not think that this is an appropriate case for the exercise of the Court's discretion. First, the application of s556A is rare, especially in cases concerning environmental offences: see Morrison v Peers …
As to Mr Ethell, I take note that, in some marine pollution cases, the master of the vessel has sometimes been given the benefit of s556A. But this is not a case of indirect responsibility such as may pertain in the case of a master. Mr Ethell was the only person from Terminals on the wharf platform at the time of the spill, and he was directly responsible for the operation of the apparatus from which the discharge emanated. I can discern no extenuating circumstances which would justify dismissal of the charges against him." (at [73]-[74])
104 The case on which the Appellant placed particular weight was the decision of Talbot J in Fratelli D'Amato (supra), that case concerned a very large spill of oil which occurred into the waters of Gore Bay on 3 August 1999. That discharge took place while cargo was being unloaded to the Shell Oil Terminal in Gore Bay. It went unobserved for at least 25 minutes and 294,000 litres of Murban oil escaped into the Bay. The ship owner, the Master and the Chief Officer were charged. All pleaded guilty.
105 The spill occurred due to the failure to carry out proper tests on particular valves, sea chest valves, on the sea suction line. The sea suction line permits water to be pumped into the cargo system, for example, to provide extra ballast. In this operation, it was a supplementary line to the cargo pipeline system and was being used as a cargo cross-over line.
106 It was the failure of the Chief Officer to carry out a proper and adequate test of the sea chest valves before engaging in the sea cross-over line that allowed the oil to be discharged.
107 Talbot J, in relation to the owner, said:
"The Court recognises that a company must rely almost entirely upon the capability and diligence of its employees. In the case of a shipping company, the extent of delegation and trust is essentially remote in the sense that direct control over every day actions and decisions is not possible. That is not to say, however, that the company is entitled to abdicate its responsibility so far as it extends, particularly in relation to the provision and maintenance of appropriate directions in regard to protocol and procedure." (at [115])
108 His Honour said that at all relevant times the Master (the Captain), the Chief Officer and other crew members were severally responsible for the management and functions of the ship. In particular, it was the responsibility of the Master to oversee the total operation. However, the Chief Officer:
"…had direct and immediate responsibility for the management of cargo handling, including the operation or decisions relating to the use of the various lines and valves within the ship.
The system broke down when procedures that fell within the ambit of the Chief Officer were not followed. The Court is satisfied that the Chief Officer was performing a function he was employed and authorised by the agent of the owner to carry out. The failure to perform that function in a proper manner is therefore attributable to the owner as the ultimate employer … ." (at [122]-[123])
109 The owner was fined $510,000. As to the Chief Officer, he acknowledged that although he reported directly to the Master on a day-to-day basis, and the Master is in overall charge of the ship, the Master has no practical role in pumping and transfer operations. The responsibility for opening and closing the valves rested with either the Chief Officer or the Chief Mate. Talbot J said that though he had acknowledged his error and pleaded guilty, he was directly responsible and accordingly he was fined $110,000.
110 According to Talbot J, the situation of the Master was different. He was not directly involved in the process of unloading cargo, although he was monitoring the activity on board at the time. The Court accepted that he had no direct responsibility for the operation of the sea valve. His Honour said:
"The most that can be said against the Master of the ship is that he had a responsibility to ensure that safety procedures were followed in all respects of the tanker's operation. …
The prosecutor asserts that the Captain is nevertheless responsible to see that the Chief Officer carries out his tasks correctly, including the necessary tests of the sea chest valves. …
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 has 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." (at [134], [135] and [137])
111 It was this last passage which the Appellant asked Talbot J to apply in the present case. In the judgment of Talbot J in this case he distinguished his earlier reasoning by saying that in Fratelli D'Amato both the owner and the person actually responsible were convicted and heavy penalties were imposed on them.
112 In Fratelli D'Amato, his Honour concluded with regard to the Master that having regard to the whole of the circumstances surrounding the event and its cause "and after taking into account the respective duties of the Master of the ship and the Chief Officer" he was satisfied that it would not be appropriate to convict the Master and that the offence, while proved, should be dismissed under s556A of the Crimes Act.
113 My review of the authorities indicates that the Court has consistently stated that there is no practice for a "blameless" Master to be discharged without conviction, whenever the company is convicted (Morrison v Dilmun at 260; Morrison v Ausmarine at 447; Valle v Morrison at 11). Each case requires the exercise of a discretion on the basis of the whole of the circumstances.
114 No pattern of sentencing has been shown to exist with which the judgment of Talbot J in this case can be said to be inconsistent in any relevant sense.
115 The authorities indicate that the Master is not discharged under s10 in cases where the discharge has been caused by a failure in the operations on board, save where another senior employee with direct responsibility has been convicted.
116 The present case is distinguishable from those where the discretion has been exercised in favour of a Master. In Morrison v Peers and Morrison v Dilmun the discharge was not caused by any error on the part of the crew - in the first case the gasket became loose, and in the second a gasket blew. In Morrison v Spliethoffs the Master had joined the ship very recently and knew little about the ship's machinery which proved defective. In Morrison v Kingston Marine Pearlman J also relied on the absence of any reason to suspect the defect in the equipment.
117 As noted above, the Appellant placed particular reliance on the decision in Fratelli D'Amato. As to his Honour's way of distinguishing the present case, (namely that in Fratelli D'Amato both the owner and the person actually responsible were convicted and heavy penalties imposed on them), the Appellant submitted:
"It is odd that Captain Thorneloe has been convicted and fined because the prosecutor failed to prosecute the person really responsible."
118 In Fratelli D'Amato, the Chief Officer was prosecuted on a different basis from the owner and Master in that case, or in this. The owner and Master were not accused of culpable conduct in either case. The Chief Officer in Fratelli D'Amato was, however, charged with "causing the discharge". In the present case the discharge was the combined effect of two acts: the negligence of the Chief Officer, which caused the release of oil onto the deck of the ship, and the negligence of an unidentified seaman, which caused the discharge into the harbour.
119 By s26 of the Act, s27 applies to a discharge "into State waters". The liability of the Chief Officer on the basis of "causing the discharge" was at best problematic. His act did not directly lead to a discharge into State waters. The seaman was not identified. I do not suggest that these facts could not constitute an offence on the part of the Chief Officer. However, it is understandable why he was not charged.
120 In the present case, Talbot J expressly distinguished his own decision in Fratelli D'Amato on the basis that in that case the person who was actually responsible for the discharge was convicted and charged. This was also regarded as a relevant factor by Lloyd J in Filipowski v De Ocampo.
121 In Morrison v Che Mat Sheahan J found that the liability of the Chief Officer was not sufficient to discharge the Master in that case. Nor was the liability of the Third Mate in Leighton v Office of Marine Administration. Each case will turn on its facts. However, in my opinion Talbot J was entitled to distinguish his own earlier decision on the basis that a person on board the ship, with more direct hands-on responsibility than the Master, had been convicted in that case.
122 No relevant inconsistency has arisen. This ground of appeal should be dismissed.