Filipowski v Mediterranean Shipping Company SA and Ors. [2005] NSWLEC 159

Land and Environment Court of New South Wales

CITATION : Filipowski v Mediterranean Shipping Company SA and Ors. [2005] NSWLEC 159

PROSECUTOR: Filipowski

PARTIES : DEFENDANTS: Mediterranean Shipping Company SA and Ors.

FILE NUMBER(S) : 50061, 50062, 50063 of 2003

CORAM: Bignold J

KEY ISSUES: Environmental Offences :- Marine pollution-pleas of guilty-mitigating factors.

Marine Pollution Act 1987, s 8 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 10

Morrison v Peacock (2002) 210 CLR 274; CASES CITED: R v Olbrich (1999) 199 CLR 270; R v Storey (1998) 1 VR 359

DATES OF HEARING: 20/10/2004

DATE OF JUDGMENT: 04/11/2005

PROSECUTOR: Mr A Hill, Barrister SOLICITORS Dibbs Barker Gosling

LEGAL REPRESENTATIVES:

FIRST TO THIRD DEFENDANTS Mr P Mansfield, Barrister SOLICITORS James Neill

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

11 April 2005

50061, 50062 and 50063 OF 2003 BARBARA FILIPOWSKI v MEDITERRANEAN SHIPPING COMPANY SA; MARIO STIFFA; SLOBODAN SAVIC

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 These are three related prosecutions for offences against the Marine Pollution Act 1987, s 8 which by consent were heard together, relating to a discharge of oil into the waters of Botany Bay that occurred from the vessel "MSC Viviana" on 1 December 2001. The charges are brought against the first Defendant as the owner of the vessel, against the second Defendant as the Master of the vessel and the third Defendant as the crew member (the Third Mate) whose act caused the discharge to occur. 2 All three Defendants have pleaded guilty to the respective charges and by consent the hearing on penalty embraced all three charges. 3 The three offences are created by s 8 of the Marine Pollution Act 1987 which at the date of the admitted offences was in the following terms: Prohibition of discharge of oil or oily mixtures into State waters (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) Subsection (1) does not apply to the discharge of oil or of an oily mixture from a ship: (a) for the purpose of securing the safety of a ship or saving life at sea, (b) if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of oil or oily mixture, as the case may be, (c) in the case of an oily mixture, if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by a prescribed officer, or (d) if the discharge was authorised by the Minister for training purposes. (3) For the purposes of subsection (2), damage to a ship or to its equipment shall be taken to be intentional damage if, and only if, the damage arose in circumstances in which the master or owner of the ship: (a) acted with intent to cause the damage, or (b) acted recklessly and with knowledge that damage would probably result. (6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (4), subsection (1) does not apply in relation to the discharge. 4 It may be noted that subsequent to the commission of the admitted offences, the Marine Pollution Act 1987 was amended by the enactment of the Marine Legislation Amendment (Marine Pollution) Act 2002 (Act No 75) which came into force on 1 November 2002. The amendments (i) substantially increased the maximum penalties prescribed for the offences created by s8(1) (and other provisions); (ii) significantly reduced the scope of the statutory defence provided by s 8(2) relating to an oil escape "in consequence of damage to the ship or its equipment"; and (iii) re-defined the separate liability of the person (other than the ship owner or master) "whose act caused the discharge". 5 Although these amendments are not relevant to the present charges, it should also be noted that the decision of the High Court of Australia in Morrison v Peacock (2002) 210 CLR 274 (delivered one week after assent was given to the Amendment Act) reversed the decisions of this Court and the Court of Criminal Appeal by holding that the word "damage" in the formulation of the statutory defence meant "a sudden change in the condition of the ship or its equipment that was the instantaneous consequence of some event, whether the event was external or internal to the ship or its equipment". (This Court and the Court of Criminal Appeal had held that "damage" included damage by wear and tear.) 6 Although much of the evidence adduced by the Prosecutor was not in dispute and was included in summary form, in the Statement of Agreed Facts hereafter referred to, two facts remained in contest at the trial—namely (i) the amount of oil that was discharged into the waters of Port Botany; and (ii) the nature and extent of the culpability of each of the three Defendants for the oil discharge. 7 Because of these two areas of factual dispute, (which of course remained unresolved at the trial), the competing submissions on penalty diverged radically—with the Prosecutor submitting that the Court would find all three Defendants to be substantially and seriously culpable for a discharge involving some 200 litres of fuel oil and accordingly would impose significant penalties for the admitted offences, and with the Defendant submitting that the culpability of the Defendants in the commission of the admitted offences was insignificant and that only a small quantity of oil entered the waters that accordingly only modest penalties should be imposed upon the ship owner and the Third Mate and that the Master should receive the benefit of a discharge pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10. B. THE RELEVANT FACTS 8 The relevant facts comprise facts relating to the pollution incident that are not in dispute and are included in the Statement of Agreed and Contested Facts (Exhibit 2) and facts relating to the contested matters that I have earlier mentioned. 9 Additionally, there is evidence of an expert proffering opinions on the environmental consequences (both actual and potential) of the oil spill. 10 The undisputed facts summarise the several eye witness statements or affidavits that were tendered in the Prosecution case. Since the Defendants do not contest these facts, it is sufficient that I record here those undisputed facts according to pars 2 to 30 inclusive of Statement of Agreed Facts (Exhibit 2):- The Incident 2. At 0004 hours on 1 December the MSC Viviana was all secure at the No. 2 Berth Brotherson Dock, Port Botany, starboard side. 3. At approximately 2130 hours on 1 December 2001 Mr Ronald O'Neill, Team Leader, Patrick Stevedores, and Mr Michael Pellegrino, Straddle Driver, Patrick Stevedores were on board the MSC Viviana . At about that time Mr Pellegrino, whilst walking aft on the starboard side walkway (deck) saw behind him oil and water though it was more oil than water coming down the walkway towards him. The oil and water came along the walkway and over the edge of the ship, known as the fish plate, which is about 3 to 4 inches high and which runs around the side of the ship. The oil and water was observed by Michael Pellegrino to go over the edge of the ship, down her side and into the waters and onto the wharf. 4. Also at approximately 2130 hours on 1 December 2001 whilst on board the MSC Viviana Ron O'Neill saw, near the bridge, oil and water going across the deck and cascading over the starboard side of the MSC Viviana and into the water and onto the wharf. Ron O'Neill also observed the oil to be going over the ship's fishplate and also through her scuppers. 5. Mr O'Neill alerted the MSC Viviana's Duty Officer of the spill and his then superior Mr Todd Emmert. 6. When on the wharf, Mr O'Neill could see oil down the side and into the water. Mr O'Neill also observed a large thick area of oil on the wharf. 7. Todd Emmert, after being advised of the spill from the ship MSC Viviana contacted the Sydney Ports Corporation ( SPC ). 8. In an effort to assist in containing the spill fro the MSC Viviana Patrick Stevedores made use of two (2) men for six (6) hours and expended eight (8) twenty (20) kilogram packs of absorbent and fifteen (15) metres of absorbent boom. The oil on the wharf covered an area of thirty (30) metres long by three (3) metres wide, with a substantial amount of oil flowing into the harbour. 9. Mr Peter Bagnell, Shift Master, SPC, Mr Rider Graham-Emmerson, Port Officer, SPC and Mr Scott Joisce, Port Officer, SPC arrived at the No 2 Berth Brotherson Dock at approximately 2150 hours on 1 December 2001. On his arrival, Peter Bagnell observed patches of black oil between the MSC Viviana's starboard side and the wharf extending the length of the ship. The black oil observed by Peter Bagnell was coming down the starboard side of the MSC Viviana from each scupper in her deck coming from the No.3 forward heeling tank to the accommodation, a distance of approximately forty( 40) metres. 10. Scott Joisce observed oil down the side of the vessel from her deck to the water, oil on the water's surface from the vessel's starboard side to the wharf face and oil on the wharf. Rider Graham-Emmerson observed that there were 3 places where the oil had come down the ship's side into the water. Two of these places were major and one was minor. Mr Graham-Emmerson also observed 2 major pools of oil on the wharf's surface and that oil had run along the overhead crane tracks. Oil was also observed to have spilt onto the lower portion of the overhead crane. The oil observed by Mr Graham-Emmerson was thick and gluggy. 11. SPC officers Bagnell, Graham-Emmerson and Joisce then boarded the SPC vessel OS4N and proceeded to lay an oil containment boom from a magnet attached to the MSC Viviana's port bow to the wharf face. The purpose of this oil containment boom was to contain the oil slick on the waters surface between the MSC Viviana's starboard side and the wharf face from spreading further. 12. At one point whilst on board the MSC Viviana Mr Bagnell spoke with her Master, Captain Stiffa and asked him what happened. Captain Stiffa replied that while trimming from port to starboard, the starboard heeling tank overflowed and about 100 litres may have escaped. 13. Heeling tanks are located on the port and starboard side of a ship and are used to correct the list of the ship. Heeling tanks are designed to carry water and there should not be oil contained in a heeling tank. 14. At approximately 2230 hours on 1 December 2001 SPC Marine Supervisor David Hancock arrived at the scene of the oil spill from the MSC Viviana . On his arrival, Marine Supervisor Hancock observed: (a) The oil down the Viviana's starboard side to the waters surface was a thick black type oil that looked like a heavy fuel oil; (b) The oil on the waters surface along the Viviana's starboard side covered the area from the wharf's 490 metre mark to the wharf's 232 metre mark (a length of 258 metres overall) and covered the area between the wharf's face and the Viviana's starboard side (a distance of approximately 2.5 metres). It was in thick black patches and heavy sheen. The thick black patches were approximately 3 metres x 2.5 metres. There were more patches of thick black oil than heavy sheen approximately, 70% patches to 30% heavy sheen; (c) The wharf face from the wharf's 390 metre mark to the 410 metre mark (a length of approximately 20 metres overall) was covered with the thick black oil, as was the fender attached to the wharf face; (d) The wharf surface was covered with thick black oil which was a heavy fuel oil. The oil was from the wharf's 390 metre mark to the 410 metre mark to the 410 metre mark (a length of 20 metres overall) and it was semi circular out past the first set of rail tracks of the Portainer (crane) which are 2.2 metres from the wharf face (edge). It was approximately 25mm thick at the wharf edge to about 10 to 12 mm thick at the outer edge. An oil absorbent boom had been placed on the wharf edge to stop the oil running over the wharf edge and down the wharf face. The oil had run down the rail tracks for a distance of approximately 20 metres either side of the oil contaminated area at the wharf's 390 metre mark and 410 metre mark. 15. Mr Hancock has subsequently taken measurements of the wharf fenders and the area underneath the wharf apron to the wharf face. The total distance between the outside of the fenders to the wharf face is 2.540 metres. 16. An initial formal record of interview with the Master, by SPC officers, was suspended when the Master was asked whether he required a solicitor or ship's agent to be present during the interview and he replied that he did. 17. In addition to the initial oil containment boom deployed by Port Officers Bagnell, Graham-Emerson and Joisce, SPC Marine Supervisor D Hancock directed the laying of two (2) further oil containment booms in further efforts to limit the size of the oil spill. A further oil containment boom was laid from the bow of the MSC Viviana to approximately the wharf's 242 metre mark, which enclosed the earlier boom. An oil containment boom was also run from the stern of the MSC Viviana to approximately the wharf's 526 metre mark. The Record of Interview 18. At approximately 1100 hours on 2 December 2001, some 13 ½ hours after the oil spill from the MSC Viviana the SPC's then Safety, Environment and Quality Manager Mr Shane Hobday together with SPC Acting Marine Supervisor Mr Terry Walsh went to the No. 2 Berth, Brotherson Dock, to conduct a formal record of interview with the Master and Third Mate, Slobodan Savic of the MSC Viviana . Present during the interviews were Mr Neil Aiton, Marine Surveyor of Gibson Minto Aiton, Mr Stephen Thompson, solicitor of Middletons Solicitors and Mr Angelo Coppola, a ship's officer. 19. During the record of interview with the Master, in answer to the question of what caused the oil to discharge from your vessel? The Master replied I do not know. Segregated tanks – heeling water – I don't know how it came out . 20. According to the Master, the Third Mate Slobodan Savic was the ship's officer on duty at the time of the spill. 21. According to the Master, at the time the oil appeared on deck the Master was on deck at the gangway talking to the Chief Mate. As soon as the Master saw oil on the deck he went to the pump room. 22. During his record of interview the Third Mate in answer to the question of what caused the oil to discharge from your vessel? Replied overflow heeling tank . 23. Further, during his record of interview the Third Mate in answer to the question of why did you stop pumping answered already stopped when Captain came in because had finished. 24. In addition to 105 metres of oil containment boom, SPC officers used 15 bales of oil absorbent pads, with 100 pads per bale, in an effort to absorb the oil on the waters surface. 25. Clean up activities by SPC Port Officers continued until after 0630 hours on 2 December 2001, and were continued by the incoming SPC day shift. 26. The MSC Viviana cleared the No. 2 Berth, Brotherson Dock, Port Botany at 2251 hours on 4 December 2001. 27. The MSC Viviana was subsequently broken up in February 2002. 28. Having been built by Kawasaki Industries in Kobe, Japan in 1975 the container ship MSC Viviana at the time of the oil spill incident was approximately 27 years of age. 29. The MSC Viviana was the subject of AMSA Port State Control inspections 04.09.99; 01.04.00; 11.09.00; 20.03.01; 28.03.01; 14.06.01; 05.09.01 & 02.12.01. On five of those occasions she was detained, as a result of deficiencies noted, for a total of approximately 10 days. Clean-up Costs 30. The SPC incurred costs of $9,149.70 in the effort to clean up the oil spill from the MSC Viviana whilst berthed at Brotherson Dock, Port Botany on 1-2 December 2001. Those costs have been paid by or on behalf of the owners of the MSC Viviana . 11 The contested facts concern (i) the quantity of the oil spill; and (ii) the culpability of each of the Defendants. It is necessary to summarise the relevant evidence on each of these disputed matters before evaluating it and making my ultimate findings on the disputed facts, recognising that "a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt": per R v Storey (1998) 1 VR 359 approved by the High Court of Australia in R v Olbrich (1999) 199 CLR 270 at 281. (i) The quantity of oil spilled into the waters of Botany Bay 12 The Prosecution evidence that between 180 and 237 litres of oil spilled out of the "Viviana" into the waters of Botany Bay on 1 December 2001 was as follows. 13 Firstly, there were the observations made by David Hancock, Marine Supervisor employed by Sydney Ports Authority, when he attended the vessel at 2230 hours on 1 December, 2001. 14 He then observed the vessel to be tied up starboard side between berths No 1A and 2 at Brotherson Dock and observed thick black oil on the starboard side of the vessel and on the surface of the waters along the starboard side covering an area comprising a length from the wharf's 490 metre mark to its 232 metre mark (an overall distance of 258 metres approximating the length of the "Viviana") by a width of 2.5 metres being the distance between the vessel's starboard side and the wharf face recessed below the wharf apron. Mr Hancock's observations were that the oil in the water took the form of thick black patches of oil (measuring approximately 3 metres and 2.5 metres) and heavy sheen and that the patches covered some 70 percent of the surface area of the oil covered waters. His observations included thick black oil on the wharf face between the 390 metre and 410 metre mark and thick black oil on the wharf's fender against which the midship's section of the vessel rested. He also observed an area of the wharf surface covered with oil which was contained by a boom placed to prevent the oil from spilling over the edge of the wharf into the port waters. 15 Mr Hancock had prepared a contemporaneous sketch of his observations of the oil in the waters alongside the starboard side of the "Viviana" and upon the wharf surface (which was tendered as Exhibit 22). 16 Mr Hancock supervised Sydney Ports Corporation personnel in the laying of oil absorbent booms from the bow and stern of the "Viviana" to the wharf face in order to contain the oil spill and in applying oil absorbent pads to clean up the oil spill. 17 Mr Hancock was cross-examined on his observations and particularly on his estimation of the surface area of the oil covered waters alongside the "Viviana", especially in respect of his opinion that the oil cover extended for a distance of 2.5 m from the starboard side of the "Viviana" to the wharf face recessed some 2.06 metres from the wharf edge (upon which is affixed the fender having a width of 480 mm). 18 That cross-examination revealed that Mr Hancock had not visually inspected every bay under the wharf that was adjacent to the "Viviana's" berthing location (the bays are created by concrete piers spaced at 6 metre intervals along and under the wharf apron extending from the edge of the wharf to the wharf face recessed 2.06 metres from the wharf apron) but had inspected many of them from the small boat that had been employed in the clean-up activities. 19 The evidence of Mr Graham—Emmerson, a Port Officer employed by Sydney Ports Corporation, included his observations at the scene of the oil spill and actions taken by him in conjunction with others on the night of the oil spill when he attended the "Viviana" at 2147 hours in the company of Mr Bagnall, another Port Officer. His observations included observing "thick gluggy type oil on the waters surface between the Viviana starboard bow and the wharf face". His actions included helping with the clean-up activities including the laying of the booms from the "Viviana's" bow and stern to the wharf face and the placing within the boomed area of fifteen packets of absorbent pads (each packet containing 100 pads). He remained at the scene of the oil spill assisting with the clean-up operations until 0430 hours on 2 December 2001. 20 Based upon the observations made by Mr Hancock of the oil in the waters alongside the "Viviana" of "the thick area, oil thickness and percentage coverage", Dr King in his report (Exhibit 15) expressed the opinion that a minimum of 180 litres of oil had spilt from the "Viviana" into the waters of Port Botany. 21 Based upon the quantity of absorbent materials (booms and pads) deployed in the clean-up activity (as deposed to by Mr Graham-Emerson), Dr King calculated that the volume of spilt oil recovered in the clean-up operations was "potentially up to 237 litres or more". 22 In a further report (Exhibit 16), Dr King (basing his opinion on the observations of Mr Hancock) estimated that between 60 to 120 litres of oil had been spilt from the "Viviana" onto the wharf apron. 23 Captain Neil Aiton, Marine Surveyor, who gave evidence on behalf of the Defendants originally estimated that a maximum of 50 litres of oil had spilt into the port waters. His Report dated 1 June 2004 (Exhibit A) records his involvement in the investigation of the oil spill commencing with his attendance on the scene at 0100 hours on 2 December 2001. He returned to the vessel later that day and participated in the interview with Captain Stiffa and Third Mate Savic conducted by Mr Hobday, General Manager of Port Services at 1100 hours. In the course of that interview, Captain Aiton contributed and Mr Hobday's affidavit records his words. (Captain Aiton said he did so "due to some language difficulties I assisted with technical information"). Included in his contributions was the following: Trim to Stern At 1135 2/12 355 m 490 mm 10 cm – 30 cm avg 20 cm – 1.5 mm thickness quantity – 50 litres 24 Mr Hobday states that he simply recorded what Captain Aiton had said and that he (Hobday) did not agree or disagree. 25 In his original Report Captain Aiton states that after the interview had concluded, he invited Mr Hobday to accompany him to inspect the extent of oil contamination visible on the ships' hull. This was done and Captain Aiton states that he understood Mr Hobday to have tentatively agreed with Captain Aiton's estimate that a maximum of 50 litres of oil had entered the port waters. 26 Mr Hobday's response to Captain Aiton's original Report states the following: 7. I have read the report of Captain Aiton dated 1 June 2004 annexed to his affidavit sworn 1 June 2004 and say:- (a) That at no time did I tentatively agree or disagree that the maximum amount of oil spilt from the ship Viviana . That agreement was of the estimate by Captain Aiton of an amount of fifty litres which was in the water at that time between the starboard side of the Viviana and the wharf face and the oil containment booms at the Viviana's bow and stern; (b) The only time I agreed with Captain Aiton on a quantity of oil was at approximateley 1130 hours on 2 December 2001 which was some 13 ½ hours after the oil spill from the ship Viviana . That agreement was of the estimate by Captain Aiton of an amount of fifty litres which was in the water at that time between the starboard side of the Viviana and the wharf face and the oil containment booms at the Viviana's bow and stern; (c) I could not at 1130 hours on 2 December 2001 agree to a maximum amount of oil spilt from the ship Viviana into the water of Brotherson Dock because:- (i) I did not know how much oil had been recovered from the water by the oil clean-up crew; (ii) I did not know what quantity of oil recovery absorbent materials had been required in the oil spill clean-up; (iii) I did not know how much oil had evaporated from the oil on the water during the period from the time of the oil spill and the time I saw the oil on the water at 1130 hours; (iv) I did not know how much oil had dissolved into the water column during the period from the oil spill and the time I saw the oil on the water at 1130 hours. 27 Captain Aiton's original Report also questioned how Mr Hancock's estimation of the extent of oil covered waters (contained within the boomed area between the starboard side of the "Viviana" and the wharf face) could have been made because approximately one third of the vessel's length would be hard against the wharf fender thereby obscuring any view from the wharf apron of the water between the vessel and the wharf face. 28 Finally, Captain Aiton's original Report disagreed with Dr King's estimation of the quantity of the oil spill because that estimation had been based upon Mr Hancock's estimate of the extent of the area of oil covered waters between the starboard side of the "Viviana" and the wharf face. 29 However in his second Report (Exhibit B) Captain Aiton noted that his original estimation of the maximum quantity of the oil spill was "incorrect". His Report continues: The calculation is based on the area and estimated thickness of semi-dried oil adhering to the vessel's hull between the 490 metre and 355 metre marks, and to a height of 30 cms at the forward end and 10 cms at the after end—an average of 20 cms. This area is equivalent to 27m2 and at an estimated thickness of 1.5mm is equivalent to a volume of 50.5 litres. At the time I made an allowance of a further 9.5 litres to allow for unknowns and hence the overall total of 50 litres as I understood to have been agreed to with Mr Hobday at the time. The figures utilised are as recorded in Mr Hobday's notes. The calculation is incorrect because it makes no allowance for an equivalent area of the wharf face abreast the vessel to be similarly polluted. If the calculated/estimated quantity on the hull was 50 litres, then overall the quantity spilled and which reached the harbour waters would have equated to 100 litres which is considerably closer to the 180 litre minimum estimated by Dr King. 30 Under cross-examination it was put to Captain Aiton that his estimate of 100 litres did not take account of the much greater fall in the tide than he had assumed in his method of calculation and that his method of calculation would yield a higher figure if full account had been taken of the tidal movement that occurred on the night of the oil spill. He agreed but did not re-calculate his estimation. 31 It was also put to Captain Aiton that the inclusion in his calculation of an amount of 18 litres attributable to the oil that was recovered by the absorbent boom and pads that were utilised in the clean-up involved an underestimate on his part, a proposition with which he readily agreed. 32 Having considered all of the evidence, I accept Dr King's estimates of the quantity of oil that was spilt into the waters of Botany Bay, namely a minimum of 180 litres. That estimate is based upon Mr Hancock's reported observations on the night of the spill. I accept Mr Hancock's evidence that he did observe oil on the waters in a number of the recessed bays under the wharf apron formed by the concrete piers and the wharf face. Those observations were made, not from the "Viviana" or the wharf apron, but from the smaller vessel deployed in the clean-up operation. Mr Hancock's oral testimony clarified the doubt raised by Captain Aiton concerning the impossibility of observing from the wharf apron or the "Viviana" the waters contained within the recessed bays along the midship section of the "Viviana" which was positioned hard against the wharf fender. 33 Moreover, Dr King's estimate, based upon Mr Hancock's observations (which observations were corroborated by a number of the other eye witnesses eg Mr Graham-Emerson) was corroborated by Dr King's alternative estimate (some 237 litres) based upon the evidence of the amount of absorbent boom and pads employed in the clean-up operation. 34 My acceptance of Dr King's estimates (and the original eye witness evidence upon which his estimates are based) is not diminished by Captain Aiton's estimate. Ultimately Captain Aiton did not seek to re-estimate his higher estimate of 100 litres by factoring into his estimation the two matters that he conceded under cross-examination that he had not fully taken account of—namely (I) the greater tidal change at the relevant time; and (ii) the greater quantity of oil that had been recovered in the clean-up process by the deployment of the absorbent boom and pads. 35 For those reasons, I do not accept Captain Aiton's estimates (originally 50 litres revised to 100 litres) because of the factors not fully taken into account by him. 36 Accordingly, I am satisfied beyond reasonable doubt that at least 180 litres (and up to 237 litres) of oil spilt into the waters of Botany Bay from the "Viviana". (ii) The Culpability of Each Defendant for the Oil Spill Incident 37 The evidence relevant to this issue comprises the following: (i) the evidence of the interview of Captain Stiffa and Third Mate Savic that was conducted by Mr Hobday on the morning of 2 December 2001 immediately following the night of the oil spill; (ii) Captain Aiton's Original Report (Exhibit A); (iii) the Report of Peter Burge (Consultant Marine Engineer) (Exhibit 20); (iv) Captain Aiton's Report in Reply to Mr Burge's Report (Exhibit B); (v) Captain Aiton's oral testimony; (vi) The Affidavits sworn by each Defendant (Exhibits C, D and E) in circumstances where each of the deponents was unavailable for cross-examination which the Prosecutor wished to conduct. 38 The interview conducted by Mr Hobday with Captain Stiffa and Third Mate Savic is summarised in the Statement of Agreed Facts. According to Mr Hobday's affidavit (Exhibit 11) the interview with Captain Stiffa included the following: Q8. What caused the oil to discharge fro your vessel? A. I of not know. Segregated tanks – heeling water – I don't know how it came out Q. Who was in charge of the transfer between the heeling tanks? A. 3rd Mate – officer on duty Q. When were the heeling tanks last inspected? A. Ship at shipyard last January 2001. Q. What mean do you use to record the level in the heeling tanks? A. Nothing – just run pump for 10 minutes. Q. Was there anyone sounding the tanks? A. Before operation started tanks dipped daily. Q. How do you think oil entered the heeling tank? A. I don't know. Q. Can I see a record of your soundings before and after the operation? A. Yes. Interview suspended. Neil Aiton said to me words to the effect of:- Pumping from port to starboard Capacity rate 180T/H 2155 pumping started to correct list 2210 spill noticed Heeling tank capacity 419 tonnes Full tank 7.09 metres Fuel oil tank filled with 300 tonnes No. 3 OF tank 998.3m3 Arrival 301/11 – heeling tank soundings Port 220T/Starboard 200 Last port Fremantle No. 3 OF max quantity 998.3m3 at sounding 14.1 m Fuel oil soundings Prior to 22/10/01 No. 3 OF no records After 22/10/01 after bunkering at Antwerp OF. 16/10 after bunkering Durban 3P 12.85m/m = 312.9m3 = 308T 3S 12.6m/m = 333m3 = 327T 24/11 at sea 3P 0.25m/m 10.8m3 0.20m/m8.1m3 Did not think they used heeling tanks in Fremantle PO 1/12 3P – same as 24/11 3P – same as 24/11 Current measure measurement STBD heeling tank – 415 tonnes Sounding board on upper deck P Heeling – 2.2 130 SH - 4.5 315 Trim to stern At 1135 2/12 355m 490mm At 1135 2/12 355m 490mm 10cm – 30cm Avg 20cm - 1.5mm thickness Quantity – 50 litres I then said to the Captain:- Q: At the time of the oil appearing on the deck where were you? A: On deck at the gangway Q. What did you do then? A: I was taking (sic) to Chief Mate. As soon as I saw oil on deck I went to the pump room. Neil Aiton with Third Mate No. 3 OF found no water on a water dip 39 According to Mr Hobday's affidavit, the interview with Third Mate Savic included the following: Q8. What caused the oil to discharge from your vessel? A. Overflow heeling tank Q. What time did you start the pumping between the heeling tanks? A. About 2200 1/12 Q. How long were you pumping? A. 10 minutes Q. What was the sounding before you start? A. Starboard 320 7 Q. Why did you stop pumping? A. Already stopped when Captain came in because had finished. 40 Captain Aiton's original Report (prepared on 1 June 2004) narrates his involvement in the investigation of the oil spill that occurred some 2 ½ years earlier. (I assume in view of his official involvement as a Marine Surveyor that his report was based upon contemporaneous records when he was first involved in the oil spill investigation.) 41 His Report includes the following: 7. When I attended on board, I interviewed the vessel's senior staff consisting of the Master, Chief Officer and Chief Engineer in order to establish when and how the oil spillage had occurred. They explained that prior to the spillage the vessel had been transferring water ballast within its heeling tank system to correct a port list. The Master indicated that the sp8illed oil had sourced from the starboard heeling tank vents. 8. The vessel is fitted with heeling tanks which are deployed in port to keep the vessel at or close to upright in order to permit the loading and unloading of containers. The heeling system provides for the transfer of ballast water from a heeling tank on one side of the vessel to an identical (mirror image) tank on the other side, the movement of ballast water being activated by the heeling tank pump. 9. On MSC VIVIANA which was built in 1975, the heeling pump is manually controlled while in newer container vessels the heeling system is automatic. 10. The heeling system normally holds a quantity of ballast water equivalent to slightly more than the capacity of one of the heeling tanks so that the maximum heeling effect is achieved by transferring the entire contents of one of the heeling tanks to the empty tank on the opposite side of the vessel. The heeling system should not contain anything except ballast water. 11. During the transfer of ballast water from the heeling tank on one side of the vessel to the tank on the opposite side, it is not unusual for the transfer to continue until the filling tank is full and actually overflows through the tank vents situated on the upper deck. When the tank overflows through the tank air vents, it is obvious that the tank is full and the pump is manually stopped. The pump can be stopped or started at any intermediate stage of transfer. Overflowing of ballast water onto the upper deck is not of significant concern to the crew who generally regard it as an indicator that the tank is full. The overflowing water simply drains over the ship's side via the deck scuppers. Overflowing of ballast tanks during filling – particularly on vessel's of bulk carrier design – is a very normal occurrence. 12. I requested the vessel's staff to produce ship's plans including a General Arrangement plan, a Pumping plan, and Tank Vent plan in order to investigate how the spillage may have occurred. 13. The location of the heeling tanks on MSC VIVIANA is pictorially indicated on annexure NA1 page 3 attached with the tank entry shown in photo No. 3 on annexure NA 1 page 12. They are located in way of the ship's sides outboard of the cargo holds and at approximately half the vessel's length, between frames 147 and 166. The No 3 starboard bunker fuel oil tank is fitted aft of and partly above the starboard heeling tank. Both tanks are fitted in way of the vessel's bilge and are basically a combination of side tank and double bottom tank. The top of the heeling tanks is located 7.08 metres above the keel while the top of NO. 3 bunker tanks is located 13.98 metres above the keel. 14. Ship's fuel and bunker oil tanks are periodically inspected internally and subjected to pressure testing in order to confirm their integrity. The standards for such inspection and testing are laid down in the Rules of Classification of the relevant ship classification society. The interval between such inspections/tests becomes shorter as the age of a vessel increases. While there can be some variation in standards there is general conformity of requirements between the major classification societies. The frequency of inspection is governed by the vessel's age but is also affected by the presence and condition of anti corrosion measures on the internal tank surfaces. In older vessels the interval for internally protected tanks is generally 5 years, unless the condition as found at the previous inspection gave cause for concern. 15. The heeling tanks on MSC VIVIANA are listed by the vessel's classification society Bureau Veritas as being epoxy coated. Class records made available to me indicate that they were last inspected at special survey conducted in the period 02/98 – 21/2/99 at which time the condition of the epoxy coated surfaces was listed as FAIR . Se also annexure NA1 Page 10 attached. The term FAIR indicates, quote condition with local breakdown at edges of stiffeners and weld connections and/or light rusting over 20% or more of areas under consideration, but less than as defined for POOR condition . Where the condition is described as fair, there is no requirement to carry out annual inspections prior to the following special survey. 16. I examined the vessel's bunker fuel oil records and established that No3 starboard fuel oil tank had been bunkered in Antwerp on 22nd October 2001 and again in Durban on 16th November 2001, with the level of fuel in the tank being then gradually drawn down as bunkers were consumed on the voyage across the Indian Ocean to Fremantle. 17. Prior to leaving the vessel at approximately 0400 hours on 2nd December 2001, I formed the opinion that there was most probably a leakage between the starboard heeling tank and the adjacent No 3 starboard bunker oil tank however it would be necessary to drain the heeling tank for internal examination to confirm this view. 21. I inspected the starboard heeling tank internally on the following morning 3rd December 2001 after its residual content had been transferred to another tank and it had been appropriately vented to permit safe access. I found that water was draining down into the tank from the No.3 starboard bunker tank above, through a holed/corroded area at the junction of the horizontal plate that formed the boundary between the two tanks and the forward bulkhead of the tank. That plate is the top (uppermost) plate of the starboard heeling tank and the floor of No. 3 starboard fuel oil tank. It was clear that the holed/corroded area had been the source of entry of bunker fuel oil into the heeling tank system. See also annexure NA1 page 3 and NA 1 page 16. The water draining down from the fuel tank would have been pumped into the tank through the corroded area when the starboard heeling tank was being pumped up. Any oil that had previously leaked into the heeling tank from the fuel tank would have floated to the surface of the water and been partially expelled with the initial overflow of heeling tank water. I concluded that the extent of corrosion at the forward end of the tank(s) had not been noted at the time of its last inspection or that the corrosion had advanced at an accelerated rate since the time of that inspection. 22. Residues of fuel oil on deck and around the area of the air vents for the starboard heeling tank at the time of my attendance on board indicated that these vents had been the source of fuel oil that had drained down the starboard side of the vessel and into the dock waters. Residues of fuel oil were present on the ship's side, on the wharf apron and also on the surface of the water at the time of my initial attendance at the vessel. 42 Mr Burge, a consultant Marine Engineer, prepared his Report (Exhibit 20) in response to Captain Aiton's original Report and in response to the Defendant's affidavits. 43 His Report sets out the background facts to the oil spill incident as recorded in Mr Hobday's affidavit and Mr Hancock's affidavit and Captain Aiton's original Report. 44 Mr Burge states that his brief was to address the following questions: Question 1 . From the information supplied to you, what conclusions can you draw about the condition of the vessel MSC Viviana (a) Prior to the oil spillage incident? (b) At the time of the oil spillage incident? (c) In the period following the oil spillage incident? Question 2 Can you estimate the amount of fuel oil, if any which might have been present in the starboard heeling tank of the ship MSC Viviana when the crew transferred water ballast to the starboard heeling tank from the port heeling tank? Question 3 . What steps would a prudent ship's officer have taken prior to and during the transfer of ballast water from the port heeling tank to the starboard heeling tank? Question 4 . Should the ship's officers have been aware that fuel oil might have leaked into the starboard heeling tank? If so how might the ship's officers have become alerted to the leakage of fuel oil into the starboard heeling tank prior to the oil spillage incident? His Report provides his answers to each of those questions. 45 In answer to question 1 Mr Burge summarises the Inspection Reports conducted by the Australian Maritime Safety Authority in respect of the "Viviana" in August 1994, September 1999, April 2000, September 2000, March 2001 and September 2001 and on 2 December 2001 (immediately after the oil spill incident). Basing himself on the outcomes of these inspections, as detailed in the written records of the Australian Maritime Safety Authority, Mr Burge states the following: ….(I)t is very clear that this ship had a history of poor maintenance going back over the seven years prior to the oil spillage incident ( par 56 ) In all referred instances the ship was found to be significantly substandard and in many cases it was detained until the more serious deficiencies were set right or until assurances had been given by the ship's owners that the substantial aspects would be rectified at a defined time….(par 58); An examination of these deficiencies (ie those listed in the records of the inspections of the Viviana conducted by the Australian Maritime Safety Authority) leads me to believe that at the time of the spillage incident, the ship MSC Viviana was in such a poor state that it posed a serious threat to the environment, the safety of its crew and others. The structural degradation between the tanks caused the spillage of leaking fuel out into the waters of Brotherson Dock (par 67). A container ship of 20 years of age is an old ship by contemporary standards. At 27 years of age, as it was at the time of the spillage incident, MSC Viviana was a very old ship and its Port State Control Inspection history reveals that its poor conditions reflected its advanced age and the failure of its owners to maintain it in a sound condition (par 71). 46 In answer to the question how much fuel oil might have been present in the starboard heeling tank, Mr Burge estimated that if the reading of 315 –320 tonnes of water in the starboard heeling tank was correct (315 was the amount stated by Captain Aiton to Mr Hobday during the course of the latter's interview of Captain Stiffa), then some "69 to 70" tonnes of oil had leaked into the healing tank from No 3 starboard fuel tank (par 79). 47 In answer to the question what steps a prudent ship's officer would have taken in connection with the transfer of ballast water, Mr Burge opined that both heeling tanks should have been sounded prior to ballast transfer operations (par 82) and that had such soundings been undertaken, they would have revealed the presence of oil (visible on the sounding tape). 48 In answer to the question whether the ship's officers might have been alerted to the leakage of fuel oil into the heeling tank, Mr Burge opined that the leakage of fuel oil would have been noticed had there been a close monitoring of fuel oil supply and consumption on the ship whilst in transit (par 87) and that in view of the advanced age of the "Viviana" and its past history of Port State Control detentions all of the ship's officers should have very carefully monitored all on board operations and that the Master, being aware of these matters, should have ensured that his officers satisfactorily tested all equipment before use (par 89). 49 Captain Aiton's Report in Reply (Exhibit B) notes that the fuel oil and ballast water records provided to him were a selection of 27 dates from 12 May to 1 December 2001 (a period of 150 days) and accordingly did not provide "a continuous record as would normally be recorded". 50 In relation to the records pertaining to the heeling tanks, Captain Aiton states: I cannot consider these records as being accurate because— 1. There is virtually no variation in figures on a day to day basis. 2. The fresh water tank quantities generally reduce each day by a rounded even quantity with the daily consumption generally 20 m3. 3. There is no variation in the bilge soundings of the 10 listed compartments throughout the month. In my opinion the monthly records as provided have been entered into the log by the same person on the same occasion, rather than the entries being made on a daily basis on completion of tank soundings. 51 In response to Mr Burge's Report, Captain Aiton disagrees with Mr Burge's opinions on the deficiencies reported in the Australian Maritime Safety Authority inspection of the "Vivivana" conducted on 2 December 2001 (immediately following the oil spill incident). 52 In relation to Mr Burge's opinion of the poor condition of the ship (as recorded in par 67 of his Report), Captain Aiton makes the point that Mr Burge's opinion was not based upon an inspection of the ship. 53 Captain Aiton disagrees with Mr Burge's opinion that a reasonable life expectancy of a modern commercial container ship is between 16 to 20 years, by pointing out that one of the first generation of such vessels operated in Australian/US Waters for approximately 29 years. 54 Captain Aiton disagrees with Mr Burge's opinion that some 69 to 70 tonnes of fuel oil had entered No 3 starboard heeling tank because of the doubts concerning the quantity of the contents of the heeling tank and the amount of time that the heeling tanks were pumped on the occasion of the oil spill. 55 Captain Aiton disagrees with Mr Burge's opinion that sounding the No 3 starboard heeling tank would have revealed the presence of fuel because the oil would be floating on top of the water ballast in the tank. 56 Captain Aiton disagrees with Mr Burge's opinion that it would have been prudent to sound both heeling tanks prior to commencing the water ballast transfer operation. 57 Captain Aiton disagrees with Mr Burge's opinion that there was a large amount of fuel oil in the No 3 starboard heeling tank and that its presence would have been revealed by sounding that tank. 58 Captain Aiton disagrees with Mr Burge's opinions that proper monitoring of the fuel tanks and fuel consumption while the vessel was in transit would have revealed loss through leakage because of the absence of daily sounding records for the bunker fuel tanks. 59 In this respect, Captain Aiton suggests that the "fact that the vessel was apparently not aware of any such loss suggests that the leakage from the No 3 Port fuel oil tank into the heeling tank was small". 60 Under cross-examination, Captain Aiton repeated his opinion that the tank records that had been provided to him were incomplete and in some respects the records were "rubbery". 61 According to Captain Stiffa's affidavit (Exhibit C), he has been at sea since 1965 and obtained his Master's ticket in 1972. He joined the "MSC Viviana" on 20 October 2001 (just six weeks prior to the oil spill incident). He has worked for the ship owner Defendant for 15 years (five of which as Master). 62 He has never been involved in a pollution incident in Australia or elsewhere. 63 He deeply regrets the pollution incident and is grateful that it was promptly responded to and contained, minimising damage. 64 Until this oil spill incident, he had never anticipated that ballast water in the heeling tank system might become contaminated with fuel oil and pose a hazard to the environment in the event that it overflowed. 65 Third Mate Savic has been at sea since 1995. He joined the "MSC Viviana" on 26 July 2001. He has worked for the Defendant ship owner for three years and has subsequently been promoted to the rank of Second Mate. 66 He has never previously been involved in a pollution incident. He too expresses regret for the incident and like the Master he never anticipated that ballast water in the heeling tank system might become contaminated by fuel oil in an adjacent tank. 67 Affidavit evidence was given on behalf of the ship owner Defendant by Captain Aniello Russo also has been employed by the Defendant since 1986 and is currently the Company Security Director. 68 He was at sea as a Master from 1988 to 1995. 69 On behalf of the Defendant Captain Russo, expresses sincere regret for the "unexpected spill". 70 He states that at the time of the incident the "MSC Viviana" was the only vessel within the Company fleet that did not have an automatic heeling system. He states that when it was discovered that fuel oil leaked through a corroded seam "it came as a complete surprise" as the condition of the tanks as reported in the previous special survey meant that the tanks were not due to be inspected again until early 2004. 71 After he oil spill incident the heeling tank system was sealed off and the ship proceeded to Durban where the corroded tank was cleaned and repaired at a cost of $23,000 (US). A few months later the ship was sold for scrap on 28 February 2002. The Company did not retain any of the ship's documentation following her scrapping. 72 Captain Russo also expressed the opinion that until this incident, "no-one had foreseen that the heeling tank system might become contaminated with oil and pose a threat to the environment". 73 Captain Russo states that the Defendant Company takes pride in its clean track record and this was the first pollution incident involving the Defendant in Australian waters. 74 Having regard to the totality of evidence that I have just summarised that is relevant to the question of the nature and degree of culpability of each Defendant in the oil spill incident, I am satisfied beyond reasonable doubt that having regard to the age of the "Viviana" and its known history of Port State Control detentions that had been directed by the Australian Maritime Safety Authority, greater vigilance and care in the ordinary operation of the ship (including operations while in port) was reasonably required than would otherwise be normally the case with another container ship that was not so old and had and not been the subject of several Port State Control adverse inspection reports, leading to port detentions of the ship. 75 In particular, there was a need for the careful monitoring of the contents of the fuel tanks and the ballast tanks. The records that were provided to Captain Aiton in the course of his investigations appear to have been fragmentary and unsatisfactory in terms of a careful monitoring of the contents the fuel and ballast tanks. 76 The physical relationship between the No 3 starboard fuel oil tank and the No 3 starboard heeling tank was such that in circumstances such as occurred in the present case, a failure in one tank would allow leakage of fuel oil into the heeling tank. This physical feature of the tanks combined with the knowledge that according to the results of the most recent inspection of the heeling tank (some 2-3 years before the oil spill incident) had shown it to be in "fair" condition, should have alerted the Defendant ship owner to the physical possibility of fuel contamination of the water ballast tank if its integrity deteriorated to the extent that it did in the present case, leading to a leakage. 77 Having so held, I should also note that the evidence does not justify any finding beyond reasonable doubt as to the amount of fuel oil that leaked into the No 3 starboard heeling tank other than the amount that was spilt into the Port waters on 1 December 2001 and the amount that was spilt onto the wharf apron. 78 Nor does the evidence justify a finding as to the period of time that the leakage occurred or as to the rate of leakage. The perforated seam in the tank suggests only a gradual leakage. 79 In considering culpability in the present content, it is necessary to recall that the liability crated by s 8 is a strict liability subject to certain statutory defences and that in the case of the ship owner and the Ship's Master the liability imposed is a status liability requiring only proof that the Defendant was relevantly the owner of the ship or the Master of the ship at the time the discharge of oil into State waters occurs. 80 The liability of the third Mate requires proof that "his act caused the discharge". 81 Although the pleas of guilty to each charge of course means that each element of each offence is established, on the question of penalty for the admitted offence the personal culpability of each Defendant must be examined. In the present case, where the evidence does not indicate how much fuel oil leaked into the No 3 heeling tank (other than the amount that was discharged from the ship ie some 240 to 300 litres (which includes the 60 litres that was discharged onto the wharf apron and was there contained)) or the rate of leakage and where the available ship records are clearly fragmentary and provide an unsatisfactory basis upon which to base any estimates (hence Captain Aiton's rebuttal of many of Mr Burge's speculative opinions), I can only be satisfied, according to the criminal standard of proof, of the following objective facts— (i) the ship was very old; (ii) the ship's history of Port State Control inspections in Australia revealed a poor record; (iii) a quantity of fuel oil of between 240 – 300 litres was discharged from the ship's No 3 heeling tank during ballasting operations. 82 In addition to these objective facts, there is the untested evidence of each Defendant to the effect that until this oil spill they would never have anticipated ballast water from the heeling tank becoming contaminated by fuel leaking into the tank from an adjacent fuel tank. Doubtless, had the Defendants been available for cross-examination, the Prosecutor would have put to them matters that were put to Captain Aiton during his cross-examination. 83 My evaluation of the totality of relevant evidence leads me to conclude that chief culpability for the oil spill must be laid at the feet of the ship owner, but that neither the Master nor the Third Mate has been shown to be not culpable, albeit to a lesser extent, than my evaluation of the ship owner's culpability. 84 It is relevant to note that the Master and the third Mate were only very briefly associated with the "Viviana" prior to the oil spill incident. 85 This is an unfortunate association, especially in the light of their unblemished records at sea, especially so in the case of the Master who has been as sea for some 40 years. This fact is mitigating of their culpability but It does not absolve them. 86 The application made on behalf of the Master for discharge without conviction pursuant to the Crimes Sentencing Procedure Act 1999, s 10 in my opinion has not been substantiated. Although the Master's "character, antecedents, age" (vide s 10(3)(a)) operate clearly in his favour, I do not find the offence to be "trivial in nature" (vide s 10(3)(b)) and I do not find the "circumstances to be extenuating" (vide s 10(3)(c)). 87 In my judgment, the objective facts of the offence, together with the nature and degree of the culpability of each Defendant justifies the recording of a conviction and the imposition of a penalty commensurate with my evaluation of the relevant objective/subjective factors relevant to the offences. 88 I interpose that the objective facts include the fact that the environmental impact was small in that the clean-up operation appears to have been entirely successful. I also accept Mr Rooney's opinions expressing concern for "chronic low level long term exposure to aquatic organisms" caused by a series of small oil spillages. 89 There are, of course, mitigating factors operating in favour of each Defendant, namely— (i) the early plea of guilty; (ii) the contrition and regret of each Defendant; (iii) the first environmental offence of each Defendant; and the exemplary seafaring record of each Defendant. 90 These taken collectively justify a significant global reduction of sentence for each Defendant in the order of 40 percent. 91 When these mitigating considerations are factored into my ultimate evaluation of the objective and subjective facts pertaining to each of the admitted offences, I am of the opinion that a penalty of $150,000 should be imposed upon the ship owner (where the maximum penalty provided is $1.1 million) and that a penalty of $25,000 should be imposed upon the Master and a penalty of $15,000 should be imposed upon the third Mate (where in each case the maximum penalty provided is $220,000) C. CONCLUSIONS AND ORDERS 92 For all the foregoing reasons, I make the following orders— 1. Each Defendant is convicted of the offence as charged. 2. The following penalties are imposed in respect of these convictions— (a) in the case of Mediterranean Shipping Company SA $150,000 (b) in the case of Captain Stiffa $ 25,000 (c) in the case of third Mate Savic $ 15,000 3. The Defendants shall pay the Prosecutor's costs in the amount determined in accordance with the Criminal Procedure Act 1986 , s 253(2). 4. Exhibits be returned.