Filipowski v Tanner [2002] NSWLEC 95

Land and Environment Court of New South Wales

CITATION : Filipowski v Tanner [2002] NSWLEC 95 PROSECUTOR: Barbara Filipowski PARTIES : DEFENDANT: Andreas John Tanner FILE NUMBER(S) : 50089 of 2001 CORAM: Lloyd J KEY ISSUES: Environmental Offences :- marine pollution - no penalty LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10 Marine Pollution Act 1987 s 8(1) Filipowski v Fratelli D'Amato S.r.l (2000) 108 LGERA 88; CASES CITED: Lim Chin Aik v The Queen [1963] AC 160; Thorneloe v Filipowski (2001) 52 NSWLR 60 DATES OF HEARING: 24/04/2002 EX TEMPORE JUDGMENT DATE : 04/24/2002

PROSECUTOR: Mr A L Hill (barrister) SOLICITORS: Abbott Tout LEGAL REPRESENTATIVES: DEFENDANT: Mr E G H Cox (barrister) SOLICITORS: Norton White

JUDGMENT:

2 IN THE LAND AND Matter No.: 50089 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 24 April 2002 Barbara Filipowski Prosecutor v Andreas John Tanner Defendant EXTEMPORE JUDGMENT HIS HONOUR: 1. The defendant has pleaded guilty to an offence which is in contravention of s 8(1) of the Marine Pollution Act 1987 in that, on 8 September 1999 he was the master of a ship, namely the vessel "Karamea", from which a discharge of oil occurred into State waters, namely the waters of Port Jackson. 2. The relevant facts may be shortly stated as follows. On the 4 September 1999 the vessel, the M T "Karamea", a New Zealand registered tug, entered State waters, namely the waters of Port Jackson and proceeded to berth at the inner Captain Cook dry dock. At the time of entering State waters "Karamea" was towing a barge, the "Union Bulk 1". On board "Karamea" there was a complement of ten crew. Whilst "Karamea" was at the inner Captain Cook dry dock, the owners and crew decided to carry out the annual survey of certain items of equipment aboard the vessel, including the fire fighting system. On 8 September 1999 during the annual survey of certain equipment aboard "Karamea", the Classifications Society surveyor was requested to certify the operation of the fire fighting system. In order to certify the fire fighting system, the Classification Society surveyor requested the testing of the fire fighting equipment. The master, that is the defendant, accordingly ordered the testing of the fire fighting equipment. 3. Prior to being used to test the fire fighting system, the general service pump had been used to pump bilge water from the vessel's bilge to the slop tank on the vessel. The general service pump had not been flushed or cleaned subsequent to being used to transfer oil and bilge water. As a consequence of the prior use of the general service pump to transfer oily bilge water and the omission to ensure that it had been flushed clean, the general pump service contained an amount of oil and oily water. This residue of oily bilge water in the pump was discharged into the State waters when the fire fighting system was tested. 4. After operating the general service pump, the crew of "Karamea" notified the dry dock personnel unrelated to the vessel of the spill. Unsuccessful attempts were made by the dry dock personnel to contain the spill by the deployment of an oil containment boom. At approximately 11.40 am on 8 September 1999 employees of the Sydney Ports Corporation attended the scene. By that stage an oil sheen was clearly visible on the surface of the waters on the port aft area of the vessel. The oil sheen at that time was spread over what was said to be approximately two hundred square metres of the surface in intermittent patches. Employees of the Sydney Ports Corporation employed the jet action of the Sydney Ports Corporation's vessel "FRV1" to break up the oil sheen on the water's surface. 5. There is no evidence before the Court of any significant harm or any potential for significant harm, nor is there any evidence of any environmental harm other than the minimal harm caused by the oil slick on the surface. The master of "Karamea", the defendant, was interviewed by employees of the Sydney Ports Corporation on 8 September 1999 following the incident and he readily acknowledged that "Karamea" was responsible for the discharge. His explanation given at the time was: "using the general service pump on the fire main for survey purposes, which had previously been used on the bilge system". In answer to the question: "How did the oil escape?" the defendant said: "From the general service pump via the engine room bilges". 6. The defendant has both furnished an affidavit and given oral evidence. He says that on 8 September 1999 he directed that the fire fighting system should be tested. He remained on the vessel's deck throughout the testing. He did not play any part in arranging the pump to be used for testing but he did say in his oral evidence this morning that he told the second engineer to use the fire pump. The actual testing was carried out by the second engineer below deck. The second engineer took charge and it was he who then used the general service pump for the testing operation by which the accident occurred. While the second engineer did this below deck, he did not consult with the defendant. 7. When the fire fighting system was tested there was, as I have said, still some water remaining in the general service pump from the earlier transfer from the vessel's bilge to the slop tank. According to the defendant, he was told by the second engineer that the maximum amount of bilge water in the general service pump would have been about two to three litres, as this is the maximum which the pump can hold. When the second engineer began to use the service pump the remnant two to three litres of oily water in the pump was pumped out of the fire hoses and onto the waters of the harbour. 8. The defendant says in his affidavit that although it was only a small amount of oily water, it spread out on the surface and looked worse than it actually was. The defendant also says that the second engineer, as due part of his duties, should have flushed out the bilge water from the general service pump before he started running the pump. That is both standard procedure and commonsense. It is because the second engineer forgot to do this that the two to three litres of bilge water was pumped into the waters of the harbour when the pump was started. The defendant did not know that the general service pump had been previously used to transfer bilge water or that the second engineer had failed to flush any bilge water out of the pump. According to the defendant there would be no reason for the second engineer to tell him about this as these duties are normal duties for engineers. The defendant says that when the Sydney Ports Corporation's vessel had finished sailing back and forth across the oil sheen, thus dispersing it, there was no visible sign of the spillage in the waters. The defendant did not see nor does he know of any damage occurring as a result of the spillage. He says there was nothing he could have done from the deck at the time to prevent the incident from occurring. 9. The defendant is now aged forty-eight years. He first went to sea as an apprentice deck cadet in 1971. He has worked on ships for various employers since that time, apart from the years 1989 to 1991. He worked as a third officer for the Union Steamship Company from 1982 and was promoted to second officer, operating on coastal tankers around the New Zealand coast. He was employed by the Union Steamship Company from 1982 to 1985. He rejoined that company in 1993 and worked for it and other companies within the Union Group from 1993 to June 2000. 10. He was then appointed chief officer of "Karamea" in 1997, promoted to master in 1999 and remained the master until June 2000. During all his years of working on ships, this has been the only occasion in which he was involved in a prosecution for an oil spill. He has never been convicted or charged with any criminal offence. 11. Mr E G H Cox, who appears for the defendant, submits that in these circumstances the defendant should have the benefit of the discretion under sub-s (3) of s 10 of the Crimes (Sentencing Procedure) Act 1999. That subsection provides as follows: (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 12. I am satisfied that in this case the defendant's character and antecedents are sufficient to come within par (a) of the four requirements for the exercise of the Court's discretion. The defendant is, as I have said, a person who has had no prior criminal conviction and has had a particularly long period of service at sea. 13. The next matter for consideration is the trivial nature of the offence. In the present case two to three litres of oil or oily water was discharged on to the waters of the harbour. It was readily dispersed. It caused no environmental harm and there was no likelihood of it causing any environmental harm. I am satisfied, therefore, that par (b) of s 10(3) is satisfied in this case. 14. Next is par (c), the extenuating circumstances in which the offence was committed. It is submitted on behalf of the defendant that there was nothing further at the time that the defendant could have done to avoid the incident. He gave instructions for the testing of the fire fighting system and told the second engineer to use the fire pump. The second engineer contrary to those instructions used the general service pump which the second engineer had failed to flush before using. 15. In Thorneloe v Filipowski (2001) 52 NSWLR 60 Spigelman CJ, with whom Hulme and Howie JJ agreed, set out the circumstances in which a defendant could have the benefit of s 10 of the Crimes (Sentencing Procedure) Act 1999. In that case the defendant pleaded guilty to a charge of an offence against s 27(1) of the Marine Pollution Act 1987. In the course of his judgment Spigelman CJ referred to the following statement in Filipowski v Fratelli D'Amato .S.r.l (2000) 108 LGERA 88 (at 101): 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 had already been punished on the basis of vicarious responsibility and the person directly responsible will also be punished, would, in my opinion be an excessive and unreasonable punishment. 16. At paragraph [171] Spigelman CJ said (at 74): Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstance where the relevant accused could not, as a matter of practical reality have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur. 17. The Chief Justice then quoted (at par [173] at 75), with approval, the observations of Lord Evershed in Lim Chin Aik v The Queen [1963] AC 160 at 174: It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim. 18. At paragraph [178] the Chief Justice said (at 76): It is, in my opinion, relevant to the exercise of the discretion under s 10 of the Sentencing Act , in the context of a strict liability offence, to consider what the applicant for the benefit of s 10 could have done to avert the event that has occurred. 19. All of these observations are relevant in the present case. As I have said, in the present case the defendant instructed the second engineer to test the fire fighting system and instructed the second engineer to use the fire pump. The second engineer then went below deck and the defendant remained on the deck. The defendant could not know and did not know that the second engineer not only failed to follow the defendant's instructions and used the general service pump but had also failed to adopt a standard instruction, namely that the general service pump should be flushed after its use. 20. Under these circumstances I am of the view that the defendant should have the benefit of s 10 of the Crimes (Sentencing Procedure) Act. 21. Formal orders of the Court are therefore as follows: (1) The offence is found proved. (2) Pursuant to section 10(1) of the Crimes (Sentencing Procedure) Act 1999 without proceeding to a conviction the charge is dismissed. (3) The defendant must pay the prosecutor's costs. I hereby certify that the preceding 21 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.