Filipowski v Bak and Anor - [2004] NSWLEC 498

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Filipowski v Bak and Anor [2004] NSWLEC 498

PARTIES:
PROSECUTOR
Barbara Filipowski

DEFENDANTS
Seon Yong Bak
Lucky Hill Shipping S. A.

CASE NUMBER: 50085 OF 2002; 50086 of 2002

CATCH WORDS: Prosecution

LEGISLATION CITED:
Marine Pollution Act 1987, s 3, s 18(1)

CORAM: Cowdroy J

DATES OF HEARING: 17/05/2004; 19/05/2004; 06/07/2004; 07/07/2004; 30/08/2004; 01/09/2004

EX TEMPORE DATE: 01/09/2004

LEGAL REPRESENTATIVES

PROSECUTOR
Mr A. Meagher SC
Mr A. L Hill (Barrister)

(from 06/07/2004)
Mr A. L Hill (Barrister)
Ms E. Yam (Barrister)

SOLICITORS
Dibbs Barker Gosling

DEFENDANTS
Mr G. J. Grogin (Barrister)

SOLICITORS
Ebsworth and Ebsworth

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

1 September 2004

50085 of 2002 BARBARA FILIPOWKI v SEON YONG BAK

50086 of 2002 BARBARA FILIPOWKI v LUCKY HILL SHIPPING S.A

Judgment

Facts

Each defendant in these proceedings is charged with having committed an offence against s 18(1) of the Marine Pollution Act 1987 (“the Act”) which relevantly provided:-
(1)Subject to subsection (2) and subsections (4) to (12) (inclusive), if any discharge of a liquid substance, or of a mixture containing a liquid substance, being a substance or mixture carried as cargo or part cargo in bulk, 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.
“State waters” is defined in s 3 of the Act to include:-
State waters means:
(a) the territorial sea adjacent to the State,
(b) the sea on the landward side of the territorial sea adjacent to the State that is not within the limits of the State, and
(c)other waters within the limits of the State prescribed by the regulations for the purposes of this definition.
In proceedings No. 50085 of 2002 the defendant Seon Yong Bak (“the Master”) is charged that on 4 August 1998 whilst Master of the liquid tanker “Golden Frontier” (“the vessel”) a discharge of liquid substance carried as cargo namely Lauryl alcohol occurred into State waters. In proceedings No. 50086 of 2002 the defendant Lucky Hill Shipping S.A (“the owner”) is similarly charged as owner of the vessel at the date of the offence.
Each defendant initially pleaded not guilty and the proceedings were set down for hearing in December 2003 as defended proceedings. Such hearing did not proceed and were adjourned by consent. A five day hearing was set down before the Court to commence on 17 May 2004. However on the last business day prior to the commencement of the hearing the prosecutor was notified that a plea of guilty would be entered to each charge. At the commencement of the hearing on 17 May 2004 each defendant pleaded guilty.
The prosecutor’s evidence
John Ronald Biffin, ships’ pilot testified that he boarded the vessel at the Bulk Liquids Berth at Port Botany at approximately 12.40pm on 4 August 1998. Under his pilotage the vessel left the berth at 1.15pm and at 1.35pm he disembarked from the vessel near Bumborah Buoy, a navigation point outside Botany Bay.
On the same day Matthew Albert Westwood was the First Officer on Flight QF261 which was flying from Lord Howe Island to Sydney under the command of Captain Stewart Boyd. Shortly before the aircraft landed at Sydney at 3.46pm Captain Westwood observed a discharge (“the slick”) in the ocean extending behind a vessel. His observation of the slick was made when his aircraft was approximately eight nautical miles east from the coastline. From that position he saw a vessel east of Sydney Heads and saw the slick extending from it for a length of about 12 miles. He estimated the slick to be 30 metres wide at the stern of that vessel and extended outwards the further it was from the vessel. When his aircraft was over Cape Solander, he estimated that the slick was approximately one to two nautical miles east of the coast. He observed the slick to be grey green in colour and saw that there was no similar discolouration ahead of that vessel.
Captain Stewart Boyd made the same observations as referred to in the evidence of Captain Westwood. He noted that where the slick commenced there appeared to be froth on the surface of the water. On 4 August 1998 he telephoned the Australian Maritime Safety Authority (“AMSA”) and reported his observations.
Keith Black, the pilot of an Aeropelican flight from Belmont to Sydney arriving at Sydney at approximately 3.45pm on 4 August 1998 observed a slick which he estimated to be approximately five nautical miles offshore east of Coogee. He considered it to be approximately 10 nautical miles in length and was located in a north-south direction from a vessel. The slick was narrow at the stern of the ship and extended out to two nautical miles in width from the extremity of the slick which was located approximately two nautical miles from the coast south of Coogee. He could see no slick ahead of the ship. He reported his observations to the airport traffic control tower at Mascot Airport.
John Gregory Beck the Operations and Training Coordinator, Environment Protection Group of AMSA received a report at approximately 4pm on 4 August 1998 of the sighting of an oil slick trailing from a vessel off Sydney. He requested the Australian Search and Rescue Centre (“AusSAR”) to do a search of the vessels in the vicinity. He identified a vessel in the search area at that time as a medium-sized tanker known as the “Golden Frontier”. He then contacted Captain Boyd to confirm his reported sighting and also attempted to contact Captain Black.
Sam Pansare, Communications Superintendent of Sydney Ports Corporation, observed the radar screen maintained by that Corporation recording movement of vessels off the coast of Sydney on 4 August 1998. At approximately 4.21pm on 4 August 1998 Mr Pansare received a facsimile from the AusSAR centre which contained a report of observations from aircraft of oil scum astern of a tanker off Bondi and indicated that the “Golden Frontier” was in the vicinity. Mr Pansare then spoke the Master of the “Golden Frontier”. Mr Pansare asked:-
We have a report from an aircraft that there is an oil scum around your vessel. Are you pumping out ballast or carrying out any transfer onboard your ship?
The Master replied:-
Yes, we are pumping out clean water through the separator.
Mr Pansare also asked:-
Have you entered the pump out in your log book?
The Master replied:-
Yes
On 5 August 1998 Stephen John Atkinson was the Chief Officer on board the MV Tasman which was waiting to berth at Port Botany. Following a conversation with the Captain the ship proceeded to latitude 34o05.9’ south longitude 151o33’ east where he observed a slick in the sea approximately 700 metres wide by 700 metres long. His ship proceeded through the slick and slowed to enable Mr Atkinson to obtain a sample of the substance comprising the slick. The samples were delivered to an officer of Sydney Ports Corporation later that day. Mr Robert Spicer was the Master of the MV Tasman and watched Mr Atkinson obtain the sample.
Robert Worrell deposed that he is an analyst then engaged with the Australian Government Analytical Laboratories (NSW). On 11 August 1998 he received samples provided to him by AMSA. He identified the samples as comprising Lauryl alcohol, otherwise known as Dodecyl alcohol.
Jenny de-Wit, Shipping Manager employed by Sydney Ports Corporation has access to its shipping documents. She adduced a “Dangerous Goods Lodgement” document of the “Golden Frontier” which shows that on 4 August 1998 the “Golden Frontier” was carrying Lauryl alcohol as part of its cargo.
Michael Kinley, Manager, Ship Inspections, Maritime Operations division of AMSA interviewed the Master of the “Golden Frontier” on Thursday 6 August 1998. Mr Kinley asked the Master:-
Are the entries made in the ship’s cargo record book true and correct?
The Master replied:-
Yes
Mr Kinley asked the Master:-
Was the “Golden Frontier” in the vicinity of 33o50.3 minutes south, 151o36.2 minutes east at 1530 hrs on 4 August 1998 as recorded in the cargo record book?
The Master replied:-
Yes correct position
Mr Kinley asked the Master:-
Was the vessel discharging anything at this time and place?
The Master replied:-
As you know from the cargo record book there was some cleaning at this time.
Mr Kinley said:-
The cargo record book states that you discharged tank washings from No. 8 port and starboard at this time. Is this correct?
The Master replied:-
Yes
During the interview the Master also told Mr Kinley that the tank washings contained Lauryl alcohol and the stripping quantity as per a manual entitled “Procedures and Arrangements Manual” (“the P & A manual”) was 171 litres per tank. The P & A manual comprised Annex II of the International Convention for the Prevention of Marine Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto (“MARPOL 73/78”). The Master also stated that the pollution category for Lauryl alcohol in Annex II of MARPOL 73/78 was category B but that prior to the discharge of the tank washings on 4 August 1998 he had though Lauryl alcohol was in pollution category C.
Heath Lester, Distribution and Operations Supervisor of Terminals Pty Ltd deposed that on 4 August 1998 he was employed as a Ship’s Surveyor. He undertook a survey of the vessel on that day prior to the discharge of its cargo at Port Botany. He observed that the cargo of Lauryl alcohol was at a temperature of 20oC when the vessel arrived and that the cargo had solidified. As a result the cargo could not be pumped ashore until it had been heated. He looked into number 8 port and starboard tanks of the vessel and saw tide marks of solidified Lauryl alcohol on the inside of the tanks which he considered resulted from the cooling of the Lauryl alcohol against the sides of the tanks as they were being emptied or from the non heating of the Lauryl alcohol. Mr Lester noted that the quantity of Lauryl alcohol in the port and starboard tanks on arrival was 405.462 tonnes and that the quantity discharged was 400.645 tonnes. The difference is 4.817 tonnes.
Mr Lester prepared a survey report, which incorporated two Notices of Protest which were dated 4 August 1998 and 6 August 1998 and a “dry certificate” dated 4 August 1998. Such certificate certifies that the vessel’s tanks were “free of pumpable cargo”. The notices record the fact that temperature of the cargo was such that it required heating to 30oC in order to be discharged and also that there was a discrepancy between the quantity of cargo in the vessel on arrival and quantity pumped from the vessel.
Dr Brian King, consultant marine engineer undertook an examination of the location of the slick. He concluded that the discharge of the slick must have commenced prior to 3.30pm on 4 August 1998. He calculated the possible size of the slick, as described by Mr Black as being between 1,715 litres and 3,430 litres and considered the latter quantity to be the most probable. Dr King was of the opinion that the probable volume of the slick was between 3,430 litres and 5,800 litres, the latter being the quantity calculated from the evidence of Mr Zarb which is considered hereunder.
Raymond Arthur Charles Lipscombe, Manager, Environmental Protection Response, Emergency Response Business Unit of AMSA has had extensive experience with oil spills. Mr Lipscombe assumed Lauryl alcohol behaved in a similar manner to oil when spilled on water and calculated the volume of Lauryl alcohol contained in the slick described by the aircraft pilots as being between 3,465 litres and 4,150 litres.
William S Rooney is an expert in aquatic ecology and water quality and provided evidence regarding the nature of Lauryl alcohol and its effects on aquatic and marine life. Mr Rooney was of the opinion that Lauryl alcohol would completely biodegrade in seawater within weeks to months, but that it has the potential to accumulate in organisms over time if it “were at all persistent in the environment”. Mr Rooney deposed that Lauryl alcohol is considered toxic because it is a primary irritant and its potential to harm intertidal organisms, crustaceans, marine zooplankton and seabirds through contact or ingestion is high. He considered that the ecological consequences of the discharge would have been moderate if the slick did not reach the shoreline, but if it did reach the shoreline the environmental risks would have increased exponentially, particularly because of its effect on intertidal organisms. Mr Rooney concluded that Lauryl alcohol would present a potential toxicity or at least irritation risk to animals which came into contact with the surface slick.
John Francis Leeder an analytical chemist provided a report on the characteristics of Lauryl alcohol. He deposed that a slick of Lauryl alcohol (or n-dodecanol) would have produced an area of high toxicity to fish and other marine organisms, it being very toxic to aquatic organisms. In his opinion the discharge of Lauryl alcohol into the marine environment would have caused a negative impact to the marine ecology and any aquaculture in its vicinity. Attached to his report is a publication entitled “Material Safety Data Sheet” published by Proctor and Gamble Chemicals (“the material safety data sheet”).
James Zarb, Operations Logistics Resource Manager of Terminals Pty Ltd (“Terminals”) was previously Operations Manger and National Quality Manger for Terminals. He has been employed by that company for almost 12 years. Mr Zarb has no formal qualifications but has worked in the chemical industry for 21 years.
Mr Zarb provided a “Discharge/Loading Plan” of the vessel dated 2 August 1998 which shows that the vessel intended to unload 405.700 metric tonnes of Lauryl alcohol from its number eight port and starboard tanks. A copy of the shipping details for the vessel shows that 405.462 metric tonnes of Lauryl alcohol was being carried by the vessel. The “Out-Turn Statement” for the Terminals tanks number 219 dated 5 August 1998 shows that the tank contained 27.585 metric tonnes of Lauryl alcohol and after receipt of the cargo it contained 428.230 metric tonnes, a difference of 400.645 metric tonnes.
Mr Zarb has been handling Lauryl alcohol since 1996 and has received it about three times a year. Additionally similar product is received for storage, and usually vessels discharge such cargo about three times per year. Terminals received the product through a dock line into a storage tank. After the product is stored customs clearance and customer quality testing is performed on the cargo.
In cross-examination Mr Zarb said he could not remember whether the surveyor was present on the vessel, but he could remember seeing the surveyor Mr Lester undertaking the test on tank 219 at Terminals when the vessel arrived. Prior to the arrival of the vessel, Mr Zarb could not remember when any tests were performed on the previous cargo remaining in tank 219. In his task of assessment, Mr Zarb relied upon the reports of the surveyor. He believed the tank would have been tested two to three months before the arrival of the vessel. He concluded that the sample taken on that occasion must have being liquid.
Testing for volume of the product in the tanks was within Mr Zarb’s expertise and he described how the volume of the storage tank is calibrated by computer system. The dip is performed by a surveyor using an electronic tape and the results are recorded in a computer. The temperature is also taken of the product in the tank and the computer then calculates the volume of liquid present in the tank from the remaining available volume. Such method is the ullage method.
Mr Zarb explained that this testing is done by volume, not by mass or weight. There is no facility for weighting the product. The volume in litres and the temperature is recorded and converted into mass. Mr Zarb agreed that volume would change with temperature, but mass or weight does not alter with temperature. Terminals do not keep records of mass, when unloading. Mass is recorded when the product is leaving the terminal by tanker.
Mr Zarb disagreed with Dr Crisp’s conclusion as considered hereunder that no accurate estimate of the quantity of Lauryl alcohol discharged from the vessel could be obtained from Terminals’ procedures. Tank 219 had been operative since 1976 and there have been no problems arising out of any inaccuracy of the calibration. Mr Zarb said a check is made by using a weighbridge. Whenever loads leave Terminal’s premises, tankers are weighed and the weight is recorded in a computer. Accordingly the crosscheck ensures an accurate weight and volume in the tank. If there is a discrepancy between the book stock record and the weighbridge record, verification dips can be made. Some discrepancies have occurred between the two methods, but they have been resolved.
Peter Edwin Burge, consultant marine engineer inspected the vessel in March 2002 and provided a report. He concluded that the vessel did not have the pumping capacity or technical capability to allow it to treat remnant Lauryl alcohol in such manner that discharge overboard of a diluted mixture would comply with the Act. Mr Burge deposed that a “dry certificate” meant that no more pumpable cargo could be removed from the vessel. He deposed that in his opinion the cargo would only have been partially liquefied at Port Botany and that the cargo furthest away from the heating coil pipes in the vessel would have remained in a partially solidified state.
In cross-examination Mr Burge rejected the opinion of Dr Crisp regarding the solidified liquid tidemarks observed by Mr Lester. Mr Burge considered that the tidemarks could have resulted in a clingage of about one centimetre around the tank. Mr Burge believed that there may be different methods adopted in different ports around the world in the measurement of the loading and of unloading of cargo. Mr. Burge considered that it was unlikely that the whole cargo within the vessel’s tanks could have been heated to 30oC after two hours and 35 minutes following its arrival at Terminals.
The defendants’ evidence
The Master obtained his Master Certificate in Korea in 1995. He commenced his seagoing career in 1972 when he joined the Korean Navy and commenced employment with his current employer namely Dorval Kaiun K.K. (“Dorval Kaiun”) in 1992. He has had 25 years experience in the marine industry and has never had any prior convictions for any offence.
The Master joined the vessel in early 1998 and remained as her Master until mid 1999. As Master he was responsible for the vessel’s navigation. His affidavit states that he was aware of the MARPOL 73/78 regulations and also aware of the policies of Dorval Kaiun. The P & A manual was kept on board the vessel, a portion of which relates to the cleaning of cargo tanks and the discharge of residues. The vessel complied with the requirements of the International Management Code for the Safe Operation of Ship and for Pollution Prevention as evidenced by a “Document of Compliance” issued at Tokyo on 31 March 1998.
At Port Botany on 4 August 1998 at 12.40pm the vessel completed the unloading of its cargo of Lauryl alcohol which had been transported from Jasaan, Philippines. The Master had been informed by the Chief Officer at Jasaan that Lauryl alcohol was a coconut extract.
The Master’s affidavit states that he checked the manual and could not find any listing for Lauryl alcohol and that he examined another directory known as the “Stolt-Nielsen Commodity Handbook 1998” and found an entry for Lauryl alcohol which was described as “coc fatty alcohol (P & G)”. It was also described as “C-chain” which the Master thought was categorised as a category C product under MARPOL 73/78.

According to the Master he vessel departed Port Botany on 4 August 1998 and at approximately 3.30pm it was located in the vicinity of 33o50.3’ south, 151o36.2’east. According to the cargo record book the vessel discharged tank washings from number 8 port and starboard tanks at 3.30pm when the vessel was more than 12 miles from the coast.
The Chief Officer was in charge and responsible for such operations and the Master was unaware of those operations. The Master says that the stripping quantity required for number 8 tanks port and starboard is 171.8 litres for each tank and he believed that this was the maximum quantity which could have remained in the tanks.
Mr James Craig Kibby swore an affidavit on behalf of the owner. Mr Kibby is also a Director of Dorval Tankships Pty Limited which is the sole agent in Australia and New Zealand for Doravl Kaiun which is the time charterer of the vessel and not its owner. His evidence establishes that the vessel has been on time charter to Dorval Kaiun since 1991. Dorval Kaiun operates approximately 20 chemical tankers. The vessel is a purpose built chemical tanker having 26 cargo tanks. It was constructed in 1987 and at the time of the offence the vessel was operated by Dorval Kaiun. The vessel held the relevant certificates of safety management and complied with the International Management Code for the Safe Operation of Ships and for Pollution Prevention. Mr Kibby also described refresher courses held in Korea for crew members concerning environmental and safety issues.
Mr Kibby was cross-examined. Relevantly as representative of the Australian company, he only had control over the movement of vessels under the control of Dorval Kaiun in Australian waters. He was not aware of any specific measure that had been taken by Dorval Kaiun to make their crews aware of this incident, nor of any training to prevent similar incidents.
Professor Charles Gregory Skilbeck, Head of Department and Professor, Department of Environmental Sciences at the University of Technology Sydney provided a report for the defendants concerning the volume of the discharge based upon observations of aircraft pilots. Professor Skilbeck stated that 1-dodecanol has affinity to water and would tend to bond with it, unlike oil with a similar specific gravity. Accordingly 1-dodecanol would spread more rapidly than oil and would tend to spread to a thin layer over the surface of water. He said that the viewing angle of a slick of 1-dodecanol was important. If viewed from a low angle, it could appear to be thicker than if viewed from a higher angle. He agreed that the quantities of both 343 litres and of approximately 5000 litres could account for the extent of the slick. Since 1-dodecanol solidifies at 24oC and since the ocean temperature in August is likely to be between 17 oC and 20oC, any discharge would have started to solidify and may not have spread as rapidly as oil. Professor Skilbeck also referred to a HAZMAT Report entitled “Aerial Observations of Oil at Sea” dated April 1996 which cautioned against any accurate assessment being made from the air of the extent of oil spills. Professor Skilbeck acknowledged that the observations of Captain Black would tend to support a discharge of approximately 3443 litres.
Professor Skilbeck claims that there is a distinction to be drawn between the observations of Captain Westwood, which Professor Skilbeck suggests were changed in Captain Westwood’s supplementary affidavit. Professor Skilbeck considered that on the basis of Captain Boyd’s and Captain Westwood’s original affidavits, the volume calculated from those observations would be approximately 44 litres. However on the basis of the observations contained in Captain Westwood’s supplementary affidavit, he calculated the volume of discharge to be approximately 4153 litres.
Captain David Read provided a report in which he reviewed the documentation concerning the loading and unloading of the cargo, the vessel’s documentation and the survey report of Mr Lester. Captain Read concluded that the “tank dry certificates” indicated that all pumpable product had been discharged and that there was insufficient evidence to establish the precise quantity discharged.
Dr Philip Thomas Crisp is an environmental scientist and analytical chemist. He prepared two reports, being dated 15 June 2004 and 5 July 2004. His reports relate to the identity of the material released from the vessel, the physical and chemical properties and biological effects of Lauryl alcohol. In his first report Dr Crisp concluded that the available evidence was insufficient to estimate the quantity of material released from the vessel and to estimate its biological effects. In his latter report Dr Crisp said that he was not able to confirm the quantity of discharge. He said that it was not valid to estimate the quantity of discharge from visual observations using petroleum and petroleum products. He acknowledged that it should be possible to estimate the discharge using physical data from the ship, which required an estimate of quantities retained on tank surfaces. Such an estimate would require accurate knowledge of material adhering to tank walls. As to biological effects, Dr Crisp said that whilst the constituents were toxic to a wide range of marine organisms, they were readily biodegradable and its rate of biodegradation was not known.
In cross-examination, Dr Crisp acknowledged hat he had not been on any bulk tankers nor worked at receiving terminals. He had observed small out spills around vessels, and had been involved in litigation an as expert witness on two occasions involving marine pollution.
Dr Crisp stated that he would need further information to provide a judgment concerning the effect of any toxicity discharged into the ocean. For example he said that Lauryl alcohol, when discharged, could have solidified and that any toxicity would have been minimised. Dr Crisp considered that the droplets, discharged with hot seawater used for flushing the tanks, would have promptly solidified. The water solubility could not be determined, although published data said Lauryl alcohol possessed low solubility. According to the material safety data sheet attached to Mr Leeder’s report, the water solubility of Lauryl alcohol was negligible at 22oC. Dr Crisp considered that such a statement was uncertain.
Dr Crisp said he had not formed any estimate of the amount of Lauryl alcohol discharged. His concern related to uncertainties, which he perceived with the calculations used to estimate the quantity of the discharge.
Penalty
Despite the voluminous evidence adduced by each party, in view of the plea of guilty entered by each defendant to the charge against them, the Court is only required, in each case, to assess the appropriate penalty.
It is unnecessary for the Court to repeat the factual matters giving rise to the commission of each of the offences by each defendant as they have been detailed in the prosecution’s evidence which, apart from the evidence of Mr Burge and Mr Zarb, has not been the subject of cross examination. The only issue relates to the calculation of the quantity of the discharge and whether all of such quantity was discharged into State waters.
In cross-examination the Master’s evidence was confusing. He did not provide a satisfactory explanation for his mistake in categorising the Lauryl alcohol as category C instead of category B. He said that there were two logs kept by the ship, namely a cargo record book and an oil record book. However he could not explain why there were two cargo records produced for 4 August 1998 and why the information in each one was different. Nor could he explain why one cargo record was signed by himself and recorded Lauryl alcohol as being category C, whereas the other cargo record, signed by the Chief Officer shows the cargo as category C but amended to category B.
The Master acknowledged that his statement to Mr Pansare that the vessel was pumping clean water through the separator was wrong. He also admitted that he did not pay much attention to the requirements of the manual relating to the washing of the tanks following the carriage of liquid categorised as category C. He knew that the manual existed but he had not paid attention to its contents. He acknowledged that he did not check the manual at the time of the discharge of the cargo and agreed that the contents of his affidavit were incorrect. It further became apparent that the Master did not know of the characteristics of the cargo when it was unloaded at Port Botany on 4 August 1998. He only made efforts to discover its classification after he was contacted by Mr Pansare by radio as the vessel travelled northwards towards Brisbane.
In this respect the Court has the evidence of the quantity of cargo of Lauryl alcohol placed on board the vessel at Jasaan and the quantity received at Terminals. The Court has also had the benefit of all of the evidence above including the opinions of Professor Skilbeck and Dr Crisp.
Having considered such evidence the Court is satisfied that the actual records relating to the discharge of the cargo and of the discrepancy arising between the receipt of the cargo onto the vessel and its discharge into tank 219 provide the most accurate assessment of the quantity which remained in the vessel’s tanks when it left Botany Bay. The records of Terminals establish a discrepancy of 4.817 tonnes. Pilot Black was not cross-examined and the Court accepts his visual observations which in general are supported by the observations of the remaining pilots. Professor Skilbeck acknowledged that if Pilot Black’s description of the slick was correct the likely discharge over the area which was observed by Pilot Black was 3343 litres. It was approximately such quantity which the Court finds was cleared from the tanks as the vessel was travelling in a north north easterly direction commencing approximately two to three nautical miles from the coast. The Court is satisfied that the bulk of the discharge occurred within State Waters and that it was substantial. It is unnecessary for the Court to ascertain the precise quantity since the charge is not dependent upon a threshold.
The Court observes that an insurance claim was made by the owner of the cargo in respect of a discrepancy as contained in exhibit G. In making its finding concerning the quantum of the discharge, the Court has paid no regard to such claim.
The cause of the discharge was the failure of the Master to comprehend the nature of his cargo. He acknowledged that he was not aware of its correct classification under MARPOL 73/78 and had taken no steps to inform himself of its classification before the slick was detected. The lack of comprehension clearly demonstrated by the Master and accordingly by the owner constitutes a serious failure of their responsibilities. The carriage of a category B substance gives rise to the need to observe strict procedures as prescribed by the P & A manual to ensure that the environment is adequately protected. It is acknowledged by the defendants that even if the Master had been correct in his understanding that the cargo was a category C substance, the discharge was still in violation of the P & A manual procedures.
As to the ecological effects of the discharge, there is no evidence of any actual harm to the environment. However the Court is satisfied that the toxic nature of Lauryl alcohol is to be considered in the assessment of penalty.
Mitigation
The defendants submit that each defendant has expressed contrition. The Court is not however satisfied that any genuine contrition can be inferred from their actions. The evidence of Mr Kibby does not satisfy the Court that the owner has introduced any system to prevent a recurrence of such offence. Nothing has been placed before the Court to satisfy it that the Master has, by virtue of this offence, understood the necessity to ascertain the nature of his cargo and the procedures for its disposal.
The late pleas of guilty do not entitle either defendant to any substantial discount of penalty since the utilitarian value of the plea, being notified to the prosecutor shortly before the hearing is limited: see R v Thomson; R v Houlton (2000) 49 NSWLR 383. The Court will nevertheless give the benefit of a 10 per cent discount in penalty in recognition of the fact that culpability was thereby acknowledged.
The Court is satisfied that the Master is more culpable than the owner because of his acknowledged neglect. For this reason the Court, having regard to the maximum penalties prescribed for each defendant proposes to award a disproportionate penalty against the Master. The Court considers that the appropriate penalty to be imposed against the Master is the sum of $60,000 such penalty will be reduced by 10 per cent to $54,000. In respect of the owner the Court considers that a penalty of $150,000 should be imposed, reduced by 10 per cent to $135,000.
In each case the defendant is to pay the prosecutor’s costs.
Orders
The Court makes the following orders:
In Proceedings No. 50085 of 2002:-
1.            The Court finds the offence proved;
2.            The defendant is convicted of the charge as set out in the summons;
3.            The defendant is fined the sum of $54,000;
4.            The defendant is to pay the costs of the prosecutor as agreed or assessed;
5.            The exhibits be returned.
In Proceedings No. 50086 of 2002:-
1.            The Court finds the offence proved;
2.            The defendant is convicted of the charge as set out in the summons;
3.            The defendant is fined the sum of $135,000;
4.            The defendant is to pay the costs of the prosecutor as agreed or assessed;
5.            The exhibits be returned.