Filipowski v Island Maritime Limited

[2003] NSWLEC 59

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Reported Decision: 124 LGERA 331

Land and Environment Court

of New South Wales

CITATION:	Filipowski v Island Maritime Limited and Another [2003] NSWLEC 59
PARTIES:	PROSECUTOR Barbara Filipowski DEFENDANTS Island Maritime Limited Sachin Kulkarni
FILE NUMBER(S):	50011; 50012 of 2002
CORAM:	Talbot J
KEY ISSUES:	Construction and Interpretation :- no case to answer Prosecution :- no case to answer
LEGISLATION CITED:	Interpretation Act 1987 s 33 Marine Pollution Act s 8, s 8(1), s8(2), s 8(2)(b), s 8(4), s 18, s 18(1), s 18(2), s 18(4), s 18(5), s 18(6), s 18(7), s 18(8), s 18(9), s 18(10), s 18(11), s 18(12), s 25, s 26, s 26(a), s 26(b), s 26(d), s 27, s 27(1)
CASES CITED:	Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; May v O'Sullivan (1955) 92 CLR 654; R v R (1989) 18 NSWLR 74; Wentworth v Rogers and Another [1984] 2 NSWLR 422
DATES OF HEARING:	20/02/2003, 21/02/2003
DATE OF JUDGMENT:	03/07/2003
LEGAL REPRESENTATIVES:	PROSECUTOR Mr A L Hill (Barrister) SOLICITORS Abbott Tout DEFENDANTS Mr C G Gee QC with Mr G J Grogin (Barrister) SOLICITORS Ebsworth & Ebsworth

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50011 of 2002
50012 of 2002

Talbot J

7 March 2003

Barbara Filipowski

Prosecutor
v

Island Marine Limited

Sachin Kulkarni

Defendants

Judgment

Introduction

1 The defendant company, Island Marine Limited, has entered a plea of not guilty to a charge that on 14 November 1999 it was the owner of a ship, namely the vessel “Pacific Onyx” (“the vessel”) from which a discharge of oil occurred into State waters, namely the waters of Botany Bay in contravention of s 27(1) of the Marine Pollution Act 1987 (“the Marine Pollution Act”).

2 The defendant, Sachin Kulkarni, has entered a plea of not guilty to a charge in respect of the same discharge of oil. At the time he was master of the vessel.

3 Section 27 is within Pt 4 of the Marine Pollution Act, which is directed to pollution relating to transfer operations.

4 A transfer operation is defined in s 25 as follows:-

…any operation that is involved in the preparation for, or in the commencement, carrying on or termination of, a transfer of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance to or from a ship or a place on land.

5 Section 26 provides as follows:-

26 Discharges to which Part applies
This Part applies to a discharge of oil or of an oily mixture or of a liquid substance or of a mixture containing a liquid substance into State waters:

(a) from a ship or place on land in or in connection with a transfer operation, or

(b) from any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used,

but does not apply:

(c) to a discharge that occurs on the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline used in or in connection with a transfer operation, whether or not it is being so used, or at any other place prescribed for the purposes of this section, or

(d) to a discharge to which Part 2 or 3 applies.

6 Section 27(1) is the basis of the charge in each case and provides as follows:-

(1) If a discharge to which this Part applies occurs, each appropriate person in relation to the discharge, 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—$500 000, or

(b) if the offender is a body corporate—$10 000 000.

7 An appropriate person is defined as:-

"appropriate person" means:

(a) in relation to a discharge from an apparatus on a ship:

(i) the owner of the ship, or

(ii) the master of the ship, or

(iii) the owner of the apparatus, or

(iv) the person in charge of the apparatus, and

(b) in relation to a discharge from a ship:

(i) the owner of the ship, or

(ii) the master of the ship, or

…

8 Section 8(1) within Pt 2 of the Marine Pollution Act provides that if any discharge of oil or of an oily mixture occurs from a vessel into State waters the master and the owner of the vessel are each guilty of an offence whereas s 18(1) within Pt 3 provides that 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 vessel into State waters the master and the owner are each guilty of an offence.

9 Section 8(2) and s 8(4) and ss 18(2), 18(4), 18(5), 18(6), 18(7), 18(8), 18(9), 18(10), 18(11) and 18(12) provide that s 8(1) or s 18(1) respectively do not apply to certain discharges or discharges which take place under certain conditions.

10 The evidence discloses, and it is not disputed, that the vessel was berthed at Caltex Wharf, Kurnell (“the wharf”) on Sunday 14 November 1999 when oil was observed on the surface of the water between the starboard side of the vessel and the wharf.

11 Discharge of cargo from the vessel to the wharf commenced at 1450 hours. When oil was observed on the surface of the water between the vessel and the wharf the discharge was immediately stopped and valves were closed. Further plumes of oil emerged after the pumps had been turned off.

12 No leaks were detected from under the wharf.

13 The next day a diver observed oil leaking from a 50 – 60mm vent hole above the starboard aft sea chest grating. At the time the oil leak was observed by the diver a controlled discharge of cargo was being undertaken. The defendant, Captain Kulkarni, explained the incident in a record of interview as follows:-

After the spill was observed discharge was immediately stopped and valves closed. A full investigation was undertaken. All likely possible reasons for a discharge from the ship were checked and discounted. It was therefore necessary to investigate further and because of the very unusual nature of the likely determined cause this took some time needing the assistance of surveyors. It is believed that the discharge occurred from the cargo sea chest drain hole on the starboard side and that oil entered the sea chest through the sea chest steam inlet pipe. There are steam pipes which lead to the cargo separators. The steam is used to warm cargo residues in the separators for cleaning or discharge purposes when high viscosity cargos are carried. In fact, such cargos have not been carried for at least four years and therefore these pipes have not been used for that time. They are nevertheless maintained and were last overhauled on 15 June 1999 as part of the ship’s planned maintenance. The valves in the piping system were shut throughout. These valves connected to the sea chest were last checked and certified in order by the ship’s classification society during the scheduled dry-docking in Brisbane in October 1998.

14 Peter Edwin Burge is a Marine Consultant retained by the prosecutor to examine the facts of the oil spill.

15 Mr Burge has expressed the following opinions:-

57. The circumstances suggest to me that the cause of the flow of oil through the steam inlet valve on the cargo separators was that the valve itself had either failed or it had been physically opened and left open.

…

67. I believe that the oil escaped from the vessel when the cargo tank and cargo oil pump valves had been opened to pump the cargo ashore. When the tank and pump valves were opened and the oil was admitted into one or more of the cargo separators…, the oil flowed into the steam reticulation system through the steam inlet valve on one of the separators… I do not know why or if the steam inlet valve was opened. It may have been the case that the valve was leaking or simply left open. The oil flowed through the steam reticulation pipework and out to the sea through a condensate drain valve or blow-down valve…which led to an outlet in the hull near the starboard side “ballast” sea chest. I do not know why or if the blow down valve was opened. It may also have been the case that the blow- down valve was leaking or that it was simply left open.

16 In cross-examination Mr Burge explained that in order to overcome the pressure of seawater at the stub below the blow-down valve there must be a head of oil pressure in the steam system. It is assumed that as the cargo level is higher than sea level then the oil would follow the path through the steam pipes as soon as a valve connecting the cargo system with the steam system is opened. Mr Burge agreed that if the pressure on the inlet side of the valve is greater then the pressure on the outlet side when the spindle in the valve is open then the head of the valve would lift off its seat. Furthermore, he agreed that there would be very little pressure on the steam system side of the valve.

17 Also in cross-examination Mr Burge told the Court that if the pumps are running at the maximum rate there is likely to be a vacuum at the suction side so that while the pumps are running the pressure in the steam system is reduced. The pressure to the steam system will vary according to the rate at which the pumps are running so that there will be a higher pressure if the pumps are running slowly than if they are running at a higher rate. In re-examination he explained that the head in the cargo tank exerts pressure while the pumps are not working thereby increasing pressure into all of the connecting systems.

18 The flow observed by Mr Burge in a videotape taken by the diver is described by him as an intermittent constant very slow flow.

19 Mr Burge did not inspect the vessel until 13 May 2002. However, he does not believe that the oil would have escaped if the vessel had not been in the process of pumping its cargo oil from its tanks to the Caltex Oil Refinery. He says he has formed this opinion because the escape of oil from the ship was only made possible by the opening of the cargo oil tank valve and these are only opened for the purpose of discharging oil from the ship to the shore, receiving oil from the shore to the ship or for internally transferring oil from tank to tank. On this occasion the ship was neither receiving oil nor transferring oil from tank to tank.

20 At the conclusion of the prosecutor’s case, Mr Gee QC, who appears for the defendant, made a submission that there was no case to answer. He based the submission on the facts established by the evidence and an interpretive approach to the Marine Pollution Act.

The facts

21 The submission by the defendants is that there is no case to answer because the prosecutor has failed to prove that there was a discharge to which Pt 4 of the Marine Pollution Act applies.

22 The evidence shows, beyond reasonable doubt, that oil, forming part of the cargo, entered the steam reticulation system and then entered the sea through the blow-down valve.

23 It is Mr Gee’s contention that the discharge of oil did not occur “in or in connection with a transfer operation”. Rather, it has been shown to be a fortuitous by-product of a transfer operation. Although the transfer operation has been proved to be the occasion when the discharge occurred it was not part of the transfer operation itself. Accordingly, he says, the prosecutor has failed to prove that it was a discharge in accordance with s 26(a) of the Marine Pollution Act.

24 The word “apparatus” used in s 26(b) is not defined. There is no allegation that the discharge took place from a “purpose-built pipeline” which is defined. Mr Gee asserts that the blow-down valve in the steam system has nothing to do with a transfer operation.

25 The evidence shows that the steam system is used when high viscosity cargoes are carried. The defendants make two points. Firstly, the facts do not show that the subject cargo was high viscosity. More importantly, however, the undisputed fact is that the steam pipes, which lead to the cargo separators, had not been used for at least four years. Mr Gee’s submission relies on the fact the steam system was not being used on 14 November 1999. The strength of his argument depends upon the Court being satisfied the blow-down valve apparatus was not capable of being used. Mr Burge opined that because tank-cleaning systems are in constant use it is quite likely that the blow-down valve was in constant use. He says it is equally plausible that the valve had been left open or that it may have been faulty. No actual basis is provided for this opinion. However, he agreed in cross-examination that if a blank flange had been placed in the steam reticulation system upstream of the “blow-down” valve and the inlet valves to the cargo separators it must be accepted that the steam system was de-commissioned at the relevant date. A blank flange was in place at the relevant date, although its actual location is unclear.

26 The question to be posed as to whether there is a case to be answered at the conclusion of the evidence by the prosecutor “is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted” (May v O’Sullivan (1955) 92 CLR 654 at 658). This is a question of law.

27 The Court is required to determine whether the evidence from the prosecutor’s witnesses is sufficient to warrant a conviction without regard to evidence which favours the accused by contradicting, qualifying or explaining that evidence (R v R (1989) 18 NSWLR 74 per Gleeson CJ at p 81). The parts of the evidence that are to be accepted or rejected is a question of fact. Accordingly, on a no case submission, the Court is required to assume that the evidence is accepted without reservation (Wentworth v Rogers and Another [1984] 2 NSWLR 422 at 429).

28 The relevant elements of the offence charged under s 27 of the Marine Pollution Act are as follows:-

(i) Discharge of oil;


(ii) From the ship;

(iii) In or in connection with a transfer operation.

29 Although the parties have argued the effect of s 26(b), the charges in the respective summonses are limited to a discharge from a ship. There is no reference to any apparatus in either summons.

30 There are critical elements of the evidence by Mr Burge which need to be rejected or qualified before the defendant’s case based upon the facts can succeed. The reliability of the prosecutor’s expert evidence must be left to the ultimate determination of fact. It is not part of the consideration by the Court following a no case submission.

The textual argument

31 The defence concentrates on the effect of exception (d) in s 26. The evidence clearly establishes the fact that there was a discharge of oil from the vessel into the State waters of Botany Bay. The simple submission is that Pt 2 applies because s 8(1) operates to make it an offence if any discharge of oil occurs from a ship into State waters. Part 4 does not apply to a discharge of oil to which Pt 2 applies by dint of s 26(d).

32 Mr Hill, who appears for the prosecutor, acknowledges that the defendants could have been charged under Pt 2 of the Marine Pollution Act, pursuant to s 8. However, he says that the purpose of Pt 4 is to deal specifically with a discharge that takes place “in or in connection with a transfer operation”.

33 As a matter of construction, a prosecution pursuant to s 27 cannot succeed where there is no transfer operation. According to Mr Hill, all that s 26(d) is saying is that a discharge per se cannot be brought under Pt 4. He says the provision in s 26(d) is only for abundant caution to ensure that a prosecutor does not bring (and the Court does not entertain) a charge under Pt 4 unless the circumstances in s 26(a) or s 26(b) apply.

34 Section 33 of the Interpretation Act 1987 requires that regard be had to the purpose or objective of the provision. It would be simpler to accept the prosecutor’s argument that Pt 4 deals exclusively with all discharges in or in connection with a transfer operation if the legislation did not contain s 26(d). It must be assumed that the legislators had in mind that there could be discharges to which Pt 2 or Pt 3 applies as well as Pt 4 and that in those circumstances the provision of Pt 2 or Pt 3 are to be treated as pre-eminent. It is not for the Court to determine in this case what these discharges might be. The discharge of oil from the vessel on 14 November 1999 does not fall within any of the exceptions in s 8(2) or s 8(4). Section 8 is not expressed to be subject to any provision other than s 8(2) or s 8(4). However, for example, an appropriate person charged under Pt 4 may not be able to rely on s 8(2)(b) which otherwise could relieve their liability under s 8(1). It is possible, therefore, to give effect to Pt 4 in respect of a discharge of oil from a ship in or in connection with a transfer operation notwithstanding that the oil escaped from the ship in consequence of damage of the type referred to in s 8(2)(b).

35 There is no evidence or submission to the effect that an exception to s 8 applies to the discharge of oil from the subject vessel. It follows that as a matter of construction Pt 2 applies to the discharge and, therefore, Pt 4 cannot apply. The concession by Mr Hill reinforces this conclusion.

36 The Court upholds the submission of no case to answer on the basis that the prosecutor has not proved that Pt 4 applies to the discharge from the vessel on 14 November 1999. It is not relevant to decide whether or not the discharge occurred in or in relation to a transfer operation. Even if the prosecutor is right and it did so occur nevertheless, in the circumstances, Pt 2 applies. In that respect, s 26(d) has effect.

37 Part 4 is capable of application to a “discharge… from a ship” for the reasons explained above. The construction adopted, therefore, leaves those words of s 26(a) with some effect. It is not a result which renders the words redundant. This is not a case, as Mr Hill suggests it is, for reading s 26(d) as being inserted for more abundant caution to guard against the possibility that the general might be read as not including the particular (see Mason J at p 679 in Leon Fink Holdings Proprietary Limited v Australian Film Commission (1979) 141 CLR 672). Rather, it is a case where the intention is to exclude the application of the particular where the more general provisions apply.

38 Each Part imposes the same penalty in respect of a discharge to State waters but the statutory defences and conditions of exculpation available to a person charged are distinct in each case. There is a separate and unique regime applied by each Part in respect of administrative matters such as the duty to report an incident and the keeping of records.

39 The Court finds that because the discharge is one to which Pt 2 applies, Pt 4 has no application to the present charges. In the light of that finding there is no case for the defendants to answer pursuant to a charge brought under Pt 4.

Conclusion

40 The summons in each case is dismissed.

41 The exhibits may be returned.

42 The question of costs is reserved.