Filipowski v Union Shipping Group Limited

[2002] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:

Filipowski v Union Shipping Group Limited [2002] NSWLEC 58

PARTIES:

PROSECUTOR:
Barbara Filipowski

DEFENDANT:
Union Shipping Group Limited

FILE NUMBER(S):

50124 of 2001

CORAM:

Lloyd J

KEY ISSUES:

Environmental Offences :- marine pollution - penalty - mitigation - costs

LEGISLATION CITED:

Marine Pollution Act 1987 s 8(1)

CASES CITED:

DATES OF HEARING:

21/03/2002

EX TEMPORE
JUDGMENT DATE :

03/21/2002

LEGAL REPRESENTATIVES:

PROSECUTOR:
Mr A L Hill (barrister)
SOLICITORS:
Abbott Tout

PROSECUTOR:
Mr E G H Cox (barrister)
SOLICITORS:
Norton White

JUDGMENT:

IN THE LAND AND Matter No.: 50124 of 2001
ENVIRONMENT COURT Coram: Lloyd J
OF NEW SOUTH WALES Decision date: 21 March 2002

Barbara Filipowski

Prosecutor

v

Union Shipping Group Limited

Defendant

EXTEMPORE JUDGMENT

HIS HONOUR:

1. The defendant has pleaded guilty to an offence in contravention of s 8(1) of the Marine Pollution Act 1987 in that, on 8 September 1999 it was the owner of a ship, namely the vessel “Karamea”, from which a discharge of oil occurred into State waters, namely the waters of Port Jackson. The maximum penalty for the offence under that provision in the case of a corporation is $1.1 million.

2. The relevant facts have been largely agreed to by the parties; and what I am about to describe is derived chiefly from the agreed statement of facts. Where the parties are not in agreement I will indicate that lack of agreement.

3. On 4 September 1999 the vessel “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 the State waters, the vessel was towing a barge, the “Union Bulk 1”. On board the vessel was a complement of ten crew. The master was Andreas John Tanner. Whilst at the inner Captain Cook dry dock, the owner and crew of the vessel decided to carry out the annual survey of certain items of equipment aboard the vessel, including the fire fighting system.

4. On 8 September 1999, during the annual survey of certain equipment, the Classification 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, Andreas John Tanner, then ordered the testing of the fire fighting equipment. On the orders of the master, the crew of the vessel used the general service pump to test the fire fighting system.

5. Prior to being used to test the fire fighting system, the general service pump had been used to pump bilge water from the ship’s bilges to the slop tank aboard the vessel. The general service pump had not been flushed or cleaned subsequent to the transfer of oily bilge water. As a consequence of the prior use of the general service pump to transfer oily bilge water and the omission of the master to ensure that it had been flushed clean, the general service pump contained an amount of oil and oily water. When the general service pump was run to test the fire fighting system, a quantity of oil or oily water was discharged into State waters via the fire hoses.

6. After pumping had commenced, the dry dock personnel, unrelated to the vessel, were notified of the spill by the crew of the vessel. Relatively unsuccessful attempts were then made by the dry dock personnel to contain the spill using deployment of an oil containment boom.

7. Later that morning, employees of the Sydney Ports Corporation attended the scene. At that stage an oil sheen was clearly visible on the water’s surface on the port area aft of the vessel. The oil sheen at the time was spread over an area of approximately two hundred square metres on the water’s surface in intermittent patches. Employees of the Sydney Ports Corporation employed jet action to break up the oil sheen on the water’s surface. The crew of the vessel did not impede the clean up of the spill in any manner.

8. The master, Andreas John Tanner, was interviewed by employees of the Sydney Ports Corporation on 8 September 1999 following the incident. In the course of the interview the master gave the following explanation of how the discharge occurred: “Using the general service pump on the fire main for survey purposes which had previously been used on the bilge system.” And again, in answer to a question “where did the oil escape from, deck to Harbour?” the master said, “from the fire main to the Harbour, the fire main and GS pump were being tested for survey. Residue bilge water in the line escaped via the fire hose into the Harbour.” When asked how much oil escaped, the master said, “two to three litres approximately.”

9. On 8 September 1999, the registered owner of the vessel was a New Zealand registered company known as Union Shipping Bulk Limited. Ownership of the vessel was then subsequently vested in another New Zealand registered company, known as the Union Shipping Group Limited, on 12 February 2001 pursuant to section 225 of the Companies Act 1993, New Zealand. Union Shipping Bulk Limited was, however, at all relevant times a subsidiary of Union Shipping Group Limited.

10. As I have said, when the oil slick was observed, it was readily broken up by jet action which broke up the oil sheen on the water’s surface. There is no evidence before the Court of any potential for significant harm, nor is there any evidence of environmental harm other than the minimal harm caused by the oil slick on the surface.

11. In considering the question of penalty, I take into account the following matters. Firstly, the fact that the spill was easily dispersed without any further concern and in a short period of time. Next, there was a full account given and explanation given by the master on the day in question, and a ready acceptance of responsibility. Next, there was an early plea of guilty entered. Next, there are no prior convictions recorded against the defendant and no reasonable request for co-operation was refused. As I have said, there was minimal environmental harm and no potential for significant harm.

12. It is submitted by the prosecutor that in the absence of any evidence on behalf of the defendant, there is no evidence of contrition. However, the fact that there has been an early plea of guilty is itself evidence of some contrition. It seems that the occurrence of the spill was simply an oversight by the defendant in that oily bilge water had been left in the pump before it was used to test the fire fighting system.

13. I accept the submission made on behalf of the defendant that this is not a regular kind of occurrence and there is little risk of this incident being repeated. Nevertheless, the legislature regards any oil spill into State waters as a serious offence. This is reflected by the very high maximum penalty of $1.1 million which the legislature has seen fit to impose for offences of this nature. In this instance however, because of the matters to which I have referred, the offence in this case must be described as minor; one which is not likely to be of a recurring nature; and one which arose because of a simple oversight by leaving oily bilge water residue in the pump. There is no evidence to suggest that the master’s estimate of two to three litres spillage is wrong. In my opinion, with an allowance for the early plea of guilty, a penalty in this case of $5,000 is appropriate.

14. The formal orders of the Court are therefore:

(1) The defendant is convicted of the offence as charged.
(2) The defendant must pay a penalty of $5,000.
[COUNSEL ADDRESSED ON COSTS]

15. On the question of costs, the defendant concedes that there should be an order for the costs of the general proceedings in favour of the prosecutor, but raises the costs of a notice of motion heard on 14 March 2002, which it says should not be included in that general order for costs and, as I understand it, the defendant seeks its costs for that notice of motion.

16. There was a direction that the parties file an agreed statement of facts. The parties were unable to so agree, which resulted in the notice of motion filed by the defendant, returnable on 14 March 2002, seeking further directions. I should say, moreover, that on the return of the notice of motion, the parties by consent agreed to the dismissal of that notice of motion.

17. The notice of motion was before Talbot J as the list judge and he reserved the question of costs of the motion. The original direction of Talbot J was, as I have said, a direction to the parties to file and serve an agreed statement of facts. If the parties were unable to so agree, then it was appropriate for one of the parties, either of them, to come back to the Court for further directions. It seems to me that no one is at fault in the failure to agree on the statement of facts. The notice of motion, it seems to me, is therefore part of the general costs of the proceedings. I do not, therefore, think it appropriate to make a special order for the costs of that notice of motion.

18. The order of the Court will be that the defendant pay the prosecutor’s costs in accordance with s 52(2) of the Land and Environment Court Act 1979.

I hereby certify that the preceding 18 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate