Gotham v Ahmed [1990] Nswlec 108 (19 September 1990)

[1990] NSWLEC 108

Land and Environment Court

of New South Wales

CITATION:	Gotham v Ahmed [1990] NSWLEC 108 (19 September 1990) [1990] NSWLEC 17
PARTIES:	Gotham v Ahmed [1990] NSWLEC 108 (19 September 1990)
FILE NUMBER(S):	50075 of 1990
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Prevention of Oil Pollution of Navigable Waters Act, 1960 Marine Pollution Act, 1987
CASES CITED:
DATES OF HEARING:
DATE OF JUDGMENT:	09/19/1990
LEGAL REPRESENTATIVES:	APPLICANT RESPONDENT

JUDGMENT:

HIS HONOUR: The defendant, Khalid Ahmed, is the Master of the ship " Iran Afzal ". He pleads guilty to a breach of section 6 of the Prevention of Oil Pollution of Navigable Waters Act , 1960 as amended, on 5 March 1990. The prosecutor is employed by the Maritime Services Board of New South Wales.

The facts are for the very most part not in issue. At 1616 hours on 5 March 1990 the Iran Afzal dropped anchor 3.15 nautical miles from the Outer North Head Light. At 1730 hours there occurred an overflow of approximately 100 litres of oil on the deck of the vessel. A quantity of oil escaped from two of the scuppers into the waters of the Tasman Sea before the scuppers were plugged.

The following entry appears in the ship's log:-

"1730 - Overflow of H.O. Approximately 100 lts. detected on deck from E. Room. All scuppers plugged immediately."

Around 45 minutes later Captain Ahmed contacted the Port Operations Officer of the Port of Sydney by radio to report the spill. The officer, John Champion, gave evidence on the plea. After identifying himself and his ship the Master told Mr. Champion that there had been an accident on board and some oil was lost over the side. He was asked how much oil was lost and the defendant responded with words to the effect "I can't say but not very much". Mr. Champion asked the size of the oil slick and says that the defendant said it was "approximately 100m from the ship".
Mr. Champion was cross-examined by Counsel for the defendant as to whether he misunderstood the Master and whether in fact no reference was made to 100m or a "slick". Although he conceded that the Master had an accent, he said he spoke English very well. Mr. Champion fairly conceded that "anything was possible" but was adamant that he heard "metres" and not "litres" and "slick" not "deck". I accept Mr. Champion's account of the conversation. He made notes fairly soon thereafter and these are in evidence. They refer to a "100m long slick (amount not known)".

A pilot cutter was sent to the area and arrived at around 1900 hours but failed to find any oil in the vicinity of the Iran Afzal .

At 1545 hours on 6 March a report was received that there was oil pollution in the area from McKenzies Point (at the southern end of Bondi Beach) to the middle of Bondi Bay. A pilot tender was despatched to the area at 1800 hours but was unable to obtain samples due to sea conditions. The tender returned at 2030 hours and a black tar/bitumen type substance was observed on Bondi Beach. A number of samples were taken and it was estimated that 20 litres of oil found its way onto Bondi Beach.

At 0735 hours on 6 March Pilot Keeble boarded the Iran Afzal and piloted the vessel into Sydney Harbour for customs clearance and survey until 1300 hours when it left for Port Kembla. At 1723 hours on 6 March the vessel arrived at Port Kembla outer anchorage. However, because of strong winds and high seas it did not berth in the port until 0610 hours on 9 March. At 0630 hours the Acting Deputy Harbour Master, Mr. Pickles, boarded the vessel and took 7 oil samples and a copy of the ship's Oil Record Book.

Mr. Pickles returned to the Iran Afzal at 1230 hours and interviewed the Chief Engineer about the circumstances of the oil spill and took copies of the deck logs for 5 and 6 March. Later that afternoon Mr. Pickles inspected the starboard side of the vessel and saw oil staining from two deck scupper outlets on the starboard quarter of the ship below the accommodation block. Samples were scraped off and photographs taken which have been tendered in evidence.
On 13 March Mr. Pickles interviewed the defendant in the presence of a solicitor. Captain Ahmed made "no comment" to the question "Did oil escape from Iran Afzal to the navigable waters of Sydney on 5 March 1990 at 1730 041 ^o x distance 3.15 nautical miles from North Head Light?" However, the defendant confirmed that he reported a spillage on deck at 1810 to Sydney Maritime by VHF radio. He again answered "no comment" to the question "Could you explain how and why this escape of oil occurred?" He agreed that he was in charge at the time the spillage on deck was reported. On being asked what action was taken to control the escape he replied "The crew immediately plugged the overboard scuppers and commenced cleaning the deck".

The oil samples from Bondi Beach when analysed, matched with the analysed samples taken from the Iran Afzal at Port Kembla. The Bondi Beach samples did not match with samples taken from 8 other vessels.

The cause of the oil spill seems to have been negligence on the part of the crew. Fuel oil is held in the holding tank and then moved along pipes to service tanks as required. Alarms are situated in the service tanks to indicate when they are too low or too full. The service tanks are connected with an overflow tank. If the overflow tank is overfilled, oil flows via a breeder pipe to a "save all" on deck. The save all is open at the top and it appears that on 5 March 1990 oil overtopped the save all, ran over the deck and escaped through the scuppers before they were plugged.

Either the alarm in the service tank was defective and did not sound or the alarm was not heard in the engine room or was ignored by the crew. In any event no one noticed any problem until oil overflowed the save all onto the deck. It is said that only about 100 litres of oil was contained in the save all which overflowed and escaped onto the deck.

The clean up of Bondi Beach by the Waverley Municipal Council cost $2,772.24 and I note that Mr. Maconachie, appearing on behalf of the defendant, undertakes that this sum will be paid.

The maximum penalty for a breach of s.6 of the Prevention of Oil Pollution of Navigable Waters is $100,000. The offence is one of strict liability subject to the defences in s.7 of the Act. The Marine Pollution Act , 1987 repealed the Prevention of Oil Pollution of Navigable Waters Act and was proclaimed to commence on 4 May 1990.

Captain Ahmed has no previous convictions under the legislation and the prosecutor has no reason to suspect that he has been convicted elsewhere.

It is the submission of Mr. Maconachie that the oil spill was not deliberate and the prosecutor accepts this assessment. It is further submitted on behalf of the defendant that the spill was probably due to human failure but in any event did not result in extensive or wanton environmental damage. Mr. Maconachie asks me to accept that only a very small quantity of oil left the ship via the scuppers and reasonable and prompt preventive action was taken to avoid any further spillage. Only small quantities of oil found their way onto Bondi Beach and no large or severe environmental impact occurred and the impact that did occur was contained and quickly removed.

I note the contrition inherent in the entering of the plea of guilty. I am satisfied beyond reasonable doubt that the offence has been proven and the defendant will be convicted. Accepting the evidence of Mr. Champion I am also satisfied beyond reasonable doubt that the defendant told him that there was a 100m long slick from the ship rather than a misunderstanding on the part of the witness. Although no slick was observed by the cutter I note that it reached the area 1-1/2 hours after the spill. I accept that only a relatively small amount of oil was discharged from the vessel, however, some of it reached Bondi Bay and became deposited over an extensive area of Bondi Beach, albeit dispersed and in small quantities.

While no deliberate conduct was involved, and fortunately apparently only a relatively small amount of environmental damage, nevertheless the carelessness of those on board the vessel is manifest. There was also a not insignificant delay in informing the Sydney Port authorities of the spill. Furthermore, the defendant was less than forthcoming in his record of interview on 13 March 1990. However, I take account of all the matters put in mitigation.
In my assessment the offence must be viewed as a most serious one. As I have observed before in the context of the penalties presently pertaining to the Clean Waters Act , differentiating between degrees of culpability is not easy when a relatively low maximum fine is involved. A similar situation arises here with this repealed legislation. On the basis that the maximum fine which may be imposed is $100,000 I assess the penalty to be imposed on the defendant as $40,000. Such a fine seems to accord with the degree of culpability of the defendant and the facts as I find them.

I make the following orders:-

1 . The defendant is convicted and fined the sum of $40,000.00 to be paid to the Registrar of the Court within one month for payment to the Maritime Services Board pursuant to s.18(4) of the Prevention of Oil Pollution of Navigable Waters Act .

2 . The defendant is ordered to pay the costs of the prosecutor in the sum of $5,000, to be paid to the Registrar of the Court within one month for payment to the Solicitor for the Maritime Services Board.

3. The exhibits may be returned.