Hoogendoorn v MISR Shipping Company and Hassan - [2001] NSWLEC 171

Land and Environment Court

of New South Wales

CITATION: Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171

PARTIES:
No 50003 of 2001
PROSECUTOR
Hoogendoorn
DEFENDANT
MISR Shipping Company
No 50004 of 2001
PROSECUTOR
Hoogendoorn
DEFENDANT
Hassan

FILE NUMBER(S): 50003 of 2001 and 50004 of 2001

CORAM: Pearlman J

KEY ISSUES: Environmental Offences :- marine pollution - plea of guilty - penalty

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 10, s 22
Marine Pollution Act 1987 s 8(1)

CASES CITED:

DATES OF HEARING: 20/06/2001

EX TEMPORE
JUDGMENT DATE :
06/20/2001

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr A L Hill (Barrister)
SOLICITORS
Abbott Tout
DEFENDANTS
Mr J E Sexton SC
SOLICITORS
Ebsworth & Ebsworth

JUDGMENT:

IN THE LAND AND 50003 of 2001 and 50004 of 2001
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 20 June 2001

WILLIAM HOOGENDOORN

Prosecutor

MISR SHIPPING COMPANY

Defendant

WILLIAM HOOGENDOORN

Prosecutor

ADEL HASSAN

Defendant

JUDGMENT

1. These proceedings involve two prosecutions both brought under s 8(1) of the Marine Pollution Act 1987. They relate to an incident on 31 May 2000 when a discharge of oil from the vessel Abidos occurred in the waters of the eastern basin at Port Kembla.

2. The owner of the vessel, MISR Shipping Company, has been charged under s 8(1), as has the master of the vessel, Captain Adel Hassan. The defendants have respectively entered pleas of guilty.

3. I have derived the facts concerning the incident from an agreed statement of facts furnished to the Court. On the day in question the Abidos was tied up port side to the grain berth at Port Kembla, receiving a part cargo of grain. At approximately 1200 hours an officer of the Port Kembla Port Corporation, Mr J M Giddings, observed an oil slick on the water’s surface around the bow of the Abidos extending to the northern end of the grain berth. Sometime later, at about 1235 hours, another officer, Mr J R Robinson, observed that there appeared to be two slicks of oil on the water’s surface, firstly a slick of about 35 m by 5 m of thick oil and secondly, a thinner slick of about 60 m by 5 m.

4. Mr Robinson went on board the Port Corporation’s vessel and from it he inspected the Abidos and observed firstly, a fresh oil line along the starboard side of that vessel about 25 mm in height from the stern to the bow, and secondly, at the forward end of the ship, slicks of oil of about 15 m2. There were a number of slicks of that size and a few smaller ones.

5. Samples of the oil in the water were taken from certain parts of the vessel. The sample taken from the oil slick on the water’s surface matched the sample taken from the engine room aft bilge of the Abidos. I am satisfied beyond reasonable doubt that the oil on the waters was discharged from the vessel.

6. The Port Corporation undertook a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoogendoorn v MISR Shipping Company and Hassan

Details

AGLC: Hoogendoorn v MISR Shipping Company and Hassan [2001] NSWLEC 171
Case: [2001] NSWLEC 171
Decision Date: 06/20/2001

CaseChat Overview and Summary

The case before the court involved two prosecutions brought under the Marine Pollution Act 1987 by the prosecutor, William Hoogendoorn, against the MISR Shipping Company and Captain Adel Hassan, the master of the vessel Abidos. The charges stemmed from an oil discharge incident that occurred on May 31, 2000, in the waters of the eastern basin at Port Kembla. Both defendants entered pleas of guilty. The court had to determine the appropriate penalties for the marine pollution offences committed.

The primary legal issue was to decide the penalties for the marine pollution offences committed by the MISR Shipping Company and Captain Adel Hassan. The court had to consider various factors, including the amount of the oil spill, the lack of evidence concerning harm or potential harm caused by the spill, and the lack of direct evidence of contrition from the defendants. The court also had to consider the potential penalties under the Marine Pollution Act 1987 and the Crimes (Sentencing Procedure) Act 1999.

The court found that the defendants did not provide sufficient evidence to mitigate the penalties. Despite the plea of guilty, the court was in the dark about the incident and its potential environmental impact. The court imposed a penalty of $50,000 on the MISR Shipping Company, taking into account the relatively small amount of the spill and the company's agreement to pay the clean-up costs. The court imposed a penalty of $5,000 on Captain Hassan, considering the serious nature of the offence and the master's responsibility for the incident.

The court ordered the MISR Shipping Company to pay a fine of $50,000 and the costs of the prosecutor. Captain Adel Hassan was ordered to pay a fine of $5,000 and the costs of the prosecutor. Both defendants were convicted of the offence with which they were charged. The exhibits were to be returned to the parties.

Orders