Yury Mogilyuk and Australian Maritime Safety Authority
[2014] AATA 409
•24 June 2014
[2014] AATA 409
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/5551
Re
Yury Mogilyuk
APPLICANT
And
Australian Maritime Safety Authority
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 24 June 2014 Place Brisbane The decision under review is affirmed.
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Senior Member Bernard J McCabe
CATCHWORDS
MARITIME SAFETY – Detention orders – International trading vessel detained on basis that it was both ‘unseaworthy’ and ‘substandard’– Failure of Safety Management System – Safety and environmental obligations – Application of international maritime conventions – Issue of whether discretion to detain properly exercised – Reviewable decision affirmed.
LEGISLATION
Navigation Act 2012 (Cth) ss 23; 24; 248
Administrative Appeals Tribunal Act 1975 (Cth) s 43
CASES
Teekay Shipping (Aust) Pty Ltd and Australian Maritime Safety Authority [2012] AATA 519
SECONDARY MATERIALS
International Convention for Safety of Life at Sea 1974
International Convention on Standards of Training, Certification and Watchkeeping for
Seafarers 1978
International Maritime Organisation Resolution A.1052(27) Guidelines for the Detention of Ships
International Maritime Organisation Resolution A.893(21) Guidelines for Voyage Planning
Tokyo Memorandum of Understanding on Port State Control in the Asia-Pacific Region
REASONS FOR DECISION
Senior Member Bernard J McCabe
24 June 2014
Captain Yury Mogilyuk is the manager of the vessel SCF Yenisei which was detained by the Australian Maritime Safety Authority (AMSA) on 4 October 2013 following a Port State control inspection conducted in Mackay, Queensland.
The facts in this matter are not in dispute. The parties agree the primary issues to be determined by the Tribunal are:
i)whether the SCF Yenisei was, at the time of its detention, unseaworthy and substandard; and, if so
ii)whether AMSA was correct in exercising its discretion to detain the vessel in those circumstances, having regard to its applicable guidelines, policies and procedures.
The parties agree that an assessment of whether the vessel was unseaworthy and/or substandard will depend on whether the vessel was supplied with appropriate official navigation charts for its voyage between Kawasaki, Japan, through Palm Passage and the Great Barrier Reef Marine Park waters to Mackay, Australia.
Captain Mogilyuk is not seeking that the detention of the vessel be lifted – this was done on 5 October 2013, subject to conditions. Captain Mogilyuk’s contention is that the decision to detain the vessel was unreasonable, and he is seeking that the detention (described as “Action Code 30”) be downgraded to a lower Action Code (“Action Code 18”). He alleges that the deficiency identified by the AMSA Port Marine Surveyor was not of sufficient seriousness to warrant the detention.
AMSA submits that even if the Tribunal makes a finding of fact that the vessel was not, at the time of its detention, unseaworthy or substandard, the relief sought by Captain Mogilyuk is unavailable. AMSA asserts that the downgrading of a detainable deficiency to a lower Action Code is not a power that the Tribunal possesses.
This review has been conducted “on the papers” pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), which empowers the Tribunal to determine its own procedure according to its discretion. The parties have requested the Tribunal take this course given the applicant’s residence in Cyprus and the expense he would incur if he were to personally appear at a hearing. Both parties have been given an opportunity to present any written submissions in support of their respective positions. My decision is based solely on the papers filed.
BACKGROUND
The SCF Yenisei is a Liberian-flagged international trading vessel built in 2007 and operated by SCF Unicom.
The vessel had intended to voyage from Kawasaki, Japan to Mackay, Australia via Hydrographers Passage. Captain Mogilyuk submits that, prior to the voyage, the vessel had obtained the necessary charts for completing such a journey.
The voyage plan did not take account of compulsory pilotage requirements at Hydrographers Passage, which required that a pilot be taken aboard. Pilots must board a vessel at Hydrographers Passage only via landing helicopter. According to Captain Mogilyuk, the SCF Yenisei is accustomed to boarding pilots from helicopter by winch, and lacks the facilities to accommodate a helicopter landing. When no pilot was available by winch, the vessel deviated from the original planned route and instead approached Mackay via Palm Passage, which does not require that a pilot be taken aboard. This was an unanticipated route, and no original small scale charts were available on board for the transit.
Scanned charts were requested from ElectroRadioNavigation Chamber Ltd, an official distributor of hydrographic charts. The copies were received in colour print and were apparently up-to-date.
The vessel arrived in Mackay and was inspected by an AMSA Port Marine Surveyor. Its next intended voyage was to Brisbane.
THE LEGISLATION AND RELEVANT CONVENTIONS
AMSA is charged with administering the Navigation Act 2012 (Cth) (“the Navigation Act”). Section 58 of the Australian Maritime Safety Authority Act 1990 (Cth) permits AMSA, by written instrument, to delegate to a person all or any of its powers under that Act or any other Act. Accordingly, AMSA has delegated its power under section 248(1) of the Navigation Act to AMSA Port Marine Surveyors.
Section 248(1) of the Navigation Act relevantly provides that AMSA has the power to detain a vessel if it “reasonably suspects that the vessel is unseaworthy or substandard”: s 248(1)(a). Where a vessel is detained, s 248(2) compels AMSA to give the master of the vessel written notice within fourteen days which must:
a) identify the vessel;
b) state that the vessel has been detained;
c) specify the reason for the detention;
d) specify contact details of an inspector who can provide further information; and
e) specify any conditions to which the detention of the vessel is subject.
The inspection of the SCF Yenisei conducted by an AMSA Port Marine Surveyor on 4 October 2013 revealed three deficiencies. These were set out in the Surveyor’s “Report of Inspection in Accordance with IMO and ILO Port State Control Procedures” (reproduced at pp 190-191 of the T-Documents). The nature of the deficiencies were described as follows:
1.Vessel has completed its previous voyage using scanned photocopied charts, transit of Palm Passage and through Great Barrier Reef Marine Park waters to Mackay.
2.The [Safety Management System] has not ensured the vessel is supplied with appropriate official navigation charts for its navigation as evidenced by deficiency #1
3.Liferaft Port side – painter secured to hard point and not to weak link
AMSA considers that the second deficiency rendered the SCF Yenisei unseaworthy and substandard, and was of sufficient seriousness to warrant the detention of the vessel.
In written submissions, AMSA set out the statutory requirements for detention and the definitions of ‘unseaworthy’ and ‘substandard’. AMSA submits that, at the time of its detention, the SCF Yenisei met both definitions and was therefore detained pursuant to s 248(1) of the Navigation Act in accordance with AMSA policy & procedure.
A vessel will be deemed “unseaworthy” if it fails to meet the definition contained in
s 23 of the Navigation Act. That section states:
A vessel is seaworthy if, and only if:
(a) it is in a fit state as to the condition of hull and equipment, boilers (if any) and machinery, the stowage of ballast or cargo, the number and qualifications of seafarers, and in every other respect, to:
i)encounter the ordinary perils of the voyage undertaken; and
ii)not pose a threat to the environment; and
(b) it is not overloaded; and
(c) the living and working conditions on board the vessel do not pose a threat to the health, safety or welfare of the vessel's seafarers.
A vessel will be deemed “substandard” if it fails to meet the definition contained in
s 24 of the Navigation Act. That section states:
A vessel to which the Safety Convention, the Load Lines Convention or the Prevention of Pollution Convention applies is substandard, in relation to the condition of the vessel or its equipment in respect of a particular voyage or operation of the vessel, if:
(a) a certificate required by the Convention concerned for the proposed voyage or operation is not in force; or
(b) both:
(i)one or more certificates required by the Convention concerned for the proposed voyage or operation are in force; and
(ii)the condition of the vessel or its equipment does not correspond substantially with the particulars of the certificate or certificates.
The above definitions are drawn from international maritime conventions – such as the International Convention for Safety of Life at Sea (“the SOLAS Convention”) – and rules established by the International Maritime Organisation (IMO). AMSA summarised at pp 2-4 of its submissions the statutory requirements for detention, including the relevant requirements established by IMO conventions which relate to voyage planning and chart carriage requirements. These are extensive, and only a selection is reproduced in these reasons. The point to note is that masters must adequately plan their voyages.
AMSA submits that a voyage can only be considered to be adequately planned if the master of the vessel has ensured that correct charts are carried on-board not only for the intended voyage, but also for foreseeable contingencies including weather, variation of destination port, and illness on board (Respondent’s Submissions, p 3). AMSA says the relevant navigation chart and pilotage requirements are set out in Chapter V of the SOLAS Convention.
Regulation 2 defines a “nautical chart or nautical publication” as:
A special-purpose map or book, or a specially compiled database from which such a map or book is derived, that is issued officially by or on the authority of a Government, authorized Hydrographic Office or other relevant government institution and is designed to meet the requirements of marine navigation.
Regulation 34 states:
Prior to proceeding to sea, the master shall ensure that the intended voyage has been planned using the appropriate nautical charts and nautical publications for the area concerned, taking into account the guidelines and recommendations developed by the [IMO].
Regulation 34 notes that the reference to “the guidelines and recommendations” is a reference to the Guidelines for Voyage Planning, adopted by the IMO by Resolution A.893(21) on 25 November 1999. That document states that voyage and passage planning includes “gathering all information relevant to the contemplated voyage or passage” and “detailed planning of the whole voyage or passage from berth to berth, including those areas necessitating the presence of a pilot” (see Resolution A.893(21), para [1.3]).
The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (“the STCW Convention”) also imposes planning obligations on ship masters prior to voyage. Paragraph 5 of Part A, Chapter VIII, Part 2 provides:
Prior to each voyage the master of every ship shall ensure that the intended route from the port of departure to the first port of call is planned using adequate and appropriate charts and other nautical publications necessary for the intended voyage, containing accurate, complete and up-to-date information regarding those navigational limitations and hazards which are of a permanent or predictable nature and which are relevant to the safe navigation of the ship.
The ‘Guidelines for the Detention of Ships’ in Appendix 2 to the Procedures for Port State Control, 2011 was adopted by the IMO by Resolution A.1052(27) on
30 November 2011. It sets out a list of detainable deficiencies, which includes an “[a]bsence of corrected navigational charts, and/or all other relevant nautical publications necessary for the intended voyage”. This is considered to be “of such a serious nature” that it may warrant the detention of the vessel involved (see p 97 of the T-Documents).
AMSA also relies on the Tokyo Memorandum of Understanding on Port State Control in the Asia-Pacific Region (“the Tokyo MOU”) and the ‘Guidelines on Port State Control for Compliance with the ISM Code’ (“the Guidelines”), reproduced at
p 171 of the T-Documents. The ‘ISM Code’ is the acronym given to the International Safety Management Code, which is designed to “provide an international standard for the safe management and operation of ships and for pollution prevention” (see clause 1 of the Preamble to the ISM Code, 2010). Paragraph 4.2.3 of the Guidelines states that a “lack of compliance with rules and regulations” (including, according to AMSA, those relating to voyage planning and chart carriage requirements) is an example of a major non-conformity with the requirements of the ISM Code.
APPLYING THE LEGISLATION AND RELEVANT CONVENTIONS
Was the vessel unseaworthy?
AMSA argues the vessel was unseaworthy due to the failure of the vessel’s Safety Management System to meet the appropriate voyage planning and chart carriage requirements mandated by IMO conventions and guidelines. AMSA says the vessel was traversing the Great Barrier Reef with incomplete, then inappropriate charts resulting from what it alleges was “inadequate voyage planning”. According to AMSA, reliance on unofficial charts indicates the vessel “was not in a fit state to encounter the ordinary perils of the voyage and not pose a threat to the environment” (Respondent’s SFIC p4).
In its written submissions, AMSA noted the safety considerations which underlie its policy to detain a vessel found to be relying on scanned/photocopied charts. It noted that the meridians of longitude and latitude will not align when the chart is assembled from a scanned/photocopied version. It also noted that the colours used to depict depth contours will not be accurately reproduced. It said “[w]hen navigating in close proximity to hazards (such as transiting the Great Barrier Reef) even very small errors are amplified by the scale of the chart.”
Captain Mogilyuk submits the vessel was seaworthy because it is a modern vessel in good technical condition. He insists that, at the time of inspection, the vessel’s hull, equipment, boilers and machinery were in good condition, and the stowage of ballast and cargo was in full regulatory compliance. The number of appropriately qualified seafarers also met regulatory requirements. However, as pointed out by AMSA, the detention of the vessel was in response to matters of practice and procedure rather than its physical condition. AMSA argues “[t]he newest, most technically advanced ship will still pose a threat to safety and the environment if it is not operated correctly.”
The definition contained in s 23 of the Navigation Act clearly contemplates the physical condition of a vessel as an important factor in assessing its seaworthiness. The Surveyor’s “Report of Inspection in Accordance with IMO and ILO Port State Control Procedures” did not identify any deficiencies with the vessel’s hull, equipment, boilers, machinery or stowage practices, and so there is no reason to doubt the applicant’s evidence that the vessel was in the requisite physical condition. However, as the respondent correctly points out, the inquiry does not end there. To satisfy the definition in s 23, the vessel must also be “in a fit state” to:
- encounter the ordinary perils of the voyage undertaken;
- not pose a threat to the environment; and
- not pose a threat to the health, safety or welfare of the vessel's seafarers through unsafe working conditions.
The applicant notes the SOLAS Convention contains no clear prohibition on the use of scanned charts. At the same time, Captain Mogilyuk rigorously denies that the use of scanned/photocopied charts is part of the vessel’s routine procedure (see the Applicant’s Comments on the Respondent’s Section 37 Statement), and says the events leading to these proceedings were a “conformance exception”. That suggests the applicant understands the potential dangers which attend reliance on such charts.
The applicant argues the charts were of the “highest quality”. It is difficult to comment on the actual quality of the scanned/photocopied charts the vessel’s crew received, as the applicant has provided no evidence to that effect other than to observe that they came from an official distributor and were up-to-date. The evidence of the respondent on that point is also of limited assistance, as it speaks to general concerns with scanned/photocopied charts rather than identifying with specificity any errors in the applicant’s charts.
That said, the conventions provide enough guidance on the issue to support the conclusion that scanned/photocopied charts do not meet international requirements of marine navigation. Even if the scanned/photocopied charts were received from an official distributor, they were not official charts and were therefore inadequate as a means of navigational control. In relying upon unofficial charts, the vessel was not prepared to encounter unexpected events on the journey through Palm Passage. The delicate environment of the Great Barrier Reef was thus put at risk and the crew were exposed to potentially life-threatening danger.
I am satisfied the vessel was unseaworthy for the purposes of s 23 of the Navigation Act.
Was the vessel substandard?
AMSA explained in written submissions that the reference to “the Convention” in subsection 24(b)(i) of the Navigation Act is a reference to the SOLAS Convention. The SOLAS Convention requires, inter alia, that vessels undertaking journeys like the one undertaken by SCF Yenisei have a Safety Management Certificate which demonstrates compliance with the ISM Code. According to AMSA, non-compliance with the ISM Code means that a vessel will “not correspond substantially” with its Safety Management Certificate.
AMSA submits that the failure of the vessel’s Safety Management System to ensure adequate voyage planning and carriage of nautical charts constituted non-compliance with the ISM Code (specifically, para [1.2.3] of the ISM Code). It says that a “lack of awareness” of pilot boarding requirements led to the crew altering the vessel’s planned course to an unplanned one. This resulted in a failure to meet compulsory chart carriage requirements established by the SOLAS and STCW Conventions for the new course (Respondent’s Submissions, p 4). Therefore, AMSA argues, the SCF Yenisei was substandard due to the failure of its Safety Management System to operate in compliance with the ISM Code and, in turn, its Safety Management Certificate.
Captain Mogilyuk acknowledges that scanned charts are not considered by AMSA to be compliant with the SOLAS Convention requirements, and says he fully appreciates the environmental significance of the Great Barrier Reef. However, as justification for the vessel’s use of scanned charts, he cites the following direction contained in the vessel’s Safety Management System (reproduced in the Applicant’s Comments on the Respondent’s Section 37 Statement, Attachment 2 at p 2):
The use of scanned, copied or cancelled navigational charts is not recommended. However, in exceptional circumstances when there is no possibility to receive proper charts for the area where the ship must navigate, these charts may be used after a Detailed Risk Assessment has been completed and approved by the company. [Emphasis added.]
Captain Mogilyuk submits that although reliance on scanned charts is “not normal/routine procedure”, it was necessary given the “exceptional circumstances” in which the master and crew found themselves (see the Applicant’s Comments on the Respondent’s Section 37 Statement). He says an “oversight” made by the master meant that the voyage plan did not identify that the pilot boarding was by land-on helicopter only, and the vessel was consequently “forced” to deviate from its original planned voyage.
Captain Mogilyuk insists the master of the vessel took “all necessary actions” before relying on scanned charts: a Detailed Risk Assessment was conducted by the master and approved by the relevant company office staff (reproduced in Attachment 4 to the Applicant’s Comments on the Respondent’s Section 37 Statement). He says the scanned charts obtained by the Master and ship managers were of the highest quality from a reputable chart supplier, and that “exceptional caution” was exercised in utilising those charts (Applicant’s Comments on the Respondent’s Section 37 Documents, p 5).
Captain Mogilyuk says the vessel was operating in accordance with its Safety Mangement System. AMSA says the Safety Management System was faulty. AMSA has not challenged the validity of the “exceptional circumstances” proviso, but says the problem lies in “the failure of voyage planning allowed by the vessel’s Safety Management System” (Respondent’s Submissions, p 5 at para [26]). AMSA argues that pilot embarkation requirements should be considered a “contingency” to be taken into account when planning a voyage. It does not accept that a lack of awareness of pilot boarding requirements constitutes “exceptional circumstances”. It explained its position at p 7 of its Submissions at [33]:
Misunderstanding of the pilotage requirements presents clear and irrefutable evidence of a failure of adequate voyage planning, rather than an ‘exceptional circumstance’….the failure to adequately take into account the presence of the compulsory pilotage area at Hydrographers Passage, and the failure to undertake an appraisal of all information relevant to the contemplated voyage, “including those areas necessitating the presence of a pilot”, and “information relating to pilotage and embarkation and disembarkation”, is a direct contravention of the IMO Guidelines for Voyage Planning. The pilot embarkation requirements for the voyage should have been considered and planned prior to departure for the vessel to be acting in accordance with the IMO Guidelines and for the voyage to have been adequately planned point-to-point. At the very least, the master/operator should have contacted the pilotage providers in the area to seek guidance on how pilots may be embarked prior to departure. The absence of appropriate charts allowing for potential alternative routes also indicates that the vessel’s passage plan did not have adequate contingencies built in.
In any event, the respondent contends there was sufficient time for the vessel to have arranged delivery of a pilot via launch to undertake the route through Hydrographers Passage, thus avoiding the unplanned route via Palm Passage (Respondent’s Submissions, p 6 at [32]).
Beyond the “exceptional circumstances” argument, the applicant raises a separate point in justification of his position. At paragraph 3 of the Applicant’s Statement of Facts and Contentions, Captain Mogilyuk drew a distinction between the vessel’s intended voyage and its previous voyage. He says the respondent cannot rely on the ‘detainable deficiencies’ contained in IMO Resolution A.1052(27) to justify the vessel’s detention. He argues that, at the time of its detention, the vessel’s voyage through Palm Passage was complete, and so could only be characterised as its previous voyage. Conversely, its intended voyage was to Brisbane. Given the vessel had the necessary navigational charts and nautical publications for that journey, there was no “[a]bsence of corrected navigational charts, and/or all other relevant nautical publications necessary for the intended voyage”. Therefore, according to Captain Mogilyuk, there was no detainable deficiency.
The cumulative effect of the relevant legislative and convention requirements is the clear requirement that journeys be well-planned. While it may be true that the applicant had on board the necessary charts for its anticipated route, the respondent’s submission that the applicant should have planned for contingencies is a persuasive one. Pilotage requirements are an important consideration for any journey, and an “oversight” would undoubtedly create problems for a vessel caught at sea without the appropriate charts. However, even if the applicant were able to show that the vessel’s reliance on scanned charts was the only course of action available (and the respondent argues that it was not), that does not absolve the vessel’s Safety Management System of its responsibility to have adequately planned the voyage in the first place. That responsibility is retrospective, and was clearly not met in this case.
It does not assist the applicant’s case that the vessel was (apparently) fully equipped for its intended voyage to Brisbane at the time of its inspection in Mackay. The successful planning of one voyage cannot compensate for the failure to properly plan another.
I am satisfied the vessel was substandard for the purposes of s 24 of the Navigation Act.
THE TRIBUNAL’S CAPACITY TO GRANT THE RELIEF SOUGHT
AMSA asserts that, even if the Tribunal makes a finding of fact that the vessel was not, at the time of its detention, unseaworthy or substandard, the Tribunal does not possess the power to downgrade the detainable deficiency (“Action Code 30”) to an “Action Code 18”.
AMSA cites the decision in Teekay Shipping (Aust) Pty Ltd and Australian Maritime Safety Authority [2012] AATA 519 as authority for that proposition. DP Handley stated at [84]:
As the Tribunal said in Fleet Management Ltd and Australian Maritime Safety Authority [2007] AATA 56; (2007) 94 ALD 285 at [16], while ITS 63 “does not have the force of a regulation or maritime order ... it does set out the policy of the Authority and is intended to guide the exercise of the discretion conferred on the Authority by sections 207 and 210 of the Act.” The Tribunal will generally apply lawful government policy unless there are cogent reasons to the contrary, for example that the application of a policy would lead to an injustice in a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634, at 644-5. In this instance, however, while AMSA policy may be of assistance to the Tribunal in terms of determining the correct or preferable decision, it is not open to the Tribunal to make a decision to apply the Action Codes, although this could be the subject of a recommendation under
s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975.He observed at [88] that “[f]or the Tribunal, it is the application of legislative scheme that determines its decision.”
It is often said the Tribunal steps into the shoes of the decision-maker, so that the Tribunal is able to exercise all of the powers and exercise all of the discretion – and be subject to the same legal limits – as the original decision-maker. But the form of the Tribunal’s decision on review is ultimately constrained by s 43(1) of the AAT Act which says the Tribunal may either:
(a) Affirm the decision under review;
(b) Vary the decision under review; or
(c) Set aside the decision under review and either make another decision in substitution or remit the decision to the decision-maker for reconsideration, usually in accordance with directions.
The Tribunal cannot order AMSA to change the Action Codes in the register. The Tribunal must instead address itself to the original decision which was made under
s 248(1)(a) of the Navigation Act.
The ship has long since been released from detention, albeit on condition. The respondent suggests, in effect, there is no utility in setting aside the decision when the ship is no longer in detention. That is a fair point except for the fact the decision to detain the vessel has ongoing consequences – most obviously the entries of the Action Codes in the register. If the decision were set aside, those additional steps which were taken and which continue to be taken in execution of the reviewable decision would presumably be reconsidered by the decision-maker. It follows I am not satisfied there is no utility in making a decision to set aside if that were the correct or preferable outcome in all the circumstances.
As it happens, I do not think the reviewable decision ought to be set aside. I have already set out my reasons for finding that the vessel was both unseaworthy and substandard by legislative standards. While such a finding does not in all cases import the conclusion that a vessel should be detained, I am satisfied the detention was warranted in this instance.
In justifying its decision to detain the vessel, the respondent alluded to an incident in 2010 involving the vessel MV Shen Neng 1, which caused an oil spill in the Great Barrier Reef after it ran aground at Douglas Shoal east of Rockhampton in 2010. According to the respondent, that incident was the result of “poor voyage planning”, and the respondent’s policy is designed to minimise the risk of similar incidents occurring in the future.
The vessel at the centre of these proceedings was a fully-loaded oil tanker traversing the Great Barrier Reef. The risk it posed to the marine environment was clearly reminiscent of what occurred in 2010. While the SCF Yenisei had on board the appropriate charts for its intended ongoing voyage to Brisbane, the failure of its Safety Management System to adequately plan the voyage to Mackay pointed to a defect in that System which needed immediate rectification. Accordingly, the ISM Audit conducted by the respondent’s delegates required the Safety Management System to be modified to ensure compliance with the relevant international standards (see the Respondent’s Statement of Facts and Contentions, p 26 at [27] and p 8 at [43]). Once this was completed, the vessel was released.
The applicant says the decision to detain the vessel will reflect poorly on the company which operates it, and will have adverse impacts on the some 5000 people who work with or in connection with the company. However, although the applicant regards the detention as a form of “punishment” which was excessive, the respondent does not characterise its decision to detain as punitive. It points instead to legitimate concerns for the protection and safety of vessels, seafarers and the natural environment. The detention was not unnecessarily prolonged or arbitrary, but rather was consistent with the respondent’s policy. Included amongst the respondent’s principal functions are the promotion of maritime safety and the protection of the marine environment, including from ship-sourced pollution. The potential prejudice to the company’s reputation cannot preclude the respondent from taking reasonable action in pursuit of its founding objectives.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe ........................................................................
Associate
Dated 24 June 2014
Date of hearing On the papers
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