MORRISON v. CHONG HSIEN CHOU AND U-MING MARINE TRANSPORT (SINGAPORE) PTE LIMITED [1998] NSWLEC 309 (4 December 1998)

Land and Environment Court of New South Wales

Record of hearing

Judge Lloyd J

Number 50122-3/97

Parties Prosecutor MORRISON

Defendants CHONG-HSIEN CHOU

U-MING MARINE TRANSPORT (SINGAPORE) PTY LIMITED & ORS

Key Issues Environmental protection - discharge of oil into water - finding of guilty

Statutes Marine Pollution Act 1987, s 8(1)

Hearing date 2 September, 11, 12, 13 November 1998

Judgment Reserved

Date of Judgment 4 December 1998

Appearances Prosecutor A L Hill

Defendant B W Larkin

Solicitors Prosecutor Abbott Tout

Defendant Sparke Helmore

Number of pages 17

Summary of orders 50122 of 1997. Offence proved.

50123 of 1997. Offence proved.

Stand over for further hearing the questions of conviction, penalty and costs.

IN THE LAND AND					Matter No:  50122-3/97

ENVIRONMENT COURT				Coram:  Lloyd J

OF NEW SOUTH WALES				Decision date:  4.12.98

MORRISON

Prosecutor

v

CHONG HSIEN CHOU AND U-MING MARINE TRANSPORT (SINGAPORE) PTE LIMITED

Defendants

JUDGMENT

HIS HONOUR:

1. There are three prosecutions arising out of a discharge of oil from a ship into State waters. The defendant U-Ming Marine Transport Pty Ltd is the owner of the ship, the MV "Asian Glory", from which a discharge of oil occurred into the waters at No 3 Berth, West Basin, in the Port of Newcastle on 4 June 1997. The defendant Chong-Hsien Chou was the Master of the ship. The defendant Wey Kwo Chan was the Chief Engineer of the ship, whose act caused the discharge. The Chief Engineer has not been served and accordingly the prosecution against him is adjourned. Both the owner of the ship and the Master have pleaded not guilty.

2. The offences arise under the Marine Pollution Act 1987 ("the Act"), s 8(1) which is as follows:

"8(1) Subject to subsections (2) and (4), if any discharge of oil or of an oily mixture occurs from a ship into State waters, the master and the owner of the ship, 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 - 2000 penalty units;

or

(b) if the offender is a body corporate - 10,000 penalty units."

3. The offence created by s 8(1) of the Act is one of strict liability (Morrison v Michel, Stein J, 14 June 1996, unreported). Moreover, subsection (6) of s 8 provides:

"(6) In proceedings for an offence against subsection (1) in relation to a ship, it is sufficient for the prosecution to allege and prove that a discharge of oil or of an oily mixture occurred from the ship into State waters, but it is a defence if it is proved that, by virtue of subsection (2) or (4), subsection (1) does not apply in relation to the discharge."

Subsections (2) and (4) are not relied upon by the defendants as a defence to these proceedings.

4. The parties agreed that the evidence in the case against the owner of the ship, including all objections made thereto and rulings thereon, would apply in the case against the Master since the evidence was identical in both prosecutions.

5. I now summarise the evidence adduced by the parties and set out my findings thereon.

6. The MV "Asian Glory" is a bulk grain carrier. On 4 June 1997 she entered Newcastle Harbour and berthed at the No 3 Berth, Western Basin at 5.36 am, portside to the wharf, to load a cargo of bulk grain. Mr G L Gibson was employed by Quadrant Building Services Pty Ltd supervising work being performed at the No 3 berth for the Newcastle Port Corporation. That work was to repair spalling concrete beams under the No. 3 Berth. That morning he was in his site office when one of the workers under his supervision came and told him something. As a result he went to the No 3 Berth where he saw the "Asian Glory" tied up. He saw water being pumped from an outlet on the portside of the vessel near the stern. The outlet was near the water line and oil was coming out with the water, rising to the surface and going under the No 3 Berth. Mr Gibson furnished a sketch showing the extent of the oil on the surface, which was between the stern of the ship's portside and extending under the wharf. Mr Gibson said that the oil appeared to be coming out in globules with the water and remained in patches on the surface of about the size of a man's hand. Because the presence of the oil made working in the area unsafe, he had to order his workforce to cease work for that day.

7. Mr R H Filmer is a maintenance supervisor employed by the Newcastle Ports Corporation. At about 8 am on 4 June 1997 he went with Mr F J Ford, a maintenance inspector to the No 3 Berth at Western Basin. He saw there the "Asian Glory" tied up at the berth and saw globules of oil on the water's surface coming out of what he believed to be a four inch outlet on the vessel's side situated basically on the water line. There was water coming out with oil globules in it. The oil globules were going under the No 3 Berth. Mr Filmer also furnished a sketch of the area of the oil contamination which shows that the oil extended from the "Asian Glory" to about half the area under the wharf.

8. Mr F J Ford went to the No 3 Berth at Western basin with Mr Filmer. He also saw oil on the surface and prepared a diagram showing the oil generally between the portside stern of the "Asian Glory" and extending underneath the wharf. The oil was in globules. By about 9.15 am the tide was turning and together with the wind the oil was pushed towards the centre of the Western Basin. Attempts were made to remove the oil on the surface in the middle of the basin, somewhat unsuccessfully; and most of the oil became dispersed throughout the basin and then out to sea on the receding tide.

9. Mr G A Webb is a marine maintenance manager employed by the Newcastle Ports Corporation. At about 8.40 am on 4 June 1997 he went to the No 3 Berth at Western Basin. There he saw the vessel "Asian Glory" berthed portside to the wharf. He could see an oil stain along its port stern quarter. He saw globules of oil on the water's surface and an oil sheen around the stern of the vessel. He also produced a diagram showing the area of the surface where he saw the oil. This diagram shows the oil between the vessel's port stern quarter and under and adjacent to the wharf. Mr Webb also took three photographs which show the vessel berthed at the No 3 berth, an oil stain along the vessel's stern port quarter and the vessel's pumping outlet on its port stern quarter. The pumping outlet appears to be either on or adjacent to the water line. Mr Webb noted that there were no other vessels in Western Basin at the time.

10. Mr Webb went on board the "Asian Glory" with Mr B J Steen (the Newcastle Ports Corporation wharfinger) and met the Master, the vessel's agent (Mr Paul Cook) and two or three of the ship's crew. The Master denied that there had been a discharge of oil from his vessel.

11. Mr Steen went to the No 3 Berth Western Basin at about 8.40 am on 4 June 1997. He saw the vessel "Asian Glory" tied up portside to the wharf. He also saw what appeared to be fuel oil on the water's surface around the stern of the vessel and extending under the wharf. He took three samples from the water's surface. He then went on board the "Asian Glory" with Mr S J Allars an officer of the Newcastle Ports Corporation. Both officers then went with the Chief Engineer of the vessel to the engine room where a sample was taken from the service tank and then to another part of the vessel and took a sample from the bilge. Mr Steen then gave to the Chief Engineer a sample from the water's surface, a sample from the service tank and a sample from the bilge. Mr Steen then left the vessel where he met Mr Webb. He went back on board with Mr Webb. They went to the ship's office where they heard the conversation with the Master described in paragraph 10 above.

12. Mr S J Allars is a port officer employed by the Newcastle Ports Corporation. At about 8.30 am on 4 June 1997 he went to the No 3 Berth Western Basin. The "Asian Glory" was tied up at the wharf. He saw oil spills on the water's surface and around the stern of the vessel, under the wharf and the side of the vessel. The oil appeared to be drifting out into the Western Basin at that stage. The oil on the surface consisted of a sheen and of heavy patches of about 4 - 5 centimetres across. Mr Allars assisted Mr Steen in taking samples from the water's surface. He also went with Mr Steen to obtain the samples taken from the vessel.

13. Mr K R Baylis is a property inspector employed by the Newcastle Port Corporation. Between 8 am and 9 am on 4 June 1997 he received a call from Mr Ford and went to the No 3 Berth Western Basin. He saw the vessel "Asian Glory" tied up at the No 3 Berth. He saw globules of an oily substance on the water's surface, about 200 mm in diameter, extending from the side of the vessel to the corner of the No 3 Berth and around the corner of the Berth. He said that was the only place where he could see the oil. Every now and then he saw a discharge coming out of a discharge outlet on the stern portside of the vessel just above the water line. The discharge pipe was about 100mm in diameter. As to the discharge, it was like a "glump" every now and again.

14. Mr S Purins is employed by the Newcastle Port Corporation as a maintenance fitter. At about 9 am on 4 June 1997 he received a message from Mr Ford. As a result he put the Newcastle Port Corporation's 20 ft scow into the water and went to Western Basin. He then proceeded around the Western Basin and threw oil absorbent mats into patches of oil. When the mats were full of oil he recovered them. When he left the Western Basin there were still patches of oil on the water's surface.

15. Mr S L Simpson is employed by the Newcastle Port Corporation as vessel operations officer. As a result of a message received from Mr Ford at about 8.30 am on 4 June 1997 he took the Newcastle Port Corporation's vessel "George Barney" from the pilot station at the eastern end of the port to the No. 3 Berth at Western Basin. He saw oil stretching to the stern of the "Asian Glory" which was tied up at the berth. The oil was in the form of globules on the water's surface up to 10 cm in diameter. He took on board Messrs Ford, Allars and Steen at the wharf and samples were then taken from the water's surface. At 9.50 am he took the "George Barney" back to the pilot station. On leaving the berth he saw that the oil on the surface stretched from the stern of the "Asian Glory" at the No 3 berth for approximately 1500 metres to a waterfront restaurant known as "Scratchley's" and was 100 metres wide in places. The wind and tide was moving the oil in that direction.

16. Mr D K M Ho holds the degrees of Bachelor of Science and Master of Science in Chemistry from the University of New South Wales. He carried out an analysis of the samples obtained by Mr Steen. The samples were analysed by three tests: gas chromatography, fluorescent spectroscopy and infrared spectroscopy.

17. Mr Ho's analysis showed that the three slick samples taken from the water contained the same fuel oil. The gas chromatography tests indicated a non-match with the sample of fuel oil taken from the service tank of the "Asian Glory". In his Certificate of Analysis, Mr Ho reported that there was a probable match between the slick sample and the sample taken from the bilge of the "Asian Glory" with only minor differences. Mr Ho explained his conclusions in his oral evidence as follows:

"Where an oil is a probable match it is still very, very similar to the slick sample but there are certain differences which one can observe and because of that differences one cannot call it a match, but it's so similar that you can call it a probable match."

18. Mr Ho further explained his conclusions in the following evidence:

"Q. And a probable match has similarities with something more than 10% is that correct?

A. Well in this case it's not, because it's less than 10%. The only reason why it's called a probable match was because I observed some slight differences between the actual profiles but the quantitative analysis carried out gave a percentage of around about 5% which is less than 10%.

...

There's twelve components we look at and then you work out the average of all those differences and so that you get an average percentage difference between all those ratios. And if you have the average differences of more than 10% then you would say that it's not a match. If the differences - if the average difference is within 10%, then you say it's a match."

Mr Ho further said that when he said "probable match" in relation to the gas chromatography test he was talking about the actual visual profile of the oil. Two of the twelve components of the oil for which he tested indicated differences of more than 10% indicating that it probably contained or was contaminated with another oil.

19. The next test performed by Mr Ho was fluorescence spectometry. Again, this test showed that the fuel oil samples from the service tank of the "Asian Glory" had a different profile to the slick sample. The sample taken from the bilge of the "Asian Glory", however, matched the slick sample.

20. The final test performed by Mr Ho was Infrared Spectroscopy. The fuel oil samples taken from the service tank of the "Asian Glory" showed some similarities to that of the slick sample but overall it was different. The sample taken from the bilge of the "Asian Glory" probably matched that of the slick sample with only minor differences. According to Mr Ho, "the finger printing region showed a match. The minor differences were probably a result of weathering and contamination".

21. In expressing his overall conclusions Mr Ho said that the three slick samples contained the same fuel oil; the fuel oil sample taken from the service tank of the "Asian Glory" was different from the fuel oil of the slick samples; and the sample taken from the bilge of the "Asian Glory" contained the same fuel oil and matched the slick samples, but the bilge sample was probably contaminated with a small quantity of another oil. In explaining his final conclusion Mr Ho said in his evidence:

"When you have three different techniques and they either come up with a match or a probable match, the certainty of the conclusion would be 99% or higher."

22. Mr P E Burge is a marine consultant who has served on ships as a chief engineer. He said that the bilge in an engine room is that space which occupies the lowest part of the engine room. It collects leaks and spillages of various grades of fuel oils, lubricating oils, hydraulic oil, sea water, fresh water and the many types of chemicals used in the engine room. Depending upon that part of the bilge from where a sample might be taken, it might vary. Mr Burge suggested that the slight difference between the slick samples and that of the bilge sample is that the bilge sample may have been taken from a different part of the engine room from where the bilge pump took its suction. Another possible reason for the difference, according to Mr Burge, is that a different type of oil may have been added to the bilge between the time the bilge was pumped overboard and when the sample was taken. A further illustration of how a sampling variance may occur, according to Mr Burge, is that at a particular time a sample taken from a particular place would indicate a clear consistent profile, but a sample taken from the same place ten minutes later might indicate the same major source oil and other liquids present but there may also be additional oils or chemicals present because it is the function of the bilge to contain all spillages until the bilge contents can be properly disposed of.

23. In the light of the evidence which I have described above I would have no hesitation in holding that it establishes the offence as proved beyond a reasonable doubt. I would regard a 99% certainty that the oil slick was the same as the oil sample taken from the bilge of the "Asian Glory", together with eye witness accounts of oil being pumped from an outlet on the portside of the vessel, as convincing evidence of the commission of the offence. The slight differences in the samples noted by Mr Ho are readily explained by Mr Ho and Mr Burge (in paragraphs 17, 20 and 22 above), both of whose evidence I have no reason not to accept.

24. The Master of the vessel Mr Chong-Hsien Chou gave evidence. He said that it was simply not possible for the oil on the water to have come from the vessel's bilge. The vessel does not discharge bilge water from the portside. He produced a plan of the stern of the vessel, which shows the bilge discharge on the starboard side. Furthermore, the bilge system on the "Asian Glory" operates through an oily water separator which operates automatically and which cannot be turned off manually or overridden. The separator operates with an automatic shut-off which stops any discharge of bilge water if the water is not clean.

25. The Master said that neither is it possible that the oil observed along the wharf could come from the vessel's ballast system. He says this for three reasons. First, the ballast system was not then operating. The ship was in an inactive state. Secondly, the ballast water was clean sea water. Thirdly, the ballast water, like the bilge system, discharges from the vessel's starboard side. Although when originally built the ship had integrated bilge and ballast systems, those systems were segregated in June 1997. The vessel's cooling systems were also segregated, so that the main engine cooling system, the generating engine cooling systems, and other cooling systems operated with their own independent network of pipes and pumps.

26. The Master said that when the ship berthed at 5.36 am on 4 June 1997, the main engine was shut down and she continued to be powered by one or more of her generators. A number of pumps continued to operate on the vessel, which is typical. These included the sea water cooling systems, including those for cooling the vessel's generators. Based upon the descriptions given by Mr Gibson and Mr Filmer, the Master said that the only valve that could have been discharging near the water line, portside, near the vessel's stern, is the generating engine fresh water coolant discharge valve. This is the discharge for the sea water which cools the fresh water coolant for the generator engines. The photograph of the pumping outlet taken by Mr Webb appears to be a discharge from the generating engine fresh water coolant discharge valve.

27. The Master says that the vessel was operating normally. It was in an inactive state, since a cargo surveyor, a charterer's surveyor and a draft surveyor were on board. Until the surveyors had indicated their readiness, no cargo, bunkering or other operations could be conducted, neither could the vessel discharge either ballast or bilge water. The Master concluded that the source of the oil on the water was some other vessel or some shore facility. There was nothing found to be wrong with the generating engine fresh water coolant system, which operated normally both before and after this incident. Nothing was found to be wrong with any of the cooling systems, or with any other items of the ship's equipment. The source of any oil leaving the generating engine fresh water coolant discharge valve, according to the Master, must have been from outside the ship, that is to say, the system was merely discharging the sea water it was receiving from its inlet valve.

28. The Master admitted, however, that he was not sure what other pumps may have been operating at the relevant time. He admitted that pumps may have been operating for a number of services. The air conditioning, refrigerator, the cooling system for the main engine, as well as the cooling system for the generator may all have been operating. The Master said that he was not an engineer but was a navigator. Accordingly, when pressed as to details of the ship's services and pumping systems he was vague and uncertain.

29. The prosecutor had obtained plans of the ship's services, including those of the services that had been altered in June 1997. These were tendered in evidence and described by Mr Burge. Whilst it is true, as the Master said, that ballast piping, the bilge piping and the coolant piping systems had been segregated, the plans showed that it remained possible for the contents of the bilges to be pumped out by either the salt water coolant service pump, by the fire and general services pump, or by the fire bilge and ballast pump.

30. For example, according to the plans tendered in evidence the first possible method by which oily water could discharge from the port side of the vessel and into the water is an emergency bilge suction valve could be opened to afford suction from the engine bilge into the cooling sea water discharge for the generator engine coolant. The prosecutor had obtained a list of the valves attached to the port shell plate of the vessel. The cooling sea water discharged through one of six valves on the portside. Although a number of valves would have to be open before any bilge water could enter this system, all but one of them would normally be open.

31. Mr Burge indicated a second possibility by which oily water could discharge from the portside of the vessel. Although the piping from the port bilge well, the starboard bilge well and the aft bilge well had been separated from the ballast piping system, the plans of these services showed that it remained possible for the bilge piping to be interconnected with the fire and ballast piping and pumped by either the fire and general services pump or by the fire, bilge and ballast pump to another of the six discharge valves on the portside of the ship. Again, although eight valves would have to be opened before any bilge water could enter this system, seven of them would normally be open all the time.

32. The tender of the plans of these services demonstrate that, contrary to the Master's assertions that it is not possible for oil from the vessel's bilge to be pumped out on the port side, it was clearly possible provided that only one additional valve was opened. As I have said, the Master was not sure which of any of a number of pumps were operating at the relevant time.

33. Mr Burge also said that if the emergency bilge suction valve operated through an oily water separator, it was nevertheless possible for the separator to be manually overriden.

34. I observe that the plan of the stern of the vessel provided by the Master shows the bilge separator on the starboard side. This is consistent with his evidence that the bilge piping discharges on the starboard side. It seems to me that if, as the plan shows, the bilge separator is on the starboard side then any bilge contents which enter the cooling sea water piping system, or the fire and ballast piping system, both of which discharge on the portside, would not necessarily pass through the bilge separator. There was no evidence, however, of precisely where in the system the separator is. Accordingly, I do not decide the case on this scenario.

35. The Master said that the generating engine fresh water coolant system was merely discharging sea water it was receiving from its inlet valve. The inlet valve, however, is on the starboard side. According to the Master, the ship had a draft of 6.12 metres when it berthed. The inlet for the generating engine fresh water coolant (the cooling sea water) is 2.03 metres above the keel, that is to say, it would have been slightly over 4 metres below the water line. No oil was seen on the starboard side of the vessel. All the oil was on the portside and at the stern. If the system was, as the Master suggests, merely discharging sea water it was receiving from an inlet valve 4 metres below the surface on the starboard side, one would expect the discharge to be clear sea water. The fact that the discharge contained oil, as observed by Messrs Gibson, Filmer and Baylis, suggests that the source of the oil must have been from within the ship.

36. In the light of all of the evidence I have come to the conclusion that the prosecutor has proved the offence beyond a reasonable doubt. I have come to this view principally for the following reasons:

* the eye witness accounts, particularly those of Messrs Gibson, Filmer and Baylis, of oil being pumped from an outlet on the portside of the vessel;

* the evidence of Mr Ho and his analysis, which shows a 99% or higher certainty that the oil slick and the oil sample from the vessel's bilge were the same;

* the fact that, contrary to the evidence of the Master, it was possible for the engine bilge to be pumped out on the vessel's portside by one or more of three pumping systems by simply opening one valve;

* if the vessel's generating engine fresh water coolant system was merely discharging sea water it was receiving from its inlet valve on the starboard side, then the discharge should have been clear sea water, so the fact that the discharge contained oil suggests that the oil must have come from within the vessel.

35. Accordingly I make the following formal orders:

50122 of 1997. I find the offence proved.

50123 of 1997. I find the offence proved.

As requested by the prosecutor, I stand over for further hearing the questions of conviction, penalty and costs.

I certify that the 16 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

Dated