Maritime New Zealand v Wild Fish (NZ) Limited [2018] NZDC 16476 (7 August 2018)

Last Updated: 21 August 2019

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2016-044-004614

[2018] NZDC 16476

MARITIME NEW ZEALAND

Prosecutor v

WILD FISH (NZ) LIMITED Defendant

Hearing:	7 August 2018
Appearances:	S Lowery for the Prosecutor S Moore for the Defendant
Judgment:	7 August 2018

NOTES OF JUDGE D M PARTRIDGE ON SENTENCING

[1] Wild Fish (NZ) Limited appears for sentencing on one charge under s 65 Maritime Transport Act 1994 of causing or committing a ship to be operated in a manner which caused unnecessary danger or risk to any other person or to any property. The maximum available penalty is a fine of $100,000.

[2] Both counsel for the prosecutor and counsel for the defence have filed extensive, detailed submissions and I have read those and have expressed my appreciation to counsel for the quality of those and in addition the quality of the oral submissions that they have presented to me today. Present in Court also is Mr David Moore who is one of the directors of Wild Fish.

[3] Initially this matter had been set down for a hearing but a few days prior to the hearing there was a discussion and the charge was agreed to be amended based on some additional information that Wild Fish were able to provide to

MARITIME NEW ZEALAND v WILD FISH (NZ) LIMITED [2018] NZDC 16476 [7 August 2018]

Maritime New Zealand. That agreement has led to, first of all, the hearing not being required and, secondly, an amended summary of facts once the charge was amended.

[4] I will refer to the summary of facts briefly. Wild Fish is a commercial fishing company which owns and operates six vessels, one of which is called the Jan. On 11 January 2016 the Jan ran aground in the Bay of Islands. It had departed Marsden Point the day before with a crew of three, the master and two deck hands. In the early hours of 11 January 2016 the Jan rounded Cape Brett with the master on watch. He then woke one of the deck hands from his bunk and put him on watch. The deck hand had been asleep for approximately one to three and a quarter hours. The master checked with the deck hand if he was fit to go on watch and was told that he was. The master put the Jan on autopilot and instructed the deck hand to wake him when the vessel reached a waypoint approximately an hour’s steaming away. The master then went to bed.

[5] The deck hand was the sole crew member awake. The deck hand was 17 years old. He had worked for Wild Fish for approximately six months. He had limited experience on being on watch alone and this was the first time he had been on watch by himself in the middle of the night. He was tired from his day’s work and from limited sleep. As a result of his fatigue he fell asleep shortly after going on watch. As a result the vessel passed through the waypoint set by the master whilst the deck hand continued sleeping and continued steaming until it grounded in a cave on the rocky shoreline near Howe Point in the Bay of Islands. It took on water and the crew were required to abandon ship. They swam the few metres to shore where they activated the Jan’s emergency beacon and were rescued by the Coast Guard. The Jan capsized and was a total loss.

[6] There was no effective system for preventing fatigued crew members from going on watch nor an effective mechanism on the Jan for preventing them from sleeping on watch. What has transpired and led to the amendment of the charge is that there was a watch alarm in fact installed on the Jan, however, the crew members were not aware that the watch alarm was installed. They had not had any training in respect of the watch alarm and for a reason unknown to anyone it appears that the watch alarm was not able to be used. It had been, in fact, disabled. That is a mystery to Wild Fish

in particular because they were of the understanding that in fact that alarm could not be disabled except by a special code and, therefore, it appears that in fact the crew could not have knowingly disarmed it, particularly as they were not aware that it actually existed in the first place.

[7] Wild Fish has admitted their failures. They accept that they caused or permitted the Jan to be operated in a manner which caused unnecessary danger or risk to a person or property by causing or permitting the vessel to be operated (a) without an effective system to ensure the vessel’s watch alarm was used by the crew to prevent them falling asleep on watch or waking them if they did, (b) without an effective system for monitoring the sleep of crew members to ensure that overly fatigued crew members did not go on watch, and (c) such that crew members with limited watch keeping experience kept watch alone.

[8] Whilst counsel have referred to a number of cases in submissions it is accepted that there is no tariff case that the Court can take account of in its sentencing. Counsel are in agreement that the case of Maritime New Zealand v Seafort Holdings Ltd & Richard John Prentice is a case of similar facts although is distinguishable in some aspects1. I have considered the cases that have been referred to me, in particular the case of Seafort, and I concur with counsels’ submissions that that is a case that I can take account of given its similarity in various aspects of the case.

[9] Counsel have made submissions in respect of the appropriate fine to be imposed against Wild Fish in the circumstances. Maritime New Zealand submit that a starting point of between $40,000 and $50,000 is appropriate with a discount for a guilty plea in the range of 15 to 20 percent, which leads to an end fine between $32,000 and $43,000. Wild Fish submits that a starting point of $30,000 is appropriate with discounts to be provided at five percent for remorse, five percent for changes or remedial action taken following the event, and 10 percent for co-operation with authorities. The submission is further made that a discount for guilty plea should be granted in the amount of 25 percent given that the guilty plea was indicated as soon as the charge was amended by Maritime New Zealand.

1 Director of Maritime New Zealand v Prentice [2018] NZHC 1397.

[10] The case of Seafort has some similarities but also some differences. That is a case where, like Wild Fish, the company had experienced a previous incident similar to the second incident for which they were being sentenced. In Seafort the second incident was almost on all fours with the first incident. That had led to a serious injury by the victim in each of those matters whereby they broke their back. The situation for Wild Fish is somewhat different. Wild Fish had previously suffered an incident with the Ben Derg which caused the vessel to run aground. However, no injuries thankfully have been incurred with either of the incidents in respect of Wild Fish.

[11] In respect of Seafort the company was charged in respect of the first incident. Wild Fish was not charged in respect of the Ben Derg incident. Seafort failed to take any steps following the first incident to reduce the risk that had been clearly identified. Wild Fish in fact did put a system in place following the Ben Derg incident. In that way it was proactive. However, the reality is that the failure to ensure that the system in place was one that was known to the crew members and therefore could be relied upon is something that clearly has resulted in the second incident for which Wild Fish now is facing charges and sentencing.

[12] The starting point in respect of the Seafort decision was $50,000. I accept that the Seafort decision can be distinguished. In my view the directors of Wild Fish had been proactive in taking steps to ensure that a similar incident did not recur. However, in my view there was a degree of wilfulness which is in my view an aggravating feature, because whilst they took steps the steps were inadequate. It is clear that the watch alarm could have prevented the grounding of the vessel if the crew were aware of the existence of it, were trained in respect of it, if it had been monitored to ensure that it was being used and, therefore, whether there was any difficulty with it being activated.

[13] I accept the submission of Mr Moore that the aggravating features referred to by Mr Lowery which is the serious risk to the crew and other vessels is inherent in the charge and that the breach of trust that he refers to, and that I accept is present, is not a matter that has been referred to in case law that has been referred to me. However, it is clear that the crew of the Jan were entitled to trust that the equipment they were using was adequate, that they had training and processes in place that would be able

to keep them safe. That was not the case at all and in my view that comes under the aggravating feature of recklessness.

[14] I accept that the directors of Wild Fish are remorseful. I accept that they have made some changes to ensure that a similar situation does not recur, and I accept that Mr Moore, the director of Wild Fish, has detailed in his affidavit sworn on 7 May 2018 the steps that he has taken. I further accept that Wild Fish has co-operated fully with the authorities.

[15] Both counsel have addressed me in respect of a discount for a guilty plea. For Maritime New Zealand Mr Lowery submits that a 15 to 20 percent discount is appropriate in the circumstances where the charges were laid in January 2016 and the information that came to Maritime New Zealand from Mr Moore which led to the amendment to the charge was only made available some 12 months later in January 2017. Mr Moore on behalf of Wild Fish submits that a 25 percent discount should be applied.

[16] I adopt a starting point of $40,000. That is in my view an appropriate starting point having regard to the Seafort decision and the aggravating feature of the recklessness. I adopt a discount of five percent for remorse and 10 percent for co-operation with authorities and remedial work. That is a total of 15 percent discount which brings the fine down to $34,000. I then apply a discount of 20 percent for the guilty plea. In my view a 20 percent discount is the more appropriate discount than a full 25 percent discount. The information that led to the variation of the charge was available to Wild Fish from the time the charges were laid. The Court process had been commenced and at the time the information was available the matter had been allocated a hearing and was shortly to be heard. In my view it is appropriate in those circumstances for a 20 percent discount to be applied for the guilty plea.

[17] That brings the total fine to $27,200.

D M Partridge District Court Judge