The owner of a water sports vessel worth $200,000 will get it back for $6,000 following a court decision this week.
The vessel Big Splash was ordered to be forfeited after its captain was convicted in Summary Court in August 2005. The convictions were for a marine environment violation and failure to maintain safety equipment.
The owner of the vessel, Splash Water Sports, was not charged. An application for release of the vessel was made in Summary Court and refused.
Attorney Keva Reid appealed the forfeiture to Grand Court and Mr. Justice Alexander Henderson heard submissions on two dates before giving his decision.
The judge noted that the appeal was the first opportunity for the boat’s owner to be heard.
The charges arose from an incident in November 2004 when marine officers observed an oil slick in an area of Rackley’s Canal. It appeared to be a diesel spill. An hour or so later an oil spill was reported in the Safehaven area. Officers attended and observed a slick following the Big Splash in the area of Stingray City.
They boarded the vessel and charges were subsequently laid for discharging harmful effluent into the sea and operating a vessel without safety equipment. The latter referred to an allegation that there were not enough life vests on board nor a pocket mirror nor flares.
At the first hearing, the judge expressed particular concern about the number of life vests: was the boat one short or 20, he wondered.
Crown Counsel Gail Johnson advised that there were 35 vests for 95 passengers on board plus two crew.
But the Defence contended there were more life jackets in a compartment that the marine officers had not searched.
Mrs. Reid also argued that the oil spill was not deliberate; it was the result of a mechanical failure. She presented evidence that the boat was regularly maintained. She urged the court to say that confiscation of the vessel was a maximum penalty and should be reserved for the worst offence.
Further arguments were heard on 24 July.
In his decision last Friday, Mr. Justice Henderson noted that the forfeiture order was based solely on the marine environment conviction. A safety equipment violation does not provide grounds for forfeiture.
The Big Splash was engaged in taking tourists to Stingray City, he summarised. The large area of the diesel spill made it more than a trivial violation.
A Crown witness brought evidence that diesel fuel is capable of being harmful and toxic to fish and coral. The degree of damage has a direct correlation to the parts per million concentration of oil in the water. But, the judge continued, he had not been provided with any clear evidence of how many parts per million there were in this case.
On the balance of probabilities, he thought it reasonable that there was some damage caused by the spill and there was a significant hazard to marine life.
No explanation for the spill was provided. Perhaps none was possible. The captain had been at a loss to explain it. The evidence of the owner of the company was that he had been careful over the years to employ competent mechanics and captains and crew. The judge said the captain did impress him as being competent when he gave evidence.
Mechanics made weekly checks and before each trip the captain and crew were required to make sure the boat was clean and running properly. Presence of oil in the bilge would indicate there was an oil leak, but no such incident was reported to the owner prior to this incident.
In summary, the judge said, there appeared to be either a departure from the owner’s procedures for avoiding oil leaks or else there was some unexplained reason.
The Marine Conservation Law provides that any equipment used in the commission of an offence may be forfeited. This power of confiscation is discretionary. The law is silent as to the circumstances in which forfeiture should be ordered.
It seemed to the judge that marine violations could be categorised as intentional and unintentional. If they were unintentional, were they the result of negligence?
In this case, the judge was satisfied from the unchallenged evidence of the owner that he did have a reasonable system in place and he did take reasonable precautions to ensure that an oil spill would not occur. His efforts to monitor the system were also reasonable.
The company operates three boats and has done so for some time, but this was the first time the company or the owner was involved in an oil spill.
Given all these circumstances, and given that the degree of harm from the spill was somewhat speculative but probably in the moderate range, the penalty of confiscation was too severe, the judge concluded.
If the company had been charged in the first place, he could have substituted a fine of up to $500,000, as the law provides. Mr. Justice Henderson said he would likely have considered a fine in the range of $10,000 – $20,000. But he could not take that course because the company was not charged.
What he could do was order that the vessel be recovered by the owner on payment of $6,000, as the law provides.
On the issue of safety equipment, he noted the officer’s evidence that 37 life jackets were visible. The captain and owner maintained that others were stored in a compartment. A hatch cover would have to be lifted to retrieve them.
On the balance of probability, the judge was of the view that there likely was the requisite number on board. However, he noted, the requirement is for life jackets, not snorkel vests.
He again emphasised that forfeiture is not a remedy for insufficient vests.