New Zealand - Time Charterers Criminally Liable for Pollution
Published: September 01, 2011
In New Zealand, a charterer can be criminally liable for pollution emanating from a ship, even if it is not responsible for the navigation or management of the ship and has no control in any practical sense.
Under the Maritime Transport Act 1994 (MTA) and the Resource Management Act 1991 (RMA), the owner and master of a ship each commit an offence if a discharge occurs from the ship. The liability is strict, with limited defences. Section 222(2)(a) MTA (to which the RMA also refers) defines “owner” of a ship as follows:
“Owner, in relation to any ship (except in the circumstances, and to the extent, provided in sections 343 and 370 of this Act) includes-
…
(iii) Any charterer, manager, or operator of the ship, or any other person (other than a pilot) responsible for the navigation or management of the ship.”
The facts in Southern Storm (2007) Limited v Nelson City Council, on appeal from the District Court, were as follows: an oil spill occurred while the “FV Oyang 70” was being bunkered at a berth. The council prosecuted the time charterer in relation to the spill. The defendant sought to distinguish between a demise charter on the one hand and voyage and time charters on the other hand. It argued that “any charterer” in section 222(2) MTA should be interpreted narrowly and only include those charters where the charterer has responsibility for the ship. The High Court did not accept those submissions and decided that the definition in the MTA was clear: owner includes any charterer, even if the charterer is not responsible for the navigation or management of the ship. The High Court considered that the policy reason behind such an interpretation is that it ensures that not just those who actually operate the ship take care, but that it also provides an incentive to those who charter a ship to ensure that the owner/operator is operating the ship to a proper standard.
Article by Barbara Versfelt, Special Counsel, Lowndes Jordan, Auckland
