Tupa v Ravuso and Tupa v Taio Shipping Services Ltd [1997] CKHC 1; Cr 288.1997 and Cr 290.1997 (21 August 1997)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 288/97

VAITOTI TUPA

v

WAISALE RAVUSO

CR NO. 290/97

VAITOTI TUPA

v

TAIO SHIPPING SERVICES LIMITED

Mrs M Tairea for Informant.
Mr T Arnold for Defendant.

Date of Hearing: 21 August 1997
Date of Judgment: 21 August 1997

JUDGMENT OF QUILLIAM CJ

This is the first prosecution in this country concerning the escape of oil in territorial waters. As there have been no previous incidents of an offence of this nature in this country, it is necessary to say something for the guidance of future occasions. It must be said at once, that experience all around the world has demonstrated that there is a very heavy responsibility upon those who operate ships in territorial waters to ensure that there is no discharge of oil, because of course, of the potentially very serious consequences which can follow. So it is, that in other jurisdictions, instances of this offence have been met with very heavy fines.

In the present case the legislation provides for a maximum fine of $200,000 in the case of a corporation and a continuing fine of $25,000 a day and in the case of an individual, a fine of $20,000 and a continuing fine of $250. That in itself demonstrates the seriousness of the matter. In the present case, because of the lack of experience in such matters, it was thought appropriate to prosecute both the company which operates the ship and the engineer whose individual responsibility it was. I do not think that there is any good purpose to be served by there being two prosecutions for the single incident, and this is now accepted on behalf of the informant and there is no difference between counsel upon it, and I think the proper course is that they should discharge the engineer, Ravuso without conviction.

The real question concerns the responsibility of the company which operates the ship in territorial waters. In the present case there are some particular circumstances which I think must be taken into account:

First, what was discharged was diesel which is a light oil and significantly different from the heavy oil which has caused so much damage upon being discharged in other countries. Second, there is little doubt that, what happened was a matter of inadvertence with no appearance of gross negligence. The ship was new to the company and, what caused the discharge was something which arose out of a lack of adequate knowledge of the characteristics of the ship. That in itself is not a major factor because of course there was a real obligation on the company to make sure of what was necessary in any cases of this kind. It is not known whether there was any real damage to the environment arising out of this because the oil drifted out to sea, fortunately, very quickly. One cannot exclude the possibility that, there was some damage but it is to be hoped that this was not to any major extent. I think that it is possible in this case to impose a much lighter sentence than would normally be the case but in doing so, it is necessary to emphasize the very serious nature of a matter such as this.

This case must serve as a warning to future users of the harbour here, and the level of the fine must not be taken as an indication that an incident of this sort can be lightly dismissed. I am not prepared to impose a token fine at all but I think that it must be an indication to people that there can be substantial penalties involved and in a worse case, the amount would be expected to increase significantly. Accordingly, the company will be convicted and fined $1,000 and ordered to pay Court costs of $50.

CHIEF JUSTICE