R v Finete and C & F Fishing Ltd [1984] SBHC 12; [1984] SILR 40 (30 July 1984)

[1984] SILR 40

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No.4 of 1984

R

v

FINETE AND C & F FISHING LIMITED

High Court of Solomon Islands
(Roger Coventry ACJ)
Criminal Case No.4 of 1984

11-30 July at Honiara
Ruling after 30 July 1984 giving on one issue given on that date full reasons for Judgment

Fisheries Act 1972 S.7 (5) b - Fisheries (Foreign Fishing Vessel) Regulations 1981 reg. 11 - meaning of ‘fishing gear’ –‘function test’ – ‘proximity test’ - question of fact.

Facts:

The first accused was master and the second accused company were owners of a foreign vessel. They were charged with an offence contrary to the provisions set out above, in that the vessel failed to stow its fishing gear whilst within Solomon Islands fishing limits. It was argued in their defence that neither a helicopter nor a speed boat carried by the vessel were “fishing gear” within the meaning of those provisions. It was suggested that two tests should be applied to discover whether the helicopter or the speed boat were “fishing gear” or not:

(1) was their function to catch, take or kill fish?

(2) were they so closely allied with the operation of catching taking or killing that they could be said to be gear for doing that?

Held:

The question of whether any particular object is part of a boat’s fishing gear is a matter-which can only be decided on the facts of each individual case. In this case the two test suggested could be used, leading to the answer that neither helicopter nor the speed boat was “fishing gear”.

(The master and owners were each convicted and fined on the charges referred to, and also on another count alleging that the vessel was fishing without a permit, on which the vessel was also declared forfeit to the Crown)

Francis Mwanesalua, Director of Public Prosecutions, in person, Christopher Coady, of the Solomon Islands and Papua New Guinea Bars, for the master and owners.

Coventry ACJ: There are two accused in this case. They are both charged with illegal fishing contrary to Ss7 (1) (b) and 7(5) (a) of the Fisheries Act 1972 and with being the master and owners respectively of a foreign fishing vessel which failed to stow its fishing gear whilst within Solomon Islands Fishing Limits contrary to Ss 7(5) (b) of the Fisheries Act 1972 as read with Regulation 11 of the Fisheries (Foreign Fishing Vessels) Regulations 1981. This judgment is only concerned with the latter charges and in particular the scope of the words ‘fishing gear’.

Regulation 11 states that – “Any fishing gear aboard a foreign vessel not permitted to fish within the fishing limits shall while the vessel is within the fishing limits be stowed wholly inboard the vessel and etc ...”

There are two objects in dispute, the helicopter and the red speed boat.

The prosecution say that the helicopter is part of the fishing gear. Whilst within Solomon Islands’ fishing limits it flew away from and back to its boat, the Jeanette Diana, on at least two occasions. The defence admit these flights. The prosecution therefore say the helicopter was not stowed wholly inboard the vessel.

The prosecution say and the Defendant accepts that a red speed boat was secured to the star board side of Jeanette Diana but in such a way that it was partly inboard and outboard. The Prosecution say this boat is also part of the fishing gear and as such should have been stowed wholly inboard.

The defence argued that neither the helicopter nor the red speed boat were; ‘fishing gear’ within the meaning of the Fishing Act 1972 and the 1981 Regulations.

I will deal first with the red speed boat. The evidence, of Simon Walegelema was that this boat is part of the fishing, gear. It is used for ‘keeping the net apart’ and ‘stopping it moving in’ when the net is in the water. He said there might be a number of boats used for this purpose while making set. Walegelema accepted his experience was of Japanese perseiners. He knew nothing of American perseiners. The defence evidence was that this was an ordinary boat used for a variety of tasks. The American method of perseining only requires one boat with the net, that is the skiff. The defendant Captain Finete stated that the boat’s tasks included chasing porpoises into the net (only done in the Eastern Pacific), emergency use while making a set (e.g. taking the chief Engineer to the skiff to repair an engine fault) and general emergencies. In view of Simon Walegelema’s lack of knowledge of the American method of perseining I must act upon the defence evidence concerning this boat.

The question is therefore does a boat which is used for tasks enumerated by the defence constitute fishing gear within the meaning of the Act and the Regulations?

The prosecution and the defence accept that the principle purpose of the helicopter is to go looking for fish. It takes off from the boat, covers a particular area of sea and if it sees fish will direct the boat to the area so the nets can be set. The defence added that the helicopter is used to ‘keep an eye’ on other fishing vessels and generally for ‘checking up’ on other vessels or anything unusual. For the purposes of deciding this particular matter I have accepted the defence evidence of the use of the helicopter, although I point out that I have found in the main judgment of this case that the helicopter is not often used for the purpose of ‘checking up’ on other vessels or anything unusual.

The question is therefore does a helicopter which carries out these tasks constitute fishing gear within the meaning of the Act and the Regulations.

There is no definition of fishing gear in the Act or the Regulations. S. 2 of the Act defines fishing as ‘fishing for or catching, or taking, or killing fish by any method.’

Mr Coady for the defence has argued that neither the helicopter nor the speed boat are directly used in the process of catching, taking or killing fish. He stated, and the court has seen, a powerful pair of binoculars mounted on the bridge which are used for spotting fish. He said that no-one would regard them as being part of fishing gear. He stated that if taken to its extreme the whole vessel, engines everything is part of the fishing gear - the boat was built as a fishing vessel. Clearly the legislature did not intend such a result.

Where is the line to be drawn? Mr Coady suggested that fishing gear means gear actually used for catching, taking and killing fish. It does not go to gear used to search out good locations.

He suggested two tests, a function test and a proximity test. Firstly, is the function of the equipment to catch, take or kill fish. He said the net, skiff, boom etc clearly do this, the helicopter does not. The function of the helicopter is to spot fish. Secondly, is the item in question so closely allied with the operation of catching taking or killing that it can be said to be gear for doing that. The helicopter is not so. Mr Coady preferred the latter test.

In my judgment the question whether any particular object is a part of a boat’s fishing gear is a matter which can only be decided upon the facts of each individual case. It would be impossible to give a comprehensive definition to cover all methods of fishing. It is a question of fact and degree.

However in arriving at a conclusion the two tests set out by defence counsel in this case can be utilized. If the ‘function’ of the object in question is the fishing or catching, or taking, or killing of fish, then it is the fishing gear. If the object is not gear within the ambit of that test then the second question should be asked, namely: is the object so closely allied with the operation of fishing for or catching or taking, or killing fish that it can be said to be gear for so doing.

I find that in this case the functions of the helicopter and red speed boat respectively are not the fishing for or catching, or taking, or killing of fish, nor are they so closely allied with those operations that it can be said they are gear for so doing.