Director of Solomon Islands Maritime Authority v Ngo Duc Thai [2021] SBHC 48; HCSI-CC 35 of 2021 (26 March 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Director of Solomon Islands Maritime Authority v Ngo Duc Thai
Citation:
Date of decision:	26 March 2021
Parties:	Director of Solomon Islands Maritime Authority v Ngo Duc Thai
Date of hearing:	22 March 2021
Court file number(s):	35 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird J
On appeal from:
Order:	1. The defendant is convicted on one count of discharge of pollutants contrary to regulation 9 (2) and (3) of the Shipping (Marine Pollution) Regulation 2011. 2. A fine of 4,000 penalty units is hereby impose on the defendant. 3. The defendant and the shipowner are liable to pay for the costs of any clean-up operations and all necessary action to restore the environment to its original condition pursuant to regulation 9 (3) (b) of the Shipping (Marine Pollution) Regulations 2011. 4. The defendant is convicted on one count of failing to comply with operational requirements of the international convention for the Prevention of Pollution from Ships (MARPOL) 1973/1978 contrary to regulation 8 (1) and (2) (a) of the Shipping (Marine Pollution) Regulation 2011. 5. A fine of 4,000 penalty units is impose on the defendant. 6. The defendant is convicted on one count of making a false report contrary to regulation 16 (1) and (4) (b) of the Shipping (Marine Pollution) Regulation 2011. 7. A fine of 3,000 penalty units is hereby impose on the defendant. 8. The defendant is hereby convicted on one count of failing to comply with instructions contrary to regulation 27 and 29 (1) (a) of the Shipping (Marine Pollution) Regulation 2011. 9. A fine of 4,000 penalty units is hereby impose on the defendant. 10. The defendant is convicted on one count of taking an unsafe vessel to sea contrary to section 81 (1) (e) and (2) of the Shipping Act 1998. 11. A fine of 45,000.00 is hereby impose on the defendant. 12. Right of Appeal.
Representation:	Ms. Rachel Olutimayin for the Prosecution Mr. Wilson Rano for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Shipping Act 1998 - Shipping ( Marine Pollution ) Regulations 2011 9 (2) and (3), 8 (1) and (2) (a), 16 (1) (a) and (4) (a), 16 (1) and (4) (b), 27 and 29 (1) (a), 9 (3) (b), 81 (1) and (2) (a), Shipping Act 1998 81 (1) (e) and (2),
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 35 of 2021

DIRECTOR OF THE SOLOMON ISLANDS MARITIME AUTHORITY

V

NGO DUC THAI

Date if Hearing: 22 March 2021
Date of Decision: 26 March 2021

Ms. Rachel Olutimayin for the Prosecution
Mr. Wilson Rano for the Accused

SENTENCE

Bird PJ:

1. By information filed on the 11^th February 2021, the defendant was charged with the following offences:

Count 1: Statement of offences

Discharge of pollutants contrary to regulation 9(2) and (3) of the Shipping (Marine Pollution) Regulations 2011.

Particulars of Offence

That NGO DUC THAI, Master of MV QUEBEC 9044425 at Graciosa Bay, Lata in the Temotu Province on the 20 January 2021 unlawfully discharged oil from a vessel, namely the MV Quebec, into Solomon Islands waters, namely Graciosa Bay in Lata, in the Temotu Province.

Count 2: Statement of Offence

Failing to comply with operational requirements of the International Convention for the Prevention of Pollution from ships (MARPOL) 1973/1978 contrary to regulation 8(1) and (2) (a) of the shipping (Marine Pollution) Regulations 2011.

Particulars of Offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on the 20 January 2021, being the master of a vessel, namely MV QUEBEC 9044425. Failed to comply with MARPOL 73/78 operational requirements, namely not to discharge into the sea or oil mixture from a ship of 400 gross tonnage except when all the conditions of MARPOL Annex 1 Regulation 15.2 were satisfied.

Count 3: Statement of Offence

Failure to report discharges contrary to regulation 16(1) (a) and (4) (a) of the shipping (Marine Pollution) Regulations 2011

Particulars of offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on or about 20 January 2021, failed to immediately report to the Director of Solomon Islands Maritime Authority and to the Parliament Secretary for Environment, Climate Change, Disaster Management and Meteorology the discharge of oil from a vessel namely the MV Quebec, into Solomon Islands waters, namely Graciosa Bay at Lata in the Temotu Province.

Count 4: Statement of Offence

Making an incomplete report contrary to regulation 16(1), (2) and (4) (b) of the shipping (Marine Pollution) Regulations 2011.

Particulars of Offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on 22 January 2021, made a report to the Director of the Solomon Island Maritime Authority and the Permanent Secretary for Environment, Climate Change, Disaster Management and Meteorology, about the discharge of oil form a vessel, namely the MV Quebec, into Solomon Islands waters, namely Graciosa Bay at Lata, in the Temotu Province that contained information that was incomplete.

Count 5: Statement of Offence

Making an incomplete report contrary to regulation 16(1), (2) and (4) (b) of the Shipping (Marine Pollution) Regulations 2011.

Particulars of Offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on 23 January 2021, made a report to the Director of the Solomon Islands Maritime Authority and to the Permanent Secretary for Environment, Climate Change, Disaster Management Meteorology, about the discharge of oil from a vessel, namely the MV Quebec, into Solomon Islands waters, namely Graciosa bay at Lata, in the Temotu Province, that contained information that was incomplete.

Count 6: Statement of Offence

Making a false report contrary to regulation 16(1) and (4) (b) of the shipping (Marine Pollution) Regulations 2011.

Particulars of Offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on 23 January 2021, made a report to the Director of the Solomon Islands Maritime Authority and to the Permanent Secretary for Environment, Climate Change, Disaster Management and Meteorology, about the discharge of oil from a vessel, namely the MV Quebec, into Solomon Islands waters, namely Graciosa Bay at Lata, in the Temotu Province, that contained information that was false, namely that it was a hydraulic oil leak from a broken pipe in the cargo hold system.

Count 7: Statement of Offence

Failing to comply with instructions contrary to regulation 27 and 29(1) (a) of the Shipping (Marine Pollution) Regulations 2011

Particulars of Offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on 2 February 2021, failed to comply with an instruction issued by the Director of the Solomon Islands Maritime Authority, namely to not move the vessel MV Quebec from her Position at anchor in Graciosa Bay, Lata, Temotu Province.

Count 8: Statement of Offence

Failing to comply with instructions contrary to regulation 27 and 29(1) (a) of the shipping (Marine Pollution) Regulations 2011

Particulars of offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on 2 February 2021, failed to comply with an instruction issued by the Director of the Solomon Islands Maritime Authority, namely to report the vessel’s position every six hours.

Count 9: Statement of Offence

Taking an unsafe vessel to sea contrary to section 81(1) (e) and (2) of the Shipping Act 1998.

Particulars of offence

That NGO DUC THAI, Master of MV QUEBEC 9044425, at Graciosa Bay, Lata, in the Temotu Province on 9 February 2021, being the master of MV QUEBEC 9044425, took to see the vessel knowing that it was unsafe, being that in the opinion of an authorised officer, namely the Director of the Solomon Islands Maritime Authority, there were insufficient lifesaving appliances that would endanger life.

2. When the matter was called in court on the 19^th March 2021, the Director of Public Prosecution had withdrawn count 3, count 4, count 5 and count 8 on the information. The defendant was thereby discharged on counts 3, 4, 5 and 8. Only counts 1, 2, 6, 7 and 9 were proceeded with. The defendant was arraigned on the balance of the charges on the same date and he entered guilty pleas to all the remaining charges.
3. The summary of facts in your case is as follows:-
   1. You are a Vietnamese national and the master of the Vessel MV QUEBEC 9044425.
   2. The MV QUEBEC 9044425 is a bulk carrier that is registered in Panama and is used to carry wooden logs from Solomon Islands. The vessel’s owner is Feng Sea Shipping Pty Ltd headquartered in Singapore and represented by SOLFISH Limited when operating in Solomon Islands.
   100. The MV QUEBEC 9044425 arrived in Solomon Islands on 11 January 2021 in Noro for inward clearance before going to Ngirasa, Barnabas and Managuu port to load wooden logs for export. The vessel had a 21- member crew which comprised of Vietnamese nationals. The vessel can carry a maximum of 24 persons.
   4. On 20 January 2021, the vessel was anchored at Graciosa Bay, Lata. Sometime between 9am and 10am, heavy oil was discharged into the sea from the vessel’s engine room bilge through the main fire line. This was witnessed by a boarding agent who estimated that the spilling lasted for 6 to 7 minutes. Between 500 and 1000 litres of heavy oil and 9 to 10 cubic meters of a light oil and oily waters were discharged from the vessel. The discharge polluted over 1 kilometre of waters were discharged from the vessel. The discharge polluted over 1 kilometer of beach and mangrove at the bottom of the Graciosa Bay, Lata (Count 1).
   5. The MARPOL 73/78 Convection requires that engine room piping arrangements be built to be segregated to avoid the discharge of bilge waters overboard. The MARPOL 73/78 Convention also requires that Oil Filtering (15ppm) Equipment must be used to discharge bilge waters overboard. In addition, the MARPOL 73/78 Convention requires that all transfer between the vessel’s tanks and discharge overboard be recorded in the Oil Record Book. This was not complied with (Count 2).
   6. At about 10am on 20 January 2021, officials of the Solomon Islands Government (SIG) boarded the vessel. Later in the afternoon, the Director of SIMA was first notified of the incident by Lata Customs.
   7. On 20 January 2021, the Director of SIMA contacted Customs and Lata Police for further information on oil spill and on 20 January to SOLFISH Limited for a report from the master of MV QUEBEC. The Defendant reported that there was a discharge of oil from the vessel through the fire line when trying to wash the anchor.
   8. The Director of SIMA instructed the defendant to immediately cease any discharge or dumping pollutants, substances, wastes or other matters. The Director of SIMA provided instructions to the defendants to report the position of the Vessel every 6 hours and the quantity of oil and water in tanks.
   9. On 23 January 2021, the Director received a second report from the defendant. The report provided by the defendant contained false information. In the report, the defendant falsely stated that the oil spill was due to a leak from a broken hydraulic oil pipe of the cargo hold system (Count 6). The oil spill was a discharge of heavy oil through the fire line and out of one of the fire hydrants on deck. That was confirmed from reports by the shipping agent and other government officials.
   10. On the 25 January 2021, a meeting of the Marine Pollution Advisory Committee was held. The Committee classified the marine pollution from the MV QUEBEC 9044425 as a Tier 2 under the National Marine Spill Contingency Plan (NATPLAN) which is a marine pollution that can be controlled within the capacity and resources available in the Solomon Islands. The Director of SIMA was designated Incident Controller and subsequently notified the defendant. The Director of SIMA instructed the defendant not to move the vessel until further notice.
   11. On 2 February 2021, the defendant reported the location of the vessel 12:00 midday. Sometimes between 3:30pm and 4:00pm on 2 February 2021, the defendant put the MV QUEBUC 9044425 to sea against the instructions of the Director of SIMA (Count 7). The Director of SIMA contacted the defendant and instructed him to return the vessel to its original position. The vessel was returned to its original position at about 8:00pm.
   50. On 5 February 2021, the Director SIMA , Incident Controller led the deployment of a Multi-Sectoral Technical Assessment Team coordinated by the Solomon Islands Government through the National Disaster Management Office, NDMO. Over the next t two days, a Port State Control (PSC) Inspector and an investigation under MARPOL Convention Annex I were conducted and an impact assessment conducted within the Graciosa Bay area. The inspection noted 12 deficiencies to international convention that presented a risk to the safety of people on board and the environment. This was due to the presence of oil on the hull aft port side and in the vessel was detained.
   13. On 9 February 2021, the director of SIMA received reports from Lata Customs and Police that the vessel was put to sea with a greater number of persons on board than the maximum capacity. The Director of SIMA requested the defendant to present the vessel at the original position. A head count was conducted which showed that the 46 persons were still on board (22 more than the maximum capacity). There were insufficient life lifesaving appliances for all persons on board. It is the opinion of the Director of SIMA that this would endanger lives (Count 9).
   14. On 11 February 2021, the Director of SIMA reinspected the vessel and released it from detention. An information was filed in the High Court of the Solomon Islands. On 26 February 2021, the defendant was served with a summons to appear in the High Court.
   15. The full environmental and social impact of the heavy oil discharge from MV QUEBEC 9044425 into the sea at Graciosa Bay. Lata is still being assessed. A full report is to be completed at a later date.
   16. A bundle of photographs of the oil spill and its immediate impact was tendered to court by the director and became part of the crown’s summary of fact.
4. After having stated that facts, I must remind you that as the Master of the vessel MV QUEBEC 9044425, you are the person that is in charge and is in control of the vessel and what is done on board. For counts 1 and 2, the maximum penalty that the court could impose is a fine not exceeding 5,000 penalty units or for an imprisonment for a term not exceeding 12 months or both. For the offence on count 6 is a fine not exceeding 5000 penalty units or to an imprisonment not exceeding 6 months or both. For the offence contained in count 7 is a fine not exceeding 5000 penalty units and to an additional fine of 1000 penalty units for each day during which the offending continues and for the offence contained in count 9 is a fine not exceeding sixty thousand dollars.
5. I am urged by the prosecution to take into account the following factors that would illustrate the seriousness of the charges laid against you. Firstly, I am told that it was a deliberate discharge of oil. I am also told that as the Master of the vessel, you hold overall command and responsibility of the operations of the vessel.
6. From the facts as presented, the amount of oil discharged was significant. Heavy oil was estimated between 500 to 1,000 litres. The discharge also included 9 to 10 cubic meters of light oil and oily waters. The discharge had polluted over 1 kilometre of beach and mangrove at the bottom of Graciosa Bay, Lata. That aspect is confirmed through the photographs that were tendered to court by the Director of SIMA, Mr. Thierry Nervale.
7. I am also told that the discharge of oil was in breach of the International Convention for the Prevention of Pollution from Ships (MARPOL) 73/78. The legislation is an international convention and as the Master of an ocean going vessel, you should have been well versed with that legislation.
8. The court is concerned that you have provided a false report to the Director of SIMA in a deliberate attempt to diminish the responsibility of the offences. I am also urged to take into account the significant social and environmental impact on the area which is yet to be determined at this point in time.
9. It is also obvious that you have disobeyed instructions by the Director of SIMA. You have decided to put the MV QUEBEC 9044425 to sea in contravention of the instructions.
10. I am told that the MV QUEBEC 9044425 is authorised to carry a total of 24 persons. At the time of your offending, the vessel was carrying 46 persons- almost double the maximum number of person to be carried by the vessel. You are directly responsible for the breach.
11. On your behalf, your lawyer had submitted that you have pleaded guilty to the offending at first opportunity. That guilty plea has not only shown remorse but that you have owned up to the various offending and that you are willing to take responsibility of your actions. I give you credit for that guilty plea.
12. You are a first offender with no previous criminal history. I hereby urge you to continue living a life free from crime. I must also urge you to respect the international laws to minimise further offences being committed. You must also learn to respect the domestic laws of other countries that you are bound to enter in the course of your employment.
13. I have noted that you have co-operated with the prosecution in this case. This case had progressed quite quickly through video link with you despite logistical difficulties. You have also attempted to make the necessary applications to our Immigration Offices. You have also attempted to satisfy and deal with other directions by the DPP, SIMA authorities and the court.
14. I am told by your lawyer that the ship owner and yourself have made attempts to assist in the clean-up through your insurance company. I am also told that it is unlikely that you will reoffend in future. On that note I am told that you have made preventative measures and have made all possible attempts to rectify all the deficiencies in the vessel.
15. It is noted from the arraignment stage of your case that there is a language barrier personal to yourself. It is therefore noted that some of the facts in your various offending could have been done or omitted to be done due to language barrier and proper understanding of the instructions. You could have received some assisted anyway if you have contacted your agents in the country to fully explain to you the circumstances and consequences of your action or inaction.
16. You are the Master of MV QUEBEC 9044425 and you have entered Solomon Islands for the purpose of loading and export of round logs from various ports in the country. Without your presence on board the vessel, it will not be able to complete its journey and will not be able to leave the country. The cargo that the ship is carrying is fragile and could rot and decay. That in turn can cause huge financial loss to all parties concerned.
17. In this sentence I shall take into account the seriousness of your actions. Solomon Islands is a sovereign state and foreign nationals who enter this country must regard and respect for our domestic laws. They must also have regard and must have knowledge of international conventions because their work also involved issues of pollution by ships. The sentence that I will impose on you would bring to you and would-be offenders that the courts do not tolerate such behaviour from people who have control over the operations of any ships whether internationally or within the waters of our country.
18. Having taken into account the circumstances surrounding the commission of the various offending and their seriousness together with the mitigating factors in your offending, I am of the view that the appropriate sentence that I will impose upon you is a heavy fine. For the offence contained in count 1 of the information I hereby impose a fine of 4,000 penalty units. I further direct that the defendant and the ship owner are liable to pay for the total costs of any clean-up operations and all necessary action to restore the environment to its original condition pursuant to regulation 9 (3) (b) of the shipping (Marine Pollution) Regulations 2011. For the offence contained in count 6, I hereby impose a fine of 3,000 penalty units. For the offence contained in count 9, I hereby impose a fine of 45,000.00.

Orders of the Court

1. The defendant is convicted on one count of discharge of pollutants contrary to regulation 9 (2) and (3) of the Shipping (Marine Pollution) Regulation 2011.
2. A fine of 4,000 penalty units is hereby impose on the defendant.
3. The defendant and the shipowner are liable to pay for the costs of any clean-up operations and all necessary action to restore the environment to its original condition pursuant to regulation 9 (3) (b) of the Shipping (Marine Pollution) Regulations 2011.
4. The defendant is convicted on one count of failing to comply with operational requirements of the international convention for the Prevention of Pollution from Ships (MARPOL) 1973/1978 contrary to regulation 8 (1) and (2) (a) of the Shipping (Marine Pollution) Regulation 2011.
5. A fine of 4,000 penalty units is impose on the defendant.
6. The defendant is convicted on one count of making a false report contrary to regulation 16 (1) and (4) (b) of the Shipping (Marine Pollution) Regulation 2011.
7. A fine of 3,000 penalty units is hereby impose on the defendant.
8. The defendant is hereby convicted on one count of failing to comply with instructions contrary to regulation 27 and 29 (1) (a) of the Shipping (Marine Pollution) Regulation 2011.
9. A fine of 4,000 penalty units is hereby impose on the defendant.
10. The defendant is convicted on one count of taking an unsafe vessel to sea contrary to section 81 (1) (e) and (2) of the Shipping Act 1998.
11. A fine of 45,000.00 is hereby impose on the defendant.
12. Right of Appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge