Fishing vessel sinking leads to the first conviction of an officer in New Zealand
/In June 2017, a fishing vessel, the Victory II, sank off Kaikōura while grossly overloaded with fish. In a prosecution brought by Maritime New Zealand, Antonio Basile, the sole director of the fishing company, Nino’s Ltd, became the first officer to be convicted and sentenced under the Health and Safety at Work Act 2015 (HSWA). Nino’s Ltd was also sentenced, as was the Victory II’s skipper, Mr McCauley.
Background
The Victory II had been fishing for two days. Its load capacity was 5 tonnes, yet it was loaded with at least 28 tonnes of fish when it sank off the coast of Kaikōura. Maritime New Zealand Central Region Compliance Manager, Michael-Paul Abbott, described this overloading as like “putting 20 medium-sized cars onto a small fishing boat.” The vessel sank in only two minutes and although the crew managed to evacuate into an inflatable life raft, two of the crew were briefly trapped beneath the life raft. Another vessel rescued the crew within an hour of the Victory II’s sinking.
Offences
Investigations revealed that the Victory II had regularly been loaded in excess of its load stability on previous occasions, sometimes by as much as 20 tonnes.
Judge Davidson found that both Mr Basile and Nino’s Ltd had failed to:
Identify the risk of overloading;
Ensure that systems were in place to prevent such overloading; and
Ensure adequate training and instructions for the crew.
In respect of Mr McCauley, Judge Davidson found that he had failed to:
Identify the risk of overloading;
Familiarise himself with its catch load capacity;
Prevent overloading; and
Ensure that the boat did not operate over its load limit.
Judge Davidson noted that while Mr McCauley was guilty of his own omissions, he was simultaneously one of the victims of the other two parties’ omissions.
The impact on two of the crew members was profound. In their victim impact statements, they said that the feeling was “indescribable” and “mind numbing”. One of them said that the suffocation and near death experience had “given [him] demons [he] fight[s] everyday”. Another described suffering dissociative episodes, feeling anxious and stressed, with poor concentration and suicidal thoughts.
The defence argued that Victory II’s load limit of five tonnes had been set years earlier, when it was operating in Australia and that the Victory II was capable of safely operating well beyond that limit. The Judge, however, noted that Nino’s Ltd had not had the vessel re-surveyed to re-set its load capacity, and had knowingly operated the vessel over its load limit for a year.
Convictions
Describing this as a “gross departure from plain, simple maritime safety and fishing industry standards”, the Judge fined Mr Basile $47,000. Whilst the Judge recognised that Mr Basile and Nino’s Ltd were separate legal entities, the Judge considered Mr Basile to be “Nino’s alter ego” in real terms and a significant discount was given to avoid the risk of double punishment.
Nino’s Ltd was fined $380,000 and ordered to pay a total of $60,000 in emotional reparation to three crew members.
With respect to the skipper, Mr McCauley was fined $17,500 as a worker under the HSWA. The Judge found that although Mr McCauley was entitled to rely, to some extent, on the health and safety processes of his employer, he still carried a personal responsibility as he “had the obvious practicable step of refusing to attempt to take on more fish”.
Comment - Bradley Alcorn
Pursuant to the HSWA, officers have a broad suite of duties, which includes ensuring that the PCBU (person conducting a business or undertaking) complies with their own duty. Further, an officer may be found liable for a breach of his or her duty regardless of whether the PCBU has been found to have breached the HSWA.
Mr Basile’s situation is a clear example of an officer being the sole controlling force behind the PCBU and, as such, the key protagonist with respect to the acts and omissions that led to a breach of the HSWA. As regulators such as WorkSafe and Maritime NZ become more focused on the actions of officers and not just PCBUs, it will be interesting to see how deep within a PCBU they will be prepared to cast their eye to identify those officers whom they consider to be responsible.
Update - Defendants’ appeal dismissed
On 23 June 2020 Nino’s Ltd, Mr Basile, and Mr McCauley appealed against the sentences handed down in the District Court on 4 March 2020. The defendants’ appeal criticised the District Court’s approach regarding its assessment of reparation and the assessment of the defendants’ culpability, which the defendants’ argued should have been assessed at a lower band. Justice Thomas disagreed with the defendants’ submissions. His Honour found that the assessment of reparation had been appropriate and that the assessment of culpability and the proportionality and appropriateness of the fine pursuant to the guidelines in Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881, were correct. Accordingly, the defendants’ appeal was dismissed.
Bradley Alcorn is a Senior Associate at Fee Langstone
