Australian Maritime Law update - 2010

• Author: Michael William White - Alex Molloy
• Position: QC, B.Com., LLB., PhD (law); Adjunct Professor, University of Queensland - B.Com., LLB. Student, University of Queensland
• Pages: 212-236

(2011) 25 A&NZ Mar LJ

AUSTRALIAN MARITIME LAW UPDATE: 2010

Mic ha e l White * a nd Alex Mollo y**

1 Introduction

The 2010 year for the maritime jurisdiction and activities has been a fairly steady one for Australia. The illegal

fisheries incursions by foreign fishing vessels into the Australian EEZ have been only running at a reasonable

level with no major issues. The annual excursion of the Japanese whaling fleet all the way from Japan to the

Southern Ocean was met with vigorous opposition from the Sea Shepherd fleet of three vessels this year and

there were some significant developments, including the Australian government action against Japan in the

International Court of Justice (‘ICJ’), as to which see shortly. In relation to marine pollution offshore, the three

shipping incidents (APL Sydney, Pacific Adventurer and Shen Neng 1) are all noted as is the significant offshore

oil well spill (the Montara Oil Platform). The ‘boat people’ arrivals are creating a major issue in the media and

for the government, although most of them are genuine refugees and their numbers are only a small percentage

of persons who are in Australia unlawfully. There have been some interesting cases decided by the judges of

various courts and also the legislative changes show a real interest, at last, in an Australian government setting

about reforming and updating the long-neglected Australian shipping industry.

2 Fishe ries and Other Offsho re Issues

2.1 Fishe ries

The fisheries industry offshore from Australia is well developed in relation to prawns, tuna and similar product

but is not otherwise well developed and there is no deep water fleet. Even so in 2010 Australia’s commercial

fishing and aquaculture industry was valued at A$2 billion and employed directly and indirectly some 16 000

people. The commercial fisheries produced some 52 000 tonnes of catch.1

In relation to the incursions of foreign fishing vessels into Australian waters, there were 16 apprehensions of

illegal foreign fishing boats for the calendar year 2010 and from those boats some 35 fishers had prosecutions

brought against the m during the year.2

Apart from the foreign fisheries offshore, over the course of 2010 the various States and the Northern Territory

prosecutions dealt with quite a number of local fisheries offences in their respective offshore and inland waters

jurisdictions.

2.2 Wha ling Issue s

Previous Updates have set out the issues, the laws and a summary of the facts about the annual southern

hemisphere summer excursion of a Japanese government sponsored whaling fleet to the Southern Ocean. During

the period December 2010 into early 2011 the usual Japanese whaling fleet arrived in the Southern Ocean, to t he

usual protest by the Australian and the New Zealand governments and Sea Shepherd Conservation Society and

Greenpeace. Readers will recall from the earlier Updates that the issues relate to taking whales in Australian

waters off the Australian Antarctic Territories is a weak Australian cla im as only four other nations recognise it.

Taking whales for ‘scientific research’ is, however, another matter. Scientific research is allowable under the

International Convention for the Regulation of Whaling (‘Convention’),3

but all the evidence points to there

being no need to kill the whales for it and that the conduct of the Japanese fleet and government is a breach of

the Convention.

*QC, B.Com., LLB., PhD (law); Adjunct Professor, Un iversity of Queensland.

**B.Com., LLB. Student, University of Queensland.

[This article was first published in the 2011 issue of Journal of International Maritime Law and Commerce and is reproduced with their kind

permission. -Ed]

1Australian Department of Agriculture, Fisheries and Forestry, Domestic Fisheries (27 June 2011) <www.daff.gov.au/fisheries/domestic>.

2 Email from Australian Customs Media Department to Michael White, 30 May 2011.

3 Ibid.

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Austra lian Maritime La w Up date : 2010

(2011) 26 A&NZ Mar LJ

Sea Shepherd has harassed the fleet each season for some years now and the summer season of 2010-2011 was

no exception.4 The Sea Shepherd vessels Steve Irwin, Bob Barker, and Gojira searched for, found and harassed

the Japanese whaling fleet and particularly the factory ship the Nisshin Maru. When the Japanese fleet turned

for home in February 2011, after a fire in the factory ship, the Sea Shepherd people were very pleased. Their

media release stated that their actions had reduced the whale take to about 10% of the target of about 800 whales

and their their leader, Captain Watson said: ‘I have a crew of 88 very happy people from 23 different nations

including Japan and they are absolutely thrilled that the whalers are heading home and the Southern Ocean

Whale Sanctuary is now indeed a real sanctuary.’5

Back on 6 January 2010 there had been a collision between the Sea Shepherd’s vessel Ady Gil and the Japanese

whaling vessel Shonan Maru No.2, with the Ady Gil sinking but without loss of life; as set out in the 2009

Update. Readers may recall that the Australian Maritime Safety Authority (‘AMSA’) tried to investigate but it

had no real jurisdiction and the Japanese government declined to cooperate so its report was inconclusive.

However, the NZ government had jurisdiction as the Ady Gil was flagged with it and it investigated and

published its report in November 2010.6

The key part of the Report as to blame stated that the Shonan Maru No.2 as the overtaking vessel failed to keep

clear which resulted in a close quarters situation during which the vessel again failed to take avoiding action.

For its part, the Ady Gil was the stand-on vessel so had right of way but failed to keep an effective lookout and

failed to take early avoiding action once the risk of collision had arisen. The report found that there was no

evidence that the collision resulted from an intention to have one on the part of either of the Masters.7 These

facts mean that both Masters had breached some aspect of the International Collision Regulations.8

A lot of posturing arose from the collision but one may mention that the NZ Report noted that the automatic

chart plotters from the Ady Gil had been removed onto the Bob Barker but when the NZ authorities asked for

them they were missing. On 24 May 2010, however, they were found washed up on the beach at Tasmania and

the NZ Report states that one explanation is that they were thrown overboard before the Bob Barker reached

port in Tasmania.9

The Master of the Ady Gil, Peter Bethune, later rejected the finding that he was partly to blame because, he said,

the speed of events was so fast he had no time to evade and the water canon from the Japanese vessel was

blasting down on him.10 However, the video of the stern of the Ady Gil shows a spurt of water from the

propellers that moved the vessel ahead shortly before the collision and made the collision inevitable in those

close quarters. Mr Bethune boarded the Shonan Maru No.2 about a month after the collision to take his protest

further and was detained onboard. He was transported to Japan, spent five months in detention there, was

convicted of trespass and assault, further punishment was suspended and he was deported.11

As mentioned, in January 2011 the fleet headed back to Japan and the Australian government media release of

18 February reflected its attitude, and that of many Australians, i n stating:

The Government welcomes Japan's decision to recall its whaling fleet from the Southern Ocean for the current

whaling season. This is a positive step. But the Government wants to see an end to whaling, not just for a season, but

for good. There is widespread concern in the international community at Japan's so called "scientific" whaling

program and widespread calls for it to cease. These activities are contrary to international law and that is why we

have commenced, and will continue, our case in the International Court of Justice. We are pleased to see the

Japanese fleet returning home. We hope that the Japanese Government takes this opportunity to reconsider its

whaling policy more broadly.12

The reference to the commencement of an action in the ICJ is to the action brought by Australia against Japan

seeking relief from the court. The ICJ web site has some details and the ICJ media release of 1 June 2010

summarises the Australian claim:

4 Sea Shepherd Conservat ion Society, Sea Shepherd (2011) .

5 Ibid.

6 Maritime New Zealand, Ady Gil and Shonan Maru No. 2: Collision on 6 January 2010 (30 September 2010)

<http://www.maritimenz.govt.nz/AdyGil/Investigation-report-Ady-Gil-Shonan-Maru-Lo-rez.pdf>.

7 Ibid [5]-[8].

8 International Regulations for the Prevention of Collisions at Sea (COLREGS), 1972.

9 Maritime New Zealand , above n 6, [31].

10 ‘Anti-Whaling Skipper Disputes Crash Report’, The Australian (Sydney), 19 November 2010, 6.

11 Ibid.

12 Australian Minister for Foreign Affairs, Withdrawal of the Japan ese Whaling Fleet (18 February 2011)

<http://www.foreignminister.gov.au/releases/2011/kr_mr_110218.html>.

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