Does the Maritime Transport Act 1994 (NZ) Effectively Inhibit Marine Pollution?

Author:Luke Knights
Position:Luke Knights is an LLB(Hons) student at the University of Auckland. The author is indebted to Associate Professor Paul Myburgh of the National University of Singapore for his insightful comments and support in the writing of this paper
Pages:18-35
 
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(2015) 29 ANZ Mar LJ
18
DOES THE MARITIME TRANSPORT ACT 1994 (NZ) EFFECTIVELY INHIBIT
MARINE POLLUTION?
Luke Knights
*
It was almost midnight when the Fouler ploughed into New Zealand’s Exclusive Economic Zone, destined for
the port of Auckland. The Liberian flagged super-tanker had departed Ras Tanura, with its Filipino crew,
several weeks earlier. Laden with crude oil, it posed a serious danger to New Zealand’s marine environment.
However, the threat of an accidental disaster was not the only menace the tanker posed. Intentional discharges
and the culture of concealment fostered among the crew presented the greatest hazard. Motivated by gratuities if
the costs of discharging at port reception facilities were avoided, the crew readily closed the valve to the waste
oil feed and mechanically disconnected the fittings to the oily water separator (OWS). The Chief Engineer then
redirected the waste oil feed line into a prefabricated piping system concealed under the engine room floor,
bypassing the OWS and tunnelling directly into the sea.1 Orders were then given by the Master to open the valve
until all waste oils were discharged. Once complete, the crew perfunctorily reconnected the standard pipes,
replaced the floor plates, and hastily applied spray paint to the paint-chipped bolts to conceal any lingering
evidence. The crew worked competently under the cloak of night, discharging the toxic oils within the course of
a few minutes. While the oily residues trailed the super tanker for several miles, the Fouler was safely in port
and clear of any evidential connection before the operational discharge was exposed.
Operational discharges of oil and the complementing culture of concealment fostered among crews pose
substantial risks to New Zealand’s marine environment. Despite this fact, it is only accidental discharges of oil
resulting in catastrophic damage to the marine environment that have warranted serious media attention.2 The
pervading culture of concealment fostered on-board vessels plying New Zealand waters ensures prosecution and
detection rates for intentional discharges remain dismally low. This lack of detection contributes to the
misinformed idea that operational discharges occur infrequently within our waters. Furthermore, the lack of
media scrutiny legitimises the notion that marine pollution offences do not wa rrant further attention. Operational
discharges of oil continue to be veiled under a cloak of secrecy by the crews that transgress the regulations and
the media that fails to report them. These are the issues that the Maritime Transport Act 1994 (NZ) (MTA)
attempts to regulate, and the legislature needs to grapple with, if vessel-source pollution is to be deterred in New
Zealand waters.3
In evaluating the effectiveness of the MTA in inhibiting m arine pollution, this article will provide a limited
historical background to the problem of vessel-source oil pollution, followed by an introduction to the
International Convention for the Prevention of Pollution from Ships (MARPOL) and the United Nations
Convention on the Law of the Sea (UNCLOS).4 The development of criminal liability under New Zealand
legislation will then be discussed in order to illustrate how the MTA has given effect to the aforementioned
conventions and the impact this has on the aims and objectives of the Act. After identifying the purposes of the
MTA, a benchmark test will be established in order to evaluate the efficacy of the MTA’s penalty provisions in
preventing marine pollution. A very brief introduction to the legislative instruments in Australia and Canad a
will then be provided in order to contextualise the comparative case analysis that follows. After examining the
approaches adopted by the courts in New Zealand, Australia and Canada towards marine pollution offences the
article w ill illustrate that the MTA fails to effectively inhibit marine pollution. Finally, in drawing upon the
criminological theories of deterrence, reintegrative shaming, and incapacitation, some recommendations will be
offered for the future.
* Luke Knights is an LLB(Hons) student at the University of Auckland. The author is indebted to Associate Professor Paul Myburgh of the
National University of Singapore for his insightful comments and support in the writing of this paper.
1 See David G Dickman ‘Recent Developments in the Criminal Enforcement of Maritime Environmental Laws’ (1999) 24 Tulane Maritime
Law Journal 1 and David G Dickman ‘Recent Developments Involving the Criminal Enforcement of Maritime Environmental Laws:
Corporate Accountability Goes to Sea’ (2003) 1 Benedict’s Maritime Bulletin 1, for an overview on how prevalent these criminal practices
are within the shipping industry.
2 JM Weber and RE Crew ‘Deterrence theory and marine oil spills: Do Coast Guard civil penalties deter pollution?’ (2000) 58 Journal of
Environmental Management 161, 161.
3 Maritime Transport Act 1994 (NZ).
4 1978, 1340 UNTS 61; 1982, 1833 UNTS 3.
Does the Maritime Transport Act 1994 (NZ) Effectively Inhibit Marine Pollution?
(2015) 29 ANZ Mar LJ
19
1 Historical Background
Under Article 1(4) of UNCLOS, marine pollution is defined as: 5
the introduction by man, directly or indirectly, of substances or energy into the marine environment …,
which results or is likely to result in such deleterious effects as harm to living resources and marine life,
hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the
sea, impairment of quality for use of sea water and reduction of amenities.
While marine pollution covers a wide range of substances entering the marine environment, the following
discussion solely concentrates on vessel-source oil pollution. Oil pollution from ships generally occurs as a
consequence of maritime accidents or through operational discharges.6 While pollution resulting from accidental
discharges often has devastating effects on the m arine environment, they only account for five per c ent of all oil
that enters the ocean.7 Unfortunately, intentional discharges of ship-generated pollution accounts for a much
greater proportion.8 The cumulative impact of these operational discharges has a devastating impact on our
oceans which continues to be discounted.9 Like all vehicles powered by fossil-fuel engines, ships generate
substantial amounts of oily wastes in their engine rooms and mechanical spaces which continue to be disposed
of at sea.10 While these practices occurred routinely during the first half of the twentieth century without any
real criticism, the attitude and response to these activities has since changed.11 More recently, concerted efforts
have been made to eliminate this type of environmental offending, primarily through international conventions
and national legislation. In spite of these attempts, marine pollution has trailed into the 21st century, posing
substantial risks to the marine environment.12
Accidental and operational discharges of oil were recognised as a growing problem by the international
community as early as the 1920s.13 However, it was only in 1954 that the International Convention for the
Prevention of Pollution of the Sea by Oil (OILPOL) opened for signature.14 Prompted by the United Kingdom,
32 nations assembled together with the shared goal of preventing environmental and aesthetic harm caused by
intentional discharges of oil, creating the first ever treaty addressing marine pollution.15 OILPOL was primarily
concerned with the reduction of oil pollution in coastal a reas, prescribing acceptable oil discharge standards
based on a zoned formula.16 Unfortunately, OILPOL was largely unsuccessful and following almost two
decades of inactivity and indifference by numerous governments, OILPOL was superseded by the MARPOL
convention.17 While this development has been perceived by some as a response to OILPOL’s failures, it was
ultimately widespread media attention and public outrage following several pollution disasters, notably that of
the Torrey Canyon, that prompted calls in Europe and the U nited States for international regulation of
intentional as well as accidental dischargesof oil.18
Currently New Zealand is party to numerous environmental treaties and conventions addressing marine
pollution.19 However, two particular conventions underpin New Zealand’s marine pollution laws. The first of
these is the MARPOL convention which aims to prevent marine pollution th rough the establishment of ship
design and operation standards.20 The MARPOL convention is largely directed by the International Maritime
Organisation (IMO) which prescribes standards and rules to be adopted internationally in order to protect the
5 1982, 1833 UNTS 3 art 1(4).
6 Colin De La Rue and Charles B Anderson, Shipping and the Environment: Law and Practice (Informa, 2nd ed, 2009) 807.
7 Bernard Vanheule ‘Criminal Sanctions in Relation to Ship-Source Pollution’ in Norman A Martinez Gutierrez (ed) Serving the Rule of
International Maritime Law: Essays in Honour of Professor David Joseph Attard (Routledge, 2010) 54, 56.
8 Alla Pozdnakova, Criminal Jurisdiction over Perpetrators of Ship-Source Pollution: International Law, State Practice and EU
Harmonisation (Martinus Nijhoff, 2013) 1.
9 Weber and Crew, above n 2, 161.
10 Fiona Jayne Leddy ‘A critical legal analysis of International Shipping in Australian Waters and the risk of ship-based oil pollution’ (2011)
17 Queensland Environmental Practice Reporter 120, 127.
11 De La Rue and Anderson, above n 6, 821.
12 Ibid.
13 Oran R Young (ed), The Effectiveness of International Environmental Regimes: Causal Connections and Behavioural Mechanisms (MIT
Press, 1999) 7-8.
14 1954, 327 UNTS 3.
15 Young, above n 13, 33.
16 Ibid 7-8.
17 Ibid 33.
18 Ibid 37.
19 Ibid 1.
20 Ministry for the Environment Summary of Submissions on Marine Pollution Regulations under the Resource Management Act 1991:
Issues and Options Paper (1995) 3.

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