Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210

• Author: Maurice Lynch
• Position: Maurice Lynch, BA, LLB, LLM, is a Senior Associate at Mills Oakley Lawyers and practises in Trade and Transport, Insurance and Environmental Crime. The author acted as prosecutor for Newcastle Port Corporation in this matter
• Pages: 117-121

(2014) 28 ANZ Mar LJ

117

Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft

MBH; Newcastle Port Corporation v Vazhnenko [2013] NSWLEC 210

Maurice Lynch

*

Damage to the environment as a result of pollution from ships has increasingly become a serious concern for the

legislature and the public. This is particularly so considering the long term threat that such pollution can have on

the environment w hich can, in turn, result in serious commercial and public use consequences. Marine and

estuarine water quality is important to preserve and it is in this context that these two decisions of Justice

Sheehan, which were heard together in the Land and Environment Court of New South Wales, arise.

The decisions concern two charges under s 8(1) of Marine Pollution Act 1987 (NSW) (‘MPA’) against the

owner of the MV “Magdalene” and its Master. This section provides that a strict liability offence is committed

by both the Owner and Master of a ship that discharges ‘oil’, or an ‘oily mixture’, into state waters. In this case,

the Owner and the Master pleaded guilty to ch arges under s 8(1) arising from a serious oil spill incident in

Newcastle Harbour, NSW on 25 August 2010. Accordingly, the hearings were sentencing hearings.

The maximum fines for these charges, following major increases in 2002, are $10 million for a body corporate

(such as the owner), and $500,000 for a natural person (such as, here, the defendant Master, Captain Volodymyr

Vazhnenko).

The decisions are important as they arise out of the second largest oil spill in the history of New South Wales,

and the largest oil spill in 10 years following the Laura D’Amato incident in 1999. They provide useful

guidance on the sentencing procedure to be followed by a court and show that a prosecution of this kind can be

simplified using an Agreed Statement of Facts in order to reduce the costs of both the prosecutor and

defendants.

Facts

The MV “Magdalene”, was registered in Mon rovia, Liberia, and was a bulk carrier with a deadweight tonnage

of 149,530 commissioned in 1989. On 25 August 2010, at approximately 1030 hours, while berthed at

Kooragang Berth 4 in the Port of Newcastle, the MV "Magdalene" commenced deballasting the number 6

starboard double bottom ballast tank. During the deballasting, between 1030 and 1400 hours on the 25th of

August, oil was discharged from this tank into the Hunter River at the Port of Newcastle. The MV “Magdalene”

discharged into the Hunter River, on her port side, ‘a mixture of oily water’, conta ining 72,000 litres of ‘heavy

fuel oil’.

Tank No 6 was relatively low in the ship and was between the cargo hold and the outside shell of the hull

adjacent to, and having a comm on steel wall with, a fuel tank. This is a c ommon arrangement for older ships. It

was common ground that oil came into the ballast tank as a result of a 15mm diameter hole in the internal

transverse bulkhead between the ballast and HFO tanks. This oil would have leaked into the ballast tank over an

extended period of time prior to the MV “Magdalene”'s arrival in Australia.

Following observation of the spill at approximately 1400 hours, an extensive boom containment action

commenced at about 1545 hours. Clean-up operations commenced the next morning, and continued until 8

October 2010 when the clean-up was finalised with a total costs to the Port of Newcastle of $1,913,197.23.

Difficulties were encountered with the clean-up due to the thickness of the oil. Accordingly, a longer than

anticipated manual clean-up operation was required.

The oil was originally observed up to approximately 100 metres from the K4 and K5 berths, and around the

ships docked at them (MV “Magdalene” and MV “Citrus”), and the slick spread into other parts of the harbour.

The oil had reached up into the North Arm of the Hunter River, at the entrance of the Stock ton Channel about

one nautical mile south of the Stockton Bridge, by 1430-1500 hours on 26 August 2010, affecting mangroves

and sand beaches, and the Hunter Wetlands National Park. The Hunter Wetlands National Park is a Wetlands

park of international significance under the Ramsar Convention on Wetlands of International Importance.1 This

* Maurice Lynch, BA, LLB, LLM, is a Senior Associate at Mills Oakley Lawyers and practises in Trade and Transport, Insurance and

Environmental Crime. The author acted as prosecutor for Newcastle Port Corporation in this matter.

1 1971, 996 UNTS 245.