The only specialised marine publication in Oceania that focuses on the maritime industry, from super yachts to small craft to large commercial ships, including coastal shipping, tugs, tow boats, barges, ferries, tourist, sport-fishing craft
Issue link: https://viewer.e-digitaleditions.com/i/101615
O C E A N L AW FORFEITURE OF YOUR VESSEL EVEN IF YOU ARE NOT THE OWNER BY KARYN VAN WIJNGAARDEN, LLB, BSC, SOLICITOR WITH OCEANLAW NEW ZEALAND I f you own a commercial fishing vessel, you won���t need us to tell you that the Fisheries Act contains draconian penalties: up to and including forfeiture of that boat to the Crown if it is used in the commission of a broad range of offences under the Act. This is the case even if you, the owner of the vessel, are not the person convicted and even if you had nothing to do with the offending. These are amongst the harshest property-right penalties imposed under New Zealand law, with forfeiture being an automatic consequence of conviction except in quite specific circumstances. In order for a Court to order that boats or other property not be forfeit, it must find that there are ���special reasons��� relating to the offending such that forfeiture should not occur. A substantial body of case law has been developed on what will, and will not, constitute special reasons. Very often, a person convicted under the Act may not be the owner of the vessel that stands to be forfeit as a result of his or her offending. In this situation it is reasonable to think that an innocent vessel owner might have some views to present to the Court on whether there are special reasons why forfeiture should not occur. Conversely, the person who has been convicted may have no interest in that issue at all. The ability of a vessel owner to insert themselves into the process before forfeiture occurs is therefore an important means of protecting their interests. But a couple of recent cases demonstrate a shift in the approach taken by the Ministry for Primary Industries on this issue that, if endorsed by the Courts, would threaten that ability. The first of these examples, which you may have heard about, is the recent decision by the Ministry to pursue a prosecution against a defendant who had died after charges were laid against him but before those proceedings could be heard. The charges were laid under the Fisheries Act 1996, and mostly related to alleged dumping of quota species. Generally speaking, the law is that proceedings cannot be brought, or continued against a defendant who has died, unless there is an overriding public interest in allowing that to occur. The case law on the general issue deals only with the situation where a defendant has died after the hearing of evidence against them, but before a decision has been handed down.The present case presents a quite different scenario, with the defendant having died without entering a plea and before any evidence was heard. While the Ministry���s request that the prosecution proceed notwithstanding was recently met with some mirth in the Christchurch District Court, its intent was serious, given that the entry of a conviction against the deceased would potentially have resulted in the forfeiture of the vessel on which he had been working. The District Court ruled that the prosecution could not proceed, though an appeal to the High Court from that decision is possible. The second recent case, which you probably haven���t heard about, demonstrates the risk to innocent vessel owners even more directly. In that case (which is the subject of ongoing litigation), the Ministry took the position, and the District Court agreed, that the owners and charterers of a foreignowned, New Zealand-chartered deepsea fishing vessel did not have standing to argue special reasons. This is in contrast with the stance the Ministry has generally taken in the past. While the Fisheries Act doesn���t expressly deal with the right of innocent owners of property to argue special reasons why forfeiture shouldn���t occur, the Ministry has traditionally not opposed such owners presenting evidence and argument on the issue. The Courts have gone along with this, either explicitly or, more often, implicitly acknowledging that the owner of property should be heard before that p roperty is forfeit to the Crown. If the Courts agree with the Ministry, and find that only the person convicted of an offence has standing to argue special The result will be that innocent vessel owners have no right to be heard before their property is forfeit to the Crown reason for non-forfeiture, the result will be that innocent vessel owners have no right to be heard before their property is forfeit to the Crown. If the person convicted of the offence has no interest in presenting any special reasons that might exist ��� or if that person is, say, dead ��� forfeiture is a done deal with the innocent vessel owner able to do no more than watch from the gallery. We suggest that developments in this area should be followed closely. The proceedings relating to the defendant who has died have developed in the weeks since this article was written. The matter was called in the District Court in Christchurch again last week. It is understood that the proceedings were not actually suspended after the last hearing. The matter was briefly heard in the Court, which is seeking unequivocal confirmation that the defendant has indeed died. It is expected that this confirmation will be received soon, and the matter will be reconsidered early in the new year. We will update readers when this matter has been called again. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 52 Professional Skipper January/February 2013