Albacore Fisheries Ltd v Ministry of Transport

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CRI-2007-485-000038

BETWEEN ALBACORE FISHERIES LIMITED
First Appellant

AND NU1ZIO DE GREGORIO
Second Appellant

AND MINISTRY OF TRANSPORT
Respondent

Hearing: 31 May 2007
Counsel: E W Gartrell for Appellants
T J Gilbert for Respondent
Judgment: 8 June 2007

JUDGMENT OF PANCKHURST J

Convictions for fishing in a protected area

[1] The appellants were charged and convicted of conducting a fishing operation in a protected area. The “Star of the Seas”, owned by the first appellant and skippered by the second appellant, was found to have been crayfishing in the area of the Cook Strait protection zone.

[2] Protection is provided for submarine cables. Electricity and telecommunications are transmitted between the North and South Islands. Electricity passes through high voltage cables which provide a significant part of the North Island’s electricity supply. Fibre optic cables transmit telecommunications between the islands. Both types of cables lie unburied on the seabed of Cook Strait.

[3] The cables may be damaged by anchors lowered to the seabed or by fishing operations conducted in the area. This has happened in the past necessitating the repair, or replacement, of cables at a cost running to millions of dollars. To protect the cables from such damage a designated cable protection zone has existed since 1966. Pursuant to the present Submarine Cables and Pipelines Protection Act 1996 the zone runs from Oteranga Bay on the south-west tip of the North Island to Fighting Bay which lies to the east of Picton in the South Island. It is an offence to conduct fishing operations, or to anchor a vessel, within the Cook Strait cable protection zone.

[4] But on either side of the Strait there is an exemption to the fishing prohibition which permits the setting of rock lobster pots (and certain other fishing activities) within 200 metres of the low water mark of the North or South Island. The appellants sought to take advantage of that exemption. However, the buoys to which the cray-fishing pots were attached were located in positions considered by the Ministry to be further than 200 metres from the low water mark of the North Island and therefore beyond the exemption area.

[5] The fundamental issue in the case was the definition of the low water mark on the rugged coastline adjacent to Oteranga Head. The Ministry contended for a definition based upon the official hydrographic chart for the area. The appellants contended that resort to a hydrographic chart was impracticable and that the low water mark should be defined in a more pragmatic manner by reference to rocks which had been observed at any time to be awash at low tide. The Ministry’s approach prevailed in the District Court.

[6] The key issue raised by the appeal is what is the correct definition of “low water mark” for the purpose of calculating the outer limit of the 200 metre fishing exemption area. There is also an appeal against sentence. The appellants were each fined $10,000. That penalty is challenged on the basis that it was clearly excessive in all the circumstances of the case.

Some further background

[7] The “Star of the Seas” fished out of Island Bay. The owner of the vessel is Albacore Fisheries Limited, a company of which Mr Antonio Muollo is the main shareholder and director. He gave evidence in the District Court to the effect that day-to-day fishing operations lay within the control of the skipper.

[8] That was Mr de Gregorio, a fisherman who has in excess of 30 years experience in the business. On 22 July 2005 Mr de Gregorio set a number of crayfish pots adjacent to the headland south of Oteranga Bay. Seven of the line of pots became the subject-matter of the prosecution. These were laid from north to south in a line roughly parallel to the shoreline. The first cray pot (although numbered 7 by the Ministry) was about 350 metres from the southern boundary of the Cook Strait protection area. By contrast, the cray pot labelled number 1 by the Ministry was only eight metres from the southern boundary of the protected area. The other five cray pots were spaced between these two extremes.

[9] Although I have referred to cray pots, what the Ministry found on the morning of 22 July was pairs of buoys to which the seven cray pots were attached. The two buoys comprising each pair were a different colour and clearly marked “Star of the Seas” and with the vessel’s identification number.

[10] Patrol officers aboard the vessel “Seasurveyor” located the buoys at about 11.00 pm on 22 July. The “Seasurveyor” is equipped with sophisticated position- fixing equipment. This included a differential global positioning systems (DGPS) which is capable of fixing the position of the vessel to within an accuracy of plus or minus five metres. The “Seasurveyor” was positioned adjacent to each pair of buoys and between the buoys and the seashore. A positional fix was taken in each of the seven positions. This method ensured that the appellants received the benefit of the doubt in relation to the accuracy of the fixed positions, in that by placing the “Seasurveyor” shore-side of the buoys the five metre accuracy tolerance was effectively eradicated. A latitude and longitude position was obtained in each position. Based on their own calculations the patrol officers were confident that the buoys were at least 300 metres or more out from the low water mark.

[11] However, the latitude and longitude figures were supplied to Ms Carol Kohl, a nautical cartographer with Land Information New Zealand. She is an expert in relation to the preparation, maintenance and revision of official hydrographic charts for the New Zealand coastline. In order to establish whether the buoys were within the 200 metre exemption zone she plotted the latitude and longitude values onto the official hydrographic chart for the area of Oteranga Head. The relevant chart is NZ 463. Having established the position of each set of buoys on the chart she then measured the shortest distance to the low water line. The distances obtained varied from a minimum of 337 metres to a maximum of 386 metres. I shall return to how Ms Kohl fixed the low water line shortly.

[12] Mr Kenneth Bedford, the senior marine patrol officer on the “Seasurveyor”, telephoned Mr de Gregorio on 24 July. Mr de Gregorio was open and acknowledged that he was the master of the “Star of the Seas” on 22 July, and that he had set the relevant line of cray pots. When it was pointed out to him that the cray pots were beyond 200 metres of the low water line, Mr de Gregorio acknowledged this, saying that the reef was about 250 metres from the shore and that the pots had been set about 50 metres outside the reef because that was the best place to catch crayfish.

[13] Subsequently, on 15 December 2005 a police officer spoke to Mr de Gregorio and obtained a written statement from him. It included this:

Q. Seven of the pots were recorded by the equipment aboard the surveillance vessel as being within the CPZ [cable protection zone] and outside the 200 metre exemption by up to 170 metres, do you accept that.

A. No, I don’t, maybe 50 metres or 60 metres, not more than that.

[14] Despite these apparent admissions the charges were defended. Mr de Gregorio gave evidence in his own defence. As Judge Grace put it, Mr de Gregorio resiled from the record of the police interview and instead contended that the pots were within the 200 metre exemption zone once the correct definition of the low water line was brought to account. As to this a defence expert gave evidence which challenged that of Ms Kohl. I shall refer to this evidence shortly.

[15] The hearing of the charges occupied two days in November and December 2006. The Judge reserved his decision and delivered a written judgment on
8 February 2007. He found the charges against both the company, and the master, established. Sentencing occurred on 30 March 2007. Following submissions, the Judge gave an oral decision in which he fined each defendant $10,000 and ordered payment of costs in the sum of $2,090 payable as to a half share by each defendant.

Leave to appeal out of time

[16] Section 116 of the Summary Proceedings Act 1957 allows 28 days within which to file a notice of appeal. The notice in this case was filed on 30 April 2007, three days out of time.

[17] Mr Gartrell applied pursuant to s123 to extend the time prescribed for filing a notice of appeal. Such application was opposed. In support of the application Mr Gartrell relied on affidavit evidence that he was overseas for the week prior to 27 April and that the sentencing notes did not become available until 26 April. Hence, the gist of the argument was that it was only upon his return to New Zealand on 27 April that a notice of appeal could be filed a few days later, after he had considered the sentencing remarks. On the basis that any fault lay with counsel, rather than the appellants, and that there was no prejudice caused to the respondent, Mr Gartrell invited me to extend time.

[18] Mr Gilbert submitted that there was no good reason to await receipt of the sentencing notes before a notice of appeal was filed. He pointed out that counsel was present at the sentencing, which occurred about seven weeks after the conviction decision was delivered in writing. If the statutory requirement to file within 21 days was to have any meaning, Mr Gilbert argued, an extension of time should be refused in this instance.

[19] In my view it is significant that prejudice is not raised and, further, that the delay in this case was not of a significant magnitude. However, I prefer to defer making a decision on the extension application until I have considered the merits of the appeals against conviction and sentence.

How is the “low water mark” to be fixed?

The Submarine Cables and Pipelines Protection Order 1992

[20] The Submarine Cables and Pipelines Protection Act 1996 (which consolidated and amended the 1966 Act) provides for the prohibition of certain activities in protected areas: s12. By Order in Council an area may be designated as a protected area, either generally in respect of all ships and in respect of all methods of shipping, or by distinguishing between different ships and fishing methods: s12(4). Section 13 is the offence section, by which the owner and master of a ship from which fishing operations are conducted (or an anchor is dropped) contrary to the terms of a protection order, commits an offence.

[21] These are offences of strict liability: s14. However, this is not a case which turns on the categorisation of the offence, since it was for the informant to establish that a fishing operation occurred in the protected area (and therefore outside the 200 metre exemption zone), before an onus passed to the defendants. The case was fought in relation to the 200 metre issue. Neither defendant sought to take advantage of the “all reasonable steps” defence available pursuant to s14(2). Instead, the defence was effectively based upon expert evidence as to where the low water line should be drawn in fixing the 200 metre exemption zone.

[22] The operative 1992 Protection Order (SR 1992/246) defines nine protection areas of which Area 7 is the Cook Strait protection zone. The defined area comprises a channel about seven kilometres across, which narrows at each end to enter Oteranga Bay on the North Island and Fighting Bay on the South Island. There was no dispute in the District Court that the seven subject cray pots were within the southern limit of the protection area, although pot number 1 was only marginally so (by a distance of about eight metres).

[23] Rather the case turned on the definition contained in Regulation 2A(3) of the Protection Order whereby, with reference to the Cook Strait protection area, the prohibition on fishing:

does not apply to fishing vessels that are being used for setting or lifting nets or rock lobster pots, or for paua or kina fishing, as long as those activities are carried out —

(a) During the hours of daylight; and

(b) Without directly or indirectly attaching any of the vessels involved to the seabed, whether by anchoring or by any other means; and

(c) Either—

(i) Within 200 metres of the low-water mark of the North island, other than the line of low-water mark between [two notice boards which are not of present relevance]

(ii) Within 200 metres of the low-water mark of the South Island, other than the line of low-water mark between [two notice boards not of present relevance]. (emphasis added)

Ms Kohl’s approach

[24] I have already made reference to the evidence of this witness. However, it is necessary to refer to the detail of her evidence concerning the definition of the low water mark. The seven cray pots were set a short distance out from Oteranga Head and a little to the south of Oteranga Bay. This is a rugged stretch of coastline. Referring to chart NZ 463 Ms Kohl drew attention to certain features of the coastline.

[25] At the northern and southern ends of the relevant stretch of coastline were areas marked in green on the chart which Ms Kohl described as rocks which were above water at low tide but below water at high tide, and therefore in the inter-tidal zone. She viewed the seaward outer limits of these rocks as fixing the low water line at those points on the chart. Between them the low water line generally followed the line which marked the distinction between land (shown in brown) and sea (shown in blue). To an unaccustomed eye this line would be most naturally taken to represent the shoreline. However, Ms Kohl also drew attention to a black dot (referred to in the evidence as a fly spot), a short distance from the shoreline. This she identified as an islet, being a rock which is above water at all states of the tide. In recognition of the islet Ms Kohl drew the low water line around and to accommodate it, that is out from what I have termed the natural shoreline and therefore into the sea proper.

[26] It was on the basis of this drawing of the low water line that she calculated the exact distance to each of the seven sets of buoys. The witness also expressed the opinion that her methodology was based on the internationally recognised and accepted definition of a low water line. By reference to the Territorial Sea Contiguous Zone and Exclusive Economic Zone Act 1977, Ms Kohl expressed the view that her drawing of the low water line reflected the acknowledged definition of that term which is based on the lowest astronomical tide, being the lowest tide level which could be predicted to occur under average meteorological conditions and under any combination of astronomical conditions. I shall refer to these definitions shortly.

[27] Ms Kohl accepted that because of the statutory definition of the lowest astronomical tide it was feasible that in unusual circumstances rocks that were ordinarily below the water line, even at low tide, could become awash. However, such occasional occurrences would not prompt an amendment to chart NZ 463, unless such rocks were awash under average meteorological conditions. In light of this explanation Ms Kohl continued to regard chart NZ 463 as authoritative with reference to the coastline of Oteranga Head.

Captain Brown's evidence

[28] Captain John Brown is a retired mariner who was a master of several Cook Strait ferries for about 30 years until 2001. His expertise in relation to reading and understanding hydrographic charts was accepted in the District Court. Captain Brown was retained to give evidence on behalf of the defendants, now appellants.

[29] In summary he concluded that chart NZ 463, which has a scale of 1:100,000, was unsuitable to plot positions and distances in the context of a 200 metre exemption zone. Given that 200 metres is represented by a measurement of two millimetres on NZ463, Captain Brown questioned the very methodology employed by the Ministry. While accepting that the cadastral boundary between land and sea (called the low water mark) may be the convenient definition in a legal sense, he doubted whether that definition was workable in the present context.

[30] Captain Brown’s evidence continued:

The “normal” baseline corresponds to the low water line but is drawn around low tide elevations such as naturally formed areas of land surrounded by and above water at low tide but submerged at high tide. Baselines can be also “straight lines” joining specified or discrete points on the low water line and used where the coastline is deeply indented and cut into or there is a fringe of islands along the coast in its immediate vicinity.

The baseline used for this exemption area is not stated. Because of the irregular shoreline of this area, a “normal” baseline would not be appropriate because of the multitude of co-ordinates that would be required to describe it. In the absence of any exemption area marked on the chart a fisherman must assume that the 200 metre distance is measured from any land that had been visible at any time in the past.

[31] Based on the evidence of Mr de Gregorio that certain rocks had been observed to be awash on occasions, Captain Brown drew a straight baseline joining these particular rocks. This was depicted on a specially prepared chart, being a magnified extract of a small portion of Oteranga Head from chart NZ 463. Such baseline appeared roughly parallel to the coastline marked on the chart, but importantly for present purposes, Captain Brown’s baseline lay seaward somewhat of the irregular low water line described in evidence by Ms Kohl.

[32] But even on the basis of a straight baseline approach to low water mark, it emerged that at least some of the seven cray pots were still beyond the 200 metre exemption limit. However, Captain Brown in a further chart drew the area of the cray pots, although not depicting them at fixed positions of latitude and longitude, rather by showing a shaded area which was representative of the potential distance the pots could drift. The evidence was that the pots were on long lines and based on personal experience, Captain Brown demonstrated the potential for the pots to drift in either a landward or a seaward direction. On this basis there was some area of overlap between the 200 metre exemption zone drawn by Captain Brown and the “drift zone” he drew for the cray pots (as opposed to the buoys at surface level). On his approach there was obvious scope for reasonable doubt concerning whether the pots themselves were outside the exemption limit.

[33] In cross-examination Captain Brown was challenged concerning various aspects of his evidence. He accepted that the straight baseline he used for the low water mark depended on Mr de Gregorio’s assurance that certain isolated rocks in the area had been observed to be uncovered (awash) at low tide, which Captain Brown considered was plausible and explainable if there was a high barometric pressure or a strong off-shore wind in the area. The depth of the lines to the cray pots was also explored, with the result that approximately 61 metres emerged as the likely potential drift distance in any direction.

[34] At another point Captain Brown was asked:

Q. And you have effectively in your chart 3 invented your own base line?

A. Yes yes.

Q. That has no legal foundation whatsoever?

A. No not apparently no.

Q. You haven’t passed a law? That is basically just a suggested base line —

A. That’s all — just a suggestion — and certainly to mark this area I wouldn’t have a base line I think to be fair to the fishermen they should have a line marking the outer edge for the co-ordinates so they could put it into the GPS and they would know where the area was — put some buoys out there or put a couple of trenching marks. I think navigation has changed so much in the last 30 years with GPS there is all these new innovations which tend to make some of these old world things a bit remote and very obscure.

How did Judge Grace resolve the dispute?

[35] After extensive reference to the evidence and the submissions of counsel the Judge said:

[60] Whether the omission to define the low water mark in the Submarine Cables Act was an oversight or not is irrelevant. The fact of the matter is that the Act allows for a 200-metre exclusion zone, which is to be calculated from the low water mark.

[61] It could never have been the intention of the legislator to have allowed individual fishermen to arbitrarily fix their own points of reference as they saw fit, when seeking to measure the 200 metre exclusion zone. To do that would, as Mr Gilbert argued, make the whole purpose of the legislation unmanageable and unenforceable unless the particular fishing in question was well into the cable protection zone.

[62] There is no doubt that chart NZ 463 is part of the Territorial Limits Folio and is therefore the official chart for this particular area. Whilst I accept it is now some 20 years old, until there is another chart produced, or alterations are made to that chart, then that must remain the official chart for this locality.

[36] Judge Grace effectively concluded that Ms Kohl’s evidence, based on chart NZ 463 and the acknowledged international approach to the drawing of a low water mark must prevail at the expense of Captain Brown’s methodology based on a straight baseline approach.

Discussion — the meaning of low water mark

[37] I am in broad agreement with the approach taken by Judge Grace. He saw and heard the witnesses, and obviously preferred the methodology advanced by Ms Kohl. There is also considerable merit in the point that to allow a straight baseline approach, by which the low water mark is fixed by reference to rocks observed to be awash by fishermen “at any time” (to use the words of Captain Brown), invites an unmanageable situation. The 200 metre exemption zone would assume an essentially subjective character, where a fisherman could justify a fishing operation on the basis of his assertion that particular rocks were awash on some occasion, and these formed the basis for drawing a straight baseline low water mark. This, I agree with Judge Grace, could not have been the intended approach to construction of the protection order.

[38] That said, I have some sympathy for certain of the points made by Captain Brown in his evidence. He said that normally a mariner would establish his distance from shore by plotting his vessel’s position on a chart and then measuring the distance from the shoreline using dividers. But such a methodology is challenged when the regulatory requirement is to restrict fishing operations within a 200 metre distance limit, the more so when the available chart has a scale of 1:100,000. Where a zone or boundary is measured in nautical miles resort to a hydrographic chart is non-problematic, in that inevitable irregularities in the coastline are rendered of limited relevance.

[39] Despite the difficulties, the evidence in this case conveys that fishermen are able to comply with a 200 metre limit. When Mr de Gregorio spoke to both Mr Bedford and a constable soon after the event, he obviously had a good appreciation of his vessel’s position relative to low water mark (as conventionally understood). While he did not accept Mr Bedford’s calculated distances from the sets of buoys to the low water mark, Mr de Gregorio admitted that the pots had been placed more than 200 metres out to sea because beyond the underlying reef was the most favourable fishing position. This indicates that, regardless of the problems, experienced fishermen do have the ability to define and work within even a 200 metre zone. Perhaps there may be cases where the configuration of the coastline is such as to make it particularly difficult to calculate the 200 metre limit, with confidence, while setting pots. But, given the admissions, this case does not impress me as one of special difficulty.

[40] The submissions of counsel included a focus upon the Submarine Cables and Pipelines Protection Act 1996, and in particular its relationship with the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977. Neither the 1996 Act nor the Submarine Cables and Pipelines Protection Order 1992 contain a definition of low water mark. Yet, it is the line of low water which defines the extent of the 200 metre exemption zone.

[41] In these circumstances Mr Gilbert relied upon definitions contained in s2(1) of the 1977 Act:

Low-water line or low-water mark means the line representing the intersection with the shore of the plane of the Lowest Astronomical Tide
(EAT).

Lowest Astronomical Tide (LAT) means the lowest tide level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions.

The methodology adopted by Ms Kohl drew on these definitions, which she also described as consistent with the international approach to defining a low water mark.

[42] Mr Gartrell, however, submitted that it was inappropriate to have regard to the definitions in the 1977 Act because they had not been imported into the 1996 Act (or its predecessor). He went so far as to submit that the absence of a definition in the 1996 Act suggested that the low water line was indeed intended to be differently drawn for the purposes of the 200 metre exemption zone. My attention was drawn to s2 of the 1996 Act (the interpretation section) which includes:

Internal waters of New Zealand means the internal waters of New Zealand as defined by section 4 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977.

Hence, said Mr Gartrell, given this express importing of one definition from the 1977 Act, it was inappropriate to import a companion definition absent express reference to it.

[43] Mr Gilbert argued that once the two Acts were considered alongside one another, it was readily apparent that the definition of low water mark and low water line in the 1977 Act was intended to be of equal application in the 1996 Act. Counsel was inclined to view the absence of a provision directly importing the relevant definition from one to the other as an oversight or mistake.

[44] I rather doubt it. I agree that the definition of low water line and low water mark (including the associated definition of lowest astronomical tide) do apply equally to the Submarine Cables and Pipelines Protection Act. In my view this is so because these two statutes are in pari materia. Their subject matter is closely interlinked.

[45] In particular, Part 1 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act defines the territorial sea of New Zealand. In essence our territorial sea comprises 12 nautical miles of the ocean from a coastal baseline which is defined in the balance of Part 1. Integral to the baseline definition is "... the low water mark along the coast of New Zealand ..." s5(1). And, to define low water mark any reader of the Act is necessarily driven back to the definitions contained in the interpretation section. To my mind it follows from this statutory scheme that the definition of low water mark (or low water line) is generic in nature. It is intended to be of application with reference to other statutes where the same phrase is used in the context of establishing a coastal baseline which in turn defines the limits of some nautical zone or area. There is, therefore, no need to expressly import the definition from the 1977 statute into the 1996 statute.

[46] It is interesting to note that in Craies on Legislation (8th ed.) at para 23.1.2, following a discussion about “Definitions included in one Act which are intended to have effect in relation to later legislation”, the author refers to the United Kingdom Territorial Sea Act 1987 as one example of a statute which contains definitions of general application.

[47] I am in no doubt that the same may be said of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act in this country.

[48] For all these reasons I agree with the approach which Judge Grace adopted in the District Court. It follows I am also in agreement with his conclusion that the informant did establish beyond reasonable doubt that the appellants conducted a fishing operation in the Cook Strait protection area, in that the cray pots were set some distance outside the 200 metre exemption zone.

Appeal against sentence

[49] Mr Gartrell advanced this aspect of the appeal with reference to a number of discrete points. He submitted the Judge was wrong to characterise the offending as involving an element of deliberateness or at least gross negligence; and wrong to bring to account as an aggravating feature the circumstance that the company had been warned on at least one previous occasion in relation to its obligations under this Act. Counsel also argued that insufficient weight was given to the “test case” nature of the prosecution, to the public service which the “Star of the Seas” had rendered to boats in distress and to the financial circumstances of the company and the master.

[50] Mr Gilbert argued that the penalty was clearly inadequate, rather than excessive. He drew attention to the fact that the Judge had adopted as a starting point a figure “in the region of $25,000”, yet the fines ultimately imposed were only 40% of that figure, when there were no mitigating features sufficient to support a discount of 60%. Attention was drawn to the maximum penalty, $100,000, where the offence was committed in the course of conducting a commercial activity. I note that the maximum penalty in cases where a submarine cable or pipeline is actually damaged is $250,000: s11.

[51] In my view the penalties imposed by Judge Grace were well within the available range. I am unpersuaded that he erred in any respect in fixing the penalties, save that it is difficult to understand how the starting-point of $25,000 was adopted, before such a sizeable reduction from that figure was made. But, in the end it is the effective penalty which is of most concern. I do not see $10,000 as either excessive, or inadequate. This case involved a breach which was deliberate in nature, or at least close to it. On the other hand the fishing operation occurred almost a kilometre from the nearest cable. These to my mind were the dominant sentencing considerations and the Judge took account of both of them.

Result

[52] An extension of time is granted, but the appeals against conviction and sentence are dismissed.

Solicitors:
Ernie Gartrell Barrister & Solicitor, Wellington for Appellants
Luke Cunningham & Clere, Wellington for Respondent