Should this company have been charged?

Update March 2022 - This text below is now in an article published in the March/April edition of the Professional Skipper magazine.

MNZ v Tauranga Fishing Charters Limited

Tauranga District Court decision on 4 February 2022.

The Miss Fleur was an 11.9 metre wooden hulled fishing boat owned and operated by Tauranga Fishing Charters as a recreational fishing charter vessel. Shortly before 11.33 pm on 31 January 2020, after a one-day charter trip, the Miss Fleur grounded on Mt Maunganui after the skipper fell asleep.

The company was charged under S67B(1)(a) of the Maritime Transport Act 1994 for allowing the vessel to be operated by a skipper with an un-ringfenced SRL ticket.  It was also charged under S36(2) of HSWA to for failure to have “an adequate trip reporting procedure in place”. The company entered guilty pleas on both charges and MNZ sought a starting point for fines of $100,000 on both charges as opposed to the starting point of $20,000 sought by the company.

Judge Paul Mabey QC however convicted and discharged the company and noted in his sentencing decision:

[81] I consider that to convict and discharge is appropriate on both charges. The single practicable step which was not taken for the purposes of the HSWA charge is minor in the extreme and in my view could not be any less serious. TFC did all it could reasonably do to obtain its MTOC but acknowledges that minor additions could have been made to the trip reporting procedure. The absence of those additions were not causative of the collision.

He went on to say:

[83] The fact that Mr O’Reilly did not take a simple administrative step to preserve the validity of his certificate does not mean that at the time Miss Fleur sailed he was less competent than when he held a valid certificate. A technical error does not create risk, nor does it amount to significant culpability. To the contrary it is minor.

Comment

The judge’s comments reveal his discomfort in penalising a company that clearly had reasonable systems and processes. He notes at the end of his decision, had he chosen to fine the company he would have adopted starting points (before discounts) of $10,000 for the HSWA charge and $2,000 for the MTA charge. The HSWA starting point of $10,000 is significantly lower than comparable sentencing decisions under HSWA.

Given the minor and technical nature of the breaches of the Maritime Transport Act and the Health and Safety at Work Act and the judge’s findings, it begs the question of whether the company (which had lost its sole asset) should have been prosecuted in the first place. MNZ have other tools that can be deployed to achieve the objects of the Act and would have been more appropriate in this matter.

We suspect too, that the skipper will not make the same mistake again.