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08 December 2010
Standard for criminal negligence
On May 3 2010 the Nedre Telemark District Court sentenced the master and third officer of the vessel Full City, which grounded off Langesund on July 31 2009, to six months' imprisonment (120 days suspended) and 60 days' imprisonment (39 days suspended), respectively.
The court found both the master and the third officer guilty of violating the Pollution Act due to their failure to take adequate measures to prevent pollution (for further details please see "Increased risk of criminalisation for seafarers"). The master was also found guilty of violating various provisions of the Ship Safety Act, although the third officer was acquitted of these charges.
Despite the prosecution's concern that the accused would attempt to evade punishment, which was used to justify their detention in Norway for four-and-a-half months, both men returned to Norway from China and appeared before the court. This demonstrated that the Supreme Court had been right to allow them to return home on bail. It is hoped that this will set a precedent for the police to follow in future cases.
Standard for criminal negligence
The judgment marks the first time that a Norwegian court has considered the application of the Ship Safety Act. It is also one of the few cases in which the Pollution Act has been applied to a maritime casualty. Despite the novelty of the issues under consideration, the court failed to conduct a thorough analysis of the relevant legal requirements. The judgment included only one reference to legal theory and no references to case law or preparatory works, even though these were obviously relevant. The lack of reference to legal sources - in addition to the rather brief discussions of applicable legal standards, including what constitutes negligence and gross negligence - has led some commentators to question whether the court correctly applied the law.
Some concern has been expressed that the lack of reference to relevant sources of law and corresponding legal analysis might set an undesirable precedent where the outcome is the application of a zero-tolerance standard to errors of judgement in critical maritime situations.
The court's judgment focused exclusively on the acts of the accused; there was no reference to the conduct of the Vessel Traffic Service (VTS) in Brevik. The criminal proceedings included two full days of witness statements regarding the actions of the VTS, which is the subject of a police investigation in relation to the grounding. Despite the reservations about certain action taken by the VTS, and the fact that the defence emphasised the legitimacy of the master's expectations in relying on the VTS's guidance and information, the court failed to address this crucial issue. The witness statements showed a lack of agreement between those involved with the VTS in relation to their understanding of the VTS's responsibilities to vessels anchored where the Full City was anchored. Although the judgment did not address this issue, the Coastal Authority has taken a number of steps since the grounding to ensure that clearer and better coordinated instructions are given to VTS employees.
With regard to the sentencing of the master and the third officer, the court emphasised that it should have a deterrent effect. This reasoning is questionable, as maritime casualties are almost always unintentional events, even if they may be caused by criminal negligence. Unlike many other forms of environmental crime, maritime casualties do not yield economic benefits for those involved. It is therefore difficult to agree with the court's statement that such crimes must be dealt with severely.
Notably, the sentencing marks a distinct departure from the sentencing standard in the only comparable Supreme Court judgment -namely, the Arisan case (Rt-1992-1578). Even though the conduct of the master in Arisan could be categorised as grossly negligent or even wilful misconduct, and the resulting oil spill was comparable to that in Full City, the master was sentenced to only 30 days' imprisonment with an additional Nkr30,000 fine. This may explain why the court chose not to consider this judgment in its decision.
As the court's decision has been appealed, it is too early to state what impact the judgment will have in Norway. However, the sentencing in Full City has heightened concern that Norway is following an unfortunate international trend of increased criminalisation of seafarers. This concern is emphasised by the court's failure to distinguish clearly between punishable and non-punishable negligence, both in relation to the new Ship Safety Act and the application of the Pollution Act to maritime casualties.
For further information on this topic please contact Morten Lund Mathisen, Gaute Gjelsten, Oddbjørn Slinning or Nina Hanevold at Wikborg Rein by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email (email@example.com, firstname.lastname@example.org, email@example.com or firstname.lastname@example.org).
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