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01 February 2012
On June 22 2011 the Agder Appeal Court delivered its final judgment in the criminal case following the grounding of the Full City off Langesund on July 31 2009. The court acquitted the third officer and reduced the master's sentence to six months' suspended imprisonment.
The decision was given by three professional judges, two retired mariners and one lay judge. The judgment showed a far greater understanding of the maritime industry as compared with the earlier district court judgment. This notwithstanding, the appeal court provided little guidance on the key legal issues, such as the interpretation of gross negligence under the Ship Safety Act and the relevant principles for sentencing in maritime criminal cases.
The district court had convicted the third officer for violation of the Pollution Act, but acquitted him of the charges under the Ship Safety Act. The prosecution did not appeal the acquittal; consequently, the appeal court considered only whether the third officer had violated the Pollution Act by negligently failing to take measures to avoid pollution.
The third officer was on duty on the bridge on the night of the accident and the master had gone to bed. The district court convicted the third officer because he did not summon the master when the weather conditions deteriorated. The appeal court disagreed with this finding and concluded that the third officer's actions were not "criminally negligent". The court took into account the fact that the third officer was only 26 years old at the time of the accident and that this was his first voyage in this position. The court also took into account the master's role and the difficult and challenging situation.
As stated in the defence counsel's closing arguments, it is unusual that junior officers are prosecuted after such accidents. Following the appeal court's judgment, it is to be hoped that similar prosecutions will not occur in the future.
The appeal court upheld the district court's conviction of the master, but reduced the sentence imposed. The master was convicted on three charges:
The appeal court identified several measures that, in its view, the master could and should have implemented before he left the bridge to the inexperienced third officer. Such measures included giving more detailed instructions to the third officer, keeping a higher level of alertness in the engine room and monitoring weather forecasts and weather developments.
The master's failure to notify the authorities of the pollution risk was held to be grossly negligent and a significant violation of the Ship Safety Act. The stressful situation on board the vessel when the master and officers tried to start the main engine and avoid grounding was no excuse for failing to notify the authorities. The appeal court stated that the incorrect reporting from the bridge, saying that the vessel was under control, was an aggravating circumstance. This finding was perhaps surprising since it was not the master who gave this information, but other officers on the bridge at the time.
When it was introduced in 2007, the Ship Safety Act was intended to increase the use of administrative penalties in place of criminal penalties. Hence, for several offences, criminal liability now requires that 'gross negligence' be established. Regrettably, the appeal court did not discuss the threshold for gross negligence either generally or in relation to the specific provisions of the Ship Safety Act. Therefore, the judgment imposes an unreasonably strict duty of care on seafarers.
The master was sentenced to six months' imprisonment. This sentence was suspended, mainly because the master had been detained in Norway for a prolonged period and he had returned voluntarily to attend the legal proceedings without being formally summoned. The appeal court stated that had it not been for these mitigating circumstances, the master would have been required to serve the full prison sentence.
Compared with the Arisan case in 1992, the sentence is surprisingly harsh. The appeal court based its sentencing on the need for deterrence in pollution cases and the judgment focused mainly on the severe consequences that followed from the casualty. The court appears not to have considered circumstances specific to maritime accidents. Pollution resulting from maritime accidents is rarely caused intentionally. Had the accident occurred in Norwegian waters outside the baselines, the application of the United Nations Convention on the Law of the Sea would have prevented a prison sentence from being imposed. Although this argument was raised by the defence, the appeal court chose not to address this issue. As the master's sentence was suspended, no appeal was filed against the judgment.
The defence argued that the errors on the part of the Vessel Traffic Service (VTS) contributed to the accident. Brevik VTS conveyed the instructions from ship's agent to the Full City on where to anchor, at a place outside VTS's formal area of responsibility. The VTS did not warn the master of the approaching weather conditions, despite previous experience with vessels dragging their anchors in this area. The appeal court avoided expressing an opinion on whether the VTS ought to have paid closer attention to the vessel. In any event, it was not considered a mitigating circumstance for the master.
As a consequence of the accident, the Norwegian Coastal Administration has proposed expanding Brevik VTS's operative area to cover the area where the Full City anchored. The proposal also includes an increase in the services to be provided to ships, including information, traffic and navigational services. Former VTS employees stated in court that this was the standard of service that Brevik VTS should have provided to the Full City,
Lessons can be learned from the Full City case. Many will see it as a step towards the greater criminalisation of seafarers. It is certainly the case that where the consequences of a casualty are severe, particularly as regards pollution, the authorities may seek to hold the master and crew personally responsible to a far greater extent than is considered appropriate under international conventions. In Full City, to some extent order has been restored, but the appeal court declined an important opportunity to clarify the standards that seafarers must meet in order to avoid unwelcome exposure to criminal liability.
For further information on this topic please contact Nina Hanevold, Oddbjørn Slinning, Morten Lund Mathisen or Gaute Gjelsten 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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