Sellers v Maritime Safety Inspector

• Jurisdiction: New Zealand
• Judgment Date: 05 November 1998
• Date: 05 November 1998
• Court: Court of Appeal

New Zealand, Court of Appeal.

(Richardson P, Keith and Blanchard JJ)

Sellers

and

Maritime Safety Inspector1

Jurisdiction Ships Flag State Whether jurisdiction of flag State exclusive Coastal State Whether possessing jurisdiction regarding safety requirements Effects doctrine

Relationship of international law and municipal law United Nations Convention on the Law of the Sea, 1982 (UNCLOS) Principle of freedom of the high seas Exclusive flag State jurisdiction Exceptions Maritime Transport Act 1994 (MTA) Section 21 of MTA Scope Whether MTA to be construed in accordance with international law Whether Maritime Safety Authority obliged to comply with New Zealand's obligations under international law

Sea Jurisdiction Safety requirements Coastal State Duty of rescue Whether conferring jurisdiction United Nations Convention on the Law of the Sea The law of New Zealand

Summary: The facts:The appellant was the owner and master of the cutter Nimbus, which was registered in Malta. Refusing to carry emergency locator beacons and radio transceivers, the appellant, as master, permitted the Nimbus to leave Opua for an overseas port between 30 April and 3 May 1995 without

obtaining the clearances required under Section 21(1) of the Maritime Transport Act 1994 (MTA). Section 21(1) of the MTA provided that

No master of a pleasure craft shall permit that pleasure craft to depart from any port in New Zealand for any place outside New Zealand unless

• (a) The Director has been notified in writing of the proposed voyage and the full name of the person who is in command of the pleasure craft; and

• (b) The Director is satisfied that the pleasure craft and its safety equipment are adequate for the voyage; and

• (c) The Director is satisfied that the pleasure craft is adequately crewed for the voyage; and

• (d) The pleasure craft and the master comply with any relevant maritime rules.

Upon the appellant's return to New Zealand, he was convicted in the District Court for the breach of Section 21(1) of the MTA. The High Court dismissed his appeal. He appealed to the Court of Appeal, basing his objection to the conviction upon the principle of the freedom of the high seas, which was enshrined in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) to which New Zealand was party.

Held:The appeal was allowed.

(1) The freedom of the high seas, which included the freedom of navigation, was one of the longest and best-established principles of international law. That the flag State had exclusive jurisdiction over its ship on the high seas was an essential feature of that freedom and could be found in Article 92 of UNCLOS (pp. 5889).

(2) Exceptions to exclusive flag State jurisdiction, which arose in relation to fundamental human rights and environmental disaster, were to be expressly provided for in international treaties. Such exceptions related to the exercise of enforcement jurisdiction in respect of activities occurring on foreign vessels in the high seas. A different attitude might be expected to be adopted in respect of the exercise of legislative or judicial jurisdiction (pp. 5889).

(3) Although Section 21(1) of the MTA could be seen as merely creating an offence which was committed within New Zealand internal waters, its effect was to place requirements on the exercise of the freedom to navigate on the high seas by reference to the adequacy of the ship, her crew and her equipment for the voyage (pp. 58990).

(4) The effects of the offence doctrine, which might have allowed New Zealand legislative and judicial jurisdiction because of its search and rescue responsibilities under UNCLOS, was limited in scope (pp. 5912).

(5) The exclusive criminal and disciplinary jurisdiction of the flag State and the State of nationality or certification of the defendant in respect of matters of the navigation of the high seas was emphasized by Article 97 of UNCLOS as well as in the detail of the conventions and rules concerned with working and living conditions at sea, the safety of life at sea and marine pollution (pp. 5923).

(6) A port and coastal State had relevant powers with respect to working and living conditions at sea, safety at sea and marine pollution. It did not, however, have any general power under the relevant rules of international law to impose unilaterally its own requirements on foreign ships relating to their construction, their safety and other equipment, and their crewing if the requirements were to have an effect on the high seas. Neither was there any reference to any generally accepted requirements, particularly in maritime conventions and regulations, relating to emergency locator beacons and radio transceivers with respect to pleasure craft. In addition, any such port State powers related only to those foreign ships in a hazardous state (pp. 5939).

(7) As a general principle, legislation was to be construed in accordance with international law wherever possible. Although there was no direct general obligation in the MTA on the Maritime Safety Authority to ensure the implementation of New Zealand's convention obligations, Section 432 did require the Authority to have regard to government policy in relation to maritime matters, which included compliance with New Zealand's obligations under international law (pp. 599601).

(8) Given that it was not possible to eliminate any potential conflict between the statutory power and the relevant rules of international law in relation to Section 21(1) (c) or (d) by reading the relevant provisions so as to exclude foreign pleasure craft or with a narrow territorial scope, the Director's powers were to be read as subject to the relevant rules of international law. This was possible given the emphasis on drafting national legislation and interpreting and applying national law concerned with maritime matters in compliance with the principles, rules and processes of the relevant parts of international law (pp. 6014).

(9) In accordance with international law the Director's powers under Section 21 of the MTA to make determinations with respect to the adequacy of a foreign pleasure vessel, her equipment and crew were limited to ensuring compliance with accepted international standards and rules to the extent that those rules allowed that assessment to be made by a coastal State. Those statutory powers would therefore develop as the relevant rules of international law developed without the need for any express amendment (pp. 6035).

(10) The minimum requirements set by the Director for the grant of a clearance under Section 21(1) of the MTA were not permitted by international law. As the appellant should not be held to be committing an offence for not complying with requirements set without lawful authority, his conviction and sentence were to be quashed (p. 605).

The following is the text of the judgment of the Court, delivered by Keith J:

Table of contents

Freedom of the high seas: exclusive flag state jurisdiction	46
Jurisdiction based on effects?	48
Port state powers	51
The Maritime Transport Act 1994 and international law	57
Section 21: its meaning and application	59
Result	62

William Rodman Sellers was the owner and master of the 346 cutter Nimbus, registered in the Port of Valletta. Between 30 April 1995 and 3 May 1995, as master, he permitted the Nimbus to leave Opua for an overseas port without obtaining the clearances which the Maritime Safety Authority contends he required under s 21(1) of the Maritime Transport Act 1994. He returned on about 26 December 1995. He was prosecuted for a breach of the Act and convicted by the District Court at Kaikohe. His appeal was dismissed in the High Court by Morris J [(Whangarei, AP 16/97, 16 February 1998)] who granted him leave to appeal to this Court.

The facts in brief are that Mr Sellers refused to carry the radio and emergency locator beacon equipment required as a minimum by the Director of Maritime Safety in the guidelines he issued for the exercise of his powers under s 21. As a consequence, he did not obtainindeed he really did not seekthe required clearance. He stated his position of principle in this way:

My maritime art is based on the mystery of the sea. It is religious to me, being alone, simple and strong with the seanot with radiosthe radio has stuffed everything but the mystery of the ancient sea will outlast man. I am protesting on religious grounds to attempts to restrict free and private movement on the open sea.

Freedom of the high seas: exclusive flag state jurisdiction

In legal terms the objection was based on the principle of the freedom of the high seas. That freedom, including the freedom of navigation, is one of the longest and best-established principles of international law. An essential feature of the freedom is that the state of nationality of a ship (the flag state) has exclusive jurisdiction over the ship when it is on the high seas. That proposition, to be found in art 92 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to which New Zealand is party and which in this respect is considered to be declaratory of customary international law, is subject only to exceptional cases expressly provided for in international treaties (1982 Int Leg Mat 1261). The exceptions are to be related to the recognition in art 87(2) that the freedoms of the high seas are to be exercised by all states with due regard for the interests of other states in their exercise of the freedoms.

Over the past three centuries the world community occasionally and cautiously has expressly provided for such exceptions. The truly exceptional character of the cases appears from two instances, one relating to fundamental human rights, the other to environmental disaster. Although in 1815 the nations assembled at the Congress of Vienna had declared the slave trade to be repugnant to the principles of humanity and to the universal laws of morality and had expressed the desire to cooperate to the most prompt and efficient and...