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Maritime New Zealand v Tauranga Fishing Charters Ltd [2022] NZDC 1700

Published 25 July 2022

Reserved decision — operating ship without the prescribed qualified personnel — failing to ensure health and safety of other persons — conviction and discharge — Maritime Transport Act 1994, s 67B — Health and Safety at Work Act 2015, ss 36(2), 49(1), 49(2)(c) & 151 — Health and Safety Employment Act 1992 — Sentencing Act 2002, ss 8, 10A, 35, 41, 42, 108 & 109 — Stumpmaster v WorkSafe NZ [2018] NZHC 2020 — Department of Labour v Hanham and Philp Contractors Ltd (2008) 6 NZELR 79 — East by West Company Ltd v Maritime New Zealand [2020] NZHC 1912 — WorkSafe New Zealand v Ministry for Primary Industries [2021] NZDC 2368 — WorkSafe New Zealand v Assure Quality Ltd v One Staff Ltd [2020] NZDC 23107 — WorkSafe v Alderson Poultry Transport Ltd [2019] NZDC 25090 — WorkSafe New Zealand Ltd v Tasman Tanning Co Ltd [2017] NZDC 24398 — MBIE v KLS Roofing Ltd [2014] NZDC 9 — Maritime New Zealand Ltd v Ocean Venture Ltd [2019] NZDC 24340. The defendant company faced charges of operating a ship without the prescribed qualified personnel, and failing to ensure the health and safety of other persons. A fishing vessel owned by the defendant ran aground while carrying the master of the vessel, a crew member and two paying customers who had chartered the vessel for the day. The vessel sank, but everyone on board escaped without injury. The master had a Commercial Launch Master certificate (CLM) at the time of the accident; however because of recent changes to the Maritime Rules, this form of certification was out of date and invalid, giving rise to the first charge. The second charge of failing to ensure the health and safety of other persons alleged that the defendant had not had an adequate trip-reporting procedure in place. The defendant pleaded guilty to both charges and sought a discharge without conviction, arguing that its wrongdoing was minor. The Court found that although the master's certification had been out of date, he was competent and experienced and did hold a relevant Maritime certificate. His failure to update his certification was a purely administrative error. Likewise there were shortcomings to the defendant's trip-reporting procedure, but they were only minor. The shortcomings did not cause the accident, and the changes proposed by the prosecution would not have prevented it from happening. Given the Court's statutory obligation to impose the least restrictive outcome that is appropriate in the circumstances, the Court found it appropriate to convict and discharge the defendant on both charges. There was no need to impose a fine and the defendant was unable to pay costs. The Court concluded by stating what would have been appropriate start points for fine on each charge, had it not decided to convict and discharge the defendant. Judgment Date: 4 February 2022