Maritime New Zealand v Ninos Ltd [2020] NZDC 2536

Published 27 April 2021

Sentencing — sinking of boat — overloaded fishing boat — failing to pay wages — failing to take reasonably practical steps to identify overloading risk — failing to ensure appropriate systems in place to prevent overloading — failing to operate fishing boat in a manner not exceeding load capacity — failing to ensure provision of adequate training and instruction for crew — failing to become familiar with catch load capacity — defendant also victim — failign to meet employer obligations — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — WorkSafe New Zealand v Department of Corrections [2017] NZDC 819 — Department of Labour v Hanham & Philp Contractors Ltd [2008] 6 NZELR 79 — WorkSafe New Zealand v Agility Building Solutions Ltd [2018] NZDC 24165 — WorkSafe New Zealand v The Sunday Hive Ltd [2018] NZDC 20796 — Health and Safety at Work Act 2015, s 48 — Maritime Transport Act 1994, s 23 — Sentencing Act 2002, ss 4, 32 & 36. Three defendants appeared for sentence on charges of failing to ensure the safety of the crew of a fishing vessel that sank off the coast due to severe overloading. After the sinking, which had seen the crew of three plus the skipper rescued by a local fisherman, an investigation had shown that the boat had regularly been overloaded in the year before the sinking. The charges reflected the defendants' failure to recognise and prevent the risks from overloading, and their failure to properly train and instruct the crew. Also, the defendants took few steps to assist the crew following the sinking, leading to charges against the first defendant of failing to pay crew members normal wages until they were re-employed. The Court assessed the defendants' culpability as falling at the top end of the medium band set out in Stumpmaster. The Court considered that the defendants' conduct in overloading the boat was a gross departure from industry standards, that carried obvious and high risks and could easily have been avoided. The Court surmised that the offending was driven by profits. The start points for fines were $600,000 for the first defendant, $120,000 for the second, and $40,000 for the third. The start point for the third defendant, who was the boat's skipper, reflected the fact that he was entitled to place some reliance on the first two defendants to take safety precautions. In mitigation, each defendant had a good safety record in an inherently hazardous industry, had cooperated with the investigation and had pleaded guilty. The first defendant's final fine was $380,000, plus emotional harm reparations of $60,000 to the three crew members. The second defendant's final fine was $47,000, the significant reduction reflecting the fact that the second defendant was the managing director and sole shareholder of the first defendant, and the need to avoid double-counting. The third defendant's final fine was $17,500, following a reduction for the emotional harm reparations that he was owed by the first two defendants. Finally, the Court ordered payments of $4800 from the first defendant to the crew members for unpaid wages, plus a fine of $2500 for failing to meet employer obligations under the Maritime Transport Act. Judgment Date: 4 March 2020.