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Maritime New Zealand v Princess Cruise Lines Ltd [2019] NZDC 523

Published 07 October 2021

Sentencing — causing maritime product to be maintained or serviced in manner causing unnecessary risk — nitrogen cylinders — death of crew member — inadequate training of crew members — inadequate testing of cylinders — emotional harm reparations — Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 — Stumpmaster v Worksafe New Zealand [2018] NZHC 2020 — R v Rackley DC Nelson, CRI 2005-018-740, 12 July 2007 — Tell v Maritime Safety Authority [2008] NZAR 306 — Big Tuff Pallets Ltd v Department of Labour HC Auckland CRI-2008-404-322, 15 February 2009 — Davies v Police [2009] NZSC 47, [2009] 3 NZLR 189 — Worksafe New Zealand v Hamilton City Council [2016] NZDC 18590 — Worksafe New Zealand v Corboy Earthmovers Ltd (in liq) [2016] NZDC 21982 — Worksafe New Zealand v Oceana Gold (New Zealand) Ltd [2018] NZDC 5274 — Health and Safety at Work Act 2015 — Maritime Transport Act 1994, s 65(2)(a) — Sentencing Act 2002, ss 7, 8, 9 & 32. The defendant appeared for sentencing on a charge of permitting a maritime product to be maintained or serviced in a manner causing unnecessary risk to others, an offence under s 65(2)(a) of the Maritime Transport Act. The defendant was a cruise ship company that operated cruises between New Zealand and Australia. On board was a system for launching lifeboats using nitrogen gas cylinders. Two crew members were carrying out routine maintenance work when one of the gas cylinders exploded and killed one of them. An inspection showed that the cylinder that exploded was badly and obviously corroded, that the deceased crew member had not received proper training on how to maintain the cylinders, and that the defendant had no proper system in place for testing the cylinders. The Court followed the sentencing methodology established by the Hanham & Philp decision. First by considering whether to impose reparations, then considering whether to impose a fine, and finally making an overall assessment of the proportionality and appropriateness of the total amount of the reparation and fine. The deceased's death had a major emotional and economic impact on his family. Having regard to the authorities and the defendant's culpability (which the Court assessed as slightly above moderate), the Court ordered emotional harm reparations of NZ$9483 (NZ$110,000 less the NZ$100,517 that the defendant had already paid to the deceased's family per the terms of his employment agreement). The Court ordered additional reparations to the deceased's family of NZ$250,000 for consequential economic loss, to reflect the lost earnings caused by the deceased's premature death. In view of the defendant's above-moderate level of culpability, the Court set a start point for fine of NZ$50,000 and made deductions for remorse, prior good character, remedial steps, guilty plea and overall considerations, reducing the fine to NZ$25,000. After an overall assessment of proportionality and appropriateness, the Court left the level of reparations unchanged but further reduced the level of fine to NZ$15,000. Judgment Date: 21 January 2019.