FISHERIES
A review of the fisheries cases decided by the courts in the region gives some indication of the important issues that arise. Many of the cases dealing with fisheries deal with the interpretation of fisheries legislation.
Papua New Guinea
In Ada v Lin Wen Beau¹ the defendants were licensed to fish in PNG waters but they did not fish in accordance with the license. At trial the court found that s. 55 of the Fisheries Act of 1994 applied only to offences of fishing without a license, and not to fishing in breach of a term or condition of a license. This decision was overturned on appeal, the Appeal Court finding that fishing in breach of a term of a condition of a license was also an offence under the Act. New fisheries legislation was introduced in PNG in 19982 where the purview of fishing offences has been expressly broadened and clearly encompasses a statutory control of all fishing activities in PNG fisheries. Chia He Jia and Huang Ming Xian v Gisa Komagin³ is another case interpreting the 1994 Fisheries legislation from PNG. In this case the appellant argued that the conviction for illegal fishing had been based on circumstantial evidence. However the court held that under the s. 70 of the Fisheries Act any fish found on board any boat which has been used in the commission of a fisheries offence is presumed to have been caught in the commission of that offence. The onus is on the accused to prove otherwise. The reversed onus has been preserved in the current legislation in s.71. In Fa v Naniur4a the Appeal Court relied on the legislative intention to protect and control the fishing industry to broadly interpret “equipment” to include the catch record of gillnetters. The appellants had argued that the catch record could not properly be construed to be “equipment” for the purposes of the Fisheries Act. The current legislation has addressed this issue so that the search and seizure provisions applicable to the fisheries officers now includes “gear, equipment, record or other documents” which is “used or intended to be used in relation to fishing” in s. 49.
Federated States of Micronesia
Every jurisdiction has a statutory provision prohibiting the transiting of fishing waters without a license without fishing gear stowed. In the FSM, 24 F.S.M.C. 105 requires the Vessel’s fishing gear to be stowed “in a manner that is not readily available for use in fishing”. In Federated States of Micronesia v Cheng Chia-W (II5) the court required the prosecution to present evidence as to whether the manner of stowage prevented the gear from being available for fishing, holding that this claim was unlike those for failure to maintain a catch log or failure to maintain proper radio which were readily provable.
1 [1996] PGNC 111
2 Fisheries Management Act 1998
3 [1998] PGNC 20 aff’d [2001] PGSC 20
4[1990] PGNC 97
5 [1995] FMSC 36
Again in Federated States of Micronesia v Kotobuki Maru 6the Court found that the government failed to prove by a preponderance of evidence that various acts could constitute “searching or attempting to search for fish” contrary to 24 F.S.M.C. 102(19). The prosecution had based their case on the vessel’s zig zag course, as well as the use of a yellow light and sonar- which the court found to be insufficient and inconclusive. Fishing and related activities are interpreted broadly throughout the region. In Federated States of Micronesia v Skico Ltd 7 the court found the “fishing” included refueling or supplying fishing vessels for the purposes of the Code.
Solomon Islands
In R v Finete and C & F Fishing Ltd8 the court was asked to determine whether a helicopter and speed boat were “fishing gear” for the purpose of the Fisheries Act 1972, s. 7(5)b Regulations 1981 which provided that “any fishing gear aboard a foreign vessel not permitted to fish within the fishing limits shall while the vessel is within the fishing limits be stowed wholly inboard the vessel….” In deciding that these items were not fishing gear, the court utilized a function and object test stating that if the function of the object in question is catching, taking or killing fish, then it is fishing gear. Secondly the court looked at the object of the gear asking whether the object was so closely allied with the operation of catching fish that it could be fishing gear. The current Fisheries Act 9 does not interpret “fishing gear” but it has been broadened to “fishing gear, instruments and appliances”. In Regina v Wang Tian Fa10 the court considered the interpretation of “wholly inboard” from the same Regulation. Resort was made to Black’s Law Dictionary where the term was contrasted with ‘outboard’, and as applied to cargo- so that it does not project over the side or rail of the vessel. The court accepted this to be the correct definition. The new legislation has addressed this term by s. 7(4) and Regulation 11 which prescribes the manner in which fishing gear must be stowed by foreign fishing vessels within fishery limits.
Illegal Fishing
Proving the offense
Elements of the offense Since all States in the region have ratified UNCLOS III new fisheries legislation reflects the allowance for innocent passage through the Territorial Sea which requires stowed fishing gear.11 As to the EEZ, all states have chosen to exercise their sovereignty over the natural resources in the zone, with the result that Nationals of other States fishing in the
6 No 23 [1993] FMSC 31
7 [1997] FMSC 13
8 [1984] SBHC 12; [1984] SILR 40 (30 July 1984)
9 [Cap 38]
10 [1994] SBHC 74; HCSI-CC 27 of 1994 (1 September 1994)
11 See for example Chia He Jia and Huang Ming Xian v Gisa Komagin [1998] PGNC 20; N1702 (30 March 1998)
EEZ must comply with laws and regulations of the coastal State.12 The elements of illegal fishing are generally found in the wording of the governing legislation and regulations. See for example a Vanuatu case13 where the court laid out the four essential elements of the offence all of which must be proven beyond a reasonable doubt. These elements are: 1. A foreign fishing boat 2. Being used for fishing or related activities 3. In Vanuatu waters 4. Without a valid license or other ministerial authorization. Likewise in a case from Kiribati14 the High Court set out the three elements of illegal fishing in the EEZ – the vessel was a foreign vessel; the vessel entered the fishery limits not for a purpose recognized by international law; and it did so without the authority of a permit granted under the Fisheries Ordinance.
Onus
In all jurisdictions in the region the elements of illegal fishing are provided for in legislation, all elements to be proven beyond a reasonable doubt by the prosecution. However, the onus is reversed in certain circumstances. In Federated States of Micronesia v Skico Ltd (I)15 the court drew the distinction between fish and cargo found aboard a vessel seized for fishing violations. The legislation in this State creates a rebuttable presumption that all fish found aboard were illegally taken, but there is no such presumption that the cargo found aboard was “cargo used” in the alleged violation. This distinction is important because the Code provides that cargo used illegally and fish caught illegally are subject to forfeiture.
There are a number of presumptions in the Cook Islands legislation.16 Section 57 includes the presumption that all fish found on board a vessel used in the commission an offence was caught in the commission of that offence. The records such as the logbook of any enforcement vessel are evidence of the place where an event has taken place, and there is a presumption that the acts of crewmembers and records in the foreign fishing vessel are those of the master. By section 59 the master is guilty of any offence committed by any person on board the vessel and the onus of proof of any license or authorization is on the defendant.17
In Chia He Jia and Huang Ming Xian v Gisa Komagin18 the defendants appealed on the grounds that their conviction for illegal fishing was based on circumstantial evidence. The court dismissed this ground of appeal referring to section 70 of the Fisheries Act
12 UNCLOS III Article 62(4)
13 Public Prosecutor v Chern Chin Her [1989] VUMC 1; Criminal Case 336 of 1989 (22 September 1989)
14 Republic v Jong Kim [1999] KIHC 13; HCCrC 19.98 (1 March 1999)
15 [1996] FMSC 26; 7 FSM Intrm. 550 (Chk. 1996) (15 August 1996)
16 Marine Resources Act 1989
17Cited by the court in Police v Shine Year Maritime S.A. Chin Shih Hsu [2003] CKHC 5; Cr 508-509.2002 (22 January 2003)
18 [1998] PGNC 20; N1702 (30 March 1998);
which provides that all fish found on board any boat which has been used in the commission of a fisheries offence shall be presumed illegal catch unless the contrary is proved, and that where in proceedings under the Fisheries Act an officer gives evidence that he suspects that any fish to which the charge relates were taken in a particular area of waters or taken for a commercial purpose together with evidence of the grounds on which he so suspects, then it is incumbent upon the defendant to show the contrary. These presumptions have been preserved and expanded upon in PNG fisheries legislation19 enacted since this case.
Search and seizure
Generally designated officials may board and inspect a fishing vessel found in the EEZ under conditions prescribed by the fisheries legislation and fisheries agreements. No warrant is necessary for the search, and upon evidence of specified offences, the official may seize the vessel, gear and catch. In Ishizawa v Pohnpei20 the court recognized the significant difference between the threshold for search and for seizure of foreign fishing vessels. These considerations are probably widely applicable to the region. The court recognized that broad search powers are rightly available to fisheries officers because of the extraordinary difficulties faced by law enforcement authorities in policing the vast surrounding waters. However, the court enumerated many practical considerations which illustrate the gravity of a vessel seizure: even a temporary seizure is a significant taking of property, owners are deprived of potential profits as well as their use of the vessel, and the crew is dislocated and the owner may be responsible for their alternate accommodation. In addition improper seizure of a foreign vessel may offend the sensibilities of other nations. In the FSM the defendant is constitutionally entitled a post seizure hearing in order to determine probable cause. At this point, the vessel is in port and the court expects procedural rules to be followed. Thus in Federated States of Micronesia v Yue Yuan Yu No 70821 the government failed to show reasonable cause for seizure where it relied on heresy evidence when first-hand testimony was available, and was unable to explain a 3 day delay between search and seizure of the vessel. Conversely, probable cause was shown in a case where the arresting officer testified as to the vessel’s location in the EEZ, with freshly caught fish aboard, fishing gear improperly stowed, and no applicable fishing permit.22
There was a case out of PNG where the limits to the search and seizure provisions of the Fisheries Act were considered. The applicants sought to enforce their constitutional right of freedom from arbitrary search and entry. A fisheries officer had boarded the vessel and proceeded to take charts, books, crew lists and passports. He did not identify himself nor did he obtain a warrant, although it appears that the vessel was docked. The court
19 Fisheries Management Act 1998 ss. 71-72 Jia v Xian [1998] PGNC 146; [1998] PNGLR 75 (30March 1998)
20 [1985] FMSC 14; 2 FSM Intrm. 067 (Pon. 1985) (15 August 1985)
21 [1995] FMSC 48; 7 FSM Intrm. 300 (Kos. 1995) (30 October 1995)
22 Federated States of Micronesia v Zhong Yuan Yu No 621 [1994] FMSC 53; 6 FSM Intrm. 584 (Pon.1994) (30 November 1994)
held that the right of the officer granted pursuant to the fisheries legislation were subject to the Constitution. The officer could only enter the vessel where he had reason to believe that the boat was used or intended to be used for fishing, and could only search for fishing equipment or matters related to fishing- once he went beyond these items, the search was not authorized by law and became an illegal, arbitrary search in contravention of the Constitution.
Offence
Generally there is no need to prove mens rea for an illegal fishing offence. In State v
Hong Kuo Hui23 the Fijian High Court reviews all of the fisheries legislation in the region
and notes that most states have absolute liability offense provisions. The exceptions are
Australia, New Zealand and Vanuatu which impose strict liability with limited ‘mistake’ defenses. Mistake was not a defense in R v Wong Chin Kwee.24 The court found illegal fishing to be a “status offence” under the Solomon Islands Fisheries Act 1972. Prosecution had only to show that a foreign vessel had contravened the Act, and that the accused had the status of master, owner or charterer of that vessel at the time the contravention took place. There was no need to prove a mental element. (wording in the current legislation has preserved the notion of status offence). The Tongan courts considered similar fisheries legislation in Rex v Kim.25 The court found that the Fisheries Act26 imposed absolute liability in respect of master, owner or charterer of the vessel which fishes without a license. Further, the offence does not require the owner to allowthe fishing to take place.
Forfeiture
Forfeiture of the fishing vessel is a severe penalty. The courts have characterized penalties for illegal fishing as not only as punitive, but also to serve as a deterrent to other illegal fishers and fishery companies. See for examples, China National Fisheries Corporation v State27 , Public Prosecutor v Lin Schiow Her28, Chern Chin Her v Public Prosecutor29. In State v Lee Lang30 the Fijian High Court adopted the reasoning from an Australian case31 where the court stated that fines against individuals such as the master or captain of the vessel may not deter illegal fishing in that the real offender is usually the foreign owner. That being the case, forfeiture is the only effective way to penalize a foreign owner who is unlikely to have funds in the country with which to pay fines.
23 [2005] FJHC 732; HAC40.2004 (2 May 2005)
24 [1983] SBHC 2; [1983] SILR 78 (14 April 1983)
25 [2003] TOSC 51; CR 348 & 349 2003 (9 December 2003)
26 [Cap 123]
27 [2005] FJCA 70; AAU0027.2005 (25 November 2005)
28 [1993] VUSC 15 (3 December 1993)
29 [1989] VUSC 3; Criminal Appeal Case 011 of 1989 (26 October 1989)
30 [2010] FJHC 42; HAC137.2007S (12 February 2010)
31 Chiou Yaou Fa v Morris Supreme Court Northern Territories [1987] 46 NTR 1, 28
In Fiji forfeiture is not mandatory, and is at the court’s discretion. Generally the decided
cases32 have followed the reasoning in Cheatley v The Queen33 wherein similar Australian fisheries legislation provisions were considered. Importantly, the Fijian courts adopted the interpretation of the Australian court whereby forfeiture of the fishing vessel is authorized by the fisheries legislation and there is no requirement that the owner be made a party to the proceedings in a forfeiture application, although the owner may address the sentencing court if they wish. Following Cheatley, forfeiture follows where there has been no mistake. There have been a few decisions not to forfeit. In State v Chen Chaolin34 the catch was of minimal value and it was an isolated breach, and in State v Yang Shui Xing35 there was a prior civil claim in respect of the boat before another judge.
Note that the Fiji Court of Appeal chose not to follow Deep Sea Fishing Corporation Ltd v State36 in the China National Fisheries case where the reasoning from Cheatley was adopted. In Deep Sea Fishing the Court had suggested that the owner should be named as respondent to an application for forfeiture. The later Court of Appeal decision distinguished Deep Sea Fishing on the facts, and also suggested that it may have not been correct to rely on a case from New Zealand37 because the NZ fisheries legislation differed in that there is a presumption of forfeiture unless the owner shows ‘special reasons’.
There are also decided cases from Cook Islands, Vanuatu where forfeiture is also discretionary. In Police v Shine Year Maritime S.A. Chin Shih Hsu38 the Cook Islands High Court fined the captain and owner CI$150,000 each for illegal fishing in the EEZ. Forfeiture was not ordered, the court considering that it was a first offence, there was no evidence that the owner deliberately intended to offend, the incursion into the EEZ was small, and the limited means of the owner and captain.
In the reported cases from Vanuatu, Public Prosecutor v Chen Tsi Yi39 and Public Prosecutor v Lin Schiow Her40 forfeiture was not ordered. In the former, the prosecution did not seek forfeiture, and in the latter the court levied large fines and costs and confiscated the catch but declined to order forfeiture. The severity of the offences is acknowledged in both cases but fines are seen to be adequate deterrents.
32 State v Hung Kuo Hui [2006] FJHC 113; HAC40.2004 (24 February 2006); China National Fisheries Corporation v State [2005] FJCA 70; AAU0027.2005 (25 November 2005)
33 [1972] 127 CLR 291 HC Australia
34 [2003] FJHC 169; HAC0010J.2003S (26 June 2003)
35 [2004] FJHC 267; HAC0041J.2004S (29 November 2004)
36 [2003] FJCA 63; AAU0030.2003S (26 November 2003)
37 Ministry of Agriculture and Fisheries v. Schofield, [1990] 1 NZLR 210
38 [2003] CKHC 5; Cr 508-509.2002 (22 January 2003)
39 VUSC 88; CRC 046 2004 (7 July 2005)
40 [1993] VUSC 15 (3 December 1993)
In PNG forfeiture is mandatory for illegal fishing offences. See Pawut v Lim Men Bee41 where the National Court affirms the Appeal Court ruling that found that there is no discretion under the forfeiture provisions in the fisheries legislation. Forfeiture is mandatory where a foreign boat is found guilty of offences in PNG waters.
Note that the application for a vessel’s forfeiture is an in rem proceeding. Therefore the thing over which jurisdiction is to be exercised (or its substitute, e.g. a bond) must be physically present in the jurisdiction and under the court’s control. For an application of this rule, see Federated States of Micronesia v Kana Maru No. 1.42 The vessel must be seized and brought under the court’s jurisdiction in order for the court to exercise in rem jurisdiction over it. Therefore where a vessel has been damaged by a collision on a reef and later salvaged and removed the court cannot proceed against it for damages to the reef.43
Generally fisheries legislation provides for the release of the vessel upon payment of bond. The payment always includes the value of the vessel and may also be the aggregate of the value of the vessel plus possible fines.44 Refer to UNCLOS article 73(2) which deals with prompt release of arrested vessels and crew upon posting of reasonable bond or security.
Arrest of Ships Pursuant to Fisheries Violations
Federated States of Micronesia v Kana Maru No. 1 [2006] FMSC 26; 14 FSM Intrm. 300 (Chk. 2006) (4 July 2006)
Arrest of ships- Bond required on release of vessel where vessel is res in in rem action- Hearsay evidence admissible in bond hearing.
The vessel was arrested for fishing violations the Marine Resources Act. The defendant
filed a motion to release the vessel without bond, or alternatively requested that a bond be
set at the vessel’s value. The defendant also asked that the court not consider a police
report that the plaintiff relied on in its opposition to the release on the ground that it was
hearsay.
DECISION: Report admissible. Vessel released on payment of bond.
HELD: The report, although hearsay, was admissible as this was not a criminal case and
therefore the report fell within the statutory exception to hearsay. Furthermore, the rules
of evidence generally do not apply to a bond hearing.
The vessel could not be released without bond because the court must maintain
jurisdiction over the res in an in rem action.
41 [1996] PNGLR 26 (18 March 1996)
42 [2006] FMSC 26; 14 FSM Intrm. 300 (Chk. 2006) (4 July 2006). See also Kosrae v. M/V Voea
Lomipeau, 9 FSM Intrm. 366, 370 (Kos. 2000); In re Kuang Hsing No. 127, 7 FSM Intrm. 81, 82 (Chk.
1995).
43 Moses v MV Sea Chase [2001] FMSC 56; 10 FSM Intrm. 45 (Chk. 2001) (15 February 2001)
44 For an example see Police v Chikami [2005] CKHC 8; HC CR Nos 608-619 of 2004 (1 March 2005)
Arrest of ships- Government not required to post counter- security where vessel is arrested by the government, and a counterclaim arises out of the same incident.
The vessel was arrested for fishing violations pursuant to the Marine Resources Act. The court set bond for the release of the vessel. Before the bond was posted the defendant filed a motion to require the government to post counter-security for a counterclaim for wrongful arrest and damages.
DECISION: Motion denied
HELD: A counterclaim may be available in a maritime action where the vessel has been arrested as long as the counterclaim arises out of the same transaction or occurrence. The waiver of sovereign immunity in this case applies to the government’s ultimate liability, not to whether it can post security. Title 24 does not provide for the government to be required to provide counter-security.
Federated States of Micronesia v MT HL Achiever (I) [1995] FMSC 37; 7 FSM Intrm. 221 (Chk. 1995) (30 August 1995)
Arrest of ships- Defendant vessel cannot be moved to different venue in in rem action
The defendant vessel was docked in Chuuk and the FSM wanted to move it to Pohnpei on the basis that the surveillance vessel that was guarding the defendant vessel was in need of repairs, and ship keeper’s costs would be lower in Pohnpei. The FSM filed a motion to have Temporary Restraining Order set aside.
DECISION: Temporary restraining order set aside. FSM not to move the defendant vessel from Chuuk State without an order from the court.
HELD: The Admiralty statute does not anticipate transfer, and thus the possibility of transfer does not exist. In an in rem forfeiture of the defendant vessel, jurisdiction and venue are so interrelated that the effect of a move is unclear.
Arrest of ships- FSM Civil Rules do not provide for appearance of ship’s owner- Owner of seized property cannot challenge statute it was seized under as unconstitutional because the statute fails to provide for procedural rights when the owner is provided with notice and a hearing.
The vessel was arrested for fishing offences pursuant to the Marine Resources Act. The defendant filed a notice to dismiss stating that the statute under which the forfeiture was brought was unconstitutional in that it failed to provide for a notice and hearings and thus violated the parties’ procedural rights. The defendant also stated that the mandatory forfeiture provision in the statute violated the excessive fines prohibition of Art. IV of the Constitution. The government as plaintiff filed a motion to strike the vessel owner’s counterclaim stating that the vessel’s owner was not a party, and as such the owner should move to intervene pursuant to Civil rule 24.
DECISION: Motion to dismiss denied. Motion to strike granted.
HELD: The vessel was given due notice. The claimant received prompt notice, engaged counsel and filed pleading. There was a post-seizure hearing held. There is no evidence that either the vessel or claimant suffered any injury. As to the excessive fine, that motion was premature. As to government’s motion to strike, the court noted that the US Supplemental Rules for Certain Admiralty and Maritime Claims C(6) allows for a limited appearance by the vessel’s owner. However, the appearance is not provided for in the FSM Civil Rules.
Arrest of Ships- Due process does not require an immediate post-seizure hearing in advance of a civil forfeiture trial- Due process requires that the government begin the forfeiture action within a reasonable time of the seizure.
A warrant was issued by the government for the arrest of the vessel and cargo. A post-seizure hearing was held upon the request of the defendant. The defendant filed a motion to dismiss for failure to provide a due process hearing on the basis that the forfeiture provisions of title 24, ss. 504-509 are unconstitutional because they fail to provide for a prompt post-seizure hearing and for a notice to the owner of its right to such a hearing.
DECISION: Motion denied.
HELD: The defendant was granted a hearing upon request. Due process does not require an immediate post-seizure hearing in advance of a civil forfeiture trial. The requirement is that the government will begin the forfeiture action within a reasonable time of the seizure.
Arrest of Ships- Hearsay evidence admissible at post-seizure hearing but parties must use best evidence available and cannot rely on layers of hearsay.
FSM seized the vessel for suspected fishing violations. A fisheries officer had boarded the vessel and found the log book to be completely blank. The FSM filed a civil complaint for forfeiture and damages. The defendant filed a motion requesting immediate release of the vessel. A post-seizure hearing was held. The only evidence offered by the FSM was the affidavit of the Deputy Administrator of the Maritime Wing of the FSM National Police. The affiant did not appear, nor did the fisheries officer who had searched the vessel, although both parties were available.
DECISION: Order to release vessel
HELD: The court was concerned about the use of unreliable evidence. Hearsay evidence is admissible at a post-seizure hearing but in this instance there was competent evidence available which the State chose not to use. The fisheries officer who had performed the search of the vessel as well as the affiant were available but did not attend the hearing. The court decided that the FSM did not bear its burden of proof that it had probable cause to seize the vessel.
State v Hung Kuo Hui [2006] FJHC 113; HAC40.2004 (24 February 2006)
Charterparties- Charterer guilty of illegal fishing- vessel forfeited with no requirement to name owner as party
The defendant company was Fijian owned and operated. The defendant company and captain were found guilty of illegal fishing in Fijian territorial waters. The state sought forfeiture of the vessel as part the penalty. The vessel was chartered from a company in Taiwan.
DECISION: order for forfeiture granted
HELD: The court found that the illegal fishing was blatant and repeated in spite of warnings. The penalties were meant to be harsh. It was not necessary to add the owner of the vessel as a party. Owners and charterers should be aware of the law and the penalties.