Regulation of the safety of foreign pleasure craft on the high seas

THE recent judgment of the New Zealand Court of Appeal in Sellers v Maritime Safety Inspector (CA 104/98, 5 November 1998) raises interesting issues about the extent to which states can legislate for ships on the high seas.

The court held that a port state has no general power to unilaterally impose its own requirements on foreign vessels in respect of minimum standards of safety, construction, and other equipment and crew if the requirements are to have legal effect on the high seas. Accordingly, the Director of the New Zealand Maritime Safety Authority could only exercise statutory powers subject to the relevant rules of international law.

The case concerned Section 21(1) of the New Zealand Maritime Transport Act 1994, which was primarily intended to ensure that pleasure craft leaving New Zealand could be located by emergency locator beacons, and that radio transceivers would be carried on all such vessels. This is particularly important to New Zealand because its treaty obligations make it responsible for search and rescue in approximately six million square miles of the Pacific Ocean.

The government included Section 21 in the act in response to a particularly devastating storm in June 1994 which decimated a fleet of yachts racing to Tonga and caused a hugely expensive search and rescue operation. Section 21(1) provides that:

• (i) No master of any 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 of the Maritime Safety Authority 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.

The facts

Mr Sellers owned and sailed the 34ft cutter Nimbus. The yacht was registered outside New Zealand. Between April 30, 1995 and May 3, 1995, Mr Sellers sailed from a New Zealand port to a foreign port but, before leaving, did not satisfy the director of maritime safety under Section 21(1)(b) that his yacht had the safety equipment that the maritime safety authority considered adequate for the voyage - namely a radio and emergency locator beacon.

In fact, Mr Sellers deliberately sailed without clearance or the required equipment in defiance of the requirements of Section 21. Mr Sellers was prosecuted for and convicted of an offence under Section 21. He said in evidence in defence of the charge:

"My maritime art is based on the mystery of the sea. It is religious to me, being alone, simple and strong with the sea - not with radios - the 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."

The conviction was upheld by the high court and Mr Sellers appealed to the appeal court.

Arguments on appeal

Mr Sellers argued that New Zealand could not legislate in Section 21 for vessels on the high seas. He based his argument on the principle of the freedom of the high seas, which included freedom of navigation. The appeal court recognised this freedom as one of the "best established principles of international law."

The Maritime Safety Authority argued that:

• Section 21(1) of the act did not affect navigation on the high seas because it only related to an offence in New Zealand internal waters at the point of departure from a New Zealand port, and could only be enforced in a New Zealand court, or
• In any event, a state had power to regulate for vessels on the high seas, as shown by articles of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), to which New Zealand was a party.

International law paramount

The appeal court stated as a general principle that a state's legislation was interpreted in the context of - and, if possible, consistently with - international law. This was supported by the Maritime Transport Act 1994 itself.

The appeal court noted that, under customary international law and Article 92 of UNCLOS, an essential feature of the freedom of the high seas was that only the state of nationality of a ship - the flag state - had jurisdiction over that ship on the high seas. A ship was treated as if it was the territory of its flag state. This meant that only the flag state could prosecute an offence taking place on the ship on the high seas.

There were only limited exceptions, such as piracy and oil pollution. For instance, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution 1969 allowed a state to take measures on the high seas necessary to prevent, mitigate or eliminate danger from oil pollution following a maritime casualty.

Apart from limited powers under international conventions and regulations relating to the state of ships in a port state (e.g., the Convention Concerning Minimum Standards in Merchant Ships 1976, Convention on the Safety of Life at Sea 1974, International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978), no state had power to unilaterally impose its own requirements on foreign ships as to their construction, safety and other equipment or crewing if they had effect on the high seas.

Application of Section 21

The appeal court rejected the Director of Maritime Safety Authority's argument that Section 21 was limited to an offence in New Zealand's territorial waters. It said, "The reality is of course quite different". Section 21 in fact places requirements on the exercise of the freedom to navigate on the high seas by reference to the adequacy of the ship, its crew and equipment for the voyage.

Section 21 did not regulate entry into New Zealand ports. Rather it referred to a voyage from any port in New Zealand to any place outside New Zealand. It therefore meant a voyage from New Zealand, over the high seas and to a foreign port. Ironically, Section 21 did not refer to a voyage from New Zealand, over the high seas but returning to New Zealand because the destination was not 'outside New Zealand'. A non-stop circumnavigation of the globe was therefore not caught by Section 21.

Neither was Section 21 restricted to pleasure craft registered in New Zealand, because the section referred to 'any' pleasure craft. This could not be interpreted as only pleasure craft registered in New Zealand because the act carefully distinguished in other sections between any ship, New Zealand ships, foreign ships and foreign ships in New Zealand waters.

Section 21 therefore applied to foreign pleasure craft on the high seas and had to be interpreted as subject to international law applying to those craft, in particular the principle that only the flag state had jurisdiction over that ship on the high seas. Under international law, the Director of Maritime Safety was only entitled to be satisfied about the adequacy of a foreign pleasure craft, its equipment and crew to ensure compliance with accepted international standards and rules. In other words, the director could exercise powers under Section 21 if authorised by international convention.

Looking at the specific parts of Section 21(1), paragraph (a) (notification of a proposed voyage) was not inconsistent with international standards because it could be related to the information sharing provisions of the Search and Rescue Convention 1979 and standard immigration requirements. In any event, Mr Sellers had complied with paragraph (a). Paragraph (d) (compliance with relevant maritime rules) was also acceptable because no such rules had been made.

However, paragraphs (b) (adequate safety equipment for the voyage) and (c) (adequate crew for the voyage) imposed minimum requirements not permitted by international law. The requirements imposed by the Director of Maritime Safety were in breach of the powers conferred by Section 21. It followed that Mr Sellers could not be convicted of an offence against Section 21, and the appeal was therefore allowed.

Comment

The Director of the Maritime Safety Authority must now only exercise powers under Section 21 to the extent that he is able to within the context of New Zealand's international obligations. The appeal court's decision is consistent with the approach of many courts in other jurisdictions. The result frustrates parliament's intention in enacting Section 21. But that was clearly a knee-jerk reaction to what is commonly referred to as "the June storm" by the boating fraternity - never a good basis for law-making.