Lloyd's Maritime and Commercial Law Quarterly
FISHERIES, FORFEITURE RELIEF AND ADMIRALTY
Paul Myburgh*
Hartono v Ministry for Primary Industries
New Zealand’s commercial fisheries have for decades been beset with “allegations of trafficking and mistreatment of crews, complaints of underpayment of crew and other breaches of employment rules, questions about vessel safety standards and reported breaches of fisheries and environmental regulations”.1 Most of the concerns have centred around foreign chartered vessels (FCVs) used by local companies in joint ventures to fish their allocated quotas in New Zealand’s Exclusive Economic Zone (EEZ).2 Matters came to a head in 2011 after widespread negative publicity generated by critical academic commentaries on human rights abuses occurring on FCVs operating in New Zealand waters.3 The resulting ministerial inquiry into FCVs made several recommendations to tighten up their regulation.4
FCVs operating in New Zealand waters have been implicated in numerous serious fisheries offences, resulting in prosecutions, convictions and forfeiture of fishing vessels and equipment. These forfeitures have had a significant impact, not only on shipowners and charterers, but also on creditors with interests in the vessel, such as ship mortgagee banks, crew members and suppliers. Unsurprisingly, this has resulted in several reported cases of such parties applying for forfeiture relief and protection of their interests. In the most recent of these, Hartono v Ministry for Primary Industries,5 the New Zealand
* Deputy Director, Centre for Maritime Law, National University of Singapore.
1. Report of the Ministerial Inquiry into the Use and Operation of Foreign Charter Vessels (Ministry of Agriculture and Forestry, Wellington, 2012) (Report), 4, available at www.mpi.govt.nz/dmsdocument/4008-report-of-the-ministerial-inquiry-into-the-use-and-operation-of-foreign-charter-vessels. For an overview of the New Zealand fisheries management system, see Richard Barnes, Property Rights and Natural Resources (Hart, Oxford, 2009), 357–365.
2. See generally Report, 13–14; Christina Stringer et al, “Labour Standards and Regulation in Global Value Chains: The Case of the New Zealand Fishing Industry” (2016) 48 Environment and Planning A 1910, 1914.
3. See eg Jennifer Devlin, “Modern Day Slavery: Employment Conditions for Foreign Fishing Crews in New Zealand Waters” (2009) 23 Australian and New Zealand Maritime LJ 82; Christina Stringer et al, “Not in New Zealand’s Waters Surely? Labour and Human Rights Abuses aboard Foreign Fishing Vessels”, Working Paper, New Zealand Asia Institute Working Paper Series 11-01, University of Auckland, 2011.
4. Report, 81–92. Since 1 May 2016 FCVs fishing in the New Zealand EEZ have been required to be registered in the New Zealand Fishing Vessel Register to ensure that they are governed by New Zealand employment and health and safety laws: Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014, s.8, amending the Fisheries Act 1996, s.103.
5. [2017] NZSC 117 (Elias CJ, William Young, Glazebrook, O’Regan and Ellen France JJ) (“Hartono SC”).
Case and comment
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