Fisheries, Forfeiture Relief and Admiralty

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”. 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). 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. The resulting ministerial inquiry into FCVs made several recommendations to tighten up their regulation. 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, the New Zealand Supreme Court was called upon to examine the forfeiture relief regime in the Fisheries Act 1996, to interpret what constitutes an “interest” in a forfeit vessel, and to examine the relationship between principles of admiralty law and fisheries law.This paper provides a critical analysis of the Hartono decision and highlights the inadequacies of and inconsistencies in New Zealand's forfeiture relief scheme. It concludes that New Zealand's current fisheries forfeiture regime suffers from two fundamental flaws: the lack of any clear and detailed statutory explanation of the relationship between forfeiture and existing and potential admiralty rights in rem; and the radical effect of forfeiture that, in most cases immediately upon conviction, extinguishes all existing rights in the forfeit vessel