Foreign Fishing Vessel Forfeited Fairly

The Federal Court of Australia has dismissed a challenge by the owners of the foreign fishing vessel Volga to have their vessel returned after it was seized and forfeited.

The Volga, allegedly fishing for Patagonian Toothfish, was first sighted in Australia's exclusive economic zone (EEZ) around Heard Island and McDonald Islands in January 2002. After it was spotted again in February 2002 it was boarded by Australian Defence Force personnel and Australian Fisheries officers.

The Russian owners of the Volga, Olbers Co Ltd, challenged the Australian Fisheries Management Authority's (AFMA's) action on the grounds that the boat was not forfeited to the Commonwealth, that the forfeiture provisions of the Fisheries Management Act are unconstitutional and that the boarding and seizure of the boat in the Southern Ocean outside the Australian Fishing Zone (AFZ) was unlawful.

The Australian Fisheries Minister, Senator Ian Macdonald, said that in the epic legal process that Olbers have pursued the Government has shown its determination to uphold Australian law to defeat pirate operations in our territorial waters around Heard Island and McDonald Islands in the Southern Ocean

"This is now the third legal case that the owners of the Volga have bought against the Commonwealth of Australia. On each occasion the Courts have decided that the Australian Authorities have acted correctly," Senator Macdonald said.

He said that the landmark Federal Court decision, by Justice Robert French, upheld the Government's view that foreign vessels illegally fishing in Australian waters would be automatically forfeited to the Commonwealth - and its equipment and catch would also become the property of the Commonwealth.

"I will be seeking further legal advice on whether a number of other foreign fishing vessels sighted in the AFZ over recent years, but not apprehended, might be able to be seized anywhere on the globe on the basis that they are now actually Australian property having been automatically forfeited to Australia on the actual date of the fishing in the AFZ," Senator Macdonald said.

Criminal proceedings against senior members of the vessel's crew are continuing.

The Federal Court's finding follows the decision in the District Court of Western Australia Criminal Jurisdiction in February. That court rejected a permanent stay of proceedings against the crew members who challenged Australia's right to board and apprehend the Volga on 7 February 2002.

The owners of the vessel, through the Russian Federation, took Australia's right to bond and hold the vessel to the International Tribunal Law of the Sea (ITLOS) in Hamburg in late 2002. The Tribunal agreed with the bond amount that Australia had set.

There is a 21 day period for the owners to appeal the decision. The Commonwealth will then be in a position to determine the future of the vessel, which would likely be to scuttle the vessel.

Last year, another foreign fishing vessel apprehended in Australia's fishing zone, the Lena, was sunk off Bunbury, for use as a dive wreck, while the South Tomi will be sunk off Geraldton later this year, destined for a similar fate.

This week Parliament passed legislation to increase the penalties for people found guilty of illegally fishing in the Southern Ocean from $550,000 to $825,000 and to amend the bonding provision on any vessel to include the cost of any hot pursuit.



To view the full text of the judgment, click here.

18 March, 2004

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