6. Experts
An expert is a person with special skill, technical knowledge or professional qualifications whose opinion on any matter within his cognisance is admitted in evidence, contrary to the general rule that mere opinions are irrelevant. It is for the court to decide whether a witness is so qualified as to be considered an expert.
Experts are expensive and don't always form opinions which help the case of those engaging them. However, any case involving technical matters will at least require the assistance of an expert and possibly his evidence.
The first question to ask, therefore, is “Might the advice of an expert assist the prosecution case?” If the answer is “yes” then make sure the correct one is engaged - it is not a good idea to send a navigation expert into a freezer. He/she should also be well briefed as to which matters his/her opinion will be needed upon, although general comments will also be useful.
Always make an estimate of the likely cost before engaging him/her.
The decision to engage an expert might be made at a number of different times. Listed below are some of the types of expert that might be involved in a fishing case, when they might be engaged and for what purpose.
Expert on Fishing Methods - to inspect the seized vessel immediately upon arrival at port; to report on the type and the state of gear; to say how it is normally stowed; to detail evidence of recent use; to explain the general method of use of gear to the prosecutor; to state if the gear on inspection in port is placed differently to that which appears in photographs taken or observations made immediately after boarding; and to explain to a court in detail the method of fishing involved;
Expert on Fish - to inspect the seized vessel as soon as possible and comment upon the state, in particular the freshness, of all fish on board; to identify the species of fish aboard, and total weights; to give opinions on the factors affecting and rate of spoilage of fish in different circumstances;
Engineer - to inspect and report on the vessel's engines; in particular to report if there is any evidence of a recent breakdown or repairs to the vessel's engines, winches, etc;
Freezer Engineer - to inspect and report on the freezing gear; in particular to report if there is any evidence of a recent breakdown or repairs;
Navigation Expert - to give evidence upon how the position of the apprehended vessel was fixed (if he was aboard the patrol vessel); to relate the readings of machines involved, what checks were made thereof, how they work and possible percentage error;
Valuation Experts - to give advice and if necessary evidence upon the value of a seized vessel for bonding purposes, (this would avoid concerns which could arise when a vessel has been released on a bond of $100,000 if on “forfeiture” its real value turns out to be $500,000); and the value of the fish aboard.
Do not be deterred if an expert with the requisite list of qualifications does not exist in your area. Courts will accept the opinion of a witness who shows he has long experience of the matter concerned and is giving a considered opinion. “I've been fixing those engines and ones like them for years and there was nothing wrong with that one!” is perfectly good expert evidence.
Expert evidence can often be used to rebut defence put forward by vessel masters and other potential defendants, (see Common Excuses section).
Ensure that the witness statement of an expert commences with a statement of his/her qualifications and experience.
7. Explanatory Pictures
It is probable that the judge or magistrate trying a fishing case will little or no knowledge of the fishing industry or anything associated with it. All technical matters must therefore be carefully and clearly explained in opening and evidence adduced later to prove them. It is, therefore, worthwhile in such cases to prepare large explanatory diagrams and pictures. These can be used in opening and during the trial to assist witnesses in their descriptions.
e.g., the purse seine method of fishing:- a picture of a purse seiner with the principal parts labelled; four or five diagrams showing the various stages of a set with the operative parts labelled.
B. POWERS OF OFFICERS
The Fisheries Act and supporting regulations will set out who are authorised officers and what their powers are. Ensure that the documents appointing the authorised officers in the case are available, in the proper form and apply to the legislation concerned. It is common to automatically make police officers and masters of government vessels authorised officers for the purposes of fisheries legislation.
Look carefully at the powers given to authorised officers. There are two questions to ask of the evidence of the authorised officer.
Did he have power to do what he did? Does the Act give power to board as of right or on reasonable suspicion/belief of the commission of an offence? Did the officer have power to take samples, seize exhibits, etc? Did he arrest the vessel or “order it to port”? (This will make a difference if it is later decided not to lay charges).
If he didn't, is the ensuing evidence admissible/inadmissible/admissible at the discretion of the judge? In some jurisdictions evidence which is gained unlawfully (e.g. after an illegal search) is inadmissible. There is no discretion in the judge to admit it. In other jurisdictions such evidence might be admissible with the leave of the judge.
A prosecutor should not open or lead evidence which he knows is inadmissible, whose admissibility is subject to the discretion of the judge or to which the defence have given notice it will object.
C. INTERVIEWS WITH DEFENDANTS
Recorded interviews with defendants can be a source of very useful evidence in chief and for cross-examination. They can also prove troublesome to an unwary prosecutor and on occasion damage his case far beyond any probative value that might have been gained from them.
The basic rule is they must be voluntary.
The rules concerning interviews are no different in fisheries cases than in any other types of case. They will vary a little from country to country. Set out below is a checklist of the more important rules:-
Notes:
The absence of one or more of the above - listed points will not necessarily render an interview inadmissible. However, where there is a discretion to admit interviews despite defects in the conduct thereof, it will become increasingly difficult to convince a judge that an interview was voluntary the more and the more serious the defects were.
A prosecutor should always scrutinize the record of interviews with a defendant carefully and ask himself “Can I obtain evidence to show that anything this defendant has said is untrue?” Such evidence will generally greatly strengthen a prosecutor's case.
Remarks made by a defendant other than in a formal interview are generally admissible. Indeed they are often closer to the truth than answers given in a formal interview when the defendant has had time to think out his position. Such remarks might be of great assistance to a prosecution case. However care must be taken in deciding whether or not to lead such evidence, and the following questions should be asked:
were they made at a time when the caution should have already been given?
were they heard by one or more officers (one officer is sufficient to lead such evidence, although he will be uncorroborated on the matter and more open to a “did say/didn't say” argument with the defendant)?
when, if at all, was a note made of the remarks concerned?
was there a likelihood of misunderstanding (e.g. language problems, hearing difficulty, etc.)?
D. INTERPRETERS
A prosecutor should compile a list of names, addresses and telephone numbers of people who are willing to act as interpreters, and the languages they speak. They should, if possible, have a knowledge of technical fishing terms. It will help an interpreter employed for a case if he/she has already sat in court as a spectator and familiarised himself/herself with the procedures and court language.
An interpreter should be independent. His/her function is to accurately translate to the defendant everything said in court and everything said by the defendant to the court. Occasionally a witness will require an interpreter to perform the same tasks for him.
The court interpreter should not, if possible, be the same one that was present for the interview; the latter might, in some circumstances, end up as a witness.
Before the trial commences ensure that the interpreter speaks the same language as the defendant. His/her fees should also be agreed in advance - especially if there is no set court scale of fees.
Notes:
It is possible that only one interpreter for a particular language can be found. In those circumstance he/she will have to be the court as well as the interview interpreter. Where there is no interpreter at all the charges should still be proceeded upon subject to the directions of the court. In both circumstances the difficulty should be openly explained to the court.
A master or other defendant might pretend he knows little or no English when in fact he speaks the language competently. Nearly all radio operators and many masters understand and speak English reasonably well.
Where a language card has been used to question a defendant (usually upon boarding) then, unless otherwise agreed by the defence, the translation of the questions and correctness of the writing should be proved. This will require someone who knows the language and how it is written, (i.e. someone who will probably qualify as an interpreter).
If answers to language card questions have been written, other than in English, these will also have to be translated.
E. COMMON EXCUSES
Listed below are some of the excuses most often put forward by masters of apprehended vessels. Suggestions on ways to counter them have been added.
“My satellite navigation machine wasn't working”
The authorised officer should have checked this on boarding. Every master of a vessel can navigate by other means (e.g. sextant) or he shouldn't be a master. In most fisheries legislation the fact that the defendant didn't know exactly where he was fishing is irrelevant.
“My radar wasn't working”
The way to counter this is the same as (1), save that radar is only useful for position fixing when a “paint” of land or fixed object of known position can be obtained.
“I thought the Fishing Zone only extended for 12/24/100 miles”
This excuse is becoming a rarity. It is generally known and accepted that 200 miles is the distance states can and have claimed. The master of a fishing vessel will know this. Again the defendant's knowledge of his exact position in any event will probably be irrelevant.
“My engine broke down”
This is a very common excuse, especially if a vessel is stationery when first observed. The authorised officer should as a matter of routine upon boarding ask if the engines are working properly and go and check them. An engineer should board the vessel on arrival in port to also check the engines and look for signs of recent repair, whether or not a breakdown has been alleged. A prosecutor should assess if an engine breakdown is relevant.
“My freezers aren't working”
This excuse is used to explain unfrozen fish in freezers. The same comments apply to this excuse as to number 4. The authorised officer should note if there is a quantity of hard frozen and unfrozen or partly frozen fish in the same freezer.
“I have a licence……
but its not on board”
Regulations and licence conditions generally require a copy of a licence to be kept aboard the vessel. The authorised officer should have checked by radio, before boarding, any licence numbers or the like painted on the vessel. If this excuse is raised in court the onus is usually, as a matter of law (statutory or evidentiary), upon the defendant to show he had a licence. It would, in any event, be worthwhile having a witness form the fisheries licensing department available to say “I have searched the register and there is no licence/no current licence issued in respect of this vessel”.
Note: It is not often sufficient to rely on reverse onus of proof in a common law court. It has been found, from practical experience, that the prosecution's reliance on the reverse onus of proof has had a tendency to aggravate the court in that it would then appear that the prosecution does not have a case prepared, but is relying on the defendant to convict him/herself.
but I didn't know it had expired/I thought it had been renewed
Regulations and licence conditions generally require a copy of the current licence to be kept aboard the vessel. Illegal fishing is an offence of strict/absolute liability so even the bona-fide belief that a current licence was held will be no defence if no such licence exists, (see “Law, Strict/Absolute liability”).
“I thought you were pirates”
This excuse is given when a master has failed to stop his vessel when required to do so or taken off at full speed. The patrol vessel or other vessel being used for enforcement purposes should have identified itself by radio, be flying appropriate flags, have enforcement officers in uniform and generally comported itself in an official manner.
F. BONDING AND HOLDING
Check in the fisheries legislation if there is a power to bond/a duty to bond a seized vessel and release it, and seize and sell the fish on board. A prosecutor should not be the person to arrange the bond, although he may be called upon to give advice and possibly argue bonding arrangements in court. The United Nations Convention on the Law of the Sea requires that vessels be released upon deposit of a reasonable bond or security.
Unless there is statutory or regulatory provision otherwise, the value of a bond should be the total of:-
a realistic value of the boat, its catch and all its gear, stores and equipment;
the maximum fine applicable on conviction for the charges laid or to be laid; and
a reasonable figure in respect of prosecution costs.
It may be, in the absence of statutory provision, that a court will order release upon the lodging of a bond to cover (i). A bond to cover (i), (ii) and (iii) should be required of the owners in the absence of any court direction. The most experienced boat value available should be engaged to supply a figure. Boats have a habit of being extraordinarily valuable when first seized yet worth very little when a buy-back price is being negotiated.
Proper arrangements for the lodging of monies, if actually deposited, must be made.
If any part of the boat is required as an exhibit then this should be removed before the vessel is released.
It is not the responsibility of a prosecutor to look after a boat pending a trial. He may however find himself giving advice or appearing in court concerning the matter.
The boat should be kept safely and securely. There are several examples of masters “making a run for it”. If essential parts are removed they must be kept safely and provision made for the emergency moving of the boat if adverse conditions arise (e.g. cyclone, storm). The authorities should ensure there is power to remove parts and be wary of the crew buying or manufacturing replacement parts and “making a run for it”.
Special care must be taken to ensure that any catch aboard does not spoil. Note any statutory powers there are to sell the catch and hold the proceeds of sale pending the court hearing, and powers to dispose of the catch if it is unsaleable.
Masters or crew members will sometimes sabotage the freezing machinery or other parts of a boat. The holding authorities could then be accused of negligence and incompetence in looking after the boat. Those looking after the boat should be advised to keep records of the checks made and to immediately investigate with an expert any damage or malfunction.
G. ANTECEDENTS
The logs, charts and other documents of the seized vessel should be carefully examined. Much of what is recorded will probably be irrelevant. However these documents might give an indication of the vessel's activities prior to seizure and could well be useful in cross-examination, or for rebutting parts of the defence case.
The full antecedents of the defendants should be obtained in the usual way and, if necessary, checks made with other countries.
The “antecedents” of the vessel concerned should also be obtained, and checks made with other countries.
The information obtained might not be usable in court, even when giving antecedents upon a conviction. However, sometimes such checks can reveal important facts, (e.g. in one Solomon Islands case the@ vessel concerned had only weeks before been arrested for illegal fishing in Papua New Guinea waters, forfeited and sold back).
H. VALUES
A court may well ask the prosecutor questions concerning “value”. He should know:-
the value of the vessel, its stores and equipment;
the value of the vessel's gear;
the value of the catch (and its weight);
the value of any bond or security lodged;
the cost of a licence;
the value, scarcity and growing time of the species taken (e.g. giant clam);
the environmental damage of the illegal acts (e.g. dynamiting fish); and
the level of profit realisable from the unlawfully caught fish.
I. THE PRESS
If a foreign fishing vessel is arrested then the local and possibly the international press will be very interested. They will wish to know as much as possible, particularly about any aspects of the incident which will make a “good story”. There is generally no harm in keeping the press informed of events. However, the greatest care must be taken if talking to reporters or issuing press statements.
It is far safer for prosecutors and other lawyers who might be involved in a forthcoming trial not to talk to the press. By doing this there cannot be arguments as to whether remarks have been correctly reported or been distorted. It cannot be suggested that a prosecutor has prejudiced a fair by some injudicious remark. There is a world
of a difference between “the vessel was seized and master arrested for illegal fishing” and “the vessel was seized and master arrested for alleged illegal fishing”.
If press releases are to be made they should be written out and carefully considered before issue. Copies must be kept. The release itself should be restricted to the essential facts, contain no statements of opinion and in no way suggest any potential defendant is guilty or wrongful act has been committed.
After a trial is over the same care should be exercised when talking to journalists. Everyone is entitled to a copy of the judgement and transcripts of the evidence. However, opinions should not be expressed to the press as to the correctness of the verdict or adequacy of the sentence.
The best rule is “when in doubt - say nowt”.
J. LAW
It need hardly be said that a prosecutor must know thoroughly the law relating to a case which he is prosecuting. This includes not only the entirety of the acts and regulations concerned but also broader background matters, (e.g. rules for hot pursuit, the basis of the 200 mile limit, etc) and subsidiary matters, (e.g. licence conditions).
Special attention should be paid in fisheries cases to:-
1. Jurisdiction
A prosecutor must know the provisions in the legislation which make acts which took place beyond the territory and territorial seas of the country offences and which give courts the jurisdiction to hear those charges. The usual method of extending jurisdiction is to make any offence contrary to the fishing legislation committed within the EEZ or committed anywhere if aboard a domestically registered vessel triable in the country’s courts as if that offence had been committed in any place in the country.
The fisheries legislation should also be checked to ensure that proceedings are brought in the right court - Magistrate of High Court, summarily or on indictment/information.
A defence lawyer will always scrutinize legislation in the hope of finding a defect which will result in his client's acquittal or release without the merits of the case being heard.
2. Burden of Proof
Fisheries acts often contain provisions shifting, in specified circumstances, the burden of proof to the defendant e.g. that the defendant did in fact hold a licence. In the absence of statutory provision the standard of proof generally required of a defendant upon whom a burden of proof has been placed is “the balance of probabilities”, and not “beyond reasonable doubt”.
3. Presumptions
Many statutes create presumptions that will arise once a basis of fact is established (e.g. position entered in official log presumed to be place a vessel was at a particular time unless contrary proved). Use such presumptions, but try not to rely solely upon them. Ensure the presumption evidence contains the necessary basis of fact, and be ready to counter evidence or argument which rebuts a presumption.
Some presumptions will be useable even after conviction, (e.g. on forfeiture all fish found aboard a vessel are presumed to have been caught in the commission of the offence unless the contrary is proved).
4. Strict/Absolute Liability [noted to raise awareness - this section may not be pertinent in all jurisdictions]
Many offences created under fisheries acts are ones of strict/absolute liability. Each charge laid must be examined to see if it falls in this category, and argument prepared to support the conclusions reached.
The courts in different jurisdictions approach these offences in two different ways, although all regard them to a greater or lesser degree as negating the necessity for proof of mens rea.
Interpretation 1 - strict and absolute liability are synonymous. If a master is charged-with unlawful fishing all that needs to be proved is that the vessel concerned was fishing within some prohibited area and he is the master of that vessel. It makes no difference whether or not he was mistaken as to his position, area boundaries, etc.
Interpretation 2 - strict and absolute have been given slightly different meanings. An absolute offence is still given the same meaning as it receives under Interpretation 1. However a strict liability offence would admit of a defence if it could be shown by the defendant that he honestly and reasonably believed and had reasonable grounds for believing in a state of facts which, if true, would not be an offence, or he didn't intend to commit an offence and took all reasonable steps to ensure no offence was committed.
The English courts have followed Interpretation I whereas Australian courts have tended to adopt Interpretation 2.
The words “strict” and “absolute” are only labels attached to statutory provisions which are drafted in a particular way. The best approach is to look carefully at the wording of the statute itself in the light of its purpose, the general rules of interpretation and the provisions of any applicable criminal procedure code.
5. International Law
A doctorate in international law is not required to prosecute a fisheries case. However a prosecutor must know the background to, and origins of, the concept of an exclusive economic zone and the quality of, and limitations upon, the exercisable sovereign rights. The meaning of terms such as baseline, territorial sea, internal waters, archipelagic waters should be known. If a bilateral or multilateral treaty is involved then its provisions and interpretations should also be known. The domestic legislation establishing the zone concerned must be available, together with an authentic chart (if such exists) marked with the boundary.
The fisheries acts of some countries forbid the entry of foreign fishing vessels into their EEZ's except for purposes recognised by international law. It would take too long to discuss the purposes for which an entry would be recognised by international law. However on a charge of unauthorized entry it would be for the defendant to put in issue a purpose recognised by international law and for the prosecution to rebut it (unless there is a specific provision shifting the burden to the defendant).
If hot pursuit or cross boundary action is involved, then applicable rules must be known.
6. The Constitution
The vessel involved in the commission of an offence will probably be forfeited upon the conviction of the master or even a crew member. However the owner of the vessel might not be before the court. A prosecutor should check carefully the Constitution of his country to ensure that forfeiture powers are constitutional and are exercised in a way which is consistent with the constitution. The “Deprivation of Property” and “Rights on Trial” sections will probably be the ones relevant to consideration of forfeiture of property.
K. CHARGES
Draft charges with great care-after reading and assessing the evidence and getting to know the law.
There is nothing more embarrassing for a prosecutor than to see a defendant acquitted of Charge A when there was more than enough evidence to convict of Offence B, but it wasn't charged.
The prosecution must prove each element of each charge against each defendant otherwise there will be acquittals.
There are two questions to ask:-
Whom do I charge? and
With which offences?
1. The Defendant
The master of the vessel concerned should always be charged, unless there are very unusual circumstances.
The vessel owner should also be charged, if this can be done, and the legislation so permits. It does give him a locus standi to argue against forfeiture if there is a conviction.
The fishing master and navigator can, if the legislation so permits, be charged, although this would be unusual. It might in certain circumstances be to the prosecution's advantage to have a fishing master or navigator as a defendant.
It is unusual to charge members of the crew. They will probably not be wealthy, have no control over the boat and its operations and genuinely have no idea where they are. Further, it would appear to be unfair to charge one or two crew members and not the others; if all the crew are charged the trial becomes an unwieldy multi-defendant affair. In some jurisdictions the fisheries legislation does not provide for crew members to be charged.
Crew members are sometimes charged if the case against the master is not very strong. This will happen where legislation so allows, and forfeiture is available or mandatory upon conviction of the master or any member of the crew. The master might be acquitted but the main sanction, forfeiture of the boat, is available upon the conviction of the crew member - the crew-member himself only receiving a small fine.
Note:-
Prosecutors should be wary of one set of circumstances in which the usual illegal fishing provisions (“No foreign fishing vessel shall be used for fishing without a licence” together with “where a vessel is so used the master, etc. shall commit an offence”) might cause serious problems.
A master and a crew member could both be charged with illegal fishing and the crew-member has admitted illegal fishing whereas the master has done no more than admit he is the owner of the vessel concerned. There might be some evidence of illegal fishing from the prosecution witnesses but not enough in itself to prove the charge.
At the close of the prosecution the defence could argue the master has no case to answer, and if the trial were to go ahead it would be inviting a conviction of one defendant upon the confession of another. A principle wholly repugnant to the criminal law.
The prosecution could reply it has been proved the vessel has been used for illegal fishing by the general evidence and the crew-member's admission, the master has admitted his position as master and so there is a case to answer.
A court should accept the defence submission - particularly in view of the tenuous nature of the proof and the possibility of a disgruntled crew member wishing to put his master in trouble. If, however, the prosecution submission is rejected a defendant owner or fishing master could argue that a clear and unequivocal admission by a master should not affect him. Further, if the owner were to be acquitted and the master convicted forfeiture of the vessel would evoke a strong protest from the owner.
2. The Charge
The evidence itself will usually suggest the charges that should be laid. It is worth listing all the offences in the fisheries legislation and then checking each in turn against the evidence.
Lesser offences should still be charged even if the evidence clearly reveals serious ones (e.g. a charge of failing to stow gear or unauthorized entry into the EEZ when illegal fishing is the main charge; regulation and licence infringements when a licensed vessel is in a closed area).
Keep clearly in view the potential penalties when deciding upon charges, (e.g. is forfeiture available, will this mean licence cancellation?).
Ensure that each wrongdoing is separately charged and a series of acts do not blur into one charge, (e.g. observed fishing at 6am, 2pm and 6pm on the one day).
Do not be afraid to lay a charge if there are disagreements over the meaning of a section or its applicability. The only way to resolve such disagreements is to argue them before a court and obtain a ruling.
If an authorised officer has been assaulted, obstructed or interfered with in the execution of his duty then charges, whether against the master or crew-members should be laid. This shows that no interference with authorised officers will be accepted, and will also be appreciated by the officers in general. The same approach will apply to such acts as throwing charts overboard, destroying evidence, etc.
It is not the duty of a prosecutor to “charge everything in sight” or “throw the book at a defendant”. However, he should charge all offences reasonably disclosed upon the evidence.
L. BAIL
Terms of bail are generally set on first appearance in court after arrest and charge. The principal purpose of bail is to ensure the attendance of a defendant at his trial. It would be unusual to request that a foreign national be remanded in custody pending trial. However if there is a real risk that the defendant might abscond with or without his boat and crew then a prosecutor should not flinch from asking for a remand in custody - once he has armed himself with good supporting reasons.
Common terms of bail which are imposed are:
PRE-TRIAL CHECKLIST
Committal Proceedings
Check that:-
Indictment/Information
Check witness to be called are all on committal proceedings list. If not, consider notice of additonal witness and serve statement on defence. If defendant's statement at committal proceedings can be rebutted then issue notice of additional witness and serve his statement.
Check exhibits are all on committal proceedings list. If not, issue notice of additional witness to produce exhibit and serve notice and statement on defence.
Review all evidence and check:-
whether there is evidence to prove every charge against every defendant so charged;
Draw up indictment/information.
Serve indictment/information on
Witnesses
Ensure that:-
all witnesses on list have been served, and in good time;
additional witnesses have been served, and in good time; and any exhibits they produce, obtained and labelled;
there are no problems concerning holidays, illness, unexplained reluctance;
Interpreters
Ensure that:-
Exhibits
Ensure that:-
all exhibits are in the possession of the court or prosecution;
witnesses who are bringing exhibits do so (this should not be a usual practice);
documents -
perishable exhibits -
are held properly and are ready to be produced if needed (e.g. from freezer);
proceeds of sale are held, statement of account available.
Certificates
Ensure that:-
they have been served on defence, court if required/advisable
certificate/documents of appointment of authorised officers involved in case have been checked. (Check applies to right act e.g. not certificate of appointment under Continental Shelf Act when prosecution is under Fisheries Act).
Court
Ensure that:-
the clerk of the Court has been informed there might be many spectators.
The Prosecutor
He/she should:-
TRIAL
OUTSIDE THE COURT
Proofing of witnesses
The practice of proofing a witness is usual in some jurisdictions yet unacceptable in others. Proofing is the reading by a lawyer of a witness statement to the witness before going into court. The word proofing might also cover the testing of the witness on some matters, asking for greater detail, referring to points of importance in the statement and asking him about matters not in the statement but which have become relevant.
The danger is that in proofing a witness ideas, answers and even “facts” which were not in his mind or part of his recollection will be wittingly or unwittingly placed there. And even if no such thing is done or intended the possibility hangs in the air. This is especially so when witnesses are proofed part way through the prosecution case. Defence counsel can ask questions such as “Did you talk to the prosecutor this morning? About the evidence you were going to give? Were you asked about matters not in your statement?” The effect is to make everyone in court wonder whether the prosecutor has been “fixing” his witness or “putting ideas in his head”. However honestly and properly the “proofing” was carried out the witness's standing will be harmed and the prosecutor might find a “bad smell” has attached itself to him.
If the master is foreign then it is probable that a diplomatic representative and members of the press will be present. Their reports will not reflect well upon the country as a whole if the possibility of improper behaviour by the prosecutor exists.
There is no reason why witnesses should not be given their statements to read to refresh their memories before going into court – indeed it is generally a good idea. The object of hearing evidence is not to visit a memory test upon some hapless man or woman. In some jurisdictions the prosecutor may read through the evidence with a witness and ask questions about additional matters or to clarify points.
It is therefore important to know exactly what is or is not permitted by way of proofing a witness.
IN COURT
The judge or magistrate should as soon as the court is in session be informed of the necessity for an interpreter and the language to be interpreted. With the consent of the court the interpreter should then be sworn in. It is generally best if he sits beside the defendant.
Expert witnesses may, with leave, remain in court throughout the evidence. There are two reasons for this, first to help counsel when examining in chief or cross-examining upon technical matters, and second so they can hear the evidence of witnesses and not need it repeating to them when they come to give their opinions. It is a matter of discretion for the judge or magistrate whether or not to allow an expert to remain in court - the more controversial are the facts to which he is a witness the less likely it is he will be permitted to remain.
The assistance of an expert might be invaluable when it comes to cross examining upon the defence case. He will be able to tell a prosecutor if the defendant is trying to mislead or lie to the court on technical matters.
Opening
Every prosecutor has his own particular way of opening a case. It is the moment when the court first hears the details of the allegations and the moment when the prosecutor shapes his case. It is also a time for acquainting the court with the terms of art and technical processes which will be referred to in the evidence.
The interest of the court will wane if an opening commences with a detailed examination of the law or some technical matter. A common form of opening which could well be used in fisheries cases is:-
The Story
Tell chronologically in narrative form what happened. Do not refer to the law or deal with technical matters.
The Technicalities
Explain the meanings of terms of art that will be used, the processes and technical matters involved in the case. This can include not only methods of fishing but details of navigation systems, how they work, slang words used in the industry, types of fish, rates at which fish rot, etc. Use pictures, diagrams and other visual aids.
The Law
Refer to the sections charged, the purpose of the act, evidential burdens, presumptions, whether offences are strict/absolute,
The Defendant
Detail charge by charge, defendant by defendant how the evidence fits each defendant and each charge.
Witnesses
Presumptions
If statutory presumptions are to be utilised then ensure that the necessary foundation of fact has been laid by asking witnesses specific questions.
Certificates
Fisheries acts which provide for the proof of facts by certificate generally do not require a witness to produce the certificate in court. It speaks for itself. However if any challenge is made to the certificate or its contents then the maker or someone who can give evidence of the facts in dispute should be called.
Sometimes the veracity or accuracy of the contents of a certificate will not be put in issue until the defence case is presented. If this happens then the court's leave should besought to call or recall a prosecution witness to deal with the matter. The certificate should have been challenged by the defence at the time it was produced to the court.
Experts
After an expert witness is sworn in and has given his name and address he should be asked to give his qualifications and detail his experience in the field in which he professes to be an expert.
Unlike ordinary witnesses, experts can be asked to state opinions upon given sets of facts (e.g. could that fish have been out of the water for more than three days; would this kind of repair require the engine to be shut down/take twenty-four hours; how long had that fish you saw been in that freezer).
Inexperienced Witnesses
Nervousness
Most witnesses called will never or only occasionally have given evidence before. They will be nervous and by reason of that say things they don't mean or know are not correct or omit important matters. Sometimes they might “clam up” and say nothing.
A skilful prosecutor will put his witnesses at ease by asking clear, simple questions on non-contentious matters before dealing with important facts.
A prosecutor will not lightly interrupt a cross-examination. However if he considers a witness is being hectored, intimidated or deliberately confused then a timely intervention to point this out will not be criticised.
Re-examination is a time when confusions and inconsistencies which might have come about in cross-examination can be clarified. A few carefully worded questions can restore the standing of a witness whose reliability, accuracy or veracity has been shaken in cross-examination. Re-examination is not a time for opening new facts or cross-examining one's own witness on evidence he has given which is helpful to the defence.
Notes
If a witness has made notes contemporaneously with or soon after the events in question then he should bring them to court and use them. The prosecutor should ask the witness early on in his evidence when he made the notes and obtain leave from the court for the witness to use them. Notes are for the purpose of refreshing memory and are not meant to be merely read out.
All fisheries and authorised officers should keep notes whenever they are engaged in the execution of their duties. It must be remembered that most fisheries officers and authorised officers are unlikely to have given evidence more than once or twice before.
Dress and Behaviour
Courts usually expect witnesses (as far as possible) to be reasonably dressed - and witnesses often feel more comfortable when dressed formally or semi-formally. This does not mean a witness has to go out and buy a suit, but it does exclude holey T-shirts, torn shorts, greasy shirts. Witnesses should also not be chewing gum, betel nut or anything else in court.
It is worthwhile warning inexperienced witnesses of these matters, so they may come prepared.
Fisheries and other authorised officers should wear their uniforms in court (if there is a uniform).
Exhibits
Always maintain a checklist of exhibits and who is producing them. Tick them off as they are produced. Ensure they are all properly labelled.
If a document, such as a chart, is to be marked by a witness in the course of the trial make sure it is a copy. If another witness is to put on the same mark then another and clean copy should be used - to present the first marked copy to the second witness is, in effect, leading him, or her. If it is necessary, an original may, with the court's leave, be marked.
The Court should be requested to view the seized vessel itself if this will help in deciding the case. It is also useful in giving the judge a look at the circumstances in which the boarding and inspection were made.
Submissions of “No Case to Answer”
The right of a prosecutor to reply to a submission of no case to answer varies from country to country. In some places there is no limit, whereas in others it is limited to replies upon law only.
Most defence lawyers will not try to misrepresent the law or the evidence. However, if this is done at any time, and particularly upon a submission of no case to answer, it should be firmly and accurately corrected.
Arguments which are wrong in law or fact, in the opinion of the prosecutor, should also be firmly and accurately corrected. The following are examples of erroneous suggestions: that an offence requires mens rea when it is one of strict/absolute liability; that radar is not a notorious scientific instrument; that the readings of a satellite navigation machine are not admissible even if cross-checked against recognised scientific instruments; that the word “now” called out to coincide the activities of two witnesses is hearsay.
Cross-Examination
Cross-examination in a fisheries case will be no different from that in other types of cases. It requires the prosecutor to have a thorough knowledge of his own case and evidence and the defence case and evidence. If time permits cross-examination should be prepared point by point. Many books have been written on the art of cross examination.
In the final analysis the effectiveness of a cross-examination is the measure of the skill of the prosecutor. As a broad guide it is better to take a few good points and deal with them rather than embark upon a meandering journey through the defence case. The prosecutor must have in clear focus the points in dispute between the prosecution and defence. He should then cross-examine thereof and “put” the prosecution case to the defence witnesses. Some examples are set out below.
The master does not challenge that he was fishing and had no licence but says he was in international waters,
Cross-examination should be directed towards the question of where the vessel was when it fished:-
if the master says my satellite navigator was not working, he can be asked “then you don't know exactly where you were?” and “you can't refute the authorised officer's evidence when he says you were 11 miles inside the EEZ?”.
if the master says he fixed by sextant at a particular time then calculate the dead reckoned position as adjusted for tides and currents. Cross-examine on this if it puts him inside the EEZ.
if the master says his satellite navigator showed him to be outside the EEZ, put to him that the patrol vessel's satnav after a fix showed him inside the zone/that the boarding party found his satnav not switched off and showed him to be inside the zone.
ask about the rubbed out pencil marks on the chart 11 miles inside the EEZ.
The master admits he was in the zone but denies he was fishing,
Cross-examination should be directed towards all the indications of recent fishing.
why were the scuppers running blood when the boarding party came aboard?
why was the fish that had been lying on the deck for two days still edible raw?
how was it that a third of the fish in the port No.2 freezer were not even cold when the rest were rock solid frozen?
how did the two crew members receive those patterns of superficial cuts on their elbows and knees (clam boats)?
The master says he genuinely thought the fishing limit was 100 miles,
First, decide if this will be a defence.
Second, cross-examination should be directed to his knowledge as a master:-
how much training have you received?
which courses have you been on?
how long have you been a master on fishing vessels?
you have never heard of the 200 mile EEZs in 14 years at sea and four years as a master? that cannot be true?
you have heard of the 200 mile EEZ!? then did you check to see if that applied in the case of this country?
The master agrees he took off at speed when approached by the patrol vessel but says he thought it was a pirate ship or unauthorized vessel.
Cross-examination should be directed to the appearance of the patrol vessel and its crew.
the patrol vessel's name and number were marked?
it flew the correct flags, didn't it?
the crew were all in uniform?
they identified themselves on the radio?
you took off because you wanted to avoid being caught for illegal fishing- isn't that the truth?
Notes:
If an expert witness is called for the defence then questions can be asked to ascertain if he is truly independent or has some link with the defendant, e.g. Does he work for the company that owns the seized vessel? Is the expert's company partly or wholly financed by the company that owns the seized vessel?
Unless there is very strong evidence to show the expert is not putting forward genuine opinions it should not be suggested. However, if there are strong financial or other links with the defendant or the company that owns the seized vessel then this will allow the court to assess how truly independent the expert is.
It may happen that a new field of evidence is opened up during the defence case. If this field of evidence could not reasonably have been forseen and the prosecution can bring or recall witnesses to rebut parts or all of it then a prosecutor should not hesitate to ask leave of the court to bring or recall those witnesses.
Closing Speeches
In making a closing speech the prosecutor should refer to the charges to show how every element of every offence has been proved against each defendant. He should briefly deal with those elements which are agreed or over which there is no serious challenge and then deal in detail with the evidence concerning the disputed matters. In doing so points which the defence are likely to make should be forseen and pre-empted. If there are matters of law in contention the prosecutor must state his submissions thereof and how he says the facts fit those interpretations of the law.
If the case against any particular defendant or on any charge is weak then this should be quickly conceded. The prosecutor should cite what supporting evidence there is and then move to the stronger parts of his case.
Sentence
The prosecutor must have ready and available:
Notes:
If forfeiture is discretionary the court might require a formal request before exercising the power.
There might be circumstances where the court has a discretion to forfeit the vessel, gear and catch, but it would be wiser to only confiscate the gear and catch. For example, if the vessel is worth little or is unsaleable and the cost of repatriating the master and crew will fall on the government, then the vessel, less its gear and catch, can be returned so the master and crew can sail home.
If appeals are contemplated by either the prosecution or defence then application should quickly be made to the court for orders retaining the boat, gear, equipment and catch pending the appeal. Bond or security monies if held should not be paid out, the makers of bonds not released from their obligations and exhibits and perishables preserved.
If the master or crew members are fined then the prosecution should ask for restrictions similar to bail conditions to be imposed until the fines have been fully paid.
now who is responsible for dealing with a forfeited vessel's gear, equipment and catch. Have him standing by even before the end of the trial. Inform him of any forfeiture as soon as it occurs.
Know who is responsible for repatriation of the crew of a forfeited vessel, since they won't be able to pay their own airfares. Inform him of any forfeiture of the vessel as soon as it occurs.
Request any necessary orders for the disposal of exhibits.
POST-TRIAL
1. Keep copies of the charges, synopses of the evidence and judgments.
2. Analyze:-
your own performance, the mistakes and the good points;
the performance of others involved. Discuss with them ways of improving everyone's performance.
4. Ensure the vessel, its gear and catch are returned to the correct person or taken possession of by the correct authority.
5. Check that fines are paid by the time given, and if not institute enforcement proceedings.
6. Ensure that bond or security monies have been returned to the correct person or paid to the correct authority.
7. Arrange for exhibits to be disposed of according to the court's orders.
POSITION FIXING AND NAVIGATION AND LOGS
The position of a vessel at the time of fishing is crucial – was it inside or outside the EEZ, the territorial waters, the closed area?
It is vitally important that the position of the defendant's vessel has been fixed accurately. Even if a vessel is apprehended fishing say fifty miles inside an EEZ the defence may attack the overall reliability of an authoritised officer by testing his navigation expertise, in particular the exact location of the vessel when boarded.
Where an apprehension is made near a border line the defence will strongly attack the accuracy and reliability of the prosecution evidence on position. The master might also allege that he didn't know his exact position because his various navigation instruments were not working. The more astute master will assert he was outside the forbidden area.
Fishing must be carried out in the forbidden area for an offence to be committed. For example, if a longliner is apprehended outside or on the border of a forbidden area but its line runs well into it that would constitute illegal fishing.
POSITION FIXING AND NAVIGATION
Listed below are the principal instruments and other aids used in the fixing of position and navigation of a vessel.
Compass
Magnetic
Every vessel will carry a magnetic compass. It can be used for fixing position by taking bearings off two or more points of land or for running a course.
There are two principal sources of error:-
variation – the earth's magnetic poles do not coincide with the actual poles. The difference between the magnetic pole and the real pole is called the angle of variation. It varies according to position and time. Charts are marked with this angle in degrees east or west, the date on which such angle was calculated and the amount it increases or decreases by each year. Thus by a simple calculation this error can be eliminated.
deviation – the vessel on which magnetic compass is situated will have its own magnetic field which will affect the magnetic compass. The amount by which this field puts the magnetic compass out is known as the angle of deviation. This angle can be ascertained by a procedure called swinging the ship. It should be done approximately once a year. If the vessel is swung a deviation card recording the reading may be posted near the, chart table. In the case of many fishing vessels this is not so, and thus the master will not accurately know his angle of deviation. It is generally only a few degrees, but could be as much as 20 or 30 degrees.
Gyro
This type of compass relies upon gyroscopes (likely very fast spinning tops) and not the magnetic field of the earth. When properly set up dials are adjusted for the latitude and speed of operation. Every vessel will carry a gyro compass.
Every vessel when leaving port should check its gyro compass. Near most ports two large white triangles are permanently set up some distance apart in a prominent place. When the two objects, as viewed from the sea, are directly in line then the gyro compass bearing is noted. The chart for the port in question will show the true bearing of the two objects. Thus any error in the gyro compass can be simply calculated and corrected. This check can be carried out wherever two such triangles are placed – or even by the use of any two suitably placed objects or sharply defined pieces of land which are marked on a chart.
If a gyro compass breaks down out of sight of land then a bearing of the sun called an azimuth can allow it to be set up again with the same accuracy as with land checks. A book of bearings taken to check the gyro might be kept.
The gyro compass can be used for fixing position by taking bearings and will be used for running a course.
Radar
In simple terms radar works by sending out an impulse or wave which is reflected when it hits an object. The reflected wave appears as a dot on a screen and shows the relative bearing and distance of the object.
The impulse is emitted by the scanner. This is either a curved, roughly rectangular metal dish or lattice which is placed near the top of the main mast or a one to two meter beam placed in the same area. It rotates and thus “scans” as it goes around and receives reflections. These reflections are relayed to the radar screen, which is found on the bridge or in the chart room. The radar screen is usually circular but may look like a television. A faint line from the centre to the edge rotates as the scanner rotates. Reflections are “painted” as it rotates and gradually fade until the line passes again. An object appearing
on the screen is referred to as a “paint” or a “blip”. Coastline will appear as a line matching the shape of the coast. The size of the paint will depend upon the distance of the object and its size, although the usual paint is about the size of a pin head. Some small objects will not paint up or only paint when very close. Metallic objects will generally paint up more easily than non-metallic ones.
The range of the radar can be varied so that the distance from the centre of the screen (i.e. where- the ship with the radar is) to the edge is 1,3,6,12,24, or 40 miles etc. depending upon the capability of the radar. “Range rings” can be switched on - these will display on the screen concentric circles; at set distances apart from the centre. A “strobe” can be turned on. This is a screen-displayed dot which goes around. By turning a knob it can be moved outwards or inwards and its distance from the centre read off from a dial. Thus if the distance away of an object must be ascertained the strobe is turned outwards or inwards until it passes over the object; the distance on the dial is then read off.
Radar will show the movements of the radar vessel and any objects painted relatively to each other. Most vessels will use a “grease” pencil to write or mark on the screen objects they wish to track. Thus the course and speed of another vessel might be determined.
Radar can be used to detect vessels, land and objects in the water when visibility is not good. It can be used to monitor the course and speed of another vessel. Heavy seas and heavy rain will interfere with radar by producing a fuzziness on the screen. If another ship is operating its radar in the vicinity it will appear as a “white shadow” passing regularly across a radar screen, or like the “spokes” of a bicycle wheel moving around the screen.
Radar reflectors can be fitted to small boats and buoys. These are simple diamond-shaped metal objects about half a metre across which are fitted to masts. They will show up clearly on a radar screen. A fishing vessel might well use a radar reflector on a buoy attached to a log or at the end of a longline.
Satellite Navigation Machine (Satnav)
Most fishing vessels will carry a satnav machine. This machine displays the latitude and longitude of the vessel on a screen.
A series of satellites orbiting the earth each emit signals. The signal of a satellite as it passes over a vessel is received, identified, the Doppler shift measured and the vessel's position displayed. (Doppler shift can crudely be described as the compression or expansion of a wave caused when a wave emitting object is moving towards or away or relative to a wave receiving object. The amount of shift depends upon the relative speed of movement). The receiver is generally a short cylindrical looking object placed on a mast. It is about two-thirds of metre in diameter.
The accuracy of a position given by a satnav machine upon a satellite pass can be within 100 metres. Satellites will pass over a vessel on average about every 90 minutes, although it can be more or less frequent. The largest gap between satellite passes is approximately 3 hours. Sometimes two or three satellites might pass within the space of an hour.
If a vessel is moving then its position must be ascertained by DRing (dead reckoning). This means the vessel's speed and course and any tidal or current set are calculated and plotted on from the known position. Clearly the longer the time lapse from a satnav fix the less accurate will be the calculated position. A vessel's course and speed and tidal and current set can be fed directly or indirectly into the satnav machine and it will, in the light of that data, continuously update and display the vessel's position. The satnav machine itself will over a period calculate any set from current and tide.
Satnav machines are generally very reliable and can withstand temperatures up to 40–45C. Suggestions of satnav malfunction should be examined closely and treated with some scepticism.
The most likely source of error is in the initial setting up of the machine, when a voyage is commenced. However, the error will probably place the vessel in the wrong ocean rather than merely a few miles away.
Omega
Omega is commonly referred to as VLF-OMEGA standing for Very Low Frequency. Like a satnav machine Omega receives transmissions and converts them into a position. These transmissions come from nine specially constructed stations world wide and some communication stations. The vessel navigator selects the best stations for the area, using the machine itself to determine signal strength, and the machine will then automatically display the position.
Unlike Satnav, Omega gives a continuous position read-out. Omega is more suited to the higher speed operations of aircraft than surface vessels. In the Pacific Omega has a guaranteed accuracy of better than 2.9 nautical miles, a demonstrated accuracy of 0.5 – 1.5 nautical miles, and when coupled with GPS (Global Positioning System - the new and improved Satnav of the 90's) will have an accuracy within 60 metres.
Sextant
This instrument is almost as old as navigation itself. The master of most large DWFN vessels knows how to use a sextant and calculate his position with it, even if he hasn't done so for several years. It is a fairly accurate method of position fixing. The degree of accuracy depends upon the competence of the user. A good operator can expect accuracy within two nautical miles. By use of a split mirror the angle between the
horizon and the sun is measured (the moon, stars or planets can be used). The exact moment of doing this in Greenwich Mean Time is noted. This will usually be done at dawn, noon and dusk. By use of tables and formulae the vessel's position can be ascertained.
Note:
A master who alleges he didn't know where he was when he was fishing because his satnav had broken down should be asked what other methods he used to fix his position - particularly by sextant. A denial of knowledge of how to fix by sextant should be treated with extreme scepticism.
Direction Finding (DF)
All vessels carry DF equipment. Radio stations or beacons which emit radio signals on set frequencies are maintained in many places. They are located by tuning the DF equipment on board a vessel to the frequency of a beacon. The equipment will then show the actual direction of the beacon from the vessel.
In mid-ocean DF is of no use for position fixing and running a course. Its primary use is for running directly to or from the position of a beacon, for example a beacon attached to a fishing buoy or net or line marker.
Echo Sounders/Fish Finders/Sonars
In its simplest terms, an echo sounder is used for measuring the depths of water beneath a vessel. Recordings are made by a sensitive nib on a continuously rolling paper. An echo sounder emits a sound wave which is reflected and received. It is essentially downwards pointing.
Fish finders are basically the same as echo sounders save that they are more sensitive and are capable of detecting and tracing out fish. The fish finder will show when there is a great aggregation of fish beneath the vessel.
Navigational Publications
Charts are, in effect, maps of the sea and coastlines. They show depths of water, shapes of coastlines, reefs, angles of variation, location of navigational lights and what they flash, lines of latitude and longitude and other information.
Courses are drawn and fixes marked on charts. A fishing vessel will mark the position of a log or floating object to which a buoy has been attached. Sometimes its latitude and longitude will just be noted on a piece of paper if illegal fishing is in progress. A longline master or fishing master will generally mark the position of his line when it has been set.
Tide Tables supply the heights of tides and directions of tidal flows, and also the general set of the current in different regions.
Pilot books give a complete range of information for specific ports and restricted areas of waters, (e.g. currents, prevailing winds, hazardous conditions, sunken objects, local navigation rules, port regulations, principal port personnel).
Notices to Mariners (Notams) These are issued at intervals to ensure that mariners are kept informed of changes to charts and other official publications, temporary hazards (e.g. military exercises), new facilities, amended rules and regulations, etc.
Inertial Navigation System
This system is only fitted in aircraft. The exact latitude and longitude of the aircraft is entered at a known point (usually the airport of origin of the flight). The system will detect and measure all movements of the aircraft whether along, side to side or up and down. This information is continually plotted on from the aircraft's known starting point. Thus the position of the aircraft during its journey can be read at all times. It is accurate to within a few miles after many hours of flight.
LOGS
A vessel will keep “logs” or records of its positions, courses and activities. Listed below are the main logs that will be maintained:-
Vessel Log
This is, in effect, the vessel's diary. Recorded in the log will be a day by day and hour by hour record of the vessel's activities, e.g. dates and times of leaving and entering port, courses run, positions fixed at regular intervals, watch officers, weather, fishing activities, unusual events or observations, general activities.
A vessel log will be used trip after trip until it is full. Occasionally masters will maintain a trip log. This is a log for each trip which is handed in to the vessel owners at the end of the trip and a new one commenced for the next trip.
Note:
When illegal fishing is being undertaken a dummy log is sometimes maintained. This purports to show legal fishing, whilst the real log, which is hidden, shows the places where fishing did in fact take place. Authorised officers should always be aware of this possibility. A good prima facie indication that a log is a dummy is its condition, e.g. trip or fishing activity starts on page 1, fresh un-thumbed condition. The real log will be dog-eared, slightly grubby and probably bear coffee stains.
If a log is suspected to be a dummy, but the real one was not found by the authorised officer, cross examination should be directed towards testing its authenticity: e.g, Why does this log commence 11 days after leaving port? Where is the previous one? Why are all the entries in one coloured ink? Check the alleged distances run. Are they all possible? (One Taiwanese dummy log showed positions which meant the vessel was running at 38 knots for 10 hours. The average fishing boat will run at 8 to 12 knots).
Fishing Logs are maintained to record all fishing activity: e.g. all positions where fishing was attempted, time, catch by species and weight, weather, method used etc. This information will be later analyzed by the vessel's company and fishing master for future use. Not all vessels maintain a fishing log, the information being recorded in the vessel log.
Engine Logs record all details of the workings of the engines: e.g. temperatures, pressures, settings for running, breakdown, running maintenance. They are usually kept in the engine room.
An authorised officer should always take possession of the engine log as quickly as possible.
Freezer Logs are used to record the workings of freezers: e.g. when turned on, temperatures at set times, weight of fish held. An authorised officer should take possession of these logs for investigative purposes.
Radio Logs record radio messages sent and received (and overheard). They will often be no more than an exercise book ruled into columns. These logs should be checked carefully. Often a vessel will radio its position at regular intervals to a mothership. The notes of these positions should be examined and also compared with positions entered in the vessel log.
EVIDENCE FROM INSTRUMENTS OF NAVIGATION AND LOGS
Useful evidence can often be acquired from instruments of navigation, their settings and associated records.
For example:
Compass When a vessel is running, the course to steer might be chalked up for the helmsman on a board near the wheel. Was this the course she was steering when approached? Was this the course she was steering when first picked up on the radar - but subsequently turned to another e.g. to suggest transiting a zone as opposed to running straight into it. The autopilot (device for keeping the vessel on a particular course automatically) might reveal the course a vessel was recently following.
Radar set on 1 mile range when vessel boarded a long way from land. Vessels will usually leave radar on 12 mile range for collision avoidance purposes when steaming. A 1 mile setting suggests a small object is being sought for retrieval e.g. fishing buoy. Any plotting marks on the radar must be examined to ascertain what they refer to.
Satellite Navigation Machines A few vessels carry a printer attached to their satnav to record positions. The print-outs will show where the vessel has been and when. This can be compared with the master's version of events. Periods when the vessel remained in a particular area for a long time can be examined.
The satnav should always be checked as soon as possible upon boarding, and notes made of all readings.
Sextant If a sextant is located then it should be checked for signs of recent use. A stiff sextant with a dust film on the mirrors suggests it has not been used recently.
A stop watch by a sextant or on a chart table could suggest recent use of the sextant. The moment the sun is shot the stopwatch is started so the exact time of the shot can be ascertained after returning to the chart room and looking at the chronometer or accurate clock.
Direction Finding The frequency settings of the DF should be noted upon boarding. Is it tuned to the signal from a radio buoy used in fishing?
Echo Sounder/Fish Finder Does the trace show fish? If so, does the time correspond with indications of fishing from other sources? Does the trace show the vessel has searched for and found a sea mount? Fish are often to be found around sea-mounts (steep rising up of the sea floor) and fishing vessels will seek them out.
Occasionally, and after much work, the trace of the bottom on an echo sounder or fish finder can be matched with the depth markings on a chart to give an exact location of a course the vessel has run.
Charts may reveal all kinds of useful evidence e.g. rubbed-out lines, EEZ boundaries faintly drawn in, position of long-line set marked. Deductions might be made from which chart is out on the table. A master will often put charts as he uses them in the top chart drawer, intending to put them properly away later. The order of charts in the drawer working from the top downwards might give some idea of where the vessel has been.
Vessel Log This document should always be scrutinised carefully. Is it genuine? Is it consistent with the charts and other logs? Try to read all crossings out. Does it read consistently: e.g. fixes every few hours generally marked then a period of 2 or 3 days when only a few dubious ones are entered?
Engine Room Log This log might reveal or corroborate by the nature of the entries when a vessel has been fishing e.g. steady speed for a long time, slow speed and then manoeuvring using engines. It might rebut a master's suggestion of engine breakdown.
Freezer Log A steady temperature of say -18C followed by a quick rise in temperature and gradual return to -18C is an indicator that fresh fish might have been placed in the freezer.
Other Indicators Authorised officers should always be alert to and record other navigational indicators: e.g. one side of a vessel is wet from spray and the other relatively dry. Yet on boarding the sea is coming from the dry side. This suggests a recent change of course.
This information has been presented courtesy of the South Pacific Forum Fishery Agency, ICOD and Mr. Robert Coventry.
The sixtieth party ratified the United Nations Law of the Sea Convention in November 1993. The Convention therefore comes into force in November 1994.
The Convention with its 320 articles and nine annexes is too voluminous to reproduce in this document. This annex is meant to serve as a reference for Fisheries Administrators as to provisions of the Convention of particular relevance to fisheries management and the design and implementation of MCS strategies.
It must be noted that there are other provisions which may have application to fisheries in certain cases consequently, Fisheries Administrators are cautioned not to view this list of provisions as exhaustive.
In essence, the Convention provides principles and rules regarding, but not limited
The principal fisheries provisions are on the following pages.
Article 33
Contiguous zone
In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:
prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;
punish the infringement of the above laws and regulations committed within its territory or territorial sea.
The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Article 55
Specific legal régime of the exclusive economic zone
The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal régime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
In the exclusive economic zone, the coastal State has:
sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the water superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
jurisdiction as provided for in the relevant provisions of this Convention with regard to:
the protection and preservation of the marine environment;
other rights and duties provided for in this Convention;
In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.
Article 57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
Article 58
Rights and duties of other States in the exclusive economic zone
In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
Article 61
Conservation of the living resources
The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.
The coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall co-operate to this end.
Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.
In taking such measures the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose national are allowed to fish in the exclusive economic zone.
Article 62
Utilization of the living resources
The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.
The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements and other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.
In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following:
licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry;
determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period;
regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used;
fixing the age and size of fish and other species that may be caught;
specifying information required of fishing vessels, including catch and effort statistics and vessel position reports;
requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data;
the placing of observers or trainees on board such vessels by the coastal State;
the landing of all or any part of the catch by such vessels in the ports of the coastal State;
terms and conditions relating to joint ventures or other co-operative arrangements;
requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research;
enforcement procedures.
Coastal States shall give due notice of conservation and management laws and regulations.
Article 63
Stocks occurring within the exclusive economic zones of two or more coastal States or both within the exclusive economic zone and in an area beyond and adjacent to it
Where the same stock or stocks of associated occur within the exclusive economic zone of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to co-ordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.
Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
Article 64
Highly migratory species
The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex I shall co-operate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall co-operative to establish such an organization and participate in its work.
The provisions of paragraph 1 apply in addition to the other provisions of this Part.
Article 65
Marine mammals
Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.
Article 66
Anadromous stocks
States in whose rivers anadromous stocks originate shall have the primary interest in and responsibility for such stocks.
The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may, after consultations with other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers.
Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this provision would result in economic dislocation for a State other than the State of origin. With respect to such fishing beyond the outer limits of the exclusive economic zone, States concerned shall maintain consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks.
The State of origin shall co-operate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all areas in which such fishing occurred.
States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the State of origin in the harvesting of stocks originating in its rivers.
Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned.
In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall co-operate with the State of origin with regard to the conservation and management of such stocks.
The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations.
Article 67
Catadromous species
A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have the responsibility for the management of these species and shall ensure the ingress and egress of migrating fish.
Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in the exclusive economic zones, harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones.
In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of such fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibilities of the State mentioned in paragraph 1 for the maintenance of these species.
Article 73
Enforcement of laws and regulations on the coastal State
The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.
Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.
Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.
In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.
Article 86
Application of the provisions of this Part
The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.
Article 87
Freedom of the high seas
The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
freedom of scientific research, subject to Parts VI and XIII.
These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
Article 95
Immunity of warships on the high seas
Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.
Article 96
Immunity of ships used only on government non-commercial service
Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any other State other than the flag State.
Article 101
Definition of piracy
Piracy consists of any of the following acts:
any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
any act of voluntary participation in the operation of a ship or of an aircraft with the knowledge of facts making it a pirate-ship or aircraft;
any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)
Article 102
Piracy by a warship, government ship or government aircraft whose crew has mutinied
The acts of piracy, as defined in article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.
Article 103
Definition of a pirate ship or aircraft
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.
Article 104
Retention or loss of the nationality of a pirate ship or aircraft
A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.
Article 105
Seizure of a pirate ship or aircraft
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
Article 106
Liability for seizure without adequate grounds
Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.
Article 107
Ship and aircraft which are entitled to seize on account of piracy
A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
Article 110
Right of visit
Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that:
though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration.
If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
These provisions apply mutatis mutandis to military aircraft.
These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.
Article 111
Right of hot pursuit
The hot pursuit of a foreign ship may be undertaken when competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or contiguous zone if the pursuit has not been interrupted. It not is necessary that, at the time when the foreign ship within the territorial sea or contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.
The right of hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones.
The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.
Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship is within the limits of the territorial sea, or, as the case may be, within the contiguous zone or the exclusive economic zone or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to atop has been given at a distance which enables it to be seen or heard by the foreign ship.
The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
Where hot pursuit is effected by an aircraft:
the aircraft giving the order to stop must itself actively pursue the ship until a ship or another aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit, unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest outside the territorial sea that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption.
The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be claimed solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the exclusive economic zone or the high seas, if the circumstances rendered this necessary.
Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.
Article 116
Right to fish on the high seas
All States have the right for their nationals to engage in fishing on the high seas subject to:
their treaty obligations;
the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and
the provisions of this section.
Article 117
Duty of States to adopt with respect to their nationals measures for the conservation of the living resources of the high seas
All States have the duty to take, or to co-operate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.
Article 118
Co-operation of states in the conservation and management of living resources
States shall co-operate with each other in the conservation and management of living resources in the areas of the high seas. States whose nationals exploit identical living resources, or different living resources in the same area, shall enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned. They shall, as appropriate, co-operate to establish subregional or regional fisheries organizations to this end.
Article 119
Conservation of the living resources of the high seas
In determining the allowable catch and establishing other conservation measures for the living resources in the high seas, States shall:
take measures which are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether sub regional, regional or global;
take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.
Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned.
States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.
Article 120
Marine mammals
Article 65 also applies to the conservation and management of marine mammals in the high seas.
Article 192
States have the obligation to protect and preserve the marine environment.
Article 194
Measures to prevent, reduce and control pollution of the marine environment
States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practical means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.
Article 197
Co-operation on a global or regional basis
States shall co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.
In addition, a list of Migratroy Species:
| 1. | Albacore tuna: | Thunnus alalunga. |
| 2. | Bluefin tuna: | Thunnus thynnus. |
| 3. | Bigeye tuna: | Thunnus obesus. |
| 4. | Skipjack tuna: | Katsuowonus pelamis. |
| 5. | Yellowfin tuna: | Thunnus albacares. |
| 6. | Blackfin tuna: | Thunnus atlanticus. |
| 7. | Little tuna: | Euthynnus alletteratus; Euthynnus affinis. |
| 8. | Southern bluefin tuna: | Thunnus maccoyii. |
| 9. | Frigate mackerel: | Auxis thazard; Auxis rochei. |
| 10. | Pomfrets: | Family Bramidae. |
| 11. | Marlins: | Tetrapturus angustirostris; Tetrapturus belone; Tetrapturus pfluegeri; |
| Tetrapturus albidus; Tetrapturus audax; Tetrapturus georgei; Makaira | ||
| mazara; Makaira indica; Makaira nigricans. | ||
| 12. | Sail-fishes: | Istiophorus platypterus; Istiophorus albicans. |
| 13. | Swordfish: | Xiphias gladius. |
| 14. | Sauries: | Scomberesox saurus; Cololabis saira; Cololabis adocetus; Scomberesox |
| saurus scombroides. | ||
| 15. | Dolphin: | Coryphaena hippurus; Coryphaena equiselis. |
| 16. | Ocean sharks: | Hexanchus griseus; Cetorhinus maximus; Family Alopiidae; Rhincodon |
| typus; Family Carcharhinidae; Family Sphyrnidae; Family Isurida. | ||
| 17. | Cetaceans: | Family Physeteridae; Family Balaenopteridae; FamilyBalaenidae; Family |
| Eschrichtiidae; Family Monodontidae; Family Ziphiidae; Family | ||
| Delphinidae. |
| Type of MCS | Description of Monitoring | Effectiveness of Monitoring of | Amount of Time Observed | Effectiveness of Detection Unlicensed Vessels | Coverage at Sea | Power of Arrest | |||
|---|---|---|---|---|---|---|---|---|---|
| Position | Fishing Gear | Catches Quotas | Days at Sea | ||||||
| By Vessel | Identification by sight and boarding for Inspection | High | High | Medium | High* | Low | High | 300 sq mls per hr | Yes |
| By Air | Limited to rapidly changing identification | High | Low | None | High* | Low | High | 3000 sq mls per hr | No |
| Shore Based | Inspection of catch and fishing gear. Coastal Surveillance | None | High | High | High | Medium | Low | None | Yes |
| Observers on Vessels | Continual observation of activities | High | High | High | High | High | Medium | High | No |
| Vessel Monitoring System | Periodic Monitoring of Vessels Position | High | None | None | High | High | None | Complete for Vessels Fitted | No |
* but depends on frequency of flights or days at sea of monitoring vessel
| Type of MCS | ADVANTAGES | DISADVANTAGES |
|---|---|---|
| By Vessel | Provides at sea verification that fishing gear and catch is legal. Most important to control Transhipment and arrest particularly of foreign vessels | Very costly |
| By Air | Can provide the best coverage for identification of illegal incursion of unlicensed vessels and also of observation of boxes | Very costly. No ability to arrest. No ability to inspect the catch or fishing gear. |
| Shore based | Lowest running costs and low capital costs. Can monitor landed catch and quotas. Only power of arrest in port. | No possibility of monitoring foreign vessels that do not call at port. No possibility of monitoring transhipment. |
| Observers | Can observe all operations. | High cost. Only viable on larger vessels. |
| Vessel Monitoring System | Provides almost real time monitoring of position for fitted vessels and can reduce interception times for enforcement craft. Relatively low capital cost and running costs borne by fishing vessel. | No coverage for vessels not fitted with the system. Involves cost of installation on the fishing vessel. No detection of unlicensed vessels. |
