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Court's Opinion:
Factual background
25. The Camouco is a
fishing vessel flying the flag of Panama. Its owner is “Merce-Pesca
(S.A.)”, a company registered in Panama.
................................................................
.......... . . .
27. On 16 September 1999, the
Camouco left the port of Walvis Bay (Namibia) to engage in longline
fishing in the Southern seas. Its Master was Mr. José
Ramón Hombre Sobrido, a Spanish national.
28. On 28 September 1999, at
15:29 hours, the Camouco was boarded by the French surveillance
frigate Floréal in the exclusive economic zone of the
Crozet Islands, 160 nautical miles from the northern boundary
of the zone.
29. According to the procès-verbal
of violation (procès-verbal d’infraction) No.1/99,
drawn up on 28 September 1999 by the Captain and two other officers
of the Floréal, the Camouco was observed, on 28 September
1999 at 13:28 hours, paying out a longline within the exclusive
economic zone of the Crozet Islands by the Commander of the helicopter
carried on board the Floréal. The procès-verbal
of violation further recorded that the Camouco did not reply
to calls from the Floréal and the helicopter, and moved
away from the Floréal while members of the Camouco’s
crew were engaged in jettisoning 48 bags and documents, before
stopping at 14:31 hours, and that one of those bags was later
retrieved and found to contain 34 kilograms of fresh toothfish.
The procès-verbal of violation also stated that six tonnes
of frozen toothfish were found in the holds of the Camouco and
that the Master of the Camouco was in breach of law on account
of:
..........(a) unlawful fishing
in the exclusive economic zone of the Crozet Islands under French
jurisdiction;
..........(b) failure to declare
entry into the exclusive economic zone of the Crozet Islands,
while having six
................tonnes of frozen
Patagonian toothfish on board the vessel;
..........(c) concealment of vessel’s
markings, while flying a foreign flag; and
..........(d) attempted flight to
avoid verification by the maritime authority.
The procès-verbal of violation recorded that the Master
of the Camouco refused to sign it.
30. On 29 September 1999, at
13:05 hours, the Camouco was re-routed and escorted under the
supervision of the French navy to Port-des-Galets, Réunion
[Island], where it arrived on 5 October 1999.
.........................................................................
. . .
32. According to the Application
[by Panama], the Master of the Camouco stated that he was intending
merely to cross the exclusive economic zone of the Crozet
Islands in a South-North direction without fishing there;
that his fishing license expressly prohibited him from fishing
outside international waters; that he had forgotten to declare
the entry of the Camouco into the exclusive economic zone of
the Crozet Islands to the Crozet authorities; that, however,
the entry was declared to the district head of Crozet at 14:17
hours on 28 September 1999; that the six tonnes of toothfish
were caught outside the exclusive economic zone of the Crozet
Islands and that there was no fresh toothfish on board
the Camouco. He disputed the claim that the bag of fish, which
was claimed to have been retrieved by the French authorities,
had been jettisoned by the crew of the Camouco and stated that
the bags [which were] jettisoned by the crew of the Camouco had
contained only garbage.
........................................................................
. . .
34. On 7 October 1999, the Master
was charged and placed under court supervision (contrôle
judiciaire) by the examining magistrate (juge d’instruction)
of the tribunal de grande instance at Saint-Denis. His passport
was taken away from him by the French authorities. The rest of
the crew, except four members who remained on board to see to
the maintenance of the Camouco, left Réunion on 13 October
1999.
........................................................................
. . .
36. In its order of 8 October
1999, the [French] court of first instance at Saint-Paul, having
regard to the facts of the case and the alleged breaches of law
. . . and “in particular in the light of the value of the
vessel and the penalties incurred”, confirmed the arrest
of the Camouco and ordered that the release of the arrested vessel
would be subject to the condition that prior payment be made
of a bond in the amount of 20,000,000 FF in cash, certified cheque
or bank draft, to be paid into the [local French] Deposits and
Consignments Office.
37. In support of its order,
the Court relied upon the following:
...........(a) Article 3 of
Law No. 83-582 of 5 July 1983, as amended, concerning the
regime of seizure and supplementing the list of agents authorized
to establish offences in matters of sea fishing;
..........((b) Articles 2 and
4 of Law No. 66-400 of 18 June 1966, as amended by the Law
of 18 November 1997, on sea fishing and the exploitation of
marine products in the French Southern and.Antarctic
Territories;
...........(c) Article 142 of the
Code of Criminal Procedure.
38. Article 3 of Law No.
83-582 of 5 July 1983, as amended, reads as follows:
...........................................................[[Translation
from French]
...........The competent authority
may seize the vessel or boat that has been used to fish in contravention
of laws and regulations, regardless of the manner in which the
violation is established.
...........The competent authority
shall conduct or arrange for the conducting of the vessel or
boat to a port designated by that authority; it shall prepare
a procès-verbal of seizure and the vessel or boat shall
be handed over to the Maritime Affairs Department.
...........Within a time-limit not
exceeding seventy-two hours after the seizure, the competent
authority shall submit to the judge of first instance [trial
court] of the place of the seizure an application accompanied
by the procès-verbal of seizure in order for the judge
to confirm, in an order made within seventy-two hours, the seizure
of the vessel or boat or to decide on its release.
............Whatever the circumstances,
the order shall be made within six days of the arrest referred
to in article 7 or of the seizure.
............The release of the vessel
or boat shall be decided by the judge of first instance of the
place of the seizure.upon the posting
of a bond, the amount and arrangements for payment of which he
shall decide in accordance with the provisions of article 142
of the Code of Criminal Procedure.
39. Articles 2 and 4 of
Law No. 66-400 of 18 June 1966, as amended, read as follows:
.........................................................
[Translation from French]
.....................................................................Article
2
.......No one may fish and hunt
marine animals, or engage in the exploitation of marine products,
whether on land or from vessels, without having first obtained
authorization.
.......Any vessel entering the exclusive
economic zone of the French Southern and Antarctic Territories
shall be obliged to give notification of its presence and to
declare the tonnage of fish held on board to the chief district
administrator of the nearest archipelago.
....................................................................
Article 4
.......Any person who fishes,
hunts marine animals or exploits marine products on land or on
board a vessel, without having first obtained the authorization
required under article 2, or fails to give notification of entering
the economic zone, or to declare the tonnage of fish held on
board, shall be punished with a fine of 1,000,000 francs and
six months' imprisonment, or with one only of these two penalties.
.......Anyone fishing, in prohibited
zones or during prohibited periods, in contravention of the provisions
of the orders provided for under article 3, shall be subject
to the same penalties.
.......However, the statutory maximum
provided for in the first paragraph shall be increased by 500,000
francs for every tonne caught over and above two tonnes without
the authorization provided for under article 2 or in breach of
the regulations concerning prohibited zones and periods issued
pursuant to article 3.
.......Concealment, within the meaning
of article 321-1 of the Penal Code, of products caught without
the authorization provided for in article 2 or in breach of the
regulations concerning prohibited zones and periods issued pursuant
to article 3 shall be subject to the same penalties.
40. Article 142 of the
Code of Criminal Procedure reads as follows:
.......................................................[Translation
from French]
......When the accused is required
to furnish security, such security guarantees:
......1. the appearance of the
accused, whether under charges or not, at all stages of the proceedings
and for the execution of judgment, as well as, where appropriate,
the execution of other obligations which have been imposed upon
him;
......2. payment in the following
order of:
......... a) reparation of damages
caused by the offence and restitution, as well as alimony debts
when the defendant is being prosecuted
for failure to pay this debt;
..........b) fines.
.......The decision which compels
the defendant to furnish security shall determine the sums assigned
to each of the two parts of the security.
.........................................................................
. . .
41. On 22 October 1999, [vessel
owner] Merce-Pesca and the Master of the Camouco filed a summons
for urgent proceedings before the court of first instance at
Saint-Paul, in order to secure prompt release of items seized
. . . and to seek a reduction of the amount of the bond. In the
summons a complaint was, inter alia, made that the obligation
to fix a “reasonable” bond, as required by articles
73, paragraph 2, and 292 of the Convention, was not complied
with.
42. On 14 December 1999, the
court of first instance at Saint-Paul made an order rejecting
the request. The Court stated: "... it is for the judge
[of this court] before whom the case is heard to set the bond
in application of the rules laid down in article 142 of the Code
of Criminal Procedure, and ... he is not required to give an
account of the considerations on which he based himself both
to secure payment of penalties incurred and to secure the appearance
of the accused in legal proceedings, having regard to the nature
of the facts." An appeal is pending against this order before
the court of appeal (cour d’appel) at Saint-Denis.
Jurisdiction
43. The Applicant alleges
that the Respondent has not complied with the provisions of the
Convention for the prompt release of a vessel or its crew upon
the posting of a reasonable bond or other financial security.
The Respondent denies the allegation.
44. The Tribunal will, at the outset,
examine the question whether it has jurisdiction to entertain
the Application. Article 292 of the Convention sets out the requirements
to be satisfied to found the jurisdiction of the Tribunal. It
reads as follows:
....................................................................Article
292
................................................Prompt
release of vessels and crews
.......1. Where the authorities
of a State Party have detained a vessel flying the flag of another
State Party and it is alleged that the detaining State has not
complied with the provisions of this Convention for the prompt
release of the vessel or its crew upon the posting of a reasonable
bond or other financial security, the question of release from
detention may be submitted to any court or tribunal agreed upon
by the parties or, failing such agreement within 10 days from
the time of detention, to a court or tribunal accepted by the
detaining State under article 287 or to the International Tribunal
for the Law of the Sea, unless the parties otherwise agree.
......2. The application for release
may be made only by or on behalf of the flag State of the vessel.
......3. The court or tribunal shall
deal without delay with the application for release and shall
deal only with the question of release, without prejudice to
the merits of any case before the appropriate domestic forum
against the vessel, its owner or its crew. The authorities of
the detaining State remain competent to release the vessel or
its crew at any time.
.......4. Upon the posting of the
bond or other financial security determined by the court or tribunal,
the authorities of the detaining State shall comply promptly
with the decision of the court or tribunal concerning the release
of the vessel or its crew.
45. Panama and France are both
States Parties to the Convention. Panama ratified the Convention
on 1 July 1996 and the Convention entered into force for Panama
on 31 July 1996. France ratified the Convention on 11 April 1996
and the Convention entered into force for France on 11 May 1996.
46. The status of Panama as the
flag State of the Camouco, both at the time of the incident in
question and now, is not disputed. The parties did not
agree to submit the question of release from detention to any
other court or tribunal within 10 days from the time of detention.
[Thus, submission to the local French court did not trump the
UN Tribunal's power to hear this case.] The Tribunal notes that
the Application has been duly made on behalf of the Applicant
in accordance with article 292, paragraph 2, of the Convention
. ...
47. The Tribunal notes further
that the Respondent does not contest the jurisdiction of the
Tribunal.
48. For the aforesaid reasons, the
Tribunal finds that it has jurisdiction to entertain the Application.
Objections to admissibility [If
Panama has properly stated a prima facia claim, it is entitled
to treaty remedies so that the ship can leave port, the Tribunal
can determine if the amount of the security bond ordered by the
French court is not excessive, without regard to whether the
plaintiff nation fails to ultimately prove its case. Quick resolutions
of such issues by the UN court in Germany is designed to facilitate
ships' movements throughout the world's oceans, and to promote
international commerce--which would otherwise be impeded because
of the long delays with national court adjudication of such cases.]
49. The parties disagree on whether
the Application is admissible and it is, therefore, to that question
that the Tribunal must now turn its attention. Article 292, paragraph
1, of the Convention provides for the making of an application
for release based on an allegation that the detaining State has
not complied with the provisions of the Convention for the prompt
release of a vessel or its crew upon the posting of a reasonable
bond or other financial security. Pursuant to article 113, paragraph
2, of the [UN Tribunal's] Rules, if the Tribunal decides that
the allegation is "well-founded” it will order the
release of the vessel and its crew upon the posting of the bond
or other financial security as determined by the Tribunal.
55. The other objection to admissibility
pleaded by the Respondent [France] is that domestic legal proceedings
are currently pending before the [French] court of appeal of
Saint-Denis involving an appeal against an order of the court
of first instance at Saint Paul, whose purpose is to achieve
precisely the same result as that sought by the present proceedings
under article 292 of the Convention. The Respondent, therefore,
argues that the Applicant [Panama] is incompetent to invoke the
procedure laid down in article 292 as “a second remedy”
against a decision of a national court and that the Application
clearly points to a “situation of lis pendens [supposed
cloud on any judgment by the UN Tribunal] which casts doubt on
its admissibility”. The Respondent draws attention in this
regard to article 295 of the Convention on exhaustion of local
remedies, while observing at the same time that “strict
compliance with the rule of the exhaustion of local remedies,
set out in article 295 of the Convention, is not considered
a necessary prerequisite of the institution of proceedings under
article 292”.
...........................................................................
. . .
56. The Applicant rejects the
argument of the Respondent and maintains that its taking recourse
to local courts in no way prejudices its right to invoke the
jurisdiction of the Tribunal under article 292 of the Convention.
57. In the view of the Tribunal,
it is not logical to read the requirement of exhaustion of local
remedies or any other analogous rule into article 292. Article
292 of the Convention is designed to free a ship and its crew
from prolonged detention on account of the imposition of unreasonable
bonds in municipal jurisdictions, or the failure of local law
to provide for release on posting of a reasonable bond, inflicting
thereby avoidable loss on a ship owner or other persons affected
by such detention. Equally, it safeguards the interests of the
coastal State by providing for release only upon the posting
of a reasonable bond or other financial security determined by
a court or tribunal referred to in article 292, without prejudice
to the merits of the case in the domestic forum against the vessel,
its owner or its crew.
58. Article 292 provides for
an independent remedy and not an appeal against a decision of
a national court. No limitation should be read into article 292
that would have the effect of defeating its very object and purpose.
Indeed, article 292 permits the making of an application within
a short period from the date of detention and it is not normally
the case that local remedies could be exhausted in such a short
period.
.........................................................................
. . .
Non-compliance with article 73, paragraph 2,
of the Convention
61. The Tribunal will
now deal with the allegation that the detaining State has not
complied with the provisions of the Convention for the prompt
release of the vessel and its Master upon the posting of a reasonable
bond or other financial security. For the application for release
to succeed, the allegation that the detaining State has not complied
with the provisions of the Convention for the prompt release
of the vessel or its crew upon the posting of a reasonable bond
should be well-founded. In the present case, the Master of the
Camouco has been accused of violating the French laws concerning
fishery resources in the exclusive economic zone of France and
it is not disputed that article 73 of the Convention is thereby
attracted.
62. The Respondent maintains that,
under article 73, paragraph 2, the posting of a bond or other
security is a necessary condition to be satisfied before an arrested
vessel and its crew can be released, that the Applicant has not
posted any bond so far, which it is required to do promptly and
immediately after the arrest of the Camouco and its Master, and
that, consequently, the Application deserves to be dismissed
as the allegation contained therein is not well-founded. In reply,
the Applicant states that the posting of a bond is not a condition
precedent for the submission of an application under article
292.
64. The Tribunal wishes to clarify
that the posting of a bond or other security is not necessarily
a condition precedent to filing an application under article
292 of the Convention. It is pertinent to recall here the Judgment
of 4 December 1997 in the M/V “SAIGA” case, wherein
the Tribunal held [in its first judgment since the treaty entered
into force three years earlier]:
..........64. According to article
292 of the Convention, the posting of the bond or security is
a requirement
..........of the provisions of the
Convention whose infringement makes the procedure of article
292 .........applicable, and not
a requirement for such applicability. In other words, in order
to invoke article
..........292, the posting of the
bond or other security may not have been effected in fact ...
.
..........There may be an infringement
of article 73, paragraph 2, of the Convention even when no bond
...........has been posted. The
requirement of promptness has a value in itself and may prevail
when the ..........posting of the
bond has not been possible, has been rejected or is not provided
for in the coastal ..........State’s
laws or when it is alleged that the required bond is unreasonable.
64[sic]. In its Application,
the Applicant contends that the bond of 20,000,000 FF fixed by
the French court is not “reasonable”. In its final
submissions, the Applicant stated that the amount of a reasonable
bond should be fixed at 1,300,000 FF, from which the value of
the cargo seized (350,000 FF) should be deducted. The Respondent
stated that the maximum total amount of fines which could be
imposed on the Master of the Camouco and on the owners of Merce-Pesca
could be more than 30 million francs and that this figure alone
suffices to show the reasonableness of the amount of the bond
required by the French court.
65. It is, accordingly, necessary
for the Tribunal to determine whether the bond imposed by the
French court of 20 million FF is reasonable for the purposes
of these proceedings.
.........................................................................
. . .
66. In the M/V “SAIGA”
case, the Tribunal stated that “the criterion of reasonableness
encompasses the
amount, the nature and the form of the bond or financial security.
The overall balance of the amount, form and nature of the bond
or financial security must be reasonable.” (Judgment of
4 December 1997, paragraph 82).
67. The Tribunal considers that
a number of factors are relevant in an assessment of the reasonableness
of bonds or other financial security. They include the gravity
of the alleged offences, the penalties imposed or impassible
under the laws of the detaining State, the value of the detained
vessel and of the cargo seized, the amount of the bond imposed
by the detaining State and its form.
.........................................................................
. . .
68. In the present case, the
Tribunal has taken note of the gravity of the alleged offences
and also the range of penalties which, under French law, could
be imposed for the offences charged. The Agent of France indicated
that the maximum penalty which can be imposed on the Master of
the Camouco is a fine of 5 million FF. The Tribunal notes the
statement by the Agent of France that, in conformity with article
73, paragraph 3, of the Convention, the Master of the Camouco
is not subject to imprisonment. According to the Agent of France,
under French law, the company which owns the Camouco can also
be held criminally liable, as a legal person, for the offences
committed by the Master of the Camouco acting on its behalf to
a fine up to five times that imposed on the Master. The Tribunal,
however, notes that no charge has yet been made against the company.
69. Regarding the value of the
Camouco, article 111, paragraph 2(b), of the Rules requires that
the application for the release of a vessel or its crew from
detention contain, where appropriate, data relevant to the determination
of the value of the vessel. However, the value of the vessel
alone may not be the controlling factor in the determination
of the amount of the bond or other financial security. In the
present case, the parties differ on the value of the Camouco.
During the oral proceedings, expert testimony was offered by
the Applicant and not challenged by the Respondent to the effect
that the replacement value of the Camouco was 3,717,571 FF. On
the other hand, the value assessed by the French authorities
for the purposes of the domestic proceedings is 20 million FF
but there is no evidence on record to substantiate this assessment.
Attention is drawn to court orders referred to in paragraphs
36 and 42. The Tribunal also notes that the catch on board the
Camouco, which according to the Respondent is valued at 380,000
FF, has been confiscated and sold by the French authorities.
70. On the basis of the above considerations,
and keeping in view the overall circumstances of this case, the
Tribunal considers that the bond of 20 million FF imposed by
the French court is not “reasonable”.
71. That the Camouco has been
in detention is not disputed. However, the parties are in disagreement
whether the Master of the Camouco is also in detention. It is
admitted that the Master is presently under court supervision,
that his passport has also been taken away from him by the French
authorities, and that, consequently, he is not in a position
to leave Réunion. The Tribunal considers that, in the
circumstances of this case, it is appropriate to order the release
of the Master in accordance with article 292, paragraph 1, of
the Convention.
73. For the above reasons, the Tribunal
finds that the Application is admissible, that the allegation
made by the Applicant is well-founded for the purposes of these
proceedings and that, consequently, France must release promptly
the Camouco and its Master upon the posting of a bond or other
financial security as determined in paragraph 74.
Form and amount of the bond or other financial
security
.........................................................................
. . .
74 [sic]. On the basis
of the foregoing considerations, the Tribunal is of the view
that a bond or other security should be in the amount of 8 million
FF and that, unless the parties otherwise agree, it should be
in the form of a bank guarantee.
.........................................................................
. . .
.....Done in English and in
French, both texts being authoritative, in the Free and Hanseatic
City of Hamburg, this seventh day of February, two thousand,
in three copies, one of which will be placed in the archives
of the Tribunal and the others transmitted to the Government
of the Republic of Panama and the Government of the French Republic,
respectively.
......................................................................P.
CHANDRASEKHARA RAO,
........................................................................................President. |