EDITORIAL A mixed year for the industry         As we go to press, Christmas is just around the corner. And as we approach the festive season, one has to ask where did 2004 go?  
For most the year has been an interesting one, with the Foreshore and Seabed Bill finally being pushed through the house. Albeit that the devil will be in the detail, and unfortunately we may find that this bill will end up being a gift from heaven for the legal profession to make money from. Unfortunately, because of the foreshore and seabed debate, the Oceans policy got shifted into the back corner of the Beehive. As we end the year, other important legislation, namely the Aquaculture Law Reform Bill, the Marine Reserves Bill and the new Marine Protection Areas Strategy are all proceeding at a rate which once in legislation will effectively destroy the original intent of the Oceans policy. This policy will no longer be able to be the umbrella document it was originally intended to be, as the lawmakers try to fit it around all the recently established legislation. This is a classic example of the cart before the horse, you might say. It defies logic. The unfortunate aspect is that the outcome may have a serious effect on the maritime transport, fishing and aquaculture industries.
On a positive note, it is nice to see that the Ministry of Fisheries was able to bring a successful prosecution against illegal fishing on December 9. This has to be a welcome relief and recognition of the hard work our law enforcement fisheries officers dedicate to the task of trying to combat fish theft. Up until this most recent prosecution, the courts have been throwing out some of the most severe cases of blatant fish thieving because of technicalities or a lack of understanding by the courts of the extent of fish black marketing. The most recent case worthy of note was one of a poaching pastor who was fishing for food under the amateur rules. When fisheries officers approached him in December 2003 he attempted to defend his catch by beating off the officers with an oar. Suffice to say that the court recognised the seriousness of the matter, and did not bow to any thought of religious overtures that he was doing the Lord's work and fishing to feed the needy multitudes.
The year 2004 was a busy one for the Maritime Safety Authority's accident investigation division. But it is unfortunate to note that the officials working for this division are being frequently accused by the industry for their often aggressive investigative approach, with many industry participants questioning the competency of the current MSA's accident investigators. While there may be some truth to the industry's claims, it is nevertheless frequently a thankless task. A number of investigation reports have raised the industry's eyes of late.
One recent case involving the fishing vessel Mako and the Interisland ferry Aratere in a close-quarters situation in the Tory Channel at the entrance to the Queen Charlotte Sounds seems to demonstrate a mixed message approach from the MSA. It would appear that the MSA has found that the Mako was in breach of the rules, contrary to local accepted protocols and operating procedures at Tory Channel. This is of concern to other seafarers and the wider fishing fleet. This subject will no doubt be worthy of further debate in the New Year.
In making these comments, it would be unfair not to point out that the industry's views of the accident investigation division is not a reflection on the rest of the staff of the MSA, who have been busy this past year improving their services to the maritime industry, including the review of the many safety rules and regulations that we operate under.
Elsewhere in the industry, there is a mix of both positivity and shades of gloom. In the deepwater, the hoki quota has been cut, along with the removal of some eight deepwater fishing ships and the subsequent loss of jobs. Closer inshore, the air seems brighter, particularly in the transport and tourism sectors. This upward trend bodes well for the coming year.
In this latest issue we take a look at the weather and its effects on the industry. Up north, we welcome a new purpose-built sportfisher, White Witch, to the fleet. At the other end of the country, a new 160 passenger high-speed catamaran has entered service on the Stewart Island run aimed particularly at increasing tourism. We also take a look at a new arrival from Australia earlier in 2004, when Sounds Legends joined the Marlborough mussel fleet. Also included is the latest in news and views from the industry.
Finally, from the crew of Professional Skipper, we wish you enjoyable reading over the Christmas break. May the jolly old fella in the red suit be most generous to you and yours. Have a safe and enjoyable festive season.

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This story is dedicated to all those who worked and assisted with the restoration of Breum. Breum has now been in New Zealand for almost 10 years. She is most certainly a unique sight, and one automatically starts pondering over her past life and her origins. You don't have to know a lot about boats to know she is not a New Zealand native. I first saw her in Wellington and assumed that she was of Scottish or Irish decent. She eventually appeared on Auckland's Waitemata Harbour months before the first America's Cup event as a charterboat. I made further enquiries about her and eventually made contact with her owner. We arranged to meet on board while she was moored at Westhaven.

When I stepped aboard Breum it was not hard to see that someone had invested a lot of planning, money and hard work to get the 79-year-old workboat into such immaculate condition and in functioning order. I was impressed! The crew directed me to Wayne Tomlinson, her owner, and he welcomed me aboard. He took me on a tour of his ship, and explained to me in detail the massive 18-month rebuilding programme Breum underwent. Breum was purchased in 1995 when Wayne saw her advertised for sale. Wolf Brehm, her German owner, had used her as a nature research vessel in Tonga and eventually set up a wildlife park as a result of this work. She eventually became surplus to his requirements and he had her delivered down to Auckland where she had a better chance of being sold.

Shortly after Wayne's visit to look at Breum, a sale price was negotiated and he took ownership of the vessel. She was sailed down to Wellington and the massive restoration plan was put into place. Breum required a lot of structural work on the hull so she had to be lifted out of the water. A venue was found where she could be restored unimpeded by bad weather. The old Wellington Harbour Board steam crane Hikitia lifted the 50-ton hull on to a leased site on Kings Wharf. A 25m x 9m shed was purchased from the Wellington Airport Authority and re-erected over Breum to form a workshop.

After the initial hull inspection it was found that approximately 40 percent of her planking had to be replaced. Fifty-five millimetre rough sawn oak planking was imported from the New Forest in the United Kingdom. This timber was from 300-year-old trees planted especially for shipbuilding. The planks came in varying widths of 370mm to 650mm and up to 8m long. They were shaped and fitted using butt blocks over locations approved by the Maritime Safety Authority. The complete hull was refastened using handmade wrought iron spikes made by The Village Blacksmith, an old-style smithy in Eastbourne, near Wellington, which made most of the through bolts and fastenings. All the iron fastenings were treaded in hot pitch before use. All of the old caulking was hooked out and all the seams cleaned and red leaded before planking began.

The new outer deadwood in place. New oak plants are in the process of being fitted to freshly painted frames

The labour-intensive task of caulking with oakum began once the hull was tight. To finish the caulking seams off they were then filled with putty and white lead. All the sawn single frames had to be strengthened by sistering the original ones with South African iroko. Another hot and dirty job was chipping the concrete and removing the old lead ballast from between the bilge frames. One of the final structural jobs was to stiffen up the inner side of her keelson between the main mast and for'ard of the engine beds. Once all the internal work was completed, everything was cleaned and coated with traditional red lead paint - all proven traditional boatbuilding practices! Because of all this work Breum had no interior at all. This was redesigned for charter requirements. The theme was to keep her simple and traditional. The run-down 6LX Gardner had been removed at this stage and a new, six cylinder 190hp Yanmar was fitted.

All the stern gear was replaced with suitable equipment to take a 39in variable-pitch MaxProp. The old 240 volt genset was reconditioned and new wiring throughout the boat was also necessary. Most of the old lead was re-caste to make a stepped square outer keel section. Lead slabs were also cast to fit between the sawn frames. As far as her decking was concerned, portions of the covering boards had to be replaced or refitted. All of the teak-over-ply decking was cleaned and re-caulked. The combings and the cabin structure were still in good condition, but the outer brightwork needed major attention. However, a few structural modifications were done. The mizzen mast was cleaned up, but the main mast had to be replaced due to fresh water entering and rotting the neglected spar.

Breum about to go back in the water.

All the rigging and running gear was replaced to near-original specifications under the eye of Wellington rigger Trevor Phillips. Doyle's Sails made about 2000sq ft (185sq m) of new sails. By this stage Breum had the same honest and sound feeling back in her bones that she did as a young lass in the 1920s. She also looked the part. After thousands of hours of work, Wayne's original goal of owning and operating a classic sailing work vessel was a reality.

As he says, sailing Breum is a unique experience. I guess the nearest experience to that would be sailing an old scow of similar size. As a person who has been around workboats all my life, I highly recommend a Breum experience. She is truly unique and I am sure the story of her restoration would more than whet your appetite. Breum was built in an unknown Denmark port in 1925. It is understood that Hartgensen & Sager built her. She was used as a North Sea auxiliary fishing boat and converted to a pleasure craft in Kiel, Germany in 1980. See www.breum.co.nz

Note: In issue 42 of Skipper on Joseph Fell there was a slight mix-up of family names. Towards the end of the story I talked about Joe Fell scaling down his boat works and turning the main part of his business into a motor repair garage. I said his son, Major, took this business over, whereas it was in fact Joe's other son, Rupert Fell, who ran the garage. Another small error was about the Kiwi catching fire and being renamed the Regal. The names were around the wrong way. I regret the errors.  
                                                                                                                          Baden Pascoe

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Her owner and the master were clearly in breach of several provisions of UNCLOS, the United Nations Convention of the Law of the Sea, and the domestic fisheries legislation, and the master was duly incarcerated in a Namibian jail. In defending the master, and grasping at whatever straw was available, I pointed out to the court that article 117 of UNCLOS required that seizures should only be carried out by warships or military aircraft clearly marked and identifiable as being on government service and authorised to that effect. In this case a civilian helicopter was used, and while the soldiers were clad in camouflage uniforms, the master was adamant in his evidence that they could not be clearly identified from the vessel. This defence didn't avert the inevitable forfeiture and fine, but happily the master was released and the forfeiture of the vessel confirmed.

The signature of UNCLOS on December 10, 1982, after 14 years of international negotiation, was accompanied by euphoria among the majority of the delegates then present. Some 22 years later, some of the compromises which resulted in diluted wording of the convention have become evident in practice, and several articles are perhaps showing their age. The drafters did not contemplate the present international environment, where coastal states are increasingly preoccupied with building security to prevent terrorist incursions, preventing the illegal immigration of disadvantaged people into more advantaged countries, the prevention of drug running and other issues.

The recent implementation of the ISPS code has enhanced the focus. This has resulted in perhaps overzealous actions on the part of coastal states in protecting their zones.

What has resulted is that coastal states seek to legislate domestically to overcome the perceived inadequacies of UNCLOS. In the case of the fishing vessel cited earlier, the vessel's owner and master were clearly in contravention of domestic Namibian law, and in the context of the attempt to evade seizure, the use of force was (at a stretch) understandable.

How do UNCLOS and domestic coastal state law interact? UNCLOS introduced the previously unknown term of 'Contiguous zone', which refers to an area 12 nautical miles outside the territorial sea, and thus extends 24 nautical miles from the baseline (the coast). Within the contiguous zone the coastal state may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea, and punish infringement of these laws committed within its territory or territorial seas. There is no jurisdiction within UNCLOS for the prescribing of, or enforcement of laws in respect of infringements committed within the contiguous zone.

The exclusive economic zone, however, is different. Within this zone, article 56 of UNCLOS states that a coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources within the EEZ. There is no reference to customs, fiscal and other jurisdiction within this zone. Elsewhere in this publication is a description of the unpleasant experience of a New Zealand skipper aboard an expedition yacht sailing under the British Virgin Islands flag. His report positioned the vessel outside of the contiguous zone, but within the EEZ of a pugnacious coastal state when it was detained by an unmarked speedboat whose parent vessel remained out of sight. The only indication that it was a military vessel appeared to be a gun-toting soldier wearing what appeared to be a military uniform.

Falstaff's approach in Henry VIII, 'The better part of valour is discretion...' served the master well, and he allowed them on board to make their enquiries.

Was the belligerent officer permitted to act as he did under international or domestic law? Expedition yachts by definition will find themselves and their well-heeled passengers within these jurisdictions more and more often, and should be aware of their rights within these jurisdictions. The bundle of rights possessed by the coastal state are a compendium of international law (mainly contained in UNCLOS) and domestic law enshrined in local legislation. International law is fairly well settled other than minor grey areas caused by the increasing antiquity of UNCLOS. In the main, if a vessel is in innocent passage through a coastal state's EEZ and contiguous zone waters, the coastal state should back off. It must be emphasised, however, that more often than not, the belligerent officer would be clothed with the authority of a domestic law, which may provide them (him) with powers within the EEZ which exceed that which I have described as deriving from UNCLOS.

The fishing vessel I described earlier certainly falls within that category. In the case of the expedition yacht, I would imagine that the domestic law of Nicaragua, Honduras and Guatemala must be particularly sensitive to drug running, and I would be surprised to find that they did not have a search and seizure jurisdiction within the EEZ. Thus, in summary, a foreign-flagged vessel proceeding in innocent passage within the EEZ of a coastal state obeying the 'rules of the road', such as a domestic traffic separation scheme, and which is not causing a threat to the marine environment, has the right to proceed without harassment by enforcement officers of a coastal state.

Domestic law may well extend the powers of a coastal state beyond the 12 mile territorial sea to the contiguous zone and the EEZ. A typical extension of these powers would be found in domestic oil pollution legislation which would allow a coastal state to intervene where its coastline was threatened by pollution. The Prestige disaster off Spain comes to mind. What if the vessel was stopped on the high seas? Article 110 of UNCLOS, in dealing with the right (somewhat quaintly called) to 'visit' a vessel on the high seas, requires that where a warship encounters a vessel on the high seas, it cannot board the vessel unless there are reasonable grounds for suspecting that the ship is engaged in piracy, slave trade or unauthorised broadcasting, or is without nationality. Article 107 speaks about the seizure of the vessel suspected of piracy by warships, military craft or 'other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.'

The unfortunate expedition yacht was clearly not engaged in piracy, nor, one would hope, the slave trade. Nor I suspect were they engaged upon unauthorised broadcasting. Thus the rationale for a 'visit' would not apply in this case. The lack of any clearly identifiable markings on the powerboat that conveyed the local constabulary to the expedition yacht would offend against article 107 and be in breach of the spirit and intent of UNCLOS.

On a practical note, I conclude by suggesting that the British Virgin Islands, the owner of the expedition yacht, pepper the flag state with demands to send a strongly worded note of protest to the authorities of the offending coastal state in order to cool their enthusiasm for harassment of this nature in the future. A pro-active flag which has multiple superyachts seeking the protection of its flag would seek to preserve its revenues generated from vessel registration by being seen to be taking up the cudgels on behalf of the vessel owner. I suspect, however, that it may be too hard and too much bother, in which case an alternative and more proactive flag should be sought.

Peter Dawson is a partner in Oceanlaw New Zealand and holds a masters degree in shipping law. He has a special interest in vessel registation and flagging.

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The last of the Russian ghost fleet has finally left New Zealand shores bound for the scrapyards of India.
They were originally part of a fleet of five vessels which the Crown seized after alleged illegal fishing activities within our 200 mile exclusive economic zone six years ago. After a series of court cases, two of the vessels were released and returned to fishing. The remaining three vessels, the Ksenia Zharkikh, the Osha and the On, all sister ships, have lain idle ever since.

The On and the Ksenia Zharkikh (pictured) were laid up in Lyttelton, and the Osha in Dunedin. The three ships are owned by Xado NZ Ltd, which bought the vessels at undisclosed bargain prices in October 2003. At the time of purchase, maritime surveyors had doubted reports that the vessels could be refitted with a view to entering service as deepwater fishing vessels because of their severely deteriorated state.

Ian Strachan of the brokerage company Workboats New Zealand said that the world price for scrap metal was high, and the vessels would be scrapped in Mumbai on India's western coast shortly. His challenge was to get them from New Zealand to India. Strachan said that the ship's registry would be changed from New Zealand to Tuvalu for the one-way trip to the knacker's yard. He had to get the vessels surveyed as being suitable for a permit to make the voyage.

It was intended that the Osha, manned by a 12-person Indian crew, would depart Dunedin and pick up the tow of the Ksenia Zharkikh off the Canterbury coast for the 35-day voyage to India.

The vessel's sale followed a successful bid by the Norwegian Russia Trade Commission, which served a High Court writ on the vessels on April 2003 to recover a $1.67 million debt from the ships' owners. There were originally five sisterships, two of which were sold several years ago. The fate of the five ships has been the centre of litigation for at least seven years following their arrest and conviction for illegal fishing in 1997. It was these arrests which prompted the forfeiture and their controversial sale by the Crown. This in turn was the focus of the stranding of the vessel's crew in New Zealand as they waited for wage payments and flights home. In turn, this created claims and counter-claims for debts which were pursued through the New Zealand High Court.

Port company officials from both Dunedin and Lyttelton have commented that they are pleased to see the last of them.

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