Section 256 of the Fisheries Act 1996 – Relief Applications from the effects of forfeiture
Section 256 of the Fisheries Act allows people to apply for relief from the effects of forfeiture of ships, fishing vessels and fishing gear where these assets have been forfeited to the Crown where for example the ship and the captains of the ships have been convicted of Fisheries Act offending.
The owners of the vessels can apply for relief from the effects of forfeiture under section 256(1)(b)(i) of the Fisheries Act 10996 and the foreign fishing crew can apply for relief from effects of forfeiture to seek the forfeited property to be sold to pay their unpaid wages under section 256(1)(b)(ii) and third parties who helped the fishing crew with their repatriation back to their home countries and with support such as food and lodging can apply for their costs to be reimbursed from the sale of the forfeited ships under section 256(1)(b)(iii) of the Fisheries Act 1996 at the court where the forfeiture occurred.
The following is the legislation that was applicable at the time of the court case:
Section 256(1) of the Fisheries Act 1996 states:
In this section, unless the context otherwise requires –
Forfeit property means any –
(a) Fish and any proceeds from any sale of such fish; or
(b) Property used in the commission of the offence; or
(c) Quota –
Forfeit to the Crown under any of the sections 255A to 255A: Interest Means, –
(a) in the case of quota, an interest in the quota that is recorded o the Quota Register at the time of forfeiture:
(b) in the case of a foreign vessel, a foreign-owned New Zealand fishing vessel, or a foreign-operated fish carrier,—
(i) ownership; and
(ii) an interest, as determined by the Employment Relations Authority or any court, that any fishing crew have in unpaid wages; and
(iii) an interest in costs incurred by a third party (other than the employer) to provide for the support and repatriation of foreign crew employed on the vessel:
(c) in the case of other forfeit property, a legal or equitable interest in that forfeit property that existed at the time of the forfeiture; but does not include any interest (other than an interest referred to in (b)) in a foreign vessel, a foreign-owned New Zealand fishing vessel, or a foreign-operated fish carrier.
Section 265 has 11 subsections.
The application for relief from the effects of the forfeiture application is made under section 256(3) of the Fisheries Act. Section 256 (4) and (6) provides a process for the hearing of the relief applications in the forfeiture court.
Section 256(2) to (11) states:
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Civil Law Case Example under section 256 Fisheries Act
Hartono & Others (being foreign fishing crew members) v Ministry of Primary Industries and the Sajo Oyang Corporation of Korea
Karen Harding Law prepared and argued litigation as counsel for 30 Indonesian foreign fishing crew members filing an application with full supporting documents and evidence under section 256(1)(b)(ii) Fisheries Act 1996 regarding the crews claim over two forfeited ships to seek relief from the effects of forfeiture in regards to their unpaid wages.
The Crew applied under section 256(3) of the Fisheries Act to the District Court at Christchurch which was the court that had ordered the forfeiture of the foreign vessels Oyang 77 and Oyang 75 after criminal proceedings were concluded against the Captains with the crew claim initially filed in February 2015 and then later in 2017 proceedings were transferred to the High Court at Christchurch. The crew applied to sell the vessels Oyang 77 and Oyang 75 and sought Court Orders under section 256(11) of the Act for the proceeds from the sale of the ships to be used to pay their unpaid wages.
The Oyang 70 had sunk and the Oyang 77 and Oyang 75 vessels that were owned by their employer the Sajo Oyang Corporation (as referred to as Oyang or Sajo) had been forfeited to the Crown (to the Ministry of Primary Industries also known as MPI) due to the Captains of the Oyang 77 and Oyang 75 being convicted in the District Court at Christchurch of fishing crimes in New Zealand waters.
The 30 crew members that Karen Harding law represented had worked in New Zealand on either Oyang 77 or on Oyang 70 that had sunk. None of the crew had worked on Oyang 75 in New Zealand.
The crew’s section 256(1)(b)(ii) unpaid wages relief from effects of forfeiture claim was made over Oyang 77 and Oyang 75.
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The fishing crew all had New Zealand work permits and under section 103(5) of the Fisheries Act 1996 were each entitled to be paid the New Zealand minimum wage per hour for each hour worked and a top-up extra hourly rate as provided for under the Code of Practice for Foreign Fishing Crew 2006.
The following is some information about fishing crew wage entitlements:
Call for New Zealand to Crackdown on Slave Ships
The 30 crew members’ case was that they had only been paid $200 to $290.00 per month for their 2-year contracts on the Oyang 77 and Oyang 70 vessels during the period of employment between 2007 and 2011. There was a substantial amount of unpaid wages claimed as being outstanding. Evidence provided in affidavits that the crew and from expert witnesses including Forced Labour experts from the University of Auckland who and investigated the issue across the fishing industry and there was forensic accounting evidence provided by Accounts that the crew had not been paid their New Zealand wage entitlements.
The crew sought to be paid their unpaid wages out of the sale of the forfeited hips which upon forfeiture were owned by the Crown (by the MPI). Consequently, legal proceedings were brought by the crew against MPI under section 256(1)(b)(ii) of the Fisheries Act, as the Crown at that time owned the property that was sought to be sold, to seek relief from the effects of forfeiture as under forfeiture the Crown gets to keep the ships and its proceeds upon sale.
The owner of the ships through its solicitors in New Zealand also applied to the Court for relief from the effects of forfeiture under section 256(1)(a) of the Fisheries Act and their lawyers fought the crew for the vessels as the owner wanted to redeem the two forfeited vessels (ie to get the legal ownership back into from the New Zealand Crown) and appeared unwilling to pay the unpaid New Zealand wages entitlements unless forced to by the court.
Pending the resolution of the Court case in December 2018 the two forfeited vessels Oyang 75 and Oyang77 were released by MPI back to the fishing company and were removed from New Zealand and were being used for fishing in South American waters upon payment of a bond to MPI.
This lead to a 5-year court battle that went through the District Court at Christchurch between April 2015 and July 2015 on legal arguments about section 256(1)(b) as the fishing company opposed the crew’s application for relief and then there were appeals by both the fishing company and the crew to the High Court at Christchurch in September 2015. The appeal decision judgment of 18 December 2015 from His Honour Justice Nicolas Davidson was in favour of the crew and was then appealed in 2016 by the fishing company to the Court of Appeal which was not decided until 15 May 2017. The Court of Appeal also transferred the section 256 application proceedings over the forfeited Oyang 77 relating to the Oyang 77 crew to the High Court for determination. The Court of Appeal decision did not allow the crew to claim over the forfeited ship (the Oyang 75) that they had not worked on the lead to an appeal by the crew on legal issues about their claim over the forfeited sister ship Oyang 75 to the Supreme Court of New Zealand between June and November 2017 with the judgment in favour of the crew delivered by the Court on 3 March 2018.
Then there were hearings under section 256(3)-(11) in the High Court at Christchurch up until December 2018 when the section 256 case concluded in court.
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The following is a summary of the section 256 case of Hartono v MPI and Sajo Oyang Corporation of Korea through each court with copies of judgments and other notes and submissions starting with the Supreme Court judgments which set out the legislative framework for the proceedings under section 256 of the Fisheries Act 1996 which is the framework for the claim for seeking unpaid wages to be paid out of forfeited property:
1. Supreme Court Judgement and Notes on the Appeal case
Copy of the Leave to appeal submissions filed with the Supreme Court filed on behalf of the crew.
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Supreme Court Judgement on its decision to grant the crew leave to appeal
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Copy of the Appeal Submissions filed with the Supreme Court on behalf of the Crew
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NOTICE OF RESULT (substantive)
Supreme Court Final Judgement allowing the crew’s appeal
The Supreme Court Transcript of the appeal hearing on 14 November 2017.
Below is some photographs of the crew celebrating their win in court.
2. The Court of Appeal case notes and judgment of 15 May 2017 which was overturned by the Supreme Court on 3 March 2018 except for the transfer decision which was consented to by the parties in the litigation.
The crew’s employer appealed the High Court decision of 18 December 2015 to allow the crew to claim wages over the forfeited sister ship the Oyang 77 the Court of Appeal allowed their appeal and said eth crew should bring an in rem claim in Admiralty Law and arrest the Oyng 75 ship after it is redeemed by the employer. This would have added an extra lawyer of courts and required court proceedings in Urqury (spelling ) as the ship was fishing in their waters in South America after the ship had been released on bond by MPI. The crew would have had to engage lawyers in U__________ and it would have been very expensive and complicated involving another third language. Thankfully for the crew, the Supreme Court overturned this Court of Appeal decision as the reality was it was too complicated to bring legal proceedings in a second country that does not speak English and would too expensive to do after a 5-year court battle and the crew would never have gotten their wages.
This is a short video of the summary of the legal argument in support of the crew at the Court of Appeal.
October 11, 20026 – Short Video Summary of Court of Appeal s256 arugment
Copy of the Court of Appeal submissions filed in support fo the Crew:
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Below is the Court of Appeal judgment of 15 May 2017 in favour of the fishing company and MPI which would have let MPI keep the ship the Oyang 75 and return it to the fishing company without paying the wages which we submitted to the Supreme Court was unjust and that decision was overturned by the Supreme Court on 3 March 2017.
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3. The Christchurch High Court appeal case notes and judgments of 18 December 2015 which was upheld by the Supreme Court
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4. The District Court judgments on section 256(1)(b)(ii) and (iii) of the Fisheries Act of April 2015 and July 2015 and case notes.
[ insert two judgements]5. The District Judgments in the criminal cases relating to the conviction and sentencing of the captains of the vessels Oyang 77 and Oyang 75 that lead to the forfeiture of the vessels.
[insert judgment there is four]6. The Final Christchurch High Court decision of December 2018 granted the section 256 relief from forfeiture applications relating to the employer under section 256(1)(b)(i) and the crew under section 256(1)(b)(ii) and sections 256(8) to (11) and issued court orders.
The amount of wages paid to the crew by the fishing company employer and the sum of money paid by the fishing company to the Crown for the redemption of the vessels Oyang 77 and Oyang 75 as ordered by the High Court in the judgment is confidential and subject to sealed High Court Orders.
