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San Nikunau Case – Fact Sheet

21 August 2012

San Nikunau Case – Fact Sheet

Sanford has a proven history of environmental leadership across its fishing operations in New Zealand including:

- The only major seafood company to have maintained ISO 14001 environmental certification across its New Zealand operations for the last 10 years.

- The only major seafood company to have publicly reported on its environmental, social and economic performance against targets it has established to reduce its environmental footprint (and received the Association of Chartered Certified Accountants award for the best Sustainability Report by a Corporate in New Zealand in 2011).

- The only major seafood company to have consistently argued for setting Total Allowable Catch limits for hoki at the lowest of the recommended research options.

- Is credited by bodies such as CCAMLR and the UK Government of operating fishing vessels such as the San Aspiring with an ecological footprint equivalent to the best operated vessels in the world.

- Actively encouraged and supported the certification by the Marine Stewardship Council (MSC) of fisheries such as Hoki and Southern Blue Whiting in New Zealand and Toothfish in the Ross Sea and in South Georgia.

- Pioneered the use of V8 Supercar fuel monitoring technology to apply to its deep sea fishing vessels to increase efficiency and reduce the use of fuel during fishing and steaming operations.

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- Installed fishoil recovery technology onboard three of our deepwater trawl vessels allowing the vessels to make their own bio-fuel.

- Is actively engaged with regulatory authorities in New Zealand in assisting with additional research and reporting requirements on the state of New Zealand fish stocks and a key partner with two other New Zealand companies and the New Zealand Government Primary Growth Partnership to develop a new wildfish harvesting technology that will allow more precise catches and allow fish to be landed fresher and in better condition

However, a recent case involving the company’s Tuna fishing vessel, F/V San Nikunau, which operates in the waters around American Samoa, has raised questions regarding our processes for the correct management and recording of bilge waste on vessels at sea.

Since the verdict in this case was delivered by a Federal District Court Jury in Washington on 16 August, there have been media reports stating that Sanford was found to have discharged oily waste directly into the ocean and the Pago Pago Harbour. This is not what the jury found.

The jury decision in this case is that Sanford did not at any time discharge any oily waste into international waters where the vessel fishes in the Pacific or any oily waste in Pago Pago Harbour. The pollution charges proved in the case related only to the internal transfer of oily bilge waste between compartment areas on the ship being a failure to record these transfers in accordance with a definition given to the jury of “machinery spaces” which is a term used in MARPOL, New Zealand Law and US Law. Prior to this definition the term machinery spaces has never been defined by any of these entities.

The conviction on the seventh count related to the discharge of seawater from a leaking rudder stock, not oily waste into Pago Pago Harbour.

Sanford Limited and the Ship’s Engineer, James Pogue were both defendants in the case.

The company and its crew were operating within their understanding of New Zealand’s regulations as set down by MARPOL, the international treaty that protects against pollution on the high seas.

Given the legal precedent set by this case, Sanford is reviewing its processes in this area for vessels likely to call at ports under US jurisdiction (Sanford does not fish in US waters). It is also calling on Maritime New Zealand to provide a usable and practical definition of this term “machinery spaces” for the operations of its vessels in New Zealand waters.

A summary of the facts of the case and the jury’s verdicts are set out below. The Judge’s Instructions to the Jury and the Verdict are attached to this release.

Sentencing has been set down for 16 November 2012.

San Nikunau Case: Facts

1. The case involved the company’s Tuna fishing vessel, F/V San Nikunau, which operates in international waters in the Pacific and by specific approvals from various Pacific Island state EEZ’s all managed, controlled and supervised by the Western and Central Pacific Fisheries Commission. The case revolved around reporting in the Oil Record Book during port calls to Pago Pago to unload tuna and was brought by the U.S. Attorney's Office for the District of Columbia and by the Environmental Crimes Section of the Environment and Natural Resources Division of the Department of Justice.

2. Sanford Limited was charged on the basis of vicarious liability of certain engine room crew members including the Chief Engineer and the relieving Chief Engineer to properly maintain the San Nikunau vessel’s oil record book in connection with the management and movement of oily wastes ON BOARD the vessel and the obstruction of port state control inspections by the U.S. Coast Guard. The verdicts were returned by a jury in the US Federal District Court in Washington DC following a two week trial.

3. Summary of the Jury’s findings:
Count One: - Conspiracy: Conspiring to knowingly fail to maintain an accurate Oil Record Book.

The Jury found that none of the alleged acts of discharging machinery space bilge waste overboard had been proven by the prosecution. The jury found that only one of 42 alleged ‘overt acts’ against Sanford Limited was proven. That act occurred on 9 July 2010 and related to the San Nikunau entering US navigable waters with a knowingly falsified Oil Record Book. The Jury found that on this count, Sanford Limited was guilty, but Ship’s Chief Engineer, James Pogue was not.

Counts Two (Sanford and James Pogue July 9 2010) & Four (Sanford July 14 2011) : - Charged with violating the Act to Prevent Pollution from Ships (APPS) by knowingly failing to maintain the Oil Record Book.

The Jury found that there had not been any overboard discharges from the ship into the surrounding waters nor a failure to account for them in the Oil Record book as alleged by the prosecution. The guilty verdict on both counts two and four related to a failure in the Oil Record Book to account for the internal transfer only of oily bilge waste onboard the ship only.

Relief Chief Engineer Rolando Vano pleaded guilty to Count Four prior to the trial.

Counts Three (Sanford and James Pogue) & Five (Sanford): Obstruction of US Coastguard Inspection on July 9 2010 and July 14 2011.

The jury found that Sanford Limited and James Pogue did not conceal the overboard discharge of contaminated oily waste in order to obstruct the US Coastguard investigation.

The jury did find that the Oil Record Book was false.

Count Six: Obstruction of Justice

This count alleged that Sanford Limited through the actions of its crew attempted to obstruct justice by telling crew members being interviewed in Pago Pago to not tell the truth.

The jury found Sanford Limited not guilty.

Count Seven: Violation of the Act to Prevent Pollution from Ships.

The Prosecution alleged that the San Nikunau had discharged oily machinery space bilge waste into Pago Pago harbour in American Samoa on 15 July 2011. Whilst the Jury returned a guilty verdict on this count, the prosecution evidence only recorded that seawater coming on board the vessel from a leaking rudder stock was discharged and that there was no evidence of any pollution in Pago Pago harbour. However the jury found that that seawater should have been processed through the oily water separator.

4. The case stemmed from a U.S. Coast Guard investigation that commenced in American Samoa in July 2011. The charges were filed in January 2012 and involved conspiracy, false record keeping in respect to oil waste management on the San Nikunau on the high seas, and one count involving a discharge in Pago Pago, American Samoa.

5. Each count in relation to Sanford Limited carries a maximum penalty of US$500,000.

Sentencing has been set down for November 16 2012.

7. During the trial the US Government withdrew a forfeiture claim against Sanford for the US$24m proceeds from the fish catch covering the period of the allegations.

8. Michael Chalos and Brian McCarthy from the New York based law firm of Chalos O’Connor LLP and Gregory Linsin and Paul Mark Honigberg from the Washington D.C law firm of Blank Rome LLP represented Sanford Limited in the federal court action.

9. Sanford has stated that any decision regarding an appeal in the case will be made following sentencing in November.



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