Master of Rainbow Warrior convicted but discharged over 2008 Lyttelton Harbour coal ship incident – appeal dismissed

A former Master of the Greenpeace vessel, Rainbow Warrior, had an appeal against his conviction and sentence on charges of breaching the Local Government Act and the Maritime Transport Act dismissed in the High Court on September 22, 2010. 

Environment Canterbury laid the two charges against Captain Derek John Nicholls after he manoeuvred the Rainbow Warrior in Lyttelton Harbour without a pilot onboard and refused to comply with the harbourmaster’s direction that the ship be moved when it was deliberately obstructing another vessel. 

Captain Nicholls pleaded guilty to both charges at a hearing at the Christchurch District Court on June 9, 2010 and was convicted and discharged.

On March 25, 2008, the Rainbow Warrior left its berth in the inner harbour without giving notice to harbour authorities. Captain Nicholls then positioned his ship adjacent to another vessel, the Hellenic Sea, leaving that vessel no room to manoeuvre if it sought to leave the harbour. When the relieving harbourmaster, port representative and police officers boarded the Rainbow Warrior, Captain Nicholls informed them that the vessel was staging a peaceful protest as the Hellenic Sea was loaded with coal bound for China.

A short time later, the regional harbourmaster boarded the Rainbow Warrior and instructed Captain Nicholls to move the Rainbow Warrior to allow the Hellenic Sea to depart on schedule. Captain Nicholls refused. A tug was then used to push the Rainbow Warrior away from the Hellenic Sea, which departed as planned.

In his decision to dismiss the appeal, Justice Panckhurst noted two similar incidents in Australia involving Captain Nicholls. The first incident occurred in 2004, the second in 2005, and on both occasions Captain Nicholls deliberately obstructed the passage of other vessels. Justice Panckhurst also drew attention to Judge Somerville’s comments when Captain Nicholls was sentenced in the District Court, that while he understood his motivations and accepted that his actions were a political protest, Captain Nicholls’ actions were deliberate and unlawful.   

Justice Panckhurst stated that “where there has been previous like conduct born of protest action, a continuation of such conduct cannot be so easily condoned.” Although he agreed with the defendant’s counsel that the gravity of the offending “was not particularly significant”, the deliberate nature of Captain Nicholls’ action and his previous record meant the conviction stood. 

Kim Drummond, Environment Canterbury director regulation, said that the laws regarding pilotage are international and are a fundamental requirement of ship operations in ports.  

“Environment Canterbury has the statutory responsibility to enforce maritime laws in Canterbury ports and harbours. This case is not about Greenpeace or the reasons why Captain Nicholls acted in the manner in which he did, but rather that he broke the law and caused considerable disruption at the port.”

Mr Drummond said that the Lyttelton Port tug was needed to move the Rainbow Warrior aside and help with retrieving the ship’s anchors which became embedded in the sea floor. The Lyttelton Port Company where reimbursed for the use of the tug.