São Tomé and Príncipe: Sinking of F/V Thunder

• Jurisdiction: South Africa
• Citation: 2017 JOLGA 56
• Pages: 56-74
• Date: 22 May 2019
• Published date: 22 May 2019
• Author: Van Weltzen, P.

56

SÃO TOME AND PRÍNCIPE:

SINKING OF F/V THUNDER

PIETER VAN WELTZEN

Advocaat, Clifford Chance LLP, Amsterdam, the Netherlands

I INTRODUCTION

The single-judge court of first instance (first criminal section) of

the Democratic Republic of São Tomé e Príncipe (STP) convicted

on the 18th of October 2015 three senior officers of F/V Thunder,

a fishing vessel that sank on the 6th of April 2015 in the exclusive

economic zone (EEZ) of STP, for a number of offences.1 As its

name suggests, STP consists of two main islands, São Tomé

and Príncipe, and is located in the Gulf of Guinea. It is a former

Portuguese colony with a legal system that is based on Portuguese

law. It is the second smallest country in Africa by land area (after

Seychelles) and had approximately 194 000 inhabitants in 2016.2

The judgment received considerable international attention

because of the illegal activities in which the Thunder had been

involved (in particular fishing for Patagonian toothfish3 in breach

of applicable fisheries regulations), the well-publicised pursuit of

the vessel by an NGO called ‘Sea Shepherd’ and the circumstances

surrounding the sinking of the Thunder.4 Although the judgment,

more than 300 pages long,5 was welcomed as an important step in

combating illegal fishing operations, it also shows the difficulties

that are faced in finding a legal basis for prosecuting such

1 Tribunal Singular da Primeira Instaˆ ncia – Primeira Secça˜ o Criminal

(unreported case no 19/2015 of 18 October 2015).

2 See UNdata ‘Sao Tome and Principe’ (no date) (available at http://

data.un.org/CountryProfile.aspx?crName=Sao%20Tome%20and%20

Principe, accessed on 8 August 2017).

3 Dissostichus eleginoides.

4 See, for example, T Urbina ‘African Court convicts captain of renegade

ship in illegal fishing case’ New York Times of 12 October 2015 at A1

and T Urbina ‘A renegade trawler hunted for 10 000 miles by vigilantes’

New York Times of 28 July 2015 at A1. The story is also narrated in

E Engdal & K Sæter De Langste Achtervolging Ooit (2017).

5 The judgment is divided into six parts: (i) initial report (1–3); (ii)

factual analysis (3–13); (iii) motivation, including witness statements

(13–36); (iv) legal context (36–275); (v) criminal sanctions (276–299);

(vi) reparations for losses and damages (299–307); and (vi) decision

(307–312).

2017 JOLG 56

© Juta and Company (Pty) Ltd

São Tomé and Príncipe: Sinking of F/V Thunder 57

operations, in particular when the State concerned is neither the

flag State nor a party to the international agreements that formed

the basis of the applicable fisheries regulations. Indeed, the crimes

for which the officers were convicted are not related to the fishing

activities themselves.

As further explained in this case note, the desire to assume

jurisdiction in order to avoid impunity is not without risk: it

could result in a breach of international law. The judgment

therefore shows the need for a more universal approach towards

regulatory and enforcement jurisdiction in the context of illegal

fishing operations, so that more States can prosecute violations of

international fisheries treaties and regulations and do not need to

find one or more other unrelated, possibly illegal, activities for the

assumption of jurisdiction.

II FACTS

The three officers of the Thunder, Mr A (captain of the vessel),

Mr B (chief engineer) and Mr C (second mechanic) had boarded

the vessel in Singapore, together with the rest of the crew.6 At that

time, Nigeria was the vessel’s flag State. The vessel continued its

journey to Batam, Indonesia, where it refuelled in October 2014.7

It then sailed to Antarctica to fish for Patagonian toothfish,8 a

species protected under the 1980 Convention for Conservation of

Antarctic Marine Living Resources (CCAMLR).9 An authorisation

is required for fishing this species in the area of application of

the Convention.10 There was however no authorisation from

any maritime authority to conduct these fishing operations11

which, therefore, violated the rules that apply in the Antarctic

region pursuant to the CCAMLR.12 It was not the first time that

the Thunder had been involved in illegal fishing operations. The

court noted that, in order to hide those operations and to escape

control, the vessel had regularly changed flag State and name. It

was previously called Arctic Ranger, Rubin, Typhoon I, Kuko,

and Wuhan N4 and had been registered in the shipping registers

6 Page 5 para 15 of the judgment.

7 Ibid at 5 para 17.

8 Ibid at 6 para 18.

9 1329 UNTS 48, (1980) 19 ILM 841. See further D Guilfoyle Shipping

Interdiction and the Law of the Sea (2009) chapter 5.5.

10 Page 5 para 10–11 of the judgment.

11 Ibid at 5 para 16.

12 Ibid at 8 para 45.

© Juta and Company (Pty) Ltd