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UPDATE: Sanford sentenced handed down

fili@samoanews.com

New Zealand based Sanford Ltd., the owner of the fishing vessel San Nikunau, was sentenced today at the federal court, after the company was convicted last August of dumping oil waste into U.S. waters outside American Samoa and of falsifying records.  The conviction is connected to the San Nikunau’s violations while in territorial waters.

Federal court records and a statement by the U.S. Justice Department say Sanford Ltd. was ordered to pay a criminal fine of $1.9 million and pay $500,000 in community service to the National Marine Sanctuaries Foundation for the benefit of the Fagatele Bay National Marine Sanctuary in American Samoa.

Court records say the company is also required to pay a special assessment fee of $2,400.

Besides the criminal fine, U.S. District Court Judge Beryl A. Howell also sentenced Sanford to 36 months probation, according to court records, but any specific conditions of probation were not yet available.

“Today’s sentence makes clear that companies, like Sanford, who deliberately break the law by discharging oil waste into the ocean over a period of years and lie to the U.S. Coast Guard about their activities, will be held fully accountable under U.S. laws,” said Ignacio S. Moreno, who is an assistant attorney general of the USDOJ.

Full details in tomorrow’s edition.

Sanford bars fleet from U.S. waters; says no rationale for $3MIL fine

New Zealand based Sanford Ltd., has issued a directive banning its fishing fleet from entering U.S. territorial waters — including those surrounding American Samoa — except under conditions where the safety of the crew or the vessel is endangered.

This was revealed in the company’s many pages of documents filed with the federal court in Washington D.C. late last month as part of its sentencing statement after a federal jury last August convicted Sanford of dumping oil waste into U.S. waters outside American Samoa, and falsifying records.

The charges stem from visits to Pago Pago over the years by the company’s fishing vessel, San Nikunau, and the company was convicted on six of seven counts. (See Monday’s edition on federal prosecutor’s sentencing recommendation statement.)

In its sentencing statement, Sanford said that following the investigation and prosecution of this case, its insurers, Protection and Indemnity Club, amended the company’s vessel insurance policy to exclude from covering operations in U.S. territorial waters, waters coming within the jurisdiction of the U.S. and its Exclusive Economic Zone (“EEZ”), except for transits of the U.S EEZ from one fishing zone to another.

A footnote in the filing states that Sanford has since issued a directive to its three Pacific tuna vessels prohibiting them from entering U.S. territorial waters except under Force Majeure conditions where the safety of the crew or the vessel is endangered. (‘Force Majeure’ is an event that is a result of the elements of nature, as opposed to one caused by human behavior)

Sanford has now determined as a prudential matter and to further consolidate the operations of all the company’s vessels that are authorized to sail outside New Zealand’s EEZ, to direct those vessels, effective Jan. 1, 2013, not to enter U.S. territorial waters, enter United States ports or transit through the United States EEZ, except under Force Majeure conditions, the footnote states.

This week, Sanford responded to the U.S. Justice Department’s sentencing statement, which states in part that the company be given a $3 million criminal penalty.

Sanford has asked that monetary judgement for all counts upon which it was convicted be not more than $450,000 and pointed out that any probation term in this case “is neither necessary nor warranted.”

The company says the government has argued that its recommended $3 million amount is justified “because it is reasonable that the fine disgorge some amount of profit from Sanford Ltd.”

In fact, the government’s argument is based solely on a reference to the publicly reported annual profits for the entire company in the most recent Annual Report, said Sanford — referring to the government’s claim that Sanford’s annual profits are about NZ$22 million per year (which equates to US$18 million). The government cited news reports from New Zealand on the annual profits.

“...the bald, unsupported contention that it is ‘reasonable’ that the fine imposed by the Court in this case disgorge some of those profits legitimately earned by the company in a time period following the dates of the counts of conviction” are “irresponsible and unprincipled,” said Sanford.

Sanford further argued that the government has offered no meaningful rationale or analysis to support its conclusion of a $3 million monetary judgement.

“It bears no relationship to the statutory factors governing the determination of an appropriate fine amount” under federal law or the factors that must guide the Court in determining “a sentence sufficient, but not greater than necessary, to comply with the purposes” of the statute, said Sanford.

PROBATION

Sanford also said that the government’s arguments to the court to support the imposition of a five-year term of probation with special conditions to include a ban of all Sanford vessels from United States ports, and the requirement for Sanford to develop an Environmental Compliance Plan “have been rendered moot by the information provided” in Sanford’s separate sentencing statement regarding the current areas of operation of the company’s vessels and “the aggressive measures undertaken by the company to strengthen environmental compliance across its fleet.”

JAMES POGUE

As to defendant James Pogue, his attorney submitted last month a sentencing statement seeking probation and a $5,000 fine, without imprisonment or community confinement. Yesterday, his attorney filed a supplemental statement, saying that Pogue’s brother and sister are unable to provide care for their mother, leaving Pogue as the caretaker.

In its sentencing statement, prosecutors say the government agrees with the Probation Office’s calculation of the overall offense level for Pogue. According to U.S. Sentencing Commission Guidelines, the recommended term of incarceration is 27 to 33 months and a fine of between $6,000 and $60,000. The court may also impose a term of supervised release of not more than three years and a term of probation of not more than five years.

Prosecutors say that based on all of the evidence in this case and considering the factors in federal law, the government recommends that Pogue receive a sentence consistent with the Guidelines and recommendation of the Probation Office.



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