This was an appeal brought by Master Holdings LLC (the shipowner), Master Liveaboards Ltd (the operator), Pacific Yacht Maritime Service (the local shipping agent), Blue Master Co Ltd, and H, the master of the Marshall Islands-registered yacht French Polynesia Master, concerning the yacht's detention for marine pollution offences, discharge of aggravated polluting substances, endangering the lives of others, and destruction or modification of classified natural areas.

On 31 August 2020, the examining Magistrate ordered the detention at the expense of Master Holdings LLC, and ruled that it could be lifted on delivery of documents certifying that the yacht had been brought up to standard, and the payment of a deposit to cover fines. The Investigative Chamber of the Court of Appeal of Papeete confirmed the detention order on 18 September 2020.

The appellants appealed to the Court of Cassation, arguing that the Court of Appeal's judgment contravened relevant provisions in the French Polynesian Code and Environmental Code, on the basis that it had not been established that the ship was discharging oil in contravention of the MARPOL Convention. Further, the appellants argued that a coastal State was entitled to order the detention of a vessel under art 220 of UNCLOS in accordance with its national law only if there was clear evidence that the vessel had committed a punishable offence under the Convention, and that this offence caused, or was likely to cause, significant damage to the interests of that State. In this regard, the Judges were required to identify the interests affected, and to assess the importance of this interference by examining whether the interests were affected, not only on the basis of available scientific data, but also with regard to the nature of the harmful substance(s) contained in the discharges, as well as their volume, direction, speed and duration of propagation.

Article 220.6 of UNCLOS provides:

Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.

Held: Appeal dismissed.

The Investigative Chamber noted that the judicial investigation related to acts committed in the waters of French Polynesia. The Judges added that it appeared, at this stage of the proceedings, based on the preliminary investigation, the various testimonies, and corroborating evidence, that the French Polynesian Master had indeed, and on several occasions, voluntarily or involuntarily discharged hydrocarbons into the waters of French Polynesia, in particular in the archipelagos of the Marquesas and the Tuamotus. The Chamber, which considered the discharge of hydrocarbons into territorial waters to be established, justified its decision.

Therefore this plea was unfounded, and was inoperative in so far as it referred to the provisions of art 220 of UNCLOS relating to the exclusive economic zone (EEZ) of the coastal State, and not to its territorial sea, where the acts were committed.