The US-flagged long-line fishing vessel, the FV Adelita, was allegedly detected by an RNZAF Orion aircraft while on the routine patrol in the Cook Islands Exclusive Economic Zone (EEZ) on 22 November 2004. At the time of the sighting, it is claimed, the vessel's gear was not aboard the vessel which indicated that it had been fishing illegally. A second flight the following day located the vessel still inside the Cook Islands EEZ but this time with its gear aboard. Following the overflight the Cook Islands patrol boat Te Kukupa was directed to the location of the vessel and the FV Adelita was directed to Rarotonga on 24 November 2004. The vessel entered Rarotonga on 27 November 2004 under the escort of the Cook Islands Police Patrol boat.

A number of charges have been laid against the defendants under the Marine Resources Act 1989 (the Act) and the vessel has been seized. An application has been made pursuant to s 40 of the Act for the release of the vessel.

Held: Vessel to be released against a bond of NZD 650,000, of which at least half is to be in cash.

Section 40 of the Act provides: 'The Court may, and in the case of a foreign fishing vessel ... shall, on application, order the release of any fishing vessel (together with its fishing gear, equipment, stores and cargo) ... or other items seized under this Act on receipt of a bond or other form of security'. Section 40(2) provides that, in determining the value of the bond or other form of security, the Court 'shall have regard to the aggregate amount of the value of the property to be released, the total maximum fine or fines provided for the offences charged or likely to be charged and the costs the prosecution would be likely to recover if a conviction: were entered, and may set the value at such aggregate amount'.

Reference has been made by counsel to the provisions of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) among other instruments. Article 73.2 of UNCLOS provides that '[a]rrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security'. A number of decisions of the International Tribunal of the Law of the Sea under UNCLOS were cited and they show that the Tribunal, in its exercise of art 73, has regard to similar factors as are set out in s 40 of the Act.

Section 40(3) of the Act requires the Court to have regard to the aggregate of the relevant sums and they are to be stated in the order for release in so far as they are attributable to the heads of assessment. It is clear that the aggregate 'may' be set as the value of the bond which allows discretion to fix what the Court deems a reasonable amount in reflection of the UNCLOS provisions. Section 43(4) gives an implication that the bond may be less as the Court can order the payment of the difference between the bond and the value of the forfeited property if that is larger. An amount in excess of the value of the vessel seems to be unreasonable in itself because it is the release of the vessel which is in issue. It is the bond which replaces the vessel pending the outcome. To include in the bond the maximum fines rather than the likely actual fines extends the purpose beyond the substitution of the vessel. That is all the more so when the fines are to be imposed not on the owner but on the master and the deemed owner who happened to be in the jurisdiction. In the Volga case (The Volga Case (Russian Federation v Australian) Prompt Release (2002)) the amounts proposed in respect of the crew were set aside in the decision as to the amount of the bond. However, in the UNCLOS cases and others cited, the bond has exceeded the value of the vessel. The bond must not prevent the release. Like bail bonds they must not be of an amount which impedes the release of the defendant or the vessel in this case. On the other hand, it should not be of an amount which might encourage the defendant to ignore the proceeding and forfeit the bond as a form of licence fee. There is little evidence as to the financial position of the defendants or the actual owner of the vessel. That there is some asset base is clear if only from the fact that there is available a sum of NZD 450,000 in cash.