Skip to main content
Title:
The Volga case (Russian Federation v. Australia)
Party:
Australia
Region:
Asia and the Pacific
Europe
Type of document:
International court
Date of text:
December 23, 2002
Data source:
InforMEA
Court name:
International Tribunal for the Law of the Sea
Seat of court:
Hamburg
Justice(s):
Rao Chandrasekhara
Nelson
Caminos
Rangel Marotta
Yankov
Yamamoto
Kolodkin
Park
Engo Bamela
Mensah
Akl
Anderson
Vukas
Wolfrum
Treves
Marsit
Eiriksson
Ndiaye
Jesus
Cot
Shearer
Ballah
Reference number:
List of cases: No. 11
ECOLEX subject(s):
Sea
Fisheries
Abstract:
The Volga was a long-line fishing vessel flying the flag of the Russian Federation. Its owner was Olbers Co. Limited, a company incorporated in Russia. On 7 February 2002, the Volga was boarded by Australian military personnel from an Australian military helicopter. The Respondent stated that calculations indicated that the Volga was in the Australian EEZ when spotted by the Australian military. After being apprehended, the Volga was escorted to the Western Australian port of Fremantle. The Master and crew of the Volga were detained. On 6 March 2002, the three crew members were charged in the Court of Petty Sessions of Western Australia with the offence of using a foreign fishing boat for commercial fishing without there being in force a foreign fishing license authorizing the use of the said boat at that place, contrary to section 100(2) of the Fisheries Management Act 1991. A bail was set by the court. As part of the security for obtaining the release of the Volga and its crew, payment by the owner of one million Australian dollars was required. The Applicant field an application with the International Tribunal for the Law of the Sea and sought a declaration that the Respondent had contravened article 73(2) of the United Nations Convention on the Law of the Sea (UNCLOS) in that the conditions set by the Respondent for the release of the Volga and three of its officers were not permitted under article 73(2) or were not reasonable in terms of article 73(2). Apart from that, the Applicant sought an order that the Respondent release the Volga and the officers and its crew if a bond or security was provided by the owner of the vessel in an amount not exceeding AU$ 500,000 or in such other amount as the Tribunal in all the circumstances considers reasonable. Australia requested the Tribunal to reject the application made by the Applicant. The Tribunal analyzed the question of non-compliance with article 73, paragraph 2, of the Convention. Referring to another judgment, the Tribunal considered that a number of factors were relevant in an assessment of the reasonableness of bonds or other financial security. They included the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form. The object of article 292 of the Convention was to reconcile the interest of the flag State to have its vessel and its crew released promptly with the interest of the detaining State to secure appearance in its court of the Master and the payment of penalties. According to the Respondent, the purpose of the payment by the owner of one million Australian dollars was to ensure that the ship did not "enter Australian territorial waters other than with permission or for the purpose of innocent passage prior to the conclusion of the forfeiture proceedings"; and further to ensure that the vessel “would not be used to commit further criminal offences”. The Tribunal examined whether such a “good behaviour bond” was a bond or security within the meaning of these terms in articles 73, paragraph 2, and 292 of the Convention. The Tribunal noted that article 73, paragraph 2, of the Convention envisaged enforcement measures in respect of violations of the coastal State’s laws and regulations alleged to have been committed. In the view of the Tribunal, a “good behaviour bond” to prevent future violations of the laws of a coastal State could not be considered as a bond or security within the meaning of article 73, paragraph 2, of the Convention read in conjunction with article 292 of the Convention. Therefore, the Tribunal considered that the bond as sought by Australia was not reasonable within the meaning of article 292 of the Convention. The Tribunal found that the Application was well-founded and that, consequently, Australia had to release promptly the Volga upon the posting of a bond or other financial security to be determined by the Tribunal.