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ผู้เขียน หัวข้อ: US orders three men to pay restitution for overfishing  (อ่าน 2476 ครั้ง)
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« เมื่อ: มกราคม 06, 2011, 11:16:23 PM »


The defendants overfished between 1987 and 2001 in South African waters. (Photo: soer.deat.gov.za/Stock File/FIS)

US orders three men to pay restitution for overfishing

SOUTH AFRICA
Thursday, January 06, 2011, 15:00 (GMT + 9)


The US Court of Appeals has mandated that three men pay restitution to South Africa (SA) for having illegally overfished south and west coast rock lobster for several years in the country’s waters.

The defendants -- Arnold Bengis, Jeffrey Noll and David Bengis -- overfished between 1987 and 2001. Bengis is former managing director of Hout Bay Fishing Industries.

All three men had US citizenships when they committed the crime.

The judgment was made this week and comes after an investigation by the Scorpions (now defunct) and the victorious trial against Hout Bay Fishing Industries in South Africa back in early 2002, reports Fin24.

Hout Bay Fishing paid ZAR 12 million (USD 1.8 million) in fines and the state forfeited two of its boats.

After being informed of the offences in 2001 by the SA Government, the US began its own investigations.

The three men were charged in the US and then sentenced to a range of terms of imprisonment and fined USD 13.3 million in 2004, after violating American law through the illegal import of fish.

According to Marius Diemont, a partner at Webber Wentzel focusing in environmental and fisheries law, the result of this case had been enthusiastically awaited worldwide.

"This is the first time that a court has determined that a person can be liable for damages from the overharvesting of fish stocks and sets an important international precedent for overharvesting of natural resources," Diemont clarified.

A US district court will decide the amount of restitution. Restitution of USD 54.9 million -- the cost to renovate the lobster fishery to the level it would have enjoyed without overfishing -- could be granted.

According to the US Court of Appeals, had the three men not concealed their overharvesting, including landing the lobsters at night and fudging the amounts of their catch to South African authorities, those lobsters would have been confiscated and sold by the government. Therefore, the defendants' conduct deprived SA of profits from the sale of the illegally fished lobsters, "money to which it was entitled by law," such that the men committed an offense against property.

Diemont counseled the US Department of Justice (DOJ) on the case’s SA legal portions.

"A key aspect of the case was whether it could be established that SA did have a property interest in the overharvested lobster. The Marine Living Resources Act is silent on who owns fish in South African waters. The position in common law is that fish are 'res nullius' -- not owned by anyone," he said.

"However, we were able to persuade the US Court of Appeals that the moment fish are illegally caught, the state acquires a property right to that fish, as they are subject to seizure and forfeiture," he added.

By Natalia Real
editorial@fis.com
www.fis.com
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