Damage to yacht claimed

Press, 29 June 1983, Page 17

Damage to yacht claimed

A yacht seized by the Customs Department after it had been used for drug running had suffered many thousands of dollars worth of damage when it was left tied up for months at the Westport wharf, Mr Justice Roper was told in the High Court yesterday. Bryan Lowther Williams, a builder of Auckland and owner of the yacht, who was not involved in the drug smuggling, has filed a claim for damages of $70,000 against the Attorney-Gen-eral representing the Customs Department. His Honour reserved his decision on an application by the Attorney-General to have the claim struck out. Mr G. K. Panckhurst appeared for the AttorneyGeneral and Mr C. R. Pidgeon, for Mr Williams. In October, 1978, Mr Williams agreed to sell his 50ft twin masted yacht, Nomad, which had been used for ocean racing, to Brian James Curtis, a self employed property developer of Auckland, for $55,000, which was to be paid in instalments. Only $15,000 of the purchase price was paid by Curtis and the yacht remained registered in Mr Williams’s name. No bill of sale was ever recorded in favour of Curtis, and ownership never passed to him. Curtis was sailing the yacht, which had been renamed Orinda, when it went ashore at Karamea on the West Coast on March 9, 1979. The local constable helped Curtis bring his possessions ashore including a briefcase wrapped in plastic which was later found to contain heroin with a street value of about $2 million. The yacht was sailed to Westport and tied up at the wharf where it remained for a considerable period. In October, 1979, Curtis

was found guilty of importing heroin and was sentenced to life imprisonment but the term was reduced to 16 years on appeal. A notice of seizure of the yacht under the Customs Act was given on April 11, 1979, and that was disputed by Mr Williams on the ground that Curtis had failed to pay $40,000 owing on the vessel and that he (Williams) had not been involved in any way in the importation of the heroin. Curtis took no part in the proceedings, which came before Mr Justice Cook in the Christchurch High Court in March last year. His Honour ruled that Nomad and all the equipment in her had been validly forefeited. On April 14, 1982, the Minister made an order that the yacht should be returned to Mr Williams. At the hearing yesterday, Mr Panckhurst said that the vessel had been returned to Mr Williams. It had been forfeited to the Crown as soon as the yacht was used to import heroin although the formal order had not been made until months later. From the time the illeged act was committed, the yacht became the property of the Crown which could not be sued for negligence of its own property. Because the vessel had been forefeited to the Crown and then returned to Mr Williams, it was implicit that it was returned “as is” and not in the condition it was in when it was forfeited. The Crown submitted that there were no grounds in law for Mr Williams’s claim, said Mr Panckhurst. Mr Pidgeon said that the fact that the forfeiture of the yacht dated back to the time of the offence did not deprive Mr Williams of his

remedy. At all times he was the registered owner of the vessel under the Shipping and Seamen Act. Mr Willliams had never lost a proprietary interest in the vessel. He was entitled to sue as the forfeiture had been waived and he was still owner of the yacht, which was badly damaged by the Customs Department, in the manner in which it was searched and looked after following seizure. The Customs Department was not excused if the acts or omissions of its officers were done “without reasonable care” and it was submitted that they amounted to negligence. Mr Pidgeon submitted that the yacht had been unnecessarily damaged by

the intentional acts of the customs officers who had slashed upholstery, and removed panelling and other fittings. The vessel had been left unguarded at its mooring at Westport and movable fittings had been stolen. It had been allowed to sink at the wharf through filling up with rain water. The engines had been flooded. All that had occurred despite representations made to the Customs Department by both Mr Williams and the Westport Harbour Master who asked that the yacht be protected. “In such circumstances it is unthinkable that no remedy should be available against the party responsible for causing the damage.” Mr Pidgeon said.