The Australian Maritime Safety Authority is preparing to launch legal action in the Federal Court to have containers lost from the YM Efficiency off the coast of Newcastle last year legally recognised as pollution.
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A stand-off is likely to be reached in coming months between AMSA and the insurer of Taiwanese shipping company Yang Ming, which has signalled its belief that the containers should stay on the ocean floor.
Mark Morrow, AMSA's general manager response, says a courtroom date is on the cards should the insurer fail to fund a recovery operation.
In an exclusive interview with the Newcastle Herald, Mr Morrow explained the progress of underwater container inspections, detailed the current and potential costs of the search and recovery operation, and moved to assure the public of AMSA's determination to see the containers removed.
He described AMSA's relationship with Yang Ming and its insurer Britannia P & I as "strained", nine months after the ship lost 81 containers on-route to Port Botany.
"My personal view is, and I met with the insurers Britannia P & I last week, I think their behaviour is nothing short of disgraceful," he said.
"Their approach has been arrogant.
"Their words openly were, 'we're not hiding behind the law but we don't think ... it constitutes pollution'.
"I pushed them on that and said, 'well, why did you think plastic containers on the foreshore constituted pollution but what's left doesn't?'.
"Just because it's out of sight doesn't mean that it doesn't constitute pollution.
"It's that whole thing about does it pass the pub test of what people think.
"It's not just about the fishermen who use the area and the environment, it's the social aspects and how society views pollution today in the marine environment.
"A lot of that load that's down there ... is plastic based, it will break up into micro plastics and cause more damage."
Mr Morrow said legal action was required to class the containers as pollution.
"We say that it constitutes pollution under the definition, they're going to force us to take that to court and have a direction made," he said.
The ongoing inspection of containers, which was instigated by AMSA after Yang Ming failed to begin recovery activities, has reached a cost of about $500,000.
Mr Morrow said Yang Ming's insurers have been reluctant to pay for the costs of the search, with two outstanding invoices only paid after the Newcastle Herald approached Aus Ship.
"AMSA is pleased that Yang Ming and their insurers have paid the currently outstanding invoices for the ROUV operation and trusts this means they will continue to cover all costs associated with the removal of the remaining containers from the ocean," an AMSA spokesperson said afterwards.
"The local community deserves certainty that Yang Ming will fulfil their obligations to clean up the mess they have made."
Mr Morrow estimated the cost of retrieving containers as a $10 to $50 million operation, depending on how many can be removed.
"AMSA sees that it has an obligation to act on that and we'll take whatever steps are necessary to fund that clean up," he said.
"But we'll consult with the industry about the best way to do that because we're concerned we could potentially worsen the pollution situation if we try and move some of those containers.
Our view is ... you put it there, you move it.
- Mark Morrow, Australian Maritime Safety Authority
Yang Ming Marine Transport Corporation recorded revenues of more than $5.9 billion in 2017. It is one of the biggest shipping companies in the Asia-Pacific region.
"I'll bring whatever pressure I can to bear on them in terms of their responsibility to clean up, including whether AMSA has sufficient powers to impact their capacity to trade in Australia," Mr Morrow said.
"We're moving on that now as quickly as we can, despite the lack of commitment from the insurers and the ship owners."
A report is being prepared for AMSA to determine the cost and logistics of removing containers and is expected to be finalised next month.
A spokesperson for Aus Ship, the Australian representatives of Yang Ming and Britannia P & I, said Yang Ming was "committed to finding all of the containers and removing them where it is safe and practical to do so".
"Yang Ming acknowledges there are containers which are too deep to safely retrieve.
"Deep sea photography indicates that these containers have already been covered by significant sediment, and, expert advice is that with time, they will be rendered completely inert.
"Yang Ming believes that the real risk to the environment is attempting to lift the containers out."
Commercial Fishermen's Co-Op manager Robert Guata says the sunken containers have had a significant impact on fishing, including financial losses and reduced use of productive grounds.
Mr Guata and commercial fishermen met with the Australian Maritime Safety Authority at Wickham in recent weeks to be updated on the progress of the authority's search to locate and inspect the lost containers.
A sonar survey across 422 square kilometres has been followed up with inspections using a remotely operated underwater vehicle (ROUV), which has confirmed the location of 42 containers - another 35 remain missing while four either washed ashore or were found in shallow waters.
"That area is the ground that they work on at specific times of the year to catch one of their major species," Mr Guata said.
"We're down about $50,000 in turnover just from one species from that ground that we can fairly accurately quantify. Just for Tiger Flathead, we're down about fifty grand in catch.
"That's not including the other species but that's the main target species of that area."
After the container incident last June, fishermen initially avoided the grounds because of safety concerns.
"They did abandon it for the first three or four months because they weren't confident at all," Mr Guata said.
"They weren't comfortable going there.
"They then started to work a bit of the area because they had to make a living."
Mr Guata said some fishing boats' nets had come into contact with products from the containers or the containers themselves.
Murray Ham, who lost three nets after snagging containers, said the area was "very, very dangerous".
He regularly brings mountain bikes - one of the products in some of the containers - back to shore when they become caught in nets.
"I've caught enough pushbikes to open a pushbike shop," he said.
"We've got up to five or six [at a time], but you often get singles.
They are brand new when they come up but within an hour they go a bit rusty."
Mr Guata believes the impact on commercial fishing could be felt indefinitely.
"We have had significant hook ups in that area, the ROUV has seen where they've left nets behind," he said.
"They [fishermen] are working part of that area now but certainly they will never be able to work the whole area obviously if there's containers under there."
Mr Morrow said impacted fishermen were "hurting".
"They're worried about generational fishing through their families and the impact its going to have," he said.
Mr Gauda added: "The other concern is that no claims can be made until there's been some sort of decision made."
"You can't claim for loss of income in the future until they decide whether they're going to get them [containers] out or not," he said.
"So they're in limbo, waiting to see what happens. It's been nine months. They work daily and they've got mortgages and bills and they're doing it tough."
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Mr Guata said fishermen would be concerned for their safety while ever the containers remained in the water.
"Safety wise, there's some blokes that haven't gone there," he said. "They just refuse to go there.
"The two trawlers that mainly work there from this port, it's too significant of ground to just abandon. They've got to make a living.
"With the surveys, and now getting the containers that are found onto their plotters has given a bit more confidence for those guys and it's improved the safety."
Britannia P & I has funded high-tech plotters for some fishermen that display where the containers are.
"Yang Ming has agreed on a long term solution with local fisherman," Aus Ship said.
"This has involved financial compensation for proven loss, equipping fisherman with equipment to allow their GPS systems to warn of the position of hazards, and, trial high tech WAASP sonars for the most affected fisherman to permit them to survey all sea floor hazards such as reefs, rocks, and the shipping containers."
Mr Ham said the installation of the sonar equipment would restore some confidence in fishing the area.
"We'll be able to actually see the containers," he said.
"We'll be a lot more comfortable, at the moment it's pretty scary."
Mr Morrow said Yang Ming must consider the long-term impact of the containers.
"I just wonder how the insurers or the owners Yang Ming might feel if one of these guys dies," he said.
"How do you look at the family in the eye and tell them that you didn't think it constituted pollution on the ocean floor."
