The Hoshinmaru was a fishing vessel flying the flag of Japan. On 14 May 2007, Russia provided the Hoshinmaru with a fishing licence for drift net salmon and trout fishing in three different areas of its EEZ. According to the fishing licence, the Hoshinmaru was authorized to fish, inter alia, 101.8 tons of sockeye salmon and 161.8 tons of chum salmon. On 1 June 2007, a Russian patrol boat boarded the Hoshinmaru and arrested it after finding out that approximately 20 000 kg of sockeye salmon had been recorded as cheaper chum salmon in the fishing log and daily vessel report. Russia set a bond at 22 000 000 roubles (approximately US $862 000), taking the following into account: (a) the maximum fine imposable on the master: 500 000 roubles; (b) the maximum fine imposable on the owner: 2 001 364.05 roubles; (c) the procedural costs of 240 000 roubles; (d) penalty for damages caused by illegal fishing or harvesting of protected marine living resources: 7 927 500 roubles; (e) the value of the vessel: 11 350 000 roubles.
The key issue in this case was the gravity of the alleged offences. Japan maintained that the alleged offence was not of the same degree of gravity as overfishing or fishing without a licence but falsely recording a catch that the vessel was entitled to take under its licence; therefore, it was unreasonable to take account of the value of the vessel when calculating the bond. Further, since the amount of sockeye salmon on board the Hoshinmaru was well within the limit the vessel was licensed to fish, the sockeye salmon stock could not be considered to have been damaged or endangered. According to Japan, the amount of the bond should not be more than 8 000 000 roubles (approximately US $313 000) considering the potential penalties in this case. On the other hand, Russia considered the offence to be a grave one, a classic manifestation of IUU fishing. Russia argued that fishing could be legal only when it was carried out in compliance with all the applicable rules and norms established by the coastal State, including timely and full reporting of data on species and amounts of the catch to its competent bodies.
The ITLOS emphasized that the present case was different from cases it had previously dealt with, since this case did not entail fishing without a licencethe Hoshinmaru held a valid fishing licence and was authorized to be present and to fish in the Russian EEZ, though it was of the view that the offence alleged should not be considered as a minor offence or an offence of a purely technical nature. Although the ITLOS recognized that a violation of the rules on reporting may be sanctioned by the detaining State, however, it did not “consider it reasonable that a bond should be set on the basis of the maximum penalties which could be applicable to the owner and the Master, nor does it consider it reasonable that the bond should be calculated on the basis of the confiscation of the vessel, given the circumstances of this case”. For these reasons, the ITLOS determined that the bond of 22 000 000 roubles was not reasonable, and that the security should be in the total amount of 10 000 000 roubles.
Australia, Japan and New Zealand should each ensure that no action was taken which might prejudice the carrying out of any decision on the merits which the arbitral tribunal may render.
Australia, Japan and New Zealand should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna.