Ports of Auckland has been fined $424,000 for breaching harbour speed limits after one of its pilot boats was involved in a "tragic accident" in the Hauraki Gulf.
Leslie Gelberger's body was found by a passing ferry floating near Mairangi Bay in April 2017.
His body was missing a leg. The husband, father and teacher had gone for a swim off of Narrow Neck Beach the day before he was recovered.
Maritime New Zealand laid charges a year later under the Health and Safety at Work Act against Ports of Auckland.
The authority alleged Gelberger was hit and killed by a Ports of Auckland pilot boat and the Auckland Council-owned company failed to comply with a duty which exposes an individual to a risk of serious injury, serious illness or death.
Ports of Auckland staff member Grant More, the master of the catamaran Wakatere, was also charged.
After initially pleading not guilty, both Ports of Auckland and More pleaded guilty to the Health and Safety charges earlier this year.
While it was admitted the Wakatere had struck and killed Gelberger, his death was not the result of a unlawful act because it occurred more than 200m from shore - where there are no speed restrictions, the Auckland District Court heard at a sentencing hearing today.
The Wakatere crew heard a bang when they hit the black wetsuit-wearing Gelberger at about 35 knots, court documents released to the Herald show, which they believed was a mechanical fault.
More slowed the vessel and turned it around but after seeing no oil in the water - or Gelberger's body - he returned to port.
Judge Kevin Phillips said Gelberger's death was not a factor in sentencing both the Ports of Auckland and More. Instead, the issue was over a "systemic failure" from continuous speeding breaches by Ports of Auckland-operated vessels between April 2017 and January 2018.
The time period accounted for between 3465 and 4257 journeys.
The judge fined Ports of Auckland $424,000 plus court costs, and More $8400 plus court costs.
Despite not being required to make any reparations to Gelberger's family, Ports of Auckland has made a payment of $220,000 to recognise the tragedy.
Prosecutor Sam Lowery said Ports of Auckland vessels had breached speed limits on 99 per cent of their journeys in certain restricted areas.
Many of the breaches, he explained, were in the restricted Mechanics Bay area. He stressed the seriousness of the offending in New Zealand's busiest waterway.
Lowery said Ports of Auckland was prepared to accept the speeding component of the charges on the eve of trial after what had been an "unusually expensive investigation", which included a police homicide inquiry.
Ports of Auckland's lawyer John Billington, QC, said: "We can't avoid the factor Mr Gelberger was killed in a tragic accident."
He said after police investigated the fatality it concluded charges, such as manslaughter, would not be laid against the Ports of Auckland, More, or his crew.
However, as Billington explained, Maritime NZ laid charges accusing the company of systemic speeding offences in the 12-knot and 5-knot restricted zones of the harbour.
The authority also alleged More was travelling at an unsafe speed in such areas on the day Gelberger was struck by the Wakatere.
Billington told Judge Phillips the breaches were so widespread that people could simply have looked out their downtown Auckland office building windows and seen pilot boats speeding across the harbour.
"Nobody thought anything untoward was happening at all," he said.
Billington argued the appropriate fine was "in the region of $400,000 for a non-injury systemic failure".
Judge Phillips said the breaches called for a strong penalty and deterrence to "bring it home" to others who use the harbour that the speed restrictions are there for a reason.
More's lawyer Simon Lance also reiterated the death of Gelberger was tragic accident.
He said the prosecution, using section 48 of the Health and Safety at Work Act, was rather unique and he could not recall another case like it in New Zealand's courts.
Lance said More's breach occurred in the context of working for an organisation where speeding was the norm.
He said his client "has suffered a lot of anguish as well" but acknowledges the trauma of Gelberger's family.
The accident, he told the court, occurred in open water with no speed limit and in an area with strong currents.
"He has never seen a swimmer there before, ever. And he has taken that journey on thousands of occasions," Lance said.
More, his lawyer told the court, had never collided with anything, or another vessel, before.
Years of grief for swimmer's family
In a statement read to the court, Gelberger's wife Laura McLeod said her husband was an amazing father to two boys.
"It was heartbreaking to see the boys' reaction to the death of their father," she said.
She said the hours waiting at Narrow Neck Beach for news of her husband's fate were tortuous, while the years of grief since have affected her physical health.
Originally from Canada, Gelberger moved to New Zealand about three years before his death. He was a maths teacher at Westlake Girls' High School.
Judge Phillips said the impact of the accident will reverberate on Gelberger's family for the rest of their lives.
Ports of Auckland CEO Tony Gibson said today he was deeply sorry its pilot boat was involved in the "tragic accident".
"I would like to offer my sincere and heartfelt condolences to Mr Gelberger's wife, children, parents, sister and wider family.
As a family man, I understand how much pain his loss has caused, and I profoundly regret what has happened."
Ports of Auckland said that immediately after the accident, it "took action to change the route taken by pilot boats to mitigate the possibility of a similar accident happening in future".
The company also said it "addressed the issues that led to boats speeding in restricted areas, which arose because of misinterpretation around the rules which grant pilot boats an exemption to the speed limits".
Maritime NZ Director, Keith Manch, said the message was "less speed, less harm".
"Speeding increases the risk of collision, injury and death," he said.
"Responsibility is on both employers and workers – here that is the Ports of Auckland and the master of one of its pilot boats."
Manch said Ports of Auckland had inadequate systems to ensure its vessels did not break speed limits.
"On the day [Gelberger died], the master of the pilot boat chose to travel at excessive speeds, well over the speed limits.
"If rules are broken, and people are put at risk, Maritime NZ will take action."