Obligations About Marine Safety

Obligations about marine safety

The chief executive must ensure that—

(a) marine safety strategies are developed in a way that—

(i) takes into account national and international

benchmarks and international best practice; and

(ii) promotes, within overall transport objectives, the

safe transport of persons and goods; and

(iii) encourages efficient and competitive behaviour in

the Queensland marine industry; and

(b) the provision and operation of all marine safety

infrastructure and services for which the State is

responsible is designed to achieve—

(i) efficiency; and

(ii) affordable quality; and

(iii) cost effectiveness.

What is the system that is established

(1) The Act imposes general obligations for safety on the

following people in the maritime industry—

• ship designers

• ship builders

[s 31]

Transport Operations (Marine Safety) Act 1994

Part 3 How to understand this Act

Reprint 7B effective 1 July 2011 Page 27

• marine surveyors

• ship owners (including operators)

• ship masters and crew

• pilots.

(2) These general safety obligations are generally intended to be

performance based rather than prescriptive and to allow

people to find more cost efficient ways of achieving safety.

(3) Thus, for example, to establish compliance with a general

safety obligation about the way a ship is built and enable a

ship to be registered, some people may choose to rely on a

certificate of compliance issued for the ship by an

appropriately accredited person.

(4) Other people may, however, prefer to have a ship surveyed

and to obtain a certificate of survey for a definite time.

(5) To allow a choice to be made between the 2 approaches, the

Act provides, under the regulations, for the issue of both

certificates of compliance and certificates of survey.

A certificate of compliance or certificate of survey for a ship

issued under this Act or by another recognised authority may

be used to establish that a general safety obligation has been

complied with in whole or part.

Editor’s note—

See section 42(3)(a).

34 What mechanisms ensure safety

There are various mechanisms in the Act to ensure safety,

including, for example, the following—

(a) certain key groups of people need to be licensed or

accredited under the Act and will be regulated under the

licensing or accreditation system;

[s 34]

Transport Operations (Marine Safety) Act 1994

Part 3 How to understand this Act

Reprint 7B effective 1 July 2011 Page 29

(b) accredited ship designers, ship builders and marine

surveyors are responsible for ensuring the correctness of

important safety aspects of certificates of compliance

that they issue;

(c) owners and masters of ships are responsible for ensuring

that ships are safe;

(d) owners, masters, pilots, crew members and other

persons involved with the operation of ships are

responsible for ensuring that ships are operated safely;

(e) ships must have the required safety equipment;

(f) certain ships need to be registered;

(g) shipping inspectors are to be appointed and have the

power to monitor ships to see if they are safe and are

operated safely;

(h) whenever a significant marine incident happens, it must

be investigated by a shipping inspector and may be the

subject of a reference by the Minister to a board of

inquiry established for the incident;

(i) the chief executive or general manager may suspend or

cancel an approval;

(j) the maximum penalties are substantial if a person is

found guilty of contravening the Act.

Editor’s note—

If a provision of this Act provides that the maximum penalty for

an offence may be a fine or imprisonment, the court may impose

both (Penalties and Sentences Act 1992, section 180A). If a body

corporate is convicted of an offence against this Act, the court

may impose a fine of 5 times the maximum fine that could be

imposed on an individual (Penalties and Sentences Act 1992,

section 181B). Thus, for example, the maximum fine that could

be imposed on summary conviction on a body corporate ship

owner for an offence against section 41 (General safety

obligation of ship owners and masters about condition of ships)

is 2500 penalty units or $150000. If the contravention causes or

substantially contributes to death or grievous bodily harm, the

maximum fine on conviction on indictment is 25000 penalty

units or $1500000.

Part 11A Insurance

67A Ship’s owner to have insurance

(1) This section applies if a ship is more than 15m in length

overall.

(2) The ship’s owner must have an insurance policy that, to the

limits applying under a regulation, is sufficient to pay for—

(a) the clean up costs of the discharge of a pollutant from

the ship into coastal waters; and

(b) the costs of salvage or removal of the ship from coastal

waters if the ship is abandoned or wrecked.

Maximum penalty—850 penalty units.

(3) The Minister may recommend the making of a regulation

under subsection (4) only if—

(a) the Minister has had regard to the risk of the ship

discharging pollutants into, or being abandoned or

wrecked in, coastal waters; and

(b) the Minister is reasonably satisfied that, for the

particular type of ship, an insurance policy mentioned in

subsection (2) could not reasonably be obtained or kept

in force.

(4) A regulation may exempt a ship from the application of this

section.

(5) A regulation under subsection (4) may provide that, for the

exemption to apply, an owner of the ship must comply with

conditions stated in the regulation.

[s 68]

Transport Operations (Marine Pollution) Act 1995

Part 12 Investigation, prevention and minimisation, and enforcement

Reprint 5 effective 24 May 2011 Page 55

Example of conditions that a regulation may provide—

A regulation may provide that an owner develop and implement a risk

management plan including matters mentioned in the regulation or that

an owner must not operate the ship with more than a stated type or quantity of pollutant on board the ship.

My background is from the commercial fishing industry growing up at Beauty Point Tasmania and with the help of my family, owning my first sail boat at six years and my first fishing boat at 10 years of age. From there I attended the first fisheries training institution at Fremantle Technical College in 1971 after which I travelled north to the prawn grounds in the Gulf of Carpentaria on board a new 86ft prawn trawler. From there I progressed through the fleet to captain and subsequently worked all over the world.

I began tuna farming in Port Lincoln in 1991-2 , I transferred the first tuna in the Med Sea to a tow cage in 1995 and worked to established a tuna farm in Mexico in 2002. I have been employed as Captain and/or Engineer, Advisor on many different types of fishing vessels again both in Australia and overseas. I am currently 58 years of age.

We, that is my wife and I purchased Tateyama Maru at auction on the last day of June 2004 on an as is where is basis on the Brisbane river with the intention to transfer tuna cage technology to the Western Pacific region of the world.

Given my experience and that it was our intention to move into the pacific we undertook to complete all the work ourselves instead of putting it in the hands of a shipyard.

It took four years to restore the ship and cost us out of pocket approx. $500K.

When we purchased the ship it was on MSQ register as a commercial fishing ship USL Class 3B extended to 600 miles offshore. Our registration was cancelled in 2006 and after we overcame all the issues related to this we were re-entered on the MSQ Register of Shipping as a commercial charter ship for 10 passengers plus four crew. This was no mean feat I can tell you.

Consistent with our legal and moral obligations to the State of Queensland and MSQ in May 2008 we took the ship to the Clarence River Yamba where the ship was hauled out of the water for inspection and repairs at Harwoods Slipway. At this point we were short of funds and once back in the water and with an approx. $7000k outstanding debt to the shipyard we stayed at anchor on the Clarence River until such time as our circumstances changed.

In Late September via the services of a broker on the Gold Coast a charter party was identified and on November 7th 2008 we entered into a somewhat standard bareboat Bimco Charter with a company called Australian Reef Pilots Pty Ltd.

It was made clear to us at the signing of the contract that it was the intention of Reef Pilots to immediately on charter the ship to PNG Ports Corporation in Papua New Guinea. It seemed to us at the time because of financial position that we had no choice but to sign. We considered that a company whose core business was marine pilotage that they would by nature have a significant sense of integrity and that they could be trusted. This turned out to be what looks like now, as a fatal mistake.

When a ship is offered for sale I have as the owner, obligations to make prospective buyers aware of any deficiencies in the ship and as a result of this all parties were made aware that in order to comply with full survey legal requirements that the ship required a full ultra sound of the hull and the propeller shaft needed to be inspected.

As I said on November the 7th 2008 Reef Pilots took complete possession of the ship.

Within 7 days Reef Pilots employed the services of Queensland ship Surveyors from Cairns to visit the ship on the Clarence River and inspect it on behalf of PNG Government and on 17th November a deficiency list was generated and on December 1st 2008 was signed off on as complete.

USL Code Section 14 initial survey requires that certain issues which are identified in legislation must be complied with before issues a certificate of compliance.

One of those issues identified is that the owner must put the ship in a position that enables the surveyor to conduct his duties in the appropriate manner.

In this particular case the Surveyor officer was told that there was no suitable hard stand or slipway where the despondent owner could take the ship despite the fact that Harwoods slipway was only 1km downstream from our location and was known to him. As result of this and between themselves they decided that the best way to go forward was to utilize scuba equipment to inspect the hull and propeller shaft but to everyone’s dismay and being 10 miles upriver from the entrance to the Clarence River it was impossible to see more than six inches in front of their eyes.

As Reef Pilots has already signed a contract with us and were committed to on hiring the ship to PNG Ports Corp and it was clear that they were required to meet a deadline it was decided to forgo inspection of the hull propeller shaft etc.

Keep in mind that Tateyama Maru was imported into Australia in 1999 entered on the MSQ register in 2001 and there is no absolutely evidence that the shaft has even been withdrawn for inspection.

The ship departed the Clarence River in early December for Port Morsby.

On May the first 2009 the ship was run aground however the ships log book was removed along with the incident report.

On April 10th 2010 the vessel was issued with a detainable deficiency list.

On the approx. 10th of October I inspected the vessel on the hardstand at PNG Dockyards where I first became aware of the vessel being aground nearly 18 months before.

At this point no-body has ever advised me or made me aware that the ship was grounded.

The ship was returned to me in on March 23rd 2011 more than six months after we were advised of its imminent arrival in a very unsatisfactory manner.

From my point of view if the ship had been inspected properly before they undertook the journey to PNG the contract between Australian Reef Pilots and PNG Ports could not have been full filled and Reef pilots because they had already committed to us would have been left high and dry.

Part 2 Maritime Safety Queensland

Division 1 Establishment, functions and

powers of MSQ

7 Establishment of MSQ

(1) Maritime Safety Queensland (MSQ) is established.

(2) MSQ consists of—

(a) the general manager; and

(b) employees employed under section 12; and

(c) other employees employed under the Public Service Act

2008.

8 Functions and powers of MSQ

(1) MSQ has the following functions—

[s 8]

Maritime Safety Queensland Act 2002

Part 2 Maritime Safety Queensland

Reprint 2B effective 23 May 2010 Page 5

(a) for the Transport Operations (Marine Safety) Act

1994—

(i) to develop strategies for marine safety; and

Example—

education campaign for the safe use of recreational ships

(ii) to make standards for designing, building and

operating commercial ships for approval by the

Governor in Council, and to monitor and audit the

implementation of the standards; and

(iii) to accredit ship designers, ship builders or marine

surveyors; and

(iv) to approve an entity to conduct training programs

for the operation of ships or to conduct

examinations for issuing licences under that Act;