Australia: New Legislation gives effect to International pollution treaty obligations

Trade and Transport Bulletin
Last Updated: 9 December 2010
Article by Mark Beaufoy

The Protection of the Sea Legislation Amendment Act 2010 (Cth) (Amendment Act) was recently passed by the Australian Parliament to amend two key pieces of maritime pollution prevention legislation, introduced by the Commonwealth to give effect to Australia's international treaty obligations.

The Amendment Act amends the Protection of Sea (Prevention of Pollution from Ships) Act 1983 (PPS Act) and the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Bunkers Act) and is aimed at strengthening Australia's marine pollution prevention regime.

With nearly 4,000 ships carrying commodities to and from Australia each year, shipping pollution legislation is a necessity in protecting our pristine coastlines. Australia has the fifth largest shipping task in the world and therefore requires appropriate laws to protect against the often inevitable pollution that occurs to our oceans and atmosphere as a result. These recent amendments provide greater protection of the marine environment and recognition of the pollution caused by shipping.

PPS Act

The PPS Act implements the operational requirements of the International Convention for the Prevention of Pollution from Ships, commonly referred to as MARPOL. This Convention has six technical annexes which deal with different aspects of marine pollution, including pollution by oil, noxious liquid substances, harmful substances carried by sea in packaged form, sewage, garbage and air pollution. Having adopted all six of these annexes, Australia must implement into its domestic system controls that give effect to its international obligations.

Annex VI of MARPOL was recently amended by the Marine Environment Protection Committee of the International Maritime Organisation. This Annex intends to reduce air pollution by ships, places an upper limit on the emission of nitrogen oxides from marine diesel engines, limits the emissions of sulphur oxides by limiting the sulphur oxide content of fuel oil and prohibits the deliberate emission of ozone depleting substances from ships.

In order to provide for the progressive reduction in permitted sulphur content of fuel oil, the amendments to the PPS Act allow for a maximum sulphur content to be set by regulation. Whilst this amendment is necessary, it will have little practical impact on vessel operations in Australia, given the average sulphur level in world-wide fuel oil deliveries and the sulphur levels in fuel refined in Australia currently falls below the 3.5 per cent cap.

The Amendment Act amends the definition of 'fuel oil' to include any fuel delivered to and intended for combustion purposes for propulsion or operation on board a ship, including distillate and residual fuels. It also inserts a new definition of 'gas fuel', which is defined to include liquefied natural gas, compressed natural gas and liquefied petroleum gas. This new definition is necessary because the new definition of 'fuel oil' covers gases which are used as fuels on ships (whereas previously it did not), and there are different requirements applying to fuels that are gases and those which are not.

The Amendments also add new defences to the existing offence of using fuel oil with a sulphur content of more than the prescribed limit at section 26FEG of the PPS Act. The defences apply where compliant fuel is unavailable. In the case of a ship whose next port of destination is Australia, the offences will not apply if, after taking reasonable steps to obtain fuel oil with a sulphur content no more than the prescribed limit, the person (or master or owner) has been unable to obtain such fuel and has notified the Australian Maritime Safety Authority of this fact. If the ship's next port of destination is in a foreign country, the defence applies in a similar manner provided the person has notified the government of that foreign country.

The Amendment Act also imposes a new requirement on Australian ships engaged in overseas voyages which carry a gross tonnage of 400 or more and which have on board at least one rechargeable system containing ozone-depleting substances. These ships must carry an ozone-depleting substances record book and make relevant records in that book. Similar penalties apply for making false or misleading records in the ozone-depleting substances record book as well as a ship's oil record book or cargo record book. These record books must be kept on board at all times and readily available for inspection. Penalties for non-compliance include a fine of up to $22,000.

Bunkers Act

An important aspect of the Amendment Act is to provide protection for persons or organisations that assist in the clean-up following a spill of fuel oil from a ship. The Bunkers Act establishes a liability and compensation regime to apply in cases of pollution damage resulting from a spill of fuel from ships (other than oil tanks in respect of which there is a separate liability and compensation regime).

The policy behind these amendments is that it is essential that people and companies are not deterred from providing assistance following an oil spill due to a fear of being held liable if their actions inadvertently lead to increased pollution. The so-called 'responder immunity' provision to protect these people has therefore been introduced into the Bunkers Act at Schedule 2 and can be relied on by those who assist in the clean-up of fuel-oil spills, provided they act reasonably and in good faith.

No civil action, suit or proceeding can therefore be brought against a person who has acted reasonably and in good faith in trying to prevent or minimise pollution damage in Australia or in Australia's exclusive economic zone. The term 'pollution damage' includes loss or damage caused outside the ship by contamination resulting from the escape or discharge of fuel oil from the ship, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken. It also includes the costs of preventative measures.

The 'responder immunity' provision will not apply in relation to actions or omissions that were intended to cause damage or which were undertaken recklessly knowing that damage would probably result. This new provision also has no effect on the general liability of a shipowner for pollution damage resulting from a spill of fuel oil.

How does th is affect you?

If you are involved in the shipping industry will need to be familiar with the new provisions introduced under the Amendment Act, including what records must be kept on board and the relevant limits of substances in fuel oils. There are significant penalties that can be imposed for non-compliance, many of which are strict liability offences, meaning there does not need to be any intention to commit the offence.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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Mark Beaufoy
 
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