On four occasions over the past nine months the Australian Maritime Safety Authority (AMSA) has exercised its powers under the Navigation Act 2012 (Act) to ban a foreign-flagged ship from using or entering an Australian port. AMSA has recently issued Marine Notice 03/2015 which provides important guidance as to the circumstances in which AMSA will ban a ship from using or entering an Australian port.
The role of AMSA in refusing access to Australian ports
- AMSA is responsible for the enforcement of Port State Control (PSC) measures in Australia. Section 246 of the Act provides that AMSA may, by notice given to the master or owner of a vessel, direct that a vessel must:
- not enter or use any port or specified port(s); and
- comply with specified requirements while it approaches, enters, uses or departs any port or specified port(s).
However, the Act does not specify a minimum or maximum duration for refusal of access or how long specified requirements need to be complied with.
Recent directions not to enter Australian ports
Over the past eight months AMSA has demonstrated that it will not hesitate to exercise its powers under Section 246:
- in August 2014 the "VEGA AURIGA" was banned for three months due to repeated breaches relating to seafarer welfare and maintenance of the ship;
- in November 2014 the "TERRITORY TRADER" was banned for three months due to a history of machinery and equipment malfunctions, and breakdowns;
- in January 2015 the "MERATUS SANGATTA" was banned for three months due to MLC noncompliance placing seafarers at risk; and
- later in January 2015 the "RED ROVER" was banned for 12 months after being detained three times in four months by AMSA for failings in the vessel's Safety Management System including lack of effective passage planning and failure to use appropriate charts and publications.
AMSA's actions have left owners, charterers and managers in no doubt that failure to comply with international safety conventions, international standards regarding the well-being of seafarers and environmental regulations within Australian waters may well result in the imposition of a sanction far more severe than merely periods of detention.
Marine Notice 03/2015
Earlier this month AMSA published Marine Notice 03/2015 setting out guidelines as to when, and for how long, AMSA will ban a vessel from using or entering any Australian port.
AMSA will consider issuing a direction refusing access to Australian ports (Direction) where a vessel has a poor PSC record or where there are concerns about the performance of the related vessel operator.
With respect to PSC performance for individual vessels the criteria that will be applied when making a decision to issue a Direction are as follows:
- a three-month ban will be the starting point where a vessel has been detained under PSC inspection and returns to Australia without the corrective action having been taken or where a vessel has been detained three times in a two-year period and has not been previously issued a Direction;
- a 12-month ban will be the starting point where a vessel has previously been issued a Direction and is detained within two years of the expiry of the refusal period under that Direction, subject to the vessel remaining under the management of the same operator;
- a two-year ban will be the starting point where a vessel has previously been issued two Directions and is detained within two years of the expiry of the refusal period under the second Direction, subject to the vessel remaining under the management of the same operator.
AMSA has expressly reserved the right to increase the abovementioned periods in circumstances where the performance of an operator as a whole is deemed "unacceptable".
In addition to, or in combination with, the general principles above, a Direction may be issued where:
- there has been a "significant" breach of Australian legislation;
- the effectiveness of the vessel operator's management system is considered a significant risk to the marine environment and/or the safety or welfare of seafarers; and
- the standards of some vessels managed by an operator not subject to the Direction are so deficient as to cast significant doubt on the standards of the vessel(s) in relation to which the Direction is imposed.
In addition to Directions, the Notice also identifies certain directions which AMSA may issue to vessels, requiring them to do specific things while the vessel is approaching, entering, using or leaving any port(s) (Requirements). AMSA may impose these Requirements having regard to the present circumstances of a vessel or a history of noncompliance. The Requirements may concern such matters as:
- Maritime Labour Convention obligations;
- mandatory vessel reporting requirements;
- addressing unsound navigation practices; and
- possessing original copies of up-to-date nautical charts.
Whether by accident or design, Marine Notice 03/2015 contains some important subtext. Firstly, the Notice leaves open the possibility of AMSA taking into account:
- the PSC antecedents of a vessel in other jurisdictions; and
- the conduct of the operators of a vessel in other jurisdictions,
when considering the imposition of Directions or Requirements.
Secondly, a "significant" breach of Australian
legislation (one of the additional grounds for issuing a Direction)
need not necessarily amount to a serious breach. Thirdly, the
Notice clearly leaves open the possibility of imposing bans greater
than three months, 12 months or two years, depending upon the
giving rise to the Direction.
Navigating PSC in Australia
Marine Notice 03/2015 makes it clear that AMSA is serious about taking action against vessels that are not operated or managed in accordance with applicable international standards and Australian laws. Owners, charterers and cargo interests all need to be mindful of AMSA's increasingly robust approach to ensuring compliance when considering the counterparties it transacts with in relation to voyages to and from Australia.
In the event that AMSA exercises its powers in a way that are prejudicial to an owner, charterer or cargo interests, parties will usually need to act very quickly. Clyde & Co's team has considerable experience navigating the regulatory and transactional aspects of PSC, not just in Australia but throughout Asia and the South Pacific.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.