Australia: Powers of intervention of the MERCOM and places of refuge for distressed maritive vessels – a friend in need?

Last Updated: 26 May 2017
Article by Nathan Cecil and Stephanie Triefus

From time to time a vessel will find itself in distress or in need of assistance. In these cases, it may be important for the vessel to move to a place of refuge where action can be taken to stabilise its condition in a favourable environment.

You might think that ports around Australia's coastline would be obliged to provide a place of refuge to vessels in distress. However, they retain a discretion as to whether or not to grant refuge. Australia has seen a swathe of port privitisation in recent years, with many of the major commercial ports now in private hands, where shareholders interests are naturally given primacy. Even government owned ports are under increasing pressure to consider the interests of their stakeholders and port users and ensure continued commercial port operation.

As a result, when a distressed vessel poses a significant risk of pollution, damage to infrastructure or port disruption, shareholder and stakeholder interests directly conflict with the interest of providing a place of refuge. Holding Redlich attended a salvage and wreck removal conference where many of the port representatives candidly acknowledged that these pressures meant that where there is a risk to the port or its stakeholders, Australian ports are unlikely to grant a place of refuge without intervention from above.

The Maritime Emergency Response Commander (MERCOM)

Australia is a party to the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969, which is implemented in the Protection of the Sea (Powers of Intervention) Act 1981 (Cth) (Intervention Act). The Intervention Act gives the Maritime Emergency Response Commander (MERCOM) the authority to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to Australia's coastline or related interests. The MERCOM is Australia's equivalent to the UK SOSPREP.

Powers of the MERCOM

According to the National Maritime Places of Refuge Risk Assessment Guidance, place of refuge requests for vessels located within internal or coastal waters of a State or Territory (within 3Nm) should be assessed by the relevant State or Territory government agency, while place of refuge requests outside of 3Nm should be considered by the Australian Maritime Safety Authority (AMSA).

However, if the vessel in distress poses a danger of pollution, including in internal or coastal waters, the MERCOM is empowered to take any action deemed necessary to prevent, mitigate or eliminate the danger. The MERCOM's powers are extensive and include taking action to:

  • move the ship or part of the ship to another place
  • remove cargo from the ship
  • salvage the ship, part of the ship or any of the ship's cargo
  • sink or destroy the ship or part of the ship (with approval of the Minister)
  • sink, destroy or discharge into the sea any of the ship's cargo
  • take over control of the ship or part of the ship
  • issue directions for the owner, master, salvor or any other person to carry out the above; and/or
  • require a specified place to be treated as a place of refuge for the ship, including a particular port.

The MERCOM must consider the reasonable views of the relevant government agencies and other stakeholders (including the Port Authority and Harbour Master). However, the MERCOM's directions prevail over any directions given by a port and any shareholder/stakeholder interests.

Who you gonna call when your vessel is in distress?

Faced with the likelihood of the rejection of any request for refuge by the ports, vessel Owners and their P&I Clubs should have a ready plan of action in the event that refuge is needed in Australia. To save time, money and mitigate the risk of disaster, we recommend:

  • A request for place of refuge should be sent as soon as possible to all likely port candidates, not just to the closest port – regardless of the fact that refuge is likely to be refused
  • Urgent requests for assessment of place of refuge may also be made through AMSA's Rescue Coordination Centre (JRCC Australia). Depending on the location of the vessel, the request will be passed onto the relevant state or territory government agency or AMSA, which will undertake a risk assessment and consult with stakeholders to decide whether to grant a place of refuge. Again, regardless of the fact that refuge is likely to be refused
  • Any request or notification should be clear about the severity of the issue or threat so that the MERCOM may be engaged if the incident is within its purview. If there is grave and imminent danger to the coast of Australia (high seas) or if oil or noxious substances have escaped from the vessel (internal/coastal waters), the MERCOM may exercise its powers under the Intervention Act to require that a particular place, including any port, be treated as a place of refuge
  • The Owners and P&I Club should contemporaneously enter into negotiations for any necessary navigational assistance e.g. tugs
  • Owners of vessels that have discharged oil should be ready to be hit up for significant security, as the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) empowers AMSA to detain a vessel which must only be released upon payment of an amount equivalent to the maximum amount of all possible penalties. We have previously discussed this here
  • In any situation where there is grave and imminent danger to the coast of Australia or if oil or noxious substances have escaped from the vessel, a notification and request for intervention and refuge should also be made immediately to the MERCOM
  • The MERCOM should be advised of all other requests for refuge submitted to the ports, to permit the ports and MERCOM to engage direct and increase the prospects of the MERCOM being able to persuade the port to grant refuge, failing which the MERCOM can issue an intervention order and declaration of refuge promptly and also direct navigational assistance to be provided (if negotiations have not yet been able to be finalised).

By following the above plan, owners will increase the likelihood of obtaining the required swift and positive result needed for any vessel in distress.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Nathan Cecil
Stephanie Triefus
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