I COMMERCIAL OVERVIEW OF THE SHIPPING INDUSTRY
In terms of its ocean freight requirement, Australia has the ‘fifth-largest shipping task in the world – a task that is forecast to double over the next 15 years’.2 Notwithstanding the downturn in the energy and mining resources sector, the growth predictions principally to service the export of mining and agricultural commodities still hold. In addition, Australia has ‘the world’s fastest growing cruise industry’,3 with passenger numbers increasing by an average of almost 20 per cent per year since 2007.4 However, because of the economics of operating Australian-flagged tonnage, the national fleet has only a small number of large cargo vessels, the majority of which are employed on Australian coastal trading services, access to which is largely restricted by federal cabotage legislation.5
i Vessels registered on Australian shipping registers
As at 4 December 2017, 11,929 vessels were listed as being entered on the Australian shipping registers.6 In terms of vessel types, they can be grouped generally as follows: 224 cargo vessels, 455 passenger-carrying vessels, 8,484 pleasure craft, 2,078 fishing vessels and 6887 specific purpose-type vessels.8
Of those vessels, only 706 hold IMO numbers,9 the composition being approximately 80 cargo vessels, 67 passenger-carrying vessels, 70 pleasure craft, 172 fishing vessels and 31710 specific purpose-type vessels.
ii Australian coastal trading
Australia has a substantial coastal sea freight task, which in 2014–2015 was reported to be 101.3 million tonnes, a 2.9 per cent decrease from 2013–2014.11 To date, petroleum and dry bulk products remain the largest tonnage component of coastal freight. As at December 2017, approximately 610 vessels hold licences to engage in the Australian coastal trade; of these:
- 82 vessels are general licensed vessels;12
- 15 vessels are transitional general licensed vessels,13 almost all of which are foreign-registered vessels; and
- approximately 241 vessels are foreign-registered vessels operating under a temporary licence.
iii Foreign-registered vessels in the offshore oil and gas industry
The safety of marine operations in the immediate vicinity of Australian offshore oil and gas facilities is regulated through the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA).
A substantial number of offshore facilities and vessels, including foreign-registered floating production, storage and offloading vessels (FPSOs), floating storage units, accommodation vessels, drilling vessels, construction vessels and pipe-laying vessels also form part of the Australian shipping industry and are regulated by NOPSEMA.
NOPSEMA reported that, in 2016–2017, it conducted 128 inspections of offshore facilities in Australia, which was markedly lower than the number of inspections it had carried out in 2014–2015. According to NOPSEMA, this was due to a variety of factors, including reduced industry exploration activity as a result of falling global petroleum prices.14
iv Foreign-registered vessel calls to Australia
Data in relation to the exact number of foreign ships visiting Australia is limited; however, the Australian Maritime Safety Authority (AMSA) indicates that, in 2016, 5,719 foreign-registered vessels called at Australian ports.15
II GENERAL OVERVIEW OF THE LEGISLATIVE FRAMEWORK
An important characteristic of the Australian legal system is the distinction between federal and state or territory laws, both of which are relevant to shipping. From a constitutional perspective, the Commonwealth (i.e., the federal level of Australian government) has the power to make laws with respect to ‘trade and commerce’, which extends to laws relating to ‘navigation and shipping’.16 This does not, however, preclude the six states17 and two territories18 from also making laws relating to shipping; the primary constraint is that, in the event of inconsistency between Commonwealth and state or territory law, Commonwealth law prevails to the extent of the inconsistency.19
From a territorial perspective, Australia has ratified the United Nations Convention on the Law of Sea (UNCLOS) and the Commonwealth exercises sovereign jurisdiction with respect to the territorial sea (i.e., 12 nautical miles seaward of the low-water mark or any proclaimed territorial sea baseline).20 Again, this does not preclude the states and territories from legislating with respect to their coastal waters21 and adjacent territorial sea provided there is no inconsistency with Commonwealth law. The Commonwealth also exercises jurisdiction with respect to Australia’s Exclusive Economic Zone.22
At the Commonwealth level, the primary legislation regulating shipping in Australia is the Navigation Act 2012 (Cth), which was redrafted and re-enacted in place of the 1912 Act that preceded it. One of the main functions of the 2012 Act is the restructuring of the regulation of Australian vessels and seafarers, and accommodating the removal into new legislation of the overhauled cabotage scheme for coastal trades in Australia.23 The Navigation Act 2012 and other Commonwealth legislation also gives effect to a wide range of international maritime conventions and treaties to which Australia is party. State and territory laws typically regulate recreational vessels, ports and harbours, and other maritime infrastructure located within state boundaries.
III FORUM AND JURISDICTION
As with federal and state and territory legislation, there is also a distinction between courts exercising jurisdiction at the federal level, and those at the state and territory level. In broad terms, federal courts exercise jurisdiction in relation to Commonwealth legislation, whereas state and territory courts exercise plenary jurisdiction with respect to persons and other subject matter situated within their territorial boundaries, as well as in relation to state and territory legislation. State and territory courts have primary jurisdiction with respect to common law proceedings (both civil and criminal), and may also exercise federal jurisdiction in some circumstances.
In practice, however, most shipping and maritime disputes are litigated in the Federal Court of Australia. One of the main reasons for this is that the Federal Court has jurisdiction with respect to much of the shipping-related legislation in Australia, such as the Navigation Act 2012, and other Commonwealth legislation giving effect to international conventions.24 The Federal Court also frequently exercises jurisdiction in admiralty, pursuant to the Admiralty Act 1988 (Cth). That Act provides for the commencement of proceedings in personam and in rem with respect to a wide range of categories of ‘maritime claim’.25 It is also fair to note respectfully that the Federal Court has developed greater experience in dealing with maritime litigation.
With regard to choice of law and jurisdiction, it is important to appreciate that there is no single common law of Australia, rather a separate common law in each state and territory. Accordingly, it is not appropriate for parties to stipulate that an agreement is governed by ‘Australian law’ and the law of a particular state or territory should be selected. Similarly, should contracting parties wish to submit to the jurisdiction of Australian courts, they should specify the courts of a particular state or territory. Finally, two shipping cases have confirmed that Australian courts will exercise jurisdiction over appropriate subject matter unless a party can positively establish that Australia is a ‘clearly inappropriate forum’.26
ii Arbitration and ADR
Contracting parties are at liberty to agree to resolve their disputes by arbitration or other means of alternative dispute resolution, and Australian courts will give effect to such agreements. In particular, there is comprehensive legislation at both the Commonwealth and state or territory levels aimed at encouraging and facilitating the arbitration of commercial disputes. These laws regulate matters such as the commencement of arbitration, composition of tribunals, arbitral procedure, awards, appeals and enforcement. The legislation also addresses the extent to which Australian courts may intervene in the arbitral process, including an obligation to stay court proceedings in favour of arbitration in certain circumstances.27
Maritime arbitration in Australia is usually conducted pursuant to the International Arbitration Act 1974 (Cth), which regulates commercial arbitration in Australia between parties with places of business in different states. That Act was amended in order to, inter alia, give effect to the most recent version of the UNCITRAL Model Law on International Commercial Arbitration.28 While there is no provision for maritime-specific arbitration under Australian law, parties may agree to resolve their disputes pursuant to the arbitration rules and procedures of the Australian Maritime and Transport Arbitration Commission (AMTAC).29 Those rules are intended to supplement the UNCITRAL Model Law.
There is also legislative provision for domestic arbitration in Australia, that is, arbitration between parties that have their place of business within Australia.30 However, because of the large number of foreign participants in the Australian shipping industry, there is unlikely to be any significant amount of domestic maritime arbitration.
It should also be noted that mediation is frequently used as a means of alternative dispute resolution in Australia, including in shipping cases, and court case-management procedures often require parties to mediate before the hearing of a dispute.
iii Enforcement of foreign judgments and arbitral awards
Certain foreign judgments may be enforced in Australia pursuant to the Foreign Judgments Act 1991 (Cth). A judgment creditor must apply to court to have a foreign judgment registered and the requirements for registration include that the judgment is ‘final and conclusive’ and, generally, that it is a money judgment and not for payment of foreign taxes, fines or penalties.31 Registration is usually available in respect of judgments made in the countries listed in the Foreign Judgments Regulations 1992 (Cth), which include, for example, the United Kingdom but not the United States.
With regard to foreign arbitral awards, the Australian courts will generally recognise such awards and do so without significant delay. Australia is a signatory to the New York Convention, which is given local effect in the International Arbitration Act 1974 (Cth). Accordingly, foreign awards to which the New York Convention applies are generally recognised by and enforceable in Australian courts. The court may refuse to enforce a foreign award in certain circumstances, including the usual reasons (for example, relating to a defect in the composition of the tribunal)32 as well as where an award concerns a dispute that would not be capable of resolution by arbitration under Australian law or where enforcement of the award would be contrary to public policy.33
In particular, it is to be noted that an Australian court may refuse to enforce a foreign arbitral award where the award itself, or the underlying contractual agreement, is considered invalid under Australian law, notwithstanding that it is valid under the law governing the substantive dispute. This was the case in a first instance decision of the Federal Court of Australia, which refused to enforce a London arbitration award on a claim under a voyage charter party on the basis that the charter party in respect of which the award had been obtained was subject to mandatory Australian choice-of-law and jurisdiction provisions under federal legislation that rendered the award otiose in Australia.34
IV SHIPPING CONTRACTS
There is no substantial shipbuilding industry in Australia, although there are some small and medium-sized shipyards that are predominantly involved in the construction and repair of naval, high-speed aluminium-hull passenger and Ro-Ro vessels and recreational vessels. Accordingly, there is no significant local jurisprudence, specific local laws or regulations concerning shipbuilding contracts.
ii Contracts of carriage
The Carriage of Goods by Sea Act 1991 (Cth) (COGSA) contains important, mandatory provisions concerning choice of law and jurisdiction in relation to contracts of carriage. Certain contracts for the carriage of goods from places in Australia to places outside Australia (outbound carriage) are deemed subject to Australian law (i.e., that of the state of the port of shipment). Any agreement to the contrary is invalid, as is any agreement that seeks to restrict the jurisdiction of Australian courts with respect to such contracts.35 COGSA also invalidates any agreement that seeks to restrict jurisdiction with respect to carriage from places outside Australia to places in Australia (inbound carriage).36
The purpose of these provisions is to give local cargo interests the protection of Australia’s laws and judicial system. The provisions are regularly relied upon by parties who may otherwise have to pursue a carrier in a less favourable jurisdiction or under a less favourable cargo liability regime. As discussed in Section III.iii, they can also be relied upon, for example, to resist local enforcement of a foreign judgment or arbitration award obtained pursuant to an agreement that contravenes the mandatory provisions.37
An important consequence of these mandatory provisions is that, where a contract of carriage is subject to Australian law through the operation of COGSA and in certain other cases in which an Australian court has jurisdiction, cargo liability may be regulated by a modified version of the Hague-Visby Rules (the Modified Rules).38 These rules primarily apply to contracts for outbound carriage.39 They also apply in respect of sea carriage between Australian ports, except where carriage is between ports within the same state or territory.40 Further, the Modified Rules apply in respect of inbound carriage if another international cargo liability regime does not otherwise apply by agreement or law.41
The Modified Rules regulate cargo liabilities in respect of ‘sea carriage documents’. These are defined as including bills of lading and certain types of consignment note, sea waybill and ship’s delivery orders,42 which need not necessarily be documents of title. The Modified Rules, therefore, apply to a broader range of shipping documents than the Hague-Visby Rules. A decision of the Full Court of the Federal Court of Australia, however, has held that a voyage charter party is not a ‘sea carriage document’, thereby largely resolving a point of law that had given rise to considerable uncertainty in Australian maritime law.43
The Modified Rules adopt the basic cargo liability regime of the Hague-Visby Rules. There are, however, a number of important differences in the Modified Rules, some of which are explained in the context of cargo claims in the following Section.
iii Cargo claims
The question of title to sue under bills of lading, sea waybills and ship delivery orders is the subject of uniform legislation in each Australian state and territory44 based on the Bills of Lading Act 1855 (UK). In the case of a bill of lading, for example, a cargo interest will need to prove that it is the ‘lawful holder’ of the bill in order to have title to sue the carrier under the contract of carriage evidenced by the bill.45
A cargo interest with title to sue must establish, based on the proper construction of the contract of carriage and the mandatory provisions of COGSA, which cargo liability regime regulates its claim. This can be a complex inquiry that will depend on the circumstances of each case. However, there is a range of scenarios in which the Modified Rules will apply to a cargo claim brought in Australia.46
The obligations and immunities of the carrier under the Modified Rules are generally consistent with the Hague-Visby Rules, with three important qualifications. First, the period of the carrier’s responsibility under the Modified Rules commences when goods are delivered to the carrier within a port, and ends upon delivery to the consignee within the destination port.47 This extension is most relevant to containerised cargo, which is generally delivered to and by the carrier at the container terminal. Where cargo is shipped on a free in/free out basis, delivery to and by the carrier at both ends occurs on board, in which case the mandatory period of responsibility is limited to the ‘tackle-to-tackle’ period. Second, the Modified Rules apply generally to the carriage of goods on or above deck.48 Third, the Modified Rules contain additional provisions that render the carrier liable for delay in certain situations.49
With regard to the carrier’s right to limit liability, the Modified Rules incorporate the amendments to the Hague-Visby rules effected by the SDR Protocol of 1979. Accordingly, the carrier is generally entitled to limit its liability to the greater of 666.67 special drawing rights (SDRs) per unit or 2 SDRs per kilogram, unless the nature and value of the goods is declared.50 As with the Hague-Visby Rules, the Modified Rules incorporate a one-year time bar for bringing suit against the carrier.51 Finally, it should be noted that in the event that the Modified Rules apply, the carrier is not usually permitted to contract out.52
iv Limitation of liability
Australia is party to, and has incorporated into domestic legislation, the LLMC Convention 1976, together with the LLMC Protocol 1996 (the Limitation Convention).53 The 2012 Amendment to the Protocol of 1996 (which increases the limits of liability) entered into force in Australia on 8 June 2015.54
Accordingly, an owner, charterer, manager, operator and salvor of a ship are entitled to limit liability with respect to certain maritime claims in accordance with the Limitation Convention, including the increased limits of liability in the amended Protocol of 1996. Australia is also party to, and has incorporated domestically, the Bunker Convention,55 which preserves the right to limit liability under the Limitation Convention with respect to certain claims relating to bunker oil pollution damage.56
There have been a number of Australian court decisions concerning the application and interpretation of the Limitation Convention. In one decision, for example, the Federal Court of Australia decided (apparently, for the first time in relation to the Limitation Convention) that claims for pure economic loss are subject to limitation.57 In another decision, the same Court determined that the facts of a marine casualty gave rise to two ‘distinct occasions’ with the result that a shipowner was required to constitute two limitation funds in respect of the casualty.58 It should be added that shipping incidents have generated some controversy surrounding a shipowner’s right to limit liability, and the issue may be the subject of further political and media attention in the event of a serious casualty in Australian waters.59
It should be also noted that where a claimant seeks to argue that a shipowner is guilty of conduct barring limitation under Article 4 of the Limitation Convention, the shipowner may be required to provide security for claims in excess of the limitation amount, even if the claimant’s argument is very unlikely to succeed.60
Australia is also party to, and has incorporated into domestic legislation, the CLC Convention together with the Protocol of 1992 and the further amendments of 2000 (the Civil Liability Convention).61 A shipowner is therefore entitled to limit liability with respect to certain claims for oil pollution damage in accordance with the Civil Liability Convention, including the increased limits of liability under the 2000 amendments.62
An important issue arising under both the Limitation Convention and the Civil Liability Convention concerns the application of these conventions to a ‘ship’. The former contains no definition of ship, and the latter contains a definition that is often regarded as convoluted and ambiguous.63 The vexed question of exactly what amounts to a ship in these conventions is especially relevant in Australian waters, where a range of unique offshore craft is engaged in the exploration and production of oil and gas. The issue creates considerable uncertainty for many participants in the offshore marine sector, and remains the subject of debate.64
i Ship arrest
Australia is an ‘arrest-friendly’ jurisdiction, where ships can be arrested quickly and efficiently. While Australia is not a signatory to the international conventions on ship arrest, the Admiralty Act 1988 (Cth) largely gives effect to the regime of the Brussels Convention. The Act also provides for the admiralty jurisdiction of certain Australian courts, and sets out other rules for arrests and in rem proceedings. It is widely accepted, however, that the Act does not permit the arrest of bunkers separately from the ship on which they are loaded.65
The Admiralty Act permits the arrest of a ship in the case of:
- a common law maritime lien in respect of the ship;66
- a defined ‘proprietary maritime claim’ concerning the ship, which includes claims relating to possession, title, ownership and mortgage;67 and
- a defined ‘general maritime claim’, where, in most cases, the owner of the ship must be the same when the claim arises and when in rem proceedings are commenced.68
The ‘general maritime claims’ listed in the Admiralty Act are broader in scope than the claims set out in the Arrest Convention 1952. For example, the Admiralty Act permits arrest for claims in relation to services supplied to a ship69 and claims for insurance premiums or P&I club calls in relation to a ship.70 The Federal Court of Australia, however, has decided that a claim under a forward freight agreement was insufficiently connected to the carriage of goods to permit an arrest.71
Further, while a claim in respect of bunkers supplied to a ship would fall within the definition of ‘general maritime claim’,72 it would be necessary for the claimant to establish a cause of action directly against the shipowner (rather than against a time charterer). In a decision of the Full Court of the Federal Court,73 it unanimously rejected a physical bunker supplier’s asserted right to arrest a vessel, the Sam Hawk, based on a foreign law maritime lien arising under the bunker supplier’s contract with the vessel’s time charterers. Four of the five judges adopted the majority’s approach in Bankers Trust International Ltd v. Todd Shipyards Corporation (the Halcyon Isle),74 in which it was held that the foreign right should be ‘classified and characterised by reference to the law of the forum’. This decision confirms that the Australian law position in respect of maritime liens arising under foreign law is in line with English and Singaporean law.75
The Admiralty Act also provides for the arrest of a sister ship in the event of a ‘general maritime claim’.76 To proceed against a sister ship, a claimant must establish that the interest in the ship on which the claim arises is also the owner of the sister ship at the time of arrest. While ‘owner’ is not defined, it has been decided that the term is not restricted to the registered owner and may extend to a beneficial owner.77 Beneficial ownership cannot, however, be established simply by reason of a company being a subsidiary or related company of another, and accordingly the concept of ‘associated ship arrest’ that exists in some jurisdictions does not apply in Australia.78
An arresting party is not required to pursue its substantive claim in Australia, and so an arrest can be effected purely to obtain security for a claim.79 However, an arresting party must give full and frank disclosure of all known facts material to the arrest,80 provide an up-front deposit and give an undertaking in respect of the Admiralty Marshal’s costs and expenses relating to the arrest.81 The level of deposit to be provided depends on the place of arrest, but is usually between A$5,000 and A$10,000. Finally, it should be noted that an arresting party may be liable in damages for ‘unreasonably and without good cause’ demanding excessive arrest security, obtaining an arrest, or failing to consent to release from arrest.82
ii Court orders for sale of a vessel
The Admiralty Rules 1988 (Cth) empower the court, at any stage during in rem proceedings, to order that an arrested ship be valued or sold (or both).83 Usually, the order is made on the application of a party to the proceeding; however, the Admiralty Rules also provide that the court may, ex officio, order the sale of an arrested ship that is ‘deteriorating in value’.84 Experience suggests that the Federal Court, which most frequently exercises in rem jurisdiction, is generally amenable to granting prompt orders for the valuation and sale of an arrested ship.85
The court has a wide general discretion to make an order for valuation or sale,86 and may order a sale by auction, public tender or any other method, in each case to be conducted by the Admiralty Marshal.87 To obtain an order for valuation or sale, the applicant must give an undertaking in respect of the Admiralty Marshal’s costs and expenses relating to the order made.88
The marine safety regulation regime in Australia is based upon SOLAS and other international conventions that adopt various international maritime safety standards.89 Australia’s obligations under SOLAS extend to the new ‘verified gross mass’ regulations, which are implemented through Marine Order 42 (Carriage, stowage and securing of cargoes and containers) 2016, which commenced on 1 July 2016.
In particular, Australia’s marine safety regime incorporates IMO codes,90 industry-recognised codes91 and other relevant marine safety convention requirements. In some cases, however, a higher degree of safety regulation compliance is required under Australian law and those requirements are expressly implemented by way of specific regulations.
In 2013, the marine safety regulatory regime in Australia was restructured.92 The AMSA at that point became the national marine safety regulator for all commercial vessels and now regulates a much greater number of coastal vessels than previously.93 The state and territory marine regulators have retained responsibility for marine safety regulation of recreational vessels only.
The Acts implementing the new marine safety regulation structure are the Navigation Act 2012 (Cth) and the Marine Safety (Domestic Commercial Vessel) National Laws Act 2012 (Cth). This legislation enables marine safety regulations and marine orders94 to be created for regulatory purposes. Although marine safety compliance provisions can be found in both Acts and their associated regulations, specific safety compliance details are generally prescribed by way of marine orders.
The definitions of ‘regulated Australian vessel’ and ‘foreign vessel’ under the Navigation Act 2012 (Cth) are fundamental to determining which Act or safety regime applies to any particular vessel.
ii Port state control
The AMSA is the authorised Australian authority responsible for performing port state control inspections under Chapter 1, Part B, Regulation 19 and Chapter 11-1, Regulation 4 of SOLAS.
The legislative provisions empowering the AMSA to inspect foreign ships, issue notices for deficiencies and detain foreign vessels as a result of marine safety issues are found in Chapter 8, Part 4 of the Navigation Act 2012 (Cth).95
Australia has a rigorous system of port state control. In 2016, of the 27,516 foreign ship visits to Australia (by 5,719 foreign-flagged vessels), the AMSA performed 3,675 port state control inspections.96 In that period 8,942 deficiencies were found, with 246 vessels being detained because of the severity of those deficiencies.97 Deficiencies on detained vessels generally related to international safety management, fire safety, life-saving appliances, water-tight or weather-tight conditions and emergency systems.98
The AMSA also publishes monthly detention lists on its website.99 These lists identify the particulars of a detained vessel: its registered owner, the ISM manager and classification society, and a description of the deficiencies found. In some cases, images of deficiencies are provided.
Australia has entered into port state control memoranda with the Indian Ocean Memorandum of Understanding (MOU) and the Tokyo MOU.100
In maintaining its rigorous port state control inspection strategies, the AMSA also participates in ‘focused inspection campaigns’ in cooperation with port state control MOU groups. Industry is advised publicly of any planned focused inspection campaigns one month before it commences through the issuance of an Australian notice to mariners.101
Figures currently available indicate that in September 2017, 251 foreign ships were inspected, 569 deficiencies were found and 16 foreign ships were detained.102
iii Registration and classification
The primary legislation governing ship registration in Australia is the Shipping Registration Act 1981 (Cth) (SRA), with its associated regulations.103 The SRA sets out the conditions for ship registration and the granting of Australian nationality to ships. Once registered, the SRA imposes obligations on the owner or registered agent to ensure the register remains current.
The SRA also established the Australian Shipping Registration Office (located within the Canberra office of the AMSA), whose responsibilities include the establishment of the ownership of ships, the granting of certificates, the issue of continuous synopsis records to ships required to carry them and providing public access to the information held in Australia’s ship registries.104
Australia has two registers: the Australian General Register (AGR) and the Australian International Shipping Register (AISR).
The AGR is primarily used for domestic vessels and internationally certified Australian vessels. The AISR is intended to record international trading ships that meet specific criteria.
A guide to registering ships in Australia can be found on the AMSA website.105 All Australian-owned commercial ships 24 metres and over in tonnage length capable of navigating the high seas must be registered.106 All other craft, including government ships, fishing and pleasure craft need not be registered, but may be if the owners desire.107
Any ship demise chartered to an Australian-based operator, or any craft under 12 metres in length, owned or operated by Australian residents, nationals or both, can be registered if the owner or operator wishes.108
It is important to note that the Australian registers of ships only contain matters required or permitted by the SRA to be entered in the register. Registers no longer include details regarding mortgages, liens and other financial or security interests in a vessel. Any financial or security interests must be registered on the Personal Property Securities Register (PPSR), which is an entirely separate register operated by a separate government body.109 The interest of an owner or bareboat charterer may also be registered on the PPSR.110
The classification societies that operate in Australia are listed on the AMSA website and are International Association of Classification Society (IACS) members. Not all classifications societies have offices in Australia.
iv Environmental regulation
Regulation of environmental matters in the context of shipping is extensive, and at times complex as a result of the interplay between Commonwealth and state or territory jurisdictions within Australia. Depending on the location of the vessel and any pollution originating from the vessel within Australian waters, Commonwealth or state or territory marine environmental legislation (or both) may be applicable.
The principal marine environmental convention enacted into Australian law is MARPOL (73/78). Other relevant environmental legislation includes that which prohibits pollution by ship anti-fouling paint111 and the introduction of invasive marine species from contaminated ballast water.112
Ship operational pollution prevention obligations under MARPOL are enacted in Australia under the Navigation Act 2012 (Cth) and Marine Orders.113 These obligations are applicable to Australian vessels anywhere in the world, as well as foreign vessels within Australian waters. The federal enforcement legislation relevant to pollution events is the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth) (MARPOL legislation).
Each state or territory also has its own applicable enforcement legislation used for ship operational pollution events.114
In its 2014–2015 annual report, the AMSA indicated that within the reporting year it had secured one successful prosecution for breach of the MARPOL legislation.115 However, since then no successful MARPOL prosecutions have been reported by the AMSA.
Similarly, state and territory prosecutions have been few in number. Marine pollution prosecutions under the aforementioned acts are generally commenced in inferior courts and information about successful prosecution proceedings is limited. However, the prosecutions include:
- the container carrier ANL Kardinia, prosecuted under the MARPOL legislation for offences concerning disposal of rubbish near the Townsville coast;116
- the container carrier MSC Carla, prosecuted under the Marine Pollution Act 1987 (NSW) for oil pollution in the port of Botany Bay; and117
- the container carrier Pacific Adventurer, prosecuted under the Transport Operations (Marine Pollution) Act 1995 (QLD) for oil pollution offshore Moreton Island, Queensland.118
v Collisions, salvage and wrecks
Australian Commonwealth and state or territory maritime legislation give effect to the COLREGs.
A peculiarity that arises from Australia’s federal legal system is that the Commonwealth application of the COLREGs is restricted on the high seas119 to regulated Australian vessels,120 domestic commercial vessels121 and recreational craft122 (collectively, ‘Australian vessels’), and Australian vessels and foreign vessels123 in:
- the Australian Exclusive Economic Zone;124
- the Australian Territorial Sea;125 and
- internal waters.126
Domestic commercial vessels and recreational craft must comply with the COLREGs that apply to them through state or territorial legislation when a vessel is within the legislative jurisdiction127 of that state or territory.128
Legislation relating to wrecks and salvage is set out in Chapter 7 of the Navigation Act 2012 (Cth) and in various pieces of state or territory legislation that confer miscellaneous powers on port authorities and harbour masters in relation to wrecks and salvage. Part 2 of Chapter 7 of the Navigation Act 2012 (Cth)129 only applies to regulated Australian vessels and foreign vessels, and places a mandatory obligation on the owner and master to notify the AMSA of a wreck.130
For domestic commercial vessels, the Marine Safety (Domestic Commercial Vessel) National Laws Act 2012 (Cth) does not contain a provision expressly for wrecks but confirms the continuing application of state or territory laws on this matter.131 It is also to be noted that Australia has not adopted the Nairobi Convention on wreck removal.
Australia has adopted the Salvage Convention 1989 into Australian law, but not all its articles. At present, only certain articles are adopted through marine regulations permitted by Part 3 of the Navigation Act 2012 (Cth). The adopted Convention articles are listed in Regulation 17 of the Navigation Regulation 2013 (Cth), which also adopts the Convention’s common understanding for Articles 13 and 14.132
vi Passengers’ rights
Although Australia is not a party to the Athens Convention, the Australian government is currently conducting a consultation process regarding Australia’s possible ratification of the Athens Convention. This is discussed further in the Outlook section, below.
A shipowner is obliged to report to the AMSA any incident that involves the death or serious injury of a person, including a passenger, and failure to do so is an offence.133
A passenger’s passage money is treated as being equivalent to freight. Therefore, the master has a lien on the passenger’s luggage for unpaid passage money. If the ship is lost before the contracted voyage commences, the passage money is returnable. Once a voyage has commenced, passage money is generally not returnable. If the voyage is a pleasure cruise, however, the loss of a ship may give rise to a claim for breach of contract on the basis of the distress and disappointment caused by the loss.
Claims for death or personal injury sustained in consequence of a defect in a ship or its equipment, or arising out of an act or omission by the shipowner (or any person for whose actions the shipowner or charterer is vicariously liable) are general maritime claims for the purposes of federal jurisdiction. Alternatively, claims for loss of life or personal injury may be brought in the Australian state courts. These claims are generally claims in contract or in tort in favour of the affected passenger or his or her estate. The carrier owes a duty to passengers to take reasonable care in respect of their safety.
Passenger claims for loss of life or personal injury brought by a person carried in a ship under a contract of passenger carriage134 are subject to a limitation of liability in the amount of 175,000 units of account multiplied by the number of passengers the ship’s certificate authorises it to carry.135
vii Seafarers’ rights
The Maritime Labour Convention 2006 (MLC) came into force in Australia on 20 August 2013.
Pursuant to the Navigation Act 2012 (Cth), Marine Order 11 (among other Marine Orders, which are legislative instruments under the Navigation Act) and the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth), many aspects of the MLC are mandatory for regulated Australian vessels.136
The MLC applies to all seafarers with few exceptions.137 Where the MLC is not applicable, the provisions of the Fair Work Act 2009 (Cth) operate to require minimum terms and conditions for seafarers.
The AMSA is the relevant authority responsible for inspections and enforcement of the MLC. AMSA surveyors are empowered to inspect most ships at Australian ports to ensure they comply with the MLC. All foreign-flagged vessels within Australian waters may be subject to Australian port state control inspections by the AMSA, which will include checks to ensure that MLC requirements for working and living conditions are being met.
The AMSA has the power to detain vessels for failure to comply with the MLC138 and has done so as recently as 14 September 2017, when the Panamanian-flagged bulk carrier DL CARNATION was detained for seven days while an investigation into crew wage discrepancies was conducted by the AMSA. The investigation, which revealed serious underpayment of certain crew members, caused the AMSA to issue an immediate 12-month ban on the vessel returning to Australia after release from detention.139
In March 2017, the Australian government released the Coastal Shipping Reforms Discussion Paper (Coastal Trading Discussion Paper).140 The Coastal Trading Discussion Paper was prepared in response to concerns raised by operators and agents of both Australian and foreign-flagged ships engaged in cabotage trade, about the unnecessary burdens created under the Coastal Trading (Revitalising Australian Shipping) Act 2012.
In all, 67 submissions were received from stakeholders in response to the Coastal Trading Discussion Paper. On 13 September 2017, the government introduced the Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017 into Parliament,141 which aims to create a simpler and more flexible coastal shipping industry that carries an increased share of Australia’s freight. The reforms are based on those proposed in the Coastal Trading Discussion Paper including: the removal of the five-voyage minimum requirement for a temporary licence; extending the geographical reach of the Coastal Trading Act to include voyages between the mainland and other defined places in Australian waters, such as offshore installations; and amending the definition of ‘coastal trading’ to include vessels in dry dock.142
In November 2017, the Australian government released a discussion paper concerning the Carriage of Passengers and their Luggage by Sea (Athens Convention Discussion Paper).143 The Athens Convention Discussion Paper was prepared as part of a consultation process on Australia’s possible ratification of the Athens Convention. This matter is under consideration as a consequence of, among other things, a significant increase in the number of international cruise passengers visiting Australia in recent years. The purpose of the consultation process is to assess the adequacy of the current legal framework regarding the international carriage of passengers by sea, particularly the compensation and liability regime for passengers, and the commercial implications if Australia were to ratify the Athens Convention. Submissions were encouraged from stakeholders by the Department of Infrastructure and Regional Development and responses were due in January 2018.144 The submissions are likely to inform the Department’s advice to the government on possible accession to the Athens Convention. If the government decides to proceed with accession, the process could take more than 18 months, given the need to develop new legislation.
Despite Australia’s position as one of the world’s largest producers and exporters of liquefied natural gas (LNG), parts of Australia are currently experiencing significant energy supply issues, with consequent increases in both wholesale and retail domestic energy prices. To address this growing problem, some local energy companies have been considering the possibility of importing lower cost foreign products, such as LNG and liquefied petroleum gas (LPG), for domestic use. In addition to an increase in shipping activity, such projects would require the construction and operation of appropriate import terminals, with connections to existing distribution networks. In this regard, at least one local operator has been actively considering the use of a floating storage and re-gasification unit for the import of LNG into the domestic market. Such a project, if it proceeds, would be the first of its kind in the Australian market, and may give rise to a range of novel operational, regulatory and commercial considerations.
In relation to maritime safety, the AMSA continues to exercise its powers to ban vessels that experience repeated breaches resulting in detentions from Australian ports, on the basis that they pose an increased risk to seafarers, vessels or the environment.145 We expect this practice to continue, and foreign-flagged vessels will need to ensure that they remain in compliance with all relevant regulations, including MLC requirements as discussed in Section VI.vii, to avoid significant delays and the associated costs implications. It is also expected that the Australian government and the International Transport Workers’ Federation will continue to take a strict approach against vessels that underpay foreign crew while working in Australian waters, in accordance with Australia’s Coastal Trading rules.146
A potential development in the Australian maritime industrial relations landscape that has the capacity to have a significant impact on the Australian shipping sector is the application by the Maritime Union of Australia (MUA), the Construction, Forestry, Mining and Energy Union (CFMEU) and the Textile Clothing and Footwear Union of Australia to amalgamate to create what as been referred to as a ‘super union’. The Fair Work Commission (FWC) has approved the amalgamation of the unions. However, the objecting parties have lodged an appeal that is scheduled to be heard by the Full Bench of the FWC in the second quarter of 2018. The objecting parties were denied a stay of the amalgamation and consequently it became operational from 27 March 2018. The decision of the Full Bench of the FWC can be appealed to the Federal Court of Australia for judicial review. Accordingly, the final resolution of the amalgamation is unlikely to occur for some time. The Australian Logistics Council, which represents several major Australian logistics companies and retailers, has labelled the amalgamation as an ‘all-powerful mega union’, which would ‘grant an industrial monopoly over the nation’s supply chain to a union behemoth’. Given the history of involvement by the CFMEU and the MUA in industrial action, the prospect of an amalgamation of the unions will be of concern to the Australian shipping and logistics sectors.
1 Gavin Vallely and Simon Shaddick are partners, and Alexandra Lamont is an associate at HFW.
2 Angela Gillham, Acting Executive Director of the Australian Shipowners Association, 8 April 2014.
3 PwC Australia, ‘The economic contribution of the Australian maritime industry’, prepared under instruction for the Australian Shipowners Association, February 2015.
4 Cruise Lines International Association, ‘Cruise Industry Source Market Report’, 2016.
5 On 8 April 2014, the Hon Warren Truss, in his former capacity as Minister for Infrastructure and Regional Development, announced the release of an Options Paper on approaches to regulating coastal shipping in Australia. On 25 June 2015, the Shipping Legislation Amendment Bill 2015 was introduced to the House of Representatives; however, the Bill was rejected by the Senate on 26 November 2015 after attracting only two of the five cross-bench votes required to ensure its passage. In March 2017, the Minister for Infrastructure and Transport issued a Discussion Paper for Coastal Shipping Reforms calling for submissions by 12 May 2017. At the time of this update, the result of that process has yet to be concluded.
6 Australia Maritime Safety Authority (AMSA), ‘List of Registered Ships’, www.amsa.gov.au/vessels/shipping-registration/list-of-registered-ships/. All 11.929 vessels are on the Australian General Shipping Register and there are no vessels listed on the Australian International Shipping Register.
7 Note that approximately 301 of these vessels are tugs.
8 This does not include the 42 vessels listed on the Australian Shipping Register that were not yet registered.
9 Indicating that these vessels have in the past been, or are capable of being, employed on international voyages.
10 Of these, seven are floating production storage and offloading (FPSO) vessels, 243 are tugs and seven are dredgers.
11 Bureau of Infrastructure, Transport and Regional Economics, ‘Australian sea freight 2014–15’ (2017), page v, available at http://bitre.gov.au/publications/2017/files/asf_2014_15.pdf.
12 Department of Infrastructure and Regional Development, ‘Coastal Trading Licensing and Publications’, ‘General Licences Granted’, at www.infrastructure.gov.au/maritime/business/coastal_trading/licencing/index.aspx. This figure does not include the six vessels which have surrendered their general licence.
13 Department of Infrastructure and Regional Development, ‘Coastal Trading Licensing and Publications’, ‘Transitional General Licences Granted’, available at www.infrastructure.gov.au/maritime/business/coastal_trading/licencing/index.aspx. This figure does not include the 11 vessels that have surrendered their transitional licence.
14 NOPSEMA, ‘Annual Report 2016–2017’, 2017, page 22, available at https://www.nopsema.gov.au/assets/Publications/NOPSEMA-Annual-Report-2016-17.pdf.
15 AMSA, ‘Port State Control 2016 Report Australia’, page 4, available at https://www.amsa.gov.au/port-state- control-report-2016.
16 Sections 51(i) and 98 of Commonwealth of Australia Constitution Act.
17 Victoria, New South Wales, Queensland, Tasmania, Western Australia and South Australia.
18 The Northern Territory and the Australian Capital Territory.
19 Section 109 of the Commonwealth of Australia Constitution Act.
20 See further the Seas and Submerged Lands Act 1973 (Cth).
21 Being the area within three nautical miles of the declared Territorial Sea Baseline.
23 The Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth).
24 For example, the Limitation of Liability for Maritime Claims Act 1989 (Cth).
25 Section 4 of the Admiralty Act 1988 (Cth). Admiralty jurisdiction is discussed further in Section V.
26 See CMA CGM SA v. The Ship ‘Chou Shan’ (2014) 311 ALR 234 and Atlasnavios Navegacao LDA v. The Ship ‘Xin Tai Hai’ (No. 2) (2012) 301 ALR 357.
27 See, for example, Section 7(2) of the International Arbitration Act 1974 (Cth).
28 As adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985, and amended on 7 July 2006.
29 AMTAC is an industry association affiliated with the Australian Centre for International Commercial Arbitration; see further at www.amtac.org.au.
30 Uniform Commercial Arbitration Act legislation was enacted in each state and territory between 2010 and 2012.
31 Section 5 of the Foreign Judgments Act 1991 (Cth).
32 Section 8(5) of the International Arbitration Act 1974 (Cth).
33 Ibid., Section 8(7).
34 This was on the basis that the underlying arbitration clause was found to be in contravention of the Carriage of Goods by Sea Act 1991 (Cth). The decision in Dampskibsselskabet Norden A/S v. Beach Building & Civil Group (2012) 292 ALR 161 was later reversed on appeal on a separate point; see  FCAFC 107. The relevant federal legislation is discussed in Section IV.ii.
35 Section 11(2)(a)-(b) of the Carriage of Goods by Sea Act 1991 (Cth).
36 Ibid., Section 11(2)(c).
37 See, for example, the recent decisions referred to in footnote 34.
38 Section 8 of the Carriage of Goods by Sea Act 1991 (Cth). The unamended Hague-Visby Rules appear in Schedule 1 of the Act. The Modified Rules appear in Schedule 1A of the Act.
39 Ibid., Section 10, and Schedule 1A, Article 10(1).
40 Ibid., Section 10, and Schedule 1A, Article 10(4).
41 Ibid., Schedule 1A, Article 10(2).
42 Ibid., Schedule 1A, Article 1(1)(g).
43 See Dampskibsselskabet Norden A/S v. Beach Building & Civil Group  FCAFC 107.
44 For example, the Sea-Carriage Documents Act 1997 (NSW). In the State of Victoria, the legislation is contained in Part IVA of the Goods Act 1958 (Vic).
45 Section 8(1)-(2) of the Sea-Carriage Documents Act 1997 (NSW). Section 5 sets out a detailed definition of ‘lawful holder’.
46 The application of the Modified Rules is discussed generally in Section IV.ii.
47 Schedule 1A, Article 1(3)-(6) of the Carriage of Goods by Sea Act 1991 (Cth).
48 Ibid., Schedule 1A, Article 2(2). However, in some cases the shipper and carrier may agree to contract out of this: see Article 6A.
49 Ibid., Schedule 1A, Article 4A.
50 Ibid., Schedule 1A, Article 4(5).
51 Ibid., Schedule 1A, Article 3(6).
52 Ibid., Schedule 1A, Article 3(8). See, however, Articles 6 and 6A.
53 See the Limitation of Liability for Maritime Claims Act 1989 (Cth).
54 See the Limitation of Liability for Maritime Claims Amendment Bill 2015 (Cth).
55 See the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth).
56 Article 6 of the Bunker Convention.
57 See Qenos Pty Ltd v. The Ship ‘APL Sydney’ (2009) 260 ALR 692. Claims for pure economic loss are prima facie recoverable in tort in Australia.
58 See Strong Wise Ltd v. Esso Australia Resources Pty Ltd (2010) 267 ALR 259.
59 As with, for example, the case of The ‘Pacific Adventurer’ in the State of Queensland in 2009.
60 See Barde AS v. ABB Power Systems (1995) 69 FCR 277.
61 See the Protection of the Sea (Civil Liability) Act 1981 (Cth).
62 IMO resolution LEG.1(82) adopted on 18 October 2000.
63 See Article 2(1) of the Protocol of 1992 to the Civil Liability Convention.www.hfw.com/FPSO-legal-and-regulatory-issues-Sept-2012
64 See further www.hfw.com/FPSO-legal-and-regulatory-issues-Sept-2012.
65 See Scandinavian Bunkering AS v. Bunkers on board the ship ‘FV Taruman’ (2006) 151 FCR 126.
66 Section 15 of the Admiralty Act 1988 (Cth). These include liens for salvage, damage done by a ship, wages of the master or crew, and master’s disbursements, but not for bunkers supplied to a ship.
67 Ibid., Sections 4(2) and 16.
68 Ibid., Sections 4(3) and 17.
69 Ibid., Section 4(3)(m).
70 Ibid., Section 4(3)(s).
71 See Transfield ER Futures Ltd v. The Ship ‘Giovanna Iuliano’ (2012) 292 ALR 17.
72 Admiralty Act 1988 (Cth), Section 4(3)(m).
73 See ‘Sam Hawk’ v. Reiter Petroleum Inc  FCAFC 26.
74  AC 221.
76 Section 19 of the Admiralty Act 1988 (Cth), where the term ‘surrogate ship’ rather than ‘sister ship’ is used.
77 See Malaysia Shipyard v. ‘Iron Shortland’ as surrogate for the ‘Newcastle Pride’ (1995) 131 ALR 738.
78 The court will only pierce the corporate veil where there is evidence of fraud. See further Comandate Marine Corp v. The Ship ‘Boomerang I’ (2006) 234 ALR 169, and Safezone Pty Ltd v. The Ship ‘Island Sun’ (2004) 215 ALR 690.
79 Section 29 of the Admiralty Act 1988 (Cth).
80 See Atlasnavios Navegacao LDA v. The Ship ‘Xin Tai Hai’ (No. 2) (2012) 301 ALR 357.
81 Rule 41 of the Admiralty Rules 1988 (Cth).
82 Section 34 of the Admiralty Act 1988 (Cth).
83 Rule 69 of the Admiralty Rules 1988 (Cth).
84 Ibid., Rule 69(5).
85 See, for example, Bank of China Ltd v. The Ship ‘Hai Shi’ (No. 2)  FCA 225.
86 See Marinis Ship Suppliers Pty Ltd v. The Ship ‘Ionian Mariner’ (1995) 59 FCR 245.
87 Rule 70 of the Admiralty Rules 1988 (Cth).
88 Ibid., Rule 69(4).
89 See, for example, the International Convention on Tonnage Measurement of Ships and the International Convention on Load Lines.
90 Examples include the IMDG Code, the IMSBC Code, Code of Safety for Special Purpose Ships, ISM Code and the International Code of Signals.
91 See, for example, the ICS Guide to Helicopter/Ship Operations.
92 Previously, owing to the federal structure of Australia’s states and territories, there was a risk that marine safety regulations for commercial vessels could be inconsistently implemented across the various state and territory marine authorities and AMSA.
93 Before the reorganisation, AMSA only regulated: vessels travelling to (or from) Australia from (or to) a place outside Australia; non-SOLAS trading vessels on interstate coastal voyages; SOLAS-certificated ships on interstate coastal voyages; and all other ships that were not excluded by the Act.
94 Section 163 of Marine Safety (Domestic Commercial Vessel) National Laws Act 2012 (Cth) and Section 342 of Navigation Act 2012 (Cth).
95 Environmental enforcement powers are dealt with separately.
96 AMSA, ‘Port State Control 2016 Report Australia’, page 4.
98 Ibid., page 6.
101 Notices to mariners are available on the AMSA website.
102 AMSA, ‘AMSA detention List – September 2017’, https://www.amsa.gov.au/vessels-operators/inspection-non-australian-ships/ship-detention-list-september-2017.
103 The Australian Shipping Registration Regulations 1981 (Cth).
104 Extract from the AMSA website: https://www.amsa.gov.au/vessels-operators/ship-registration.
105 AMSA, ‘Guide to the Registration of a Ship’; see also: https://www.amsa.gov.au/vessels-operators/ship-registration/australian-international-shipping-register.
106 Sections 12 and 13 of the Shipping Registration Act 1981 (Cth).
107 Ibid., Sections 13 and 14.
108 Ibid., Sections 9 and 14.
109 The Personal Property Securities Act 2009 (Cth) is the relevant legislation governing the PPSR and the handling of security interests in Australia.
110 See Section 13 of the Personal Property Securities Act 2009 (Cth) relating to a ‘PPS Lease’.
111 Protection of the Sea (Harmful Anti-fouling Systems) Act 2006 (Cth) and Marine Order 98, which give effect to the International Convention on the Control of Harmful Anti-fouling Systems on Ships, 2001.
112 Quarantine Act 1908 (Cth). The ‘Australian Ballast Water Management Requirements’ information is available from the Department of Agriculture and Water Resources.
113 Marine Order 91 – Oil; Marine Order 93 – Noxious liquids substances; Marine Order 94 – Packaged hazardous substances; Marine Order 95 – Garbage; Marine Order 96 – Sewage; and Marine Order 97 – Air pollution.
114 Legislation includes: the Marine Pollution Act 2012 (NSW), Protection of Marine Waters (Prevention of Pollution from Ships) Act 1987 (SA), Pollution of Waters by Oil and Noxious Substances Act 1987 (WA & Tas), Pollution of Waters by Oil and Noxious Substances Act 1986 (VIC), Environment Protection Act 1970 (VIC), Transport Operations (Marine Pollution) Act 1995 (QLD) and Marine Pollution Act 1999 (NT).
115 AMSA, ‘Annual Report 2015–2016’, page 33. The prosecution was in relation to the ANL Kardinia for disposal of food waste into the sea in the Great Barrier Reef Marine Park, February 2015.
116 See https://www.amsa.gov.au/marine-environment/pollution-response/oil-and-chemical-pollution-prosecutions, prosecuted in the Brisbane Magistrates’ Court.
117 (1 September 2009) Filipowski v. Hermania Holdings SA; Filipowski v. Rajagopalan (No. 2)  NSWLEC 104.
118 (14 October 2011) Indictment No. 2355 of 2010, The Queen v. Bernardino Gonzales Santos and Ors.
119 As defined in the Law of the Sea Convention.
120 As defined in Section 15 of the Navigation Act 2012 (Cth).
121 As defined in the Marine Safety (Domestic Commercial Vessel) National Laws Act 2012 (Cth).
122 As defined in Section 14 of the Navigation Act 2012 (Cth).
124 As defined in the Law of the Sea Convention.
127 Note that this is to be distinguished from the geographical (maritime) state limit.
128 By way of example, the COLREGs in Queensland are applied to ships ‘connected with Queensland’ wherever they are (including overseas and outside Queensland waters) pursuant to Section 11 of the Transport Operations (Marine Safety) Act 1994 (Qld) and Transport Operations (Marine Safety) Regulation 2004 (Qld). By way of further example, in Victoria the COLREGs are enacted through the Marine Safety Act 2010 (Vic) and Part 6, Division 5 of the Marine Safety Regulations 2012 (Vic), with the regulations disapplying COLREGs in limited circumstances.
129 Relating to wrecks.
130 Section 232 of the Navigation Act 2012 (Cth).
131 Section 6(2)(b)(viii) of the Marine Safety (Domestic Commercial Vessel) National Laws Act 2012 (Cth).
132 Schedule 1 of the Navigation Regulation 2013 (Cth) – the tribunal is under no obligation to fix a reward up to the maximum value of the saved vessel or property.
133 Section 185(2) of the Navigation Act 2012 (Cth).
134 Article 7(2)(a) of the LLMC Convention. Or who, with the consent of the carrier, is accompanying a vehicle or live animals covered by a contract for the carriage of goods (Article 7(2)(b) of the LLMC Convention).
135 Article 7(1) of the LLMC Convention (as varied by Article 4 of the 1996 Protocol). See also www.infrastructure.gov.au/maritime/business/liability/claims.aspx.
136 As defined by Section 15 of the Navigation Act 2012 (Cth).
137 As defined by Section 14 of the Navigation Act 2012 (Cth).
138 A list of all vessels detained by AMSA is available at https://www.amsa.gov.au/vessels-operators/inspection-non-australian-ships/ship-detention-list-september-2017.
139 HFW Australia, ‘MLC Update: Australia Imposes Lengthy Bans on Vessels for Failures to Pay Crew Wages’, www.hfw.com/downloads/HFW-MLC-Update-Australia-imposes-lengthy-bans-on-vessels- September-2017.pdf.
140 Department of Infrastructure and Regional Development announcement dated 21 March 2017 is available at http://minister.infrastructure.gov.au/chester/releases/2017/march/dc063_2017.aspx.
141 See HFW Australia’s Briefing Note, ‘Coastal Trading (Revitalising Australian Shipping) Amendment Bill 2017’, www.hfw.com/Coastal-Trading-Revitalising-Australian-Shipping-Amendment-Bill-2017- September-2017.
142 As at the date of this publication, no date has yet been set for the Bill’s second reading before the House of Representatives. The Bill’s first reading took place on 13 September 2017.
143 Department of Infrastructure and Regional Development announcement dated 21 March 2017 is available at https://infrastructure.gov.au/maritime/business/liability/files/athens_convention_discussion_paper.pdf.
144 Submissions were made publicly available and can be found at https://infrastructure.gov.au/maritime/business/liability/damage_luggage.aspx.
145 AMSA, Annual Report 2015–2016, page 33. AMSA banned one vessel for periods of three or 12 months, namely, the ANL Kardinia.
146 ‘Shipping company in court for allegedly underpaying seafarers by $255,000’, Fair Work Ombudsman: https://www.fairwork.gov.au/about-us/news-and-media-releases/ 2017-media-releases/april-2017/ 20170408-transpetrol-litigation.