MAY 2009

IN THIS ISSUE

Please Select an Article to Read

• Climate change - Australia’s carbon emissions trading scheme
• New law to force personal business freight rates to be quoted ‘all in’
• New Australian Guidelines for the issue of Coasting Trade Licences & Permits
• Anti-fouling paints
• Ship arrest in Australia - a straightforward way to secure Maritime claims
• A move towards borderless trucking regulation
• Australia and New Zealand close the gap on legal process
• Timely reminder of obligations when a pollution discharge occurs
• Limitation of Liability in Maritime Claims

 

Timely reminder of obligations when a pollution discharge occurs

Following the recent oil spill at Moreton Island in Queensland, we remind vessel operators and masters of their discharge and reporting obligations under the Australian and State legislation which enacts the MARPOL Convention and Annexes into Australian law. Obligations are contained in both Commonwealth (Protection of the Sea (Prevention of Pollution from Ships) Act 1983) and State legislation (which has corresponding provisions to the Commonwealth Act and enacts the MARPOL Convention and Annexes). The State legislation applies to discharges in internal waters and up to three nautical miles from land, with Commonwealth legislation applying to discharges that occur beyond that and up to the Economic Exclusion Zone (200 nautical miles from land).

For example, the Commonwealth legislation prescribes a strict duty to report on certain “prescribed incidents” involving the discharge of certain substances. A “prescribed incident” is defined to include “an incident involving a discharge from the ship of a liquid substance, or mixture containing a liquid substance, carried as cargo or as part cargo in bulk”. Where a “prescribed incident” occurs in relation to a ship, the master of the ship has the primary obligation to notify the relevant authority without delay. A “prescribed incident” includes the discharge of oil, garbage, sewage, chemicals and other harmful substances. A “prescribed incident” can also include air emissions.

Significant penalties can apply if a vessel operator or master does not fulfil their obligations to report on a “prescribed incident”. Under the Commonwealth Act, failure to report is a strict liability offence and can result in penalties up to $55,000 per offence.

Should a discharge occur, the Commonwealth and State legislation provides a strict liability regime, with usually only a limited defence if the discharge from the ship was for the purpose of securing the safety of the ship and the persons on board the ship or saving life at sea. Should a discharge occur and the master and/or vessel operator is unable to rely on a defence, the master and vessel operator will be open to prosecution by the relevant authority. Varying penalties apply across the States and Commonwealth and for example, in New South Wales the penalty for oil discharged from a vessel is up to $500,000 for an individual and as much as $10 million for the ship operator.

Australian maritime authorities are typically vigilant in their enforcement of pollution laws, so vessel operators and masters should remain attentive to meeting their obligations under the relevant Australian legislation, and of course prevention is always the best cure!

 

Written by Matthew Brooks - Special Counsel and Kristin Hibbard - Graduate at Law