Rise in ship detentions by AMSA

26 April 2017

We wish to draw your attention to the most recent Australian Maritime Safety Authority (AMSA) Port State Control 2016 Report which noted an increase in ship detentions since 2015, throughout Australian Ports.

The Role of AMSA and the Port State Control Regime

Established under the Australian Maritime Safety Authority Act 1990 (Cth), AMSA is the statutory body invested with the responsibility of ensuring the safety of Australian flagged and foreign flagged vessels in Australian ports. The Port State Control (PSC) is one of the strategies employed by AMSA in ensuring that maritime trade, and the Australian coastline, remains safe. Put generally, AMSA is a Commonwealth Regulator with substantial powers.

In addition to maritime safety, AMSA’s primary functions are to protect the marine environment through preventing and combatting pollution, to provide infrastructure to support safe navigation of Australian waters and to provide effective national search and rescue services to the aviation sector.

As part of its duty to ensure maritime safety, AMSA have the power to detain a vessel pursuant to s 248 of the Navigation Act 2012 (Cth). Section 248(1) provides that AMSA may detain a vessel where AMSA reasonably suspects:

  1. The vessel unseaworthy or substandard; or
  2. The vessel has been or will be involved in a contravention; or
  3. The seafarer of the vessel or person on board of the vessel has been or will be involved in a contravention; or
  4. Both of the following apply:
    1. AMSA suspects the master or seafarer of vessel would contravene this Act if they operated the vessel without a particular certificate or certificates; and
    2. the master of vessel does not produce such certificate to AMSA when requested to do so; or
  5. A provision of this Act provides for AMSA to detain the vessel.
Marine Orders

All vessels are held to international standards set by the International Maritime Organisation and other international conventions and obligations such as the United Nation Convention on the Law of the Sea. AMSA ensures compliance with these standards through the issue of Marine Orders.

Marine Orders are a form of regulation that apply to both Australian and foreign vessels and contain detailed processes and requirements to ensure that legislation is up to date with technological and operational advances.

AMSA has two series of orders – those which reflect international obligations and standards (Marine Orders 1 – 98) and those applying only to domestic commercial vessels (Marine Orders 500 – 507). It is pertinent to keep informed as to the standards set out in these orders so as to not be penalised. Contravention of Marine Orders will likely result in a civil penalty, i.e. a fine, but may also result in civil or criminal court proceedings. Continual poor performance may result in a ban from entering or using Australian ports for up to a period of 12 months.

The 2016 Report
The Results

The PSC 2016 Report found that ship detentions had increased by 2% since 2015 despite a 22.8% decrease in the total number of inspections conducted, including a 9.3% decrease in PSC inspections alone. This was reportedly due to changing domestic laws and less inspection of low priority ships.

A total of 246 foreign-flagged vessels were detained in 2016 for a myriad of reasons with 22.2% of those coming from Taiwan and (interestingly) 11.8% coming from the Netherlands.

Encouragingly, the number of deficiencies found by inspections decreased overall by 5.7% from 2015. There was, however, a 1.7% increase in detainable deficiencies and a slight rise in the average number of deficiencies found per inspection. The detention rate of ships also increased in the past year from 6% in 2015 to 6.7% in 2016.

Despite these increases, AMSA reassured that these values were low in the context of the 10 year summary table.

Grounds for Detention

Since 2010, the most prevalent cause of detention relates to the operation of the safety management system required by the International Safety Management Code. These include issues to do with planning and conduct of voyages.

In addition to these, in 2016, material issues such as fire safety, failure to comply with emergency equipment standards and lifesaving appliances were the regular causes of detention. These issues have continued to be a consistent trend for the past three years.

AMSA also noted that a number of detentions were related to the general down turn in the global shipping industry. Financial difficulties for some ship owners and operators appear to have led to an inability to maintain their vessels and conditions to international standards.

Changes in the PSC Regime and adoption of MLC Convention

AMSA credits the over positive effect the PSC regime is having on the quality of shipping to a change in the regulatory framework under the relatively new Navigation Act and the adoption of the Maritime Labour Convention 2006 (MLC).

The MLC is an international convention developed by the International Labour Organisation that consolidates a number of existing labour conventions and introduces modern standards re living and working conditions. In 2016, the MLC entered its third year of adoption in Australia resulting in a maturing of knowledge and seemingly better adoption of these protocols.

ITF Detentions

Whilst the ITF have no legal nexus to AMSA, and although Secondary Boycotts of vessels are unlawful, nonetheless the ITF remain active in Australia. Clients are encouraged to review all relevant crewing arrangements.

For further information on these findings and the potential impact it may have on your operations, please contact a member of our team.

This article was written by Joe Hurley, Partner and Heidi Dopson, Graduate-at-Law.

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