In the early hours of 3 October 2013 the luxury super yacht “Seafaris” owned by The McCloy Group caught fire and went down off the coast of Cairns. All 16 passengers and crew safely abandoned the ship, before being taken to port by a passing ship responding to the distress call. Luckily no one was hurt but the seriousness of such disasters highlights the importance of maintaining shipping safety standards. Being a shipwright in a previous life and reborn as a lawyer I have witnessed various changes to the safety standards and legislation, which control the use and construction of commercial vessels and it’s these changes that owners of commercial vessels need to be aware of.
The build contracts for Super yachts are specifically drafted to meet the requirements of each individual build. When used for commercial purposes the owners specific design requests must be considered in the context of Classification Societies. There are several international agreements that predominately refer to large commercial ships requiring these large vessels to comply with the International Conventions of safety and pollution. There are also the provisions contained within the International Convention for the Safety of Life at Sea (SOLAS), which contain the minimum standards for the construction, equipment and operation of ships. These include watertight integrity, adequate strength (for example, for dangerous goods), fire protection, life saving appliance, radio communications, navigational equipment and standards surrounding transportation of dangerous goods. There are however, practical constraints that make these conventions impracticable to apply given the relatively smaller size of the Super yachts.
In England, the LY3 code has been developed to simplify this job by bringing all the relevant codes in to one text and making them applicable for sport, and pleasure and commercial yachts alike. The IMO standards are not lowered but made relevant for this very special maritime sector with the LY3 replacing the LY1 developed in 1997 and LY2 developed in 2004 earlier codes. Similarly, in Australia the National Marine Safety Committee (NMSC) has established national policies on commercially operated Super yachts. These provide a nationally consistent approach to govern the commercial operation of Super yachts that does not apply to foreign registered Super yachts conducting an international voyage, even under charter, when passing through Australian waters. These vessels may be granted a temporary recognition as a commercial vessel for a designated period where they carry the relevant Certification such as LY2 (to be LY3) or an equivalent.
The New Australian System
From July 1 2013, the Federal Government’s National System for Domestic Commercial Vessel Safety may apply if you are an owner; designer; operator; crew-member; or user of a commercial vessel. These new national standards for marine safety coincide with the passing of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) and have a direct impact on Australia’s boating and yachting industry. With the introduction of these new laws, certain standards, requirements, and obligations are placed on those charged with the responsibility of designing and operating vessels to ensure compliance with the updated legislation. The National System is a cooperative scheme between the Commonwealth, the States, and the Territories that provides for a single national framework for ensuring the safe operation, design, construction and equipping of domestic commercial vessels. In addition, these new standards operate in harmony with existing state and territory laws regarding water behaviour, fisheries law and environmental protection law. Most importantly, the new standards only apply in the commercial vessel context – recreational boat standards are still governed by state and territory law and therefore are unaffected by the changes from AMSA.
The aims of the National Standards are to simplify maritime safety laws; remove barriers to inter-state commercial business activities; provide uniform safety requirements and standards; and provide a national framework for enforcement and compliance with these standards. Under the National Standards, AMSA becomes the national regulator, with primary responsibilities in relation to:
- Developing national safety standards, guidelines, and codes of practice for marine safety.
- The issuing of identifiers and operation certificates.
- The accreditation of persons and organisations in relation to marine safety training
- Investigation, enforcement, and monitoring activities.
- Consultation with State and Northern Territory bodies regarding the activities of the National Regulator.
The continued operation of the Super yacht industry within Australian waters means updating procedures and standards in relation to how these vessels are designed, built, and operated, to ensure to ensure compliance with the law. New and current commercial businesses need to be aware of the following regulations that will apply as a result of the implementation of the national standards:
Commercial Vessels greater than 7.5 metres in length
- New commercial operations with vessels greater than 7.5 metres in length, or operating in A, B or C waters, or vessels that carry passengers, or vessels specified as high risk will fall under the National Law Survey (Scheme S).
- Vessels in this scheme are required to have a National Law Certificate of Operation. This certificate identifies the vessel(s), its area of operation, its service categories, and the activities related to its operation.
- In addition, vessels in this class are required to have a Certificate of Survey, and the Master (or Engineer or Deck Crew) are required to hold a Certificate of Competency in relation to the vessel.
- Each vessel is also required to display a unique registration identifier issued by the National Regulator.
- Existing vessels in survey prior to the commencement of the National Law will fall within Survey (Scheme S).
- No changes are required to their registration and certification until such a time as these vessels are transitioned onto the National System.
Commercial Vessels less than 7.5 metres in length
- New vessels which are less than 7.5 metres in length, which operate in D or E waters, which do not carry passengers, and are not high risk will not fall within the Survey Scheme.
- These vessels will fall into Scheme NS, which does not require a certificate of survey for their operation.
- These vessels are still required to display their unique registration identifier, as well as have a National Law Certificate of Operation.
- Existing vessels which fall into this category are still required to abide by their State or Territory requirements until certificate and registration renewal is required, at which point, they will transition to the National Law standards.
- Failure to meet these requirements under the National Law can result in the imposition of fines in relation to each contravention.
The national system for domestic commercial vessel safety implies safety duties on owners of commercial vessels. Owners are required to ensure the safety and operation of the vessel, as well as provide and maintain safety equipment in relation to that vessel. Owners are required to provide training or supervision to people on board the vessel to a standard that is reasonably required to ensure their safety. Owners who contravene these duties can face hefty fines or a maximum period of imprisonment of 2 years. Similar duties are imposed on manufacturers, designers, suppliers, and even people who maintain marine vessels to ensure that vessels are built up to a requisite safety standard. The vessel and its related safety equipment must be safe for the purpose for which it has been created. Testing and examination of the vessel and equipment may be required in order for manufacturers, builders etc. to discharge this duty. Breaching these duties attracts the same penalties that may be imposed on owners of vessels.
To summarise, owners, masters, crew members and vessel users must all do what is reasonably capable of being done to ensure the safety of the vessel and the people on board at all times. Moreover, masters of commercial vessels are required to provide assistance to people believed to be in distress on a commercial vessel or in any waters, where it is reasonable to do so. Failure to render such assistance can result in imprisonment for 4 years. Similarly, owners of commercial vessels are required under the National System to report to the National Regulator any marine incidents involving the death or injury of a person, loss of vessel, loss of person from a vessel, or significant damage caused to a vessel. These regulations outline the safety standards that provide the framework for the uniform National System.
The new National Law has the benefit of providing a uniform approach to marine safety in Australia. As a result, owners and operators of commercial vessels, as well as individuals wishing to enter the commercial marine industry must find out whether or not the new regulations apply to them and their business. Chances are high that commercial operators will fall within the scope of the law. Additionally, it is vital that owners and operators understand the ongoing duties and responsibilities imposed upon them by the National Law so as to promote the safe and continued enjoyment of our waterways.