By Marcel Vaarzon-Morel
Aims of AMSA
Under AMSA (Australian Maritime Safety Association) new National Standards have several aims, including simplifying maritime safety laws, removing barriers to inter-state commercial business activities; providing uniform safety requirements and standards; and providing a national framework for enforcement and compliance with these standards. Under the National Standards, AMSA becomes the national regulator, and has its 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.
In line with the AMSA’s commitment to embrace the continued operation of the Super Yacht industry within Australian waters, AMSA will implement the UK standard known as the Large Commercial Yacht Code (LY3) for Super yacht safety and compliance. This will result in the updating of procedures and standards in relation to how these vessels are designed, built, and operated and to ensure compliance with the new international LY3 code. This Code brings Australia in line with international standard and applies whether the yacht is used for private pleasure or for commercial purposes. By way of historical understanding; LY3 is a revised form of LY2 and its predecessor LY1 introduced in 1997 by the Maritime and Coast Guard Agency and was known as the “Code of Practice for Safety of Large Commercial Sailing and Motor Vessels”, (taking a breath) understandably the name was shortened.
The LY3 code incorporates international conventions that cover safety and pollution prevention standards and were originally drafted to meet the needs of large commercial shipping that for the obvious reason could not be successfully implemented in their smaller Super Yacht counterparts. The full application of the International Maritime Organisation (IMO) conventions could not be realistically applied to Super Yachts given design constraints and the peculiar environment that these vessels operate. At the time when LY1 was considered it was a concern that the international conventions should not be watered down. The result being that the LY3 does not lower the standard of the IMO safety standards but adapts them to this specialised area of the shipping industry.
Amongst other changes that can be found in Annex 7 of the code, LY3 has been brought up to date to include; the latest technology in radio communication equipment and requirements for masts and rigging for sailing yachts. The result being that compliance with the standards of the Code will entitle a Super Yachts to be issued with certification upon satisfactory completion of surveys and inspections. However, if existing vessels struggle to meet the requirements of the code there is some flexibility and an alternative standard may be considered in specific circumstances. The Code includes alternative requirements for crew accommodation that provide substantial equivalence to the MLC (Maritime Labour Convention), but are more in keeping with the practicalities and purpose of these yachts. Therefore, in real terms, where a cargo ship is not limited to space to meet the required cabin size this can often be a different kettle of fish when the vessel is limited by its size and design.
Application
The code applies to motor or sailing vessels of 24 metres or greater in load length and being 150 gross tons or greater, carrying no more than 12 passengers and being in commercial use for sport or pleasure carrying no cargo. It is understood that AMSA will work with all key industry and stakeholders including, seafarers and the Super Yacht community to implement the new code. It will be interesting as to whether the whole Code will be implemented by AMSA as many of the clause’s make direct reference to parts of the UK law and thus it would not be unreasonable for some minor changes to be made while still in keeping with the purpose of the Code and meeting Australia’s international commitments.
Compliance
Once a vessel is compliant with the code certification can be issued as required by the international convention being surveyed and certified in accordance with the International Load Line Convention. And there are additional requirements for Yachts over 500gt such as in respect to SOLAS (Safety Of Life At Sea). With the introduction of this new code, certain standards, requirements, and obligations are placed on those charged with the responsibility of designing and operating the vessels to ensure compliance resulting in not only a National System but aligning Australia with the rest of the world. Vessels that are compliant with the code are allowed unrestricted geographical access outside Polar regions, with some exceptions. Generally, vessels wishing to operate in the Polar regions must meet the requirements of classification societies as listed in the code.
New or Existing Vessels
In the case of new or existing vessels that do not comply with the code but where its reasonable for changes to be made then the code allows those changes to be made within 18 months. However, how this part of the code will be applied will be dependant on AMSA and its meeting with the key groups.
The Legal implication of Australia embracing the LY3 in litigation is that the standards required under the code to maintain records set by the ISM (International Safety Management) ensure that a designated person or persons keep records and that those are of a certain standard and include all communications. This standard body of evidence is regularly called into evidence relating to seaworthiness and insurance claims as well as many other areas of litigation. While having strong maritime codes are vital in ensuring a safe environment for owners, crews, and other water users as illustrated by the sinking of the luxury yacht “Seafaris” owned by the McCloy Group from Newcastle, Australia. The economic benefits will also be significant for those international vessels visiting Australia or possibly choosing to call Australia home.
Being a shipwright in a previous life and reborn as a lawyer, I have witnessed various changes to the safety standards and legislation that control the use and construction of commercial vessels but not private vessels and further muddying the waters of the private Super Yacht world where often passengers may be paying for there transit.
At Vaarzon-Morel Lawyers, our clients are in the unique position to consult a lawyer who understands all things nautical. If you already own a boat, or are looking to buy, or you need help with any maritime issues choosing Vaarzon-Morel Lawyers is a smart decision. Marcel and the team understand a vessel’s technicalities, talk the industry’s language and provide you with a tailored solution to your maritime-related legal matters. Call us to discuss today (02) 4929 1174.