Recent criminal charges brought against the Captain of a ship travelling through the Great Barrier reef raise the question of pilotage of Superyachts through this most precious and spectacular of Marine Parks.
Two days after the 2015 New Years Eve, Vaarzon-Morel Lawyers represented an unlucky Chinese captain who found himself miles from home languishing in the lock-up under Newcastle Court on the east coast of Australia. From his perspective he had reacted quickly so as to rectify any breach of law however, he could not have foreseen how the authorities would act; fast and with so much force. The Australian Federal Police had been immediately notified by Coastal Vessel Traffic Service (REEFVTS) of the captain’s ship entering into the restricted shipping zone without a pilot and while it was part of submissions in court that the captain had reacted immediately, once he realised his mistake, the point was that the captain had breached section 59B of the Great Barrier Reef Park Act 1975. And while this story is about a commercial ship the law applies equally to Superyachts.
Our captain’s ship was en-route to China laden with coal and had berthed at Hay Point where a harbour pilot had embarked for safe passage out of the harbour, either at this point the ship would have been joined by the pilot for the restricted passage or arrived by helicopter en-route. The captain set course for the restricted zone ‘Hydrographers Passage’ and had several conversations with REEFVTS from which he believed a Pilot would be dropped on the ship by helicopter. In court the federal agent prosecuting the matter, who had been flown down from far North Queensland, argued that the captain had intentionally traversed the no go zone and that he had other options. However, the commercial reality is that for a ship traveling north from this point it would have to turn almost 170 degrees, travel to the bottom of the reef and out to sea. The issue being (not wanting to offend those of us including the writer who supports protecting the reef) the cost in contractual and shipping terms would be in the millions. So from our captain’s perspective he was taking a course that he had taken on at least 10 other occasions and believed there would be no issues in relation to the pilot attending the ship and thus meeting the ship’s contractual responsibilities.
The ship had travelled in a Northeasterly direction toward the zone’s entrance for approximately 3 hours and during this passage no notice either way had been received in regards to the pilot. At approximately 0900 hours the ship crossed into the restricted zone through a line that lay between Parker Reef to the northwest and Tern Island in the southeast. In the defence’s submissions it was raised that this line was not depicted on the chart and the lack of access to the coordinates found in a Queensland Government User Guide (that was accessible on the web if access was available) meant that the captain was not aware of the immediate crossover point. Having traversed the line the ship was immediately notified by REEFVTS and then proceeded to take the evasive action of turning around that meant the ship would travel for at least 10 minutes into the restricted zone. Further, it was pointed out to the court that this incursion was at least two and half-hours from the narrows of the restricted zone. In essence while this law is referred to as of ‘strict liability’, in sentencing both subject and objective factors can be referred to in the plea of mitigation.
The Great Barrier Reef is subject to a complicated raft of regulations that deal with all aspects of usage and safety. The Great Barrier Reef Marine Park Act 1975 is the primary legislation which relates to the Great Barrier Reef Marine Park, although Commonwealth and Queensland Government legislation also applies most notably the AMSA legislation including the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.
The compulsory pilotage rules, of which the ship in question fell afoul, apply to all vessels of 70 meters or more in length, irrespective of their use. There are further considerations which owners and captains will need to keep in mind and the regulations differ based on vessel length. The regulation of Superyachts is generally speaking broken up into three tiers:
- Superyachts less than or equal to 35 metres
- Superyachts between 35 and 70 metres, and
- Superyachts over 70 metres in length
There are however blanket restrictions for Superyachts on the following areas irrespective of vessel size: Raine Island, Moulter Cay, MacLennan Cay and One Tree Island.
Superyachts less than or equal to 35 metres
Superyachts less than or equal to 35 metres will generally be able to access most of the Great Barrier Reef Marine Park, however there are additional regulations in regards to the ‘Cairns Planning Area’, being the area offshore of Cairns and Port Douglas from the Ribbon Reefs to the Frankland Islands, the ‘Hichinbrook Planning Area’, which extends from Dunk Island to Halifax Bay, and the ‘Whitsunday Planning Area’ which covers waters and islands from Cape Gloucester in the north to Repulse and Thomas Islands in the south.
In the Cairns Planning Area the areas surrounding reefs can only be visited where group size limits are complied with. Group sizes are limited to 15 people in designated ‘low-use’ locations, and 60 people in ‘moderate-use locations’. In addition there are approximately 11 ‘sensitive locations’ for which special rules apply which cover activities such as waste discharge, speed, access, anchoring, and the making of loud noises or use of loudspeakers.
In the Hinchinbrook Planning Areas, vessels must travel in the Hinchinbrook transit lanes and very specific speed limits apply. In the Whitsunday Planning Area, varying group size restrictions apply as well as speed limits. Some areas are also restricted to vessels under 20 metres in length, and certain bird sites are closed at varying times of the year.
Superyachts between 35 and 70 metres
As with Superyachts under 35 Metres, most of the GBRMP is open to vessels in the 35-70metre category, although additional specific restrictions apply in the Cairns, Hinchinbrook and Whitsunday Planning Areas. In the Cairns area, unlike yachts under 35 metres, larger yachts are restricted from entering the areas around most reefs with the exception of one of 87 reef anchorages and cruise ship anchorages.
In the Hinchinbrook and Whitsunday areas, similar restrictions apply as with the Cairns area, with access restricted to anchorages. Tenders used to gain closer access to reefs must operate within the guidelines for speed limits.
Furthermore, vessels with an overall length of 50 metres or greater are required to engage with REEFVTS, which provides vessels with shipping traffic information, navigational assistance and maritime safety information to aid on-board decision making.
Super Yachts over 70 metres in length
As with Superyachts between 35 and 70 metres, vessels of this size will have access to most of the GBRMP, with the exception of the Hinchinbrook, Whitsunday and Cairns Planning Areas where access is limited to designated anchorages and the use of tenders within applicable rules. The main exception for vessels over 70 metres, as foreshadowed is the compulsory pilotage requirements.
The three routes which are subject to compulsory pilotage in the Great Barrier Reef Marine Park are:
- The Inner Route, which lies between the Great Barrier Reef and the Queensland coast and stretches for approximately 2,000 km from the Tropic of Capricorn to Torres Strait
- Hydrographers Passage, which is a track through the Great Barrier Reef in Central Queensland, linking the ports of Hay Point and Dalrymple Bay as well as Mackay with the Coral Sea.
- The Whitsundays passage
Compulsory pilotage requirements also apply in the nearby Great North East Channel pilotage, which is located in Torres Strait between Cape York and the Papua New Guinea coast.
Owners and masters are labile for serious penalties for breach of the compulsory pilotage requirements under s59B of the Great Barrier Reef Marine Park Act 1975, which is punishable by conviction and a maximum penalty of $85,000.00. The matter is often dealt with in courts of summary jurisdiction (i.e. the local/magistrates Court in the state where the vessel first returns to port) and in these Courts the maximum penalty may be reduced.
The offence is one of strict liability, which means that there are no fault elements of the offence, and it will not matter if the breach is unintentional. The only available defence to a charge under s59B is under 59H for ‘stress of weather or other unavoidable causes’. Although the offence refers to owners and masters both, an owner of a vessel will have a defence if they did not know the vessel was in contravention of the requirements under section 59H(2) of the act. Therefore, if the owner is not on the vessel at the time (they could very likely be on the other side of the world), proceedings will not usually be brought against them. This defence is important, as vessels larger than 70 metres may be owned by a corporation or other entity. Such entities will generally not be at risk, although it would depend on the particular circumstance of any case.
Get advice before making passage
The plight of the unfortunate captain was resolved with the captain being excused from attending court; as the cost of any delay in his ship not leaving port on time; getting another surrogate captain to baby-sit the ship off the coast and demurrage costs were prohibitive. In these respects the prosecution were reasonable however, if passionate and effective submissions had not made in the captains sentencing the prosecutor may have successfully attained the maximum penalty against the captain. The case-in-point is this ship was part of a major shipping company transiting Australian waters continually with vast resources however, even with this access mistakes can be made. Herein lies the importance of being prepared both from a navigation and legal perspective.
The information contained in this article is a general guide only, and if anything provides a glimpse of the complexity of the requirements imposed on Superyachts in the Great Barrier Reef Marine Park. Consideration needs to be given to the GBRMP zoning, the size of the vessel, the number of people travelling, and the kinds of activities being engaged in. Owners and captains should consider not only their navigation need but these should go hand in hand with a legal advice specifically tailored to the passage of the vessel to avoid being locked-up.