Australia: Update on directions banning vessels from entering Australian ports

During the last six months four vessels have been banned from entering Australian ports, for a combined total of 21 months. This article provides guidance to Owners and operators on when vessels will be banned from entering Australia and what steps can be taken in response.

Australia is a signatory to the International Maritime Organization (IMO) and International Labour Organization (ILO) conventions dealing with international navigation, environmental and crew safety. Enforcement of these conventions and Port State Control (PSC) measures in Australia is administered by the Australian Maritime Safety Authority (AMSA).

Under section 246 of the Navigation Act 2012 (Cth), AMSA may give the Master and Owner of a vessel a notice directing the vessel:

• not to enter or use any port or specified port(s) in Australia or its exclusive economic zone; and
• to comply with specified requirements while it is in or approaching Australian waters.

Directions not to enter Australian ports

There is no minimum or maximum period for which AMSA may ban a vessel from entering Australian waters.

However, AMSA has issued Marine Notice 03/2015 which provides some guidance on when and for how long AMSA will ban a vessel from entering Australian waters.

When considering any ban, AMSA will also consider the overall circumstances relating to vessel performance and may extend the above ban periods.

In addition, AMSA may ban a vessel from entering Australian ports where:

• the vessel has been involved in a serious breach of Australian legislation; or
• deficiencies in the vessel operator's management system mean that the vessel is considered to pose a significant risk to environmental safety and/or crew welfare; or
• the general standard of an operator's fleet is so poor, that AMSA considers that more or all vessels in that fleet should also be banned.

In practice, a detained vessel will be required to carry out any mandatory rectification work before it is permitted to leave port. Upon completing that rectification work, the vessel will be directed to leave port and banned from entering any further ports in Australia for the ban period.

Below is a summary table setting out the circumstances of the recent bans issued to four vessels.

Compliance directions

In addition to banning vessels from entering Australia, AMSA can also issue compliance directions to vessels in or approaching Australian waters, requiring them to do specific things in order to rectify any compliance shortcomings. By way of guidance, AMSA may issue compliance directions in relation to:

• Maritime Labour Convention (MLC) non-compliance;
• poor management of crew fatigue and rest hours;
• failure to submit mandatory vessel arrival and transit reports (where vessels have recently been prosecuted for failure to submit crew and impending arrival reports);
• failure to hold current and original nautical charts (where vessels have recently been detained and prosecuted for having out-of- date and/or photocopied charts);
• poor navigation practices (where vessels have recently been detained and prosecuted for failing to comply with submitted passage plans); and
• failure to have a satisfactory MARPOL shipboard oil pollution emergency plan (SOPEP).

What can Owners and operators do in response to a detention or direction not to enter Australian waters?

If Owners/operators think that any detention is not warranted, they must act quickly in order to present the full facts to AMSA and have the detention withdrawn without any undue delay. Submissions can be made to AMSA as per the contact details on any detention form (psc@amsa.gov.au).

Alternatively, for commercial reasons, it may be better to comply with any mandatory detention rectification work under protest, so that the vessel can be released to sail. Afterwards, any detention and/or direction banning a vessel from entering Australia can be appealed in the Administrative Appeals Tribunal. In this way, Owners/operators can avoid commercial delays but later seek to clear their PSC record.

Our Transport team has extensive experience dealing with Australian PSC compliance and enforcement.

Summary table – Recent directions not to enter Australian ports

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.