When operating a marine vessel in Queensland there are several requirements that must be followed. It is important to be aware of these requirements as there may are penalties associated with non-compliance.
The purpose of this article is to provide insight for marine operators, owners and crew in Queensland.
The main piece of legislation for maritime safety in Queensland is the Transport Operations (Marine Safety) Act 1994 (TOMSA). The Act serves to inform operators of their responsibility to make sure the ship is safe, properly equipped, properly maintained, and operated in a safe manner. The use and operation of personal watercraft is also included under this act.
Breaching these obligations can result in criminal charges, fines or imprisonment.
According to the Marine Incident Annual Report for 2022, 1,771 infringement notices were issued to 1,581 individuals in the 2021 – 2022 reporting period. If you receive an infringement notice, we recommend that you seek specialist legal advice at the earliest possible stage.
All vessel owners, operators and masters, operating in Queensland as well as Queensland regulated ships must comply with the Act. But what do these terms mean?
The Act defines each of those terms as follows:
A ship connected with Queensland means:
A master means:
An owner means:
Part 4 of the Act contains the general safety provisions and regulatory provisions.
General safety provisions refer to sections 40 and 41 of the Act. Regulatory provisions refer to a provision of a regulation or standard about the condition, equipping or crewing of ships.
Queensland regulated ships are required to be safe and must not be operated if unsafe pursuant to section 41 of the Act. Part of this deeming a ship as safe is the issuing of a survey report. Only certain people under the Act are permitted to issue a survey report. It is an offence under the Act for someone to issue a survey report which is incorrect. The penalties for an incorrect survey report can be severe, including imprisonment.
For more information about survey reports see: Queensland Regulated Ships – Technical and Operational Guidelines.
The term safe is defined in the Act as “seaworthy and appropriately equipped and crewed, to meet the ordinary perils of the voyage the ship will be proceeding”. The Act is silent on exactly what “seaworthy” means but some guidance can be gained from relevant caselaw.
It is the owners and masters responsibility to ensure that the ship is seaworthy. Each of them are liable to a fine of over $70,000 or imprisonment for breaches. In serious cases, penalties are increased to be fined of over $700,000 and imprisonment for up to two years.
Previous Examples
In the case of Cross v McLean, a dive boat operator in North Queensland was charged and fined the sum of $4000 after the dive boat he was operating sank.
In assessing the “seaworthiness” of that vessel, it was found that it likely sank because of a combination of previous damage (and poor attempts at repair), stress to the vessel and a general lack of maintenance.
The combination of these factors led to the vessel taking on water, becoming flooded, and sinking to the seafloor.
Section 43 of the Act details safe operation of a ship. Section 43 does not apply to the ship’s pilot, these obligations are outlined in section 45.
Under section 43, a person involved with the ships operation must not cause it to operated unsafely. This operating the ship in a way that causes a marine incident or contravenes a condition of the ship’s registration under the Act that is about safety.
The term marine incident is broad, but includes:
Serious penalties for the owner, master or crew member of a ship apply if a marine incident results in the death or grievous bodily harm of a person.
Additional offences also exist for masters that fail to ensure that a ship has the appropriate safety equipment.
Previous Examples
In the case of R v Wood, a fisherman who operated a boat was charged with a breach of section 43 by operating his boat at unsafe speeds in close proximity to other vessels, causing collisions. Mr Wood’s Skipper’s licence was cancelled due to the breach. This decision was later appealed and Mr Wood only received a licence suspension.
However, Mr Wood was later charged with similar offences and sentenced to 3 months’ imprisonment as well as a license suspension. This was due to the nature of the offending causing damage and that this was one of multiple re-offences.
Part 4 of the Act also discusses the General Safety Obligations for Pilots and Managing Pilotage Entry.
A pilot who has conduct of a ship must not operate the ship unsafely. The term “unsafely” here is the same as outlined above.
A managing pilotage entity for a compulsory pilotage area must not provide for the piloted movement of ships in the pilotage area in unsafe way. This includes a managing pilotage entity who employs a pilot who is not appropriately licensed.
Part 5 of the Act discusses the various registration, licensing and permit requirements for ship owners, masters, crew and pilots.
It creates a general obligation for ships to be registered. It also creates offences for operating a ship contrary to its registration, or without registration.
Certain regulations will require licensing for a person to operate a ship as a master or to act as crew on the ship. If you operate a ship as master or as crew without the relevant license you may be charged and face a maximum penalty of 40 penalty units.
If you are convicted of breaching that Act, you may also have your license suspended or cancelled.
It is a maximum penalty of 200 penalty units ($30,000) to breach the registration provisions of the Act.
Penalties can also result in the registration of the vessel being cancelled.
Operators of marine vehicles should always take care to ensure the vehicle meets required safety standards, and that the vessel is being operated safely.
Breaches of the Act can result in fines being imposed, as well as periods of imprisonment being ordered.
It is crucial to not delay in obtaining specialist legal advice should you receive notice that you have breached the Transport Operations (Maritime Safety) Act in any way.
Our team of experienced practitioners are able to assist you in dealing with a complaint or investigation, including charges brought by the police for a breach under the Act.
If you require assistance, call Aitken Whyte Lawyers at any time on our 24-hour contact line, or by email at enquiries@awlaw.com.au.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
