I have been asked whether Tasmania police can direct the master of a commercial vessel to respond to an emergency and who will be responsible if something goes wrong.

The Navigation Act 1912 (Cth)

The current (1974) version of International Convention for the Safety of Life at Sea (SOLAS) convention says (regulation 10(a)):

The master of a ship at sea, on receiving a signal from any source that a ship or aircraft or survival craft thereof is in distress, is bound to proceed with all speed to the assistance of the persons in distress informing them if possible that he is doing so. If he is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to their assistance, he must enter in the logbook the reason for failing to proceed to the assistance of the persons in distress.

An international convention is only applicable in Australia to the extent that it has been incorporated into Australian law. The Navigation Act 2012 (Cth) ss 181 and 182 says:

181 Obligation to render assistance

(1) The master of a vessel contravenes this subsection if:

(a) the vessel is at sea; and

(b) the master has reason to believe that one or more persons are in distress at sea; and

(c) the master does not both:

(i) cause the vessel to proceed as fast as practicable to the assistance of the person or persons; and

(ii) inform the person or persons that the master is doing so.

(2) Subsection (1) does not apply if:

(a) the master is unable to comply with paragraph (1)(c); or

(b) in the special circumstances of the case, it is unreasonable or unnecessary for the master to comply with paragraph (1)(c); or

(c) the master of the vessel is informed by the person or persons in distress, or by the master of another vessel, that assistance is no longer necessary; or

(d) the master is informed that another vessel has been requisitioned and is complying with the requisition.

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: Imprisonment for 4 years.

182 Obligation to render assistance if requisitioned 

(1) The master of a vessel that is in distress at sea may, after consulting so far as possible with the masters of vessels that answer his or her call for assistance, requisition a vessel that the master considers best able to render assistance. 

(2) The master of a vessel contravenes this subsection if:

(a) the vessel is requisitioned under subsection (1) by the master of another vessel that is in distress at sea; and

(b) the master does not cause his or her vessel to proceed as fast as practicable to the assistance of the other vessel.

(3) Subsection (2) does not apply if:

(a) the master is unable to comply with paragraph (2)(b); or

(b) in the special circumstances of the case, it is unreasonable or unnecessary for the master to comply with paragraph (2)(b); or

(c) the master of the vessel is informed by the person or persons in distress, or by the master of another vessel, that assistance is no longer necessary; or

(d) the master is informed that another vessel has been requisitioned and is complying with the requisition.

Fault – based offence

(4) A person commits an offence if the person contravenes subsection (2).

Penalty: Imprisonment for 10 years.

Requisition to assist vessel to which this Part does not apply

(5) The master of a vessel in distress may requisition a vessel under this section even if the vessel in distress is not a vessel to which this Part applies.

The ‘part’ where ss 181 and 182 are found (part 4) is said to apply (s 180) to a foreign vessel, a domestic commercial vessel and a recreational vessel. In simple terms a ‘regulated Australian vessel’ is an Australian registered commercial vessel used for overseas trips (s 15); a ‘domestic commercial vessel’ is ‘vessel that is for use in connection with a commercial, governmental or research activity’ (s 14 and Marine Safety (Domestic Commercial Vessel) National Law s 7). A recreation vessel is a vessel that isn’t a regulated Australian vessel or a Domestic Commercial vessel (s 14). Even so s 182(5) makes it clear that a vessel in distress can requisition assistance from any vessel even if for some reason it is not caught by any of those definitions. 

The Marine Safety (Domestic Commercial Vessel) National Law 

Section 182 does not, however, apply to vessels that are in waters where the Marine Safety (Domestic Commercial Vessel) National Law or another law of a state or territory applies (s 12). 

The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) applies the National law to vessels that are operating in areas that are within the legislative competence of the Commonwealth. That includes, inter alia, vessels engaged in interstate trade and commerce, vessels that are operated by a corporation (s 5). Where a Tasmanian vessel does not fall within the Commonwealth law, eg it is owned by a person not a corporation and is only operating in Tasmanian waters, then the National Law still applies, by virtue of the Marine Safety (Domestic Commercial Vessel National Law Application) Act 2013 (Tas). 

The Marine Safety (Domestic Commercial Vessel) National Law is set out in sch 1 of the Commonwealth Act. Sections 85 and 86 repeat the obligations set out in ss 181 and 182 of the Navigation Act, quoted above including the defences set out in s 181(2).

Marine and Safety (Safe Operation) Regulations 2003 (Tas) 

For vessels that are not caught by the Marine Safety (Domestic Commercial Vessel) National Law, then the Marine and Safety (Safe Operation) Regulations 2003 (Tas) applies. This regulation applies to the inland waters and coastal waters of Tasmania (Marine and Safety Authority Act 1997 (Tas) s 5). ‘Coastal waters’ are those waters out to 3 nautical miles from the Coast. Regulation 21 again repeats the obligation set out in 181 of the Navigation Act. A master is not required to assist if (r 21(3)):

(a) complying with the subregulation would have put his or her own vessel in unreasonable danger; or

(b) he or she believed on reasonable grounds that another vessel was better placed to go to the assistance of the vessel in distress, that the other vessel was in fact moving to give that assistance and that he or she could not have given any useful further assistance; or

(c) he or she believed on reasonable grounds that the vessel in distress was already being given, or would imminently be given, sufficient assistance from other vessels or persons or from aircraft; or

(d) he or she was reliably advised that another vessel had already gone to the assistance of the vessel in distress and that the assistance of his or her own vessel was not required; or

(e) after starting to comply with the subregulation, he or she was reliably advised that assistance was no longer required; or

(f) after he or she started to comply with the subregulation, the vessel in distress cancelled all distress signals.

What if the vessel is tied to a wharf?

The one question that isn’t clearly answered is whether there is an obligation upon a master when his or her vessel is not actually in the water. Clearly the Navigation Act 1912 (Cth) doesn’t apply, as s 181 only applies to a vessel ‘at sea’ (s 181(1)(a)).

The Marine Safety (Domestic Commercial Vessel) National Law s 85(1)(a) refers to a vessel ‘in any waters’. That term is not defined. A vessel on a trailer is not ‘in any waters’ but what of a vessel tied up to wharf?  The Marine and Safety (Safe Operation) Regulations 2003 (Tas) r 21(2) only refers to the ‘master of a vessel’.  

The National Law defines ‘master’ as ‘the person who has command or charge of the vessel’ and that may or may not be the owner.  Where a boat is tied to a wharf and not crewed, there is no master.  There may be someone who is ‘normally’ the master but on another day someone else may take charge of the vessel. It would follow that the police could not just ring someone who they know normally operates a boat and tell them of a person in distress and trigger the obligations.  The person would, at that time, not be ‘in command or charge of the vessel’. The obligation would apply to a master who was in charge of a boat that was tied to a wharf and was getting ready to put to, or was returning from sea, but it would not apply to the ‘normal’ master who is at home. 

Cooperative federalism

This sort of legislative scheme, where there is a national law that is adopted by the Commonwealth and each state and territory is described as cooperative federalism. The Australian Constitution sets out limits of power of the Commonwealth and the states and territories. By passing matching legislation they ensure that the law applies to everyone and no-one slips through the Constitutional gaps. 

Conclusion

What it means is that masters, of both commercial and recreational vessels, are obligated to assist when they are aware of a vessel in distress – whether that obligation arises under the Navigation Act 1912 (Cth), the Marine Safety (Domestic Commercial Vessel) National Law or the Marine and Safety (Safe Operation) Regulations 2003 (Tas).

That, in turn, means that AMSA, the police or Volunteer Marine Rescue Tasmania cannot direct a master to go and assist. What they can do is inform a master that ‘one or more persons are in distress on a vessel or in any waters’. That then imposes an obligation on the master to consider the matters listed in Navigation Act 1912 (Cth) s 181, the Marine Safety (Domestic Commercial Vessel) National Law s 85 and/or the Marine and Safety (Safe Operation) Regulations 2003 (Tas) r 21 and determine whether and how he or she can or should assist. It is the master who will be accountable for their decision to assist, or not, and as always, it will be mater who will remain accountable for the safety of their own vessel.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.