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1998-1999-2000-2001
THE PARLIAMENT OF
THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
INTERNATIONAL MARITIME
CONVENTIONS LEGISLATION AMENDMENT BILL
2001
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and new clauses to be moved on behalf of the
Government
(Circulated by authority of the
Minister for Transport and Regional Services,
the Honourable John Anderson,
MP)
ISBN: 0642 459827
AMENDMENTS TO THE INTERNATIONAL MARITIME CONVENTIONS
LEGISLATION AMENDMENT BILL 2001
The amendments to the International Maritime Conventions Legislation
Amendment Bill 2001, to be moved by the Government, are in response to a
decision in the NSW Court of Criminal Appeal in Morrison v Peacock &
Roslyndale Shipping Company Pty Ltd [2000] NSWCCA 452.
In a number of
sections of the Protection of the Sea (Prevention of Pollution from Ships)
Act 1983 (the Pollution Prevention Act which is being amended by Schedule 3
of the Bill), the master or owner of a ship is strictly liable if there is a
discharge from the ship into the sea of, for example, oil, sewage or garbage.
There are a number of defences available to the master or owner. In two
sections of the Pollution Prevention Act, it is not an offence if the discharge
was the result of non-intentional damage. This defence is not available if the
master or owner intended to cause the damage, acted recklessly with knowledge
that the damage would probably result or the damage was the result of the
negligence of the master or owner. In another two sections, it is a defence if
the discharge was a consequence of damage to a ship or its equipment.
In
the Morrison v Peacock case, the NSW Court of Criminal Appeal held that,
in the similar NSW Act, "damage" includes "wear and tear". This is outside the
intention of the meaning of the term as used in the International Convention for
the Prevention of Pollution from Ships where "damage" is intended to mean
accidental damage, that is, damage resulting from an accident. The precedent
value of this decision might mean the "wear and tear" defence can be used in the
case of a discharge resulting from poor maintenance of a ship. The amendments
will ensure that the "wear and tear" defence cannot be used
inappropriately.
There is no financial impact.
AMENDMENTS TO THE INTERNATIONAL MARITIME CONVENTIONS
LEGISLATION AMENDMENT BILL 2001
NOTES ON CLAUSES
Amendment 1 - Discharge of oil
Section 9 of the
Pollution Prevention Act, as amended by the Bill, provides that the owner or
master of a ship is strictly liable if there is a discharge from the ship into
the sea of oil or an oily mixture. It is a defence if the
discharge was the result of damage to a ship or its equipment that was
non-intentional damage.
Amendment 1 will add a new subsection 9(3A) to
provide that damage to the ship or its equipment does not include:
(a) deterioration resulting from a failure to maintain the ship or equipment; or
(b) defects that develop during the normal operation of the ship or
equipment.
Amendment 2 - Discharge of
substances
Section 21 of the Pollution Prevention Act, as amended
by the Bill, provides that the owner or master of a ship is strictly liable if
there is a discharge from the ship into the sea of a liquid substance, or
a mixture containing a liquid substance, carried in bulk as cargo. It is
a defence if the discharge was the result of damage to the ship or its equipment
that was non-intentional damage.
Amendment 2 will add a new subsection
21(3A) to provide that damage to a ship or its equipment does not include:
(a) deterioration resulting from a failure to maintain the ship or equipment; or
(b) defects that develop during the normal operation of the ship or
equipment.
Amendment 3 - Discharge of sewage
Section
26D of the Pollution Prevention Act, as amended by the Bill, provides that the
owner or master of a ship is strictly liable if there is a discharge of
sewage from the ship into the sea. It is a defence if the discharge was
the consequence of damage to the ship or its equipment.
Amendment 3 will
add a new subsection 26D(5A) to provide that damage to a ship or its equipment
does not include:
(a) deterioration resulting from a failure to maintain the ship or equipment; or
(b) defects that develop during the normal operation of the ship or
equipment.
Amendment 4 - Discharge of
garbage
Section 26F of the Pollution Act, as amended by the Bill,
provides that the owner or master of a ship is strictly liable if there is a
disposal of garbage from the ship into the sea. It is a defence if the
disposal was the consequence of damage to the ship or its
equipment.
Amendment 3 will add a new subsection 26F(9A) to provide that
damage to a ship or its equipment does not include:
(a) deterioration resulting from a failure to maintain the ship or equipment; or
(b) defects that develop during the normal operation of the ship or
equipment.