Introduction
[4.1] The legal framework
Rules 41, 47, 48, 49, 50, 75A, 75B, 75C, 78 and 78A of the Admiralty Rules are relevant to the custody of the arrested ship or property.In particular, subrule 47(2) provides that the Marshal shall, unless the court otherwise orders, take all appropriate steps to retain safe custody of, and to preserve, the ship or property, including:
(a) removing from the ship, or storing, cargo that is under arrest;
(b) removing cargo from a ship that is under arrest and storing it;
(c) removing, storing or disposing of perishable goods that are under arrest or are in a ship that is under arrest; and
(d) moving the ship that is under arrest.
The courts have found that the Marshal has a duty to take reasonable care in carrying out their duties in relation to an arrested ship or property (see, for example, Mooloolaba Slipways Pty Ltd v The Owners of the Ship "Santa Maria" & Anor [2001] QSC 470).
[4.2] Application to the Court
Rule 48 provides that the Marshal may at any time apply to the Court for directions with respect to a ship that is under arrest.This may be done by the Marshal directly, as an officer of the Court, or if considered necessary by a legal representative retained by the Marshal.
Custody of ships and property under arrest
[4.3] Recording the condition of the ship
A photographic record of the condition of the ship and the items on it should be made at the time of the arrest.This record may be important in the event that there is any dispute about the condition of the ship or the preservation of property on it.
A record should be made of the following matters (depending on the type of ship and the circumstances of the arrest):
- the ship's dimensions, utilisation and age – this should be available from the ship's Register and survey/classification certificate (the expiry date of which should also be recorded – the Master will often have a list of the certificates and their expiry dates);
- the estimated current market value of the ship (this is part of the information that must be provided to the insurer within 14 days of the arrest and may be obtained from a local ships broker);
- the overall condition of the ship, including whether there are:
- any structural or
mechanical problem(s);
- any leaks, damage, rust, zinc corrodes or other deterioration;
- whether any repairs or maintenance work have been booked;
- whether anything must be done to the ship if it is going to be laying up for several days;
- the names and nationality of the crew, including a copy of the crew list;
- the medical condition of the crew;
- the amount, condition and relevant expiry dates of the ship's medical supplies;
- the amount of drinking water for the crew;
- the amount and condition of hard and fresh rations on the ship;
- the amount and age of the bunker fuel, and the number of sailing days it will allow;
- the amount of diesel fuel for generators;
- the amount of water and feed for any livestock (if relevant);
- the condition of the sewerage system and when it is next due to be serviced;
- the type and condition of the ship's communications system;
- the condition of any refrigeration system on the ship (if relevant);
- details of any cargo on
board, including:
- the nature and quantity of cargo;
- the approximate value of the cargo (if known);
- whether any cargo is perishable;
- the identity of the owner(s) of the cargo;
- the destination of the cargo.
The Marshal should record the responses given by the Master and/or Chief Engineer against each item on the checklist where relevant, then sign, date and record the time of completion on the checklist. The completed checklist should be countersigned by a Deputy District Registrar for internal control purposes and to meet audit requirements.
Where the Marshal is concerned about some aspect of the ship's condition, or the arrest is to be for a significant period of time, consideration should be given to having the ship inspected by a qualified marine surveyor for the purposes of providing:
- an expert report on the ship's condition; and
- advice on what reasonable steps should be taken to protect and preserve the ship.
[4.4] Mooring the ship
At the time of the arrest the Marshal should assess whether the ship is properly moored. This will include an assessment as to the suitability of the location and type of mooring in terms of safety, weather conditions, proper supervision, maintenance and cost.At the time of arrest the ship may be at a working berth (this is usually the case for commercial cargo and passenger ships). Early consideration should be given to whether the ship should be moved from a working berth to a more suitable type of mooring. There are several reasons for this:
- working berths often incur very high berthage rates (in excess of $500 per hour);
- if the arrest continues for more than a short period the port facility operator and the harbour authorities will need to have the working berth cleared to accommodate incoming ships;
- access for the Marshal and others to working berths can be problematic, particularly in busy ports where cargo operations are undertaken 24 hours per day, 7 days per week.
- the likely duration of the arrest;
- the suitability, safety etc of the current berth – particularly if the duration of the arrest may be protracted;
- any advice from harbour authorities and the port facility operator regarding the need for the working berth to be freed for other ships;
- the likely costs of any move, including berthage fees;
- the availability of suitable alternative berths;
- whether or not cargo operations are underway or likely to occur during the period of arrest;
- any advice from the Master as to whether the ship needs to be alongside for any repairs or maintenance works scheduled whilst in port;
- the accessibility of any new berth for the Marshal, maintenance workers, provision of victualling supplies, brokers and prospective buyers (in the event of a sale) etc.
There are several types of mooring:
- working berth;
- lay-by or lay-up berth;
- buoy;
- dolphin;
- trot;
- anchorage.
Some harbour authorities or port facility operators still maintain 'lay-by' berths where a ship can be berthed for considerable periods at minimal cost, however these are fast disappearing.
It may be advisable to also consult with the plaintiff via their solicitor in regard to any move of the ship. They may be able to provide informal or 'without prejudice' advice on the likely period of arrest, the likelihood of any application to load or unload cargo and their client's attitude in regard to the costs of such a move.
If the Marshal is considering moving the ship on the Marshal's own motion, it is advisable to ask for a direction from a Judge so that an order can be made that the costs of the move be a part of the Marshal's costs and expenses of arrest.
In circumstances where:
- vessels are arrested other than in major ports; or
- there is a conflict of ownership of a vessel; or
- there is unsatisfactory protection from prevailing weather conditions,
The RAN, within their general guidelines and policies, have a role to play in assisting general commercial and, more particularly, Federal Government agencies. Arrangements should be made at Commanding Officer or Executive Officer level at the relevant facility.
[4.5] Bringing an arrested ship into port – maritime transport security legislation
In addition to having to have the usual approvals and clearances for entering a port, Part 5 of the Maritime Transport and Offshore Facilities Security Act 2003 provides that a regulated foreign ship may not enter an Australian port unless:- the ship has:
- an International Ship Security Certificate (or approved International Ship Security Certificate equivalent) (ISSC) – s 91; and
- the ship has provided pre-arrival information in accordance with the regulations – s 92; or
- the Secretary has issued a control direction to the ship operator or the Master of the ship allowing the ship to enter the port.
If the ship is not able to enter the port because it does not have an ISSC, has not provided the required pre-arrival information or is not subject to an appropriate control direction, the Marshal should contact the Transport Security Co-ordination Centre of the Office of Transport Security or the relevant State Security Director.
While it is an offence for a regulated Australian ship that is being used for maritime transport to:
- not have a ship security plan;
- not have an ISSC; or
- fail to comply with its ship security plan;
Nor is it clear from the legislation whether failure by a regulated Australian ship to provide pre-entry information will preclude it from entering an Australian port.
The Marshal should be able to ascertain whether a regulated Australian ship is able to enter a port by contacting the relevant port authority.
[4.6] Other certificates
If the ship is a large ship (that is, a ship other than a yacht, fishing trawler, cruiser etc) then on arrest, or as soon as practicable after an arrest, the Marshal should seek copies of the following certificates:(1) Certificate of Class – Hull;
(2) Certificate of Class – Machinery;
(3) International Tonnage Certificate;
(4) Certificate of Bareboat Charter Registry;
(5) Statutory Survey notices including:
(i) Load Line Annual Survey Certificate,*(6) Tank Statement;
(ii) Safety Equipment Annual Survey Certificate,*
(iii) Radio Certificate,* and
(iv) Radio Renewal Survey Certificate;*
(7) Safe Manning Certificate;
(8) Copy of ship's plans.
* These certificates may all be part of one certificate.
[4.7] Quarantine
The Marshal should formally approach the Australian Quarantine and Inspection Service (AQIS) and request that they remove items of quarantine concern from the ship.After they have attended the ship, AQIS will formally confirm that the ship is a quarantine risk free ship.
Quarantine issues may arise during the custody of the vessel and may impede the vessel's arrest in certain circumstances.
Marshals, at the time of the arrest, should ascertain whether there are any animals (such as dogs, birds and the like) on board the vessel as this may immediately raise issues effecting Australia's quarantine laws.
Where there are animals on board the Marshal should:
- execute the warrant on the vessel; and
- obtain copies of any available quarantine certificates in relation to these animals; and
- contact the local AQIS officer to determine whether there is a quarantine risk.
It is suggested a cautious approach be adopted when arresting the vessel, for example it may be obvious that a dog is on board the vessel before boarding. This knowledge, together with any other information about the vessel's voyage details, should be taken into consideration at the time of execution of the warrant.
It is better to involve AQIS officers as early as practicable where animals are seen to be on the vessel.
[4.8] Excise on fuel purchases
In the matter of OW Bunker & Trading Co Ltd A/S v Ship 'Mawashi Al Gasseem' (SAD 146/2005) an issue arose as to whether the Marshal must pay excise duty on bunkers (marine gas oil) ordered by the Marshal.The matter was raised at the local level with the Australian Customs Service (ACS) and was subsequently referred to Canberra for a response.
The response from the Director Cargo Environment, Cargo Branch, ACS, to the Manager, Container Examination Facility/Enforcement Operations, ACS, South Australia was set out in an email entitled:
"In Confidence: Mawashi Al Gasseem Bunker Query" sent on 12 July 2005 at 14.44.
The substance of the advice is set out below:
"The short answer is that the nature of the ship, the ongoing purpose of its voyage and the fact that it is not loading/carrying solely domestic cargo indicates that it has not disconnected from its international voyage and therefore revenue should not be charged in the ship's bunkers."The content of the email is to be used as the authority in such circumstances for the non-payment of excise duty and this should be made clear when ordering bunker supplies.
It is clear that the authority relates to ships on international voyages only.
[4.9] Insurance claims
Under the terms of the Court's insurance policy the Marshal has a duty to disclose promptly in writing any occurrence (a term which is defined in the policy) that may result in a claim.The occurrence may come to the Marshal's attention in a telephone call, an email or an unsigned letter addressed to the Marshal that refers to damage or the conduct of the Marshal or other party that has the potential to cause damage.
Regardless of the Marshal's view of the event, OAMPS Gault Armstrong Pty Ltd should be informed of the event so they in turn can inform the underwriters who may decide to investigate the claim.
Notifying the insurers at the earliest time enables a marine surveyor or insurance assessor appointed by the broker to gather evidence as soon as practicable after the event and to form a view as to liability.
The Marshal must not admit liability nor give any waiver of subrogation without the express permission of the underwriters.
The Marshal has a duty to take such measures as may be reasonable for the purpose of averting or minimising a loss.
The Marshal should keep a detailed account of the particulars of any event that may result in a claim including records of conversation with potential claimants, photographs of damage that record the date and time it was taken, hold any part of the ship that may have been detached from the ship as part of an event (where it is possible) and report such contact to the broker.
When a claim is under investigation the broker will provide the Marshal with advice as to dealings with the claimant.
Master and crew
[4.10] Persons on board when arrest occurs
If the ship is unattended, the Marshal must be satisfied that it is safely moored.In the case of a small ship, if there are people on board then the Marshal should direct them to secure the ship to the Marshal's satisfaction.
In some cases it may be appropriate to direct all or some of the people on board the ship to gather their personal belongings and leave the ship within a reasonable time (as specified by the Marshal).
Whether this is appropriate for other ships will depend on such things as the size of the ship, safe custody, safe manning levels, preservation of the ship and requirements of the local port and other relevant authorities.
The Marshal will usually appoint a ship-keeper and obtain an undertaking from him or her (see Annexures 8 and 9).
The Master remains responsible for complying with any obligations under port or navigation legislation and for the crew.
The Marshal should take care that any instruction given to the Master does not impinge upon those responsibilities.
If there are foreign crew then the Department of Immigration will need to be notified of the arrest.
The Marshal must also give instructions to the Master and any crew remaining on board that any visitors, press, maintenance workers etc can only board the ship with the Marshal's permission.
[4.11] Repatriation of crew
If the Master or any member of the crew is a foreign national or foreign resident and elects to leave the ship or is discharged, that person must be repatriated unless he or she is taking a post on another ship.Where repatriation is to occur, the Marshal with the assistance of the Master should prepare a schedule of costs of repatriation.
The schedule should provide for air travel to the nearest home port, any domestic travel and enough cash to enable the crew member to reach home.
It has been held by the courts that, while in most cases the costs of repatriation are expenses of the arrest, these costs may also be expenses of sale (Patrick Stevedoring No 2 Pty Ltd v Turakina and Waitemata Stevedoring Services Ltd v Rangitata & Ors (1998) 154 ALR 514; 84 FCR 493).
The Marshal should also ascertain whether any member of the crew has personal belongings that cannot be carried out of Australia as plane luggage (for example, in the matter of Patrick Stevedores No 2 Pty Ltd v M V Skulptor Konenkov NG 495 of 1995 it was necessary to have a crew member's second-hand car shipped to Russia by container).
[4.12] Retention of crew
In some ports the Harbour Master requires that a Master and crew be engaged for ships of a certain size.The Marshal must consider whether a crew or a ship's keeper are necessary to maintain the ship in good working order, for instance by keeping machinery running (such as pumps and generators).
Consideration should be given to using a labour hire firm, otherwise it is the Marshal's responsibility to make wages, tax and superannuation payments and to arrange any applicable insurance cover. Alternatively, the Marshal can ask the plaintiff to retain a crew.
The advantage of the latter is that the Marshal does not have to outlay any moneys for wages or be responsible for tax, superannuation and insurance. In such cases the plaintiff will usually seek an order from the Court that money paid for the crew be recoverable as part of the Marshal's expenses of arrest.
The Marshal must ensure that the Harbour Master, the plaintiff, the water police and other interested parties are kept informed of arrangements concerning the crew of the ship.
[4.13] Application for removal (discharge) of cargo
Rule 49 provides that, if a ship is under arrest but its cargo is not, a person who is entitled to immediate possession of the cargo may apply, in accordance with Form 17 Application for discharge, to the Marshal to discharge the cargo from the ship.A copy of Form 17 is Annexure 10.
The Marshal may comply with an application to discharge the cargo if:
- the Marshal is satisfied that the applicant is entitled to immediate possession of the cargo;
- the applicant gives an undertaking in writing that is satisfactory to the Marshal to pay on demand to the Marshal the costs and expenses of the Marshal in connection with the discharge; and
- if the Marshal so requires, the applicant indemnifies the Marshal, in a form satisfactory to the Marshal, in respect of any claim against the Marshal arising from the discharge.
A checklist for dealing with the discharge of cargo is Annexure 12 and should be completed by the arresting Marshal.
Issues to be considered on an application to discharge the cargo include:
- whether there are suitable cargo handling facilities at the berth;
- whether the ship will have to be moved to a working berth;
- whether there are any hazardous or dangerous goods included in the cargo to be discharged – in this case consult with AMSA;
- whether the cargo is under arrest – in this case suitable arrangements will need to be made for the secure custody of the cargo once discharged from the ship;
- whether the ship's Master and crew will co-operate with cargo operations – this can be a particular issue where the background to the arrest includes any dispute over the payment (or non-payment) of crew wages or entitlements;
- whether the parties are nearing settlement of the dispute and the ship could be released from arrest shortly;
- whether a party will make an application for sale of the ship – in these circumstances all the cargo on the ship will need to be removed and the respective cargo interests should make an application to the Court so that costs, ship movements and cargo discharge arrangements can be directed or ordered by the Court.
If the Marshal decides to discharge the cargo he or she should notify the following organisations that permission has been given to berth for discharge of cargo so that clearance and facilities may be given:
- Manager of Marine Operations/Harbour Master;
- the relevant Port Authority;
- the water police;
- the Collector of Customs.
[4.14] Repairs
Repairs to the ship should be classified as either minor or major repairs. Minor repairs should be considered as being part of the normal on-going, in port repairs that can be carried out by the crew, by the ship's engineers or under their supervision. To affect this class of repair equipment, hardware, tools and other materials and supplies may need to be ordered by the Marshal. As an example a special piece of equipment may need to be manufactured on shore to keep the ship's generators working to be fitted by the ship's engineers. There may also be a need to engage a chemical consultant to advise on the chemicals needed to flush the ship's salt water-cooling and piping system in circumstances where the vessel has been under arrest for months.The Marshal should make it clear to the Master of the ship that under no circumstances should oxyacetylene gas torches be used for repairs without the Marshal's express approval. Such work may require a 'hot work permit' from the Harbour Master or the Port Authority. The Master of the ship would usually make such arrangements with the relevant authority where the Marshal is satisfied that such work can proceed.
Major repairs include those where contractors need to be engaged to remove and repair bulk heads or hatch covers or other repairs that involve the use of oxyacetylene torches and heavy lift equipment.
After categorising repairs as minor or major, the Marshal should then determine whether he or she is prepared to allow the repairs to be undertaken. When making this determination, the Marshal should assess:
- the relative risk to the ship and its crew.;
- whether the repairs are necessary to maintain the safety, condition or value of the ship or its equipment;
- whether the ship's Master or agent will bear the cost of the repairs or whether they can be justified as part of the Marshal's expenses of arrest – this can be a particular issue where there is no local agent for the ship and/or the Master does not have access to funds, either directly or through the operator/owner.
This above approach should be adopted regardless of whether it is the ship's agent or Master seeking to arrange repairs or maintenance on a ship whilst it is under arrest or the repairs were booked by the Master or operator before the ship was arrested. The Marshal should assess the relative risks and may have to visit the ship to examine the repair work to be undertaken.
The Marshal should also ask the local AMSA inspector to attend the ship with him/her to explain how the repair work would be undertaken and the risks associated with it. Details of any expected repairs or maintenance work should be obtained from the Master and/or agent at the time of arrest.
If there is any doubt about the necessity for the repairs or the appropriate source of responsibility for payment then the Marshal should give the plaintiff an opportunity to express a view regarding their inclusion as part of the expenses of arrest. Where the costs are likely to be significant and/or the plaintiff has any objections then the matter can be brought before the Court for directions.
In any case the Marshal should keep a close and detailed record in the arrest log of the request, the nature and extent of the repairs, the costs and the content of discussions with the various parties.
Where the cost of repairs is part of the expenses of arrest then the Marshal should be particularly careful to obtain an appropriate number of independent quotations prior to approving the work.
[4.15] Moving the ship
There are a large number of circumstances where it may become necessary to consider moving a ship that is under arrest. Some of the most common are:- where the arrested ship is at a berth that is unsuitable for a longer term stay;
- where the arrested ship is at a working berth and port operators or authorities require the use of the berth for other incoming ships;
- where the berthage costs are high and the costs of arrest need to be kept to a reasonable level;
- where the ship is at anchor or at a non working berth and needs to be berthed at a working berth for taking on fuel and/or provisions;
- where an order for sale has been made by the Court and the berth is unsuitable for the conduct of the sale or inspections by prospective buyers;
- where the ship is not at a working berth and needs to be taken to a working berth to undertake cargo operations (this may involve two moves – one to the working berth and one back to the original berth or to anchor).
Co-operation of the Master and crew should be confirmed prior to making any arrangements for the move.
The cost of moving a ship, even a relatively short distance, can be substantial and may include:
- pilotage fees;
- channel clearance fees;
- tugs;
- line handling charges.
Where the move is being undertaken at the formal request of one of the parties it may be preferable that the Marshal come to an agreement that that party make all the arrangements for the move (subject to the satisfaction of the Marshal) and pay all costs directly.
In these circumstances an appropriate indemnity should be obtained from the party concerned.
If the Marshal is making the arrangements for the move at the request of one of the parties (other than the plaintiff) then a separate set of detailed accounts should be kept of all associated costs.
At the appropriate time a demand for funds should be made, and a statement of accounts provided, to the relevant party.
Where the Marshal is making the arrangements for the move and will be paying the costs, it will be necessary to obtain quotations for the relevant services.
If the ship operator has an ongoing arrangement with a particular tug and mooring service provider then they may be used. Copies of quotations and costs of using existing service arrangements should be obtained and held with the Marshal's records.
Where the Harbour Master requests the Marshal to move a ship from a berth the Marshal should request a letter setting out the reasons for the move and giving details of the other ships that require access to that berth and their estimates time of arrival and length of stay. A copy of the letter should be provided to all parties in the proceeding seeking their consent to the movement of the ship. These responses will form the basis for obtaining an order of the Court to move the ship.
Depending on the circumstances of the move (its location, timing etc), it is generally preferable for the Marshal or a nominated officer to be present on the ship during the move.
The Marshal should provide details of any move (including the fact that the move is authorised by the Marshal) to the following organisations:
- Manager of Marine Operations/Harbour Master;
- the relevant Port Authority;
- the water police;
- the Collector of Customs;
- the Transport Security Coordination Centre of the Office of Transport Security;
- the Australian Maritime Safety Authority.
In very rare circumstances it is necessary that a ship under arrest be moved from one port to another.
In these circumstances the Marshal should consult with the docket Judge and the parties to ensure that the orders in relation to the move are sufficiently detailed so as to cover all issues involved in the move.
A Deputy Registrar (Admiralty and Maritime) may also be consulted. The Marshal may need to consider obtaining legal advice and may seek to be heard during the hearing of any application in this regard.
The Marshal should obtain appropriate indemnities and undertakings to ensure the costs of the move are fully funded prior to the move taking place.
The insurer OAMPS Gault Armstrong Pty Ltd should also be informed of any such proposal.
While the Court's insurance policy provides for the movement of vessels in excess of 100 miles between ports and places in Australia the cover is subject to terms and premium rates to be agreed.
Annexure 13 sets out a movement checklist.
Maritime security
[4.16] Ensuring compliance with ship security plans, security directions etc
The maritime transport security legislation imposes a number of obligations upon ship operators and Masters of security regulated ships. These obligations remain in force while the ship is in the custody of the Marshal.For example, the ship operator and Master of a regulated Australian ship are responsible for ensuring that:
- there is compliance with a direction to implement or comply with additional security measures (section 33);
- the ship is operated in accordance with the ship's security plan (section 63);
- operation of the ship does not hinder or obstruct compliance with the ship security plan of another ship (section 64);
- any maritime transport or offshore facility security incident is reported to the relevant authorities as soon as possible (sections 178 and 179);
- there is compliance with a ship enforcement order (section 195).
Where the Master and/or crew of an arrested Australian ship have been repatriated, the ship operator continues to be responsible for the ship security plan and must provide any caretaker Master and crew with a copy of the plan and any other information and resources needed to implement it.
The ship operator and Master of a regulated foreign ship are responsible for ensuring that:
- the ship implements applicable International Ship and Port Facility Security (ISPS) Code measures (section 94);
- the operations of the ship do not hinder or obstruct compliance with the maritime security plan of a maritime industry participant or the ship security plan of a regulated Australian ship or the offshore security plan of an offshore industry participant in a way that compromises the security of the operations of the participant or the regulated Australian ship (section 97);
- there is compliance with a control direction requiring the ship operator or Master to take specified action, or refrain from taking specified action, in relation to the ship (section 99);
- any maritime transport or offshore facility security incident is reported to the relevant authorities as soon as possible (sections 178 and 179).
The information sheet 'Continuing Obligations of Ship Operators and Masters of Arrested Vessels under the Maritime Transport and Offshore Facilities Security Act 2003' may be provided to relevant personnel. A copy of the information sheet is annexed to Annexure 1B and is also available from the Court's web site.
http://www.fedcourt.gov.au/law-and-practice/areas-of-law/admiralty/jurisdiction/marshals_manual/chapter-4
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