Colin Pratt and Australian Maritime Safety Authority

[2012] AATA 825

[2012] AATA 825  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/0793
Re	Colin Pratt
APPLICANT
And	Australian Maritime Safety Authority
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	22 November 2012
Place	Brisbane (heard in Cairns)

The decision under review is affirmed.

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Deputy President P E Hack SC

CATCHWORDS

MARITIME SAFTEY – review of decision and appeals – recognition of overseas qualification – issued a certificate of recognition – certificate issued in error – applicant seeks review of the decision – error does not create an entitlement – bound by legislative framework – decision affirmed.

LEGISLATION

Marine Orders, Part 3 Cl. 30, 31

Navigation Act 1912 (Cth)

SECONDARY MATERIALS

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (1978)

REASONS FOR DECISION

Deputy President P E Hack SC

22 November 2012

1. The applicant, Mr Colin Pratt, is a marine engineer.  He has found himself at odds with the respondent, the Australian Maritime Safety Authority (the Authority), over the level at which his overseas qualification as a marine engineer ought be recognised in Australia.

2. There is no dispute about the background.  Australia is a party to a number of International Conventions that regulate international shipping.  One such convention is the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW).  The objects of STCW include the provision of a mechanism for the adoption of standards of competency in various aspects of seafaring, the issuing of certificates of competency and the recognition of those certificates by other signatory nations.  In Australia the legislative path for the adoption of STCW is via the Navigation Act 1912 (Cth) and Marine Orders, Part 3 (M03) made pursuant to that Act.

3. Mr Pratt obtained his qualifications through the United Kingdom regulator, the Maritime and Coastguard Agency.  He holds a certificate of competency as an Engineering Officer of the Watch.  That certificate qualifies him to act as an Engineer Watchkeeper, without limitation, on motor ships.  But in addition, it bears endorsements that permit him to act as Chief Engineer or Second Engineer on motor ships with a propulsion power less than 3000 kW in an unlimited area and in those roles on motor ships up to 6000 kW in near coastal areas.

4. In May 2008, when Mr Pratt was working on Australian vessels, he applied to the Authority for recognition of his United Kingdom qualification.  He was then issued with a Certificate of Recognition as Watchkeeper and Second Engineer with endorsements as a Chief Engineer or Second Engineer for vessels under 3000 kW.  But, the Authority now says, that Certificate was issued in error; it ought not to have issued to Mr Pratt with an endorsement as Chief Engineer on vessels under 3000 kW.  The error, if it be such, was detected by the Authority in September 2011 when Mr Pratt sought revalidation of the May 2008 Certificate.  On 6 September 2011 the Authority cancelled that Certificate and issued Mr Pratt with a Certificate that did not include the endorsement of Chief Engineer, under 3000 kW in an unlimited area.

5. Mr Pratt was dissatisfied with that decision and sought internal review.  The decision was affirmed on 17 October 2011 by the Authority’s General Manager.  A decision by the General Manager affirming an original decision made under M03 may be reviewed by the Tribunal[1].  On 27 February 2012 Mr Pratt sought review of the decision.

   [1]Clause 5.2.1 of M03.

6. Whilst it is of little comfort to Mr Pratt it is important to acknowledge that it is the Australian legislative framework that must determine the outcome of this application, not any perceived unfairness in the outcome of the translation of Mr Pratt's United Kingdom qualifications to that framework.

7. Section E of M03 deals with the specific requirements for engineer officers.  The general rule is expressed in clause 30 in these terms,

   A person is only qualified to take charge of an engine room watch if that person holds:

   (a)a current certificate of medical fitness for the engine department; and

   (b)a valid certificate of competency or certificate of recognition permitting the watch keeping duties in accordance with 31.

   Clause 31, so far as it is presently relevant, provides,

   31.1.1  The minimum qualification required for the performance of the duties shown in column 1 of Table 3 is a certificate of the designation specified in column 2 opposite those duties.

   …

   Table 3

Column 1
Available duties

Column 2
Minimum qualification

Chief Engineer—

     3000 kW and over—
        u/1 and ACMW
        o/s and i/s

Engineer Class 1
Engineer Class 2

     750 kW and over, but less than 3000 kW—
        u/1 and ACMW
        o/s
       *i/s

Engineer Class 2
Engineer Class 3**
Marine Engine Driver Grade 1**

     500 kW and over, but less than 750 kW
       *u/l
       *ACMW, o/s and i/s

Engineer Class 3
Marine Engine Driver Grade 1

     250 kW and over, but less than 500 kW
       *u/l and ACMW
       *o/s
       *i/s

Marine Engine Driver Grade 1
Marine Engine Driver Grade 2
Marine Engine Driver Grade 3

     Less than 250 kW
       *u/l
       *ACMW
       *o/s
       *i/s

Marine Engine Driver Grade 1
Marine Engine Driver Grade 2
Marine Engine Driver Grade 3
Coxswain

First Engineer—

     3000 kW and over—
        u/1 and ACMW
        o/s and i/s

Engineer Class 2
Engineer Watchkeeper**

     750 kW and over, but less than 3000 kW—
        u/1 and ACMW
       *o/s

Engineer Watchkeeper**
Marine Engine Driver Grade 1**

     500 kW and over, but less than 750 kW
        u/l
       *ACMW
       *o/s

Engineer Class 3
Marine Engine Driver Grade 1
Marine Engine Driver Grade 2

     250 kW and over, but less than 500 kW
       *u/l
       *ACMW and o/s

Marine Engine Driver Grade 1
Marine Engine Driver Grade 2

Watchkeeping Engineer—

     3000 kW and over—
        u/1, ACMW and o/s

Engineer Watchkeeper

     750 kW and over, but less than 3000 kW—
        u/1

Engineer Watchkeeper

kW               propulsion power in kilowatts

u/1               unlimited operational area

ACMW        Australian Coastal and Middle Water operational area which, for the purposes of this part, is within 600 nautical miles of the coast

o/s                Off-shore operational area, which for the purposes of this part is within 200 nautical miles of the coast

i/s                 In-shore operational area, which for the purposes of this part is within 15 nautical miles of the coast and a place of safe refuge

*                  refer to Provision 31.3

**                For issue of an STCW Endorsement to serve in this capacity the person must meet the sea service requirements specified in STCW95 appropriate to that certificate.

1. Clause 31.1.1 and Table 3 operates in this way according to the Authority.  Mr Pratt has a United Kingdom qualification as an Engineering Officer of the Watch.  That qualification, the Authority accepts, is identical to the Australian qualification with the title Engineer Watchkeeper.  Thus the duties that a person with an Engineer Watchkeeper qualification may perform are those set out in Column 1 – Available duties.  Those duties are limited to those of a First Engineer, offshore and inshore on vessels with a propulsion power in excess of 3000 kW or of a Watchkeeping Engineer, within the Australian Coastal and Middle Water operational area on vessels with a propulsion power in excess of 3000 kW or unlimited in area for vessels below 3000 kW.  Importantly for present purposes, Mr Pratt’s qualification does not permit him to perform any of the duties of a Chief Engineer except, under the somewhat limiting conditions imposed, if he were using his entitlement to perform the duties of a Marine Engine Driver Grade 1. 

2. In my view the submissions of the Authority must be accepted.  The difficulty for Mr Pratt arises from the discordance between the United Kingdom scheme and that in Australia however it is plain that Mr Pratt cannot perform any of the duties of a Chief Engineer.  It is most unfortunate that the Authority had earlier issued a Certificate of Recognition to Mr Pratt the permitted him to operate in that capacity.  It had no authority to do so.  The fact of that earlier error cannot now create any entitlement in Mr Pratt to the grant of a Certificate to which he is not entitled.

3. It follows that the decision under review must be affirmed.  

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.

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Associate

Dated 22 November 2012

Date of hearing	5 November 2012
Applicant	In person
Respondent	Mr P Edwards, Australian Maritime Safety Authority