Fleet Management Limited and Australian Maritime Safety Authority
[2007] AATA 56
•14 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 56
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/256 & 329
GENERAL ADMINISTRATIVE DIVISION ) Re FLEET MANAGEMENT LIMITED Applicant
And
AUSTRALIAN MARITIME SAFETY AUTHORITY
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date14 February 2007
PlaceCanberra
Decision 1) The decision of the Australian Maritime Safety Authority made 18 August 2005 to detain the ship “MV Noble Dragon” IMO 9039054 pursuant to section 210(1) of the Navigation Act 1912 is affirmed.
2) The decision of the Australian Maritime Safety Authority made 12 August 2005 to detain the ship “MV Afric Star” IMO 8713562 pursuant to section 210(1) of the Navigation Act 1912 is affirmed.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
NAVIGATION AND SHIPPING – Detention orders – International trading ships – Whether defects rendered ships unseaworthy – Whether all possible efforts made to avoid detention – Whether compliance under Port State control and Flag State control inspections – Application of International Convention for the Safety of Life at Sea 1974 – Application of Load Line Convention 1966 – Whether inspecting officers improperly applied Australian Maritime Safety Authority’s Instruction to Surveyors 63 – Whether failure of safety management system.
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Navigation Act 1912 (Cth) ss 6, 187A, 191, 206W, 207, 210, 377F, 425
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
REASONS FOR DECISION
14 February 2007
J.W. Constance, Senior Member INTRODUCTION
1. In August 2005 two international trading ships operated by Fleet Management Limited were separately detained in Australian ports by the Australian Maritime Safety Authority. In each case the detention was on the basis that the ship appeared to be unseaworthy. The Company is seeking that the decisions to detain the ships be set aside.
2. For the reasons which follow I have decided that the decision in each case should be affirmed.
STATUTORY BACKGROUND
3. There are two international conventions as well as Australian legislation and policy documents relevant to the determination of these applications. I am indebted to Mr Erskine, Counsel for the Authority and his instructing solicitors, for their assistance in outlining the relevant statutory and policy material.
4. The two conventions are the International Convention for the Safety of Life at Sea 1974 (“SOLAS”) and the Load Line Convention 1966 (“LLC”). These conventions appear as Schedules 1 and 4 respectively to the Navigation Act 1912 (Cth). I am informed by Counsel for the Authority that there have been substantial amendments to each convention since it became a schedule to the Act.
The Tribunal’s power of review
5. The Tribunal’s power to review decisions is contained in section 25 of the Administrative Appeals Tribunal Act 1975 (Cth). Subsection 25(1) states that an enactment may provide for applications to be made to the Tribunal “for review of decisions made in the exercise of powers conferred by that enactment”. Section 25 confers on the Tribunal the power to review any decision in respect of which an application is made to it under any enactment.
Navigation Act 1912 (Cth)
6. Part IXA of the Navigation Act empowers the Tribunal to review certain decisions made pursuant to that Act. Section 377F relates to decisions made under Division 3 of Part IV of the Act and relevantly provides:
“Application may be made to the Administrative Appeals Tribunal for review of:
(a) a decision under subsection 210(1) provisionally to detain a ship…”
7. Section 210 of the Navigation Act provides that the Authority may order the provisional detention of a ship that appears to the Authority to be unseaworthy. In this event notice is given to the master of the ship and a report is prepared. A survey is carried out if necessary. On receipt of the report the Authority may order the ship be finally detained. Once a final detention order is made “the ship shall not be released until the Authority is satisfied that its further detention is no longer necessary, and orders its release.” [1] These powers have been delegated to individuals in accordance with the Act.
[1] Subsection 210(7).
8. For the purposes of the Act reference to the “Authority” is defined in section 6 to mean the Australian Maritime Safety Authority, the Respondent to these proceedings.
9. Section 207 defines “seaworthy”. The section provides:
“(1) Subject to subsection (2), a ship is to be treated as seaworthy under
this Act if, and only if:
(a) it is in a fit state as to the condition of hull and equipment,
boilers and machinery, the stowage of ballast or cargo, the
number and qualifications of crew including officers, and in
every other respect, to:
(i) encounter the ordinary perils of the voyage then entered
upon; and
(ii) not pose a threat to the environment; and
(b) it is not overloaded.
(2) If:
(a) it is proposed to take a Safety Convention ship to sea on a
voyage from a port in Australia; and
(b) there is in force in respect of the ship the certificate or
certificates that may be required to be produced under
subsection 206W(2) in respect of the voyage;
the ship is, for the purposes of this Act, to be treated as meeting the
condition in subparagraph (1)(a)(i) in relation to that voyage so far
as that condition relates to the condition of the ship and its
equipment unless the condition of the ship or of its equipment does
not correspond substantially with the particulars of that certificate
or of any of those certificates.” (Emphasis added).
10. “Safety Convention ship” is defined in section 187A to mean “a ship that is of a kind to which the Safety Convention applies and is entitled to fly the flag of a country to which the Safety Convention applies." The Safety Convention referred to is SOLAS. There is no dispute that the “Afric Star” and the “Noble Dragon” are Safety Convention ships.
11. Subsection 206W(2) provides that the certificates which may be required to be produced under that subsection are the certificates which have been issued by countries (other than Australia) which are members of the Safety Convention and which are certificates that correspond to the Safety Convention certificates issued by Australia to Australian registered ships.
Port State control
12. Under the international regime governing merchant shipping a ship is registered under a particular flag and is then subject to that country’s safety requirements. It is also subject to Port State control which means that once it enters a port of another country it is subject to the inspection regime of that country to determine whether it substantially complies with the certificates issued by the flag state. Port State control is exercised in Australia under the provisions of sections 207 and 210 of the Navigation Act referred to above.
Resolution A.787(19)[2]
[2] Exhibit A1, document 3.
13. This is a Resolution of the Assembly of the International Maritime Organization of which Australia is a member. The Resolution adopts the Port State Control Procedures set out in its annex and “INVITES Governments, when exercising port State control, to implement the …… procedures……”.
14. I have been informed by Counsel for the Authority, and it has not been suggested otherwise, that this resolution has not been put into force in Australia by either of the statutory instruments of a regulation or a marine order. However Counsel for the Authority argued that it may have the status of customary international law as it represents the considered view of the maritime nations as to the appropriate port State control procedures. It is not necessary that I decide this point as the Resolution has been implemented in Australia by an Instruction to Surveyors.
Instruction to Surveyors 63 – Ship inspections [3]
[3] Exhibit A1, document 4.
15. This Instruction has been issued by the Authority under the powers given to it by the Act. Its stated purpose is:
“To provide guidance for marine surveyors in the performance of Flag State Control (FSC) and Port State Control (PSC) inspections (ship inspections). Such control inspections are to verify compliance with relevant Australian legislation and International Conventions relating to ship safety and prevention of maritime pollution."
A comparison of this Instruction and ITS63 shows that the former does in fact reflect the provisions of the latter.[4]
[4] Eg. paragraph 2.3.2 of the Instruction.
16. The Instruction does not have the force of a regulation or maritime order but it does set out the policy of the Authority and is intended to guide the exercise of the discretion conferred on the Authority by sections 207 and 210 of the Act.I accept the submission of Counsel for the Authority that the language of these sections (e.g “does not correspond substantially”, “may order”) clearly provides for the exercise of a discretion.
Part 58 of Marine Orders
17. Subsection 425(1) of the Act empowers the Governor-General to make such regulations as are “required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect” to the Act. Subsection 425(1AA) then provides for the making of orders by the Authority in respect to matters that can be made by regulations. As a result a Marine Order has statutory force.
18. Section 191 provides for regulations to be made to give effect to SOLAS. Part 58 of the Marine Orders made by the Authority gives effect to Chapter IX of SOLAS which provides for an International Safety Management Code. Amongst other things Part 58 of the Marine Orders makes provision for the inspection and detention of ships.[5] The ships to which the Order applies are defined in paragraph 4. It is not in dispute that the Order applies to both the “MV Noble Dragon” and the “MV Afric Star”.
A2005/329
[5] Paragraph 8.
EVIDENCE AND FINDINGS OF FACT IN RELATION TO “MV NOBLE DRAGON”
19. The documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were taken into evidence as Exhibit A1. These documents consist of two groups, one in relation to the “MV Noble Dragon”, the other in relation to “MV Afric Star”. Unless otherwise stated a reference to a section 37 document is a reference to a document within the relevant group.
20. The Authority filed a detailed affidavit by Stanley Meng Chin Lim, a Marine Surveyor employed by the Authority and appointed as a surveyor under the Act.[6] Mr Lim is an experienced Marine Surveyor with substantial experience in maritime shipping. He was not required for cross-examination by the Company’s representative and I accept his evidence. Unless otherwise stated I make the following findings of fact based on his evidence. I am satisfied of the facts found on the balance of probabilities.
[6] Exhibit R2.
21. The “Noble Dragon” is an international trading ship operated by the Company and registered in Hong Kong. It operates under statutory certificates issued by Classification Society Det Norske Veritas.
22. The “Noble Dragon” arrived in Dampier, Western Australia, on 18 August 2005. At 10 a.m. that day Mr Lim boarded the vessel and commenced a Port State control inspection. As part of this inspection he was provided with the ship’s certificates which he examined.[7]
[7] Exhibit A1, document 6.
23. On initial inspection it appeared to Mr Lim that the vessel substantially met the requirements of the Conventions. However, two deficiencies (one of which is not relevant to these proceedings) were noted. The relevant deficiency was that the ship's radio was not operating properly. The Radio Operator attempted several calls, some of which were unsuccessful. This deficiency was not noted in the certificates produced by the Master to Mr Lim. Mr Lim informed the Master that the ship would be detained unless successful safety test calls could be made by the time the inspection was otherwise completed.
24. By 2:05 p.m. Mr Lim had completed his inspection and was ready to leave the ship. As the radio was still not operating correctly he issued to the Master a Report of Inspection in which he noted a Code 17 in relation to the radio.[8] Code 17 requires rectification of the deficiency before departure.
[8] Exhibit A1, document 7.
25. At 4:30 p.m. on the same day Mr Lim was advised by a radio technician engaged by the Master that he had been unable to repair the radio. Mr Lim then reboarded the ship at 5:10 p.m. At 5.18p.m he informed the Master that, as the radio equipment could not be repaired, a Notice of Detention effective 4:30 p.m. 18 August 2005 would be issued. Mr Lim then prepared a Detention Order which he handed to the Master at approximately 5.25 p.m. The Order stated in part:
“Pursuant to section 210 (1) of the Navigation Act 1912, …….. I hereby order that the above-mentioned ship be detained.
The grounds of the detention are that the ship appears to me to be unseaworthy........in the following respects:
1)MF/HF DSC INOPERATIVE
and as per Report of Inspection (Forms A and B) dated 18/8/05.”
26. A few minutes prior to his being handed the Detention Order, but unknown to Mr Lim at the time, the Master had received a facsimile from the Flag State (Hong Kong) granting the ship dispensation from the requirement to carry a working radio.[9] The Master handed Mr Lim a copy of the dispensation almost immediately after the Master received the Detention order. At 5:30 p.m. Mr Lim issued an unconditional Order for Release of a Ship Detained as Unseaworthy.[10]
[9] Exhibit A1, document 9.
[10] Exhibit A1, document 10.
27. In a facsimile sent by the Master to the Company after the Detention order had been issued[11] the Master referred to his having shown Mr Lim the dispensation and then trying to persuade him not to issue the detention order. The Company did not file a statement by the Master nor was the Master called to give evidence. In these circumstances and taking into consideration that Mr Lim’s evidence was not challenged, I am satisfied that the detention order was served before Mr Lim was made aware of the dispensation.
[11] Exhibit A3.
28. The inspection and the issue of the Detention Order did not delay the sailing of the “Noble Dragon”.
29. Affidavits of Allan David Schwartz sworn 10 March 2006 and 24 August 2006 were tendered by the Authority.[12] Mr Schwartz’ evidence was not challenged. Mr Schwartz is the Manager Ship Inspections in Maritime Operations, a business unit of the Authority. Considerable parts of Mr Schwartz’ affidavits were argumentative in character and were of limited assistance to me. However I accept the following evidence as to the function of a correctly operating radio system:
“In recent times the mechanism of communication from ship to ship and ship to shore has changed. Satellite communication is prevalent and voice communication is no longer the primary method of distress alerting. Global Maritime Distress and Safety System (GMDSS) technology automates previously manual processes.
In this appeal the issue relates to emergency communications. With the terrestrial communication method as used on Noble Dragon (that is radios working on the medium (MF) and high frequency (HF) bands), the emergency signalling initially occurs using digital select calling (DSC). This is an automatic digital signal sent out by the radio. This signal automatically contains the ship identification and position. All an operator needs to do is either press two buttons simultaneously or one button for a prolonged period (generally 6 seconds). When activated the radio automatically starts to send a digital distress signal on varying frequencies. As the frequency increases so does the distance of transmission. The radio will continue to cycle through frequencies until it receives a digital acknowledgement signal. The etiquette is that this acknowledgement will be sent by a rescue coordination centre ashore. When the acknowledgement is received the radio will revert to the voice channel associated with the frequency on which the acknowledgement is received. Voice communications can then follow.
All this is achieved without involvement of the shipboard personnel, apart from the initial activation, who can concentrate on other issues during this time.
If no acknowledgement is received the radio will continue to transmit. This has a number of possible implications. Firstly the crew will not be aware if anyone has received their message, and in fact will automatically assume that their message has not been received. In addition, as the radio goes through this process, incoming voice channels will not be monitored
DSC transmission is the primary alerting method. Domestically, the Australian search and rescue centre (AUSSAR) only monitor for DSC distress signals." [13]
[12] Exhibits R4 and R5 respectively.
[13] Exhibit R4, paragraphs 8-12.
THE COMPANY’S ARGUMENT IN RELATION TO “MV NOBLE DRAGON”
30. The Company argued that Mr Lim failed to follow the guidelines in Resolution A 787 (19) or those in ITS 63. A brief summary of the effect of each guideline relied upon by the Company follows.
Resolution A 787(19)
1.3.3. The control procedures should be regarded as complementary to national measures taken by administrations of Flag States.
1.6.3. “Detention: Intervention action taken by the port State when the condition of the ship or its crew does not correspond substantially with the applicable conventions to ensure that the ship will not sail until it can proceed to sea without presenting a danger to the ship or persons on board, or without presenting an unreasonable threat of harm to the marine environment."
2.1.4 All possible efforts shall be made to avoid a ship being unduly detained or delayed.
2.6.5. The main purpose of Port State control is to prevent a ship proceeding to sea if it is unsafe. The control officer should exercise professional judgment to determine whether to detain a ship until the deficiencies are corrected or to allow it to sail with certain deficiencies, having regard to the particular circumstances of the intended voyage.
2.6.6. It should be recognised that all equipment is subject to failure and replacement parts may not be readily available. In such cases undue delay should not be caused if, in the opinion of the officer, safe alternative arrangements have been made.
2.6.8. Without limiting the discretion of the officer in any way, it may be in the best interests of the officer to act with other interested parties.
ITS 63 Annexure D – deficiencies and detentions
Section 5: code 17 to be used for deficiencies which warrant rectification before sailing but which do not warrant detention.
Section 5: code 30 to be used for deficiencies serious enough to warrant detention of the ship to ensure rectification of the serious defect.
Section 5: code 17 cannot be upgraded to code 30.
Section 11: where possible the local Area Manager should be consulted before a detention order is issued.
Section 11: if a ship is proceeding overseas the Area Manager is to be consulted prior to conditional release.
31. The Company has argued that the situation with the “Noble Dragon” comes within 2.6.6 of the Resolution and the difficulty of obtaining replacement parts should have been recognized. It argued further that the recording of the code 17 indicated that the defect was not one which warranted detention and that in any event, once code 17 was recorded, it could not be upgraded to a code 30. The Company maintained that as Mr Lim did not detain the vessel immediately the defect was identified he must have been of the opinion that the vessel was safe to proceed to sea.
32. On the question of the timing of the order, the Company argued that Mr Lim sighted the dispensation prior to serving the order and that there was nothing to be achieved by serving the order and then immediately lifting it. As I have found that Mr Lim was not made aware of the dispensation until after he issued the order this argument must fail. Hong Kong, as the Flag State, had provided the certificates of compliance for the ship and in accordance with the convention it was entitled to give the exemption it did. Once the Hong Kong certificates exempted the ship in respect of the radio the ship was then properly deemed seaworthy under section 207(2) of the Navigation Act.
REASONING IN RELATION TO THE “MV NOBLE DRAGON”
33. As the decision to detain the “Noble Dragon” was made in the exercise of a discretion I have to be satisfied that it is the “preferable” decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. This requires a balancing of competing interests. I must take into account the various statutory requirements outlined above and give proper consideration to the matters of policy. For the reasons which follow I have decided that the decision to detain the “Noble Dragon” was the “preferable decision” in all the circumstances.
34. I accept the company’s argument that the various provisions to which it has referred indicate the importance placed on ensuring that a ship is not unduly delayed. However Resolution A.787(19) Appendix 1 provides guidance for the detention of ships.[14] Paragraph 1.2 states that an officer conducting an inspection should assess whether throughout its forthcoming voyage a ship will be able to communicate in distress situations if necessary. Paragraph 1.3 indicates that if there is a negative assessment in this regard the ship “should be strongly considered for detention.” Section 3 of the Appendix also provides a list of deficiencies considered to be of such a serious nature that they may warrant detention, grouped under relevant conventions and codes. Item 9 under the SOLAS Convention reads:
[14] Exhibit A1, document.3, p. 43.
“Absence or failure of the proper operation of the radio equipment for distress and safety communication.” [15]
[15] Exhibit A1, document 3, p. 44.
Chapter IV of the SOLAS Convention which deals with radio communications lists a number of functional requirements of every ship:
“1 Every ship, while at sea, shall be capable:
.1….of transmitting ship-to-shore distress alerts by at least two separate and independent means, each using a different radiocommunication service;
.2 of receiving shore-to-ship distress alerts;
.3 of transmitting and receiving ship-to-ship distress alerts;
.4 of transmitting and receiving search and rescue co-ordinating communications;
.5 of transmitting and receiving on-scene communications;
.6 of transmitting and…. receiving signals for locating;
……….
.7 of transmitting and receiving maritime safety information;
…….
.8of transmitting and receiving general radio communications to and from shore- based radio systems or networks….; and
.9 of transmitting and receiving bridge-to-bridge communications.”
The Convention provides that ships not meeting these requirements should be considered for detention.
35. It is clear from the above that the existence of an operational radio system is of vital importance and commonsense dictates that this is so. The principles provided by way of guidance all suggest that in the circumstances it was appropriate the “Noble Dragon” be considered for detention. I am satisfied that the absence of a fully functional radio system would have placed the crew at risk in the event of an emergency at sea.
36. For the reason stated in the preceding paragraph I am satisfied that the ship was not seaworthy under subsection 207(1). As the deficiency was not noted in the certificates produced to Mr Lim, the condition of the ship’s equipment did not correspond substantially with the particulars in the certificates and therefore subsection 207(2) did not apply to deem the ship to be seaworthy. On this basis I have reached the conclusion that the decision to issue the detention order was the preferable decision.
37. I have taken into account that replacement parts were not readily available. No evidence was produced, however, as to exactly what was required or the likely extent of the delay in obtaining the necessary parts.
38. Turning to the Company’s argument that Mr Lim was not entitled to upgrade the defect from a code 17 to a code 30, I am not satisfied this was what Mr Lim purported to do. Document 7 of the section 37 documents discloses that the nature of the deficiency for which the code 17 was issued was that “MF/HF DSC not demonstrated”. Mr Lim’s statement indicated that the calls initially attempted on the radio were only “randomly successful” and that he recorded the defect as he did in order to give the Master the opportunity to demonstrate that the radio was operational. In my view this was a reasonable course of action. The defect in respect of which the code 30 was issued was “MF/HF DSC inoperative”.[16] This does not amount to an upgrading of the same defect but the issue of a code 30 for a different defect, i.e. an inoperative radio compared with an inability to demonstrate that the radio was capable of working at a particular time.
A2005/256
[16] Exhibit A1, document 8.
EVIDENCE AND FINDINGS OF FACT IN RELATION TO THE “MV AFRIC STAR”
39. Mr Christopher Barber is a Marine surveyor employed by the Authority and holds an appointment as a surveyor under the Navigation Act. A statement by Mr Barber is in evidence.[17] He was not required for cross-examination. Unless otherwise stated I make the following findings of fact based on the evidence of Mr Barber.
[17] Exhibit R2.
40. The “Afric Star” is also an international trading ship operated by the Company. It is registered in the Bahamas and operates under certificates issued by Classification Society Det Norske Veritas.
41. The “Afric Star” arrived in Port Adelaide, South Australia on 12 August 2005. On that day, Mr Barber conducted a Port State control inspection of the ship on behalf of the Authority. He conducted the inspection in accordance with ITS 63 and resolution A787(19).
42. During the inspection Mr Barber noted a number of deficiencies, three of which (noted as 1, 2 and 15) he regarded as sufficiently serious to warrant detention of the ship in accordance with section 210 of the Navigation Act. A series of photographs showing the deficiencies were taken by Mr Barber.[18] He consulted the Authority’s Manager of Maritime Operations South and then issued a Notice of Detention.[19] The notice included the following:
“The grounds of detention are that the ship appears to me to be unseaworthy ……in the following respects:
Garbage chute overboard direct pipe corroded & holed in engine room (adjacent to cascade tank)
Main deck side railings, numerous securing fittings & brackets broken -- 2 sections of railing detached port side.
The safety management system does not ensure adequate maintenance of the ship & equipment as evidenced by deficiencies on Form B.
and as per Report of Inspection (Forms A and B) dated 12.08.2005."
[18] Exhibit A1, document 12.
[19] Exhibit A1, document 8.
Form B is in evidence [20] and lists 15 deficiencies including those listed above.
[20] Exhibit A1, document 6.
43. Mr Barber made the following observations in relation to the deficiencies which were the grounds for detention.
Deficiency 1 – guard rails.
“numerous brackets, fittings, railings and hinge points being wasted and damaged. Sections of the rail were merely “propped” in position without structural attachment to the deck and were not fit for the purpose of crew protection.” [21]
[21] Exhibit R1, paragraph 13.
Deficiency 2 – garbage chute
“The garbage discharge, overboard pipe, (constructed of steel) passes from the galley through the engine room directly overboard……a section of this pipe ……[was] externally corroded and in poor condition…..removal of wasted material revealed a “fist sized” hole in the pipe……this hole provides direct access between the sea and the engine room without means of isolation……it is a hole in the ship side below the freeboard deck, affecting the watertight integrity of the vessel” [22]
[22] Exhibit R1, paragraphs 14 -16.
Deficiency 15 – failure of the safety management system
Some of the deficiencies noted by Mr Barber which he said were indicative of a failure of the system were:
·the engine of the emergency generator did not operate properly by reason of blocked oil filters which indicated a breakdown in both maintenance and operational testing routines;
·several engine room indoors were internally lashed closed with slings which removed a safe means of escape in an emergency;
·the starboard lifeboat engine was unable to be started by battery power and required manual cranking for 2-3 minutes to start;
·corrosion holes in machinery space ventilation trunking which indicated a lack of maintenance;
·corrosion of various external pipes which indicated a lack of maintenance;
·the pressure gauge of the auxiliary boiler was inaccurate and 2 of the water level gauge glasses were in such poor condition they were not fit for the purpose of ascertaining the boiler water level; and
·some of the valves were seized and would have been useless to control the discharge of steam/water in the event of a gauge glass failure or leakage.[23]
[23] Exhibit R1.
44. Captain Sapra gave evidence by telephone on behalf of the Company. He was the Master of the "Afric Star" when the inspection was carried out. He did not dispute the nature of the defects identified by Mr Barber but he did not agree that the defects listed warranted detention of the ship.
45. Captain Sapra said that the hole in the garbage chute only appeared after it had been hammered by Mr Barber but he did not dispute the nature of the deficiency which was revealed. He was of the opinion that the garbage chute contained some form of valve designed to prevent water entering the chute but he had not observed this himself. He also said there was a flap within the chute which was designed to prevent water entering the ship. He had not tested this flap to determine if it was working. He agreed that in some circumstances the flap could jam open. When it was put to him that the hole in the garbage chute breached the integrity of the hull, he responded that it “was well above the waterline". He agreed the hole was approximately 900 mm above the load line and at sea waves could exceed this height. Finally he agreed that the flap in the garbage chute did not offer protection against the entry of water caused by waves breaking over the ship.
46. In relation to the guard rails Captain Sapra said he had instructed his crew to use the walkways which were situated away from the rails and not to lean on the rails. He agreed that in a number of cases the support for the railing had become disconnected from the rail itself. He also agreed that when the ship was not loaded (as was the case at the time of the inspection) the guard rails were the only protection preventing a crew member falling overboard from the deck and the guardrails were unsafe at the time of the inspection. He confirmed there were no guard rails along the walkways.
47. Captain Sapra agreed the lifeboat could not be started with the battery and took 2-3 minutes to start by manual cranking. He did not dispute the items noted by Mr Barber in relation to the general maintenance of the ship. He said the “Afric Star” had been in dry-dock immediately prior to its sailing unladen from Shanghai to Port Adelaide. He said there was "commercial pressure" in Shanghai for the ship to be released from the dry dock to sail to Port Adelaide.
48. Having considered the evidence of both Mr Barber and Captain Sapra I am satisfied that the evidence given by Mr Barber accurately describes the state of the “Afric Star” at the time of the inspection and I find accordingly. As stated earlier, Captain Sapra did not dispute the description of the deficiencies.
49. I accept the evidence of Mr Schwartz (based on the report of Mr Barber) that the opening to the garbage chute was below the freeboard deck and the hole in the inspection port was caused by severe wastage of the steel,[24] which I take to mean rusting. I also accept his evidence that:
“the watertight integrity of the garbage chute is imperative for preventing ingress of water into the ship. Any deficiency in the arrangement has the potential to compromise the safety of the ship and the crew…… The decks of bulk carriers, which are high above the waterline, are often awash with water. A height of 900 mm above the waterline is negligible in the Afric Star's operating conditions. The stability of a vessel can be significantly affected by small amounts of water inside the ship." [25]
[24] Exhibit R4, paragraphs 30 & 32.
[25] Exhibit R4, paragraphs 34 & 35.
THE COMPANY’S ARGUMENT IN RELATION TO THE “MV AFRIC STAR”
50. The Company argued that the deficiencies in the garbage chute and the railings "were not immediately evident or in the condition recorded, until Mr. Christopher Barber used a hammer and force to highlight the corroded condition." [26] I do not accept this argument. I accept the evidence of Mr Barber that the corrosion to both the garbage chute and the railings was readily apparent on inspection and this is confirmed by the photographs in evidence.
[26] Written submission by Mr Pereira on behalf of the Company.
51. In relation to the railings, the Company argued the ship had been provided with separate elevated walkways for access from aft to forward and the Master had instructed the crew to use these walkways instead of walking on the open deck. This argument fails to address the fact that the walkways were not protected by guardrails. In the absence of containers on board, the guardrails on the edge of the deck were the only structure which prevented crew members falling overboard from the walkways or the deck itself.
52. The Company argued that the existence of a non-return valve in the chute between the corroded section and the ship-side prevented water entering the ship. Therefore, the corroded section of the garbage chute did not compromise the water-tight integrity of the vessel. The evidence on behalf of the Company did not establish that this in fact was the case and I accept the evidence of Mr Barber and Mr Schwartz that there was a risk of water entering the ship through the hole in the garbage chute.
53. The Company further argued that at the recent dry-docking, all ship-side valves and hull penetrations were inspected by the Surveyor from the vessel’s Classification Society as recorded in the survey report. Even accepting that this inspection did take place, this is not reason to ignore the observations of Mr Barber as to the state of the ship at the time it docked in Port Adelaide.
REASONING
54. On the basis of the above facts I am satisfied the decision to detain the “Afric Star” was the preferable decision. I am satisfied that each of the stated grounds, of itself, was sufficient basis for the decision.
The guardrails
55. Regulation 25.2 of the Load Line Convention 1966 requires that a ship be fitted with guardrails or bulwarks to all exposed parts of the freeboard decks. The deck of the "Afric Star" was a freeboard deck within the definition provided in the Convention and was not fitted with bulwarks. The stated purpose of fitting guard rails is to provide protection for the crew. The fact the guardrails were severely corroded and broken in places represented a very clear risk to the safety of the crew. In such a condition they provided less protection to crew members who may fall, lean or be washed against them than would properly fitted guardrails in good condition.This deficiency contravenes the Load Line Convention and section 1.2.2 of the International Safety Management Code. Compliance with the Code is required by SOLAS Chapter IX and Part 58 of the Marine Orders.
The garbage chute
56. It has not been established that the construction of the chute was such as to prevent the entry of water into the ship. This deficiency clearly compromised the watertight integrity of the "Afric Star". Taking into account the evidence of Mr Barber and Mr Schwartz, I am satisfied that the fact the opening was 900 mm above the waterline is irrelevant. Failure to maintain watertight integrity is a ground to detain a ship under IMO Resolution 787(19) and under Appendix 1, 1.2.9.
Failure of the Safety Management System
57. The company did not advance any argument as to why the identified breaches did not indicate a failure to implement a proper Safety Management System. The International Safety Management Code relevantly provides:
“10.3 The Company should establish procedures in SMS (the Safety Management System) to identify equipment and technical systems the sudden operational failure of which may result in hazardous situations. The SMS should provide for specific measures aimed at promoting the reliability of such equipment or systems. These measures should include the regular testing of stand-by arrangements and equipment or technical systems that are not in continuous use."
The nature and extent of the deficiencies ascertained by Mr Barber satisfy me that the Safety Management System in force on the “Afric Star” at the time was inadequate. This was confirmed by the proposition put by the Company that the extent of the defects in the railing and the chute were uncovered by Mr Barber. Such defects should have been readily apparent on proper inspection.
DECISIONS
Decision in relation to the “MV Noble Dragon”
58. The decision of the Australian Maritime Safety Authority made 18 August 2005 to detain the ship “MV Noble Dragon” IMO 9039054 pursuant to section 210(1) of the Navigation Act 1912 is affirmed.
Decision in relation to the “MV Afric Star”
59. The decision of the Australian Maritime Safety Authority made 12 August 2005 to detain the ship “MV Afric Star” IMO 8713562 pursuant to section 210(1) of the Navigation Act 1912 is affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 20 & 21 November 2006
Date of Decision 14 February 2007
Representative for the Applicant Mr G Pereira
Counsel for the Respondent Mr C ErskineSolicitor for the Respondent Australian Maritime Safety Authority
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