Ken Ainscough Marine Survey & Consulting Pty Ltd v Chief Executive - Department of Transport and Main Roads (Maritime Safety Queensland)

[2011] QCAT 22

CITATION: Ken Ainscough Marine Survey & Consulting Pty Ltd v Chief Executive - Department of Transport and Main Roads (Maritime Safety Queensland) [2011] QCAT 22

PARTIES:	Ken Ainscough Marine Survey & Consulting Pty Ltd
v
Chief Executive - Department of Transport and Main Roads (Maritime Safety Queensland)

APPLICATION NUMBER:   GAR253-10   

MATTER TYPE: General administrative review matters

HEARING DATE:      10 December 2010

HEARD AT:     Brisbane

DECISION OF: Barry Cotterell, Member

DELIVERED ON: 17 January 2011

DELIVERED AT:       Brisbane

ORDERS MADE:

1.     The decision of 21 April 2010 to suspend the Authority of Mr Ainscough as an accredited marine surveyor is confirmed.

2.     The decision to suspend Mr Ainscough as an accredited marine surveyor for a period of three months is confirmed.

CATCHWORDS : 

Construction (modification) of marine vessel – marine surveyorwas retained to inspect modification of a passenger vessel and provide a certification - Duty of surveyor to certify that the vessel complies with the Uniform Shipping Laws (USL) Code/  National Standard for Commercial Vessels (NSCV)  – Passenger vessel involved in a marine incident shortly after certification – whether the vessel complies with the USL Code/ NSCV – Whether Surveyor in breach of duty

Review of the decision to suspend the accreditation as a marine surveyor - Duty of surveyor to certify that the vessel complies with the USL Code/ NSCV - whether the vessel complies with the USL Code/ NSCV – whether the decision should be confirmed, set aside or varied.

S. 40(1) Transport Operations (Marine Safety) Act 1994; s 44 of the Transport Operations (Marine Safety) Regulation 2004

APPEARANCES and REPRESENTATION (if any):

APPLICANT  :	Ken Ainscough Marine Survey & Consulting Pty Ltd represented himself
RESPONDENT:	Chief Executive - Department of Transport and Main Roads (Maritime Safety Queensland) represented by Mr P Hubbert

REASONS FOR DECISION

The Application

1. This is an application by Kenneth Charles Ainscough (Mr Ainscough) to review the decision of Ken Wiltshire, Acting Director (Executive Services and Compliance, Maritime Safety Queensland (MSQ), taken on 21 April 2010 to suspend the Authority of the Applicant as an accredited marine surveyor (the decision).

2. This decision was reviewed by Patrick Quirk, Acting General Manager, MSQ, and affirmed on 30 June 2010. The three month period of suspension was determined to be from 22 April 2010 to midnight on 22 July 2010.

3. Mr Ainscough applied to have the decision reviewed by the Queensland Civil and Administrative Tribunal (QCAT) and a hearing was held on 10 December 2010. The application also refers to Ken Ainscough Marine Survey & Consulting Pty Ltd but this is irrelevant to the application as the decision affects Mr Ainscough’s personal accreditation as a Marine Surveyor.

4. At the hearing, Mr Ainscough represented himself assisted by his son, Stephen Ainscough, who is also a Marine Surveyor. MSQ were represented by Mr P Hubbert, a senior compliance officer with MSQ. MSQ called Werner Bundschuh, Tommy Ericson and Wayne Bridge and Mr Ainscough gave evidence in support of his application.

The Facts

1. There was very little dispute about the facts of what had occurred and the dispute centred around the requirements of the National Standard for Commercial Vessels (NSCV).

2. A 23 paragraph Statement of Facts was prepared for the hearing by MSQ. Mr Ainscough agreed with all bar 7 of these paragraphs and his comments have been added to the Statement of Facts at the paragraph to which it relates. The Statement of Facts with the comments states the following:

   1. Kenneth Charles Ainscough (the Applicant) holds accreditation as a Marine Surveyor (the Authority), pursuant to s 44 of the Transport Operations (Marine Safety) Regulation 2004 (the Regulation). The Applicant was first issued with temporary accreditation as a Marine Surveyor on 5 January 1996. The Authority was most recently renewed on 26 October 2009 for a period of 12 months, commencing on 27 October 2009.

2. At all material times, the Applicant held the Authority subject to the ''Standard  Conditions of Accreditation as a Marine surveyor's, being Annexure 1 to the renewal issued on 26 October 2009. In particular, the ''Standard Conditions of Accreditation as a Marine Surveyor'' require the Applicant to:

''not act contrary to the public interest and must not act with a lack of adequate knowledge, skill, judgement, integrity, diligence, care or otherwise incompetently when performing services under this authority'' (clause 6);

…

must not engage in improper, unethical, fraudulent or dishonest behaviour when performing services under this authority and must:

a. apply all relevant marine safety laws reasonably and without favour;

b. perform| the services with honesty, integrity and impartially;

c. not knowingly make false or misleading statements in documents that will be given to MSQ (clause 7);...”

3. At all material times, the Applicant held the Authority subject to the statutory obligations imposed on the Authority by the Transport Operations (Marine Safety) Act 1994 (the Act) and the Regulation. In particular, the provisions of s 40(1) of the Act impose the following obligation on the Applicant

“An accredited ship designer, ship builder or marine surveyor who issues a certificate of compliance for a ship must ensure that each declaration made in the certificate is correct in every particular. ''

4. The MV Lady Musgrave, Queensland registration number 3678QC (the Ship) is a 23.9 m catamaran-style high speed passenger ferry constructed of aluminium and powered by two diesel engines and is registered pursuant to Uniform Shipping Laws (USL) Class IC. The Ship's registration was renewed on 23 September 2009 and remained current until 28 March 2010. The Ship is currently unregistered.

5. On 22 December 2009, the Applicant issued a Commercial Ship Notification of Intent to Build a Ship advising that further building of the Ship, being a change of the port engine was carried out between 1 December 2009 and 22 December 2009.

6. On 22 December 2009, the Applicant issued a Certificate of Compliance for Survey number SUR 29363 (the First Certificate) for the Ship. In the First Certificate, the Applicant declared that the Ship was surveyed on 17 and 18 December 2009, and that a part of the Ship, being ''port engine change'' was built in compliance with the USL Code 2009.

7. On 31 January 2010, the Ship departed from Round Hill Creek and sailed to the lagoon at Lady Musgrave Island, approximately 30 nautical miles off the Queensland coast. Later that day, when the Ship was preparing to depart the lagoon, the pod main engine failed due to sea water flooding the exhaust system and engine. The port engine would not start and a decision was made to remain moored to a pontoon in the lagoon overnight. The master considered the risk of returning to Round Hill Creek on one engine to be too high. The following day, following repairs to the port engine, the Ship returned safely to Round Hill Creek.

COMMENT BY MR AINSCOUGH:

Partially correct

8. On 22 February 2010, a Commercial Ship Inspection Report was issued to the Ship's owner, Mr John Clayton (the Owner), by Darryl Dorron, a Shipping Inspector employed by MSQ. This Report directed the Owner to provide Certificates of Compliance for the exhaust systems of the port and starboard engines, prior to the Ship's next voyage.

9. On 2 March 2010, a Shipping lnspector's Written Direction (the Written 1 Direction) was issued to the Owner by Wayne Bridge, a Shipping Inspector employed by MSQ. The Written Direction required that the Ship be surveyed in respect of all exhaust pipe work, and for the resultant Certificate/s of Compliance be produced to the Shipping Inspector by 31 March 2010.

COMMENT BY MR AINSCOUGH:

Partially correct

10. On 2 March 2010, the Ship was inspected by Wayne Bridge and Tommy Ericson, a Senior Naval Architect employed by MSQ. In respect of that inspection, Tommy Ericson prepared a written report dated 5 March 2010. ln that report, Mr Ericson observed the following:

''There is no riser on the discharge pipe on any of the four (4) exhaust systems prevent back-flooding of the system. This constitutes a non- compliance with the requirements of the National Standard for Commercial Vessels (NSCV) Section C5A, Clause 2. 19.9.3 Arrangements to prevent back-flooding of machinery.
The port main engine exhaust on the inboard side is fitted with a shut off valve (butterfly type) between the water mixer and the muffler. This valve does not protect the watertight integrity of the ship if there is a failure in the exhaust system between the valve and the discharge through the shell plate (i.e. failure of the fiberglass muffler or stainless steel discharge pipework). This constitutes a non-compliance with the requirements of the NSCV Section C5A, Clause 2. 19.9. 7 Location of shut-off and non-return valves.
…
The port main engine exhaust on the outboard side (flooded at the time of the marine incident) is not fitted with a shut off valve or a riser in the pipework, and as such when the exhaust discharge was subjected to the wave action, there was no protection available to stop water ingress into the exhaust manifold of the engine. This constitutes a non-compliance with the requirements of the NSCV Section C5A, Clause 2.19.9. 5 Watertight integrity of exhaust pipe discharges.
…
Transferring the water line internally it can be seen that the exhaust outlet from the main engine is below both the discharge through the shell plate and the lightship waterline. Without a shutoff valve at or near the discharge, there is currently no means to prevent back-flooding of the engine through the exhaust manifold.
…
The existing installation of both the port and starboard main engine exhausts is not compliant with rule requirements to prevent back-flooding of the machinery or to maintain the watertight integrity of the ship in the event of an exhaust system failure. ''

COMMENT BY MR AINSCOUGH:

Open to interpretation

11. On 16 March 2010, Mr Ericson filed a further Vessel Inspection Report which noted the non-compliances in respect of the Ship's exhaust systems and detailed other defects observed when the Ship was inspected on 2 March 2010.

12. On 22 March 2010, MSQ issued a Notice of Proposal to suspend an Authority to the Applicant, pursuant to s 164(1) of the Regulation. This Notice alleged that the Applicant had contravened marine safety legislation by failing to ensure that each declaration made in the First Certificate was correct in every particular.

COMMENT BY MR AINSCOUGH:

Partially correct

13. On 1 April 2010, the Applicant issued a Certificate of Compliance for Survey number SUR 29395 (the Second Certificate) in respect of the Ship. In the Second Certificate, the Applicant declared that the Ship was surveyed on 5 February and 3 March 2010, and that a pad of the Ship, being the port main engine exhaust system had been built in compliance with the USL Code, Section 9 10.7.

14. On 7 April 2010, Mr Ericson sent an a-mail to the Applicant advising that the information provided in support of the Second Certificate was not sufficient to lift the Written Direction. In this a-mail, Mr Ericson inferred that the Applicant did not re-inspect the Ship following the completion of the exhaust system modifications.

15. On 9 April 2010, the Applicant wrote to MSQ to respond to the Notice of Proposal to Suspend an Authority and to the e-mail from Mr Ericson dated 7 April 2010. ln this letter, the Applicant advised:

''that I had not sighted the vessel to provide the e mail or even the previous Certificate of Compliance Survey (port engine exhaust only) and my reasons for same. All agreed at the time. There was no deception as now seems to be implied. As previously stated the Certificate of Compliance was for work on the port engine exhaust only. This was raised in response to the inspection of the ship by Darryl Dorron and after discussion with Darryl. He is aware that I did not travel to Town of 1770 specifically to sight the valves and it was and still is my belief that this would be too costly at the time. I sent a copy of the new procedure to Darryl also.
I was and still am satisfied that the valves were fitted to enable raising the stated Certificate of Compliance.
Further to my supplying Certificate of Compliance Survey (SUR 29363) for the port engine change on the ship. Although I had some reservations because the engine exhausts were lower than those on the previous engine I issued the said Certificate because I did not believe after discussions with the engine installers that there would be a problem. The engine exhaust system except for the slightly lower turbine outlet was the same as the previous engine that had been operating for many years. I discussed the potential for back flooding of the main engine and agreed with the owner that if this occurred it would result in engine flooding only and therefore be a problem for the owner of engine and ship and would unlikely be a safety issue. . .. ''

16. On 13 April 2010, Mr Ericson sent an e-mail to the Applicant outlining his reasons for believing that, in relation to the port main engine exhaust system, it was necessary to fit valves at the Ship's side and a riser in the system to protect the watertight integrity of the Ship and to protect the engine.

17. On 13 April 201 0, the Applicant responded by e-mail to the e-mail sent to him by Mr Ericson. In that e-mail, the Applicant advised:

“I agree with your interpretation of fitting a valve at the ship's side. This had a big part in our decision to accept the valves rather than the risers as I believe that I have previously explained. As I thought I had previously explained, I believe that this is a safer system for the vessel. With your interpretation of the riser is that it protects the engine. I believe that a valve with the closer and indication system and the procedure which be provided does this far better than a riser. Remember the incident that caused this problem had waves which were higher than the main deck and I believe had risers been fitted the problem (flooding of the engine) still would have occurred.
I agree with you also your comment about the engine installer being satisfied without the risers being fitted as per my reports, this in fact was the case. ''

18. On 21 April 2010, MSQ issued a Notice of Decision to the Applicant, pursuant to s 164(3) of the Regulation. This Notice observed that:

·     the information in the First Certificate was not correct in every particular;

·     the port engine exhaust overboard discharge did not comply fully with the USL Code 2009;

·     the Applicant did not comply with a legislative requirement to list the variation from the nominated design/construction rule on the Certificate of Compliance and verify the sufficiency of the performance-based approach at that time; and

·     the Ship was involved in a marine incident and the revised port engine exhaust overboard discharge arrangement was a significant contributing factor.

The Notice then concluded that the Applicant had contravened the Act and suspended the Authority for a period of three (3) months.

COMMENT BY MR AINSCOUGH:

Open to interpretation

19. On 23 April 2010, the Applicant wrote to MSQ to respond to the Notice of Decision. ln this letter, the Applicant advised:

“I had asked for explanation on why some of the comments made in the correspondence were made. This information still has not been sent. I still do not agree with most of them. At this time, in fact without hindsight, I would still make the same decision and supply the Certificate of Compliance mentioned. I believed at the time and to some extent still believe that the exhaust system complies to USL Code, 2009. Only very high seas while the vessel is at rest enabled the back flooding to the engine manifold you described. Initially your department suggested risers. On this occasion risers would not have prevented the back flooding. I am still waiting an explanation on how risers or even valves can prevent water entering the engine room as suggested. ''

20. On 17 May 2010, the Applicant again wrote to MSQ to respond to the Notice of Decision. In this letter, the Applicant advised:

''(v) An inspection of the vessel's new port engine was carried out on 17 December 2009. At that time I had discussions with the owner on the need to fit risers at the engine exhaust lines. The owner was adamant that these were not necessary - the vessel had run successfully for many years without any incident (and he did not think them necessary now. I did agree with him that any problems that could occur would result in engine failure of one engine only and would not likely be a safety issue at such because the ship had two engines. He stated that he would accept the cost of repairs to the engine in the unlikely event of it's (sic) occurrence.

…

(x) Various phone conversations with suppliers and also faxed copies of Caterpillar Electronic Technician 2009C v1.O configuration after re-rating of engine as requested including discussions with the technician whether riser pipes should have been fitted on the exhaust lines. His opinion was that they were not necessary.

…

(bb) Travel to Town of 1770 and inspected vessel 5 February 2010 - photographs taken and discussions held with Owner in relation to valve/risers would now be required

…

(cc) 12 February 20 10 - discussion with the Owner in relation to risers not being necessary

…

(hh) Telephone conversation with Owner 24 February 2010 after discussion with Darryl Dorron of Bundaberg MSQ - Owner agreed to either fit riser on Port Engine (and Starboard engine when changed) or fit electrically controlled valves on port engine exhausts that close at engine shut down- Owner advised now quite (sic) time and maybe will fit valves within 1 to 2 months time and he will let me know

(ii) 3 March 2010 Owner telephoned and said that 2 inspectors from Brisbane, Wayne Bridge and Tommy Ericson had inspected the ship the day before and they said that maybe the Valve would be more successful - Ken to ring either Tommy or Wayne - also Owner advised that the inspectors seemed happy enough and Wayne Bridge (or Tommy Ericson) tore a piece of paper out of his notebook and only wrote 4 items on this paper for Owner to attend to - Owner did not mention the Written Direction given to him by Wayne Bridge as he thought it was fhe same as the Inspection Report given to him by Darryl Dorron - I phoned Wayne - Wayne preferred valves

…

(qq) 1 April, 20 10 - Email to Darryl Dorron with Engine Procedure and Certificate of Compliance Survey SUR 29395 in relation to Darryl's Shipping Inspectors - I had discussed with Darryl also that as some of the remote closing devices were not yet available but on order, the Procedure re manual closing would suffice until the closing devices were delivered and then fitted .. . ''

…

(eee) Summary of the above:

...
“I then rang Wayne Bridge and discussed the situation with him. We both agreed that because of the height of the waves at the time of the incident, risers would not have solved the problem and that to prevent any chance of a re-occurrence, valves should be fitted to the exhaust lines. We also discussed likely problems of engine damage if the valves (or even more serious if only one of the valves were left closed) when an attempt was made to start the engine.
It was then suggested that remote closing valves be fitted including valve position indicators at the bridge and a Procedure put in place for the operation of the valves and starting of the engines. I later discussed this with the Owner and he agreed to have this work done.
At the above discussion with Mr Bridge he alluded to the fact that he had further concerns for the vessel but would not elaborate any further on his concerns. A few days later the Owner advised that the exhaust valves were fitted and only one was fitted with a remote closing device. The others were ordered as they had not been available in Australia initially. ''

COMMENT BY MR AINSCOUGH:

Facts determined by interpretation

21. On 18 June 2010, MSQ issued a Notice of Reviewed Decision to the Applicant, pursuant to s 34 of the Transport Planning and Coordination Act 1994. This Notice confirmed that:

·there was sufficient evidence on the file to support the Notice of Decision dated 21 April 2010;

·the period of suspension was not unreasonable; and  affirmed the decision under review.

The Notice of Reviewed Decision provided that the Authority be suspended from 30 April 2010 to 30 July 2010.

COMMENT BY MR AINSCOUGH:

Does not make mention of errors

22. On 28 June 2010, the Applicant sent an e-mail to MSQ to query the period of suspension. In that e-mail, the Applicant made the following assertions:

''I still believe as I said right from the start, that the solution to the problem that I was investigated on is not to fit a valve on the exhaust line at the ship's side as I believe this introduces more problems than it solves and therefore I still do not believe it is the correct solution. Almost every vessel l have inspected before and since do not have such valve/s fitted and as I have previously stated that advice from the engine installers believe the same as me.
However, if I were to resume providing Certificates of Compliance for Survey, I would now have to insist that every vessel be fitted with such a valve and I would not be prepared to do that. ''

In this e-mail, the Applicant also advised of his intention to apply to QCAT in relation to the Reviewed Decision.

23. On 30 June 2010, MSQ issued an Amended Notice of Reviewed Decision. This Notice corrected a number of typographical errors in the Notice of Reviewed Decision, including the date of suspension. The Notice of Reviewed Decision provided that the Authority be suspended from 22 April 2010 to midnight on 22 July 2010.

In relation to the Statement of Facts Mr Ainscough went on to say:

A. The main issue in this matter appears to be the induction of unwanted sea water portside main engine outboard exhaust pipe. The exhaust discharge arrangement on the caterpillar engine is consistent with standard practice for this type of machinery with the exhaust gases and cooling water directly ducted into a fabricated exhaust receiver arrangement which in turn is connected to the overboard discharge pipework. In the case of the recent incident the swell waves running down the side and tunnel areas of the vessel were reported to be about l to 1.5 metres in height which would with considerable frequency immerse the exhaust discharges.

The overall concept and operation of these exhaust butterfly valves shutoff arrangements is I considered to be satisfactory subject to the development of implementation of a proper procedure during the “start up / shut down'' of the engines.

A   cont: Refer to: Follows herewith the list of items which have been grouped into respective areas of the vessel - port engine room (caterpillar) -list of twenty four (24) items; NOT INCLUDED

B.  As you are well aware the positioning of the exhaust outlet systems is such that an externally induced increased water- flow height of more than 450 mm (410 mm as per Report by Tommy Ericson - Report previously submitted) from the usual waterline will cause these outlets to be subjected to water ingress.

C. Queensland Police Service Search and Rescue Incident dated 31 January - l February 20 10 - ''we are extremely concerned about this incident it should have never had occurred weather conditions were well advised throughout the area - again passengers and crew there put at risk, also volunteers at Emergency Service personnel at risk with what could have turned into a major disaster. What if a motor stopped upon return in dangerous sea. When is MSQ going to act while the crew did all they could do under the circumstances and are to be congratulated for a job well done it does not excuse the incident. We are extremely concerned that a life will be lost or serious injury will occur. Our volunteers have had enough and from comments around so has the community,''

Attached to this Report is the Coast Guard - from Coast Guard Log of Sunday the 31 January 2010, Jeff to Peter re oil required about 85 litres - discovered water in second motor too. Salt water into sump, needs oil fillers too if coming.

D. IDQ 11270 Bureau of Meteorology Weather Report section - IDQ 1127001 Capricornia - Waters - St Lawrence to Burnett Heads - this weather report supports the Queensland Police Service Search and Rescue Incident report.

The Legislation

1. It is clear from the Statement of Facts and Mr Ainscough’s comments in relation to it about “interpretation” that the dispute really requires an interpretation of the requirements of the NSCV.

2. The NSCV is being progressively introduced to replace the USL Code. Part C Section 5 Subsection 5A relating to machinery was endorsed by the Australian Transport Council in July 2002 and first published in August 2002. The second impression was in April 2005 and Amendment 1 commenced on October 2010 and was published that month. The Amendment is not relevant here.

3. This Subsection of the NSCV was developed following a review of the Uniform Shipping Laws (USL) Code Section 9: Engineering, and replaces Parts 1 Preliminary, 2 General, 3 Machinery and 6 Cargo Refrigeration of that Section. This Part of the NSCV is intended to be read in conjunction with Part A—Safety Obligations and Part B—General Requirements.

[10]  Chapter 1 subsection 1.2.2 of the NSCV states as follows:

1.2.2 Vessels of measured length less than 35 m
The machinery installation on all vessels of measured length less than 35 m shall comply with the requirements of Chapter 1, Chapter 3, Chapter 4, Chapter 5, Chapter 6 and Chapter 7 of this Subsection of the NSCV.
In addition, the following vessels of measured length of less than 35 m shall comply with the following:

a) if fitted with reciprocating internal combustion machinery—comply with the requirements of Chapter 2;

b) …

[11]  Chapter 1 subsection 1.2.4 of the NSCV states as follows:

1.2.4 Required outcomes
The Chapters in this Subsection specify required outcomes for various machinery systems and subsystems within a vessel. The required outcomes are mandatory to the extent that they are applicable to a vessel. The required outcomes within each Chapter are followed by solutions that are “Deemed to Satisfy” these required outcomes. Compliance with required outcomes may also be achieved through the application of the equivalent solutions that comply with the principles set out in Part B of this National Standard.
When developing an equivalent solution, it is a requirement of this National Standard that the overall system safety shall be maintained.

NOTE: A proposed solution that satisfies one or more required outcomes in isolation but has negative effects on compliance with other required outcomes would not be considered an equivalent solution under Part B.

(Tribunal’s highlighting)

[12]  Chapter 1 subsection 2.19 of the NSCV specifically deals with Exhaust Systems and 2.19.9 states as follows:

2.19.9 Through-hull exhaust discharges
Exhaust pipes that discharge through the hull of a vessel should be water-cooled. Typical water-cooled exhaust installations are illustrated in Figure 2, Figure 3, and Figure 4. Exhaust pipe discharges should be installed as high as practicable above the deepest loaded waterline to reduce the potential for ingestion of water into the exhaust system through wave or wake action, both when the engine is operational or idle.

(Tribunal’s highlighting)

[13]  Subsection 2.19.9.2 of the NSCV specifically deals with Water-cooled (wet) exhausts and states as follows:

2.19.9.2 Water-cooled (wet) exhausts

The design of a water-cooled exhaust system shall also be such that

a) water injected into the exhaust cannot enter the engine (refer to dimension ‗a‘ in Figure 2, Figure 3, and Figure 4); and

b) arrangements are in place to reduce back pressure.

(Tribunal’s highlighting)

Figure 2 — Typical water-cooled exhaust incorporating a water jacketed riser loop and shut-off valve at the discharge

Figure 3 — Typical water-cooled exhaust incorporating a waterlift chamber, riser and flapper valve at the discharge

Figure 4 — Typical water-cooled exhaust incorporating a water cooling jacket, riser and no valve at the discharge

[14]  Subsection 2.19.9.3 of the NSCV specifically deals with Arrangements to prevent back-flooding of machinery and states as follows:

2.19.9.3 Arrangements to prevent back-flooding of machinery
Exhaust pipes that discharge below the freeboard deck shall incorporate a riser or other device to prevent water returning to the engine (refer to distance “b” in Figure 2, Figure 3, and Figure 4). Where the exhaust arrangement is such as to promote the accumulation of water between the engine and a riser or loop, then a drain cock or valve shall be fitted near the exhaust manifold to permit periodic drainage. A vacuum-breaking device shall be fitted to the top of risers where there is a risk of water being drawn into the engine as the system cools.

NOTE: A riser may incorporate a steady fall from the highest point of the exhaust, to the injection point, to the discharge as Figure 4. The riser may also take the form of a loop, which acts as a dam as in Figure 2 and Figure 3. Alternatively, a loop may be introduced into the system to act as a water trap as illustrated in Figure 1. Where the loop acts as a trap, a means to release the trapped water from the loop should be fitted.
(Tribunal’s highlighting)

[15]  Subsection 2.19.9.5 of the NSCV specifically deals with Watertight integrity of exhaust pipe discharges and states as follows:

2.19.9.5 Watertight integrity of exhaust pipe discharges
Exhaust pipe discharges shall be arranged such that a breach of the exhaust pipe (e.g. through corrosion or fatigue) will not result in flooding of the vessel. They shall also comply with the following:

a) Load Line Vessels

…

b) Vessels other than Load Line vessels

Exhaust pipe discharges shall comply with the following:

i) Discharges that penetrate the shell below the level of the weather deck, but at a height not less than 225 mm above the deepest loaded waterline, shall be fitted with a non-return valve, non-return flap or other similar arrangement as in Figure 3. (Tribunal’s highlighting)

ii) Discharges that penetrate the shell at a height less than 225 mm above the deepest loaded waterline shall be fitted with a shut-off valve as in Figure 2. If located within the machinery space, the shut-off valve may be controlled locally, provided it is fitted in an easily accessible position and, in the case of unmanned machinery spaces, a bilge level alarm is fitted. In all other cases, the shut-off valve shall be fitted with a positive means for closing the valve from a position above the weather deck

NOTE: The term “weather deck” refers to the uppermost continuous deck or bulkhead deck.

(Tribunal’s highlighting)

[16]  Subsection 2.19.9.6 of the NSCV specifically deals with Alternative arrangements for watertight integrity of exhaust pipe discharges and states as follows:

2.19.9.6 Alternative arrangements for watertight integrity of exhaust pipe discharges
Where on a Class B, C, D or E vessel less than 24 m in measured length it is found impracticable to meet the provisions in Clause 2.19.9.5(b), exhaust pipe arranged as provided in Table 1 shall also be deemed to satisfy the required outcome.
(Tribunal’s highlighting)

Table 1 — Alternative arrangements for watertight integrity of exhaust pipe discharges (Irrelevant sections removed by Tribunal):

Height of discharge above the deepest loaded waterline

Requirement

Greater than 225 mm

No non-return valve or flap may be fitted (see Figure 4) provided

a)   a bilge level alarm is fitted in the compartment where the exhaust pipe discharge penetrates the hull;

b)   the means provided to prevent back-flooding of the engine is capable of dealing with frequent water ingestion; and

c)   that part of the exhaust system between the shell and the highest point of the loop or riser in the exhaust piping or the apparatus to prevent back-flooding of the engine is constructed of stainless steel or an equivalent corrosion-resistant material

[17]  Subsection 2.19.9.7 of the NSCV specifically deals with the Location of shut-off and non-return valves and states as follows:

2.19.9.7 Location of shut-off and non-return valves
Where shut-off or non-return valves are required on an exhaust discharge, they shall be located on or as close to the shell as practicable. Where a section of exhaust pipe is provided between the hull and a shut-off or non-return valve, it shall have a minimum thickness 1.25 times that calculated for a hull of the same material, were the hull to be made of the same material as the section of the exhaust.

[18]  The USL Code 2009 is the latest version of the Uniform Shipping Laws (USL) Code. It is a combination of the previous version of the USL Code, with some parts replaced by recently completed sections of the NSCV.

[19]  According to the Uniform Shipping Laws Code 2009, Section 5A: Construction – Preliminary at A.1.1 where requirements of the NSCV have been incorporated into this Section 5 of the USL Code, vessels in Queensland must comply with those provisions of the NSCV which:

• set out a required outcome;

• set out a deemed-to-satisfy solution for a required outcome;

• or provide guidance as to the interpretation of these applicable clauses.

  (Amendment dated 1 October 2009)

[20]  The USL Code 2009 refers to its application as follows:

A.5 Application
…

Where alterations are made to an existing vessel this Section shall apply as far as is reasonable and practicable to the alterations as if the parts of the vessel so altered were parts of a new vessel.

By definition, a class 1C vessel is a seagoing passenger vessel for use in all operational areas up to and including restricted offshore operations.

[21]  The NSCV Part B Clause 1.2, which provides that the NSCV applies to:

A.  existing vessels subject to an upgrade in service; and

B. other existing vessels as required by legislation.

[22]  At the hearing it became clear that the issue for determination was an interpretation of the NSCV’s requirements to prevent back-flooding of the boat’s engine, the relevant part of the USL Code having been replaced by Chapter 1 subsection 1.2 of the NSCV since 2009.

What is now required by the NSCV?

[23]  Clause 1.2.4 refers to the Chapters as specifying required outcomes for various machinery systems and subsystems within a vessel. It states that the required outcomes are mandatory to the extent that they are applicable to a vessel. The required outcomes within each Chapter are followed by solutions that are “Deemed to Satisfy” these required outcomes.

[24]  Clause 2.19.9 which deals with through-hull exhaust discharges states one of these required outcomes as being to reduce the potential for ingestion of water into the exhaust system through wave or wake action, both when the engine is operational or idle. That outcome is relevant to this dispute.

[25]  Clause 2.19.9.2 deals with water-cooled (wet) exhausts and requires that “arrangements are in place to reduce back pressure.” Figures 2, 3 and 4 are the “solutions’ referred to in Clause 1.2.4 which if implemented are “Deemed to Satisfy” these required outcomes.

[26]  Clause 2.19.9.3 deals with arrangements to prevent back-flooding of machinery and requires that  exhaust pipes that discharge below the freeboard deck shall incorporate a riser or other device to prevent water returning to the engine (refer to distance “b” in Figure 2, Figure 3, and Figure 4).

[27]  This is a required outcome and compliance with Figure 2, Figure 3, or Figure 4 would be “Deemed to Satisfy” this required outcome.

[28]  The Note to Clause 2.19.9.3 states that “The riser may also take the form of a loop, which acts as a dam as in Figure 2 and Figure 3. Alternatively, a loop may be introduced into the system to act as a water trap as illustrated in Figure 1. Where the loop acts as a trap, a means to release the trapped water from the loop should be fitted.”

[29]  Clause 2.19.9.5 is quite specific and states that exhaust pipe discharges shall be fitted with a non-return valve, non-return flap or other similar arrangement as in Figure 3.

[30]  The arrangement of these Clauses is from the required outcomes, which are mandatory, followed by possible solutions with some of the solutions such as Clause 2.19.9.5b) i) being a very specific requirement.

The Alleged Breaches

[31]  Firstly, MSQ alleged that because there is no riser on the discharge pipe on any of the four (4) exhaust systems prevent back-flooding of the system, this constituted a non- compliance with the requirements of the National Standard for Commercial Vessels (NSCV) Section C5A, Clause 2. 19.9.3 Arrangements to prevent back-flooding of machinery.

[32]  Secondly, MSQ alleged that the shut off valve (butterfly type) between the water mixer and the muffler on the inboard side of the port main engine exhaust does not protect the watertight integrity of the ship if there is a failure in the exhaust system between the valve and the discharge through the shell plate (i.e. failure of the fiberglass muffler or stainless steel discharge pipework). MSQ alleged that this constituted a non-compliance with the requirements of the NSCV Section C5A, Clause 2. 19.9. 7 Location of shut-off and non-return valves.

…

[33]  Thirdly, MSQ alleged that the port main engine exhaust on the outboard side (flooded at the time of the marine incident) is not fitted with a shut off valve or a riser in the pipework, and as such when the exhaust discharge was subjected to the wave action, there was no protection available to stop water ingress into the exhaust manifold of the engine. MSQ alleged that this constituted a non-compliance with the requirements of the NSCV Section C5A, Clause 2.19.9. 5 Watertight integrity of exhaust pipe discharges.

…

[34]  MSQ then stated that transferring the water line internally it can be seen that the exhaust outlet from the main engine is below both the discharge through the shell plate and the lightship waterline. MSQ alleged that without a shutoff valve at or near the discharge, there is currently no means to prevent back-flooding of the engine through the exhaust manifold.

…

[35]  MSQ alleged that the existing installation of both the port and starboard main engine exhausts is not compliant with rule requirements to prevent back-flooding of the machinery or to maintain the watertight integrity of the ship in the event of an exhaust system failure.

[36]  In response to these alleged breaches Mr Ainscough asserted that he had only certified the changes to the port engine and that these changes did comply with the USL Code. He referred the Tribunal to the NSCV section 2.19.9.6 Alternative Arrangements referred to above, as authority for this contention.

[37]  It was not in dispute that the ship was a Class 1C vessel of 23.9 metres. However, in order to resort to the Alternative Arrangements it is necessary to attempt to comply with section 2.19.9.5.

[38]  Where it is found impracticable to meet the provisions in Clause 2.19.9.5(b), an exhaust pipe arranged as provided in Table 1 shall also be deemed to satisfy the required outcome.

[39]  Mr Ainscough offered little reason why in making the changes to the ship it had been found impracticable to meet the provisions in Clause 2.19.9.5(b). He did state that advice from the engine installers agreed with him that the solution was not to fit a valve on the exhaust line at the ship's side as this would introduce more problems than it solved. However, Mr Ainscough did not produce any evidence from the engine installers or engine manufacturers to back-up this assertion. From the evidence, it appears that the major reason for not fitting valves at that time resulted from the owners reluctance to fit them and instead to bear the consequences.

[40]  At the hearing, the parties were in agreement that the ship was not a Load Line vessel. They also agreed that the ship’s discharge penetrated the shell below the level of the weather deck, but at a height not less than 225 mm above the deepest loaded waterline. As a result, under Clause 2.19.9.5(b) the exhaust pipe discharge was required to be fitted with a non-return valve, non-return flap or other similar arrangement as in Figure 3.

Findings as to the Breaches

[41]  The Tribunal finds that as at 22 December 2009, when Mr Ainscough issued the First Certificate for the Ship there was no riser or loop as required by Clause 2.19.9.3.

[42]  The Tribunal also finds on the basis of the evidence that as at 22 December 2009, the ship also was not fitted with a non-return valve or a non-return flap. At the hearing Mr Ainscough suggested that other similar arrangement as in Figure 3 were in place. In this regard, he referred to a discharge valve on the water lift chamber as constituting that “other similar arrangement.” The Tribunal finds that this did not satisfy the requirements of Clause 2.19.9.5(b).

[43]  Subsequent to 31 January 2010, the ship was fitted with non-return flaps and non-return valves.

Mr Ainscough required the valves to be installed because he believed a valve with the closer and indication system and the procedure which he provided does this far better than a riser. He believed that had risers been fitted the problem (flooding of the engine) still would have occurred.

[44]  On 1 April 2010, Mr Ainscough issued the Second Certificate in respect of the Ship.

[45]  On 21 April 2010, MSQ issued the Notice of Decision to Mr Ainscough, pursuant to s 164(3) of the Regulation. This Notice observed that:

§  the information in the First Certificate was not correct in every particular;

§  the port engine exhaust overboard discharge did not comply fully with the USL Code 2009,

§  the Applicant did not comply with a legislative requirement to list the variation from the nominated design/construction rule on the Certificate of Compliance and verify the sufficiency of the performance-based approach at that time; and

§the Ship was involved in a marine incident and the revised port engine exhaust overboard discharge arrangement was a significant contributing factor.

[46]  The Notice then concluded that the Applicant had contravened the Act and suspended the Authority for a period of three (3) months.

Findings based on the Legislative Requirements

[47]  The Tribunal finds that as at 22 December 2009, when Mr Ainscough issued the First Certificate for the Ship, the ship was not fitted with a non-return valve or a non-return flap. The Tribunal rejects Mr Ainscough’s suggestion that the “pong box” somehow constituted a loop and with the discharge valve on the water lift chamber constituted “other similar arrangement.” The Tribunal rejects this on the basis that after the to 31 January 2010 incident it was not relied upon by Mr Ainscough who agreed that the ship should be fitted with non-return flaps and non-return valves.

[48]  The Tribunal also finds that the ship was not fitted with risers. In this regard, the Tribunal accepts Mr Ainscough’s contention that a riser is not specifically required although Figure 3 incorporates one.

[49]  The Tribunal notes that subsequent to 31 January 2010, the ship was fitted with non-return flaps and non-return valves and therefore, finds that it was not impracticable to meet the provisions in Clause 2.19.9.5(b). Therefore, the Tribunal finds that it was not appropriate to resort to Clause 2.19.9.6 and Table 1. The exhaust pipe discharges were required to comply with Clause 2.19.9.5(b).

[50]  The Tribunal finds that:

§  the information in the First Certificate was not correct in every particular;

§  the port engine exhaust overboard discharge did not comply fully with the USL Code 2009 now covered by the NSCV;

§  the Applicant did not comply with a legislative requirement to list the variation from the nominated design/construction rule on the Certificate of Compliance and verify the sufficiency of the performance-based approach at that time; and

§the Ship was involved in a marine incident and the revised port engine exhaust overboard discharge arrangement was a significant contributing factor.

[51]  Therefore, based of the Tribunal’s findings, the decision of 21 April 2010 to suspend the Authority of Mr Ainscough as an accredited marine surveyor is confirmed.

[52]  The Tribunal received no evidence relating to the period of the sentence. Mr Ainscough, however, submitted that 3 months was “over the top” as the ship had operated without incident for 30 years. This ignores the point that the new port engine involved a change to the ship and the certification was require to consider the requirements of the NSCV at that time.

[53]  Based on the fact that this certification involved a commercial passenger carrying vessel and issues of safety, the Tribunal finds that the three month period of suspension was appropriate in the circumstances. Therefore, the decision to suspend Mr Ainscough as an accredited marine surveyor for a period of three months is confirmed.