MTM Ship Managment PTE LTD, Singapore and Australian Maritime Safety Authority

[2021] AATA 1998

MTM Ship Managment PTE LTD, Singapore and Australian Maritime Safety Authority [2021] AATA 1998 (30 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/5424

Re:MTM Ship Managment PTE LTD, Singapore

APPLICANT

AndAustralian Maritime Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance
Mr S Evans, Member

Date:  30 June 2021

Place:Sydney

The decision under review, being the decision of Australian Maritime Safety Authority to detain the MTM Shanghai on 17 August 2020, is affirmed

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Deputy President J W Constance

CATCHWORDS

MARITIME SAFETY – detention order – whether vessel was at the time of inspection unseaworthy or substandard – appropriate Action Code – International Convention for the Safety of Life at Sea – where emergency generator not automatically powering the emergency switchboard in a blackout situation – where deficiency rectified on the same day – reasonable suspicion – Tribunal satisfied vessel detained on the basis of a deficiency which rendered the vessel incompatible with SOLAS guidelines – Tribunal satisfied at the time of inspection the vessel was substandard – Tribunal satisfied that at the time of inspection the vessel was unseaworthy – where decision to detain preferable decision – decision affirmed

LEGISLATION

Australian Maritime Safety Authority Act 1990 (Cth) s 7

Navigation Act 2012 (Cth) ss 23, 24, 248, 257

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

George v Rockett (1990) 150 CLR 104

Teekay Shipping (Aust) Pty Ltd and Australian Maritime Safety Authority [2012] AATA 519

Yuri Mogilyuk and Australian Maritime Safety Authority [2014] AATA 409

SECONDARY MATERIALS

International Convention for the Safety of Life at Sea, 1974

Marine Order 12 (Construction – subdivision and stability, machine and electrical installations) 2016

REASONS FOR DECISION

Deputy President J W Constance
Mr S Evans, Member

30 June 2021

1. MTM Ship Management PTE LTD, Singapore (“the Applicant”) has applied for review of a decision of the Australian Maritime Safety Authority (“AMSA” or “the Respondent”) to detain a vessel, the MTM Shanghai. The Applicant was represented by Captain Neelamohan Padhi, who is responsible for the vessel.

   BACKGROUND

2. The MTM Shanghai (also referred to as “the vessel”) is a Singapore flagged chemical tanker which was detained in Fremantle, Australia, on 17 August 2020 during a port State control inspection.

3. AMSA is responsible for maritime safety and ensuring regulated vessels are operated safely and meet standards. The agreed facts of the port control inspection and the deficiencies identified on the MTM Shanghai by the AMSA Port State control officer (“the control officer”) are set out in the Respondent’s Statement of Facts, Issues and Contentions dated 18 March 2021.

   The deficiency

4. On 17 August 2020 at 2:30 pm the control officer boarded the MTM Shanghai. Upon inspecting the vessel, the control officer identified four deficiencies, one of which was determined to render the vessel unseaworthy and substandard (“the detainable deficiency”).

5. The control officer inspected the vessel’s emergency generator by requesting the MTM Shanghai’s chief engineer perform a sequence test of the vessel’s emergency generator. Initially the selector switch was set to manual and the generator was started. The control officer again explained the required outcome of the test and the chief engineer was asked to conduct the test with the selector switch set to the correct position. After a short interval, the generator started but did not automatically connect to the Emergency Switchboard (“the switchboard”).

6. The chief engineer was advised by the control officer that the breaker could be opened to simulate the blackout to test the automatic connection to the switchboard. The electrician went to the Engine Control Room and the test was carried out again, with the same result. The control officer considered the discovery of the defect to be clear grounds that the ship did not correspond with the requirements of the International Convention for Safety of Life at Sea (“SOLAS”).

7. The MTM Shanghai’s Master was advised that the failure of an emergency generator to connect to the emergency switchboard was a detainable deficiency, and if the deficiency was not rectified before the end of the inspection, the vessel would be detained in port.

8. The control officer continued with the inspection and at the conclusion of the inspection the chief engineer advised that the cause of the defect had been rectified. Upon checking, however, the control officer noted that the emergency generator still required to be manually connected to the switchboard and would not automatically power it. The control officer conferred with the Principal Regional Port Marine Surveyor who agreed with the decision to detain the MTM Shanghai. The control officer produced the detention documentation and provided it to the MTM Shanghai’s Master. The control officer departed the vessel at 4:35 pm.

9. A shore technician attended onboard the MTM Shanghai and assisted the crew with trouble shooting the defective emergency generator. It was identified that a relay had apparently vibrated out of its socket and fallen to the bottom to the switchboard. The shore technician correctly installed the relay and conducted a test of the system locally and remotely which showed that the system was correctly operating after rectification. The shore technician notified the local agent at 10:16 pm of the rectification.

10. A different Port State control officer boarded the vessel on 18 August 2020 and sighted the rectified emergency generator operation, including automatic connection to the switchboard. On the basis of this information, the MTM Shanghai was released from detention on 18 August 2020.

    CONTENTIONS OF THE PARTIES

11. The Applicant has applied to the Tribunal seeking to have the original detention order (Action Code 30) withdrawn and replaced with an order to rectify (Action Code 17). It is submitted that as the MTM Shanghai was never detained and sailed to schedule, the order to rectify is more appropriate.

12. AMSA contends that the decision to issue a detention order was correct as the control officer had sufficient grounds to reasonably suspect that the vessel was unseaworthy or substandard at the time of the order.

    ISSUE TO BE DETERMINED

13. The issue to be determined by the Tribunal is:

    (i)was the decision to detain MTM Shanghai in Fremantle Harbour on 17 August 2020 the correct and preferable decision.

    LEGISLATION, RELEVANT CONVENTIONS AND POLICY

14. AMSA is established by the Australian Maritime Safety Authority Act 1990 (Cth) (“the AMSA Act”). Section 7 of the AMSA Act requires AMSA to perform its functions in a manner consistent with the obligations of Australia under any agreement between Australia and another country.

15. AMSA is the authority with responsibility for the administration of the Navigation Act 2012 (Cth) (“the Navigation Act”).

16. Part 3 of the Navigation Act deals with detention powers, including the power of AMSA to detain a vessel. Section 248 provides, in part:

    (1)AMSA may detain a vessel and may also bring it, or cause it to be brought, to a port, or to another place that AMSA considers appropriate, if:

    (a)AMSA reasonably suspects that the vessel is unseaworthy or substandard…… .

17. A vessel will be deemed “unseaworthy” if it fails to meet the definition contained in s 23 of the Navigation Act. That section states:

    A vessel is seaworthy if, and only if:

    (a)it is in a fit state as to the condition of hull and equipment, boilers (if any) and machinery, the stowage of ballast or cargo, the number and qualifications of seafarers, and in every other respect, to:

    (i)  encounter the ordinary perils of the voyage undertaken; and

    (ii) not pose a threat to the environment; and

    (b)it is not overloaded; and

    (c)the living and working conditions on board the vessel do not pose a threat to the health, safety or welfare of the vessel’s seafarers.

    Note:     An unseaworthy vessel can be detained under section 248.

18. “Substandard” is defined in section 24 of the Navigation Act. A vessel to which SOLAS applies, which includes the MTM Shanghai, is substandard in relation to the condition of the vessel or its equipment in respect of a particular voyage or operation, if:

    (b)         both:

    (i)     one or more certificates required by the Convention concerned for the proposed voyage or operation are in force; and

    (ii)     the condition of the vessel or its equipment does not correspond substantially with the particulars of the certificate or certificates.

    Note:     A substandard vessel can be detained under section 248.

19. SOLAS specifies minimum standards for the construction, equipment and operation of vessels, compatible with their safety. The current SOLAS includes articles setting out general obligations and procedures.

20. Regulation 43 of Chapter II-1 of SOLAS relates specifically to the emergency source of power in cargo ships. Regulation 43.1.1 states that a self-contained emergency source of electrical power shall be provided. Where the emergency source of electrical power is a generator, Regulation 43.3.1.2 requires that it shall be:

    Started automatically upon failure of the main source of electrical power supply unless a transitional source of emergency electrical power in accordance with paragraph 3.1.3 is provided; where the emergency generator is automatically started, it shall be automatically connected to the emergency switchboard; those services referred to in paragraph 4 shall then be connected automatically to the emergency generator; and unless a second independent means of starting the emergency generator is provided the single source of stored energy shall be protected to preclude its complete depletion by the automatic starting system; and…

21. Marine Order 12 (Construction – subdivision and stability, machine and electrical installations) 2016 (“the Marine Order”) is delegated legislation under the Navigation Act. The Marine Order applies to foreign vessels and gives effect to Chapter II-1 of SOLAS.

22. Section 257 of the Navigation Act empowers inspectors (who are also duly delegated Port State control officers) to board vessels for the purposes of finding out whether the Navigation Act is being, or has been, complied with.

23. Both international and domestic guidelines have been developed that provide direction on the conduct of Port State Control inspections and afford consistency in the recognition of deficiencies related to a vessel, its equipment or its crew, and the application of control procedures such as detention. Port State control officers may refer to these guidelines when exercising their professional judgement to determine whether to detain a vessel under section 248 of the Navigation Act.

24. In circumstances where a Port State control officer determines that a vessel’s emergency generator, lighting, batteries and switches fail to properly operate and the deficiency is serious enough to jeopardise the seaworthiness of the vessel, safety of crew or passengers on board or present an unreasonable threat to the environment, AMSA’s policies, guidelines and usual practice recommend that the vessel be detained.

25. Deficiencies in commercial vessels are defined in the International Maritime Organisation (“IMO”) Guidelines for Port State control. AMSA has prepared instructions to surveyors which include guidelines and training materials for its Port State control officers.

26. ITS 63-01 provides direction to Port State control officers on the use of codes for deficiencies contained in the Asia-Pacific Port State Control Manual, which was developed by the Asia-Pacific Memorandum of Understanding on Port State Control known as “the Tokyo MOU”. Annexure D of ITS 63-01 provides guidance on the use of Deficiency Action Codes in respect of individual deficiencies found in the course of an inspection. Of relevance to this matter are AMSA’s instructions to surveyors on Deficiency Action Codes 17 (rectify deficiency prior to departure) and 30 (detainable deficiency), which provide in part:

    Action Code 17 - rectify deficiency before departure

    … to be used for deficiencies that are hazardous to safety, health or the environment and warrant rectification before the ship sails.

    ...

    A follow up visit will normally be required. Upon rectification, the Code 17 will be updated to a Code 10 …

    A Code 17 cannot be "upgraded" to a Code 30. Therefore, if a deficiency renders a ship unseaworthy or substandard, it is to be detained until the detainable deficiencies have been appropriately rectified, irrespective of the time available for repairs…

    Action Code 30 - detainable deficiency

    This code is to be used when a deficiency is serious enough to jeopardise the ship's seaworthiness, safety of crew/passengers on board or present an unreasonable threat to the environment and warrants a detention of the ship to ensure rectification of the serious defect. Code 30 cannot be updated to Codes 15, 16 or 17…

    For detainable ISM type deficiencies (deficiency category 15100 series), Code 30 can only be updated with either Code 18 [rectify deficiency within 3 months] or 10 [deficiency rectified] depending on whether or not the deficiency has been fully rectified and Shipsys updated accordingly.

    APPLYING THE LEGISLATION AND RELEVANT CONVENTIONS

27. The specific nature of the detainable deficiency identified by the control officer is accepted by the Applicant. However, Captain Padhi notes that when the control officer issued the Deficiency Action Code 30, or detention order, he stated on the detention order that he did so as the “emergency generator does not automatically start up and power emergency switchboard in a black out situation”. Captain Padhi submits that although the emergency generator was functional and could be started, the test was unsuccessful when tested for automatic onload release from a black out situation.

28. In the course of an internal review of the decision, AMSA amended the wording in the original Detention Order to describe the nature of the detainable deficiency as:

    Emergency generator not automatically powering the emergency switchboard in a blackout situation.[1]

    [1] Exhibit R1 at 236.

29. The Applicant submits that this amounts to a “change in the observation itself”.[2] Captain Padhi gave evidence that he considered that the change in the wording indicated that the control officer did not properly understand the specific nature of the deficiency at the time of making the order. In recording that the emergency generator did not automatically start up, the control officer was wrong. Whilst the generator would start, the deficiency was the failure of the emergency generator to power the emergency switchboard.

    [2] Applicant’s submissions dated 5 February 2021.

30. AMSA maintains that the error was identified during the course of an internal review. It is argued that the error is insignificant to the ultimate decision to detain the vessel as the fact remains that the control officer identified that the emergency generator failed to connect to the emergency switchboard automatically, which is the key requirement of Regulation 43 “Emergency source of electrical power in cargo ships” of Chapter II-1 of SOLAS.

31. In considering the contentions of the Applicant, two considerations are determinative.

32. First, the original description was correct in that the emergency generator did not perform the combined functions referred to. It did not start up and power the switchboard. The updated description of the deficiency is correct also and consistent with the detainable deficiency which was acknowledged and rectified by the Applicant.

33. Secondly, even though the emergency generator was operating the failure to provide power to the switchboard remained a detainable deficiency. This is not in dispute. The Tribunal notes that the convention code S74/CII-1/R43 – which is a reference to a breach of SOLAS Chapter II-1, Regulation 43 – is consistent on both the original and updated version of the document.

34. We do not accept the Applicant’s claim that the updated wording calls into question the decision to detain the vessel or indicates that the control officer misunderstood the nature of the deficiency. The decision under review is the decision to detain the vessel.

    Was the MTM Shanghai unseaworthy or substandard?

35. AMSA contends that as the MTM Shanghai was both “unseaworthy” and “substandard” the vessel was correctly detained in accordance with paragraph 248(1)(a) of the Navigation Act.

36. AMSA contends that the deficiency gave the control officer grounds to reasonably suspect that the vessel was not in a fit state to encounter the ordinary perils of the voyage undertaken and to not pose a threat to the environment. AMSA submitted that:

    The deficiency, whilst seemingly innocuous when the vessel is operating normally, it is critical during a loss of power incident... Should seafarers be found in a situation where the vessel blacks out during critical navigation… and the emergency generator does not connect automatically, the consequences can be catastrophic. Likewise, if the vessel blacks out in an emergency in rough seas, the emergency not automatically starting could be the difference between responding to the emergency or a loss of the vessel. The deficiency clearly posed a threat to the health, safety, or welfare of the seafarers on board.

37. We are satisfied that the MTM Shanghai was unseaworthy given the risk that the failure of the emergency generator to automatically connect to the switchboard posed to the vessel’s seafarers should it have lost power in the course of its journey. We are satisfied also that had the deficiency not been rectified there was a risk that it would be damaged at sea allowing chemicals to escape into the environment.

38. The Tribunal finds that by the operation of section 23 of the Navigation Act, the MTM Shanghai was unseaworthy at the time of inspection.

39. The MTM Shanghai held a Cargo Ship Safety Construction (CSSC) Certificate. The failure of the MTM Shanghai’s emergency generator to power on the emergency switchboard in a blackout situation placed the vessel in breach of the CSSC certificate. As the condition of the vessel did not correspond substantially with the particulars of the CSSC certificate, it was “substandard” at the time of the inspection.

40. The Tribunal finds that by operation of section 24 of the Navigation Act, the MTM Shanghai was substandard at the time of inspection.

41. Captain Padhi argues that the cause of the failure was factors outside the control of the MTM Shanghai. In support of this he notes that onload testing of the vessel’s emergency generator was conducted on 5 August 2020 and 10 August 2020 and revealed that the system was functioning normally. He submits that the vessel had encountered adverse weather with high seas and swell on passage to Fremantle for “about two days prior”[3] to arriving in Fremantle and that “it appears that the time relay may have fallen off during severe vibrations caused when the vessel was pitching and pounding heavily under severe weather conditions”.[4]

    [3] Exhibit R1 at 226.

    [4] Ibid.

42. Captain Padhi contends that the hypothesis that the relay vibrated out of its socket and fell to the bottom of the switchboard was supported by a subsequent Singapore Flag State inspection which confirmed that the timer relay may have fallen off during the inclement conditions experienced on the way to Fremantle.

43. As the emergency electrical power system had been tested twice 12 days prior to 17 August 2020, the crew had not undertaken an Onload EDG Test on arrival at Fremantle port.

44. Whilst these considerations help explain the deficiency and the failure to perform testing of the emergency generator prior to the control officer’s inspection, they do not absolve the vessel of the necessity of meeting the requirements of the Navigation Act.

    Was it appropriate to detain the MTM Shanghai?

1. Whilst AMSA maintain that the detention of the MTM Shanghai was correct and in the public interest, the Applicant has asked that the detention order be withdrawn and replaced with an order to rectify prior to departure.

2. The Applicant submits that after the detention order was issued, the detainable deficiency was rectified and the detention order withdrawn prior to the MTM Shanghai’s scheduled departure from port. As AMSA was not required to detain the vessel, a rectification order, or Action Code 17, is both more appropriate and consistent with the events as they transpired.

3. The failure of the emergency generator to power on the emergency switchboard suggested that the vessel was not compliant with SOLAS guidelines. The IMO Procedures for Port State Control, 2019 at Appendix 2, Guidelines for the Detention of Ships lists “[f]ailure of the proper operation of emergency generator, lighting, batteries and switches” amongst detainable deficiencies which are considered to be of such serious nature that they may warrant the detention of the ship involved.

4. The power to detain a vessel under subparagraph 248(1)(a) of the Navigation Act requires only that a Port State control officer reasonably suspects that the vessel was unseaworthy or substandard.

5. When considering what constitutes grounds to reasonably suspect, the Tribunal was referred by the Respondent to the decision of the High Court in George v Rockett[5] where the Court held that, inter alia, the requirement that there be ‘reasonable grounds’ for a suspicion requires the existence of facts which are sufficient to induce that suspicion in a reasonable person.

   [5] (1990) 150 CLR 104.

6. In the matter of Teekay Shipping (Aust) Pty Ltd and Australian Maritime Safety Authority[6] (“Teekay Shipping”), the Tribunal considered the temporal nature of the power to detain contained in the predecessor to the Navigation Act. The Tribunal concluded that in exercising the detention power, what mattered was “how the plant appeared at the time of the inspection”.

   [6] [2012] AATA 519.

7. At the time of the inspection, the MTM Shanghai was detained on the basis of a deficiency which rendered the vessel incompatible with SOLAS guidelines. The wording of section 248 of the Navigation Act requires that the reasonable suspicion a vessel is unseaworthy or substandard exist at the time of the order. The control officer was not to know at the time of issuing the detention order that the deficiency would be rectified later that day.

   The discretion to detain

8. Section 248 of the Navigation Act provides that the decision-maker (initially AMSA and now the Tribunal) “may” detain a vessel if it reasonably suspects that the vessel is unseaworthy or substandard. This means that the decision-maker has a discretion to detain the vessel in the circumstances stated. The Act does not state that detention must follow the forming of the reasonable suspicion.

9. As there was a discretion to make the decision under review, it is necessary to consider whether the decision was preferable.[7] We accept the contention of AMSA that the consequences of a failure of the generator to connect to the switchboard in an emergency at sea could be catastrophic. On this basis, and taking into account the SOLAS guidelines, it was appropriate that the discretion to detain the MTM Shanghai was exercised.

   [7] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

   The Action Codes

10. As the detention order was lifted prior to the MTM Shanghai’s scheduled departure from port, it had no material impact on the vessel’s schedule. However, the decision to detain the vessel has ongoing consequences as the Action Codes assigned to vessels remain in the register. As such the Applicant seeks to have an order to rectify substitute for the order to detain.

11. In Teekay Shipping, the Tribunal considered the substitution of Action Codes and concluded that while AMSA policy may be of assistance to the Tribunal in terms of determining the correct or preferable decision, it is not open to the Tribunal to make a decision to apply the Action Codes, although this could be the subject of a recommendation under section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

12. The Tribunal considered a request to alter an action code in Yuri Mogilyuk and Australian Maritime Safety Authority.[8] Citing Teekay Shipping, the Tribunal observed that it is the application of the legislative scheme that determines its decision. The Tribunal also concluded that it could not order AMSA to change the Action Codes in the register. The Tribunal must instead address itself to the original decision which was made under section 248(1)(a) of the Navigation Act.

    [8] [2014] AATA 409.

    CONCLUSION

13. For the reasons stated above the Tribunal is satisfied that the decision of the control officer to detain the MTM Shanghai on the basis of the deficiency identified was the correct and preferable decision

14. The decision under review, being the decision of Australian Maritime Safety Authority to detain the MTM Shanghai in Fremantle Harbour on 17 August 2020, will be affirmed.

I certify that the preceding 58 (fifty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Mr S Evans, Member

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Associate

Dated: 30 June 2021

Date(s) of hearing:	12 April 2021
Advocate for the Applicant:	Capt. Neelamohan Padhi
Solicitors for the Respondent:	N Louverdis, Australian Maritime Safety Authority