National Security (Shipping Control) Regulations (Cth)

STATUTORY RULES.

1940. No. 275

––––––

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1940.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939-1940.

Dated this fifth day of December, 1940.

Governor-General.

By His Excellency’s Command,

for and on behalf of the Minister of State for Defence Co-ordination.

 

National Security (Shipping Control) Regulations.

Citation.

1. These Regulations may be cited as the National Security (Shipping Control) Regulations.

Definitions.

2. In these Regulations, unless the contrary intention appears—

“master” means any person having command or charge of a ship;

“owner” includes the manager or secretary of any company or body corporate or any person to whom the whole or a part of a ship belongs;

“ship” includes every boat or other description of vessel used for any purpose on the sea or in navigation not ordinarily propelled by oars only;

“the Navigation Act” means the Navigation Act 1912-1935;

“the Minister” means the Minister of State for Commerce;

“the war” means any war in which His Majesty is or may be engaged.

 

* Notified in the Commonwealth Gazette on , 1940.

5027/39.—12/4.12.1940.—Price 8d.

Application of Regulations.

3.—(1.) These Regulations shall have effect subject to any order made under regulation 45 of the National Security (General) Regulations.

(2.) These Regulations shall, except as otherwise provided in these Regulations, apply—

(a) to ships registered in Australia, wherever they may be; and

(b) subject to any Imperial Act, and to any order or other instrument made under any such Act, to—

(i) British ships which are engaged, or which at any time since the commencement of these Regulations have been engaged, in regular trade from any port or ports in Australia to any overseas port or ports outside the United Kingdom; and

(ii) ships (whether British or foreign) held or controlled under charter by a person resident or carrying on business in Australia,

while those ships are in the territorial waters of Australia.

Powers of Minister to make orders.

4.—(1.) The Minister may, by order, make provision as to any matters relating to the control of shipping which are necessary for securing the public safety and defence of the Commonwealth and the Territories of the Commonwealth, or for the more effectual prosecution of the war, and in particular with respect to—

(a) the trades in which any ship may be engaged and the voyages which may be undertaken by any ship;

(b) the cargo or passengers, or classes of cargo or passengers, which may be carried in any ship;

(c) the hiring of any ship and the terms and conditions on which cargoes or passengers may be carried in any ship;

(d) the order of priority to be accorded to specified goods, or classes of goods, for carriage to or between any port or ports in Australia;

(e) the ports at which cargo is to be loaded or discharged or passengers embarked or disembarked (including directions requiring ships to proceed to specified ports for the purpose of loading or unloading cargo or embarking or disembarking passengers);

(f) the ports at which consignees of cargo are to take delivery thereof; and

(g) the form of bills of lading and passenger tickets.

(2.) Any order made under the provisions of this regulation may contain such incidental and supplementary provisions as appear to the Minister to be necessary or expedient for the purposes of the order.

(3.) Any order under this regulation may be made either so as to apply generally to all ships to which these Regulations apply, or to apply to ships belonging to any particular owner, or to ships of any class or description, or so as to apply to any specified ship, or to ships in the waters, or engaged in the trades or on the voyages, specified in the order, and any such order may direct that all contracts or any class of contracts or any special contract affected by the order shall

be abrogated, or shall remain in force notwithstanding anything in the order, but subject to any exceptions or modifications for which provision is made by the order.

(4.) Any order made under the provisions of this regulation affecting any ship may be served on the master, owner or agent of the ship, who shall thereupon comply with the requirements of the order. Any such order shall be deemed to be sufficiently served if sent by registered post addressed to the master, owner or agent of the ship at his last known place of business or of abode.

(5.) An order made under the provisions of this regulation shall excuse any person for any non-performance of any contractual obligation which by reason thereof could not be performed.

Power to requisition ships and space or accommodation in ships.

5.—(1.) The Minister may, by order, requisition or require to be placed at his disposal any ship, or any cargo space or passenger accommodation in any ship, or any rights under any charter, freight engagement, or similar contract affecting any ship, and may give such directions as appear to him to be necessary or expedient in connexion with any such requisition or requirement. The master of any ship, and the person having the management thereof, shall comply with all directions given under this sub-regulation with respect to that ship.

(2.) There shall be paid in respect of the use of a ship, cargo space or passenger accommodation, or rights under any charter, freight engagement, or similar contract affecting any ship, requisitioned or required to be placed at the disposal of the Minister under this regulation, and for services rendered during the use thereof, and for loss or damage occasioned thereby, such compensation as is agreed upon or, in default of agreement, is determined by an action for compensation against the Commonwealth.

(3.) An action for compensation under this regulation may be instituted in the High Court or in the Supreme Court of a State or Territory of the Commonwealth, and, subject to the following provisions, the action shall be heard and determined in the same manner as ordinary actions:—

(a) The action shall be tried without a jury;

(b)The Court shall not direct a reference to arbitration unless by consent of the parties; and

(c) The costs shall be in the discretion of the Court.

(4.) Where, in respect of any ship: (whether of a kind specified in sub-regulation (2.) of regulation 3 of these Regulations or not), there subsists between a person to whom this sub-regulation applies and any other person a charter-party or other contract under which the first-mentioned person is entitled to possession of the ship, or has the right to have any goods carried in the ship, or to use any space or accommodation in the ship, the Minister may serve on the first-mentioned person a notice stating that, on the date specified in the notice, his rights and liabilities under the contract will be transferred to the Minister. Upon the service of such a notice, the contract shall, with respect to any rights exercisable, or liabilities incurred, on or after the date of service, have effect, subject to the provisions of sub-regulation (6.) of this regulation, as if the Minister were a party to the contract instead of the person on whom the notice was served, and as if for any reference in the contract to that person there were substituted a reference to the Minister.

(5.) The persons to whom the last preceding sub-regulation applies are—

(a) every British subject resident in Australia; and

(b) every body corporate incorporated under the law of the Commonwealth or of any part of Australia.

(6.) The Minister may at any time cancel a notice served under sub-regulation (4.) of this regulation in respect of a contract, and thereupon that sub-regulation shall, unless and until a further notice is served thereunder in respect of that contract, cease to operate in relation to the contract with respect to any rights exercisable, or liabilities incurred, on or after the date on which the cancellation takes effect.

(7.) Notice of any such cancellation shall be given as soon as may be by the Minister in such manner as he thinks fit.

Power to cancel or vary contracts involving carriage of passengers or cargo.

6.—(1.) The Minister may cancel or vary any contract or agreement which involves the carriage of passengers or cargo by any ship requisitioned or required to be placed at his disposal under these Regulations.

(2.) A person shall not bring any action, counterclaim or other proceeding, or take any step in relation to any action, counterclaim or other proceeding brought or made, for the breach or non-observance of any contract or agreement cancelled or varied in pursuance of this regulation or for damages in respect of any such breach or non-observance:

Provided that where a contract or agreement has been varied in pursuance of this regulation, nothing in this regulation shall be deemed to prevent the bringing of any action, counterclaim or other proceeding for any breach or non-performance of the contract or agreement as so varied, or the taking of any step in relation to any such action, counterclaim or proceeding:

Provided further that nothing in this regulation shall affect the rights or obligations of the parties to any contract or agreement which has been cancelled or varied in pursuance of this regulation arising prior to the cancellation or variation.

Owner of ship requisitioned or controlled acting as agent.

7.—(1.) The Minister may require the owner of any ship requisitioned, or required to be placed at the disposal of the Minister, in pursuance of the power contained in sub-regulation (1.) of regulation 5 of these Regulations, to act as agent for that ship, and any owner so appointed shall act as agent accordingly and shall be paid such remuneration as the Minister determines.

(2.) The agent so appointed shall place at the disposal of the Minister the whole of his organization, including plant and equipment and the services of management, officers and staff, and shall furnish to the Minister in respect of each voyage of each vessel operating under his agency a voyage statement in such form as the Minister requires.

Charter of ship to be subject to approval of the Minister.

8.—(1.) In every contract made after the commencement of this regulation for the charter of a ship registered in Australia, there shall be included a provision making the validity of the contract conditional on the approval of the Minister being given thereto.

 

(2.) The approval of the Minister to any such contract may be granted, unconditionally or subject to such conditions as the Minister thinks fit.

(3.) The owner of any ship with respect to which any such contract is made or, if the contract is made by some person as agent of the owner, that person shall, within fourteen days after the date on which the contract is made, deliver a copy thereof to the Minister.

(4.) A person—

(a) being the owner of any ship, whether by himself or by any agent, shall not enter into any such contract which does not comply with the requirements of this regulation;

(b) being a person required by this regulation to deliver to the Minister a copy of any contract, shall not refuse or fail so to do within the time allowed in that behalf; or

(c) shall not refuse or fail to comply with any of the conditions subject to which any approval has been granted by the Minister under this regulation.

(5.) Any contract made in contravention of this regulation shall be void.

(6.) Where any contract for the charter of a ship made before the date of the commencement of this regulation and in force on that date does not contain such a provision as is specified in sub-regulation (1.) of this regulation, the Minister may, if he is of opinion that it is necessary so to do for securing the public safety of the Commonwealth and the defence of the Commonwealth and the Territories of the Commonwealth, by order direct that the contract shall cease to have effect as from a date specified in that behalf in the order Any such order may be made so as to apply generally to all such contracts, or to contracts of any special class or description, or to a particular contract.

(7.) In this regulation, the expression “contract” includes an agreement of any kind, and where the person with whom a contract for the charter of a ship is made is himself a charterer of the ship, that person shall for the purpose of this regulation, and so far as it relates to that contract, be deemed to be the owner of the ship.

(8.) This regulation shall commence on a date to be fixed by the Minister by notice in the Gazette.

Restrictions on ships proceeding to sea without licence from the Minister.

9.—(1.) On and after a date fixed by the Minister by notice in the Gazette, a ship to which this regulation applies shall not proceed to sea from any port in Australia except under and in pursuance of a licence granted—

(a) by a person thereto authorized in writing by the Minister; or

(b) under the Control of Trade by Sea Order, 1939 (Statutory Rules and Orders 1939, No. 1090, made in pursuance of Regulations under the Imperial Act known as the Emergency Powers (Defence) Act, 1939), and authorizing a voyage of the ship from a port or ports in Australia.

(2.) A notice by the Minister under the last preceding sub-regulation may be expressed to apply in relation to all ships to which these Regulations apply or to ships of any specified class or description, or to ships engaged in any specified trade or voyage, and, subject to sub-regulation (5.) of this regulation, this regulation shall thereupon apply accordingly.

(3.) A licence under this regulation shall not be granted except upon application made by or on behalf of the owner of the ship in accordance with a form approved by the Minister.

(4.) A licence under this regulation may be granted—

(a) in respect of any ship or class or description of ships;

(b) for a specified period; and

(c) in respect of any voyage or series of voyages, and either unconditionally or subject to such limitations and conditions as the Minister thinks fit to impose.

(5.) This regulation shall not apply to—

(a) ships belonging to, or wholly employed in the service of, the King’s Navy, or the Navy of the Commonwealth or of any other part of the British dominions, or belonging to the Navy of any foreign government;

(b) ships (other than trading ships) wholly employed in the service of the Commonwealth or of a State;

(c) ships of less than 100 tons gross registered tonnage;

(d) pilot ships; or

(e) fishing vessels.

Coasting trade under order or licence.

10.—(1.) An order under these Regulations, or a condition of a licence under these Regulations, may require a ship to engage in the coasting trade and a ship requisitioned, or required to be placed at the disposal of the Minister under these Regulations may engage in the coasting trade, notwithstanding that the ship is not licensed under section 288 of the Navigation Act to engage in the coasting trade, and it shall not be an offence under the Navigation Act for the ship to engage in the coasting trade accordingly.

(2.) Where a ship which is normally employed in trading wholly within the territorial limits of a single State is, in pursuance of sub-regulation (1.) of this regulation, required to engage in a voyage beyond those limits, the ship shall not (subject to sub-regulation (3.) of this regulation), merely by reason of that engagement, become subject to the provisions of the Navigation Act applicable to ships engaged in trade or commerce with other countries or among the States.

(3.) Where the Minister is of opinion, in respect of any ship to which sub-regulation (2.) of this regulation applies, that it is necessary for the safety of the ship, or for the safety or health of her crew, or desirable in the public interest, that any requirement of a provision of the Navigation Act from which the ship is exempted by virtue of sub-regulation (2.) of this regulation should be complied with, he may, by order, direct that the ship shall comply with that requirement, and the owner and master of the ship shall thereupon comply with that requirement.

 

(4.) An order by the Minister under sub-regulation (3.) of this regulation may provide for compliance by a ship with a specified requirement of a provision of the Navigation Act in a modified form set out in the order and compliance by the ship with that requirement, so modified, shall thereupon be deemed to be a compliance with the specified requirement of that Act.

Restriction on transfer or mortgage of ships.

11.—(1.) A person shall not, except with the consent of the Minister (proof whereof shall lie upon him)—

(a) transfer any ship registered in Australia, or owned, managed or controlled from Australia as head-quarters, or any share in any such ship;

(b) mortgage any such ship or share; or

(c) transfer a mortgage of any such ship or share.

(2.) Any transfer or mortgage effected in breach of this regulation shall be void.

(3.) Any ship, or share in a ship, which is the subject of any transfer or mortgage prohibited by this regulation, shall be subject to forfeiture, and section seventy-six of the Imperial Act known as the Merchant Shipping Act, 1894, shall apply in relation to any ship which has become subject to forfeiture under this regulation in like manner as it applies in relation to ships which have become subject to forfeiture under Part I. of that Act.

(4.) The consent of the Minister under this regulation may be given either generally or in relation to a particular case, and may be given subject to such terms and conditions (if any) as the Minister thinks fit.

(5.) Where, in pursuance of this regulation, the Minister has consented to any transfer, mortgage or other transaction subject to terms or conditions—

(a) a person shall comply with such of those terms and conditions as are applicable to him; and

(b) in the event of any failure to comply with any such term or condition, the transfer, mortgage or other transaction shall be deemed to have been effected without the consent of the Minister and the provisions of this regulation shall be applicable accordingly.

Restriction on transfer of registry of Australian ships.

12. A person shall not make an application for the transfer of the registry of a ship from a port of registry in Australia to a port of registry outside Australia without the consent of the Minister.

Owner or agent of overseas vessel to furnish Information regarding voyage route, &c.

13.—(1.) The Minister, or a person thereto authorized in writing by him, may, by notice in writing, require the owner or agent of any overseas ship to which these Regulations apply—

(a) to inform him of the route proposed to be followed by, and the allocation of cargo in, the ship;

(b) to allocate the space in the ship equitably amongst all regular shippers; and

(c) to furnish to him, in a form approved by him full particulars of the cargo loaded in the ship within forty-eight hours after the departure of the ship.

(2.) The owner or agent of any overseas ship shall not refuse or fail to comply with the terms of any notice served on him in pursuance of sub-regulation (1.) of this regulation, and, in the event of any such

refusal or failure, but without affecting the liability of any person to a penalty in respect of any contravention of this regulation, the Collector of Customs may refuse to grant a Certificate of Clearance to the ship.

(3.) In this regulation, “overseas ship” means a ship which leaves or is about to leave any port in Australia for any destination beyond Australia.

Power to modify rules as to discharge of petroleum from a ship.

14.—(1.) The Minister may, in so far as it appears necessary so to do for the purpose of providing and maintaining an efficient supply of shipping, make orders modifying or suspending the operation of such provisions contained in any law or regulations as prohibit, or in any manner restrict, whether directly or indirectly, the discharge of petroleum or other dangerous goods from a ship by means of the ship’s own steam, and requiring persons in occupation of, or having control of, any premises to allow petroleum or other dangerous goods to be so discharged at or on to those premises, notwithstanding any law, regulation, agreement or other matter whatsoever to the contrary.

(2.) Any order made under the provisions of this regulation may contain provisions requiring the master and members of the crew of a ship and any other persons in any way engaged or concerned in the discharge of petroleum or other dangerous goods from a ship to comply with such rules as are specified in the order.

(3.) Any order made under the provisions of this regulation may contain such consequential and supplemental provisions as appear to the Minister to be necessary for carrying the order into effect.

Method of service of orders.

15.—(1.) Where any order under these Regulations is published in the Gazette, the order shall be deemed to have been sufficiently served upon, or brought to the notice of, all persons concerned or affected thereby.

(2.) Any order under these Regulations may be made so as to apply to any particular person and may be served upon that person by delivering a copy thereof to him by hand or by sending it to him by registered post.

Powers of constables and Commonwealth officers.

16. Any constable or Commonwealth officer may, in relation to any ship, take such steps, and use such force, as appear to him to be reasonably necessary for securing compliance with any order under these Regulations relating to the ship, or, where a contravention of any such order has occurred in the case of the ship, for enabling proceedings in respect of the offence to be effectually taken.

Offences.

17.—(1.) The master of any ship shall not proceed to sea in contravention of these Regulations or of any order thereunder, and the owner or other person having the management of a ship shall not permit the ship to proceed to sea in contravention of these Regulations or of any order thereunder.

(2.) Any ship in respect of which any contravention of these Regulations or of any order thereunder occurs may be detained in like manner as if it were liable to detention under the Navigation Act.

 

(3.) A person shall not aid or abet any other person, whether or not that other person is in Australia, to do any act which, if done in Australia, would be a contravention of or failure to comply with any provision of these Regulations or of an order thereunder.

(4.) Any proceedings which may be taken against a person in respect of any contravention of or failure to comply with these Regulations occurring outside Australia may, notwithstanding anything to the contrary in the Crimes Act 1914-1937, be commenced at any time not later than six months after the date on which he first lands in Australia after the contravention or failure took place.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.