Teekay Shipping (Australia) Pty Ltd and Australian Maritime Safety Authority

[2022] AATA 747

Teekay Shipping (Australia) Pty Ltd and Australian Maritime Safety Authority [2022] AATA 747 (13 April 2022)

Division:General Division 

File Number(s):2020/2528      

Re:Teekay Shipping (Australia) Pty Ltd  

APPLICANT

AndAustralian Maritime Safety Authority

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:13 April 2022

The reviewable decision made 6 February 2020 is set aside and the matter is remitted to the Respondent in accordance with these reasons for decision.

............................[SGD]...................................
Deputy President J W Constance

CATCHWORDS

MARITIME SAFETY – international maritime law – emergency towing vessel – unmanned machinery space system (UMS) – minimum complement of seafarers on vessels – minimum safe manning determination – minimum number of engineers required on board while vessel in operation – set aside and remitted

LEGISLATION

Navigation Act 2012 (Cth)

SECONDARY MATERIALS

International Convention for the Safety of Life at Sea

International Convention on Standards of Training, Certification and Watchkeeping for Seafarers and the Code

International Maritime Organisation Guidelines - MSC. 1/Circ. 1598 - Guidelines on fatigue

International Maritime Organisation Resolution A.1047 (27) Principles of Minimum Safe Manning

REASONS FOR DECISION

Deputy President J W Constance

13 April 2022

INTRODUCTION

Anchor handling tug supply vessels (AHTS) were developed to service the offshore oil and gas industry. Their construction is based around a powerful winch that can be used for towing, or for raising and lowering the anchors of oil rigs and other offshore units.

AHTS have an overall appearance similar to a conventional tugboat, with an accommodation forward, and a low and open aft deck. They are versatile vessels with high horsepower for their displacement and powerful side thrusters to assist with manoeuvring. Their towing ability and manoeuvrability make them ideal for service as emergency response vessels. [1]

[1] Report of Captain Silberberg of 24 March 2021.

1. The Coral Knight (the vessel) is an anchor-handling tug supply vessel which has been modified to enable it to also operate as an emergency response vessel to other vessels in distress at sea.  It is operated by the Applicant under the Australian flag.

2. Under the Navigation Act 2012 (Cth) (the Act), the Respondent Authority is responsible for determining the number of qualified officers who must be on board a particular vessel while it is operating in Australian waters.  The determination for a particular vessel is known as its Minimum Safe Manning Document (MSMD).  The Respondent also has responsibilities to respond to situations which threaten the safety of the marine environment.

3. In accordance with a contract between the Applicant and the Respondent, the vessel operates as an emergency towage vessel patrolling an area of the Northern Great Barrier Reef and the Torres Strait. It also attends to maintaining the Respondent’s aids to navigation for approximately 11 days per year.

4. The following facts are not in dispute:

   On 14 October 2019, the vessel was granted a “UMS notation” on its certificate of class by Lloyds register (ST26 p. 305). A UMS Notation recognises that the vessel has an unmanned machinery space system which allows for remote monitoring of machinery spaces by vessel engineers. A UMS system is typically used when a vessel is engaged in long-haul low variance voyages, and while operational, can trigger an alarm to alert the responsible vessel engineer when a machinery fault or other variance in the operation of the vessel occurs. That is, it permits the engine room to be monitored by an engineer remotely, rather than from the engine room (see the Cousins Report at p. 22).[2]

   [2] Respondent’s Statement of Issues, Facts and Contentions (15 October 2020) at paragraph 8.

5. At present the vessel’s MSMD requires the Applicant to have no less than three marine engineers on board while it is operating.[3]  On 17 October 2019 the Applicant applied to the Respondent to reduce the number required to two, that is to not require an Engineer Watchkeeper.[4]  On 6 February 2020 that application was refused.[5]  I shall refer to this refusal as the reviewable decision.

   [3] Exhibit A2.

   [4] Exhibit R1 at 177.

   [5] Exhibit R2 at 297.

6. The Applicant has applied to the Tribunal to review the reviewable decision.  For the reasons which follow the reviewable decision will be set aside and the matter will be remitted to the Respondent for reconsideration in accordance with these reasons.  I have decided that the Applicant should not be required to have an Engineer Watchkeeper on board while the Coral Knight is operating.

   ISSUE FOR DETERMINATION

7. In this application it is necessary to determine the minimum number of engineers the Coral Knight must carry in accordance with subsection 51(1) of the Navigation Act 2012 (Cth).  Specifically, the dispute between the parties is whether the vessel must carry an engineer watchkeeper in addition to a chief engineer (engineer class 1) and a 1^st engineer (engineer class 2) as required by the present MSMD.

   LEGISLATIVE AND POLICY FRAMEWORK

8. In its Statement of Issues, Facts and Contentions dated 15 October 2020, the Respondent provided to the Tribunal a helpful summary of the relevant legislation and other documents.    The following section reproduces that summary with minor variations to meet the context of these reasons.

   Navigation Act 2012 (Cth)

9. Section 3 sets out the objects of the Act:

   (a) to promote the safety of life at sea; and

   (b) to promote safe navigation; and

   (c) to prevent pollution of the marine environment; and

   (d) to ensure that AMSA has the necessary power to carry out inspection of vessels and enforce national and international standards.

10. Section 51 provides:

    (1)AMSA may determine in writing that a vessel, or a vessel included in a class of vessels, must carry:

    (a)  a master who holds a specified seafarer certificate; and

    (b)  not less than:

    (i)a specified number of officers who hold specified seafarer certificates; and

    (ii)a specified number of seafarers who hold specified seafarer certificates.

    (2)AMSA must have regard to any matters prescribed by the regulations in making a determination under subsection (1).

    (3)A determination under subsection (1) may require a vessel, or a vessel included in a class of vessels, to carry a master who holds a specified seafarer certificate and to carry a different complement of seafarers:

    (a)  for different voyages; or

    (b)  for the carriage of different cargoes; or

    (c)for the performance (whether in port or at sea) of different operations done by, or in relation to, the vessel; or

    (d)  according to whether the vessel is in port or at sea.

    (4)A determination under subsection (1) may specify conditions to which the determination is subject.

    (5)  More than one determination under subsection (1) may apply in relation to a vessel.

    (6) A determination made under subsection (1) is not a legislative instrument.

    Marine Order 21 (safety and emergency arrangements) 2016 made under the Navigation Act 2012

11. Subsection 9(1) of Marine Order 21 (Safety and emergency arrangements) 2016 (Marine Order 21) provides that for the purposes of s 51(2) of the Navigation Act, AMSA must have regard to International Maritime Organisation (IMO) Resolution A.1047(27) Principles of Minimum Safe Manning.

    International Maritime Organisation Resolution A.1047 (27) Principles of Minimum Safe Manning (“A.1047(27)”)

12. Paragraph 2.1 of Annex 3 of A.1047(27) provides that a proposal for the minimum safe manning of a ship should be evaluated by the Administration (in this case the Respondent; see s 5 of Marine Order 21) to ensure that:

    .1 the proposed ship's complement contains the number and grades/capacities of

    personnel to fulfil the tasks, duties and responsibilities required for the safe operation

    of the ship, for its security, for protection of the marine environment and for dealing with emergency situations; and

    .2 the master, officers and other members of the ship's complement are not required

    to work more hours than is safe in relation to the performance of their duties and the

    safety of the ship and that the requirements for work and rest hours, in accordance with applicable national regulations, can be complied with.

13. Paragraph 2.4 of Annex 3 of A.1047(27) provides:

    2.4 The Administration should only approve a proposal for the minimum safe manning of a ship and issue accordingly a minimum safe manning document if it is fully satisfied that the proposed ship's complement is established in accordance with the principles, recommendations and guidelines contained in this resolution, and is adequate in all respects for the safe operation and the security of the ship and for the protection of the marine environment.

14. Annex 2 of A.1047(27) contains guidelines for the determination of minimum safe

    manning. Paragraph 1.2 of Annex 2 sets out, non-exhaustively, a range of relevant factors to be taken into account in establishing the minimum safe manning of a ship,
    including, relevantly:

    (a) the “size and type of ship” (1.1.1);

    (b) the “number, size and type of main propulsion units and auxiliaries” (1.1.2);

    (c) the “level of ship automation” (1.1.3);

    (d) the “waters and operations in which the ship is involved” (1.1.8); and

    (e) “applicable work hour limits and/ or rest requirements” (1.1.11).

15. Paragraph 1.2 of Annex 2 provides that the determination of the minimum safe manning of a ship should be based on performance of the functions at the appropriate level of responsibility as specified in the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) Code. Relevantly, for marine engineering, this comprises the tasks, duties and responsibilities required to operate and monitor the ship’s machinery, maintain a safe engineering watch in accordance with the requirements of the STCW Code and maintain safety of the ship’s engine equipment, systems and services (1.2.4).

16. Paragraph 1.3 of Annex 2 provides that in addition to the factors and functions in paragraphs 1.1 and 1.2, the determination of the minimum safe manning should also take into account, except in ships of limited propulsion power or operating under provisions for unattended machinery spaces, the provision of qualified engineer officers to ensure that it is not necessary for the chief engineer to keep regular watches by adopting a three-watch system (1.3.3). 

17. Paragraph 1.4 of Annex 2 provides that in determining the minimum safe manning of a ship, consideration should also be given to the number of qualified personnel required to meet peak workload situations and conditions, with due regard to the number of hours of shipboard duties and rest periods assigned to seafarers (1.4.1), and the capability of the master and the ship’s complement to coordinate the activities necessary for the safe operation and for the security of the ship and for the protection of the marine environment (1.4.2).

18. With respect to applicable work hour limits and rest requirements (1.1.11) and maintaining a safe engineering watch in accordance with the STCW Code (1.2.4), Regulation VIII/1 of the STCW Convention requires that each Administration shall, “for the purposes of preventing fatigue”:

    .1 establish and enforce rest periods for watchkeeping personnel; and

    .2 require that watch systems are so arranged that the efficiency of all watchkeeping

    personnel is not impaired by fatigue and that duties are so organised that the first watch at the commencement of a voyage and subsequent relieving watches are sufficiently rested and otherwise fit for duty.

19. Section A-VIII/1(2) of the STCW Code requires that all persons who are assigned duty as officer in charge of a watch shall be provided with a rest period of not less than a minimum of 10 hours of rest in any 24-hour period; and 77 hours in any 7 day period. Section 12 of Marine Order 28 (Operations standards and procedures) 2015 (Marine Order 28) gives effect to Regulation VIII/1 of the STCW Convention and A–VIII/1 of the STCW Code as follows:

    12 Minimum hours of rest

    (1) The minimum hours of rest for a seafarer must be:

    (a) 10 hours in any 24 hours; and

    (b) 77 hours in any 7 days.

    (2) The minimum hours of rest may be divided into 2 periods, of which 1 period must

    be at least 6 hours.

    (3) The interval between consecutive periods of rest must not exceed 14 hours.

20. Regulation VIII/2(1) of the STCW Convention requires that Administrations shall direct the attention of companies, masters, chief engineer officers and all watchkeeping personnel to the requirements set out in the STCW Code which shall be observed to ensure that a safe continuous watch or watches appropriate to the prevailing circumstances and conditions are maintained on all seagoing ships at all times. Section 17 of Marine Order 28 gives effect to this requirement as follows:

    17 Observance of STCW watchkeeping standards

    (1) The master, the chief engineer and any other person involved in watchkeeping

    duties on a vessel must comply with each requirement of Section A–VIII/2 of the STCW Code that applies to the person, taking into account the guidance given in Section B– VIII/2 of the STCW Code.

    (2) The master of a vessel must ensure that watchkeeping arrangements for the

    vessel are in accordance with paragraph 2 of Regulation VIII/2 of the STCW

    Convention.

21. Paragraph 10 of section A–VIII/2 of the STCW Code provides that the “chief engineer officer of every ship is bound, in consultation with the master to ensure that watchkeeping arrangements are adequate to maintain a safe engineering watch”. Part 3-2 of section A–VIII/2 details the principles to be observed in keeping an engineering watch. Paragraph 55 of section A–VIII/2 of the STCW Code provides that when determining the composition of the engineering watch, a number of criteria shall be taken into account. Relevantly, these include:

    (a) the type of ship and condition of the machinery (para 55.1);

    (b) the adequate supervision, at all times, of machinery affecting the safe operation

    of the ship (para 55.2);

    (c) any special modes of operation dictated by conditions such as (among other

    things) emergency conditions, damage containment or pollution abatement

    (para 55.3);

    (d) the safety of life, ship, cargo and port, and protection of the environment

    (para 55.5); and

    (e) maintaining the normal operations of the ship (para 55.7).

22. Paragraph 81 of section A-VII/2 requires that the “officer in charge of the engineering watch” is to “ensure that all machinery involved with the manoeuvring of the ship can immediately be placed in the manual mode of operation when notified that the ship is in congested waters”.

23. The IMO has provided guidelines on fatigue, IMO MSC. 1/Circ. 1598 – Guidelines on fatigue – 24 January 2019, which it invites member states to take into consideration when determining minimum safe manning.[6]

    [6] Exhibit R1 at 89.

24. The Authority has issued a Policy entitled MINIMUM SAFE MANNING of REGULATED AUSTRALIAN VESSELS.[7]

    [7] Exhibit R1 at 150.

25. The Policy provides, in part:

    Safe manning is a function of the number of qualified and experienced seafarers necessary for the safety and security of the ship, crew, passengers, cargo and property and for the protection of the marine environment.

    ….

    Ultimately it is the responsibility of the owner/operator to ensure that their vessels are sufficiently and adequately manned at all times thus the onus is on them, in preparing their application for a minimum safe document, to identify and allow for the operations that the vessel will undertake, and any additional crewing that may be required.

    ….

    The disposition and qualifications of the crew should also be based on performance of functions at appropriate levels of responsibility as specified in the STCW Code or, for smaller vessels – NSCV Part D.

    ….. Marine engineering. Operate and monitor ships propulsion and auxiliary machinery, maintain safe engineering watch, manage fuel and ballast operations.

    EXPERT EVIDENCE

    Mr Cousins, Marine Consultant

26. Mr Cousins holds a Master Class 1 certificate having spent 10 years at sea.  From 2008 to 2016 he was the Managing Director of companies providing emergency vessel towing based in the port of Gladstone, Queensland.

27. Mr Cousins provided a report dated 7 October 2020[8] at the request of the Respondent and gave evidence at the hearing.

    [8] Exhibit R2.

28. In his report Mr Cousins responded to questions put to him by the Respondent. Some of the responses are reproduced in part in the following paragraphs 29 – 33 inclusive.

29. During an emergency towage operation, what are the functions and responsibilities of engineers manning an emergency towage vessel?

    Standard practice on an Australian ETV [emergency towage vessel] is for an engineer to be stationed on the bridge during connection/disconnection and/or adjustment of the towline, remotely operating the main towing winch under the immediate direction of the Master, as is the case on most offshore vessels and tugs that tow over the stern.

    Normally it is the Chief Engineer who is on the bridge and he or she stays there until manual operation of the winch is no longer required, typically once the connection is made and the tow is safely under way.

    A second engineer will be stationed in the engine room during connection / disconnection and initial adjustment of the towline to ensure availability of critical plant and equipment, including steering and propulsion systems.

    Once the critical first strike operation is concluded, that is a line has been successfully secured to the casualty and its movement is under control such that the immediate danger has passed and the towline is set for the ocean tow, or the ETV has reverted to passive escort, the engineer could normally leave a UMS engine room.

    ………………..

    An engineer may also be required to leave the ETV to inspect the casualty and undertake repairs or other work necessary to facilitate the emergency towage operation.[9]

    [9] Exhibit R2 at 15-16.

30. In what circumstances might an engineer be required to leave the emergency towage vessel and go aboard a distressed vessel?

    An engineer may be required to leave the ETV when expert technical or mechanical assistance is required on the stricken vessel. This could include, for example;

    •  To assist with the evaluation of the status of the vessel, i.e. why it is in distress

    • To endeavour to repair and/or restart essential equipment, such as engines, generators, winches, etc.

    • To place ancillary ETV equipment onboard the casualty, such as generators or pumps

    • To inspect the watertight integrity and or condition of the vessel to assess suitability for towing, possibly in conjunction with a deck officer

    • To oversee the internal transfer of bunkers (fuel) or ballast to avert imminent environmental damage

    Transfer of any personnel between vessels will only be conducted when in the ETV Master’s opinion it is safe to do so.[10]

    [10] At 23.

31. What, if any impact during an emergency towage operation was the absence of the engineer have in such circumstances to the operations of the emergency towage vessel?

    Assuming the ETV has UMS, with three day working engineers (not keeping set watches), if one is required onboard the casualty, another is available on duty to perform whatever work is required on the ETV, including emergency towage operations, while the third in theory can be off duty, resting as required to facilitate ongoing 24/7 operations.

    More likely however, all three engineers would be working as required throughout an emergency towage operation, particularly during the critical first strike phase.

    Should the same vessel, with UMS, be manned with two engineers and there is a requirement for an engineer to leave the ETV, the remaining engineer will be required to perform all engineering work, with no qualified back up, rest or relief capacity until their colleague is able to return to the vessel. In this case, it would not be physically possible to have an engineer stationed in the engine room and one on the bridge to drive the winch during emergency towage operations.

    ………………..

    Alternatively, it is quite possible that two engineers may be required on the ETV at a critical stage in the emergency towage operation, to operate the winch and man the engine room, meeting the ETV master could not responsibly release one to board the casualty.

    An inability to release an engineer to board the casualty is a concern in that it could result in a delay or otherwise compromise the emergency response is unknown, potentially catastrophic consequences. [Emphasis in original].

    That said, whether there are two or three engineers on board the ETV, in my view, the absence of an engineer is unlikely to be the trigger for suspension of hours of work and rest (HOWR) of its own accord, which I believe will more likely affect the entire crew, depending on the scale and duration of the emergency response operation. [11]

    [11] At 23-24.

1. What, if any are the risks associated with suspending hours of work and rest for engineers, including when engaged in emergency tasking?

   The most obvious risk stemming from the suspension of hours of work and rest on board any vessel, including ETV’s, is fatigue. The longer the emergency towage operation takes before any quality recovery time is possible and the greater the workload, the worse the weather, the higher the risk of crew members becoming fatigued, including engineers.

   ………………..

   …… the higher risk aspects of an emergency towage tasking task can only be exacerbated by high workload and long working hours. [12] [Emphasis in original].

   [12] At 28.

2. In your opinion, based on your review of the materials provided and the information outlined in relation to the vessel, can the Coral Knight operate safely and within the mandated requirements for rest with two engineers during emergency towage operations?

   Based on my experience and knowledge of the vessel and its operation, there is little, if any, doubt Coral Knight could safely operate within the mandated requirements for rest and by two engineers with a functioning UMS system while in port, at anchor on standby, patrolling or performing ancillary aids to navigation maintenance work. The same is likely to apply to search and rescue and oil spill response deployment, should it be required.

   However, the nature of emergency towage operations demanding a constant state of readiness to respond and operate 24/7 for as long as assistance is required, as stated in my instructions can present a very different risk profile.

   The capacity of Coral Knight to safely operate during emergency towage operations will vary depending on the nature of the emergency and prevailing conditions at the time.

   ………………..

   Operating with only two engineers, one on the bridge and one in the engine room, there is unlikely to be any issues with straightforward operations, for example daylight connection with a broken-down vessel in sheltered waters that only takes a few hours.

   However, at the other end of the scale, peak workloads for extended periods during the critical first strike phase of an emergency towage operation, including connecting the tow where all hands are required, may necessitate breaking HOWR, potentially exposing individual crewmembers to an increased risk of fatigue.

   ………………..

   To manage fatigue and avoid the need to suspend HOWR, Teekay have identified putting additional hands on board as a risk mitigation measure in case of a difficult tasking in their Application for a Minimum Safe Manning Document …… and supporting Risk Assessments …...

   This is standard practice for ETV Level 2 harbour tugs that put additional hands onboard at short notice when tasked for emergency towage support. This would appear to be an excellent solution for Coral Knight, however Teekay also note that it may not always be “feasible”, assumedly for reason of short notice, location and/or weather.

   ………………..

   …… three engineers would be preferable in the event of a protracted and/or complex emergency situation, where HOWR are likely to be suspended for all crew members. This is particularly the case in circumstances where an engineer is required to leave the ETV to board the casualty.[13]

   [13] At 31-32.

3. In the Summary of his report, Mr Cousins stated, in part:

   Having reviewed the materials provided, this report concludes that knowing the risks of fatigue is likely to be enhanced by suspension of HOWR during certain emergency towage operations, [the Respondent] could in my opinion be in breach of various international obligations and standards, the Navigation Act, associated Marine Orders and their Minimum Safe Manning Policy if they were to approve a manning reduction that would in effect compound the risk of crew members becoming fatigued.

   Further, operating Coral Knight with two engineers may result in a situation whereby an engineer is not available to board a casualty, raising the possibility of compromising the emergency response operation and unknown, potentially catastrophic, consequences. This would clearly be at odds with the primary function of Coral Knight as a first response ETV in a high-risk area.[14]

   [14] At 36.

4. When he gave evidence Mr Cousins said that:

   ·major maritime incidents are rare in Australian waters, but if such an event occurs it is not unusual for an engineer to be transferred to the stricken vessel;

   ·in his opinion, the Coral Knight can operate safely with two engineers in all but exceptional circumstances;

   ·the Master of a vessel is “well within his rights” to suspend requirements for hours of work in unforeseen circumstances.

   Evidence of Captain Silberberg, Master Mariner

5. Captain Silberberg is a Master Mariner with over 25 years of sea-going experience which includes 15 years in command. He has sailed as a Master of anchor-handling tag supply vessels of similar construction and design to Coral Knight and has experience in a wide variety of towing operations.

6. Captain Silberberg provided a report dated 24 March 2021[15] at the request of the Solicitors for the Applicant and gave evidence at the hearing.  His report was written in response to the opinions expressed by Mr Cousins in his report referred to above.

   [15] Exhibit A1.

7. On the issue of the mandated requirements for the resting of crew, Captain Silberberg stated, in part:

   It is my opinion that with only two engineers on board, Coral Knight can conduct “First Strike” emergency tow operations without breaching the mandated requirements for rest. In my experience, it is unlikely that circumstances will extend the duration of the tow connection operation to such an extent that the engineers would breach the rest requirements. For this reason, while I agree with Mr Cousins’ conclusion that the vessel may [Captain Silberberg’s emphasis] have a safety issue operating within the mandated requirements for rest, I find it unlikely to occur.

   It is my opinion that with only two engineers on board Coral Knight, one engineer can board a casualty without breaching the mandated requirements for rest. Avoiding a breach is a matter of managing the available hours of work and rest of the personnel involved. For this reason, while I agree with Mr Cousins’s conclusion that the vessel may [Captain Silberberg’s emphasis] have a safety issue operating within the mandated requirements for rest, I find that with appropriate management, any breach would be avoidable.[16]

   [16] Exhibit A1 at 17-18.

8. In relation to the manning requirements, Captain Silberberg said:

   The duration of watchkeeping duties is significantly reduced compared to non-UMS vessels, and, in my experience, often only requires approximately two to four hours of work per day, freeing the duty engineer to conduct non-watchkeeping duties. ……

   A UMS vessel with two engineers has an extra 49 work hours available per week for non-watchkeeping duties when compared to a non-UMS vessel with three engineers.[17]

   ………………..

   It is my opinion that UMS vessels will generally have increased availability of adequately rested engineers when compared to non-UMS vessels.  This will assist in their availability to perform emergency towage operations.[18]

   [17] At 20.

   [18] At 25.

   THE RESPONDENT’S CONTENTIONS

9. It is argued on behalf of the Respondent that I should affirm the reviewable decision as a UMS “is not, and simply cannot be, a substitute for all the engineering functions performed by an engineer on the Coral Knight.” [19]

   [19] Respondent’s Closing Submissions at paragraph 3.

10. Counsel referred me to the relevant international instruments which, it is contended, focus on maritime safety and safe operations and that “a necessary component of maritime safety and safe operations is fatigue of seafarers.”[20]The instruments impose obligations on the regulatory body in each of the contracting States. In Australia, this body is the Respondent.

    [20] At paragraph 9.

11. Relevantly to marine engineering, the STCW Code “comprises the tasks, duties and responsibilities required to operate and monitor the ships machinery, maintain a safe engineering watch in accordance with the requirements of the STCW Code and maintain safety of the ship’s engine equipment, systems and services.”[21]

    [21] At paragraph 23.

12. Regulation VIII/1 of the STCW Convention requires the Respondent to take certain actions to prevent fatigue in watchkeeping personnel.

13. In reaching a decision on the issue in dispute, consideration must be given to:

    (a) the ‘safe operation of the vessel’, which involve considerations relating to the function or purpose of the vessel; and

    (b) the management of risks arising from reducing the number of engineers from three to two, including [the Applicant’s] proposal for managing rest hours of engineers.[22]

    [22] At paragraph 55.

    Safe operation of the vessel

14. The vessel provides emergency towage vessel capability to the Respondent in the Great Barrier Reef and Torres Strait.  This capability may be tasked at any time and will require an “all hands on deck” operation.  Such emergency operations vary in their duration and nature.

15. How the vessel will operate when engaged in its function of an emergency towage vessel with only two engineers on board is a relevant consideration in determining the minimum manning requirement.

    Managing risks arising from reducing the number of engineers from three to two

16. The Applicant’s proposal to manage this risk by suspending hours of work and rest and providing compensatory rest is relevant to this consideration.

17. The risk assessments produced by the Applicant show that the risk of reducing the number of engineers cannot be overcome, particularly the increased risk of fatigue to the remaining two engineers.

    REASONING

18. The introductory paragraphs of Resolution A.1047(27) (PRINCIPLES OF MINIMUM SAFE MANNING) include:

    NOTING that safe manning is a function of the number of qualified and experienced seafarers necessary for the safety and security of the ship, crew, passengers, cargo and property and for the protection of the marine environment….[23]

    [23] Exhibit R1 at 57.

    A.1047(27) Annex 3 paragraph 2.1

19. In this matter, as set out in A.1047(27) Annex 3 paragraph 2.1, I need to evaluate the manning of the Coral Knight to ensure there are the appropriate number of appropriately qualified engineers for “the safe operation of the ship, for its security, for protection of the marine environment and for dealing with emergency situations.”   I also need to ensure that the members of the ship’s complement “are not required to work more hours than is safe in relation to the performance of their duties and the safety of the ship and that the requirements for work and rest hours, in accordance with applicable national regulations, can be complied with”.[24]

    [24] See paragraph 12 of these reasons.

20. Although the words “to ensure” are used, it cannot not mean that these requirements must be guaranteed to be able to be met at all times.  It would not be possible to have the necessary personnel on board to do this.  In a marine environment there is always the possibility of an emergency in which mandated rest hours cannot be observed.  Both Captain Silberberg and Mr Cousins accepted this in that at times there is a need for “all hands on deck.”  There will also be situations in which a ship’s safe operations and security and the protection of the environment will be compromised, no matter how many appropriately qualified personnel are on board.  This interpretation is consistent with the Respondent having a discretion not to impose any form of MSMD.

    The vessel’s dual functions

21. The Coral Knight performs dual functions under the contract with the Respondent – maintenance services and emergency towing services. The latter may require an engineer to transfer from the Coral Knight to the vessel to be towed.

22. Based on of the evidence of both experts I am satisfied that with the UMS system operating, the Coral Knight can meet all requirements when performing its maintenance functions with the 1^st and 2^nd Engineers on board.  The Applicant proposes that it is not required to continue to have the Watchkeeper Engineer as part of the personnel.

23. I agree with the Applicant that this matter is not about whether the UMS system can replace a human engineer.  Clearly it cannot and the Applicant has not argued otherwise.

    The vessel’s operation as an emergency towage vessel

24. The Respondent has focussed on the personnel required should one of the engineers be required to leave the Coral Knight to assist a vessel in difficulty and the possibility of circumstances arising during which personnel on board the Coral Knight may suffer fatigue.  It is argued that either or both scenarios may arise during towage operations.

25. When asked as to the impact on an ETV of not having a third engineer on board during a towing operation, Mr Cousins emphasised that it could compromise an emergency response if an engineer could not be released to board the stricken vessel.  He was concerned also that the risks of an operation would be exacerbated by high workload and long working hours.  In his response, Captain Silberberg expressed his opinion that generally, vessels with UMS will have increased availability of adequately rested engineers compared with non-UMS vessels.  This will assist in their availability in emergency situations.

26. Both Mr Cousins and Captain Silberberg impressed me as experienced experts and honest witnesses.  To the extent that there are differences of opinion between them, I prefer the evidence of Captain Silberberg by reason of his greater practical experience as a Master of vessels similar to the Coral Knight.

27. In reaching this conclusion I have taken into account that Mr Cousins is of the opinion that “whether there are two or three engineers on board the ETV, …… the absence of an engineer is unlikely to be the trigger for suspension of hours of work and rest (HOWR) of its own accord, which I believe will more likely affect the entire crew, depending on the scale and duration of the emergency response operation.” [25]  I have also had regard to his view that the vessel would be able to safely operate with two engineers in all tasks (including straightforward towing) except emergency towing “24/7 for as long as assistance is required” [26]  and that major maritime events requiring an engineer to be transferred to a stricken vessel are rare in Australian waters.

    [25] See paragraph 31 above.

    [26] See paragraph 33 above.

28. I also take into account the evidence of Mr Cousins that some additional crew members could be made available to the Coral Knight in some circumstances.[27]

    [27] See paragraph 33 of these reasons.

29. As the Agency has pointed out, Annexure 2 of A. 1047(27) provides a non-exhaustive list of factors to be taken into account.[28]  The Coral Knight is a small vessel with high propulsion.  The installation of a UMS system has increased its level of automation.  It operates in Australian waters and during the majority of its operations the applicable work hour limits and/or rest requirements can be met. Ultimately, it is for the Master to manage the risk of fatigue in his crew in the circumstances which exist at the time.

    [28] See paragraph 14 above.

30. There remains with the decision-maker, be it the Respondent or this Tribunal, a discretion in determining the minimum safe manning requirements for a vessel.  This requires a consideration of the risks involved with different manning levels.  In maritime operations there will always be some risks which could be lessened by having additional personnel on board.   However, whether there are two or three engineers on board the Coral Knight, the risk that it may need to operate with less than the optimum number of personnel cannot be eliminated.

31. For these reasons I conclude that the MSMD should be altered to delete the requirement that the Coral Knight have an Engineer Watchkeeper on board while it is operating.  

    CONCLUSION

32. The reviewable decision made 6 February 2020 will be set aside and the matter will be remitted to the Respondent for reconsideration in accordance with these reasons for decision.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

..............................[SGD]....................................

Associate

Dated:   13 April 2022

Date(s) of hearing:	22 July 2021
Date final submissions received:	9 August 2021
Counsel for the Applicant:	Ms C Gleeson
Solicitors for the Applicant:	Mr M Fisher, Thynne & Macartney Lawyers
Counsel for the Respondent:	Mr T Glover
Solicitors for the Respondent:	Ms H Drew, Australian  Maritime Safety Authority