Legislative Amendments
Comment
A number of amendments to the Marine Pollution Act were recently passed by the New South Wales Parliament.
Crew members liable
The Marine Pollution Act previously imposed strict liability for pollution upon the owners of the vessel and the master. The new amendments introduce provisions imposing strict liability on officers and crew members. Accordingly, multiple parties may now be prosecuted for the same incident.
Defence of damage excluded
Certain defences are now unavailable, including damage arising as a result of:
- failure to maintain the ship or its equipment;
- wear and tear; or
- defects that develop during the normal operation of a ship or its equipment.
Insurance requirements
All vessels are required to have adequate insurance to cover oil spills. If evidence of insurance is not provided on demand the master and owner of the ship are automatically guilty of an offence, and fines of up to A$55,000 (US$27,500) for the master and A$110,000 (US$55,000) for the owner may be imposed.
Service of criminal proceedings
Previously, the ship's agent was usually required to give an undertaking to accept service of proceedings on behalf of the master and owners. This undertaking is no longer needed and proceedings may now be served directly upon a vessel's agent for prosecutions against a vessel, the master and its crew.
Payment of fines
The act allows fines to be paid directly to the prosecuting port corporations. However, this may result in conflicts of interest with the prosecuting port corporation directly benefiting from any fine imposed. In the past, port corporations have sought fines reflective of the amount of the spill, although the amount of the spill is often in contention at trial. Therefore, evidence of the extent of the spill should be obtained as soon as possible after an incident.
With strict criminal liability now imposed upon all owners, masters, officers and crew of vessels calling at ports in New South Wales, vigilance is paramount.
Multiple prosecutions are possible, leading not only to multiple fines, but also to overall fines at very high levels. Security to avoid detention of vessels can be expected to rise in line with the increase in fines. Investigating and prosecuting authorities have extensive powers in relation to potential defendants.
The government has introduced the doctrine of public trust of the environment (as in the United States). Therefore, if environmental damage is caused, prosecuting port corporations will seek high fines, and courts will impose them.
Thus, prompt and coordinated action is needed following an oil spill.
For further information on this topic please contact Simon Liddy or Timothy Elsworth or Drew James at Ebsworth & Ebsworth by telephone (+61 2 9234 2366) or by fax (+61 2 9235 3606) or by email ([email protected] or [email protected] or [email protected]).