Understanding HSEQ and Compliance in the Australian Maritime Industry
COURSE OVERVIEW
I sincerely believe one of the most profound messages I can offer my clients and colleagues is the importance of the series of online eLearning lessons on HSEQ and the need of being compliant that we have recently developed.
Course Scope
The outcomes of this training are to alert mariners and shore-side management to the compliance and safety risks associated with operating vessels in Australia. The training includes describing the different maritime and work health and safety compliance regimes under which vessels may operate. The target audience for the training is masters, engineers, crew and marine managers of vessels operating in the Australian maritime industry; Offshore Oil & Gas, harbour tugs, terminal tugs, pilot launches, crew transfer vessels, lines boats, tourism and fishing industry.
As a result of completing this training the student will have a greater understanding of the Health, Safety, Environment and Quality (HSEQ) risks and requirements when operating vessels on the Australian Coast.
The training includes how international conventions are implemented into countries generally and specifically how the conventions are applied in Australia to the port environment vessels.
This training will not give the student the specific HSEQ or compliance answers for their particular vessel or company. However, after completing the course, the student will receive a certificate of completion, as evidence of HSEQ / compliance training, and will have the knowledge and “tools” of how to undertake the required research to determine their particular vessel(s) requirements and how to update these requirements and ultimately reduce the risk to themselves and the company.
Course Overview
For quite some time I have been concerned about the lack of knowledge regarding Occupational Health, Safety, Environment & Quality Assurance (HSEQ) in the maritime industry, particularly the towage and small craft sectors, by coxswains, masters, superintendents and operational managers. Traditionally many of our personnel are recruited from the fishing industry, white-boat industry or off the deck. Hence their formal training and subsequent understanding of the laws, regulations and rules pertaining to HSEQ and the need for not only compliance but as importantly proof of compliance in a lot of cases is not what it needs to be. Consequently individuals and companies are potentially left confused, ignorant and indeed legally exposed in a world that is more and more being driven by regulation, legislation and litigation.
Furthermore, not everyone has a clear understanding of what the IMO, Classification Society and Flag State roles are and how they interface along with the myriad of various Acts (Marine Act, OH&S Act, Ports & Harbours Act etc.), conventions (SOLAS, MARPOL, STCW, ISPS, MLC etc.) and industry governing organisations (ISO, BIMCO, OCIMF etc.). The operation of small craft (tugs, lines boats, pilot launches, crew transfer vessels, utility vessels or ferries) within a port, offshore and sometimes mine site environment means that the associated risks, including compliance, are beyond the knowledge-base of most masters, coxswains, chiefs, or marine managers in this sector of the Australian Maritime Industry.
In an effort to address this issue SeaWays has teamed up with Marine Certification Solutions (Capt. Jeff Hinnrichsen), who is the most knowledgeable person I know on this topic, to develop a series of eLearning lessons covering all aspects of what a master, superintendent and marine manager should know to be compliant and to manage their risks within the maritime industry.
As with most things in life there is a Ying & Yang element. The ‘system‘ can be your friend or your enemy. If you fully commit and work to it you will be professional, compliant and protected by the ‘system‘. If you don’t and there is a major incident both you and your company will possibly enter a legal-space that frankly, win or lose, it’s a place you don’t want to be!(See the attached article Can your SMS make you a criminal? by a leading Australian Maritime Lawyer)
The whole world and particularly the marine industry is evolving more and more towards regulation and litigation that sees court cases running for years on which lawyers are growing fat. Whereby, government bodies and large companies can invest in the best legal advice and representation that the average mariner or small marine business simply cannot compete with………regardless if they are in the right or wrong.
Needless to say; it’s best that you do not risk exposing yourself to this litigious nightmare. Hence why Jeff and I have instigated these online eLearning lessons on HSEQ & Compliance. I implore you to not only read but also take the time to study the content of these lessons, as they are so very important to ensure you and your company’s long-term security.
We have structured the 24 lessons to offer best value to our clients, whilst endeavouring to make a complex bland topic interesting, easy to understand and pertinent to the student. The lessons are undertaken online via a series of eLearning modules in the student’s own time. (See attached course content Index)
There is a multi-choice Q&A assessment process that ensures the lessons are actually undertaken and the knowledge has been gained. On completion of the assessment a Certificate of Achievement for the individual is produced so that there is proof of learning for them and their company.
The eLearning is pertinent to the Australian maritime industry, particularly the small-craft and towage sector requirements. If a company requires us to, we can also further develop the lesson modules to have company specific elements added; for example, understanding Singapore Flag requirements for vessels on the Australian coast.
The bottom line; in a worst case scenario a master or manager can find themselves in court defending charges, separate to those leveled at their employer, that have significant penalties, including fines in the hundreds of thousands of dollars and/or imprisonment.
I ask you, “how can you ensure compliance if you do not know what you have to be compliant to“?
For more information visit our eLearning website at https://schoolways.thinkific.com/
Capt. Arie Nygh FNI FITA
Managing Director
Patron: International Tugmaster’s Association (ITA)
Ambassador: Confidential Reporting Programme – Maritime (CHIRP)
Email: arienygh@seaways.net.au
Web: SeaWays Consultants Pty Ltd
Cost for entire set of 24 HSEQ eLearning lesson modules:
- 1 to 10 people: $500 per person*
- Discounts for Groups over 10 are available on request.
- For holders of SeaWays Certificate of Achievement = $400 per person* (20% discount)
* All cost are + GST if applicable.
Contents – Subjects covered in eLearning Lessons
Introduction ……………………………………………………………………………………………………………………….. 5
What rules apply to tugs? …………………………………………………………………………………………………….. 6
Sovereignty / State / Administration ……………………………………………………………………………………… 7
Flag State Implementation …………………………………………………………………………………………………… 8
Laws, Orders, Notices, Guidance …………………………………………………………………………………………… 8
Oil Companies International Marine Forum (OCIMF) ……………………………………………………………….. 10
International Organisation of Standardisation (ISO) ………………………………………………………………… 11
International Conventions ……………………………………………………………………………………………………. 12
Safety of Life at Sea (SOLAS) …………………………………………………………………………………………………. 13
Chapters and Codes …………………………………………………………………………………………………………….. 13
SOLAS on Australian Tugs …………………………………………………………………………………………………….. 14
Prevention of Pollution from Ships (MARPOL) ………………………………………………………………………… 16
MARPOL Annexes ……………………………………………………………………………………………………………….. 16
MARPOL requirements for Australian DCV Tugs ……………………………………………………………………… 17
Standards of Training, Certification and Watchkeeping (STCW) ………………………………………………… 19
STCW Convention ……………………………………………………………………………………………………………….. 19
STCW Code ………………………………………………………………………………………………………………………… 21
Application of STCW to Tugs ………………………………………………………………………………………………… 22
Certification and Crewing of Tugs in Australia ………………………………………………………………………… 23
Regulations for Preventing Collisions at Sea (ColRegs) …………………………………………………………….. 27
Rules ………………………………………………………………………………………………………………………………… 27
ILO Maritime Labour Convention (MLC) ………………………………………………………………………………… 30
Articles, Regulations, Code (Standards and Guidelines) …………………………………………………………… 31
International Ship and Port Security Code (ISPS) …………………………………………………………………….. 34
International Convention on Salvage …………………………………………………………………………………….. 35
What constitutes a Salvage Operation? …………………………………………………………………………………. 35
Characteristics of a Salvor (Volunteer) …………………………………………………………………………………… 36
Towage Services and Salvage ……………………………………………………………………………………………….. 37
Lloyd’s Open Form ……………………………………………………………………………………………………………… 38
High Seas in Cases of Oil Pollution Casualties (Intervention) Convention……………………………………. 39
Harbour Masters Duties ………………………………………………………………………………………………………. 40
Other IMO Conventions ………………………………………………………………………………………………………. 41
Maritime Safety and Security and ship/port interface …………………………………………………………….. 41
Prevention of Marine Pollution ……………………………………………………………………………………………. 41
Liability and Compensation …………………………………………………………………………………………………. 41
Workplace Health and Safety (WHS) …………………………………………………………………………………….. 42
Occupational Safety and Health (Maritime Industry) (OSH-MI) ……………………………………………….. 44
Codes of Practice ……………………………………………………………………………………………………………….. 46
Other Legal Consequences…………………………………………………………………………………………………… 47
Supervisors’ Duties and Obligation – Management or Control of Workplaces…………………………….. 48
Object ………………………………………………………………………………………………………………………………. 48
Duties ………………………………………………………………………………………………………………………………. 48
Offences …………………………………………………………………………………………………………………………… 49
Defences ………………………………………………………………………………………………………………………….. 50
Mental Health …………………………………………………………………………………………………………………… 52
Safety Management Systems (SMS) …………………………………………………………………………………….. 53
International Safety Management Code (ISM) ………………………………………………………………………. 54
ISM Certification ……………………………………………………………………………………………………………….. 54
ISM Verification ………………………………………………………………………………………………………………… 55
Master’s responsibility and authority …………………………………………………………………………………… 56
ISM Application in Australia ………………………………………………………………………………………………… 56
ISM / ISO on Tugs ………………………………………………………………………………………………………………. 56
ISM application to Vessels <500GT ………………………………………………………………………………………. 57
Domestic Commercial Vessels (DCV) ……………………………………………………………………………………. 57
Masters Responsibility and Authority Statement …………………………………………………………………… 58
Regulated Australian Vessels (RAV) ……………………………………………………………………………………… 58
Designated Person Ashore (DPA) …………………………………………………………………………………………. 59
Can your SMS make you a criminal? …………………………………………………………………………………….. 61
Classification Societies ……………………………………………………………………………………………………….. 72
Class, ISM and DCVs in Australia ………………………………………………………………………………………….. 72
ISO Certification ………………………………………………………………………………………………………………… 73
Towage Contracts ……………………………………………………………………………………………………………… 74
United Kingdom Standard Towage Conditions ………………………………………………………………………. 74
The Baltic and International Maritime Council (BIMCO) ………………………………………………………….. 75
Glossary ……………………………………………………………………………………………………………………………. 76
References………………………………………………………………………………………………………………………… 79
Legislation Cited ………………………………………………………………………………………………………………… 80
Acts ………………………………………………………………………………………………………………………………….. 80
Regulations (Subordinate Legislation) …………………………………………………………………………………… 80
Codes of Practice ……………………………………………………………………………………………………………….. 81
Conventions ………………………………………………………………………………………………………………………. 81
IMO / ILO Resolutions …………………………………………………………………………………………………………. 81
Legal Case Law Referenced ………………………………………………………………………………………………….. 82
Websites Referenced ………………………………………………………………………………………………………….. 82
Incident Investigation Websites ……………………………………………………………………………………………. 82
TESTIMONIAL
Can your SMS make you a criminal?
Published on LinkedIn January 3, 2018
By John Kavanagh
Legal Practice Director at Pacific Maritime Lawyers
Safety Management Systems (SMS) for commercial vessels are meant to keep you out of jail, right? So how can an SMS actually create criminal responsibility? In recent times, we have helped several clients who found themselves in exactly in that situation.
An important change has occurred in the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) that effectively turns a vessel’s SMS into a mandatory code. Non-compliance with the SMS is now potentially a criminal offence. So an SMS is much more than a simple set of procedures intended to ensure the safety of a vessel – an SMS is now an extension of the National Law that must be followed. A commercial master departs from a vessel’s SMS at their peril.
How did we get into this situation? The starting point is the ISM Code for shipping.
Safety Management Systems (SMS) for ships are a requirement of the International Ship Management Code (ISM Code). The ISM Code was a quantum shift in the management of safety for ships, as it shifted the focus for the responsibility for what happens on board a ship from the Master to the company that owns and operates the ship. Almost every line of the ISM Code begins with the “Company Should” or the “Company is responsible”. The ISM Code introduced the position of the Designated Person Ashore (DPA), being the person to whom the Master, and indeed any crewmember, can raise a concern about non-compliance with procedures or safety issues.
The last piece of the puzzle was to empower the Master in relation to safety matters. The ISM code requires that the SMS operating on board the ship contains a clear statement emphasizing the master’s authority. The company should establish in the SMS that the master has the overriding authority and the responsibility to make decisions with respect to safety and pollution prevention and to request the company’s assistance as may be necessary.
The overall intention of the ISM Code was to ensure safety by preventing ship owning companies from absolving themselves from responsibility for what happens on board, whilst also empowering the master to obtain the help that he or she needed from the owners.
The ISM Code is implemented for Regulated Australian Vessels (RAVs) under the Navigation Act 2012 and Marine Order 58 (Safe Management of Vessels) 2015 and is administered by the Australian Maritime Safety Authority. RAVs are generally large commercial shipping, such as the north-west shelf LNG tankers, and the ISM code is generally well implemented and is achieving its objectives, insofar as RAVs are concerned.
But that is not the end of the story. The Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law) also incorporates the idea of an SMS for domestic commercial vessels (DCVs) through Part E Operations of the National Standard for Commercial Vessels (NSCV). Indeed, compliance with part A of the ISM Code is deemed to be compliance with Part E of the NSCV: section 3.3.
Part E of the NSCV operates by selecting those elements of safety management (described as “operation requirements”) that are required for a particular DCV depending upon its risk rating from high, medium or low. High-risk vessels are generally passenger vessels and vessels operating offshore, medium risk vessels are generally near coastal vessels, and low-risk vessels are vessels operating in smooth or partially smooth waters with no passengers. The lower the risk rating, then the fewer “operational requirements” are required for that vessel’s SMS.
Importantly, Part E of the NSCV preserves the idea of a Master’s statement, but it is subtly different to the ISM Code. Instead of emphasising the master’s authority as intended by the ISM Code, the NSCV statement emphasises the master’s responsibility, as follows:
A statement about the master’s responsibility and authority that includes the following matters must be prepared and kept so that it is easily accessible:
(a) the master’s responsibility for verifying that the operation requirements are being complied with;
(b) that the master may request the owner’s assistance and make decisions for the operation, navigation and safety of the vessel and pollution prevention to ensure compliance with the operation requirements.
(Section 3.1, Schedule 2, Section 5, Part E NSCV)
So what? Well, the shift of emphasis from master’s authority to master’s responsibility becomes critical when interpreting section 16 of the National Law.
Relevantly,
1) The master of a domestic commercial vessel must, so far as reasonably practicable, ensure the safety of:
(a) the vessel; and
(b) marine safety equipment that relates to the vessel; and
(c) the operation of the vessel.
(2) Without limiting subsection (1), the master of a domestic commercial vessel contravenes that subsection if the master does not, so far as reasonably practicable, implement and comply with the safety management system for the vessel and the operations of the vessel.
That might seem unremarkable, especially from the regulators point of view. Of course a master should implement the SMS. The SMS is intended to keep the vessel safe, and not following the SMS is, therefore, unsafe. In our view, that presumption is wrong – there may be very good reasons why a master, in a particular situation on the water, may depart from an SMS that was written by owners (who may not be mariners) in a comfortable office some months or even years before.
The change in emphasis in the National Law has fundamentally changed the balance of power as between owner and master. Instead of the Master having overriding authority on board, the master’s authority has been reduced to implementing and complying with the owner’s SMS. That makes the Master subordinate to the owner’s instructions as to how to operate the vessel, and in fact potentially creates criminal responsibility for the brave Master who dares to depart from the SMS.
A couple of small examples may illustrate the point:
- We have seen a multi-national company implement an SMS on a DCV that was not tailored to the Vessel, did not mention the port in which the vessel operated, or apply to the operations the Vessel was conducting. In short, it was a rough ‘cut and paste’ from an international vessel SMS under the ISM Code that was then applied to a National Law regulated DCV on the ‘if it’s good enough for big ships, then it is good enough for a DCV’ principle. When the SMS did not cover a particular situation, our client exercised their professional judgement to deal with the situation. A marine incident occurred, and the master was investigated for non-compliance with the SMS, even though the cause of the incident was unrelated to the exercise of the Master’s judgment.
- We have seen an SMS that specified a number of different emergency procedures that overlapped in some respects, and were inconsistent in others. When an emergency occurred, our client exercised his professional judgment, drew upon his training and experience, and acted generally in accordance with the SMS procedures. Our client knowingly departed from the SMS in one respect so that he could more effectively respond to the emergency situation. The Master successfully raised the alarm and saved all his crew and passengers. Nevertheless, he was charged with failing to follow the SMS.
We are deeply concerned that the subtle shift in emphasis in the National Law has had the effect of criminalising the exercise of professional judgment by a master, when that judgment is inconsistent with an SMS. In our view, that is a problem, particularly when SMS documents are often generic, usually untested against a vessel’s actual operations, and sometimes written by non-mariners. The effect of the National Law is to compel a commercial master to follow the SMS prepared by owners, even where the SMS does not cover a situation, is irrelevant, does not make sense or is contradictory. This outcome is contrary to the intentions of the ISM Code, and means that the Master has effectively lost their discretion to exercise their professional judgment to respond to a new or evolving situation.
Our recommendation to all commercial masters and owners is to review your SMS procedures and read them as if they are mandatory law that must be followed, which is exactly what they are pursuant to section 16 of the National Law. We think you may be surprised by the results.
If you consider the SMS contains faults, then you MUST agitate to have the SMS amended BEFORE an incident arises – because it is too late to say to an investigator that the SMS should have been changed after the event.
Marine Certification Solutions Pty Ltd (MCS) services:
- MCS specialises in assisting masters, mates and engineers with their Certificates of Competency including renewal, revalidation and compliance.
- MCS assists owners/operators with their SMS compliance matters – writing, reviewing or auditing.
- On request MCS can organise onsite HSEQ workshops for workgroups.
- MCS can audit Oil Pollution Emergency Response Equipment and conduct onsite training Oil Spill Responder
Phone: 0466 796 033 Email: Jeff.Hinnrichsen@iinet.net.au