ernest-van-buuren - norton rose - vts in australia, perpectives.pdf

7/30/2019 ernest-van-buuren - norton rose - vts in australia, perpectives.pdf

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APAC-#9406175-v1 Norton Rose Australia

Contents

1 Introduction and outline ......................................................................................................... 12 What is VTS?......................................................................................................................... 2

3 The legal position in Australia............................................................................................. 2

4 Does Australia have a Competent Authority?........................................................................ 3

5 Legal Liability for VTS and Port Operations .......................................................................... 4

6 VTS system in Port of Melbourne.......................................................................................... 7

7 Recent Developments ........................................................................................................... 8

8 Extension of VTS on the Great Barrier Reef ....................................................................... 10

9 Conclusion ........................................................................................................................... 11


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APAC-#9406175-v1 1 Norton Rose Australia

1 Introduction and outline

1.1 The legal framework of Vessel Traffic Services (VTS) in Australia is complex and unclear.Its practical application throughout Australian ports is ad hoc and fraught with risk. Thefollowing examples highlight some of the uncertainty.

(1) International Maritime Organisation (IMO) Resolution A.857(20) requires there tobe a competent authority that administers VTS. It is questionable whether thishas been complied with in Australia as it is not clear whether the competentauthority is AMSA or the various State maritime safety authorities.

(2) It is unclear whether VTS providers and VTS Officers (VTSOs) are able to excludeor limit liability under section 411 of the Navigation Act 1912(Cth). Section 411replicates s410B which does successfully excludes liability for pilots and pilotageproviders. However, there are fundamental historical and contemporary differences

between the role of VTSOs and pilots which means that a system for excludingliability for pilots cannot be applied directly to VTS operations.

1.2 We shall examine these issues in more detail later in this paper, including the basis uponwhich VTS providers and VTSOs may have become "sitting ducks" if something goeswrong and a plaintiff starts looking wider afield for compensation.

1.3 The 2010 decision in "APL Sydney"1 may be one case that demonstrates this point. Thecontainer vessel dragged its anchor in Port Phillip Bay in Melbourne on 13 December 2008and ruptured a high pressure ethane gas pipeline. As a result in subsequent litigation:

The shipowner and offtake users (Huntsman and Qenos) have alleged negligenceagainst the port authority and the VTSOs.

On 13 March 2010 Justice Rares handed down his decision in the limitationproceedings and was critical of the port authority in a number of respects, namelywith respect to VTS functions:

o allowing the vessel to anchor in close proximity to the pipeline in the prevailingweather conditions.

o insisting that the master maintain the vessel's position and not allow him toweigh anchor to avoid dragging on to the pipeline.

1.4 Although it will be some time before any legal findings are made holding the port authority

liable for the actions or inactions of the VTSOs, if at all, the case does serve to illustratethat legal liability for VTS functions is not a fanciful notion and must be taken seriously.

1.5 Recent developments in VTS in Australia illustrate that the monitoring in the Great BarrierReef has been effective in detecting ships entering restricted areas and Courts are taking ahard line with those in charge of the ships. In this paper we also provide an update onrecent prosecutions in Queensland where masters have failed to provide notifications ofentering VTS areas or ships have entered restricted areas monitored by VTS, resulting in aseries of successful prosecutions.

1.6 The 2010 grounding of Shen Neng 1off Gladstone, resulting oil pollution and damage tothe reef, has resulted in an extension to the VTS coverage to the southern area of theGreat Barrier Reef. This extension to the southern part of Reef VTS is due to come into

force in July this year and illustrates the important role that VTS has to play in managingmaritime safety.

1Strong Wise Limited v Esso Australia Resources Pty Ltd [2020] FCA 240


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2 What is VTS?

2.1 VTS, broadly speaking, involves "shore-side systems which range from the provision ofsimple information messages to ships, such as the position of other traffic ormeteorological hazard warnings, to extensive management of traffic within a port orwaterway."2

2.2 SOLAS Chapter V states that governments mayestablish VTS when, "in their opinion, thevolume of traffic or the degree of risk justifies such services".

2.3 However the implementation of VTS technology throughout Australia is less straight-forward, due to this occurring at the port level. The result is much uncertainty anddisagreement as to what VTS actually requires, with interchanging terminology of "VesselTraffic Systems", "Vessel Traffic Services" and even (in Newcastle) "Vessel TrafficInformation Services".

2.4 Although the name " .. Information Services" might indicate that VTS plays a limited role inthe navigation of a ship, it will always be necessary to examine the true state of affairs inorder to determine whether the VTS role is in fact so limited.

2.5 As State governments in Australia are also considering privatisation of ports, the prospectof VTS services being provided by private operators adds another degree of complexity.Interestingly in Australia, VTS services are provided by a number of different organisations,both Commonwealth and State maritime safety and regulatory authorities, port statutoryauthorities, and Government owned corporations.

3 The legal position in Australia

3.1 There are two legal layers of interest considered in this paper. The first layer brieflyconsidered in this section, is the legal position of the "competent" authority tasked withimplementing VTS in Australia. The second layer of interest from a legal perspective is theoperational liability of authorities implementing VTS in a port if something should go wrong.

3.2 The first issue is whether or not Australia has implemented VTS into Australian ports asprovided for under the IMO Resolutions. If the answer, as we suspect, is that it has not,

Australian VTSOs may not be operating in conformity with Australia's legal obligations.Furthermore, section 411 of the Navigation Act, which is the key provision inCommonwealth legislation dealing with VTS and attempts to limit liability for VTSOs andVTS providers, may not be available.

3.3 VTS is defined under IMO Resolution A.857(20) to mean a service implemented by a

"competent authority designed to improve safety of vessel traffic and...protect theenvironment." At paragraph 2.2.2.1 the Resolution encourages Governments andcompetent authorities to ensure VTS has a legal basis, and to ensure that VTS authoritiesare thereby legally empowered.

2http://www.imo.org/TCD/mainframe.asp?topic_id=387 accessed 25/06/09. VTS is a radar based automated ship

monitoring system used to assist port authorities in its activities, namely: detecting vessels and navigation aids; storing trackdata, ship statistics and movements; predicting future ship positions from track processing; communicating displayinformation to remote sites; presenting and maintaining port status; controlling radar tracking resources and recording radarvideo, vessel tracs and operator actions: R.A.Reid, "Vessel Traffic System for the Port of Melbourne", Second AustralasianPort, Harbour and Offshore Engineering Conference 1988, Brisbane 25-27 October 1988 p. 181.
http://www.imo.org/TCD/mainframe.asphttp://www.imo.org/TCD/mainframe.asphttp://www.imo.org/TCD/mainframe.asp


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4 Does Australia have a Competent Authority?

4.1 Resolution A.857(20) defines a competent authority as being "the authority maderesponsible, in whole or in part, by the Government for safety, including environmentalsafety, and efficiency of vessel traffic and the protection of the environment."3

4.2 In Australia, the inconsistency resulting from the above IMO Resolutions is self-evident. Inpractice, the "competent authorities" that implement VTS are at the local or State levels,whilst the authority made responsible by the Commonwealth government for maritimesafety is the Australian Maritime Safety Authority (AMSA).

4.3 There also seems to be a general presumption in Australia4 that AMSA is Australia'scompetent authority for the purposes of VTS. However, given Australia's federal systemand the division of powers under its Constitution, the Commonwealth and its agencies(including AMSA) in fact have no specific jurisdiction over the operation of Australian ports,unless they can do so under the "navigation and shipping" or "trade and commerce"

powers of the Constitution

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. If this is right, then by implication AMSA has no legaljurisdiction over VTS operations.

4.4 Whilst some may argue AMSA has overcome this by delegating its powers to the Statesand Territory bodies, this presupposes that AMSA held a monopoly on marine safety in thefirst place. It did not. One cannot delegate power that it does not first hold.

4.5 The various States of Australia also have jurisdiction and authority over marine safetymatters, and when it comes to waters inside the territorial baselines, where VTS servicestypically operate, the State governments typically exercise their jurisdiction to the exclusionof the Commonwealth. For example, the provision of navigation aids and dredging.

4.6 The problem is also illustrated when you consider the definition of VTS under section 411

of the Navigation Act, a provision that purports to limit VTSOs and VTS providers liability.That section defines "vessel traffic services" to mean:

"a navigational service implemented under a law of the Commonwealth or of aState or Territory and in accordance with guidelines for vessel traffic servicesadopted by the IMO "

4.7 The provision of VTS in Australian ports is done on an ad hoc basis rather than throughany specific legislative requirements involving AMSA as a competent authority.

4.8 Some options for Australia if its VTS systems are to have a legal basis, might be:

(1) to "create" a (national) competent authority through legislation which provides the

VTS services;

(2) to acknowledge that AMSA is not the competent authority, and to accept thatAustralia has more than one competent authority, being each of the relevant Stateand Territory authorities who are responsible for marine safety.

4.9 Having one standard for VTS operations throughout Australia which is internationallyrecognised is important. However, for this to operate under the umbrella of one "national"competent authority may not be practical, given that the operation of ships within State andTerritory internal waters has historically been a local affair.

3Ibid 1.1.2.

4See for example the AMSA AUSREP publication at http://www.amsa.gov.au/Publications/AUSREP.pdf at page 5.

5See sections 51(i) and 98 of the Constitution.
http://www.amsa.gov.au/Publihttp://www.amsa.gov.au/Publihttp://www.amsa.gov.au/Publi


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4.10 In the circumstances, if VTS operations are to stay under local jurisdiction, it will benecessary to review the legislative framework to ensure it achieves the proper delegationof powers.

5 Legal Liability for VTS and Port Operations

5.1 Do vessel VTSOs or authorities implementing VTS have a duty to warn?

(1) IMO Resolution A.857(20) 1.1.1 provides:

"[VTS] services should have the capability to interact with the traffic and torespond to traffic situations developing in the VTS area."

(2) A number of important issues arise from this requirement, namely:

(a) Defining the level of VTS interaction with vessels using the ports. Does

this require the navigation of vessels or can a "bright line" be drawnwhereby VTS is not navigating or assisting in the navigation of a ship, butoffering some other service? Once someone becomes directly involved inthe navigation of a ship that tends to suggest a sufficient connection thatmay result in legal liability if those services were negligent.

(b) Setting out the scope of powers in legislation that enables VTS and VTSOsto interact with vessels.

(c) The practice of VTS and VTSOs in any particular port and how that in factthey interact with vessels. For example, small ports such as Albany orBunbury may only be required to effectively establish "vessel informationservices" and leave the interaction with vessels using the port with theHarbour Master or pilots. However, larger ports such as Port Hedland orMelbourne could not effectively operate without VTS intervention.

(3) The obvious area in which a VTS provider would face liability is if it positivelydirected the navigation of a ship that resulted in loss and damage. WhetherVTSOs are under obligations to warn of impending disasters or take action, andwhether they face any liability for failing to do so or by their inaction, is a complexissue. For example the IMO describes VTS as:

"shore-side systems which range from the provisions of simple informationmessages to ships, such as position of other traffic or meteorologicalhazard warning, to extensive management of traffic within a port or

waterway".

(4) As this illustrates, the extent to which VTSOs are involved in the navigation of aship (using that term more generally) varies considerably and requires analysis ona case by case basis.

(5) From a practical perspective one should also keep in mind the purpose of a VTSsystem. That being, interaction.

(6) In accordance with international VTS recommendations, guidelines and practice,an essential feature of a VTS (and one that distinguishes a VTS from static orpassive vessel traffic management) is its capability to interact with the traffic andrespond to traffic situations in the VTS area. It seems somewhat futile to have a

VTS system if operators are simply going to monitor a vessel heading towardsdanger, yet fail to make contact (i.e. warn) the master or pilot.


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5.2 Can VTS providers be liable?

(1) This paper considers whether it is true, as a matter of law, that VTS providers canbe liable for failing to warn and what is the relevant duty of care. In considering thisissue there is an underlying assumption that the relevant VTS provider will be liablefor the errors and omissions of the VTSOs.

(2) Therefore the first sub-question is whether or not VTS providers, who are primarilystatutory public authorities, can actually be held liable. The answer to this questionis yes.

5.3 Public authorities

(1) At common law, and in all States and Territories, the ordinary principles of the lawof negligence have been shown to be applicable to public authorities. Several ofthe main principles of the common law of tort dealing with statutory authorities arenow codified in legislation. A public authority exercising a statutory power orperforming a statutory duty may be subject to a common law duty of care.

(2) This position was conclusively established in the High Court decision ofSutherlandShire Council v Heyman (1985) 157 CLR 424 which concerned a failure by theSutherland Shire Council to follow required building approval procedures. It wasargued that the Council's failure to act as required, allowed a faulty residentialbuilding to be constructed, costing future owners considerable sums to repair.Ultimately, it was held that the public authority owed a duty of care to the plaintiffs,and that the duty had been breached.

(3) A duty of care was also upheld in Vairy v Wyong Shire Council(2005) 223 CLR422. In this case, Mr Vairy sued Wyong Shire Council for failing to warn of thedanger of diving from a rock outcrop into Soldiers Beach. Wyong Shire Councilwas the public authority vested with the statutory care, control and management ofthe relevant land. The High Court held that the Council had a duty to takereasonable care to protect persons legally entering onto their land from injury.

(4) The recent High Court decision ofStuart v Kirkland Veenstra (2009) 237 CLR 215,also illustrates that officers of statutory authorities may have a positive duty to takeaction, in the right circumstances. In this matter, two police officers observed MrVeenstra in his car with a hose pipe connected to the exhaust. The engine was notrunning. When they asked if he was alright, he said he was but that he would go

home and talk to his wife. He declined offers of assistance from the police. Heappeared rational and showed no sign of mental illness to the police officers.Under the Mental Health Act, police officers were empowered, but not obliged, toapprehend a person and have them checked by a doctor. Mr Veenstra went homeand suicided connecting a hose to the exhaust from his car and starting the engine.

A claim was brought by Mrs Veenstra alleging that the police officers owned a dutyof care to Mr Veenstra to protect his health and safety.

(5) Historically, a person was not obliged to rescue another person from harm.Although it was ultimately found that the police did not owe Mr Veenstra a duty ofcare, three of the High Court justices found that the critical issue in this case wasthat the police offers had not formed the view that Mr Veenstra was mentally ill,referring back to their powers under the Act. If they had formed that view, would

they have been obliged to exercise their powers under the Act? Similarly, would aVTSO have to exercise his powers of intervention to protect the environment toprevent two ships colliding?


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5.4 What is the scope of the duty of care?

(1) In examining what duty of care a particular public authority owes, it must be notedthat unless the authorising legislation provides otherwise, a public authority must at

all times use reasonable care in exercising its statutory authority. If injury resultsfrom a lack of care an action in negligence will lie. In the absence of anynegligence, the exercise of a statutory function is lawful and cannot becomeunlawful except by reason of any subsequent unlawful acts or omissions of thepublic authority.

(2) The second sub-question is therefore what actually is this duty of care? In theAustralian context, VTS is defined under section 411 of the Navigation Acttomean:

"a navigational service implemented to improve the safety and efficiencyof vessel traffic and to protect the environment."

(3) A VTSOs duty of care is to be proactive and act in such a way as to improve safety(ie watch and warn) and to prevent vessels from grounding or colliding and therebycausing damage to the environment. VTSOs may be liable should they fail to warn.

5.5 Limitation or exclusion of liability

(1) Turning to the question of liability, section 411(2) Navigation Actstates:

"the owner or master of a ship navigating in circumstances where vesseltraffic management arrangements are required to be complied with ... isanswerable for any loss or damage caused by the ship, or by a fault of thenavigation of the ship, in the same manner as the master or owner would

be if those arrangements were not required with."

(2) Interestingly, the section does not refer directly to the liability of VTSOs or VTSproviders.

(3) Section 411(2) replicates the language of section 410B(2) which protects pilots andpilotage providers from liability for negligence in the navigation of the ship. It doesso by making compliance with compulsory pilotage the same as if the pilotage werenot compulsory. At common law, the master was not liable if pilotage wascompulsory, but was liable if he had taken on a pilot voluntarily. This sectionremoves the common law distinction.

(4) However, there is no common law position whereby masters are liable for the

actions of VTSOs in cases where a VTS system does not have to be compliedwith. If that is right, then section 411(2) would not be effective to make the masterand ship owner liable for the actions of the VTSO. That is because the underlyingprinciple in 410(B) is that the pilot is the agent of the master or owner, and thisprinciple does not exist in the case of a VTSO.

(5) Other problems with section 411(2) might include the following:

(a) The provision may not prevent:

(i) a third party bringing proceedings against the VTSO or VTSprovider for loss suffered by reason of their negligence; or

(ii) the master and ship owner bringing recovery proceedings againstthe VTSO for his or her negligence).


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(d) Service Category 4 Instructions6

(2) Schedule 1 to the Determination sets out these categories and the minimum VTStasks and activities that a VTS Authority must have (capacity, capability and willing

ableness) before meeting the criteria necessary to issue information/ advice/warning/ instruction in accordance with the service category.

(3) Whilst Category 4 (instructions) may only be undertaken in that part of the VTSarea where the VTS Authority has legal jurisdiction over the waters (eg portwaters), the Determination states:

(a) a VTS area may extend beyond conventional port boundaries to ensurethat commercial shipping safety relevant to the port is included (forexample, in order to adequately respond to particular traffic situations suchas ships unintentionally straying outside the port limits); and

(b) VTS Authority may delineate its VTS area to extend beyond the boundariesof its own port waters provided that it provides information, advice andwarnings only and does not issue instructions in those extra-jurisdictionalwaters.

(4) This effectively means that VTS operators (at least in PoM) do have the power toprovide a warning to a vessel outside the VTS area, they simply cannot giveinstructions on what action the vessel must take.

(5) In addressing the content of these warnings/instructions, the Determination states:"because the ultimate responsibility for safe navigation of a vessel remains with themaster of the vessel, at no time should the VTS Authority or any VTS Operator -

(a) expressly or impliedly relieve, or attempt to relieve, a master of his or herresponsibility for the safe navigation and control of the vessel; or

(b) expressly or impliedly accept, or attempt to accept, responsibility for thesafe navigation and control of a vessel."

(6) These provisions do not suggest the VTS Authority has no obligation to warn.Rather it simply states that if they do intervene (i.e. warn), the master does not as aresult lose his/her responsibilities.

(7) Finally, the Determination states that the VTS Authority must ensure that anyinformation or advice it provides; or any warning or instruction that it issues, isresults-orientated and the details of the execution are left to the sole discretion of

the VTS user/allied service.7

7 Recent Developments

7.1 This section provides a brief update of recent cases in Queensland which illustrate theliability masters and pilots potentially face in connection with failing to comply with VTSrequirements, particularly REEFVTS. Unfortunately, may of these cases are unreported asthey are dealt with in the local Magistrates Court, so details may be scant.

6

A Category 4 instruction is to be issued in the event of an obvious and immediate danger of which the master does notappear to be aware or where a master is in breach of harbour master's directions. These instructions are equivalent to aharbour master's oral direction under the Marine Act. In Victorian ports to which this Determination applies, the totality of thediscrete VTS tasks and activities that the VTS Authority is willing and able to undertake - AND which the VTS Authority has

classified as comprising Service Categories 1, 2 or 3 - are the equivalent of an "information service" in internationalparlance. Similarly, Service Category 4 is the equivalent of a "Traffic Organisation Service" in international parlance.7

"Results-orientated" instructions means that the details of execution are left to the vessel. For example, the VTS Operatormay give an instruction that the vessel is not to enter a particular channel. It is up to the master of the vessel to decide whatspecific action to take to comply with this instruction.


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7.2 MV Mimosa

(1) The master and officers of the Panama-flagged MV Mimosa pleaded guilty inTownsville Magistrates Court to breaches of the Great Barrier Reef Marine Park

Act 1975 (Qld) (the Act).

(2) It was alleged that on April 4, 2010 the MV Mimosaentered the Great BarrierReef Marine Park via Flinders Passage east of Cape Bowling Green, which is anunidentified shipping route. It was also alleged that the vessel was not registeredwith Reef VTS, failed to provide a pre-entry report and did not respond to contactattempts made by Reef VTS.

(3) Instead of following shipping lanes through the reef, the ship was navigated on anunapproved route that put it alongside coral reefs.

(4) The master was charged with committing an offence contrary to section 38FB8 ofthe Act. The other two officers were charged with conduct prohibited or donewithout required permission contrary to section 38BA of the Act. The maximumpenalty for these offences is $220,000.00

(5) Magistrate Scott Luxton said that the men had shown a blatant disregard for theprotection of the Great Barrier Reef. The men were each fined $70,000.00.

7.3 Singe Bulker

(1) Two navigating officers from Hong Kong based bulk carrier pleaded guilty and werefined a total of $53,000.00 in the Gladstone Magistrates Court on 24 January thisyear for entering a restricted area in the Great Barrier Reef Marine Park.

(2) The Chief mate was fined $29,000 and third mate was fined $24,000.

(3) The vessel illegally entered an area in the Capricorn-Bunker Group of Islands on18 January this year. The area is prohibited under the Act.

(4) The maximum penalty for crew for this type of offence is $110,000.00

7.4 U-Sea Panache

(1) The bulk carrier U-Sea Panache was caught travelling off course in the southernpart of the Great Barrier Reef on March 9 this year.

(2) The chief officer was found guilty to navigating a ship in a zone where a permit is

required and was fined $32,500.00 at Gladstone Magistrates Court on March 11,2011.

(3) Court proceedings revealed the offence took place between Lamont Reef and OneTree Island.

8

38FB Liability for ship used in committing offence: offence

(1) A person commits an offence if:

(a) the person is an owner of or the master of a vessel; and

(b) the vessel is used in committing an offence against a provision of another Division of

this Part; and(c) the conduct constituting the offence is engaged in a zone; and

(d) the vessel is a ship within the meaning of the zoning plan for the zone.

Penalty: 500 penalty units.

(2) Strict liability applies to subsection (1).


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(4) The court heard the officers monitoring the Reef VTS detected a ship entering arestricted area of the southern part of the Great Barrier Reef Marine Park east ofGladstone.

(5) The officers then used the Automatic Identification System (AIS) to identify thevessel as the U-Sea Panachea bulk coal carrier registered in Singapore.

(6) Proceedings revealed this was the Chief Officers first voyage on the vessel and hehad not been through Great Barrier Reef waters before. He was fined $32,500.

7.5 These current cases show the trend for courts to take the hard line where masters andofficers show a blatant disregard for complying with Reef VTS requirements. In anotherrecent case it was illustrated that the VTS in the Great Barrier Reef should be extended toensure maximum protection for the Reef due to the multitude of occurrences involvingships veering off course in the protected area.

7.6 Shen Neng 1

(1) The master of the vessel was charged with causing damage in Marine Park,contrary to section 38FC9 of the Act. The maximum penalty for this offence is$55,000.00.

(2) The navigating officer was charged with being a person in charge of vessel withinthe Great Barrier Reef Marine Park, causing damage to the Marine Park, contraryto section 38DA10 of the Act. The maximum penalty for this offence is three yearsimprisonment and/or a $220,000.00 fine.

(3) The Chinese registered coal carrier allegedly veered 15 nautical miles off courseon April 3 2010 and slammed into Douglas Shoal, off Gladstone, spilling oil and

threatening an environmental disaster for the Great Barrier Reef.

7.7 The current tracking system is confined to the northern section of the reef to a position justsouth of Mackay, due to the perception that navigating in the south is reasonablystraightforward. With ships taking alternative routes through the southern section of thereef, it is appropriate to set up a monitoring system to track from ships though the southernextremity.

8 Extension of VTS on the Great Barrier Reef

8.1 Following the release of the AMSA report entitled Improving Safe Navigation in the GreatBarrier Reefin April 2010, which recommended the extension of REEFVTS to the southern

boundary of the Particularly Sensitive Sea Area (PSSA), Federal Minister for Infrastructure,Transport, Regional Development and Local Government, the Hon Anthony Albanese MP

938FC Liability for vessel causing damage in Marine Park: offence

(1) A person commits an offence if:(a) the person is an owner of or the master of a vessel; and(b) the vessel is used in committing an offence against section 38DA (vessel causingdamage in Marine Park) or 38DD (discharging waste).Penalty: 500 penalty units.(2) Strict liability applies to subsection (1).10

38DA Vessel causing damage in Marine Park: offence(1) A person commits an offence if:(a) the person is in charge of a vessel; and(b) the vessel is in the Marine Park; and

(c) the persons charge of the vessel results in, or is likely to result in, the vessel causingdamage to the environment in the Marine Park.Penalty:(a) for an aggravated offenceimprisonment for 3 years or 2,000 penalty units, or both; or(b) in any other case1,000 penalty units.


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announced that AMSA, in conjunction with Maritime Safety Queensland (MSQ)would begin rolling out the infrastructure necessary to support the proposed extension.

8.2 In December 2010, the International Maritime Organization (IMO) approved Australias

proposal to extend the mandatory ship reporting system in the Torres Strait and GreatBarrier Reef (REEFREP). This will come into force on 1 July 2011.

8.3 REEFREP is a core component of REEFVTS, requiring ships to identify themselves andprovide information to the Reef VTS centre.

8.4 Extending the coverage of REEFVTS to the southern boundary of the Great Barrier Reefwill provide protective measures comparable to those in the existing Great Barrier Reef andTorres Strait Vessel Traffic Service (REEFVTS) area. The goal is to enhance vessel safetyand protection of the marine environment throughout the Great Barrier Reef. This includesproviding information to ships in the area, and if necessary, the capability to interact withvessels where information available may assist onboard decision making such as a shipstanding into shallow water or deviating from a recommended route.

8.5 AMSA and Maritime Safety Queensland (MSQ) are progressing with the roll-out of theinfrastructure to support the reporting system such as sensors, communication equipmentand modified navigational software.

8.6 Considerable work has already been completed by AMSA and MSQ to enable the deliveryof REEFVTS services to the proposed extended area, including:

(1) Installation of shore-based Automatic Identification System (AIS) to provide a realtime surface picture of vessels in key areas has commenced. In addition, work hascommenced on extending the satellite-based automated position reporting system(APR) to provide further tracking capabilities. This enables the service to closely

monitor the transit of vessels.

(2) A VHF voice communications network to enable interactive and real timecommunications between REEFVTS and transiting ships is being developed for thekey areas. Similarly, the Inmarsat-C messaging capabilities to provide shipencounter information to shipping, and for ships to communicate their mandatoryreporting requirements to REEFVTS, will be extended to ensure interactivity withvessels when transiting the region.

(3) Decision support tools comparable to those in the existing area are beingdeveloped. To assist in identifying vessels deviating from the recommended routes,exiting electronic corridors, not altering course at critical waypoints or standing intodanger (e.g. shallow water) and respond to developing situations.

8.7 Marine Orders Part 56 REEFREP is currently being revised to give effect to the extendedarea. It is anticipated this will be available for public comment in April 2011.

9 Conclusion

9.1 The main points we have attempted to illustrate in this paper include:

(1) As the "APL Sydney"case illustrates - VTSOs and as a result VTS providers mayface scrutiny by the Courts for their actions or inactions.

(2) VTS in Australia has not been implemented in accordance with IMO Resolution A

857(2). Questionably, AMSA is not a "competent" authority under the currentlegislative framework.


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(3) VTS providers may have a duty of care that extends beyond the simple provision ofinformation services or guidance to ships. It could extend to a duty to warn or totake active steps to avoid an incident.

(4) The current provision in the Navigation Actwhich seeks to exclude a VTSproviders liability, is less than clear. It may in fact preserve the current system ofproportionate liability that exists in all States and Territories of Australia. It mayalso not prevent 3rd parties or the shipowner bringing claims against the VTSprovider.

(5) Recent cases have shown that the monitoring in the Great Barrier Reef has beeneffective in detecting ships entering restricted areas and Courts are taking a hardline and dealing serious consequences to those in charge of the ships.

(6) The extension of the Reef VTS system to the southern parts of the Great BarrierReef are due to come into force in July this year.

ernest-van-buuren - norton rose - vts in australia, perpectives.pdf

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