The Club has been made aware that a container ship has recently been refused permission to discharge containers, having been found not to meet the minimum container stow working space access requirements of the Marine Order 32 (“MO32”).
Members should be aware that the MO32 is not restricted to container stow working space access, but contains provisions dictating the characteristics, condition and conduct of all ships and cargo operations within Australian ports. If these provisions are not met the relevant ship will be considered non-compliant and the AMSA will suspend all work in the no-compliant area. The MO32 can be found here.
Earlier this year the Australian Maritime Safety Authority (“AMSA”) announced a new policy on alternative safe working arrangements – a policy which potentially provided some degree of relief to owners/operators caught by the strict operation of MO32. However, AMSA recently withdrew this policy. Nathan Cecil, partner at Australian law firm Norton White has provided us with the following summary.
Quote
By a […] notice to industry on 13 November 2013, AMSA formally withdraw the alternative safe working arrangement policy. The reasons for the withdrawal are not known, but it is suspected that AMSA found itself being brought into disputes between stakeholders as to the appropriateness or otherwise of proposed alternative safe working arrangements and/or found itself treading on areas properly the jurisdiction of State/Territory work health and safety authorities.
As a result, the AMSA alternative safe working arrangement mechanism has ceased to exist and MO32 will be applied on its terms.
AMSA has also issued a further clarifying memo in relation to how AMSA will respond in practice to MO32 non-compliance. This memo is not intended to modify the application or implementation of MO32 and only serves to give guidance as to its application on its terms. In practice, it may be that stakeholders still have an available mechanism to resolve many issues of MO32 no-compliance, at least in respect of the recommended requirements of MO32 (compared to the mandatory requirements).
In summary:
a. Where a ship is non-compliant with a mandatory provision of MO32 (“must”), the person in charge (“PIC”) is not permitted to work the vessel and AMSA may issue a notice of non-compliance. The PIC may apply to AMSA for a one-off or ongoing exemption in respect of any such item (impliedly, with the consent and agreement of other stakeholders), which will be considered by AMSA on a case-by-case basis and at its discretion. In practice, AMSA is typically reluctant to grant such exemptions;
b. Where a ship is non-compliant with a recommendatory provision of MO32 (“should”), this will not amount to formal non-compliance under MO32 and AMSA will not issue a notice of non-compliance. The matter becomes an issue of compliance with State/Territory-based work health and safety laws. If the PIC determines that the situation is unsafe, then work will not take place. However, the parties are free to conduct their own risk assessment and agree on and implement an alternative safe working arrangement that meets the requirements of the State/Territory-based work health and safety laws. With the withdrawal by AMSA of the alternative safe working arrangement policy, AMSA will not consider and/or issue any approval in respect of any such alternative safe working arrangement. AMSA will leave the regulation of the same entirely up to the State/Territory work health and safety authorities.
So, for any non-compliance with a mandatory requirement of MO32, cargo work is prohibited under MO32 and there is effectively no scope to agree to alternative working arrangements. For any non-compliance with a merely recommendatory provision of MO32, stakeholders are still free to agree on and implement an alternative safe working arrangement, in accordance with State/Territory work health and safety assessments. But, now that AMSA has withdrawn its alternative safe working arrangement policy, AMSA will not consider, review or issue any form of approval in respect of the same.
The withdrawal of the policy by AMSA may in practice result in some loss of flexibility for stakeholders, with some non-compliance items that may have been able to be cured by MO32 alternative safe working arrangements now not being able to rely on that mechanism. For non-compliance with recommendatory provisions of MO32, stakeholders are still able to conduct a risk assessment and agree on alternative safe working arrangements. However, stakeholders will now not have the assurance provided by AMSA approving any submitted risk assessment and alternative working arrangements. This means that stakeholders will have to self-assess whether any alternative working arrangements are sufficiently safe. For this reason, stakeholders must ensure that any alternative working arrangements fully meet the safety standards imposed by State/Territory work health and safety laws.
We further recommend that stakeholders comprehensively document the non-compliance issue being considered, any assumptions made, the material factors considered in any risk assessment, any qualifications or limitations of any risk assessment, the agreed alternative safe working arrangements, the allocation primary responsibilities under the alternative safe working arrangements and obtain written approval of the same from all other stakeholders before implementing any alternative safe working arrangement.
Unquote
Member Alert is published by The Swedish Club as a service to members. While the information is believed correct, the Club cannot assume responsibility for completeness or accuracy.