MARITIME SAFETY

Safety duties for owners of commercially operated vessels

Introduction
Safety duties is a concept that means people have an obligation and duty to act safely. Under the Marine Safety Act 2010 (Vic) that makes marine safety the shared responsibility of all relevant people in a chain of responsibility.
Duties to ensure safety have been placed on a wide range of parties including:  port management bodies  owners of commercially operated vessels  designers/manufacturers/suppliers of vessels  suppliers of marine safety equipment  suppliers of vessel operations  marine safety workers  masters and operators of recreational vessels  passengers.

Who are owners of commercially operated vessels?

Under the Marine Safety Act, owners are people having a beneficial interest in the vessel in their capacity as an owner, lessee or sub-lessee or any person having exclusive possession of the vessel. This definition includes both individuals and organisations. What does this mean in practice? There are many different ownership arrangements under which commercial vessels are operated. For the purposes of safety duties, these may include (but are not limited to) the following:  a person who owns a vessel but leases it to a third party who is responsible for the operation and maintenance of the vessel  a person who has a share in the ownership of a vessel. Example 1 A vessel owned by person or company A is leased as a going concern to person or company B.  leases the vessel with crew, an operating system, A that is, a safety management system (SMS), and exerts some operational control such as organising leasing contract conditions. A organises the work of the vessel on a daily basis.  The owner would be considered to be entity A even though B seems to be operating the vessel. Example 2 A vessel owned by a person or company A is leased as a bare boat, that is with no crew or SMS, to person or company B and A does not exert any operational control. B controls the operation of the vessel including the provision of crew, setting the SMS and organising the work of the vessel. Under the Marine Safety Act, the owner would be considered to be B as B is responsible for the operation of the vessel. Its important to understand that all parties involved in the ownership and operation of commercially operated vessels have safety duty responsibilities. These responsibilities differ depending on what capacity each individual is acting in at the time.

What safety duties do commercial vessel owners have?

Owners have a new legal obligation to ensure safety of vessels, marine safety equipment and operations as part of a broad chain of responsibility. In particular, this requires owners, so far as is reasonably practicable, to ensure the safety of:  vessel design and supply activities carried out by the owner or supplied to the owner  marine safety equipment design and construction activities carried out by the owner or supplied to the owner  vessel operations carried out by the owner or supplied to the owner. To meet these obligations, owners of commercially operated vessels should, so far as is reasonably practicable, at least:  provide or maintain a commercially operated vessel and marine safety equipment that is safe  implement and maintain a safety management system that ensures that vessel operations are safe  provide information, instruction, training or supervision to marine safety workers as necessary to enable those workers to perform their marine safety work safely  provide information to persons on board a commercially operated vessel, other than marine safety workers, as necessary, to enable those persons to ensure their safety.

What does so far as is reasonably practicable mean?

The duty to ensure safety is not absolute. It requires safety to be to the standard so far as is reasonably practicable. What is reasonably practicable is always a judgement based on the facts and circumstances of each situation. Owners of commercially operated vessels should consider the following factors when deciding what is reasonably practicable:  the likelihood of the hazards and risks involved happening  the degree of harm that would result if the hazards or risks occur  what they know, or should reasonably know, about the hazards or risks and ways to eliminate or reduce them  the availability and suitability of ways to eliminate and reduce hazards or risks  the costs of eliminating or reducing those hazards or risks. Note: The standard of so far as is reasonably practicable is different from other standards used in risk management, for example, as low as is reasonably practicable. What is so far as is reasonably practicable is a judgement based on all the relevant circumstances of the case, with particular regard for the factors listed above, including taking into account the suitability, availability and costs of control measures.

What is reasonably practicable is always a judgement based on the facts and circumstances of each situation.

What do safety duties mean in practice?

To fulfil safety duties obligations, commercial operators should have a robust risk management system. There are many ways to develop such a system. While Transport Safety Victoria (TSV) does not prescribe one particular way, the following steps are recommended:  consult with people who have the relevant knowledge and expertise of the vessel and its operation  identify potential hazards and risks  assess the nature and extent of hazards and risks identified, including determining the level of risk, that is, the likelihood, and consequence  identify control measures, including existing or potential additional measures  decide which control measure to implement, taking into account suitability, availability and cost  nominate the person(s) responsible for implementing the agreed control measures  ensure control measures are implemented, monitored and maintained. In terms of consultation, owners of commercially operated vessels should be mindful of the need to consult with all relevant parties in the chain of responsibility when undertaking risk management. For owners, these may include:  manufacturers and suppliers of vessels and safety equipment  suppliers of vessel operations  vessel operators  marine safety workers  passengers. When undertaking the risk assessment of an operation, it is important that an appropriate mix of relevant parties is consulted. For example, when undertaking a risk assessment for the operation of a vessel, it may not always be appropriate to include the vessel designer or manufacturer. However, it would be necessary to include the people who will be involved in the operation of the vessel.

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Who are marine safety workers?

Marine safety workers include any persons who carry out marine safety work, as detailed below, including those people who are engaged by others to carry out this work, trainees and volunteers. Marine safety work means any activity that may affect the safety of marine safety infrastructure operations or vessel operations in respect of a commercial vessel, including:  navigating, conducting or controlling the movement of a commercial vessel  facilitating the navigation, conduct or control of the movement of a commercial vessel  implementing and maintaining safe working systems for: marine safety infrastructure operations  commercial vessel operations  installing, designing, constructing, supplying, repairing, modifying, maintaining, monitoring, examining or testing marine safety infrastructure  any work involving certification as to the safety of marine safety infrastructure or any part of marine safety infrastructure  any work involving the development, management or monitoring of safe working systems for marine safety infrastructure operations commercial vessel operations  any work connected to the removal of hazards, obstructions or dangers to the safety of: marine safety infrastructure operations  commercial vessel operations  directing, including through the use of signals and signs and radio or other electronic communications, the movement of vessels in port waters  any other work that is prescribed as marine safety work.

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How will TSV administer safety duties?

TSV administers safety duties through a range of activities to monitor compliance with the Marine Safety Act. TSV recognises that owners of commercially operated vessels have already been required under the Marine Regulations 2009 (Vic) to develop a safety management system. This falls under the requirement for trading and fishing vessels operating within Victoria to meet the National Standard for Commercial Vessels (NSCV) Part E Operational Practices. A safety management system reflects the measures taken by a commercial vessel operator to ensure the safe operation of their vessel. To minimise the regulatory burden on owners of commercially operated vessels, owners can use the safety management system as one key practical tool to demonstrate compliance with safety duties under the Marine Safety Act. However, the safety management system will need to be reviewed by owners in light of the new obligations to ensure they appropriately align.

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MARITIME SAFETY
For more information W www.transportsafety.vic.gov.au T  1800 223 022 E information@transportsafety.vic.gov.au

Copyright in this brochure resides with the Director, Transport Safety and the State of Victoria. No part of this brochure may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth). This brochure contains information for owners of commercially operated vessels in relation to the Marine Safety Act 2010 (Vic). It is not a substitute for the relevant legislation. This brochure is distributed free by Transport Safety Victoria. The information in this publication is current as at 1 July 2012.