Evaporites (Lake MacLeod) (Cape Cuvier Berth) By-laws 1991

Several definitional and structural concepts carry central legal and practical significance in the by‑laws.

Berth, berth installation and jetty and berth area (by‑law 3). A broad notion of berth includes any anchorage, jetty or vessel within the jetty and berth area. "Berth installation" expressly includes physical works above and below high water mark (jetty, concrete supports, pipelines, mooring buoys, beacons, reclamation works, channel dredging, embankments and breakwaters) whether on land the Company holds or otherwise under the Company’s management. The jetty and berth area is located within Mineral Lease 245SA and extends in effect to a 2 km radius "in the vicinity of" that area (by‑law 3). The breadth of these definitions brings a wide range of physical works, vessels and activities under the Company’s regulatory regime.

Marine Supervisor and Harbour Master (by‑law 3). The Marine Supervisor is the Company’s appointed officer for these by‑laws and is the primary decision‑maker for permissions, safety directions and operational control. The Harbour Master is defined by reference to the Shipping and Pilotage Act 1967 (Harbour Master for Port of Carnarvon) and retains superior statutory authority in navigational or pilotage matters: directions of the Harbour Master prevail over the Company’s permissions (by‑laws 5 and 19). This creates a layered governance model: private operational control subject to public maritime authority.

Berth services, dues and schedules (by‑law 3, Part 3, Schedules). "Berth service" encompasses all services and facilities provided by or on behalf of the Company for vessels using the berth area, explicitly including towage and loading supervision (by‑law 3). "Dues" is defined broadly to include any rate, charge, indemnity or compensation payable under the by‑laws (by‑law 3). Schedules 2-6 set concrete charges for tonnage, towage, lines launch/work boat services, linesmen, mooring lines, pilotage, and cancellation fees, creating predictable unit prices and minimums (e.g. Sch. 2 Pt 1: $0.016 per tonne per 4 hours, minimum 12 hours; Pt 2: $0.024 per dwt per entry, minimum $1,200; Sch. 3 Tug tariffs).

Operational prohibitions and permissions. Many activities are prohibited unless prior written permission is obtained from the Marine Supervisor, including berthing/unberthing, repairs, depositing matter on jetties, opening hydrants, erecting structures, fishing, and use of naked lights (by‑laws 4, 8, 23, 33, 44, 43, 29). The permission mechanism creates gatekeeping power in the Marine Supervisor and, by extension, the Company.

Safety and readiness obligations. Masters are required to keep vessels in seagoing condition and ready to depart (by‑law 15), to keep sufficient ballast (by‑law 14), to keep a watchman aboard (by‑law 20), to ensure proper gangways and fenders and safe handling of cargo (by‑laws 9, 10, 21). There are detailed safety regimes around fire, explosives and inflammable cargo with cross‑references to the Explosives and Dangerous Goods Act 1961 and the Chief Inspector (by‑laws 25-27).

Liability, guarantees and detention. Financially, the master, owner and agent are jointly and severally liable for dues (by‑law 46(1)); consignees/consignors are secondarily liable where owners/agents default (by‑law 47). The Company may require payment before departure or accept a written guarantee in a specified form (by‑law 46(3), Schedule 1). Absent such guarantee, the Marine Supervisor may detain the vessel until dues are paid (by‑law 46(4)). Towage and related services are supplied on contract terms that include indemnities and limited liability for the Company (Schedule 5).

Interplay with other statutes and instruments. The by‑laws explicitly defer to, and cross‑reference, other statutory regimes: the Shipping and Pilotage Act 1967 (Harbour Master and pilot powers), the Explosives and Dangerous Goods Act 1961 (Chief Inspector, licences/permits for dangerous goods) and the Corporations Act 2001 (definition of related corporation via s 50) (by‑laws 3, 5, 26-27). The W.A. Marine (Hire and Drive Vessels) Regulations 1983 are referenced for registration of certain small craft (by‑law 48(4)). These cross‑references bring external legal duties and administrative actors into the regulatory framework.

Conditions of service and contract terms. Schedule 5 converts towage services into a set of contractual conditions that allocate risk and responsibility: on commencement of towage the tug’s master and crew become servants of the hirer (Sch. 5 cl. 2), the hirer bears broad indemnity obligations (Sch. 5 cl. 3), and the Company is entitled to sub‑contract or substitute tugs (Sch. 5 cl. 5). These clauses convert use of facilities into commercial engagements governed by the by‑laws’ contract‑like terms.

Taken together, these concepts place the Company at the intersection of port operations, private charging authority and risk allocation, with statutory harbour authority retained for navigational matters.

The by‑laws identify a specific set of affected parties and allocate obligations and liabilities among them. The principal categories are the Company and its officers, masters and crews of vessels, owners and agents, consignors and consignees, third‑party service providers (tug owners, linesmen), passengers, and other persons and vehicles in the area.

Company and officers. The Company is the beneficiary of all dues (by‑law 46(1)) and the principal enforcer of the by‑laws on a day‑to‑day basis through the Marine Supervisor and authorised officers (by‑laws 3, 11, 36, 39). The Marine Supervisor is authorised to grant permissions (berthing, repairs, embarkation), set load limits (39(3)), move unattended vehicles (39(2)), close parts of jetty (45), and require guarantees (46(3)). Officers of the Company also have power to take steps to prevent entry by intoxicated or disorderly persons (40). The Company therefore receives concentrated financial benefits from the dues and operational control over berth installations.

Masters, owners and agents. The by‑laws place primary operational and financial responsibilities on the master, owner and agent of a vessel. They must obtain permissions before berthing or undertaking repairs (4, 8), keep vessels in seagoing condition and with sufficient ballast (14, 15), ensure watchkeeping and safe embarkation/disembarkation (20, 16), produce certificate of registry on demand (49), deliver manifests (54) and ensure cargo handling meets Marine Supervisor directions (21). They are jointly and severally liable for dues (46(1)) and may be required to provide a written guarantee in the form in Schedule 1 when payment prior to departure is not made (46(3), Sch. 1). The master’s obligations are extensive and extend to operational control of the vessel while in the berth area.

Consignors and consignees. The by‑laws extend secondary financial liability to consignees and consignors where owners, masters or agents fail to pay dues (47). That makes trade counterparties potentially liable for port charges in respect of inward or outward cargo. Consignee/consignor liability is triggered by non‑payment and is in addition to the Company’s other recovery rights.

Third‑party service providers, hirers and crew. Tugs, lines launches, work boats and linesmen are both regulated by the by‑laws and also engage subject to their contractual conditions (Schedules 3-6). The Company may require masters to use lines launches, tugs and work boats provided by or on behalf of the Company (21(3), 52(4), 53(2)). When services are used, Schedule 5 imposes contractual allocations of risk , the hirer bears broad indemnities and the tug operator’s liability is limited by Sch. 5 cl. 3. Operators of those craft may be private contractors or the Company itself; the by‑laws permit sub‑contracting (Sch. 5 cl. 5).

Passengers and visitors. Passengers and members of the public are subject to access restrictions, safety requirements and prohibitions on assembly, fishing and unattended children (16, 41-43). Entry can be restricted by notice placed by the Company (45). The by‑laws also require conformity with Marine Supervisor directions and prohibit trespass and interference with berth installations (30, 31).

Government and statutory officers. The Harbour Master (Shipping and Pilotage Act 1967) and the Chief Inspector (Explosives and Dangerous Goods Act 1961) retain statutory roles over navigation and dangerous goods (by‑laws 5, 19, 26-27). Their powers can supersede Company permissions in relevant domains. The Crown is treated as an "owner" in certain definitions but vessels of war and Crown vessels not engaged in trade can be exempt from dues (48(1) and 50(1)).

Local businesses and contractors. Businesses that provide cargo handling, lashing, stevedoring, tug services, linesmen and mooring lines will be affected economically: the by‑laws require use of Company‑provided services unless the Marine Supervisor permits otherwise (21(1)-(3)). The charging schedules create revenue streams for those services when provided by or on behalf of the Company and impose costs on users.

Insurers and lenders. The contractual indemnities and provisions on detention affect risk allocation and therefore insurance cover and the position of secured creditors (e.g. the Company’s right to detain a vessel until dues are paid, by‑law 46(4)). The by‑laws do not address priorities of lien or mortgages expressly, but the detention and payment conditions have practical consequences for stakeholders with maritime security interests.

Overall, the by‑laws affect a closed set of maritime actors around Cape Cuvier by imposing both operational constraints (permissions, safety obligations) and financial obligations (dues, indemnities). The Company is the central authority that decides on permissions and levies charges, with the Harbour Master retaining navigation‑related primacy.

The by‑laws create a network of duties (what specified actors must or must not do) and rights (what actions the Company or statutory officers may take). Below are the principal duties and rights identified in the source text, with references to the relevant by‑laws and schedules.

Duties on masters, owners and agents

• Obtain Marine Supervisor permission before berthing or unberthing: by‑law 4. This is a pre‑condition to using a berth except where Harbour Master directions require otherwise (by‑law 5).
• Notify and obtain written permission from the Harbour Master before undertaking repairs while at anchor or in berth: by‑law 8(1)-(2).
• Provide appropriate gangways, manropes, ladders and exhibit lights as the Harbour Master considers necessary: by‑law 9.
• Provide tackle and slinging equipment as required by the Marine Supervisor: by‑law 10.
• Keep vessel clear of shiploaders, plant and jetty gear: by‑law 11.
• Ensure sufficient ballast and that vessel is in seagoing condition and ready to put to sea without delay: by‑laws 14 and 15.
• Ensure watchman(s) onboard while occupying a berth depending on tonnage: by‑law 20.
• Ensure cargo handling is done by crew or persons employed/provided by the Company unless Marine Supervisor permits otherwise; load/unload only at approved places; use Company tugs/lines launches/work boats where required: by‑law 21.
• Submit manifests and amended manifests in duplicate and in English, certified by the master: by‑law 54.
• Produce certificate of registry on demand: by‑law 49.
• Close hatch covers on completion and when directed: by‑law 56.

Safety duties and prohibitions

• No planting of naked lights, no firing/explosive signals without permission, and explosives must not be within 1 km of the berth area unless approved by Chief Inspector and Harbour Master: by‑laws 26-29.
• Prohibition on depositing matter into water except at places designated by Harbour Master; prohibition on depositing matter on jetty without written permission: by‑laws 22-23.
• Restriction on use or tampering with hydrants, fire alarms and life‑saving appliances, unless in fire or saving life and then only as approved: by‑laws 25, 33, 38.

Financial duties and Company collection rights

• Joint and several liability of owner, master and agent for dues; all dues payable to the Company and recoverable in court (civil right to sue): by‑law 46(1)-(2).
• Payment required before vessel leaves, though the Company may accept a written guarantee in Schedule 1; absent such guarantee, the Marine Supervisor may detain the vessel until dues are paid: by‑law 46(3)-(4).
• Consignee and consignor liable where owner/master/agent fail to pay (secondary liability): by‑law 47.
• Prescribed tonnage, entry and annual charges (Schedule 2), towage fees (Schedule 3), lines launch/work boat fees and rates for linesmen, mooring lines and pilotage (Schedules 3 and 6). Minimums and cancellation charges are specified for some services.

Company rights and operational powers

• Grant or refuse permissions for berthing, repairs, deposits, building, embarkation, vehicle access, and other activity; impose conditions on permissions (by‑laws 4, 8, 16, 18, 23, 33, 39, 44).
• Close jetty or part of it by notice and prohibit entry (45).
• Move unattended motor vehicles or those failing to comply with directions (39(2)).
• Require use of tugs, lines launches or work boats provided by or on behalf of the Company, and charge accordingly (21(3), 52(4), 53(2)).
• Detain vessel until dues are paid (46(4)).
• Sue to recover dues in any competent jurisdiction (46(2)).
• Impose load limits for jetties and enforce them (39(3)).

Harbour Master statutory primacy

• Directions of the Harbour Master under the Shipping and Pilotage Act 1967 prevail over by‑law permissions and obligations where a conflict arises; masters need not comply with Company permission if doing so would fail to comply with a Harbour Master direction (by‑laws 5 and 19).
• Harbour Master involvement is also required for pilot appointment and direction (by‑law 3 definition of Harbour Master; Sch. 6 pilotage charges indicate pilot services occur in practice).

Contractual conditions when using Company services

• Towage and related services are governed by Schedule 5 which sets out contractual conditions: the hirer (master, owner or agent) bears indemnities (Sch. 5 cl. 3), the crew of tugs become servants of the hirer while towing (Sch. 5 cl. 2), the Company may subcontract (Sch. 5 cl. 5) and liability is limited except for want of reasonable care to make the tug seaworthy (Sch. 5 cl. 3).

Other rights and privileges

• Rebates and exemptions: the Company may exempt vessels from dues in narrowly specified circumstances (vessels of war or Crown not engaged in trade, vessels landing sick persons) and may grant rebates when vessels occupy a berth in distress or for repairs (by‑law 50, 51). These are discretionary Company rights.

Taken together, the duties combine strict operational rules with financial impositions and contractual risk allocations. The Company exercises a mixture of regulatory gatekeeping, commercial pricing and contract formation within the berth area while statutory harbour authority retains navigational primacy.

The by‑laws provide a mix of enforcement mechanisms built around civil rights, operational controls and contract terms rather than an explicit schedule of criminal fines or enumerated penalties within the text. The following enforcement mechanisms and practical penalties are set out in the instrument itself.

Civil recovery and detention

• Civil recovery: the Company may sue for and recover dues in any court of competent jurisdiction (by‑law 46(2)). This is a standard civil remedy that allows the Company to commence legal proceedings against liable parties (owner, master, agent, consignee or consignor as applicable) to recover unpaid charges and indemnities. The text does not prescribe statutory interest rates or filing procedures; these will be managed under applicable civil procedure rules.
• Detention: in the absence of an accepted written guarantee in the prescribed form, the Marine Supervisor may detain the vessel until dues are paid (by‑law 46(4)). Detention is a practical enforcement tool that restricts the vessel from departing and therefore creates a strong commercial pressure to pay. The by‑laws do not specify alternative remedies such as sale or arrest within admiralty; they give the Marine Supervisor a direct operational power to detain until payment.

Operational enforcement and powers of Company officers

• Moving vehicles and removing persons: the Marine Supervisor or other authorised officer may move unattended motor vehicles or those whose drivers have failed to comply with directions (39(2)); and the Marine Supervisor and other officers can prevent or remove intoxicated, idle or disorderly persons (40). These powers effect immediate control of the berth installations and approaches.
• Closure of jetty and exclusion: the Company may close a jetty or part of it by notice and thereby prohibit entry without written consent (45). Restricting public and commercial access is a direct enforcement mechanism for safety or operational reasons.
• Requiring use of Company services: the Harbour Master or the Marine Supervisor may require the master of a vessel being berthed or unberthed to engage tugs provided by or on behalf of the Company and to use lines launches or work boats supplied by the Company; failure to comply would likely preclude berthing or safe operations (52(4), 53(2), 21(3)). This is both a safety enforcement mechanism and a commercial one, effectively compelling use of Company services and the associated charges.

Contractual indemnities and risk allocation

• Schedule 5 imposes broad indemnities on the hirer and materially limits the Company’s liability for death, injury, loss or damage occurring whilst towing or arising out of acts related to towing, except where the hirer proves want of reasonable care to make the tug seaworthy (Sch. 5 cl. 3). Those clauses shift enforcement stakes into contract and indemnity claims: the Company can seek indemnity for costs, and the hirer assumes a heavy financial burden for incidents in specified categories. Such contractual provisions are enforceable in civil courts to the extent permitted by general contract and maritime law.

Administrative sanctions implicit in permissions

• Many prohibitions are framed in mandatory language ("shall not") and tied to permission requirements, for example restricted berthing (4), repairs (8), deposit of matter (23), and use of naked lights (29). The practical sanction for breach of a permission requirement is likely operational: refusal of permission, removal from the berth, or other operational restrictions by the Marine Supervisor. The by‑laws themselves do not set out fines or criminal penalties for these breaches; their enforcement therefore depends on the Company’s operational measures and civil remedies.

Absence of express criminal penalties

• The by‑laws do not set out specific monetary fines or criminal offence provisions for most contraventions. Where the text uses "shall not" it does not itself create an explicit penal sanction within the by‑laws. That means enforcement will be primarily civil (recovery of dues, contractual indemnities) and administrative (detention, closure, refusal to permit operations), and any criminal liability for particular conduct would need to be found in other applicable statutes (for example navigation or environmental offences) rather than the by‑laws themselves. The by‑laws do invoke other statutes for specific domains (Explosives and Dangerous Goods Act 1961), where statutory offences and penalties may apply.

Practical enforcement mechanisms not formalised

• The Company’s ability to detain vessels until payment, move vehicles, close jetties, refuse permissions and require the use of its own services provides strong operational incentives to comply. These are enforced at the point of service: denial of berth use, denial of tug or lines launch services, or physical detention. This can have immediate commercial consequences (delays, demurrage, inability to load or trade) that function as effective penalties in practice, although the instrument does not list statutory fines.

Overall, the by‑laws rely on civil remedies, contractually imposed indemnities and operational gatekeeping powers vested in the Company and its officers for enforcement, with the Harbour Master’s statutory directions providing an external enforcement overlay where navigational safety requires it. The absence of an internal penal schedule means enforcement will ordinarily be through commercially coercive measures (detention, refusal of service, contractual claims) and through resort to courts for recovery of unpaid dues.

The by‑laws are expressly designed to operate alongside several other statutes and regulations; the instrument cross‑references statutory authorities and defers in areas to statutory officers. The principal external laws and instruments the by‑laws interact with, together with the mechanics of that interaction as set out in the text, are described below.

Shipping and Pilotage Act 1967

• Harbour Master and pilot powers: the by‑laws define "Harbour Master" and "pilot" by reference to section 4 of the Shipping and Pilotage Act 1967 (by‑law 3). Two express provisions make the Harbour Master’s directions paramount. By‑law 5 states that a master need not comply with Company permissions under by‑law 4 if doing so would entail failing to comply with a direction of the Harbour Master under the Shipping and Pilotage Act 1967. By‑law 19 reiterates that the Harbour Master’s direction is paramount. Practically, this means navigation and pilotage decisions arising under the Shipping and Pilotage Act override Company permissions and operational directions, preserving statutory maritime safety authority.

Explosives and Dangerous Goods Act 1961

• Chief Inspector and licensing: the by‑laws reference the Chief Inspector as defined by the Explosives and Dangerous Goods Act 1961 (by‑law 3). By‑law 26 requires permission of the Chief Inspector and the Harbour Master for vessels carrying explosives to enter or lie within 1 km of the jetty and berth area. By‑law 27 requires the Marine Supervisor to be satisfied an inflammable cargo is imported under authority of a licence or permit granted by the Chief Inspector. These cross‑references bring statutory licensing, inspection and permit regimes into the Company’s operational controls for hazardous substances and mean that statutory obligations and offences under the Explosives Act remain applicable.

Corporations Act 2001 (Commonwealth)

• Definition of related corporation: the term "related corporation" is given its meaning by reference to section 50 of the Corporations Act 2001 (by‑law 3). This affects who is excluded from certain obligations (e.g. "owner" excludes the Company or a related corporation for some purposes) and clarifies the corporate relationships relevant to dues and exemption provisions. It ensures the by‑laws align with Commonwealth corporate definitions when identifying parties connected to the Company.

W.A. Marine (Hire and Drive Vessels) Regulations 1983

• Registration of small craft: by‑law 48(4) ties the annual charge in Schedule 2 Part 3 to tugs, lighters, lines launches and launches "registered under the W.A. Marine (Hire and Drive Vessels) Regulations 1983." This references state regulatory thresholds for small craft registration and fixes the set of craft subject to the annual charge.

Mining Acts and mineral lease

• The jetty and berth area is defined as that part of Mineral Lease 245SA issued under the Mining Act 1904 (by‑law 3). The notes indicate the Mining Act 1904 has been repealed and replaced by the Mining Act 1978 (and later iterations), but the by‑laws anchor their territorial jurisdiction to the mineral lease area. This ties the by‑laws to land tenure and mining lease boundaries and means rights and interests arising from the mineral lease may bear on the Company’s operational control.

General civil and maritime law

• Contract and tort overlay: the by‑laws specify contractual conditions (Schedules 1, 5, 6) and impose duties that will sit alongside general rules of contract, tort and admiralty law. For instance, Schedule 5’s indemnities and limitations of liability will be interpreted and enforced under contract and maritime law principles. The instrument does not displace statutory rules on admiralty claims, salvage or maritime liens, although it does include a specific non‑application statement that Schedule 5 conditions do not apply to claims by the Company for salvage services or services in the nature of salvage (Sch. 5 cl. 3).

Environmental and local government law

• The by‑laws prohibit deposit of matter into water and on jetty installations except with permission (by‑laws 22, 23), and they require screening of openings to prevent discharge (24). While the by‑laws do not directly cite environmental statutes, these obligations will interact with applicable environmental protection, pollution and waste laws at State and Commonwealth level; compliance with those regimes will be necessary in addition to the by‑laws’ operational permissions.

Administrative law principles

• Delegation and discretion: the by‑laws create discretion in private officers (Marine Supervisor) and reference statutory officers (Harbour Master and Chief Inspector). Administrative law principles governing reasonableness, procedural fairness and the exercise of public power could be relevant where the Marine Supervisor’s decisions are susceptible to judicial review , but the by‑laws are largely private regulatory rules and the Marine Supervisor is a Company officer. Where the Harbour Master’s exercise of direction is at issue, statutory administrative law constraints would apply.

In sum, the by‑laws operate as an operational code tied into statutory port safety and hazardous goods regimes and as a commercial charging and contract template that overlays and interacts with broader civil, maritime and environmental laws. The text explicitly defers to Harbour Master directions under the Shipping and Pilotage Act and to Chief Inspector permissions under the Explosives Act, and references corporate and vessel registration definitions in Commonwealth and state instruments, binding the by‑laws into the larger regulatory tapestry.

The by‑laws include an explicit compilation table and amendment annotations that record the legislative history up to the reprints included in the source text. The relevant entries and observable mechanical changes are as follows.

Original instrument and commencement

• The Evaporites (Lake MacLeod) (Cape Cuvier Berth) By‑laws 1991 were published in the Western Australian Government Gazette on 25 October 1991 (p. 5509-28) and commenced on that date (Compilation table). That instrument constituted the foundational operational by‑laws governing Cape Cuvier berth installations.

Amendments and reprints

• Amendment By‑laws 2001 (Gazette 14 June 2002 p. 2795-6) are recorded in the compilation notes. The by‑law 3 definition list is marked as having been amended at Gazette 14 June 2002 (by‑law 3 amended). The source text includes a notation that by‑law 3 was amended (and the compilation contains a reprint as at 12 March 2004 that incorporates this amendment). The text does not identify the precise wording change made in 2002 beyond the annotation; the compilation note indicates by‑law 3 as amended. Users needing the precise amendment wording should consult the 14 June 2002 Gazette notice.

• Amendment By‑laws 2011 (Gazette 29 July 2011 p. 3147-50) are recorded with commencement particulars: items 1 and 2 commenced 29 July 2011 (see by‑law 2(a)) and the remaining by‑laws commenced 30 July 2011 (by‑law 2(b)). The source annotates that Parts of the Schedules were amended by the 2011 instrument: for example, Schedule 2 (Part 1 and Part 2) and Schedule 3 and Schedule 6 entries carry a note "[amended: Gazette 29 Jul 2011 p. 3147‑50]." Specific amendments in 2011 that are visible in the current text include updated monetary figures and new pilotage charges: Schedule 2 Part 1 and Part 2 carry amendments; Schedule 3 clause 1 is annotated as amended and shows an updated table of tug charges; Schedule 6 clauses (lines launch fees, linesmen rates, mooring lines charges, and inserted clause 4A for pilotage charges) show updated monetary amounts and the insertion of pilotage fees (Sch. 6 cl. 4A) added on 29 July 2011. The compilation table records the 2011 instruments and their commencement dates.

Reprint

• Reprint 1: The Evaporites (Lake MacLeod) (Cape Cuvier Berth) By‑laws 1991 as at 12 March 2004 is recorded as incorporating amendments up to that date (Compilation table). The reprint brings together the original 1991 instrument and the 2002 amendments into a consolidated text as of March 2004. Subsequent 2011 amendments are reflected in later compilation notes.

Notes on territorial law changes

• The compilation notes indicate the Mining Act 1904, referenced in the original definition of the jetty and berth area, has been repealed by the Mining Act 1978 (Notes). The by‑laws nonetheless retain a cross‑reference to Mineral Lease 245SA as the territorial anchor. Where the Mining Act or mineral lease boundaries have been altered since these dates, practitioners should check the current mineral lease instruments and the state mining registry for title and boundary changes.

What is not in the history

• The compilation table records amendment Gazette notices and dates but the by‑laws themselves do not include a detailed legislative memorandum or policy paper setting out the objectives of each amendment. The visible amendments are chiefly numeric , tariff and fee updates and the addition of a pilotage charge table (Sch. 6 cl. 4A) in 2011 , and a definitional amendment in 2002. For exact drafting changes, the Gazette notices listed should be consulted.

Practical implication of amendment pattern

• The amendment history shows that the instrument has been maintained primarily by updating charges and certain definitions rather than wholesale structural reform. The 2011 amendments updated fee schedules and added pilotage tariffs, which affect the commercial economics of berth use. The existence of recurrent amendments to commercial schedules signals that the by‑laws are used as a living tariff instrument, with monetary figures periodically adjusted by Gazette notice.

For practitioners and compliance officers, this amendment history indicates two practical steps: check the current Gazette and state compilation for the latest fee schedules and read the specific Gazette instruments identified in the compilation table when assessing historical wording or the legal effect of a past transaction.

The by‑laws as provided do not include any case law, reported decisions or explicit references to litigation arising under them. The text itself names no judicial determinations, and the compilation notes do not list judicial appeals or court decisions. Therefore, within the source material there is no recorded litigation history to summarise.

What that absence implies in practical terms

• No decided cases are cited in the by‑laws themselves, so users must search external databases, law reports, and tribunal records to locate any disputes that arose under these by‑laws (for example claims for unpaid dues, detention disputes, or disputes about the exercise of the Marine Supervisor’s discretion). The absence of jurisprudence in the instrument means there is no immediate statutory interpretation guidance available within the text on contested provisions such as the scope of the Marine Supervisor’s discretion, the lawfulness of detention, or the enforceability of Schedule 5 indemnities.

Potential avenues for litigation (based on the by‑laws’ content)

• Contract and indemnity disputes: Schedule 5 contains indemnities and limited liability clauses for towage services; disputes may arise over their construction or applicability, and whether the hirer has established the narrow exception for want of reasonable care. Such disputes would likely be adjudicated in civil courts or admiralty proceedings.
• Detention and lien disputes: by‑law 46(4) permits detention of a vessel pending payment of dues. Disputes may arise about lawfulness of detention, the adequacy of notice, calculation of dues, or rights of lien or arrest under maritime law. Parties could seek injunctive relief or damages for unlawful detention in an appropriate jurisdiction.
• Administrative law challenges: where a Harbour Master or Marine Supervisor direction is alleged to be unreasonable or procedurally unfair, and if those decisions are susceptible to public law challenge, parties might seek judicial review. This contingency depends on whether the decision is a public law exercise (Harbour Master) or a private contractual decision (Company Marine Supervisor). The by‑laws themselves do not clarify the public/private character of all decisions.
• Recovery actions: the Company’s right to sue for dues (46(2)) may give rise to ordinary debt recovery proceedings. Consignees and consignors might be sued under by‑law 47 where owners default.

Recommendation for legal research

• Because the instrument does not supply litigation examples, any practitioner needing to advise on likely judicial outcomes should conduct targeted searches in State and Federal court databases, law report services, maritime law digests, and tribunal decisions for disputes referencing the Cape Cuvier by‑laws, Mineral Lease 245SA or the Company. Where disputes involve Harbour Master directions, also search authorities under the Shipping and Pilotage Act 1967 and for incidents involving explosives consult cases under the Explosives and Dangerous Goods Act 1961.

In short, the source includes no litigation history. Practitioners must look to external case law and tribunal decisions for precedents interpreting these by‑laws or adjudicating disputes that arise from their enforcement.

The by‑laws contain several provisions and drafting features likely to create practical pitfalls for masters, owners, agents, consignees, contractors and insurers. These are concrete operational and legal risks that merit close attention.

1. Broad discretionary permissions vested in the Marine Supervisor and Company officers (by‑laws 4, 9, 16, 18, 23, 36, 39, 45).

• Practical effect: many routine actions (berthing, repairs, deposits, embarkation, erection of structures, posting notices, vehicle access) require prior permission. The Marine Supervisor’s discretion controls access to services and physical space. Failure to obtain permission can block loading/unloading or lead to operational disruptions.

2. Harbour Master directions are paramount but may conflict with Company permissions (by‑laws 5 and 19).

• Practical effect: masters must be alert for Harbour Master orders which can override the Company’s permission regime. Operational planning must accommodate potential Harbour Master instructions, requiring coordination between the master, the Company and statutory harbour authorities.

3. Joint and several liability for dues (by‑law 46(1)) with attendant detention power (46(4)).

• Practical effect: owners, masters and agents are jointly and severally liable for dues; consignees/consignors can be pursued where the primary parties default (47). The Company’s right to detain a vessel until payment can create immediate liquidity pressures and commercial delay. The prescribed guarantee (Sch. 1) must be in correct form to avoid detention.

4. The Company may compel the use of its own tugs, lines launches and work boats (21(3), 52(4), 53(2)).

• Practical effect: even where third‑party providers exist, the Company can require use of its services. This concentrates revenues and can raise costs to ship operators. Subject to maritime safety considerations, masters may have limited choice in selecting towage and related services.

5. Contractual risk shift in Schedule 5 (towage conditions): broad indemnities and liability limitation (Sch. 5 cl. 3).

• Practical effect: hirers bear heavy liability for death, injury, loss or damage arising during towing, with limited scope for claims against the Company except where want of reasonable care to make the tug seaworthy is proved. This alters insurance risk allocation; hirers should verify insurance coverage for indemnities and contractual exposures.

6. Lack of express penal fines or criminal sanctions in the by‑laws.

• Practical effect: non‑compliance consequences are mainly operational and civil (detention, refusal of access, civil suits for dues) rather than statutory fines. Parties may mistakenly assume criminal penalties apply; in many cases the remedy is a civil action by the Company. For environmental or explosives offences, separate statutes may impose criminal penalties.

7. Minimum charges and pricing tables creating step costs (Schedule 2 Parts 1 and 2; Sch. 3 and 6 rates).

• Practical effect: minimums (e.g. 12‑hour minimum berth charge, $1,200 minimum per entry) and stepwise tug tariffs (Sch. 3) can make small or short operations disproportionately expensive. Commercial planners need to factor these fixed and minimum charges into voyage and cargo economics.

8. Manifests and documentary formalities are strict (by‑law 54).

• Practical effect: masters must deliver manifests in duplicate, certified, and in English prior to loading/unloading. Amendments must be certified and accompanied by reasons. Non‑compliance can delay unberthing or expose parties to claims.

9. Ambiguity around enforcement limits (detention vs. arrest, liens, sale).

• Practical effect: the by‑laws give detention power but do not specify procedures for arrest or lien enforcement in admiralty. Parties disputing detention or the calculation of dues must seek court remedies; the practical effect is that operational disruption may be resolved only through litigation or negotiation.

10. Safety and hazardous goods cross‑reference to external authorities (by‑laws 26-27).

• Practical effect: carriage and handling of explosives and inflammable cargo require Chief Inspector approvals and compliance with the Explosives and Dangerous Goods Act 1961. Non‑compliance may give rise to separate regulatory sanctions and operational prohibitions beyond the Company’s by‑laws.

11. Load limits and vehicle management enforced by Company notices (by‑law 39(3)).

• Practical effect: masters and shippers must comply with posted load limits and parking restrictions. The Marine Supervisor can move vehicles and enforce parking rules; failure to plan for restricted cargo movement or vehicle staging can cause delay.

12. Rights of consignees and consignors to be pursued (47).

• Practical effect: parties contracting with shipowners may unexpectedly inherit liability for unpaid port dues if the primary party defaults. Commercial contracts should address these contingent liabilities and include express indemnities or payment security.

13. Lack of local case law in the instrument itself makes outcome prediction harder.

• Practical effect: because the by‑laws do not cite decisions, parties lack textual guidance on how courts treat detention, the Marine Supervisor’s discretion, or Schedule 5 indemnities. Practitioners should obtain jurisdictional case searches before advising on contested enforcement.

In sum, the principal "gotchas" are concentrated in the by‑laws’ grant of broad operational discretion to the Company, the Company’s capacity to compel use of its services and to detain vessels for non‑payment, the shift of risk via contractual indemnities for towage, and the presence of minimum and step charges that can make small operations costly. Operational planning, contractual protections and insurance reviews are needed to manage these concrete risks.

Compliance under these by‑laws requires proactive administrative, operational, contractual and insurance measures. The checklist below sets out concrete, source‑grounded steps for masters, owners, agents, consignees, contractors and insurers who will operate in the Cape Cuvier jetty and berth area.

1. Seek permissions in advance and document them

• Before berthing or unberthing, obtain prior permission of the Marine Supervisor where required (by‑law 4). For repairs while at anchor or occupying a berth, notify the Harbour Master and obtain written permission (by‑law 8). For embarkation/disembarkation, obtain Marine Supervisor permission or follow Harbour Master directions (by‑law 18). Keep written records of all permissions and any conditions attached.

2. Coordinate with the Harbour Master for navigational instructions

• Monitor Harbour Master directions under the Shipping and Pilotage Act 1967 and ensure operational plans comply, since Harbour Master directions prevail over Company permissions (by‑laws 5 and 19). Liaise early with harbour authorities for pilotage and safety requirements.

3. Prepare vessel documentation and manifests correctly and timely

• Produce certificate of registry on demand at berthing time (49). Deliver two legible, certified English copies of the manifest before loading/unloading begins, and lodge amendments in duplicate with certified reasons prior to unberthing (54). Use the manifest process to anticipate dues and prepare payment or guarantee documentation.

4. Anticipate and secure payment of dues or provide the prescribed guarantee

• Calculate applicable tonnage, entry and service charges using Schedules 2-6 (e.g. berth dues per tonne per 4 hours, minimums, tug charges in Sch. 3). Where payment cannot be made before departure, provide the Company with a written guarantee in the exact form set out in Schedule 1 to avoid detention (46(3), Sch. 1). Ensure the guarantee is properly executed and witnessed per the Schedule’s format.

5. Budget for minimum charges and potential compulsory service use

• Factor in minimum charges (e.g. 12‑hour minimum berth charge, $1,200 minimum per entry, annual $300 charge for certain boats) and the possibility that the Company may require use of its tugs, lines launches or work boats and associated personnel (21(3), 52(4), 53(2)). Plan for cancellation charges (Sch. 3 cl. 4, Sch. 6 cl. 1).

6. Comply with safety, ballast, readiness and watchkeeping obligations

• Keep sufficient ballast (14), maintain vessel in seagoing condition and ready to put to sea without delay (15), and ensure watchmen or persons remain on board per tonnage rules (20). Provide required gangways and safety appliances as directed by the Harbour Master (9). Ensure hatch covers are closed when directed (56).

7. Adhere strictly to hazardous goods rules and licensing

• If carrying explosives or inflammable cargo consult with and obtain necessary permits or licences from the Chief Inspector under the Explosives and Dangerous Goods Act 1961 before entering the jetty and berth area; obtain Harbour Master permission where required (26-27). Ensure cargo manifests and handling comply with any Chief Inspector conditions.

8. Use Company providers where required and accept contractual conditions

• Where the Marine Supervisor requires the services of Company tugs or launches, engage them and accept the contractual conditions in Schedule 5 and Schedule 6. Review Schedule 5’s indemnities and liability limitations and ensure insurance covers the indemnity and associated exposures (Sch. 5 cl. 3). For lines launches and work boats, note rates and cancellation fees (Sch. 6 cl. 1).

9. Manage vehicle access and on‑jetty operations per Company notices

• Obtain prior permission before driving a motor vehicle onto the jetty (39(1)). Comply with parking areas, standing restrictions, speed limits and 20‑metre stand‑off distances from inflammables. Be aware that the Marine Supervisor may move unattended vehicles (39(2)) and that load limits are posted at the abutment (39(3)).

10. Control cargo handling personnel and storage locations

• Ensure cargo is only handled by vessel crew or persons employed/provided by or on behalf of the Company unless Marine Supervisor permission allows otherwise (21(1)). Conduct loading/unloading and stacking only in areas previously approved by the Marine Supervisor (21(2)). Comply with Company directions on loading supervision and storage to avoid interference with operations.

11. Avoid prohibited acts and secure approvals for exceptions

• Do not fish, erect structures, post bills or tamper with life‑saving appliances without prior permission (29, 38, 43, 44, 37). If activities might contravene by‑laws, obtain prior written permission from the Marine Supervisor.

12. Insure for contractual and indemnity exposures

• Review hull, P&I and third‑party liability insurance to ensure cover for the indemnities and limitations in Schedule 5, and to cover potential detention or additional port charges. Because Schedule 5 shifts risk to the hirer, confirm that insurers will accept the contractual exposure and that cover limits match potential claims under indemnities.

13. Document disputes and preserve rights to challenge undue detention or charges

• If detained or charged, document communications, invoice calculations and any discrepancies. Where the Marine Supervisor detains a vessel under by‑law 46(4), seek timely legal advice about court remedies and the calculation of dues, and consider injunctions or urgent applications in the appropriate court if detention appears disproportionate or procedurally flawed.

14. Contracting and commercial precautions with counterparties

• Given consignee/consignor potential liability under by‑law 47, include express clauses in bills of lading, charterparties and sale contracts addressing port dues, payment mechanics, who will provide guarantees and allocation of liability for unpaid dues. Require counterparties to indemnify for port charges where appropriate.

15. Maintain operational coordination protocols with the Company and statutory authorities

• Establish pre‑arrival reporting, manifest lodgement, and communications protocols with the Marine Supervisor and the Harbour Master to ensure permissions, pilotage, and towage are scheduled and confirmed in advance. Use Schedule 4 for towage applications where required.

Following these practical steps, grounded in the specific by‑laws’ provisions cited above, reduces the risk of detention, delay and unexpected costs, and ensures operations align with both Company permissions and statutory harbour authority directions.