Iron Ore (Robe River) Cape Lambert Ore and Service Wharves By-laws 1995

The by-laws principally affect the owners, masters, and agents of vessels using the Company’s ore wharves or service wharf at Cape Lambert. They impose duties on masters in relation to the safety and navigation of their vessels, the loading and unloading of cargo, and compliance with directions from the Marine Manager (by‑laws 5, 23, 24). Owners are jointly and severally liable with masters and agents for damage to company property, dues, rates, and charges (by‑laws 6, 84). Agents who sign application forms for towage are deemed authorised by the master and owner (Schedule 1, Form 1). The State is specifically affected as a user of the service wharf, with its own provisions for approved cartage contractors, indemnities, and payment of wharfage charges (Part 4). Contractors and subcontractors of the Company are beneficiaries of extensive limits on liability and indemnities (by‑laws 13, 14). Crew members of vessels are affected by provisions restricting access, prohibiting smoking and loitering, and requiring watchmen (by‑laws 34, 37, 76). The general public is affected by provisions restricting access to wharves, requiring passes, prohibiting fishing from substructures, and barring children under 12 unless accompanied by an adult (by‑laws 34, 79, 80). The Marine Manager and other company officers are empowered to give directions, remove unauthorised persons, and detain vessels for non‑payment of dues (by‑laws 75, 85). The by-laws also affect tug operators, as they prescribe the rates and conditions under which tug services are provided and restrict the use of tugs not authorised by the Company (by‑laws 89-91). Ultimately, anyone entering upon or using the Company’s marine facilities is subject to the by-laws, with breaches attracting penalties.

The by-laws impose a wide array of duties on masters, owners, and agents. The master is solely responsible for the safety and proper navigation of the vessel, notwithstanding any assistance or advice given by the Company (by‑law 5). The master must obtain permission from the Marine Manager before berthing or leaving a berth and must comply with all directions regarding berthing, mooring, and gangways (by‑laws 23, 24). The master must have the vessel ready to work cargo before berthing, keep sufficient cargo or ballast on board for safety, and provide gangways, lights, and safety nets (by‑laws 27, 28, 29, 33). The master must not work propellers while moored, must keep the vessel prepared to sail at short notice, and must ensure that boilers and equipment are not immobilised without consent (by‑laws 49, 50). Discharge of rubbish, oil, or greasy materials is prohibited, and the master is liable for pollution clean‑up costs (by‑laws 39, 40, 41). The master must ensure that a watchman is on board between sunset and sunrise (by‑law 37). For oil vessels, additional duties include displaying flag and light, securing tanks, providing communication during pumping, and taking fire precautions (Part 7, by‑laws 57-71). For explosives vessels, the master must obtain permission, display flag and light, and comply with the Explosives and Dangerous Goods Act 1961 (Part 10). The Company, for its part, enjoys extensive rights: it may limit its liability for goods to declared values and in any event to $100 or $1,000 per package (by‑laws 8, 9). The Company is not liable for strikes, acts of God, war, or civil commotion (by‑law 12). Its total liability for any consequences of owning or operating the facilities is capped at $2,000 (by‑law 13). The Company is indemnified by the owners against all loss, damage, death, or injury arising from the use of its facilities, even if caused by the Company’s own negligence (by‑law 14). The Company may detain a vessel for non‑payment of dues (by‑law 85). The State, when using the service wharf, must indemnify the Company against loss of or damage to its cargo (by‑law 20).

The by-laws create numerous offences, most of which are committed by the master when contravening a specific duty. For example, berthing without permission, failing to comply with the Marine Manager’s directions, obstructing an officer, failing to provide gangways or safety nets, discharging rubbish or oil, working propellers while moored, or cleaning boiler tubes in a prohibited manner are all offences (by‑laws 23, 24, 25, 29, 33, 39, 40, 50, 47). Similar offence provisions apply to oil vessels and explosives vessels (by‑laws 57-71, 98-107). The general penalty for an offence not expressly provided for is a fine not exceeding $100 (by‑law 111). This low penalty reflects the by-laws’ origin as subordinate legislation, but the real enforcement teeth lie in the Company’s civil remedies: the power to detain a vessel until dues are paid, the right to recover costs of removing an obstructing vessel, and the broad indemnities that shift liability onto vessel owners and masters (by‑laws 45, 85). The by-laws also provide that the Company may take action to minimise pollution and recover costs (by‑law 41). The Marine Manager and company employees may remove any unauthorised or intoxicated person from a wharf (by‑law 75). In addition, by contravening a by-law, a person may also breach the underlying Iron Ore (Robe River) Agreement Act 1964, which could lead to contractual consequences. The by-laws themselves do not specify a court for enforcement, but the general penalty is a fine and presumably enforced in a local court of summary jurisdiction. The by-laws also provide for joint and several liability of master, owner, and agent for damage to cargo or electrical connections caused by water used on a vessel (by‑law 43). The Company may also recover the expense of making good damage to pipelines or conveyer belts if the master fails to do so (by‑law 7).

The by-laws operate within a broader legislative framework. They are made under the Iron Ore (Robe River) Agreement Act 1964, which gives them legal force. They expressly incorporate and refer to several other statutes and regulations. The Ports and Harbours Regulations made under the Shipping and Pilotage Act 1967 are referenced for the definition of tonnage, for requirements of compulsory pilotage, and for the regulation of pilots (by‑laws 4, 10, 96A-96E). The Harbour Master appointed under the Shipping and Pilotage Act has authority that overrides the Company’s Marine Manager where there is a conflict (by‑law 24(2)). The Navigation Act 1912 (Commonwealth) is referenced in requiring that vessels not be loaded beyond the applicable load line (by‑law 28(2)). The Explosives and Dangerous Goods Act 1961 (WA) is referenced extensively in Part 10, which requires that explosives be packed, marked, and handled in accordance with that Act (by‑laws 100, 104). The definition of explosives classes and divisions follows the Second Schedule to that Act (by‑law 109). The Marine and Harbours Act 1981 is relevant because the by‑laws apply to the area of lease M644282 granted under that Act and the Jetty Licences (by‑law 3). The by‑laws also incorporate the United Kingdom Standard Conditions for Towage and Other Services (Revised 1983) as the conditions of towage (Schedule 1, Division 4). These conditions allocate risk between the hirer and the tug owner, and they prevail over the by-laws only to the extent of any inconsistency (by‑law 90(3)). The by‑laws also preserve the benefit of any contractual provisions that may be more favourable to the Company (by‑law 15). The by‑laws do not exclude any benefit conferred by a contract made pursuant to them (by‑law 15). Importantly, the by‑laws state that the relationship between the Company and vessel owners/masters in respect of towage is based in public law, not contract (by‑law 90(4)-(5)). This means that the by‑laws themselves create the legal relationship, not a private agreement.

The by-laws were originally gazetted on 23 December 1994 and came into operation on 1 January 1995 (by‑law 2). They have been amended five times. The Iron Ore (Robe River) Cape Lambert Ore and Service Wharves Amendment By‑laws 1995 (gazetted 31 March 1995) inserted by‑laws 96A to 96E dealing with pilot charges, pilotage to or from boarding ground, detained pilots, second pilots, and pilots on moored or berthed vessels. The Iron Ore (Robe River) Cape Lambert Ore and Service Wharves Amendment By‑laws 2002 (gazetted 13 May 2003) amended rates in Schedule 1. The Iron Ore (Robe River) Cape Lambert Ore and Service Wharves Amendment By‑laws 2012 (gazetted 15 June 2012) amended the definitions (by‑law 4) and the berthage rate in Schedule 1, increasing it. The Iron Ore (Robe River) Cape Lambert Ore and Service Wharves Amendment By‑laws 2015 (gazetted 8 January 2016) made extensive changes: it amended the application clause (by‑law 3) and the definitions (by‑law 4) to update references to the Marine and Harbours Act 1981; it amended the wharf definition; it amended by‑laws 42, 43, 89, 90, 93, and 97; and it updated most of the rates and charges in Schedule 1, including berthage, towage, wharfage, miscellaneous charges, and pilotage charges. The Iron Ore (Robe River) Cape Lambert Ore and Service Wharves Amendment By‑laws 2018 (gazetted 2 November 2018) amended the towage rates for ore wharves (Schedule 1, Part 2, Division 1) and the pilotage charge table (Part 4A). The compilation notes indicate that the Department of Marine and Harbours no longer exists and that the principal department assisting the Minister in the administration of the Marine and Harbours Act 1981 is the Department of Planning and Infrastructure.

The by-laws themselves record no judgments or court decisions. They are subordinate legislation, and as such their interpretation and application have not been the subject of reported litigation cited in the text. The only reference to legal proceedings is the by‑laws’ provision that the Company may recover costs in a court of competent jurisdiction for damage to pipelines or conveyer belts (by‑law 7(2)), and that owners may recover money paid for damage from the master in a court of competent jurisdiction (by‑law 6(3)). These provisions contemplate litigation but do not record any cases. Similarly, the towage conditions in Schedule 1 incorporate the United Kingdom Standard Conditions for Towage (1983), which have been the subject of litigation in other jurisdictions, but no case law is mentioned in the by‑laws. The by‑laws also preserve the right to limit liability, which may be relevant under the Limitation of Liability for Maritime Claims legislation, but again no specific case is referenced. Any litigation that has occurred would arise from disputes over damage to berths, non‑payment of dues, or personal injury, but the text provides no details. The absence of litigation history in the by‑laws themselves does not mean there has been none; it simply means the by‑laws do not cite any. Practitioners would need to search court databases for decisions interpreting these by‑laws, particularly decisions of the Western Australian courts on the application of the broad indemnity clauses and the limitation of liability provisions.

Several provisions in the by‑laws create traps for the unwary. The master is “solely responsible” for the safety and proper navigation of the vessel, regardless of any assistance or advice from the Company (by‑law 5). This means that if the Marine Manager gives a direction that leads to a collision, the master still bears the risk. The Company is not liable for any consequences of owning or operating the facilities beyond $2,000 (by‑law 13). For goods lost or damaged, the Company’s liability is capped at very low amounts , $100 for valuables, $1,000 per package , unless a higher value is declared (by‑laws 8, 9). Even then, the limit is the cash value at Port Walcott not exceeding the port of shipment value. The Company is entirely indemnified by the owners against all loss, damage, death, or injury arising from the use of the facilities, “irrespective of whether or not such damage, death or injury has been caused or contributed to by the negligence of the Company” (by‑law 14(1)). This is a very broad indemnity that effectively shifts all risk to the vessel owner. Towage is governed by the UK Standard Conditions 1983, which deem the tug master and crew to be servants of the hirer while towing, so the hirer is vicariously liable for their acts (Schedule 1, Div 4, cl 3). The Company is not liable for damage caused by the tug even if due to its negligence, except in very limited circumstances of personal failure to make the tug seaworthy (cl 4(c)). The by‑laws also provide that the application for towage does not create a contractual relationship; the relationship is based in public law (by‑law 90(4)-(5)). This could complicate subrogation claims. Towage rates are payable whether or not the services are used and whether or not the Company can even provide them (by‑law 89(4)). A vessel may be detained by the Marine Manager for non‑payment of dues or breach of a guarantee given on a previous occasion (by‑law 85(4)). The guarantee by agent imposes personal liability on the agent with interest at 10% per annum (Schedule 1, Part 5). The obligation to deliver manifests before discharge of cargo means that failure can expose the master to refusal of discharge (by‑law 95). Pollution costs are recoverable from the vessel, the owners, or the agent without proof of fault (by‑law 41). The definition of “wharf” includes both ore wharves and the service wharf, so provisions that refer to “wharf” (e.g., by‑law 76 on smoking) apply to both, even though Part 4 separately regulates the service wharf.

Masters, owners, and agents must take several practical steps to comply. Before a vessel arrives, the agent should ensure that a guarantee in the form set out in Schedule 1 Part 5 is provided, or a deposit is lodged, to cover estimated berthage, towage, and wharfage charges (by‑law 85). The master must apply to the Marine Manager for permission to berth and must provide at least 48 hours’ notice if intending to load or unload explosives or inflammable goods (by‑laws 23, 54). The vessel must be ready to work cargo before coming alongside , hatches open, gear ready (by‑law 27). While alongside, the master must comply with all directions of the Marine Manager as to mooring, securing, gangways, and safety nets (by‑laws 24, 29, 33). The master must keep a watchman on board between sunset and sunrise (by‑law 37). No rubbish, oil, or greasy material may be discharged into the water (by‑laws 39, 40). Boiler tubes must not be cleaned by ejecting material into the atmosphere, and excessive smoke must be avoided (by‑law 47). For oil vessels, additional compliance steps include: displaying flag “B” by day and red light by night (by‑law 57); keeping tanks closed except when discharging; venting vapours; having telephonic communication during pumping; and not smoking or carrying matches during loading/unloading (by‑laws 58, 60, 62). Ballasting requires prior written permission (by‑law 66). A barricade and watchmen must be in place during loading/unloading (by‑law 71). For explosives vessels, permission to berth must be obtained, the same flag and light shown, and the explosives must be marked and handled in accordance with the Explosives and Dangerous Goods Act 1961 (by‑laws 98-104). All cargo manifests must be delivered to the Company’s office before discharge or departure (by‑laws 95, 96). The master must produce the certificate of registry upon request (by‑law 88). The master must not permit unauthorised persons on the wharf or marine facilities; only authorised entrants with a valid pass may enter (by‑law 34). Vehicles must not be driven on the wharf without written permission and must not approach within 15 metres of flammable goods (by‑law 74). Finally, all persons using the wharf must not smoke, loiter, fish from substructures, or tamper with electric lights or fire fighting equipment (by‑laws 52, 53, 76, 80, 83). Daily compliance with these by‑laws is the responsibility of the master and agent, and failure can result in criminal penalty, civil liability, or detention of the vessel.