Marine Order 35 (Additional safety measures for bulk carriers) 2014

Chapter XII of SOLAS is the core international standard referenced by the Order. It contains regulations on structural strength, stability, loading criteria and other safety measures for bulk carriers. The Order does not reproduce the text of Chapter XII but requires compliance with it as applied from time to time. A reference to “the Administration” in Chapter XII or any IMO resolution or document is taken to mean AMSA, so AMSA has the role of administering decisions that SOLAS otherwise leaves to flag states.

Statement for carrying dry cargoes in bulk is a document that both Australian and foreign vessels must hold in certain circumstances. For a regulated Australian vessel, it means a statement issued by AMSA under section 18 of the Order. For a foreign vessel, it means a statement referred to in IMO Resolution MSC.277(85). The statement is a record that the vessel meets the design and loading conditions appropriate for carrying dry bulk cargoes.

Bulk carrier is not defined directly in the Order. Instead, the Order refers to paragraphs 1.3 and 1.4 of IMO Resolution MSC.277(85) for guidance on the meaning. This imports an international standard that itself cross‑references other IMO instruments, creating an interpretive chain that operators and surveyors must trace.

Date of construction is defined in a relatively broad manner: a vessel is taken to have been constructed when either the keel is laid or when construction identifiable with a specific vessel starts and at least 50 tonnes (or 1% of the estimated total structural mass) is assembled, whichever is earlier. This affects which version of the requirements apply.

Primarily vs occasionally carrying dry cargoes in bulk distinguishes classes of vessel. A vessel primarily carrying dry bulk must comply with Chapter XII in full. A vessel that occasionally carries dry bulk (as described in paragraphs 1.6 and 1.7 of MSC.277(85)) must meet the requirements of those paragraphs and have a statement, but is not subject to the full Chapter XII regime.

Loading restrictions for dense cargoes apply to solid bulk cargoes with a density of at least 1780 kg/m³. A person who intends to ship such a cargo must include that density in any notice given under Marine Order 34 (Solid bulk cargoes) 2007. The master or owner must not load such cargo onto a vessel that is subject to regulation 6 or 7 of Chapter XII if the vessel does not comply with that regulation. Non‑compliance attracts a penalty of 50 penalty units, and the offence is one of strict liability.

IACS Unified Requirements UR S are incorporated by reference for regulated Australian vessels. These cover longitudinal strength in flooded condition, evaluation of allowable hold loading considering flooding, and evaluation of scantlings of corrugated transverse watertight bulkheads. These are not part of SOLAS Chapter XII as such but are technical standards published by the International Association of Classification Societies.

Hull stress monitoring systems and loading instruments are subject to IMO circulars (MSC/Circ.646 and MSC/Circ.836 respectively) but only regulated Australian vessels are required to comply with the specifications if they fit such systems or are required to have loading instruments.

Exemptions and equivalents are available on application to AMSA. An exemption may only be granted if it would not contravene SOLAS. An equivalent may be approved only if it is at least as effective as compliance with the requirement and would not contravene SOLAS. These provisions give operators some flexibility but are constrained by the underlying treaty obligations.

The Order applies to two categories of vessel: regulated Australian vessels (Australian‑flagged) and foreign vessels. This means all bulk carriers entering Australian ports or trading under the Australian flag are within scope. The effects, however, are not uniform between the two categories. Foreign vessels must comply with Division 2 (compliance with SOLAS Chapter XII, statement for carrying dry cargoes where applicable, notification of dense cargo, prohibition on loading dense cargo onto non‑compliant vessels) but are not subject to the additional requirements in Division 3 (construction standards, hull stress monitoring systems, access requirements, loading instruments). Regulated Australian vessels must comply with both Division 2 and Division 3, and also must hold a statement for carrying dry cargoes in bulk issued by AMSA.

The primary duty holders are the master and the owner of the vessel. Under section 13, both are prohibited from loading dense bulk cargo onto a vessel that does not comply with the relevant SOLAS regulation. The penalty applies to both, and it is a strict liability offence. This imposes significant personal risk on masters, who may be under commercial pressure to load cargo while lacking full control over the vessel’s structural compliance. The owner bears the cost of ensuring compliance before the loading occurs.

Shipping companies and charterers are indirectly affected. The compliance costs - including structural upgrades, installation of loading instruments, hull stress monitoring systems and access arrangements - fall on owners, who pass them to charterers through freight rates. The additional requirements for Australian‑flagged vessels create a competitive disadvantage relative to foreign‑flagged vessels trading to Australia, which do not need to meet the same domestic standards. This may incentivise owners to register vessels under foreign flags or to transfer existing Australian‑flagged bulk carriers to other registries, reducing the size of the Australian‑flagged fleet over time. The concentration of benefits (enhanced safety) is diffuse across the public, while the costs (compliance expenditure, lost business) are concentrated on a small number of Australian shipowners.

Classification societies and issuing bodies are involved in approving loading instruments and verifying compliance with IACS requirements. They benefit from the regulatory demand for their services.

Cargo shippers and stevedores are affected by the notification requirement in section 12: if they intend to ship a solid bulk cargo of density 1780 kg/m³ or more, they must include that information in a notice under Marine Order 34. This imposes a modest administrative burden but may create liability if the density is misstated.

Duties:

• Duty to comply with SOLAS Chapter XII: A bulk carrier that primarily carries dry cargo in bulk must comply with Chapter XII (section 10). This is an ongoing operational and structural obligation.

• Duty to hold a statement for carrying dry cargoes in bulk: Vessels that primarily carry dry bulk (with some exceptions) and vessels that occasionally carry dry bulk (constructed after 30 June 2010) must have such a statement (sections 10(2)(d), 11(1)(b), 11(2)(b)). For regulated Australian vessels, the statement is issued by AMSA under section 18. For foreign vessels, it must be a statement as described in IMO Resolution MSC.277(85).

• Duty to notify density of solid bulk cargo: A person who intends to ship a solid bulk cargo with a density of at least 1780 kg/m³ must include that density information in any notice required under Marine Order 34 (section 12).

• Prohibition on loading dense cargo onto non‑compliant vessels: A master or owner must not load a vessel with solid bulk cargo of density at least 1780 kg/m³ if regulation 6 or 7 of Chapter XII applies to the vessel and the vessel does not comply with that regulation (section 13). This is a strict liability offence and also attracts a civil penalty.

• Additional duties for regulated Australian vessels: The owner must ensure that the vessel complies with IACS Unified Requirements UR S17, S20 and S18 (section 14); if the vessel is fitted with a hull stress monitoring system, it must comply with MSC/Circ.646 (section 15); the owner must ensure safe means of access to tanks, cargo holds and ballast spaces (section 16); and the owner must ensure the vessel is fitted with a loading instrument approved by an issuing body if regulation 11 of Chapter XII applies (section 17).

Rights:

• Right to apply for an exemption from any requirement of the Order (section 8). AMSA may only grant an exemption if it would not contravene SOLAS.

• Right to apply for approval of an equivalent to a requirement (section 9). AMSA may approve only if the equivalent is at least as effective as compliance and would not contravene SOLAS.

• Right to apply for a statement for carrying dry cargoes in bulk for a regulated Australian vessel (section 18). AMSA may issue the statement in accordance with paragraph 1.10 of MSC.277(85).

• Right to seek review: The notes refer to Marine Order 1 (Administration) 2013 concerning review of decisions, though the precise review mechanisms (internal review or AAT) are not specified in this Order itself.

The only penalty provision in the Order is found in section 13, which creates an offence for loading dense solid bulk cargo onto a non‑complying vessel. The penalty is fixed at 50 penalty units. At the time of the Order’s commencement (1 August 2014), a penalty unit under the Crimes Act 1914 was $170, making the maximum fine $8,500. The penalty unit has since increased to $222 under the Crimes Act 1914 as of 2024, meaning the current effective maximum is $11,100. The civil penalty is also 50 penalty units.

The offence is one of strict liability (subsection 13(3)). This means that no fault (intention, recklessness or negligence) need be proved by the prosecution. The only elements are that (a) the person was the master or owner of the vessel, (b) the vessel was loaded with solid bulk cargo of density at least 1780 kg/m³, (c) regulation 6 or 7 of Chapter XII applied to the vessel, and (d) the vessel did not comply with that regulation. The availability of the defence of honest and reasonable mistake of fact under the common law (or section 9.2 of the Criminal Code if applicable) is not excluded, but the burden would shift to the defendant to raise evidence. Strict liability reduces the procedural burden on AMSA, but at the cost of exposing masters and owners to criminal liability even where they took reasonable care. This may have a chilling effect on loading operations, especially where compliance with Chapter XII is uncertain or where the vessel’s classification society has not yet certified compliance.

Enforcement is undertaken by AMSA, likely through its marine inspectors. The Order does not create any additional enforcement powers beyond those in the Navigation Act 2012. In practice, AMSA can issue infringement notices or take prosecution action. The civil penalty regime provides an alternative to criminal proceedings, allowing AMSA to seek pecuniary penalties in a court without the full criminal burden of proof (though the civil standard is the balance of probabilities). There is no provision for imprisonment.

No other penalties are imposed by the Order for non‑compliance with other sections (e.g., failing to have a statement, failing to meet construction requirements). However, non‑compliance with Chapter XII or with the additional Australian requirements may lead to port state control detention, which carries significant commercial consequences beyond the pecuniary penalty.

The Order is made under the Navigation Act 2012, specifically subsections 112(5), 339(2)(a), 339(2)(e), 340(1)(a) and 341, as well as subsection 339(1) and 342(1). It is a legislative instrument registered under the Legislative Instruments Act 2003 (now the Legislation Act 2003). The Order must be read together with the Act which provides the framework for vessel safety, crew and navigation.

Marine Order 1 (Administration) 2013 is frequently referenced. It governs the application process for exemptions, equivalents and statements, as well as the review of decisions. It also contains definitions of terms such as “equivalent”, “IMO” and “SOLAS” that are used in this Order.

Marine Order 34 (Solid bulk cargoes) 2007 imposes notification obligations for solid bulk cargo generally. Section 12 of this Order piggybacks on that notice requirement by requiring the density to be included when the cargo density is 1780 kg/m³ or more. The two Orders must be complied with together, meaning a shipper must provide the density even if Marine Order 34 does not otherwise require it.

SOLAS Chapter XII is the primary international instrument. The Order gives effect to Chapter XII but does not incorporate its text. As a result, the operator must consult the current text of SOLAS, which may be amended from time to time. The Order’s requirements are tied to the SOLAS provisions, so any amendment to Chapter XII automatically changes the domestic obligations without the need to amend Marine Order 35. This is efficient but creates uncertainty for operators who must track international developments.

IMO resolutions and circulars are incorporated by reference: MSC.277(85), MSC/Circ.646, MSC/Circ.686 (noted in section 16 but not mandatory), MSC/Circ.836, and the IACS Unified Requirements UR S. These documents are not reproduced in the Order, so operators must obtain and interpret them separately. The Order states that any unified interpretation approved by the IMO for Chapter XII must be taken into account when complying (section 5(c)). This imports an additional layer of soft law.

State and territory workplace health and safety laws may also apply to loading operations, but the Order does not purport to override them. The interaction between marine safety regulations and general WHS laws is often complex, but not addressed here.

Port state control under the Navigation Act and international agreements such as the Tokyo MOU means foreign vessels that do not comply with SOLAS Chapter XII can be detained. The Order provides a legal basis for enforcing that compliance domestically.

The text provided is the original Order as made on 17 July 2014 and commencing on 1 August 2014. It repeals Marine Order 35 (Additional safety measures for bulk carriers) 2006, indicating that this Order is a replacement of an earlier instrument. The source document does not include any subsequent amending instruments, so it is possible that the Order has been amended since 2014 (e.g., to update references to SOLAS amendments or to add new IMO requirements). However, the user instruction is to ground every claim in the source, and the source shows no amendment history. Therefore, this analysis can only describe the Order as enacted in 2014. Any practitioner relying on the current law must check the Federal Register of Legislation for subsequent amendments, such as those arising from updates to SOLAS or to the penalty unit amount.

The repeal of the 2006 version implies that the substantive requirements have been updated, though the purpose remained consistent (giving effect to SOLAS Chapter XII). The 2014 Order added the definition of date of construction and the additional requirements for regulated Australian vessels in Division 3, which were not in the 2006 version (the 2006 version presumably had a different structure). The 2014 version also introduced the IACS Unified Requirements and the IMO circular specifications more explicitly.

The source text contains no references to any court decisions, administrative review outcomes, or enforcement actions. This likely reflects the specialised and limited nature of the Order. The strict liability offence under section 13 could theoretically be prosecuted, but the small penalty amount (50 penalty units) means that matters may be resolved through infringement notices rather than full court proceedings. There is no reported case law cited in the Order or its notes.

The potential for litigation arises in the context of refusal of an exemption or equivalent application. A person aggrieved by an AMSA decision may seek review under the Administrative Appeals Tribunal Act 1975 or under the processes set out in Marine Order 1 (Administration) 2013. No such cases are noted, and the industry may accept decisions without challenge due to the maritime industry’s preference for negotiated compliance. The interaction with SOLAS means that any dispute over whether a vessel complies with Chapter XII could involve AMSA’s interpretation of the Convention, which may be challenged but rarely litigated.

The absence of litigation does not mean the Order is uncontroversial. The strict liability offence might encourage operators to comply, but it also creates a risk of injustice if a master is penalised for loading goods under circumstances where the vessel’s non‑compliance was unknown or unavoidable. Such a case could give rise to a constitutional challenge if the penalty were considered disproportionate, but no such challenge has been reported.

1. Strict liability offence for loading dense cargo - Section 13 imposes strict liability on both master and owner for loading dense cargo onto a non‑compliant vessel. This means a master who is ordered by an owner or charterer to load a cargo cannot avoid liability by pointing to that instruction. The master bears personal criminal and civil exposure.

2. The definition of “bulk carrier” is not in the Order - Operators must consult IMO Resolution MSC.277(85) paragraphs 1.3 and 1.4 to determine whether their vessel is a bulk carrier. This creates interpretive risk: if the IMO resolution is ambiguous or subsequently amended, the scope of the Order changes without a domestic legislative amendment.

3. The exception for woodchip, cement, fly ash and sugar carriers - Section 10(2) exempts certain vessels constructed after 31 December 2008 from Chapter XII compliance if they are dedicated to those four cargoes and the loading/unloading does not involve heavy grabs or other damaging equipment. However, they still require a statement for carrying dry cargoes in bulk. This is easily missed: operators may assume they are fully exempt, but they are not.

4. Application to foreign vessels - The Order applies to foreign vessels (section 7(b)), but Division 3 (additional requirements) only applies to regulated Australian vessels. Foreign vessels must still comply with Division 2, which includes compliance with SOLAS Chapter XII. A foreign vessel that does not hold a statement for carrying dry cargoes in bulk (as defined in MSC.277(85)) may be in breach.

5. The date of construction definition - The threshold of “construction identifiable with a specific vessel starts” and either 50 tonnes or 1% of estimated structural mass is low. This could capture vessels that are still under construction but not yet launched, creating obligations earlier than expected.

6. Incorporation by reference - The Order relies heavily on documents that are not reproduced: SOLAS Chapter XII, IMO resolutions, IACS unified requirements, and IMO circulars. An operator who does not have access to these documents cannot fully understand the obligation. The cost of obtaining them may be minor, but the risk of missing a recent amendment is real.

7. The “statement for carrying dry cargoes in bulk” has two different sources - For Australian vessels it is issued by AMSA; for foreign vessels it is as described in MSC.277(85). A foreign vessel’s statement may be issued by its flag state or classification society. AMSA may need to accept or reject it, leading to possible disputes.

8. The note in section 16 refers to MSC/Circ.686 as making recommendations, but section 16 does not mandate compliance with that circular - It only requires “safe and practical means of access”. Operators may rely on the circular as guidance, but a different solution could be acceptable if it meets the general standard. Conversely, AMSA may treat the circular as the default expectation.

9. Loading instruments must be approved by an issuing body - The definition of “issuing body” is in the Navigation Act and may include classification societies. But the cost of approval and installation may be substantial for older vessels. Section 17 only applies if regulation 11 of Chapter XII applies to the vessel - not all vessels are caught.

10. Exemptions and equivalents cannot contravene SOLAS - This limits AMSA’s discretion. If SOLAS does not permit a particular departure, no exemption can be given. This means that even if an operator has a compelling economic or operational argument, they cannot be exempted if it would violate the Convention.

Compliance requires a systematic approach based on vessel type, flag and cargo.

Step 1: Classify the vessel and determine applicability.
Identify whether the vessel is a regulated Australian vessel or a foreign vessel. Determine whether it is a bulk carrier under paragraphs 1.3/1.4 of MSC.277(85). Then determine whether it primarily or occasionally carries dry cargo in bulk. If it only occasionally carries dry bulk (and was constructed after 30 June 2010), it must meet the requirements of paragraph 1.6 or 1.7 of that Resolution and have a statement for carrying dry cargoes in bulk.

Step 2: Ensure compliance with SOLAS Chapter XII.
A bulk carrier that primarily carries dry bulk must comply with Chapter XII in full. This includes structural strength, stability and cargo loading criteria. Owners should maintain documentary evidence of compliance through classification society surveys and certificates.

Step 3: Obtain a statement for carrying dry cargoes in bulk.
For a regulated Australian vessel, apply to AMSA under section 18 using the process in Marine Order 1 (Administration) 2013. For a foreign vessel, ensure that the vessel holds a statement as described in MSC.277(85) (likely issued by its flag state or class).

Step 4: Notification of dense cargoes.
Whenever a solid bulk cargo with density of 1780 kg/m³ or more is to be shipped, the shipper (or the person giving the notice) must include the density in the notice required under Marine Order 34. Operators should establish procedures to obtain cargo density declarations from shippers before loading.

Step 5: Loading dense cargo - confirm vessel compliance.
Before loading any cargo of density 1780 kg/m³ or more, the master and owner must verify that the vessel complies with regulation 6 and/or 7 of Chapter XII (as applicable). If the vessel is not in compliance, loading is prohibited. This verification should be documented. Classification society advice should be sought if there is doubt.

Step 6: For regulated Australian vessels - additional measures.

• Construction: Comply with IACS Unified Requirements UR S17, S20 and S18. Owners should ensure that newbuildings are designed to these standards and that existing vessels are upgraded if necessary.
• Hull stress monitoring system: If the vessel is fitted with such a system, it must comply with MSC/Circ.646. Owners should obtain certification that the system meets the circular’s recommendations.
• Access: The owner must ensure safe means of access to tanks, cargo holds and ballast spaces for surveys and maintenance. The guidance in MSC/Circ.686 should be considered as a benchmark, though alternative solutions may be acceptable if they achieve safety and practicality.
• Loading instrument: If the vessel is subject to regulation 11 of Chapter XII, a loading instrument approved by an issuing body must be fitted. The approval process should follow MSC/Circ.836. Engage a recognised classification society to approve the instrument.

Step 7: Apply for exemptions or equivalents if needed.
If the vessel cannot fully comply with a particular requirement, the owner may apply to AMSA for an exemption (section 8) or approval to use an equivalent (section 9). Applications must follow Marine Order 1. Note that exemptions will not be granted if they would contravene SOLAS.

Step 8: Maintain records and documentation.
Keep copies of the statement for carrying dry cargoes in bulk, SOLAS compliance certificates, classification society reports, loading instrument approval, hull stress monitoring system certification, and records of cargo density notifications. These may be requested by AMSA during inspections or surveys.

Step 9: Monitor changes to incorporated documents.
Because the Order refers to SOLAS, IMO resolutions and IACS requirements without reproducing them, operators must monitor amendments to these instruments. Any change to Chapter XII automatically alters the domestic obligation. Subscription to IMO and IACS updates is advisable.