Marine Order 42 (Carriage, stowage and securing of cargoes and containers) 2016

Marine Order 42 (Carriage, stowage and securing of cargoes and containers) 2016 (the Order) implements Part A of Chapter VI of SOLAS for Australian ports and vessels and prescribes domestic detail to give that international obligation local effect (s 2; s 3(1)(c)). It applies to regulated Australian vessels and foreign vessels while in Australian ports, internal waters, territorial sea (except innocent passage) or when entering or leaving an Australian port (s 6(a)(i)-(ii)(A)-(D)). The instrument commenced on 1 July 2016 and repealed the 2014 version of Marine Order 42 (ss 1A-1B). It was made under subsection 342(1) of the Navigation Act 2012 (preamble).

Mechanically, the Order does the following key things:

• Adopts SOLAS Chapter VI obligations into Australian law by direct application and by making AMSA the competent authority for Australia (s 2; s 5(2)-(3)). It therefore gives effect to SOLAS requirements including shipper information duties, gross mass verification methods, stowage and securing standards, and related manuals and documentation requirements (divisions 2 and 3; s 9-21).
• Creates shipper obligations to ensure the verified gross mass (VGM) of packed containers is obtained and stated in the shipping document, and makes it an offence and a civil contravention to fail to include the VGM (s 11).
• Prohibits loading a packed container on a vessel unless the shipping document states the container’s VGM (s 12).
• Fixes approved methods and calibration standards for weighing under Methods 1 and 2 in the SOLAS regulation (s 10(3)-(5)).
• Requires masters and vessel owners to carry and follow approved cargo-securing documentation, including an approved Cargo Securing Manual where relevant (s 15), and to follow IMO recommendations on pesticides, fumigation and MSDS for MARPOL Annex I oil cargoes (ss 13, 20).
• Prescribes an operational regime for AMSA enforcement, including power to give written notices where loading, stowage or carriage is unsafe or not compliant (s 17). Notices can prohibit loading, require additional conditions, or require weighing of cargo units (s 17(2)).

The Order references and imports multiple IMO instruments and codes (CSS Code, TDC Code, IMDG Code, IMO Circulars and Guidelines), makes AMSA the approving and enforcing agency for equivalents and exemptions (ss 7-8), and ties technical calibration to domestic national measurement legislation or AMSA‑approved standards (s 10(3)). Penalties for non‑compliance are largely 50 penalty units and are declared strict liability offences with corresponding civil penalties in many provisions (see ss 11-12, 15-16, 17(3), 20). The Order also sets application boundaries (s 6) and administrative paths for exemptions and equivalents via Marine Order 1 (ss 7-8).

The Order operates through a framework of incorporation, delegation and prescriptive obligations grounded in SOLAS Chapter VI. The central concepts are:

• Incorporation of international instruments: The Order expressly gives effect to SOLAS Part A of Chapter VI (s 2) and refers repeatedly to IMO codes and circulars (CSS Code, TDC Code, IMO Guidelines regarding VGM, IMDG Code, MARPOL Annex I recommendations, and various IMO Circulars listed in s 4). Those documents are not reproduced in full in the Order; the Order treats them as external standards that must be consulted for technical detail (s 4 notes).

• Duties divided by role: Obligations are allocated among shippers, masters, vessel owners and persons responsible for loading or stowage. For example, shippers must ensure VGMs are obtained and stated (s 11), masters must ensure use of pesticides and fumigation complies with IMO recommendations and ensure stowage and securing follows regulation 5 of Chapter VI (ss 13, 14), and vessel owners must ensure MSDS for MARPOL Annex I oil cargoes are on board before loading (s 20).

• Verification of gross mass (VGM): The Order formalises the two SOLAS verification methods as the approved Australian methods (s 10(4)-(5)). It requires weighing equipment used for Method 1 or Method 2 to be calibrated and certified either under national measurement legislation or to an AMSA‑approved standard (s 10(3)). The shipper must ensure the VGM is included in the shipping document and may face both criminal (strict liability) and civil penalties for omission (s 11(1)-(3)).

• Prescriptive technical requirements: The Order prescribes specific technical and operational constraints, such as the maximum gross mass limit under the Safety Approval Plate for freight containers (s 16), requirements for deck stowage including accessways, visibility and stability (s 19), and the requirement for an approved Cargo Securing Manual for most cargo-carrying vessels other than passenger-only or pure bulk-only ships (s 15).

• AMSA’s administrative discretions: AMSA is the approving and enforcing authority. The Order provides processes for exemptions and equivalents under Marine Order 1 but restricts AMSA to granting exemptions only where compliance would be unreasonable or impracticable and where giving the exemption would not contravene SOLAS (s 7). AMSA can approve equivalents only if they are at least as effective and do not contravene SOLAS (s 8). AMSA may issue written notices if loading/stowage is unsafe or non‑compliant with the Cargo Securing Manual, CSS or TDC Code, or the Order (s 17).

The Order creates duties and interacts with multiple private and public actors. The principal affected parties are:

• Shippers: The Order places affirmative duties on shippers of packed containers to obtain a verified gross mass and to state that VGM in the shipping document (s 11(1)). Failure is a strict liability offence and exposes the shipper to a civil penalty (s 11(2)-(3)). Shippers therefore carry the primary compliance burden for VGM.

• Persons loading, terminal operators and agents: A person may only load a packed container if the shipping document states the container’s VGM (s 12(1)). That captures terminal operators, stevedores or whoever physically loads containers. Those persons face the same strict liability offence and civil penalty as shippers if they load without the VGM being stated (s 12(2)-(3)).

• Vessel masters: The master has multiple duties: to ensure pesticides and fumigation are used in accordance with IMO recommendations (s 13), to ensure cargo is stowed and secured in accordance with regulation 5 of Chapter VI (s 14(1)), to keep an approved Cargo Securing Manual on board where required (s 15(1)), and to comply with regulation 5-2 regarding blending of liquid bulk cargoes and production processes on voyages (s 21). Masters will be the enforcement point for compliance at sea and face obligations to refuse unsafe cargo loading if AMSA issues a notice under s 17.

• Vessel owners/operators and persons responsible for loading/stowage: Owners must ensure MSDS for MARPOL Annex I oil cargo and oil fuel are on board before loading (s 20(1)). Persons responsible for loading/stowage may be served written notices by AMSA under s 17 if the Cargo Securing Manual or applicable Codes are not complied with or the loading is unsafe (s 17(1)-(2)). The person responsible for packing freight containers must ensure they are not packed beyond the Safety Approval Plate maximum gross mass (s 16(1)).

• Regulated Australian vessels and foreign vessels in Australian waters: The Order applies to both categories. Its operational jurisdiction is tied to vessels regulated by the Navigation Act and those foreign vessels in Australian ports/internal waters/territorial sea except innocent passage, as set out at s 6(a)(i)-(ii)(A)-(D).

• AMSA and issuing bodies: AMSA is the Administration for Australia and is the decision-maker for exemptions, equivalents, approval of Cargo Securing Manuals and enforcement powers under the Navigation Act delegated to this Order (s 3(1)(d); s 5(2)-(3); ss 7-8). For regulated Australian vessels, “approved” equates to approval by an issuing body (s 4). AMSA also maintains the list of approved standards of accuracy for weighing equipment and provides guidance material via its Marine Orders webpages (s 10 notes; s 4 Note 4).

The Order specifies concrete duties and limited rights, typically framed as obligations for safety compliance and administrative pathways for exceptions.

Shipper duties

• Obtain a verified gross mass (VGM) for every packed container and ensure the VGM is stated in the shipping document and obtained in accordance with the Order (s 11(1)). This is a strict liability offence with a penalty of 50 penalty units and a corresponding civil penalty (s 11(1)-(3)).
• The shipper must comply with the informational requirements of SOLAS regulation 2, including the cargo information required by chapter 1.9 of the CSS Code, provided to the master prior to loading (s 9).

Terminal/loader duties

• Do not load a packed container unless the shipping document states the container’s VGM (s 12(1)). This is a strict liability offence and civil breach with a 50 penalty unit amount (s 12(1)-(3)).

Weighing and equipment duties

• Use equipment that is calibrated and certified either under the national measurement legislation or to an AMSA-approved accuracy standard for Method 1 and the approved Method 2 (s 10(3)-(5)). The Order specifies Methods 1 and 2 as the approved verification methods for Australia (s 10(4)-(5)).

Master and vessel duties

• Ensure pesticides and fumigation comply with various IMO recommendations (s 13(1)-(3)).
• Ensure cargo, cargo units and cargo transport units are packed, loaded, stowed and secured in accordance with regulation 5 of Chapter VI throughout a voyage (s 14(1)). The Order clarifies that vessel movement within a port is not a voyage for these purposes (s 14(2)).
• Carry an approved Cargo Securing Manual for vessels other than passenger-only or bulk-only carriers, prepared in accordance with IMO guidelines (s 15(1)). Failure attracts a 50 penalty unit offence and civil penalty (s 15(1)-(3)).
• Ensure MSDS for MARPOL Annex I oil cargo and oil fuel are on board before loading, consistent with IMO recommendations (s 20(1)-(3)).

Container packing limits

• Do not pack freight containers above the maximum gross mass indicated on the Safety Approval Plate under Marine Order 44 (s 16(1)-(3)).

AMSA rights and powers

• AMSA may give exemptions where compliance would be unreasonable or impracticable and SOLAS would not be contravened (s 7(2)). Applications follow Marine Order 1 procedures (s 7(1)).

The Order creates a mixed enforcement framework using criminal offences styled as strict liability, civil penalty provisions, administrative notices, and references to inspector powers under the Navigation Act.

Quantum and classification of penalties

• Many contraventions are penalised at 50 penalty units (for example s 11(1) , shipper failure to include VGM; s 12(1) , loading without the VGM in the shipping document; s 15(1) , failure to carry an approved Cargo Securing Manual; s 16(1) , packing a freight container above the Safety Approval Plate maximum; s 17(3) , failure to comply with AMSA notice; s 20(1) , failure to have MSDS for MARPOL Annex I oil). Each of those provisions also declares the offence a strict liability offence and provides for civil penalty liability of 50 penalty units (see the companion subsections). The Order does not convert penalty units to dollar amounts; penalty units are a statutory measure whose dollar value is set elsewhere.

Strict liability

• Several offences are expressly strict liability (for example ss 11(2), 12(2), 15(2), 16(2), 17(4), 20(2)). That reduces prosecutorial burden on proving mens rea, making it easier for enforcement authorities to secure convictions where the prohibited conduct is proven. The Order pairs strict liability offences with civil penalty provisions to allow administrative enforcement without criminal prosecution in some cases (ss 11(3), 12(3), 15(3), 16(3), 17(5), 20(3)).

Administrative enforcement: AMSA notices

• Section 17 gives AMSA a specific administrative enforcement tool. If AMSA considers a person responsible for loading, stowage or carriage of cargo is non‑compliant or the loading/stowage/carriage is unsafe, AMSA may issue a written notice (s 17(1)). The notice may prohibit loading, require conditions, or require weighing to verify declared mass (s 17(2)). The recipient must comply and non‑compliance attracts criminal and civil penalties (s 17(3)-(5)). This ability to issue notices complements on-the-spot inspector powers under the Navigation Act (note to s 11 refers to section 259 of the Navigation Act for monitoring powers of inspectors).

Inspector powers and interactions with Navigation Act

• The Order is made under the Navigation Act and expressly relies on Navigation Act provisions for power and enforcement (s 3). The note to s 11 references inspector monitoring powers under s 259 of the Navigation Act, signalling that inspectors can undertake the on-the-ground checking required by the Order (s 11 Note 2). The Navigation Act framework provides for boarding, inspection, seizure and other enforcement measures that enable practical compliance checks; the Order itself focuses on substance and penalties.

The Order operates in a networked legal environment: it is made under the Navigation Act 2012, implements SOLAS obligations, cross‑references other Marine Orders, and relies on national measurement law and international instruments for technical standards.

Navigation Act 2012

• The Order is expressly made pursuant to the Navigation Act powers (s 3). It invokes particular Navigation Act provisions: subsection 112(4) and (5) (regulation-making powers re carriage and loading/stowage of cargo), paragraph 340(1)(a) (giving effect to SOLAS), subsection 341(2) (incorporation by reference), and subsection 342(1) (AMSA’s power to make Marine Orders) are cited as enabling (s 3(1)(a)-(d)). The order thereby sits as a subordinate instrument implementing regulatory functions under the Navigation Act. Enforcement links back to the Navigation Act, with inspector monitoring powers (s 11 note referring to s 259 of the Navigation Act).

SOLAS and IMO instruments

• The declared purpose is to give effect to Part A of Chapter VI of SOLAS (s 2). The Order adopts key SOLAS regulation text by reference and requires compliance with SOLAS regulation 2 (information for masters, VGM requirements) and regulation 5 (stowage and securing) by operation of the Order (ss 9-10; s 14). The Order also integrates various IMO Guidelines and Codes through defined terms and references (s 4). The external texts are treated as operational standards; the Order references them for technical detail but does not reproduce them, so practitioners must consult SOLAS and the relevant IMO documents.

Marine Orders and domestic instruments

• Marine Order 1 (Administration) 2013 is referenced for the procedural mechanisms to apply for exemptions and equivalents (ss 7-8). Marine Order 44 (Safe containers) 2002 is referenced for the Safety Approval Plate maximum gross mass that may not be exceeded when packing freight containers (s 16). Marine Order 21 (Safety and emergency arrangements) is referenced for navigation bridge visibility requirements relevant to deck stowage (s 19 note). These cross-references integrate the Order into AMSA’s broader Marine Orders regime.

National measurement legislation

• The Order links verification methods for weighing to national measurement regulation. Equipment is taken to be calibrated and certified if it complies with the National Measurement Act 1960, the National Measurement Regulations 1999 or the National Trade Measurement Regulations 2009, or complies with an AMSA‑approved accuracy standard (s 10(3)). This creates a bridge between maritime safety regulation and trade measurement regimes: compliance with national measurement law satisfies the Order’s calibration requirement.

The Order’s text includes limited historical detail. Relevant points recorded in the instrument are:

• The instrument was made by Michael Kinley, Chief Executive Officer of the Australian Maritime Safety Authority, on 7 June 2016 and the Order commenced on 1 July 2016 (preamble; s 1A). The instrument expressly repealed Marine Order 42 (Cargo, stowage and securing) 2014 (s 1B).

• The Order replaces the 2014 Marine Order 42, thereby superseding the previous domestic implementation of the SOLAS Chapter VI Part A obligations available in the 2014 order. The 2016 Order therefore represents the current legislative text provided here and is the operative instrument from 1 July 2016 as stated (s 1A-1B).

• The Order incorporates and cross-references multiple international instruments and IMO circulars “as in force from time to time” (for example CSS Code, TDC Code, IMDG Code and various IMO Circulars cited in s 4). By adopting those instruments by reference to “as in force from time to time”, the Order creates a mechanism for the substantive technical requirements to change with subsequent amendments to the referenced IMO documents without formal amendment of the Marine Order itself. The Order therefore embeds an evolving technical standard via incorporation by reference, subject to the usual legal principles about incorporation and amendment by reference permitted by s 341 of the Navigation Act (s 3(1)(d); s 3(1)(b)).

• Exemptions and equivalents processes are to be handled under Marine Order 1 (s 7-8), and Marine Order 1 contains procedural provisions for applications, timeframes, conditions and review. The Order’s note references the procedural architecture but does not itself set review periods or procedural time-limits beyond deferring to Marine Order 1.

Limitations of the instrument’s amendment history reporting

• The text provided does not list prior amendments, tabled changes, subordinate instrument numbers other than the repeal of the 2014 Order, or later amendments after 2016. The instrument’s own notes point users to the Federal Register of Legislation and to AMSA’s Marine Orders page for access to the texts of referenced IMO instruments and for information about delegation under the Order (s 4 Note 4; s 4 Note 5). To obtain a full legislative amendment history (including any post-2016 amendments, variations or revocations), one must consult the Federal Register of Legislation where the instrument and any subsequent legislative instruments amending it will be registered.

The text of the Order supplied does not include any litigation history, judicial interpretations, or case citations. It does not refer to any judicial decisions applying or construing its provisions. The instrument’s notes reference international documents and related Marine Orders but not any court cases. Therefore, based solely on the text provided:

• There is no litigation history recorded in the instrument. The Order itself cites only statutes, SOLAS and IMO materials (s 2; s 4) and other Marine Orders (s 7-8 notes; s 16 reference to Marine Order 44), not judicial authorities.

• The absence of litigation in the text does not imply there has been no case law. The Order contemplates enforcement via strict liability offences, civil penalties and AMSA notices (ss 11-12, 15-17, 20) and those provisions may have been the subject of prosecutions, civil penalty proceedings or administrative reviews since commencement, but such material is outside the Order as enacted.

Practical research steps for lawyers and compliance professionals

• To identify any litigation or tribunal decisions that interpret or apply the Order, consult:
  • Federal and state court databases (e.g. AustLII, federal courts, state superior courts) for prosecutions or civil penalty proceedings citing Marine Order 42 2016.
  • Administrative decisions or reviews under Marine Order 1 decisions (exemption/equivalent applications) which may be subject to merits review or judicial review.
  • AMSA enforcement notices and any published outcomes or press releases describing enforcement actions.
  • Practical industry sources such as port authority notices, terminal operator protocols, and industry legal summaries that may report enforcement trends and case outcomes.

Limitations to note

• Because the Order incorporates SOLAS and IMO instruments by reference, judicial interpretation may often involve comparing the Order with SOLAS texts and IMO guidelines. Any judicial consideration will therefore likely involve international-law interpretation alongside domestic administrative law questions. The instrument itself does not provide procedural detail on civil penalty enforcement; such detail will be found in the Navigation Act and related regulations and in any judicial decisions construing those enforcement tools.

In summary, the instrument contains no internal litigation history. Identifying judicial or tribunal treatment of the Order requires separate legal research in court and administrative decision databases and AMSA enforcement records.

The Order embeds several practical traps and interpretive points that deserve attention because they shift compliance costs, allocation of risk, and administrative procedures. These are concrete operational matters drawn from the instrument.

Strict liability and civil penalty pairing

• Many offences are strict liability (for example ss 11(2), 12(2), 15(2), 16(2), 17(4), 20(2)) and have mirror civil penalties (ss 11(3), 12(3), 15(3), 16(3), 17(5), 20(3)). Practitioners should note that strict liability reduces the burden of proof for the prosecution and that civil penalty proceedings are available as an alternative to criminal prosecutions. Commercial parties often underestimate the enforcement risk where intent is irrelevant.

Allocation of primary responsibility for VGM

• The Order places the primary legal duty to obtain a VGM and to include it in the shipping document on the shipper (s 11), but also creates an independent offence for loading a container without the shipping document stating the VGM (s 12). This creates a two-tier allocation: shippers must obtain and provide the VGM; loaders/terminals must not load without the VGM stated. Parties need clear contractual allocation and practical procedures to avoid both parties being exposed.

Method verification detail is external and evolving

• The Order approves the two SOLAS methods (Method 1 and Method 2) and prescribes calibration requirements for equipment used in weighing (s 10(3)-(5)). However, the precise accuracy standards are either those in national measurement legislation or in a list of AMSA‑approved standards to be maintained by AMSA (s 10(3) Note 2). Practitioners must identify whether weighing equipment meets national measurement law requirements or is on AMSA’s approved list; absence from AMSA’s list could create operational uncertainty.

Incorporation by reference: evolving external rules

• The Order repeatedly references IMO instruments “as in force from time to time” (s 4). That makes the technical standards dynamic. Users must actively track changes to SOLAS and the cited IMO circulars and codes; the Order does not freeze those materials at a specific date. This raises compliance tracking costs for shippers, terminals and masters.

AMSA discretion with SOLAS constraint

• AMSA can grant exemptions and approve equivalents but only where they will not contravene SOLAS and, for exemptions, only when compliance would be unreasonable or impracticable (ss 7-8). This limits flexibility and may create administrative delays where a quick operational solution is needed. Applications follow Marine Order 1 procedures (s 7(1)-(2)), which will impose process steps and potential waiting times.

Compliance requires coordinated operational, technical and contractual measures across the supply chain. Below is a practical checklist tied to the Order’s provisions and the external instruments it incorporates.

1. VGM procedure and documentation (ss 9-12)

• Identify whether your entity is the shipper, loader or terminal operator. If shipper, implement a VGM policy ensuring each packed container has a VGM obtained by Method 1 or Method 2 as approved by s 10(4)-(5).
• Method 1 requires weighing the packed container using calibrated, certified equipment meeting national measurement legislation or AMSA‑approved standards (s 10(3)-(5)). Method 2 requires use of certified equipment for weighing the container’s contents (s 10(5)).
• Ensure the shipping document contains the VGM for each packed container and that the VGM was obtained in accordance with the Order (s 11(1)). Maintain immediate documentary evidence linking the weighment certificate to the shipping document.
• Terminals and loaders must not load a packed container unless the shipping document states the VGM (s 12(1)). Create a gate check so that gate-in processes refuse to accept/load containers without a VGM stated in the shipping document.
• Implement contractual clauses allocating costs and responsibilities where containers arrive at port without a VGM. The Order points to IMO Guidelines on apportionment of costs (s 12 Note 2) but does not prescribe allocations; therefore align commercial terms with statutory duties.

2. Weighing equipment and calibration (s 10(3))

• Use weighing equipment that complies with the National Measurement Act and associated regulations, or ensure it conforms to an AMSA‑approved standard of accuracy. Obtain and store current calibration certificates.
• Check AMSA’s list of approved accuracy standards (s 10 Note 2). If equipment is not certified under national measurement law, seek assurance that the equipment meets an AMSA‑approved standard.

3. Cargo information to master and MSDS (s 9; s 20)

• Shippers must provide the cargo information required by SOLAS regulation 2 and the CSS Code chapter 1.9 to the master before loading (s 9). Use the suggested “Shippers Declaration” form available from AMSA as guidance (s 9 note).
• Vessel owners carrying MARPOL Annex I oil cargoes must ensure MSDS based on IMO recommendations are on board before loading (s 20(1)). Ensure MSDS availability and that the master acknowledges receipt.