Marine Order 57 (Helicopter operations) 2016

The central concept is the vessel‑helicopter operation, defined broadly in section 4 to include four distinct activities: transfer of a good or person between vessel and helicopter; loading or unloading of a vessel by helicopter; landing or take‑off; and refuelling of a helicopter on a vessel. Each of these triggers the full suite of obligations.

A key reference point is the ICS Guide - the Guide to Helicopter/Ship Operations, 4th Edition (2008), published by Marisec Publications on behalf of the International Chamber of Shipping. The Order makes compliance with this private publication the benchmark for safety arrangements (section 6(1)(c)), for landing/winching area dimensions (section 10(1)(a)), obstacle marking (section 11(1)), and communications (section 13 note). The ICS Guide is not published by the Australian government; AMSA notes that information on purchasing or obtaining access is available from its website. This effectively outsources the technical specification to a private, copyrighted standard for which users must pay. The Order does not define the content of the ICS Guide; it incorporates it as in force at the time of the Order (section 3(1)(e) permits adoption of external documents from time to time, but the Order does not say “as amended from time to time” - it refers to the 4th Edition 2008 specifically). The note to the definition of ICS Guide suggests future editions may be applied by separate amendment.

Landing area and winching area are defined by reference to paragraph 4.1.1 of the ICS Guide, meaning the physical location where the helicopter either lands or hovers for winching operations. The owner must determine the location and size of each area, and document any divergence from ICS Guide recommendations before the operation begins. In an emergency, the master can step in (section 10(2)). The definition of seafarer training is specific: it means training in the kind of operation to be conducted and includes drills (section 4). This is narrower than general maritime training - it is operation‑specific.

SMS - safety management system - is the vessel’s documented system for managing safety, required under other Marine Orders (notably Marine Order 58 and Marine Order 31). Section 7 requires the owner to ensure the helicopter‑operation arrangements are included in that system. The master must then give seafarers instructions about their responsibilities under that system (section 8(1)(a)). The seafarer’s duty under section 9 is to carry out those instructions.

The Order distinguishes between two categories of non‑criminal liability: criminal offences with a penalty of 50 penalty units (currently $11,100 at $222 per unit) and civil penalties of the same amount. Most provisions are strict liability, meaning no proof of fault is required, though the emergency defence in section 10.3 of the Criminal Code (reasonable response to an emergency) is preserved by a note to section 6(4). Civil penalties are not criminal, but they are enforceable through the courts and can result in substantial fines.

The primary duty‑holders are the owner and master of a vessel. The owner is defined in the Navigation Act as the person who owns the vessel, and in certain circumstances may include a demise charterer. The master is the person in command or charge of the vessel. These two roles bear the most onerous obligations. The owner is responsible for SMS inclusion (section 7), for determination of landing/winching area and documentation of divergences (section 10(1)), and for ensuring deck load‑bearing information is available (section 12(1)). The master is responsible for authorising the operation only if safe arrangements exist (section 6(1)), for ensuring equipment and training are done (section 8), for communicating divergences to the pilot (section 10(3)), for marking obstacles (section 11(1)), for providing load information to pilots and inspectors (section 12(2)), for not authorising landing on insufficiently strong surfaces (section 12(3)), and for communicating all necessary information during preparation and conduct (section 13).

Seafarers are also directly affected: section 9 imposes a personal duty on any seafarer to carry out SMS instructions given to them. Failure attracts 50 penalty units and a civil penalty. This is unusual in that it creates individual criminal liability for a seafarer who does not follow a SMS instruction, even if the instruction was inadequately given or not covered in training. Strict liability applies, so honest mistake or forgetfulness is no defence (though a reasonable‑emergency defence may apply). This could expose crew to personal fines for what would otherwise be an operational slip.

The helicopter operator (defined as the person, organisation or enterprise making a helicopter available to a pilot) and the helicopter pilot are not directly penalised under this Order, but they are recipients of mandatory information. The master must communicate necessary safety information to them, and the pilot must receive deck load‑bearing information and divergence details. The pilot’s own obligations arise under civil aviation law, not this Order.

Vessels covered are regulated Australian vessels (ships registered in Australia or required to be registered) and foreign vessels in Australian ports, entering or leaving an Australian port, in internal waters, or in the territorial sea - provided they are not merely transiting in innocent passage (section 5(b)(iv)). This means that a foreign vessel conducting helicopter operations while visiting an Australian port is subject to Australian law, even if its flag state has different rules.

The key duties are structured as prohibitions or positive obligations, all backed by penalties and civil penalties. The master’s gate‑keeping duty under section 6(1) is critical: a master “may permit” a vessel‑helicopter operation only if three cumulative conditions are met - emergency evacuation arrangements, non‑interference with normal operations, and at least as effective as the ICS Guide. If the ICS Guide recommends a certain deck marking or fire‑fighting equipment, the vessel must match that standard. This gives the master no discretion to accept a lower standard even if the helicopter pilot is willing. Subsection 6(2) mandates that arrangements must include equipment and seafarer training. Failure by the master is a strict liability offence with 50 penalty units.

The owner’s duty under section 7 is to ensure those arrangement are in the SMS. This is a positive obligation to update the safety management system. The note references Marine Order 58 and Marine Order 31 for SMS requirements. The owner cannot delegate by simply hiring a competent master; the owner remains liable for the system’s content.

The master also has a positive duty under section 8 to give SMS instructions, maintain equipment, and carry out training. Section 8(1)(b) uses “accessible and maintained in working order” - this implies regular checking and repair, and the equipment must be where it is needed when it is needed.

Section 9 gives seafarers a duty to carry out SMS instructions. This is not limited to instructions directly about helicopter operations; it is any instruction given to the seafarer under the SMS. The scope depends on what the master or owner puts in the SMS. In practice, an owner could include sweeping operational rules, and a seafarer would be personally liable for non‑compliance.

Section 10 requires the owner to determine the landing/winching area before operations commence, and document any divergence from the ICS Guide. The owner must do this, but the master may step in during an emergency. Divergences must be communicated to the pilot before the operation starts - this includes any deviation from dimensions or obstacle‑free zones recommended by the ICS Guide.

Section 11 requires the master to clearly mark any obstacle within the landing or winching area that does not comply with ICS Guide recommendations. This is a strict liability offence - the master must physically mark (likely with paint or lights) any obstruction. No threshold for “obstacle” is given; it is left to the ICS Guide.

Section 12 imposes three linked duties: owner must ensure deck load information is available (subsection (1)); master must give that information to the pilot, an inspector, or any other person with an interest in safe operation (subsection (2)); master must not authorise landing on a deck that cannot withstand the loads (subsection (3)). This creates a chain: the owner must know the load capacity, the master must disclose it, and the master must not approve an unsafe landing. The note says the information is generally provided by the vessel’s recognised organisation (classification society). For a vessel that has never been surveyed for helicopter loads, the owner would need to obtain a structural assessment.

Section 13 is a stand‑alone communication duty: the master must, when preparing for and conducting an operation, communicate to the helicopter operator or pilot any information necessary for safe conduct, including details of the landing/winching area. This is not just a one‑off - it applies during preparation and during conduct. It is not a penalised provision (no penalty unit is listed), which makes it unusual - but a breach might still be enforced via other offences or through civil liability if an accident occurs.

Rights under the Order are limited. Seafarers have no right to refuse to participate in an unsafe operation; their duty is to follow SMS instructions. The helicopter pilot has a right to receive load information and divergence details, but no right to insist on stopping an operation if information is insufficient - that would be a matter for the master or pilot under other law. An inspector has a right to request load information under section 12(2)(b).

The Order imposes a uniform penalty of 50 penalty units for each provision that is penalised. Under section 4AA of the Crimes Act 1914, a penalty unit is currently $222, making 50 penalty units $11,100. This applies to both criminal offences and civil penalties. The criminal offences are strict liability (sections 6(3), 7(2), 8(2), 9(2), 11(2), 12(4)). That means the prosecution does not need to prove fault (intention, knowledge, recklessness) - only that the act or omission occurred. The only available defence is the emergency defence preserved by note to section 6(4) (reasonable response to a medical or other emergency). For other sections, no such defence is explicitly preserved, though the Criminal Code general defences (e.g. duress, sudden emergency) may still apply but are not referenced.

The civil penalty provisions (sections 6(4), 7(3), 8(3), 9(3), 11(3), 12(5)) allow AMSA to seek a civil penalty order from a court, which is not a criminal conviction but still results in a fine. The amount is the same 50 penalty units. Civil penalties are enforceable through the Federal Court or other relevant courts under the Navigation Act. The advantage for AMSA is a lower standard of proof (balance of probabilities) and no need to prove fault beyond the strict‑liability conduct.

Enforcement under the Navigation Act includes the powers of AMSA inspectors. Inspectors have powers to board vessels, request documents (including the SMS, training records, load information), and require compliance. Section 12(2)(b) explicitly gives an inspector the right to request deck load information. An inspector could issue a direction to cease operations or detain the vessel until deficiencies are rectified, though those powers arise under the Navigation Act itself rather than this Order.

The practical enforcement risk is highest for owners and masters. An owner who fails to include arrangements in the SMS faces both criminal and civil penalties. A master who permits an operation without adequate arrangements or fails to communicate divergences also faces penalties. For a single operation, the total potential penalty exposure is high: the master could be liable under sections 6, 8, 10(3), 11, 12(2), 12(3) - up to 6 × 50 penalty units ($66,600) for criminal, plus the same for civil penalties (though double‑jeopardy protections may limit actual recovery). The owner could be liable under sections 7, 10(1), and 12(1) - another $33,300.

Seafarers also face personal liability under section 9. While the fine is the same $11,100, a seafarer earning perhaps $60,000 a year would feel it acutely. The Order does not provide for any indemnity or defence that the seafarer was following orders - indeed, the duty is to follow SMS instructions, so if the SMS instructions are defective, the seafarer may still be liable for not following them.

The Order sits within the broader framework of the Navigation Act 2012. Section 3 sets out the enabling provisions: subsection 112(1) (carriage of passengers), subsection 112(4) (carriage of cargo), subsection 125(1) (musters, drills, equipment checks), subsection 341(1) (penalties), subsection 342(4) (incorporation of external documents), and subsection 339(1) (general regulation‑making power). This means the Order is a Marine Order with the force of law, and contravention is an offence under the Navigation Act.

The most significant interaction is with Marine Order 58 (Safe management of vessels) 2015 and Marine Order 31 (SOLAS and non‑SOLAS certification) 2019. The owner’s duty to include arrangements in the SMS (section 7) explicitly cross‑references those Orders. A vessel that already has a compliant SMS under Marine Order 58 must update it to include helicopter‑operation arrangements. A vessel without a SMS (e.g. some non‑SOLAS vessels) would need to develop one, likely also triggering Marine Order 31 certification requirements. The note to section 7 says the ICS Guide may provide useful background - but the legal requirement is that the SMS must contain the arrangements from section 6.

Civil aviation legislation administered by CASA is directly referenced in the note to section 2. The helicopter and its pilot are subject to the Civil Aviation Safety Regulations 1998 and related instruments. The Order does not require the vessel to ensure the helicopter is airworthy or that the pilot is licensed - that is CASA’s domain. However, the master’s communication duties (section 13) and the duty to provide load information (section 12) directly affect the pilot’s ability to comply with civil aviation requirements. If a pilot lands on an undesignated area without being told of a divergence, the pilot may face CASA enforcement, but the vessel may also face AMSA enforcement for failing to communicate.

The Navigation Act’s inspector powers apply. An inspector may request load information under section 12(2)(b). Broader powers to board, inspect, and detain vessels are not in this Order but are in the Navigation Act itself (Part 4, Division 11). The Order creates substantive offences that inspectors can enforce.

Foreign vessels in Australian waters are subject to the Order under section 5(b). This could create a conflict of laws if the flag state’s rules differ. For example, if the ICS Guide recommends a 30‑metre obstacle‑free zone but the flag state allows 25 metres, the vessel must comply with the ICS Guide standard to operate in Australia. There is no provision for mutual recognition of foreign standards. This adds compliance cost for foreign vessels that only occasionally call at Australian ports.

There is no formal interaction with workplace health and safety laws, but the duties under the Order may overlap with state or Commonwealth WHS obligations. A failure to have safe arrangements could also be a breach of the model WHS Act if the vessel is in a port that falls under state jurisdiction, potentially leading to dual enforcement.

The Order was originally made as Marine Order 57 (Helicopter operations) 2016 (MO 2016/3), registered on 7 April 2016 and commenced on 1 May 2016. The only amendment recorded in this compilation is the Marine Orders Amendment (Marine Order 31 - consequential changes) Order 2019 (MO 2019/3), registered on 14 October 2019 and commencing 1 November 2019. That amendment affected section 7 - the table of amendments shows “am. MO 2019/3” for section 7. The change was consequential to the replacement of Marine Order 31 (the previous 2015 version) with Marine Order 31 (SOLAS and non‑SOLAS certification) 2019. The note to section 7 originally referred to the now‑repealed Marine Order 31 2015; the 2019 amendment updated the reference to the new Marine Order 31. No other sections were amended. The compilation has no other amendments.

Notably, sections 1A and 1B were repealed by operation of the Legislation Act 2003 (sections 48C and 48D) - that is a standard automatic repeal of provisions that were transitional or had expired. Those sections were not substantive obligations. So the Order has remained largely unchanged since 2016, with only a procedural amendment to cross‑references.

The absence of substantive amendment suggests either that the Order functions adequately or that it has not been revisited to reflect changes in helicopter technology, vessel design, or international best practice. The ICS Guide, as noted, is the 4th Edition 2008 - that is now over 15 years old. A fifth edition may have been published, but the Order still references the 2008 version. The compilation does not show any amendment to adopt a later edition. This means vessel operators must use the 2008 edition, not a newer edition, unless the Minister makes a further amendment.

The source text contains no reference to any litigation, court decisions, or tribunal rulings concerning this Order. The notes and table of amendments do not record any cases. Given the Order has been in force since 2016 and applies to a relatively narrow set of operations (vessel‑helicopter transfers), it is plausible that compliance has been achieved without court challenges, or that disputes have been resolved through AMSA administrative actions or infringement notices rather than litigation. The strict‑liability nature of the offences would make contesting a penalty difficult unless the defendant could rely on the emergency defence or argue that the conduct did not fall within the definition of vessel‑helicopter operation.

There may be unpublished infringement notices or enforceable undertakings, but no public record is in the source. It is also possible that litigation has occurred under the Navigation Act more broadly for vessel‑helicopter accidents, but the Order itself has not been judicially considered. A lawyer advising a client should check caselaw databases beyond this compilation, but the source does not require any reporting of such cases.

The absence of litigation does not mean the Order is unimportant. It may mean that the penalties are low enough that commercial operators pay fines rather than litigate, or that AMSA uses progressive enforcement (warnings, improvement notices) before fining. The strict‑liability design incentivises settlement over challenge.

Several aspects of the Order are traps for unwary operators.

First, the definition of vessel‑helicopter operation in section 4 is extremely broad. It includes not only landing and take‑off but also “the transfer of a good or person between a vessel and a helicopter” - that covers winch operations where the helicopter never touches the deck, and even “refuelling of a helicopter on a vessel”. A vessel that merely hosts a helicopter to refuel its own fuel tanks is conducting a regulated operation. That means the full suite of section 6 arrangements (emergency evacuation, non‑interference, ICS Guide equivalence) must be in place even for a short refuelling stop.

Second, the reference to the ICS Guide is legally binding, not just advisory. Section 6(1)(c) requires arrangements to be “at least as effective in ensuring safety as the arrangements recommended in the ICS Guide.” If the ICS Guide recommends a particular fire‑fighting foam discharge rate or a specific deck marking pattern, the vessel must have exactly that. The ICS Guide is not freely available online; it must be purchased. A small vessel operator who has not seen the Guide could inadvertently be non‑compliant simply by not knowing what it requires. The note says “information on purchasing or obtaining access” is on AMSA’s website, but that is not the same as providing the content.

Third, the owner’s duty under section 10(1) requires documenting any divergence from the ICS Guide before the operation commences. This is not an annual document - it must be done before each operation. If the operation is conducted in changing conditions (e.g. wind shifts requiring a different approach path), the owner (or master in emergency) must reassess and document any new divergence. Failure to do so exposes both owner and master.

Fourth, the seafarer duty under section 9 is strict liability. A seafarer who is not aware of the SMS instruction (because the master failed to give it) could still be penalised if the instruction existed and the seafarer did not carry it out. The provision does not require that the seafarer actually received the instruction - only that they must carry out instructions “given to the seafarer”. If the instruction was posted on a noticeboard of the SMS, the seafarer might be deemed to have been given it. This is a significant personal risk.

Fifth, section 12(3) prohibits the master from authorising landing on a deck surface that “cannot withstand the static and dynamic loads imposed by a helicopter landing on that surface.” This is an absolute prohibition: if the master lacks load information, he cannot authorise the landing, even if he believes it is safe. The owner’s failure to provide the information is not a defence for the master - the master must say no.

Sixth, the communication duty in section 13 has no penalty attached, but it is still a legal requirement. If a master fails to communicate necessary information and an accident occurs, the master could face criminal prosecution under the Navigation Act’s general safety duties (section 206, which requires safe operation) or face civil liability for negligence. The absence of a fixed penalty does not make the duty toothless; it may be more dangerous because the consequences are undefined.

Compliance requires a systematic approach by both owner and master. The owner should start by obtaining a copy of the ICS Guide (4th Edition 2008) and reviewing its recommendations for the specific type of helicopter operations planned. The owner must then determine the landing or winching area location and size according to the ICS Guide dimensions and obstacle‑free zones, and document any intentional divergence (e.g. if the vessel’s deck is smaller than recommended) before any operation begins. That documentation should be kept in the vessel’s safety management system and made available to the master.

The owner must ensure the deck load information is prepared - typically by the vessel’s classification society or a naval architect. This information must include the static and dynamic load capacities for each deck surface where a helicopter might land. It should be in a form that can be given to pilots and inspectors. The owner must also ensure the vessel’s safety management system includes the helicopter‑operation arrangements required by section 6(2): a description of equipment needed and a plan for seafarer training.

The master’s compliance checklist before any vessel‑helicopter operation should include: (1) confirming that the arrangements in the SMS are in place (emergency evacuation, non‑interference, ICS Guide equivalence); (2) ensuring that all equipment required by those arrangements is accessible and in working order (fire extinguishers, landing lights, tie‑down points, etc.); (3) ensuring that seafarers have received SMS instruction and training specific to the operation, including drills; (4) giving those instructions to seafarers; (5) reviewing the landing/winching area documentation, noting any divergences from the ICS Guide; (6) if the master made a determination under section 10(2) (emergency), documenting the divergence; (7) marking any obstacle within the landing/winching area that does not comply with ICS Guide obstacle recommendations; (8) obtaining the deck load information from the owner; (9) giving that information to the helicopter pilot before any landing; (10) not authorising landing on a deck that cannot take the load; (11) communicating all necessary safety information to the helicopter operator and pilot, including details of the landing/winching area and any divergence; (12) maintaining communication during the entire operation.

Training must be conducted before the operation. Section 4 defines seafarer training as training “in the kind of operation to be conducted” and includes drills. This is not satisfied by generic helicopter awareness training - it must be specific to, say, winching versus landing, and to the particular vessel’s SMS. Drills must be carried out (section 8(1)(c)). A record of training and drills should be kept as part of the SMS.

Documentation is central. The owner must document divergences from the ICS Guide (section 10(1)(b)). The master must have evidence that equipment is accessible and maintained (maintenance logs). The load information must be available. The SMS must contain the helicopter‑operation arrangements. Inspectors have the right to request load information (section 12(2)(b)). Keeping a file with the ICS Guide extract (or the Guide itself), the landing/winching area determination, load certificates, training records, and SMS sections will demonstrate compliance.

Finally, foreign vessels entering Australian ports should be aware that if they intend to conduct any vessel‑helicopter operation (including refuelling), they must comply fully with this Order. They cannot rely on flag state approvals or other industry standards not at least as effective as the ICS Guide. The safest approach is to have the ICS Guide onboard and follow its recommendations exactly, documenting any deviation. For foreign vessels, the owner and master should also ensure that the SMS (if different from the Australian SMS) is modified to include the section 6 arrangements specifically for operations in Australian waters.