This regulation is the Navigation Regulation 2013.
3 Authority
This regulation is made under the Navigation Act 2012.
4 Definitions
In this regulation:
Act means the Navigation Act 2012.
Comptroller‑General of Customs means the person who is the Comptroller‑General of Customs in accordance with subsection 11(3) or 14(2) of the Australian Border Force Act 2015.
Note 1: Several other words and expressions used in this regulation have the meaning given by section 14 of the Act, including:
(a) Marine Order
(b) recognised organisation
(c) Salvage Convention.
Note 2: Recognised organisations are prescribed in the Marine Orders—see subsection 342(1) of the Act.
Part 2—Australian Border Force vessel management plans
Division 2.1—General
5 Application of Part 2
For section 11 of the Act, this Part sets out matters in relation to the preparation, review and acceptance of an Australian Border Force vessel management plan for an Australian Border Force vessel or for a person in relation to an Australian Border Force vessel.
Division 2.2—Application for acceptance of Australian Border Force vessel management plan
6 Application for acceptance of CVMP
(1) The Comptroller‑General of Customs may apply to AMSA for acceptance of an Australian Border Force vessel management plan for an Australian Border Force vessel or for a person in relation to an Australian Border Force vessel.
(2) The Australian Border Force vessel management plan must include the following:
(a) the vessel or the class of vessels covered by the Australian Border Force vessel management plan, including:
(i) the name of the vessel, or for a class of vessels, the name of each vessel in the class; and
(ii) the kind of operations the vessel, or for a class of vessels, the kind of operations each vessel in the class will conduct (including the activities the vessel will undertake); and
(iii) the unique identifying number for the vessel (such as the International Maritime Organization (IMO) number), or for a class of vessels, the unique identifying number for each vessel in the class;
(b) for each vessel covered by the Australian Border Force vessel management plan:
(i) the provision or provisions of the Act that the vessel or person will not comply with; and
(ii) an explanation of why the vessel or person will not be able to comply with the provision or provisions;
(c) for each provision of the Act that the vessel or person will not comply with:
(i) the requirements that the vessel or person will instead comply with; and
(ii) an assessment of any risk that may arise from the non‑compliance, and how that risk will be averted or mitigated by compliance with the alternative requirements;
(d) the process (agreed by the Comptroller‑General of Customs and the recognised organisation) of how the Australian Border Force vessel management plan will be reviewed by the Comptroller‑General of Customs and the recognised organisation, including:
(i) the frequency of reviews; and
(ii) the nature of reviews; and
(iii) how the reviews will be reported and acted upon;
(e) the process by which compliance with the Australian Border Force vessel management plan will be reviewed by a recognised organisation, including the frequency of the reviews and the manner in which the reviews will be reported.
(3) The Comptroller‑General of Customs may only apply to AMSA for acceptance of the Australian Border Force vessel management plan if a recognised organisation has declared that it has reviewed the Australian Border Force vessel management plan and is satisfied of the matters set out in section 7.
(4) The application for acceptance of the Australian Border Force vessel management plan must:
(a) be in writing; and
(b) include:
(i) the applicant’s name, address and contact details; and
(ii) the name, position, address and contact details of a contact person for the Australian Border Force vessel management plan; and
(c) be accompanied by the Australian Border Force vessel management plan; and
(d) be accompanied by the declaration of a recognised organisation mentioned in subsection (3).
Division Division 3.1 - Navigation Regulation 2013 - Liability for loss of life, division of liability and right of contribution | Zoe
7 Review of Australian Border Force vessel management plan by recognised organisation
For subsection 6(3), the recognised organisation must be satisfied, for each provision of the Act that the vessel or person will not comply with, of the following matters:
(a) the risk of the non‑compliance is adequately assessed;
(b) the requirements to be met in place of the provision are adequately described and appropriately mitigate the identified risks.
8 Acceptance of Australian Border Force vessel management plan by AMSA
(1) AMSA must accept the Australian Border Force vessel management plan in writing, within 28 days of receiving an application, if AMSA is satisfied that the requirements of subsection 6(4) have been met.
(2) If AMSA requires further information in order to assess the application:
(a) AMSA must request the information; and
(b) the 28 day period for making a decision on the application does not commence until AMSA receives the further information.
(3) An acceptance of an Australian Border Force vessel management plan expires:
(a) on the date of expiry specified in the acceptance; or
(b) if no date of expiry is specified in the acceptance, 5 years from the date the written acceptance is given.
Note: An acceptance of an Australian Border Force vessel management plan also expires on the date that AMSA receives notification that the Comptroller‑General of Customs will not use the plan—see subsection 9(2).
(4) For paragraph (3)(a), AMSA may specify a later date of expiry for the acceptance.
9 Notification that Australian Border Force vessel management plan will no longer be used
(1) If the Comptroller‑General of Customs decides to not use an Australian Border Force vessel management plan for an Australian Border Force vessel or for a person in relation to an Australian Border Force vessel, the Comptroller‑General of Customs must notify AMSA, in writing, of the decision.
(2) The acceptance of the Australian Border Force vessel management plan expires on the date that AMSA receives the notification.
Division 2.3—Variation of Australian Border Force vessel management plan
10 Application for acceptance of variation of Australian Border Force vessel management plan
(1) The Comptroller‑General of Customs must apply to AMSA for an acceptance of a variation of an Australian Border Force vessel management plan for an Australian Border Force vessel or for a person in relation to an Australian Border Force vessel if:
(a) either:
(i) there is a significant change to the vessel; or
(ii) there is a significant change to the operation of the vessel; and
(b) the significant change requires the undertaking of a new risk assessment in relation to a provision of the Act identified in the Australian Border Force vessel management plan as a provision that cannot be complied with.
(2) The Comptroller‑General of Customs may only apply to AMSA for acceptance of a variation of an Australian Border Force vessel management plan if the recognised organisation for the plan has declared that it has reviewed the variation and is satisfied of the matters set out in section 7.
(3) The application for acceptance of a variation of an Australian Border Force vessel management plan must:
(a) be in writing; and
(b) set out the variation; and
(c) be accompanied by a copy of the part of the Australian Border Force vessel management plan affected by the variation, clearly identifying the variation; and
(d) be accompanied by the declaration of a recognised organisation mentioned in subsection (2).
(4) In this regulation:
significant change:
(a) for a vessel—means:
(i) a variation to a certificate issued for the vessel under the Act; or
(ii) a change to the vessel by a repair, alteration or modification that substantially alters the dimensions of the vessel or the passenger accommodation spaces, or substantially increases the vessel’s service life; and
(b) for the operation of a vessel—means a change to the kind of operations, described in the Australian Border Force vessel management plan for the vessel or the class of vessels to which the vessel belongs, that the vessel will conduct (including a change to the activities the vessel will undertake).
11 Acceptance of variation of Australian Border Force vessel management plan by AMSA
(1) AMSA must accept a variation of an Australian Border Force vessel management plan, within 28 days of receiving an application, if AMSA is satisfied of the matters mentioned in subsection 10(3).
(2) If AMSA requires further information in order to assess the application:
(a) AMSA must request the information; and
(b) the 28 day period for making a decision on the application does not commence until AMSA receives the further information.
Division 2.4—Ongoing review of Australian Border Force vessel management plan
12 Reporting of non‑compliance with requirements of Australian Border Force vessel management plan
If a recognised organisation becomes aware that an Australian Border Force vessel or a person has not complied with a requirement of the Australian Border Force vessel management plan related to the vessel or person, the recognised organisation must, as soon as practicable:
(a) notify AMSA of the non‑compliance; and
(b) provide any relevant documentation about the non‑compliance to AMSA.
Part 3—Safety of navigation
Division 3.1—Liability for loss of life, division of liability and right of contribution
13 Application of Division 3.1
This Division is made for subsection 176(3) of the Act.
14 Damages for personal injuries
(1) If a person on board a vessel suffers a personal injury or dies because of the fault of the vessel and of another vessel, the liability of the owners of the vessels is joint and several.
(2) This section does not:
(a) deprive a person of a right of defence on which, independently of this section, the person might have relied in an action brought against him or her by:
(i) the person injured; or
(ii) a person entitled to sue in respect of the death; or
(b) affect the right of a person to limit his or her liability in a case to which this section relates in the manner provided by law.
15 Rule as to division of loss
(1) If, because of 2 or more vessels, damage or loss is caused to:
(a) those vessels or one or more other vessels; or
(b) the cargo or freight of those vessels or one or more other vessels; or
(c) property on board those vessels or one or more other vessels;
the liability to make good the damage or loss must be in proportion to the degree in which each vessel was in fault.
(2) However, if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability is apportioned equally.
(3) This section does not make a ship liable for loss or damage if it was not at fault.
(4) This section does not:
(a) affect the liability of a person under a contract, including a contract of carriage; or
(b) impose a liability on a person from which the person is exempted by a contract or by a provision of law; or
(c) affect the right of a person to limit his or her liability in the manner provided by law.
(5) In this section:
damage or loss, caused by the fault of a vessel, includes salvage or other expenses arising from that fault, recoverable at law by way of damages.
freight includes passage money and hire.
16 Right of contribution
(1) If:
(a) a person suffers personal injury or dies on board a vessel because of the fault of the vessel and another vessel; and
(b) a proportion of the damages is recovered against the owner of one of the vessels which exceeds the proportion in which it was in fault;
the owner may recover by way of contribution the amount of the excess from the owner of the other vessel to the extent to which that vessel was at fault.
(2) This section does not allow an amount to be recovered by a person entitled to sue for damages which the person could not otherwise recover.
(3) In addition to any other remedy provided by law, a person entitled to a contribution in accordance with subsection (1), for the purpose of recovering the contribution, has the same rights and powers as a person entitled to sue for damages.
Part 4—Salvage
17 Certain provisions of Salvage Convention to have force of law
For paragraph 241(1)(a) of the Act, the following provisions of the Salvage Convention have the force of law in Australia:
(a) Articles 6 to 8, 12 to 19, 21 to 23, 26 and 30;
(b) the common understanding concerning Articles 13 and 14, as set out in Schedule 1.
Note: For the definition and location of the Salvage Convention, see section 14 of the Act.
Part 5—Transitional matters
18 Amendments made by the Customs and Other Legislation Amendment (Australian Border Force) Regulation 2015
(1) An application under subsection 6(1) that was pending immediately before 1 July 2015 is taken on and after that day to be an application under that subsection for acceptance of an Australian Border Force vessel management plan for an Australian Border Force vessel or for a person in relation to an Australian Border Force vessel.
(2) An application under subsection 10(1) that was pending immediately before 1 July 2015 is taken on and after that day to be an application under that subsection for an acceptance of a variation of an Australian Border Force vessel management plan for an Australian Border Force vessel or for a person in relation to an Australian Border Force vessel.