Maritime Law in Australia

The Sources of Australian Maritime Law

Australian maritime law derives from multiple sources: the common law inherited from England; the Admiralty jurisdiction of the Federal Court and state Supreme Courts; and a comprehensive body of federal legislation regulating shipping, navigation, pollution, and offshore activity. The Constitution confers on the Commonwealth Parliament legislative power with respect to “lighthouses, lightships, beacons and buoys” (s 51(vii)), “navigation and shipping” (s 51(viii)), “fisheries in Australian waters beyond territorial limits” (s 51(x)), and “external affairs” (s 51(xxix)), which together provide the constitutional foundation for federal maritime regulation.

The Admiralty Act 1988 (Cth)

The Admiralty Act 1988 (Cth) governs the exercise of Admiralty jurisdiction in Australia, establishing the in rem jurisdiction of the Federal Court and state Supreme Courts. The categories of maritime claim are exhaustively listed in s 4, including claims for damage done by a ship, loss of life or personal injury, salvage, goods supplied to a ship, and possession or ownership of a ship.

The in rem proceeding is the characteristic remedy of Admiralty law, allowing a plaintiff to “arrest” a ship as security for the satisfaction of a judgment. The procedure for arrest is governed by the Admiralty Rules (Federal Court Rules 2011, Schedule 2). In Nagrint v The Ship “Regis” (2002) 126 FCR 441, the Full Federal Court held that the Admiralty Act should be construed beneficially to give effect to its purpose of providing a comprehensive and effective regime for maritime claims.

The Act also provides for the operation of the “general maritime law” of Australia, which is defined by s 9 as “the common law of Australia” insofar as it applies to maritime matters, including the law relating to salvage, collision, and general average. The interaction between the general maritime law and the statutory regime was considered in Lauritsen v The Ship “Nordic Commander” (2004) 140 FCR 260.

The Navigation Act 2012 (Cth)

The Navigation Act 2012 (Cth) is the primary shipping statute, administered by the Australian Maritime Safety Authority (“AMSA”). It regulates ship registration, seafarer qualifications, safety standards, and maritime security, and implements Australia’s obligations under SOLAS, STCW, and the ISPS Code.

Carriage of Goods by Sea

The Carriage of Goods by Sea Act 1991 (Cth) gives the force of law to the Hague-Visby Rules as amended by the 1968 and 1979 Protocols (Schedule 1A). The Rules govern the rights and liabilities of carriers and shippers under bills of lading and similar documents of title, imposing a minimum liability regime on carriers and a maximum limitation of liability.

The Rules apply to all shipments from Australian ports. The carrier must exercise “due diligence” to make the ship seaworthy (Article III, Rule 1) and is entitled to limitations under Article IV, Rule 5 (currently 666.67 SDR per package or 2 SDR per kilogram, whichever is higher).

The relationship between the Carriage of Goods by Sea Act and the general law of bailment and contract was considered in The “Great China” v BHP Transport Pty Ltd (1998) 81 FCR 302.

Limitation of Liability

The Limitation of Liability for Maritime Claims Act 1989 (Cth) gives effect to the Convention on Limitation of Liability for Maritime Claims 1976 (“LLMC 1976”) as amended by the 1996 Protocol. The Act allows a shipowner (and, in certain circumstances, a salvor or insurer) to limit their liability for maritime claims to an amount calculated by reference to the ship’s tonnage.

The right of limitation is available for claims for loss of life or personal injury, claims for loss of or damage to property, and claims for delay or economic loss. The right is lost if the claimant proves that the loss resulted from the “personal act or omission” of the shipowner committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result (Art 4 of LLMC 1976).

Marine Pollution Regulation

Marine pollution is regulated under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth), which implements the International Convention for the Prevention of Pollution from Ships (“MARPOL 73/78”). The Act prohibits the discharge of oil, noxious liquid substances, sewage, garbage, and harmful substances from ships, and imposes reporting requirements for pollution incidents.

The Oil Pollution Act 1992 (Cth) implements the international oil pollution liability conventions, imposing strict liability on shipowners for oil pollution damage from tankers, subject to limited defences.

AMSA exercises enforcement powers under these Acts, including the power to detain ships, issue directions to prevent or mitigate pollution, and seek civil penalties and criminal sanctions for contraventions.

Coastal Trading and Maritime Cabotage

The Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) regulates maritime cabotage — the carriage of goods and passengers between Australian ports. The Act requires a licence or permit for the coastal trading of goods by ship, distinctions being drawn between “licensed vessels” (Australian-flagged vessels) and “permit vessels” (foreign-flagged vessels granted temporary authorisation).

The Act has been criticised by the Productivity Commission for increasing supply chain costs without achieving its objectives.

Offshore Oil and Gas Regulation

The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) regulates petroleum exploration and recovery in Commonwealth waters, establishing a framework for title administration, health and safety regulation, and environmental management. The National Offshore Petroleum Safety and Environmental Management Authority (“NOPSEMA”) is the independent regulator for safety and environmental management.

Australia and the International Maritime Organization

Australia is an active member of the International Maritime Organization (“IMO”), elected to the IMO Council (Category B), and has contributed to the Marine Environment Protection Committee (“MEPC”) and Maritime Safety Committee (“MSC”). Australia advocated for the IMO’s designation of the Great Barrier Reef as a Particularly Sensitive Sea Area (“PSSA”) in 1990.