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By Claire Strodder – Maritime Lawyer

If you have read my recent article “Are you up to speed with BIMCO’s new TOWCON and TOWHIRE contracts?” you will know that the start of 2021 has seen BIMCO make some updates to its standard contracts. BIMCO has also updated its standard BARGEHIRE, which hasn’t been updated since 2008.

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By Claire Strodder, Maritime Lawyer

The start of 2021 has seen BIMCO update its standard TOWCON and TOWHIRE contracts. These contracts have not been updated for more than a decade with the previous versions dated 2008.  The updated contracts incorporate the most common changes that were being made to these contracts by its users, clarify some ambiguities and make the contracts easier to use.

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An incident causing the death of a person is always tragic but imagine you that are held responsible for the death of 34 people and you could have done more to protect them. On 2 September 2019, 34 people perished in a fire aboard a 22.8 metre flagged passenger vessel Conception off the coast of Santa Cruz, California.

At the time the fire broke out, five of the crew members were asleep in the crew berthing area on the upper deck. One crew member and 33 passengers were asleep in the bunkroom below. A crew member on the upper deck noticed a glow outside and realised a fire was rising up from the saloon compartment directly below. The master was able to get a distress message to the coast guard, whilst the crew members from the top deck tried to access the saloon deck, but it was blocked by fire and think smoke. By the time the Coast Guard arrived 90 minutes later, the vessel could not be saved and all on the Saloon deck perished.

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By Claire Strodder – Maritime Lawyer

On 26 February 2020, lawyers for the Katherine residents affected by a PFAS (per and poly-fluoroalkyl substances) contamination reached an ‘in-principle’1 settlement agreement with the Department of Defence for a total settlement figure of $92.5 million. The Katherine PFAS Contamination Class Action (Class Action) arose as a result of the leaking of PFAS used in firefighting foams at a Department of Defence base, which lead to the contamination of the land and waterways. While the Class Action is not directly associated with the maritime industry it is a clear signal that the problem of the ‘forever chemicals,’ 2 PFAS, is not going anywhere fast. This article considers PFAS, the concerns with PFAS, PFAS and the maritime industry and finally some practical tips for organisations going forward.

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By Claire Strodder – Maritime Lawyer

It seems like over the last couple of weeks the impact of COVID-19 spreading around the globe has turned the world as we know it upside down. As a result, many workplaces have been forced to require their employees to work from home. For us at Pacific Maritime Lawyers, we are already a virtual law firm and have been for over 5 years so COVID-19 has not affected the way that we work, as it has for many of you.

I transitioned from working in an open plan office to working remotely from my home office nearly a year ago. Working from home suits my lifestyle choices but for some, especially the extroverts and those who thrive amongst others, working from home can be isolating, lonely and an unexpected shock to the system!

Here are my 3 top tips when adopting successful working from home practices.

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By Claire Strodder – Maritime Lawyer

In response to the COVID-19 outbreak in Australia, the Queensland government has introduced many new restrictions on Queensland residents to try and limit the spread of the virus.

These new restrictions are set out in amendments to the Public Health Act 2005 (Qld) (Public Health Act) and they give health and emergency officers more powers to contain the outbreak of COVID-19. From midnight on Monday 29 March 2020 the amendments to the Public Health Act came into force, which affect everyone in Queensland, including YOU when out on your boat or fishing. Take note as failure to adhere to these new laws can lead to a hefty fine. Here are some common questions around the restrictions in Queensland waters!

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By Anthony Marinac – Solicitor / Advocate

Every year, as the waters cool, the graceful, elegant creatures emerge and slowly make their way up the coastline, following the sun and its warmer waters. Sometimes singly, and sometimes in groups, their curved shapes effortlessly pushing the waters aside as they glide forwards. In many cases, guided by unerring instinct, these creatures return to the exactly the same place each winter, year after year, before they are called back again to more southern climes.

No, I’m not talking about whales. Not dolphins either. I’m talking about recreational boat owners from New South Wales, who start to think around this time each year that a winter sojourn in Hervey Bay right be just the ticket!

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By John Kavanagh – Principal Solicitor, Master Mariner

In my experience, there are two types of performance improvement plan (PIP); one that is genuinely motivated to improve an employee’s performance (the Improvement PIP), and the PIP that is intended to be the first step in the ‘exit’ process for that employee from the organisation (the Exit PIP).

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By Anthony Marinac – Solicitor / Advocate

Every Domestic Commercial Vessel (DCV) in Australia must have a Safety Management System (SMS) for that vessel. The creation and ongoing management of the SMS provides a brilliant opportunity for vessel owners and operators to think systematically about safety, before there is an incident to be managed.

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By Anthony Marinac – Solicitor Advocate

A recent case decided by the Chief Justice of Queensland, Pix v Suncoast Marine Pty Ltd, may have opened up a new head of damages in cases where defects at the time of sale, or defective repairs, make a vessel unavailable for use (including making the vessel unavailable while repairs are undertaken).

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By Kendall Messer – Maritime Lawyer

We have your New Year’s Resolutions all organised! If you own a boat, make this the year that you are going to be safer on the water with these resolutions.

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As a boat owner, employing the right contractor to undertake work on your vessel is an important decision. You are not only entrusting this person with your boat while the work is being done, but you will likely also be paying large sums of money.

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The Queensland Government is going to war, a war to be waged against derelict vessels of Queensland waterways. The designated War on Wrecks taskforce is fraught with an enormous challenge. In a very short summary, their work will involve;
• The identification of wrecks in waterways across Queensland,
• Prioritising the most troublesome wrecks,
• Developing methods to deal with these wrecks most efficiently in terms of resources and cost,
• And vitally, educating the boating community toward improved future practices.
The Queensland Government has allocated a budget of $20 million to the War on Wrecks fighting fund, not an insignificant amount, the Government is taking this issue seriously. In the coming years Queensland boat owners will need to be responsible for their vessels from the maiden to the final voyage and beyond.

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Marine incident: two words that frighten many a boater, various fears leap to mind; injury, damage, insurance, cost, penalties. Really there are only two words that need to be remembered: report and help. The reason why ‘report’ and ‘help’ are the two words to remember are because these are the boaters’ obligations.

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After consultations, delays, industry worries and political funding, the transition to a National System for Domestic Commercial Vessels has arrived. Through the month of June commercial boat owners and operators will transition from their state and territory agencies to the National System administered by the Australian Maritime Safety Authority (AMSA).

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Across national and international media, photographs of dead, dying and distressed livestock were not so long ago the headline and front page. The public are in outcry while the industry demands perspective. In light of the continuing public distress over the fate of livestock exported by ship there are presently two bills before parliament.
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It’s a fact: more than 99% of Australia’s imports and exports from Australia occur by ship.
Everyday, every Australian will eat, use, wear and come into contract with items that have arrived in Australia by ship. The shipping industry is vast and important, but also largely hidden. Most people will only ever turn their minds to ferries and cruise vessels, and maybe will make use of container ships for work, or privately. However, the 4,568 container ship arrivals in 2017 amount to only 16% of vessel arrivals in Australia in the year. The majority of vessel arrivals are bulk carrier vessels, which number at 14,324 and make up more than 50% of all vessel stops in Australia.

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On the first of May, the Australian Marine Safety Authority (AMSA) published their proposal for an exemption allowing recreational boat owners to enter the holiday and accommodation industry.
The Marine Safety (Short term marina accommodation) Exemption 2018 will provide for vessel owners to let their vessels out as holiday accommodation and make use of platforms such as Airbnb and Beds on Board. The importance of the exemption is that vessel owners are able to do this without complying with the full complement of onerous requirements of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (the National Law).

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London has a long, long maritime history, and as a result it is a dominant hub of maritime business and law.  Maritime arbitration is no different. The London Maritime Arbitrators Association (LMAA) is by far the busiest of the world’s arbitration centres. In 2016 more than 1700 individual maritime arbitrations were handled by the LMAA.

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  • Coastal Trading                        By Kendall Messer – Maritime Lawyer

Six years ago the Australian government introduced the rather optimistically named Coastal Trading (Revitalising Australian Shipping) Act 2012 (“the Act”). The Act is widely regarded as failing in its aim to revitalize Australian shipping. It was introduced to stimulate Australian coastal trade by providing a system under which lower costs would make shipping financially attractive to Australian businesses, however, not on Australian ships.

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Delaware North Marine Experience Pty Ltd v The Ship “Eye-Spy” [2017] FCA 708 – McKerracher J – Federal Court of Australia – 23 June 2017

Facts
Delaware North Marine Experience Pty Ltd (“the Plaintiff”) entered into a “Barecon 89” Standard Bareboat charter for a period of 14 days beginning 6 February 2015. The vessel suffered a failure of her starboard stern tube assembly (SSTA) on 7 February 2015 and was unable to be sailed.

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The safety of commercial shipping and recreational vessels are fundamental to the Australian way of life. However, legal claims involving vessels are becoming more common. One difficulty with such claims is that vessels frequenting Australian waters are often foreign owned, and in many cases, the vessel itself is the only asset which can be used to secure a claim brought in connection with the activities of the vessel.  Fortunately, you can take action to protect your rights under the Admiralty Act 1988 by arresting the vessel of the other party. This can be achieved by commencing an action in rem, which means that the claim is made against property (in this case a vessel) as opposed to a claim against an individual or company.

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  • Marine Insurance                   By Kendall Messer – Maritime Lawyer

Insurance is very important for all boat owners. Whether the boat is used commercially or recreationally, insurance is always recommended if practicable.

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On Saturday 13 January 2018, two brothers died as a result of air fume accumulation inside a haulage tank last used to transport a sugar cane by-product known as superflow. It is presumed that the two men were cleaning the tank, and due to the confined space, they were overcome by the fumes.

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Decided to buy a boat? Fantastic! There are many guides out there on the internet to help you choose the right one. This guide is to help you to avoid the potential legal minefield.

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Any mariner worth their salt knows that alcohol and boats are not a good mix.  Many marine incidents are attributable to the consumption of alcohol by one or more of the masters involved.  Such incidents are even more regrettable because they would likely not have occurred if alcohol was not involved.

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We have received a number of queries recently about marine pollution laws for recreational vessels. One inquirer was under the impression that minor oil spills (such as from a bilge system) more than 3 miles from the coast was not against the law. Wrong!  A discharge of oil from a boat into the water is an offence wherever you are.

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If you own or operate any type of boat that is used for any kind of commercial purpose, then you will almost certainly need to have a written Safety Management System (SMS) in place. This includes charter fishing boats, hire and drive jet skis, jet boats with passengers, trawlers, ferries, water taxis, sunset cruise gondolas, parasailing vessels, dive tenders – the works.

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MARINE pilots in Australia are exempt from civil liability, but the same protection does not apply to regulatory or criminal liability. A criminal prosecution for the conduct of a pilot has not yet resulted in imprisonment in Australia but sentencing in a recent United Kingdom case moves this possibility a step closer to home.

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