La Competencia Imperfecta; Los mercados de competencia imperfecta son aquellos en los que bienes y productores son los suficientemente grandes como para

do not derive from any IMO convention, but are revenue raising Acts by the Commonwealth Government. A ship is not liable for the levy for the quarter if it is only in port for some non-commercial reason, such as mere watering, fuelling, provisioning, changing crew or passengers or in an emergency.85 _{Masters and owners are jointly and severally liable to pay}

and the ship may be detained for unpaid levies.86

The funds raised from the levy are payable to AMSA and are expen- ded for administration of the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances (‘the National Plan’).87 _{The rate of the levy is regularly reviewed and over recent years}

the rate struck under the levy has been steadily reduced.

7.8 Protection of the Sea (Powers of Intervention) Act 1981

The Intervention Convention was given domestic force in Australia by the

Protection of the Sea (Powers of Intervention) Act 1981 (the POI 1981), which

gave extensive powers to the Commonwealth Government to intervene in the case of an offshore shipping casualty that is polluting, or threa- tening to pollute, the Australian marine environment.88 _{The substance}

that was initially identified to warrant intervention was oil, but in sub-

84 Section 5 provides: ‘Where, at any time during a quarter when a ship to which this Act applies was in an Australian port, there was on board the ship a quantity of oil in bulk weighing not less than 10 tonnes, levy is imposed in respect of the ship for the quarter’.

85 Section 5 of the Collections Act. 86 Collection Act ss 9, 12.

87 For further detail about AMSA and the National Plan see Chapter 8; also see White, Marine Pollution Laws 1994, above, Sections 7.2.5 and 7.2.6.

88 The Intervention Convention and this Act originally derived from the Torrey Canyon maritime casualty; as mentioned in Chapter 1.

sequent protocols to the Convention, followed in the POI 1981 Act, this has been extended to a wide range of listed pollutants, which list is frequently amended.89 _{The Convention itself only applies in the high}

seas, but the POI 1981 has been extended to apply also in the EEZ and other maritime zones offshore from the Australian coastline.

The POI 1981 is in two parts in relation to the areas to which it applies offshore from Australia. The first is the high seas and the second is the EEZ and zones inshore from its outer edge. Before mentioning that, however, it is appropriate to mention the basis in international maritime law for the Australian Act to apply in each of these zones. Commencing from inshore zone, the powers underpinning the POI 1981 for the internal waters and territorial sea derive from the sovereignty that Aust- ralia, like all coastal states, has over these waters but they are, of course, subject to certain rights of innocent passage. In the contiguous zone and to the other edge of the EEZ a coastal state may rely on the enforcement powers in Section 6 of Part XII of UNCLOS and especially Art 221.90

Beyond the EEZ, which is the high seas, there is an argument that UNCLOS Art 221 applies, but it is not necessary to rely on this provision as the Intervention Convention expressly gives the coastal state power in international law in the high seas.

Turning now to the provisions of the POI 1981, one notes that the powers in relation to dealing with a maritime casualty on the high seas are extensive. The trigger for their exercise is that AMSA must be satis- fied that the pollution from the casualty may result in a ‘grave and imminent danger’ to the Australian coastline or related Australian interests.91 _{AMSA’s powers to deal with the maritime casualty or its}

cargo include moving it, removing cargo, salvage, taking control, etc, but to sink or destroy the ship requires the approval of the Minister. AMSA may issue directions to the owner, master or salvor to deal with the casualty, or AMSA itself may take steps to move or otherwise deal with

89 See the Schedules to the Act for the lists of substances. Readers should check this Act, and every Act for that matter, for amendments as they are made frequently. 90 Article 221 provides that nothing in Pt XII shall prejudice the right of states, pur-

suant to international law, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage from pollution from a maritime casualty.

91 Section 8(1), which relates to oil, provides: ‘(1). Where the Authority is satisfied that, following upon a maritime casualty on the high seas or acts related to such a casualty, there is grave and imminent danger to the coastline of Australia, or to the related interests of Australia, from pollution or threat or pollution of the sea by oil which may reasonably be expected to result in major harmful conse- quences, the Authority may take such measures, whether on the high seas or elsewhere, as it considers necessary to prevent, mitigate or eliminate the danger.’ The ‘Authority’ is defined to be AMSA; s 3. Section 9(1) has similar provisions but relating to substances other than oil. It is noted that s 8(1) is expressed to apply in the high seas ‘or elsewhere’, whereas Art I(1) of the Intervention Con- vention is expressed only to apply in the high seas.

the ship or cargo,92 _{which it would normally do through employing con-}

tractors such as salvors.

Of particular note is that the powers given to AMSA also include giving directions to owners, masters or controllers of ships other than the casualty, or of any other ‘tangible asset’,93 _{or any supplier of goods or}

services, or to a person to whom those goods or services were proposed to be supplied.94 _{In short, under this part of the POI 1981 AMSA is em-}

powered to give directions to a very wide range of persons, either in the own right or because they are in control of ships, installations or other things.95

The limitations on the exercise of these powers are:

(a) that a ship other than the casualty can only be given directions if it is in the Australian EEZ or one of the other Australian zones, or it is an Australian ship;

(b) directions may not be given to a warship or any ship owned or operated by a foreign country that is only in use on government non-commercial service;

(c) consultation is to occur with other state parties likely to be affected, which includes the flag state of the casualty, as required by Art III of the Intervention Convention;

(d) the powers must only be exercised proportionately to the threa- tened damage, should not unnecessarily interfere with the rights and interests of others, should not go beyond what is reasonably necessary and should cease as soon as the risk has ended; all of which is required by Art V of the Convention.96

The second part of the POI 1981 relating to powers is in s 10, under the heading of ‘general powers’. There are subtle differences in the provisions of the Act in relation to these powers and those exercisable on the high seas. These general powers may be exercised in the EEZ, terri- torial sea (coastal sea)97 _{or internal waters (or an Australian ship on the}

92 Article 8.

93 A ‘tangible asset’s is defined as ‘land or seabed, premises, a facility, a structure, an installation, vessel, aircraft, vehicle, an item of equipment or machinery, a tool or ‘any other article’; s 3.

94 Sections 8(2B) and 9(2B). These powers are similar to the wide powers given to a ‘Receiver of Wreck’ in Part VIII of the Navigation Act 1912. For discussion on this, see White M, ‘Salvage, Towage, Wreck & Pilotage’, Section 9.20 in Chapter 9 of White M (ed), Australian Maritime Law (Federation Press, 2nd ed, 2000).

95 Sections 8(2C) and 9(2C).

96 Sections 8(4) and 9(4).

97 ‘Australian coastal sea’ is defined as the territorial sea and the sea on its land- ward side not within the limits of a State or the Northern Territory. In effect, off most of the Australian coastline the coastal sea is the territorial sea although there are some small areas of the sea between the baselines and the internal waters of the States or the NT.

high seas). The trigger for their exercise relates to ‘oil or noxious sub- stances’, rather than the ‘oil’ or ‘substances other than oil’, and they relate to escaping, have escaped, or are likely to escape from a ship, rather than a ‘marine casualty’.98 _{In such cases AMSA may take such measures as it}

considers necessary to prevent or reduce the pollution, or likely pollu- tion, by the oil or noxious substance.

This different wording would not normally be material, but it could be if there is a dispute about compensation being sought, as to which see below. One may see that the difference between this part of the Act and the earlier part is not only the zones of the sea where the casualty or other ship may be, but also what pollutant is involved. In the first part, where the Act relies on the Intervention Convention, the convention itself sets out the substances that are involved. In this second part, ‘oil’ is defined widely as including just about any oil. However, ‘noxious substance’ is defined in the same terms as the Protocol to the Intervention

Convention, so it has the same meaning as for the first part of the Act.99

Contravention or failure to comply with a valid direction is an indictable offence for which prosecution may be brought without any time limit.100 _{It may well be that AMSA incurs much expense in dealing}

with a marine casualty and the power to recover its expenses incurred in dealing with the vessel or its cargo is contained in a separate Act, Pts IV and IVA of the Protection of the Sea (Civil Liability) Act 1981.

Many of these extensive powers were created under major amend- ments to the Act in 2006 and, in order to deal with these powers and to bring expertise to their exercise, AMSA created the position of Maritime Emergency Response Commander (MERCOM). The position arose out of the Australian Transport Council101 _{agreement in 2005 to provide a}

towage capability at strategic locations around102 _{the Australian coast, to}

appoint a single national coordinator to manage emergency interventions in shipping casualties that threaten to create significant pollution and to enhance the powers for intervention in them. A towage tug has been commissioned (Pacific Responder) and it is based in Cairns and there are arrangements in place for tugs to be hired as the occasion demands, which aspects are managed by MERCOM.

It can be seen, therefore, that the Powers of Intervention Act 1981 gives wide powers to the Commonwealth, administered through AMSA, to direct and regulate the management of a maritime casualty that pollutes or is likely to pollute the Australian coast or the waters off it. Of parti-

98 Section 10(1),(2). 99 Section 10(8). 100 Sections 11-20.

101 Comprised of the Transport Ministers of the Commonwealth, States and the NT. 102 Chaffey, Greg ‘Amendments to the Protection of the Sea (Powers of Intervention)

Act’; paper delivered on 29 September 2006 to the 2006 Annual MLAANZ con- ference.

cular note is that a direction under the POI 1981 prevails over a direction under any State or NT law to the extent of any inconsistency.103 _{It also}

prevails over any direction under any other Commonwealth Act unless that act is enacted after the 2006 amendments to the POI 1981, or an Act expressly provides to the contrary, or unless the actions come under the

Historic Shipwrecks Act 1976 (Cth).104

There are other provisions of the POI 1981 that are important but space precludes addressing them all except for two of them. The first is that extensive protections are given against liability for civil or criminal proceedings against the Minister, AMSA officers, persons giving or being given directions, etc, because of any act done or omitted to be done in the exercise of any power conferred or compliance with any direction made under the Act.105 _{It should be noted, however, that this leaves open}

possible liability for any act or omission purportedly done under the Act but, in fact, not so at all. However, and this is another area in which legal options are open, the Act also provides that the protection does not lie to a person to whom a direction is given to the extent that it is inconsistent with an international agreement to which Australia is a party.106

The other point that should be mentioned relates to recovery of expenses or compensation by those, other than the casualty or ship that caused the problem, who may suffer an expense in compliance with a direction. A party to whom a direction is given who incurs reasonable expense may seek to recover it from the owner or owners of the ship and that sum is a debt recoverable in any court of competent jurisdiction.107

As to compensation, if actions under the Act result in acquisition of property from a person otherwise than on just terms the Commonwealth is liable to pay a reasonable amount for it. This reflects the provision in the Australian Constitution that the Commonwealth may not acquire property from a person without paying compensation on just terms.108

The POI 1981 does not, however, provide that the acquisition is by the Commonwealth and leaves open an argument that if a person’s property is acquired by any party then the Commonwealth must pay the compen- sation. There is a compensation provision in the Intervention Convention which, however, is on somewhat different terms109 _{and it would have}

103 Section 5. 104 Section 5(1C). 105 Section 17A(1)-(5). 106 Section 17A(6). 107 Section 17B. 108 Section 51(xxxi).

109 Intervention Convention Art VI provides: ‘Any Party which has taken measures in contravention of the provisions of the present Convention causing damage to others, shall be obliged to pay compensation to the extent of the damage caused by measures which exceed those reasonably necessary to achieve the end men- tioned in Article I’.

been preferable if this had been reflected in the Act. However, there is not space here to explore the liability of the Commonwealth under the Convention or the POI 1981 except to note that the compensation provi- sions could have been made clearer and that this lack of clarity is liable to be the source of extensive litigation should a major and expensive incident occur.110

These powers given under the POI 1981 are extensive, but they are not far different from the powers given to the SOSREP in the United Kingdom.111 _{They are necessary if there is to be power to deal with a}

major maritime casualty that is causing, or threatening to cause, major pollution. One only has to be aware of millions of dollars of damage, the killing and maiming of marine life and general loss and distress caused by a major maritime casualty to be sympathetic to these extensive powers being granted, but it is essential, of course, that they be exercised well. Examples of these types of marine casualties are the Exxon Valdez, the

Erika and the Prestige where better and more extensive management may

well have prevented the extent of the disasters. One also notes that these powers, except sinking of the casualty itself, are exercisable by AMSA, through the office of MERCOM, so the risks of uninformed political intervention are much reduced. This uninformed interference occurred in the Australian maritime casualty, the tanker Kirki in 1991, when certain political interference resulted in certain aspects of the casualty’s manage- ment being far from satisfactory. Under the POI 1981 its repetition is now much less likely although, of course, in the end AMSA is subject to directions from the Minister.112