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Web Alert: Excessive security demands in Australia for pollution offences
News & Insights 7 July 2013
The Australian Maritime Safety Authority (AMSA) have recently demanded security in the sum of AUS$20.4 million
The Australian Maritime Safety Authority (AMSA) have recently demanded security in the sum of AUS$20.4 million in respect of a relatively minor alleged offence under the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.
Under the Act, AMSA may detain a foreign ship if there are "clear grounds for believing that a pollution breach has occurred" and may then demand security before releasing the detained vessel. Section 27A(4)(b) of the Act provides that such security must “be in an amount that, in the Authority’s opinion, is equivalent to the maximum amount of all penalties, other amounts of money, costs and expenses that could be payable… in respect of the pollution breach.”
AMSA’s demand for security equivalent to AUD20.4 million for a relatively minor pollution breach indicates that they are seeking to interpret s27(A)(4)(b) to mean that they have no discretion in setting a security amount and must demand security equal to the maximum amount of penalties and other costs that could be payable for a pollution breach rather than an amount that, in their opinion, could be payable in respect of the pollution breach for which the vessel has been detained.
Members trading in Australian waters should be aware of the risk of such security demands as it appears that AMSA are currently unwilling to apply any level of discretion under the legislation.