A Leading Crew (skipper 1) from the Volunteer Marine Rescue NSW asks about how many times the Vessel and crew has to be checked.   He says:

My understanding is that if I’m on duty as a skipper I’m responsible for the vessel and my crew. At the start of training or duty I have to check if the vessel is seaworthiness, check if all the equipment is on board, and check if the crew is competent or fit for the task.

The question was how many times the vessel has to be checked. I said that the vessel and the equipment has to be checked all the time if you take the vessel out. I have been told that the vessel has to be checked only once a month for Maintenance check.

Our vessel is on the water twice a week or more with different Skippers. I said to the members if you go out without checking the equipment and something goes wrong you are responsible and if it goes to the coroner they will ask why didn’t you check your vessel. The answer I receive refers to the good Samaritan Law. I believe that if I’m in uniform I have a duty of care and special as the Skipper and I believe that the good Samaritan law is not relevant in that case. I believe that 99% of the Marine Rescue Units check the vessel all the time to make sure it is fit for the task.

First it’s true that the ‘Good Samaritan’ laws are not relevant. They are set out in the Civil Liability act 2002 (NSW) ss 55-58 and they relate to people who come forward to provide medical assistance in an emergency. Those provision have no application in the circumstances set out here.

What people may have in mind are the volunteer protection provisions which provide that ‘A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work’ (Civil Liability Act 2002 (NSW) s 61) but an act has to be done ‘in good faith’. It cannot justify knowingly taking unacceptable shortcuts because the volunteer believes they can’t be held personally liable.

The Volunteer Marine Rescue (NSW) is, according to paragraph 1(1) of their constitution, ‘a company limited by guarantee under the Corporations Act 2001 (Commonwealth) whose purpose and functions are sanctioned by the NSW Government…’ Further one of their functions [3(c)] is to ‘operate within the NSW emergency management framework as provided for in the State Emergency and Rescue Management (SERM) Act 1989 and any requirements imposed upon Marine Rescue NSW by the State Rescue Board in accordance with the SERM Act’.

According to the Marine Safety (Domestic Commercial Vessel) National Law (which is set out in Schedule 1 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) and incorporated into NSW law by the Marine Safety Act 1998 (NSW)), ‘”domestic commercial vessel” means a vessel that is for use in connection with a commercial, governmental or research activity’ (s 7(1); emphasis added).   Assuming that covers the NSW Volunteer Marine Rescue Service the skipper will be required to comply with this law.

To comply with this law the owner of the vessel (in this case assume Volunteer Marine Rescue (NSW) is the lawful owner of the boat)

… must, so far as reasonably practicable, ensure the safety of:

(a) the vessel; and

(b) marine safety equipment that relates to the vessel; and

(c) the operation of the vessel .

Further, the owner commits an offence if

(a) the owner does not provide or maintain the vessel so that the vessel is, so far as reasonably practicable, safe; or

(b) the owner does not implement and maintain a safety management system that ensures that the vessel and the operations of the vessel are, so far as reasonably practicable, safe; or

(c) the owner does not provide, so far as reasonably practicable, such information, instruction, training or supervision to people on board the vessel as is necessary to ensure their safety.

The owner also commits an offence if:

(a) the owner operates the vessel, or causes or allows the vessel to be operated; and

(b) the vessel is an unsafe vessel.

or “prevents or restricts the master of the vessel from making or implementing a decision that, in the professional opinion of the master, is necessary for the safety of a person or the vessel” (s 12).

There are similar duties imposed on the ship’s master by s 16:

(1)  The master of a domestic commercial vessel must, so far as reasonably practicable, ensure the safety of:

(a)  the vessel; and

(b)  marine safety equipment that relates to the vessel; and

(c)  the operation of the vessel .

(2)  Without limiting subsection (1), the master of a domestic commercial vessel contravenes that subsection if the master does not, so far as reasonably practicable, implement and comply with the safety management system for the vessel and the operations of the vessel.

(3)  Without limiting subsection (1), the master of a domestic commercial vessel contravenes that subsection if:

(a)  the master operates the vessel, or causes or allows the vessel to be operated; and

(b)  the vessel is an unsafe vessel…

Section 17 says:

(1)  The master of a domestic commercial vessel must, when carrying out duties as master of the vessel:

(a)  take reasonable care for his or her own safety; and

(b)  take reasonable care for the safety of persons who may be affected by his or her acts or omissions.

As is so often the case, the question is what is ‘reasonably practicable’? What is:

… reasonably practicable , in relation to a duty imposed upon a person to ensure safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring safety, taking into account and weighing up all relevant matters, including:

(a) the likelihood of the hazard or risk concerned eventuating; and

(b) the degree of harm that might result from the hazard or risk concerned eventuating; and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk concerned; and

(ii) ways of eliminating or minimising the hazard or risk concerned; and

(d) the availability and suitability of ways to eliminate or minimise the hazard or risk concerned; and

(e) after assessing the extent of the hazard or risk concerned and the available ways of eliminating or minimising the hazard or risk concerned, the cost associated with available ways of eliminating or minimising the hazard or risk concerned, including whether the cost is grossly disproportionate to the hazard or risk concerned.

This is very similar to the Work Health and Safety Act 2011 (NSW) and is a classic risk assessment.  A master of a vessel can see that there are many risks and it is reasonably practicable to check somethings each time before setting out, others cannot be done so quickly.  Some need regular checking, other things may only need checking once a week or once a month depending on the probability that the situation will have changed.

Discussion

We can conclude that the answer is that the owner should have a system in place to ensure the safety of the craft and the master and the crew are required to comply with that system, so that may be the regular inspection of the boat to complete a regular checklist. But that in no way removes the Master’s obligations to be satisfied that the vessel is ready and safe to be operated on each and every journey. I can’t begin to say exactly what each requires as I am not a master or crew of a boat but it is a matter for the Master to determine what satisfies him or her that the vessel is safe to operate.

It should be noted that failure to comply with the duties set out in the National Law constitute criminal offences. It follows that the Civil Liability Act (given it’s limited to ‘civil liability’) won’t operate to excuse a master of his or her obligations to take reasonably practicable steps to ensure the safety of the vessel.

Addendum – an example

A further thought may make the position clear.   Most motor vehicles are subject to an annual roadworthy check (Road Transport (Vehicle Registration) Regulation 2007 (NSW) r 57(1)).   Even so many fleet owners and commercial operators will require their staff to conduct daily, weekly, fortnightly and monthly checks.     It is also recommended that owners of private vehicles conduct regular checks – (see for example http://teenslearntodrive.com/before-starting-the-car/).

At the end of the day though, the car’s safety is a matter for the driver. If the car’s gone through it’s annual road safety check yesterday, but today has a blown headlight bulb, it’s the driver who will be responsible for driving the defective vehicle.

As with the boat. There may be an annual check, the owner/operator may require the crew to do regular checks but at the end of the day, when the boat sets sail, it is the Master who must assure him or herself that the boat is seaworthy and the equipment for the task at hand is ready to go. This must be particularly evident to a crew from Maritime Rescue who no doubt have more insight into what can go wrong than other recreational boat users.   A daily check can’t cover what an annual check can, depending on the size of the boat you can’t take it out of the water or have a mechanic service the motor every day, so that is where ‘risk assessment’ comes in. What can go wrong and what do you do about it? I have no doubt that just as pilots go through pre-flight checks before every flight there are things the master of a rescue vessel would want to check every trip.   As I say, with no boating experience I don’t know what they are, but I’m sure the ship’s masters know.