Appeals Tribunal affirms AMSA decision to ban vessel from Australian ports

An Australian Maritime Safety Authority (AMSA) decision to Panama flagged bulk carrier Fortune Genius (IMO 9221877) from entering or using an Australian port for a period of 12 months has been affirmed by the Administrative Appeals Tribunal (AAT).

AMSA surveyors boarded the vessel in Gladstone, Queensland, on September 5th 2019 after receiving a complaint via the International Transport Workers’ Federation (ITF). The vessel was detained after AMSA’s investigation revealed that the crew had been deliberately underpaid by the operator for consecutive months, the sum totalling approximately $100,000, and that it had used two sets of wage accounts in order to deceive authorities.

AAT Deputy President Constance agreed with AMSA that such contraventions of the Maritime Labour Convention were extremely serious, and that banning the vessel was appropriate in the circumstances.

AMSA General Manager of Operations Allan Schwartz said that “the international conventions that protect seafarers’ rights are very clear. The decision by the Administrative Appeals Tribunal supports AMSA’s approach to ban ships that underpay crew for extended periods of time”.

Details

On, or shortly before, September 5th 2019, bulk carrier Fortune Genius sailed into the Port of Gladstone in Queensland. The crew on board included eight Seafarers from Myanmar (IMN, September 15th 2019).

As a result of a complaint received by the Australian Maritime Safety Authority, the Port State Control Officer and another Officer (as delegates of the Authority), carried out an inspection of the vessel and its records. This inspection revealed that the ship had several deficiencies, including serious irregularities in the payment of wages to the Myanmarese Seafarers.

The Authority issued a detention order on September 5th 2019 as the delegates reasonably suspected, inter alia, that the vessel was involved in a contravention of the Navigation Act 2012.

On September 13th 2019 AMSA banned Fortune Genius from entering or using any port in Australia for a period of 365 days, commencing the day the vessel departed the Port of Gladstone, which took place on September 13th 2019.

Fortune Genius Shipping Ltd and New Fortune Genius Management Ltd, the Applicants in this matter, applied to the Tribunal to review the direction of September 13th 2019.

The Appeals Tribunal supported AMSA’s decision because:

  • Australia is a signatory to the Maritime Labour Convention 2006 which sets out standards for the working and living conditions of international seafarers. Australia has certain obligations under the Convention in relation to foreign vessels which enter its ports. This includes an obligation to exercise Port State Control over ships which enter those ports and which do not meet their obligations under the Convention. As a signatory to the Convention, Australia is responsible for enforcing compliance by foreign vessels while they are in Australian ports.
  • The Authority exercises Port State Control in Australia under the provisions of the Navigation Act.
  • As M.V. Fortune Genius sails under the flag of Panama, which is a party to the Convention, it is required to meet the relevant standards imposed by the Convention.
  • The Applicants assumed ownership and management of the vessel on 10 April 2019.

2002-built, Panama-flagged, 39,941 gt Fortune Genius is owned by Fortune Genius Shipping Ltd care of manager C&D Prosper Shipping Hong Kong of Hong Kong. ISM manager is New Fortune Genius Management of Fuzhou, Fujian, China. It is entered with Japan Club (Tokyo Office In Charge) on behalf of Fortune Genius Shipping Ltd.

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2020/1711.html