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Power to take measures—containers lost from ships
Plastics among the contents of containers or other cargo lost overboard will harm living resources and marine life.
Containers and their contents may also damage amenities (for example, by washing up on beaches) or interfere with other legitimate uses of the sea (for example, by hampering safe navigation, fishing and tourism). We therefore consider that containers and their contents or other lost cargo from ships, depending on the facts, are likely to be noxious substances.
Read more about our position on containers overboard.
The Protection of the Seas (Powers of Intervention) Act 1981
The Protection of the Seas (Powers of Intervention) Act 1981 (PotS(PoI) Act) amongst other things, empowers us to take measures, or require other parties to take measures when a noxious substance is escaping, has escaped or is likely to escape from a ship in various geographic locations.
For this purpose, a ‘noxious substance’ is one that is included in the International Maritime Dangerous Goods (IMDG) Code, or ‘those other substances which are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea’.
AMSA acting in accordance with the PotS(PoI) Act
Measures taken may include our taking action or issuing a PotS(PoI) Act direction, which the decision-maker can only do after considering the principles set out in the Act.
These principles require that the measures undertaken:
- Be in proportion to the damage, whether actual or threatened, including:
- the extent and probability of imminent damage if the measures are not taken
- the likelihood of those measures being effective
- the extent of the damage which may be caused by the measures
- Not exceed those reasonably necessary to achieve the outcome sought
- Not unnecessarily interfere with the rights and interests of other countries and/or any persons
- Avoid, as far as is possible, any risk or harm to human life.
Failure to comply with a PotS(PoI) Act direction is an offence and may result in monetary fine and/or custodial sentence.
We may recover (under the Protection of the Sea (Civil Liability) Act 1981) costs for expenses or liabilities incurred in taking measures. When lost containers result in us incurring expenses or liabilities we may detain the ship until its owner or insurer has paid, or provided security for, those costs.
The expenses may include those involved in locating, classifying and/or recovering the containers, their contents and/or any other lost cargo.
Considerations in determining the need for a PotS(PoI) Act direction
The following considerations may form part of our assessment when determining what measures are necessary:
- The nature and quantity of the lost containers and their contents.
- The probable location, and proximity to:
- Ecologically sensitive areas, such as unique or rare ecosystems, and the diversity and vulnerability of the ecosystem; this may include marine parks, conservation areas and special marine habitats.
- Areas of social, cultural and economic value, including the significance of the area for recreation, traditional use, tourism or fishing.
- Designated shipping routes and established shipping lanes, taking into account the type, density and frequency of marine traffic.
- Port facilities, offshore installations, submarine pipelines, cables or similar infrastructure.
- Scientific and educational criteria, such as biological research or historical value.
- The potential harm and impact should the contents be released into the marine environment.
- The depth of water, tidal range and the effect of currents in the vicinity.
- Feasibility of locating, classifying and recovering or mitigating the containers and/or lost contents.
In all cases the individual facts and circumstances will be relevant, and because of that, the measures required will be assessed carefully in each incident.