Safety duties

Duties to take reasonable care

The Marine Safety Act 2010 (Vic) imposes a specific legal duty on all those participating in the operation of recreational or hire and drive vessels together with the passengers on that vessel to take 'reasonable care' to protect themselves and others from harm, including to not intentionally or recklessly expose others to unnecessary risks.

The nature of the duty depends on the role in relation to a vessel, for example:

Who is the master of a vessel

A 'master' of a vessel is someone who has command or charge over the vessel.

A master is therefore distinguished from:

• an owner, being someone who owns the vessel
• an operator, being someone who controls the movement of the vessel.

For example, you as the owner of a vessel may allow your friend to be in charge of the vessel while it is out on the water (your friend is now the master).

This friend decides not to operate the vessel himself but instructs another person to operate who becomes the operator.

The master must hold a marine licence, as well as comply with various requirements on masters under marine safety law including in relation to operating the vessel, reporting incidents or following notices or directions of Victoria Police or Transport Safety Victoria officers.

It is therefore important for everyone to be clear about who is the master of any vessel before going on the water. If this is not clear, then the owner may be assumed to be responsible for certain offences relating to the operation of the vessel.

What does this mean in practice?

In general, having good safety practices (complying with waterway rules and all other relevant safety standards) go a long way to demonstrating you have taken 'reasonable care'.

However, the more serious the risks associated with your operations, the higher the duty will be on you to take precautions, even if this goes beyond prescriptive obligations, or is costly or difficult. For example, as a minimum, masters of recreational vessels are expected to undertake safety assessments of their vessel operations and are required to carry the safety equipment specified under marine safety law.

However, depending on the nature of the vessels operations, the vessel might need to carry additional safety equipment that may be appropriate to control safety risks to acceptable levels. For example, if you are boating offshore or in fast moving water, the expected standard of care will be higher.

In addition, masters are expected to ensure that:

• the safety equipment on board is in good working order
• the condition of the vessel is well-maintained and safe (hull, deck, engine conditions, fuel systems, electrical systems etc.)
• you have prepared adequately for your trip (waterway zoning and maps, weather/wind/ wave conditions, safe loading etc.)
• you navigate the vessel safely (steering and sailing rules, anchoring, launching, retrieving, crossing ocean bars etc.)
• all persons on board understand and comply with required emergency procedures

Owner onus

Under the Marine Safety Act an owner onus system for certain offences has been established.

The system is based on the principle that, if the identity of the master or person in charge is not established at the time the offence is detected, the owner should generally be liable for the offence unless they can establish that they were not responsible for the vessel at the time of the offence and provide information sufficient to identify and locate who was.

An owner will not be deemed to be guilty of an owner onus offence if they provide one of the following statements within the required period which satisfies the requirements under the Marine Safety Act:

• an illegal user statement
• a known user statement
• a sold vessel statement, or
• an unknown user statement.

Requirement to report incidents

Under the Marine Safety Act reportable marine incidents includes:

• the loss or presumed loss of a vessel
• a collision with another vessel or object
• grounding, sinking or flooding
• a capsized vessel
• fire
• a structural failure or loss of stability
• a close quarters
• person overboard
• vessel becoming disabled and requiring assistance
• the fouling or damaging of any pipeline, submarine cable, lighthouse, lightship, beacon, buoy or marine mark

Masters' responsibilities

Under the Marine Safety Act, a master is the person in charge of a vessel. If the master is involved in a reportable incident, they are required to:

• immediately stop and secure the vessel
• immediately provide whatever assistance you can
• provide your contact details, the owners name and address, in addition to the registration or survey number to:
  • any injured person
  • the owner of any property which has been damaged
  • the representative of these people
  • the police present at the scene
• report in person to the most accessible police station if a person is injured or property damaged and the police or owner of the property are not present

Who should I contact?

• If you require urgent assistance, dial triple zero (000) for the emergency services and request police assistance
• If an incident has occurred but you are not in any immediate danger, report it to Victoria Police on 1800 135 729.

Reporting incidents

The Marine Safety Act 2010 (Vic) requires the master to provide the following details to the police present at the scene:

• the name and address of the master
• the name and address of the owner of the vessel
• the registration or survey number of the vessel.

If a person is injured and no police members are present, the master must report full details at the closest police station as soon as possible.

If any property is damaged or destroyed, and the owner, the owner's representative or police are not present, the master must report full details at the closest police station as soon as possible.