Commonwealth Consolidated Acts Commonwealth Consolidated ActsExceptions for emergencies
(1) Subsection 26FEH(2) does not apply:
(a) if the matters mentioned in that subsection occur as a result of securing the safety of a ship or saving life at sea; or
(b) to using fuel oil on board a ship as fuel if:
(i) the requirements of subsection (5) of this section are not satisfied; and
(ii) it is likely that those requirements would have been satisfied were it not for conduct engaged in for the purpose of securing the safety of a ship or saving life at sea; or
(c) to carrying fuel oil on board a ship if:
(i) the requirements of subsection (6) of this section are not satisfied; and
(ii) it is likely that those requirements would have been satisfied were it not for conduct engaged in for the purpose of securing the safety of a ship or saving life at sea.
(2) Subsection 26FEH(2) does not apply in relation to a ship if:
(a) the matters mentioned in that subsection occur as a result of unintentional damage to the ship or its equipment; and
(b) if the regulations prescribe, for the purposes of this paragraph, a level of total emission of sulphur oxides:
(i) after the occurrence of the unintentional damage, the total emission of sulphur oxides from the ship does not exceed that level; or
(ii) after the occurrence of the unintentional damage, all reasonable precautions are taken to prevent the total emission of sulphur oxides from exceeding that level, or to minimise the total emission of sulphur oxides; or
(iii) if the discovery that the total emission exceeds that limit occurs before the discovery of the unintentional damage--after the discovery of that total emission, all reasonable precautions are taken to prevent the total emission of sulphur oxides from exceeding that level, or to minimise the total emission of sulphur oxides.
(3) For the purposes of subsection (2), damage to a ship or to its equipment is not unintentional if the damage arose:
(a) in circumstances where the master or owner of the ship:
(i) acted with intent to cause the damage; or
(ii) acted recklessly and with knowledge that the damage would probably result; or
(b) as a result of the negligence of the master or owner of the ship.
(4) For the purposes of this section, damage to a ship or to its equipment does not include:
(a) deterioration resulting from failure to maintain the ship or equipment; or
(b) defects that develop during the normal operation of the ship or equipment.
Exceptions for the unavailability of fuel oil with a sulphur content of not more than the prescribed limit
(5) Subsection 26FEH(1) or (2) does not apply to using fuel oil (the high - sulphur fuel oil ) on board a ship as fuel if the following requirements are satisfied:
(a) the person responsible for obtaining fuel oil for use on board the ship took all reasonable steps to obtain fuel oil with a sulphur content of not more than the limit prescribed for the purposes of paragraph 26FEH(4)(a);
(b) a prescribed officer is notified (in accordance with any requirements prescribed by the regulations for the purposes of this paragraph) that fuel oil with a sulphur content of not more than that limit was not able to be obtained for the ship;
(c) if the ship's next port of destination after the high - sulphur fuel oil was supplied to the ship is a port in a foreign country--the government of that foreign country is notified (in accordance with any requirements prescribed by the regulations for the purposes of this paragraph) that fuel oil with a sulphur content of not more than that limit was not able to be obtained for the ship.
(6) Subsection 26FEH(1) or (2) does not apply to carrying fuel oil (the high - sulphur fuel oil ) on board a ship for use on board the ship as fuel if the following requirements are satisfied:
(a) the person responsible for obtaining fuel oil for use on board the ship took all reasonable steps to obtain fuel oil with a sulphur content of not more than the limit prescribed for the purposes of paragraph 26FEG(1)(b);
(b) a prescribed officer is notified (in accordance with any requirements prescribed by the regulations for the purposes of this paragraph) that fuel oil with a sulphur content of not more than that limit was not able to be obtained for the ship;
(c) if the ship's next port of destination after the high - sulphur fuel oil was supplied to the ship is a port in a foreign country--the government of that foreign country is notified (in accordance with any requirements prescribed by the regulations for the purposes of this paragraph) that fuel oil with a sulphur content of not more than that limit was not able to be obtained for the ship.
Note: A defendant bears an evidential burden in relation to the matters in this section: see subsection 13.3(3) of the Criminal Code .