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Marine Incidents - Failure To Help

What the law says

Section 124 of the Transport Operations (Marine Safety) Act Queensland states:

  1. This section applies to a marine incident involving 2 or more ships.
  2. The master of each ship involved in the marine incident must, to the extent that the master can do so without danger to the master's ship or persons on board the master's ship-
    • (a) give to each other ship involved in the incident, its master and persons on board the ship the help necessary to save them from danger caused by the marine incident; and
    • (b) stay by the other ship until the other ship does not need further help; and
    • (c) give to the master of the other ship reasonable particulars adequate to identify the ship and its owner.

Section 123 of the Transport Operations (Marine Safety) Act Queensland defines a marine incident as follows:

  1. marine incident is an event causing or involving-
    • (a) the loss of a person from a ship; or
    • (b) the death of, or grievous bodily harm to, a person caused by a ship's operations; or
    • (c) the loss or presumed loss or abandonment of a ship; or
    • (d) a collision with a ship; or
    • (e) the stranding of a ship; or
    • (f) material damage to a ship; or
    • (g) material damage caused by a ship's operations; or
    • (h) danger to a person caused by a ship's operations; or
    • (i) danger of serious damage to a ship; or
    • (j) danger of serious damage to a structure caused by a ship's operations.

What the police must prove

In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:

The accused:

  1. Was the master of a ship in a marine incident that involved 2 or more ships; AND
  2. Failed to:
    • (a) give to each other ship involved in the incident, its master and persons on board the ship, the help necessary to save them from danger caused by the marine incident; OR
    • (b) stay by the other ship until the other ship did not need further help; OR
    • (c) give to the master of the other ship reasonable particulars, adequate to identify the ship and its owner; AND
  3. Could have without endangering his or her ship or persons on board that ship:
    • (a) given to each other ship involved in the incident, its master and persons on board the ship, the help necessary to save them from danger caused by the marine incident; OR
    • (b) stayed by the other ship until the other ship did not need further help; OR
    • (c) given to the master of the other ship reasonable particulars, adequate to identify the ship and its owner.

It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.

Maximum penalty

Maximum penalty-

  • (a)  for contravention of paragraph (2)(a) or (2)(b) by failing to provide necessary help or failing to stay until no further help was needed - 500 penalty units or imprisonment for 1 year;
  • (b) for contravention of paragraph (2)(c) by failing to provide reasonable particulars to the master of the other ship/s - 40 penalty units.

Penalty unit = $100.00

Which court will hear the matter

Under section 3(5) of the Criminal Code Act  Queensland this offence is classed a simple offence and therefore may be heard in the Magistrates Court pursuant to section 19 of the Justices Act Queensland

Possible defences

Possible defences to this offence include but are not limited to:

  1. The accused was not a master a ship.
  2. The accused was not a master of a ship in a marine incident that involved 2 or more ships.
  3. The accused did not fail to give the necessary help to the other ships involved, the masters of those ships and the people on board those ships.
  4. The accused did not fail to stay by the other ships until those ships did not need further help.
  5. The accused did not fail to give the master of the other ships involved reasonable particulars adequate to identify the ship and its owner.
  6. Compliance with one or more of the duties would have endangered the master's ship or persons on board that ship.
  7. Duress - example: there was a threat of harm against the accused or another person that the accused reasonably believe would be carried out if he/she did do the act/s that constituted the offence.
  8. Necessity - examples:
    • (a) The master was injured and required medical attention and thereby had to leave the scene;
    • (b) Another person on board the ship was injured and required medical attention and thereby the master had to leave the scene to obtain medical attention.
  9. Insanity.
  10. Identification i.e. the accused was not the offender.
  11. Mistake of fact - examples:
    • (a) The accused had an honest and reasonable, but mistaken belief that compliance with his or obligations as a master would endanger his or her ship or the persons on board that ship.
    • (b) The accused had an honest and reasonable, but mistaken belief that he or she had provided all the help necessary to save the other ships, their masters and the persons on board those ships from danger and no further help was required.
    • (c) The accused had an honest and reasonable, but mistaken belief that the details he or she provided were sufficient to identify the owner and the ship.
  12. Other Lawful Excuse - examples:
    • (a) The other ship/s involved in the incident fled and the accused thereby could not fulfil his or her obligations as a master;
    • (b) The accused did not know the full details of the owner after making reasonable enquiries;
    • (c) The accused was physically or mentally unable to fulfil his or her obligations as a master.

Criminal Law Article written by Bill Potts (Queensland criminal defence lawyer who is experienced in Marine Offence matters)

 

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