Although such vessels are not required by law to be registered, the following safeguards and benefits are available through registration:

Transcription

1 History The registration of ships has been a feature of maritime commerce for many centuries. In Britain it was the Navigation Act 1660 which first required that ships be registered. Over the years the scope of English statutes was widened. A significant change in England s maritime law came in the mid-nineteenth century with the introduction of the Merchant Shipping Act 1854, entitled An Act to amend and consolidate the Acts relating to Merchant Shipping. This Act was eventually replaced by the Merchant Shipping Act 1894 (MSA 1894), Part I of which concerned registration. Part I of the MSA applied throughout the British Commonwealth because it provided that a ship was a British ship if it was wholly owned by a British subject or corporation in any part of the Commonwealth. It provided the basis of Australia s ship registration regime until the enactment of the SR Act. The SR Act came into effect on 26 January 1982 and its principal purpose was to provide Australia with its own regime for the registration of ships. The objectives of the Act are to compel the registration of Australian-owned ships and to provide for the registration of mortgages. The review investigated whether the regulation in the Act is necessary. The investigation confirmed that the fundamental principle of public international law of the freedom of the seas means that the vessels of any nation, including land-locked ones, have access to all parts of the seas that are not included in the territorial sea or internal waters of another State. There are two cardinal rules concerning freedom of the seas. The first is that the jurisdiction over a vessel resides solely with the State to which the vessel belongs and the second is that all vessels using the high seas must have a national character. Under public international law, the right of a ship to sail on the open seas is dependent upon its right to fly the national colours of a recognised country. The review found that there are essentially three benefits arising from the SR Act. These are the ability to sail overseas, gaining title as a proof of ownership.

2 Yachts, Cruisers and Fishing Boats: who owns what? Introduction If you are planning the purchase of a fishing boat, yacht or large motor cruiser, one of the most important things you should consider is Registration. What is registration? The Australian Register of Ships is maintained by the Shipping Registration Office of the Australian Maritime Safety Authority. The register contains the following information about registered vessels: physical details of the vessel name and address of the registered owners name and address of any mortgagees name and address of any caveators, and a history of ownership since registration. Why register a yacht, cruiser or fishing boat? Although such vessels are not required by law to be registered, the following safeguards and benefits are available through registration: Registration of title in the vessel Your ownership is recorded in the Register. Registration gives good title' to the vessel which cannot be overturned by the holder of an earlier interest unless you had notice of that interest when you purchased it. Registration of ownership is similar in many respects to having ownership of your house registered at the Land Titles Office. Australian nationality for the vessel A vessel on the high seas is, under international law, required to have nationality. Registration is the process by which a vessel will be accorded Australian protection on the high seas and in foreign ports. Use of the vessel as security for a mortgage

3 Many financial institutions, such as banks and finance companies, require a vessel to be registered before they will lend money using the vessel as security. Ability to sail overseas It is an offence for an Australian-owned vessel to sail for a foreign port unless it is registered in the Australian Register of Ships. Note: vessels purchased overseas by Australians are also required to be registered before they sail for Australia or another foreign country. Increased value of the vessel Registration will make re-sale easier and add value to your vessel because the purchaser can be assured of 'good title'. Buying a registered vessel If the following steps are carried out, transfer of ownership will be efficiently achieved with minimal risk. Apply to the Shipping Registration Office for details of the current registered ownership, mortgages and caveats. Check that the person selling the vessel is the registered owner. If not: ensure that the seller is entitled to be registered as the owner, and request the seller provide documents and fees necessary to have the ownership, and that of any previous unregistered owners, entered on the Register. The Register contains a chronological history of the ownership of the vessel a chain of title and your ownership cannot be registered without the specific documents sufficient to complete this chronology. Unless you are buying the vessel as encumbered (ie. buying the vessel subject to the obligations to make payments under any mortgages), ensure that any mortgages, are discharged. Ensure that the seller completes and provides you with the Bill of Sale (Part 1 of the Shipping Registration Office Form 'B'). Ensure that the seller provides you with the registration certificate for the vessel. Complete Form B in accordance with the instructions and forward it together with the Registration Certificate, the appropriate fee and documents and fees relating to any other unregistered changes of ownership, to the Shipping Registration Office. Buying an unregistered vessel

4 If you are considering buying an unregistered vessel, make sure that the seller is entitled to transfer ownership. If you intend to have the vessel registered, ensure that all the information and documents concerning building and changes of ownership that are needed for registration are obtained from the seller. Alternatively, you could request the seller to have the vessel registered before the sale is transacted. Current Process Managed by the Australian Maritime Safety Authority, a Federal Govt. regulatory body. Outlined at Full procedure described in Section 15 of the Shipping Registration Act 1981 and Shipping Registration Regulations Australian Shipping Registration Office: Postal address GPO Box 2181 Canberra City ACT 2601 Australia Location 82 Northbourne Avenue Braddon ACT 2612 Australia Customer assistance Telephone (02) (International ) Facsimile (02) (International Introduction This is a guide to registering a ship under the Commonwealth Shipping Registration Act The subject of this pamphlet is fully set out in the Act and its Regulations, particularly Regulation 7. Seek legal advice if you need an explanation of ownership questions. Application forms can be obtained from the Shipping Registration Office.

5 A ship operating in Australian waters may be required to be registered under State or Territory law. Details of the requirements can be obtained from the relevant government authority in the State or Territory. 1.1 Steps to Registration You (the applicant) lodge an application with supporting documents and fee. We (the Shipping Registration Office) advise you of any outstanding requirements and, if possible, send a Marking Note showing registration particulars to be marked permanently on the ship. You mark the ship, complete and return the Marking Note, and send in any outstanding documents. We register the ship and send you the ship's Australian Registration Certificate. Please note that you have 12 months to complete the application but you may apply for more time. An extension fee would then be payable. 1.2 Ships that may be registered A ship may be registered if: more than half the shares in it are owned by Australian nationals; or it is less than 12 metres in length overall and wholly owned or operated by Australian residents or by Australian nationals and residents together; or it is on demise (bare boat) charter to an Australian based operator. Ships belonging to a defence force cannot be registered. 1.3 Property in ships There are 64 shares in a ship. 1.4 The application for registration An application for registration comprises these documents and a lodgement fee: 1. Application* 2. Declaration of ownership and nationality* 3. Notice of appointment of registered agent* 4. Document describing the ship (see Section 2) 5. Documents giving evidence of ownership (see Section 3) 6. Demise charter party (if applicable) (see Section 4) 7. Tonnage certificate (if applicable) (see Section 5) 8. Call sign licence (if applicable) (see Section 6) 9. Evidence of marking of ship (see Section 7) 10. Fee (see Section 8)

6 For items 4 to 8, either original documents or certified copies may be submitted. In some cases extra documents may be needed to support the application (please see Section 9). * If the ship is foreign-owned and under demise charter to an Australian, these forms must be signed by the demise charterer. 2. Describing a ship The documentation required varies according to the ship's history: Ship not previously registered (in Australia or elsewhere) 1. a Builder's Certificate (form supplied by SRO) or, if the owner is unable to obtain one after taking all reasonable action 2. a statutory declaration by a person acquainted with the facts stating the prescribed particulars of the ship, any other particulars asked for on a Builder's certificate which are known to the person, and the grounds for the person's belief that the particulars are correct. Note: If the ship was built in stages by different builders, or was altered after building, you may either provide a separate certificate showing the work of each builder or a composite certificate signed by all builders. Ship last registered for title in Australia A statutory declaration by a person acquainted with the facts specifying the respects (if any) in which the description of the ship has changed since last registered. Ship last registered for title under foreign law 1. the foreign registration certificate or an official certificate describing the ship, and 2. a statutory declaration by a person acquainted with the facts specifying the respects (if any) in which the information in the certificate is wrong or does not give the required particulars of its description (the required particulars are listed in the Builder's Certificate form). 3. Evidence of ownership 3.1 Primary documents The documentation required varies according to the ship's history: Not previously registered (in Australia or elsewhere) The builder's certificate, together with documents relating to any changes of ownership since building.

7 If the ship was built outside Australia and acquired by the owner outside Australia and those documents are not available, the only required document is the document by which the owner acquired the ship. Last registered for title in Australia Documents relating to any changes of ownership since last registered. Last registered for title under foreign law 1. any document that is evidence of title under the foreign law; and 2. documents relating to any changes of ownership since last registered. 3.2 Types of documents The documents relating to changes of ownership are bills of sale or evidence of transmission of ownership by operation of law (e.g. probate, letters or administration, court orders). Ownership can change in several ways. You should provide the following documents as evidence of the changes: Sale: Bills of Sale or other document transferring ownership for each change of ownership. The document must be signed by the transferor, specify the name of the ship, the nature and extent of the interest in the ship to which it relates, and the name and address of the transferor and transferee. If none was made at the time of sale, or it has since been lost, you may have the seller prepare a new one containing the mentioned information and a statement of the actual date of sale. An agreement for sale is acceptable if it is supported by proof that the sale was finalised. Transmission of ownership on death of a sole owner or owner-in-common: A copy of the probate, or letters of administration, which you can obtain from the State or Territory probate office that handled the estate. In these cases, ownership or power to dispose of the ship passes to the deceased owner's legal personal representative or to the beneficiary under a will, depending on the case. Transmission of ownership on death of a joint owner: Evidence of Death (either death certificate, certificate of burial, probate or letters of administration); and A statutory declaration, by a person well acquainted with the facts, to the effect that the deceased person mentioned in the document giving evidence of death is the same as the joint owner of the ship. In this case, ownership passes automatically to the surviving joint owner. Transmission of ownership by order of a Court:

8 A copy of the Order, which may be obtained from the court that made it. 3.3 Statutory declarations If there are still gaps in the ownership history, you should seek a statutory declaration by a person acquainted with the facts of the case setting out particulars of the history of the ownership of the ship. The gaps could be a result of the builder or first owner not being identified in the documents described in Section 2. They could also be because of a lack of documents described in this Section. If you cannot get a statutory declaration relating to any gap in the ship's ownership history, you need to provide a further statutory declaration and publish a Gazette notice as explained in section Demise charter party (Deleted not applicable) 5. Tonnage certificate (Deleted only applicable to vessels > 24m in tonnage length) 6. Call sign licence The current call sign licence of the ship's main radio station must be lodged for noting. Be aware that call sign licences are not issued to VHF sets that were installed on or after 1 July The District Radio Inspector's Office of the Australian Communications and Media Authority issues the call sign. 7. Evidence of marking of ship The evidence is a signed and witnessed Marking Note. The Marking Note is the document the Registrar sends the owner to show the ship's registration particulars which must be permanently marked on the ship. The particulars are the Official Number, Ship's Name, Home Port and either Tonnage or Length overall. 8. Fees The GST does not apply to services supplied by the Shipping Registration Office. Lodging application for registration or re-registration of: (a) Pleasure craft; fishing vessel; government ship; commercial ship less than 24 metres in tonnage length. $1,190 (b) Commercial ship 24 metres or more in tonnage length. $2,040 (c) Ship on demise charter to an Australian based operator other than an Australian owned ship $3,060

9 If registration of a transaction is required at or by a nominated date and time, a surcharge of 50 percent on the specified fee is payable. 9. Other documents that may be needed 9.1 Evidence of closure of foreign registration If the ship was last registered under a foreign law you should provide evidence from the foreign registration authority showing that the registration is closed, for example a Certificate of Deletion or a certified copy of the foreign register showing the closing entry. 9.2 Application for Endorsement of Master on Registration Certificate The endorsement is necessary only if the ship is to go on an international voyage. The endorsement may be done at the Shipping Registration Office, by the Australian Customs Service or overseas at an Australian diplomatic mission. 9.3 Certificate of Incorporation To be forwarded as evidence of incorporation if the owner, charterer or agent is a body corporate. 9.4 Power of Attorney To be forwarded with any document that has been signed under power. 9.5 Written authority to sign To be forwarded with any document that has been signed by an agent on behalf of a person. 10. Action when evidence of ownership is not available If some parts of the ship ownership history are not known, the person who signed the application for registration should: 1. submit all of the available documents and statutory declarations; 2. make a statutory declaration that to the best of your knowledge the persons claiming ownership are lawfully entitled to ownership of the ship; explain your belief that they are lawfully entitled to ownership; and explain the reasons certain documents or statutory declarations cannot be obtained; and 3. publish a Notice in the Commonwealth of Australia Gazette (see Attachment 1) and send a copy of the published notice to the Registrar of Ships.

10 To allow for possible appeals, registration cannot be processed until thirty (30) days from the date of publication of your notice MHz Distress Beacon If there is a 406 MHz Distress Beacon on the ship the applicant the buyer should fill out and submit a 406 MHz Distress Beacon Registration form: Further information on registering distress beacons can be found at: beacons.amsa.gov.au/

11 Attachment 1 Arrangements for publishing a notice in the Commonwealth of Australia Government Notices Gazette The Government Notices Gazette is published each Wednesday, with the exception of the Christmas/New Year period, by the Attorney-General's Department. Information about the Government Notices Gazette is available on the Department's website at Notices for publication must have a covering instruction setting out requirements and payment must be made at the time the notice is lodged. A typewritten original or good copy of the notice must be provided and the proper name, address and particulars of ship should be shown clearly. Where a word version of the notice is available, it should be ed to gazettes@ag.gov.au. Lodging notices Notices for publication and related correspondence can be lodged: By gazettes@ag.gov.au By hand or post: Gazette Office, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600 By fax: (02) Closing time for lodgement of notices Notices for publication in the Government Notices Gazette must be lodged with the Gazette Office by 10am on Friday the week before publication is required. Cost of publication Prices may be obtained from the Gazette Office. Payment may be made by cheque (made payable to the Collector of Public Monies), or by credit card (MasterCard, Bankcard, Visa or American Express accepted), or by EFT by arrangement. Following publication, a copy of the published notice will be sent to the notifier at no cost. Further information For further information contact the Gazette Office on (02) or (02) The Gazette Notice The notice must use the following wording:

12 SHIPPING REGISTRATION ACT 1981 NOTICE OF INTENTION TO APPLY FOR REGISTRATION Notice is hereby given of the intention of (full name)... of (address)... to apply, after the expiration of the period of thirty days commencing on the date of publication of this notice, for the registration under the abovenamed Act of the ship particulars of which are set out below. Objections to the registration of the ship in the name of the abovementioned person, by persons claiming a legal proprietary right in respect of the ship, should, together with any relevant documents that will verify the claim be delivered to the Registrar of Ships at the Australian Shipping Registration Office, 82 Northbourne Avenue, Braddon ACT 2612 or sent by properly prepaid post to the Registrar of Ships at the Australian Maritime Safety Authority, GPO Box 2181, Canberra City ACT 2601, before the expiry of the period referred to above. Particulars of Ship Present name: Former name: Present whereabouts: Length: Principal material of construction: Type of ship:

13 Attachment 2 Checklist of application documents This is a list of the documents mentioned in this pamphlet. 1. Application for Registration 2. Declaration of Ownership and Nationality 3. Notice of Appointment of Registered Agent 4. Document describing the ship Builder's Certificate Foreign registration certificate Foreign certificate describing ship Statutory declaration 5. Evidence of Ownership Bill of Sale Probate Letters of Administration Court Order Foreign certificate of title Statutory declarations in lieu of Bills of Sale Statutory declaration by applicant Gazette Notice 6. Demise charter party 7. Tonnage Certificate 8. Call sign licence 9. Marking Note 10. Fee 11. Other Evidence of closure of foreign registration Application for Endorsement of Master on Registration certificate Declaration by Charterer Certificate of Incorporation Power of Attorney Written authority to sign