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Laws of Commercial Boat Registration

Laws of Commercial Boat Registration

In Queensland, there are two systems for the registration of boats that may be of interest to Gold Coast boaties. Recreational registration is a relatively cheap and simple process designed for private boat owners and is administered through the Queensland Department of Transport and Main Roads (TMR). Boats intended to be used commercially must be registered as a Domestic Commercial Vessel (DCV) under a more expensive and complex regime administered by the Australian Maritime Safety Authority (AMSA).

The key question often asked by boat owners is: When do I have to register my boat for commercial use?

Unfortunately, but not surprisingly, with respect to maritime legal matters, the answer is not a straightforward one.

Let us take a brief look at the regulatory landscape to consider the issue.

Prior to the commencement of the National Law in 2013, commercial vessels in Queensland were required to be registered under Queensland legislation, the Transport Operations (Marine Safety) Act 2004 (TOMSA). The relationship between the definitions of a recreational vessel and a commercial vessel under the TOMSA meant that unless a vessel was being used ‘exclusively for private recreation’, then it had to be registered as a commercial vessel. This was a clear boundary that generally caused few difficulties. If a vessel was used for something other than private recreation, then it had to be commercially registered.

Since the introduction of the National Law, there is now considerable doubt over the boundary between ‘commercial use’ of a vessel (that triggers the requirement to be registered as a DCV) and simple ‘recreational use’ of a vessel.

To be a DCV or not a DCV

A DCV is defined in section 7 of the National Law as ‘a vessel that is for use in connection with a commercial, governmental or research activity.’

This is a very broad definition, made broader by the use of the phrase ‘in connection with’. This means that the commercial use of the vessel does not have to be the dominant or the primary use of the vessel. It merely needs to be ‘in connection with’ the activity of the specified nature, to fall under the application of the National Law.

However, the meaning of the word ‘commercial’ is not defined in the National Law. So we turn to the Macquarie Dictionary, which states, in respect of a commercial vehicle, that ‘commercial’ means something ‘used primarily for carrying goods for trade or paying passengers’.

There is also a general legal definition of ‘in trade or commerce’ under the Australian Consumer Law. The leading case on the interpretation of that phrase is Concrete Constructions (N.S.W.) Pty Ltd V. Nelson, which as part of a very long winded statement, tells us that ‘in trade or commerce’ means ‘the conduct of a corporation … [that] bear[s] a trading or commercial character.’ So the key issue is the characterisation of the ‘conduct’ with a third party is that it must have a ‘commercial’ character. ((1990) 169 CLR 594, per Mason CJ, Deane, Dawson and Gaudron JJ at para 8.)

Naturally, this statement was made in the context of consumer protection legislation. And here we are discussing boat registration, so the considerations are slightly different. Nevertheless, a court may adopt a similar interpretation on the meaning of ‘commercial’.

Of course, the mere ‘driving’ of a boat by a corporation is not, by itself, a commercial use of that boat, unless there is some commercial relationship with another party also involved.

In the absence of a ‘commercial relationship’ with another party at the time that you are using the boat, the use of the boat is not considered commercial. So, for example, if you are not carrying goods for trade nor carrying paying passengers, it is unlikely that a particular use of a boat will be considered commercial.

Therefore, absent any advice from the AMSA or any court decisions, a vessel probably does not need to be registered as a DCV, unless it is used in direct connection with a commercial activity involving a third party.

The National Law also expressly states that some uses of a boat do not, of themselves, make it a DCV. Examples include boats that are sponsored, used for promotional activities or a film set, if a person is paid to be a crew member, or if they are owned and used by a school. AMSA has also made some exemptions, including dragon boats. So, it is safe to say that there are significant commercial uses of recreational boats that do not make them DCVs, and that are completely lawful.

However, there remains significant uncertainty as to whether any particular intended use of a boat could appear to be connected with a commercial activity and might trigger the application of the National Law. Consequently, if it appears to an observer that your recreationally registered boat is engaged in a commercial activity, it is recommended that you should have a formal statement prepared to be carried on board the vessel describing your actual use of the vessel so that it can be shown to on- water inspectors, such as officers of the Queensland Boating and Fisheries Patrol or Maritime Safety Queensland. Such a statement is sort of a maritime version of the ‘tank water in use on gardens’ sign.

As further reassurance, you may write to the AMSA describing your specific use and request a determination on whether the boat requires registration as a DCV or not. We suggest obtaining legal assistance with preparing such a submission.

 

By Captain John Kavanagh, AFNI MQLS

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