The Torres Strait has been defined as the area of water between Cape York Peninsula in Australia’s extreme north coastline and the islands of New Guinea. It is bounded in the west by the Arafura Sea and in the east by the Great Barrier Reef and the Coral Sea. The strait is about 81 miles (150 km) wide and almost 108 miles (200 km) long between the islands at its eastern and western ends. The strait is, however, shallow and contains reefs and many small islands.
In 1991 the IMO Assembly recommended that:
ships of 70 m in length and over and all loaded oil tankers, chemical tankers or liquefied gas tankers, irrespective of size, use the pilotage services licensed under Australian Commonwealth, State or Territory law, when navigating the Torres Strait and the Great North East Channel between Booby Island (latitude 10°36’ S, longitude 141°54’ E) and Bramble Cay (latitude 09°09’ S, longitude 143°53’ E).
In 2004 Australia proposed to the IMO that the compulsory pilotage scheme in place for the Great Barrier Reef be extended to the Torres Strait as one of the Associated Protective Measures for the proposed PSSA. At the various meetings when this proposal was considered, the United States endorsed the protection of the Torres Strait while making clear that it viewed the draft resolution as providing no international legal basis for mandatory pilotage for ships exercising the right of transit passage through an international strait. The Report of the MEPC on its Fifty-third Session, July 25, 2005, included resolution MEPC.133(53), “Designation of the Torres Strait as an extension of the Great Barrier Reef Particularly Sensitive Sea Area.” The resolution “recommend[ed] . . . that Governments recognize the need for effective protection of the Great Barrier Reef and Torres Strait region and inform ships flying their flag that they should act in accordance with Australia’s system of pilotage for merchant ships 70 m in length and over or oil tankers, chemical tankers, and gas carriers, irrespective of size when navigating . . . the Great Barrier Reef . . . and the Torres
Strait and the Great North East Channel. . . .” (emphasis added).
The report summarized the position of the United States as excerpted below:
8.4 The Committee noted the document MEPC 53/8/3 by Australia and Papua New Guinea contained a draft MEPC resolution to designate the Torres Strait as an extension to the existing Great Barrier Reef PSSA and make the APMs [Associated Protective Measures] applicable to the Torres Strait. The new MEPC resolution would replace resolution MEPC.45(30), incorporating the text agreed at MSC 79.
8.5 In commenting on document MEPC 53/8/3, the delegation of the United States appreciated the co-operative spirit shown at MSC 79, which resulted in the draft resolution before this Committee. The delegation of the United States stated that this draft resolution recognized not only the environmental sensitivity of the Torres Strait, but also the important and fundamental navigational rights provided by international law; supported raising the international awareness of the environmental sensitivity of the Torres Strait and the facilitation of safe and efficient shipping within this Strait; and was clear in its language and effect and represented a serious commitment by IMO and Member States regarding the protection of the Torres Strait. The delegation also stated that it must be recognized that this resolution was recommendatory and provided no international legal basis for mandatory pilotage for ships in transit in this or any other strait used for international navigation. The United States could not support the resolution if this Committee took a contrary view. Should the Committee adopt this resolution, the United States would implement its recommendations in a manner consistent with international law and the right of transit passage. The United States stressed that it would urge ships flying its flag to act in accordance with the recommendatory Australian system of pilotage for ships in transit through the Torres Strait to the extent that doing so did not deny, impair, hamper, or impede transit passage.
8.6 Several delegations supported the statement by the United States. The delegation of Australia indicated that it did not object to the statement.
In May 2006 the Australian Maritime Safety Agency (AMSA) published a Marine Notice indicating that a compulsory pilotage scheme for the Torres Strait would commence on October 6, 2006. The United States and several other countries viewed this action as directly contrary to the decision of the IMO in July 2005 unless implemented as a condition of entry into Australian ports. On June 7, 2006, the U.S. Embassy in Canberra delivered a diplomatic note protesting the announced compulsory pilotage scheme. The operative paragraphs of the diplomatic note are set forth below in full.
[The United States] refers to Schedule 2, “Amendment of the Navigation Act 1912,” to the Maritime Legislation Amendment Act 2006 (No. 24, 2006), to Maritime Notice 8/2006, “Revised Pilotage Requirements for Torres Strait,” issued by the Australian Maritime Safety Authority on 16 May 2006, and to the pending amendments to Marine Orders Part 54, “Coastal Pilotage,” to institute a system of compulsory pilotage in the Torres Strait, with criminal penalties for non-compliance, effective 6 October 2006.
The Embassy notes that the Marine Notice refers to IMO Resolution-MEPC.133(53), adopted on 22 July 2005, as a basis for imposing these new requirements. The Embassy wishes to draw the attention of the Government of Australia to the fact that the United States’ support for this resolution was conditioned on Australia’s acceptance of the fact that it “provided no international legal basis for mandatory pilotage for ships in transit in this or any others trait used for international navigation. . . . The United States stressed that it would urge ships flying its flag to act in accordance with the recommendatory Australian system of pilotage for ships in transit through the Torres Strait to the extent that doing so did not deny, impair, hamper, or impede transit passage.” (Emphasis added.) This view is recorded in paragraph 8.5 of the report of MEPC 53. Paragraph 8.6 of the report notes that several delegations supported the statement of the United States and that the delegation of Australia indicated it did not object to the statement.
As is well known to the Government of Australia, it is the firm position of the United States that there is no basis in the international law of the sea as reflected in the Law of the Sea Convention for the institution of a system of compulsory pilotage in a strait used for international navigation, such as the Torres Strait, applicable to ships exercising the right of transit passage.
At the same time, the United States continues to recognize the environmental sensitivity of the Torres Strait and to support raising international awareness of this sensitivity and the facilitation of safe and efficient shipping within this Strait. The United States supported the new two-way route in the Great North-East channel of the Torres Strait. The United States believes that MEPC resolution MEPC.133(53) is clear in its language and effect and represents a serious commitment by IMO and Member States regarding protection of the Torres Strait.
Accordingly, the United States urges the Government of Australia to conform its laws and regulations with the law of the sea and the understandings reached at the IMO. While, as noted above, the United States will urge ships flying its flag to act in accordance with a recommendatory Australian system of pilotage for ships in transit through the Torres Strait to the extent that doing so does not deny, impair, hamper, or impede transit passage, the United States cannot accept application of this scheme of compulsory pilotage to ships flying its flag exercising their right of transit passage through the Torres Strait, and reserves its rights and those of its nationals, owners, masters and other persons on board ships flying its flag.
On August 11, 2006, the Australian Department of Foreign Affairs and Trade responded to the U.S. note disputing the U.S. views, stating that “[t]he words of the resolution and the compulsory nature of Australia’s system of pilotage for the Torres Strait were well understood by the participants at the IMO” and that the fact that “no objection was taken [by Australia] to the U.S. statement [relating to the legal basis for mandatory pilotage] does not imply that the position put forward by the United States is accepted by Australia as correct.” On October 3, 2006 Australia issued Marine Notice 16/2006, Further information on Revised Pilotage Requirements for Torres Strait, which reads in part as follows:
The purpose of this Marine Notice is to provide final guidance information on the new requirements for pilotage in the Torres Strait, as advised by Marine Notice 8 of 2006 issued in May 2006.
Ship-owners, masters and operators are advised that, as a condition of entry into an Australian port, failure to carry a pilot as prescribed may result in a prosecution under Australian law. Relevant authorities such as the vessel’s flag state administration and the IMO will also be advised of the failure to embark a pilot.
Australia has extended the current system of pilotage within the Great Barrier Reef into the Torres Strait to ensure a safe passage regime is in place. Australian pilots will have access to the latest real time maritime safety information, including:
• Hydrographic, meteorological and oceanographic data
• Aids to navigation availability, performance and correction data
• Dynamic traffic information associated with participation in the Vessel Traffic
• Navigational warnings
The carriage of an Australian pilot will have the effect of enhancing transit passage, with the ability to maximize tidal window opportunities for transit and ensuring adequate margins for safety and environmental protection. The new pilotage arrangements do not apply to sovereign immune vessels, including defence and other government owned vessels.
In accordance with UNCLOS Articles 42.2 and 44, Australian authorities will not suspend, deny, hamper or impair transit passage and will not stop, arrest or board ships that do not take on a pilot while transiting the Strait. However, the owner, master and/or operator of the ship may be prosecuted on the next entry into an Australian port, for both ships on voyages to Australian ports and ships transiting the Torres Strait in route to other destinations.
The Australian domestic legislation also includes a defence from prosecution if a pilot could not be carried because of stress of weather, saving life at sea or other unavoidable cause.
The 25th Session of the Assembly of the International Maritime Organization meeting in London from November 17–29, 2007, considered again the nature of pilotage in the Torres Strait as documented in resolution MEPC.133(53).
Singapore, supported by the United States, emphasized that, contrary to Australia’s assertion, the 2005 resolution provided no international legal basis for mandatory pilotage in the Torres Strait, or in any other strait used for international navigation. Australia repeated its assertion that pilotage should be mandatory.
The Assembly recalled the debate on the matter at previous sessions of MEPC, and taking into consideration the overwhelming majority of delegations expressing their support for the position of Singapore and the United States, reaffirmed the decision reached at MEPC55 that the resolution is recommendatory in nature.
In April 2009 AMSA issued another Marine Notice which included the following warning:
Pursuant to International Maritime Organization Resolution MEPC.133(53), which designated the Torres Strait as an extension of the Great Barrier Reef Particularly Sensitive Sea Area, if a vessel passes through the Torres Strait and it does not comply with Australia’s system of pilotage for merchant ships 70 metres in length and over or oil tankers, chemical tankers, and gas carriers, irrespective of size, the Government of Australia will notify the vessel’s Flag State, Owner, Operator and Master that the vessel failed to take a pilot and henceforth cannot enter an Australian port without the risk of the Owner, Operator and/or Master of the vessel being subject to a non-custodial penalty under Australian law.
At MEPC 61 (2010), the United States stated that it:
understands that the international legal basis for enforcing the system of pilotage in the Torres Strait is as a condition of entry into an Australian port, and that compliance with this system is as recommended by the IMO. In 1996 MSC adopted a mandatory ship reporting system for the Torres Strait and Inner Route of the Great Barrier Reef. It was first amended in 2004. In 2010 MSC further amended the mandatory ship reporting system “in the Torres Strait region and the inner route of the Great Barrier Reef ” (REEFREP) to expand the reporting area.