The Merchant Shipping (Prevention of Pollution by Sewage and Garbage from Ships) Regulations 2008

• (6) Where a sum has been paid, or security has been given, by any person in pursuance of paragraph (4)(c) and the owner, manager, demise charterer or master is convicted of an offence under regulation 42(1)(e) or (f), the sum so paid or the amount made available under the security must be applied as follows—

• (a) first in payment of any costs or expenses ordered by the court to be paid by the owner, manager, demise charterer or master; and

• (b) next in payment of any fine imposed by the court,

and any balance must be repaid to the first-mentioned person.

• (7) Section 145 of the 1995 Act (interpretation of section 144) applies for the purposes of paragraphs (4) to (6) as if—

• (a) references to the master or owner or the ship were references to the owner, manager, demise charterer or master; and

• (b) references to an offence under section 131 were references to an offence under regulation 42(1)(e) or (f).

Duty of harbour master to report deficient ships

40

If the harbour master of a harbour in the United Kingdom has reason to believe that a ship is about to enter or leave the harbour and does not comply with the requirements of these Regulations, the harbour master must immediately report the matter to the Secretary of State.

Right of appeal and compensation

41

• (1) Regulations 11 and 12 of the 1995 Regulations (right of appeal and compensation) apply in relation to the exercise of the power of detention under these Regulations as they apply in relation to the exercise of those powers under Part 1 of those Regulations, subject to the modifications referred to in paragraph (2).

• (2) The modifications are—

• (a) references to “inspector” are to be taken as references to the authority detaining the ship, or the harbour master, as the case may be,

• (b) references to “access refusal notice”, “service of an access refusal notice” and “refusal of access” are omitted, and

• (c) in regulation 12(2) after “State” there is added “, except where the ship is detained by a harbour master, in which case any compensation awarded under this section shall be payable by the harbour authority.”.

Offences

42

• (1) Any contravention of—

• (a) regulation 7(1), 8(1), 9(1), (2) or (3), 10(2), 18(4) or 19(1) or (2) is an offence by the owner and the master of the ship,

• (b) regulation 16(5) is an offence by the owner of the ship,

• (c) regulation 18(3) is an offence by the person in question,

• (d) regulation 21(1) or (2) or 22 is an offence by the owner of the ship,

• (e) regulation 23(1), 26, 27, 28, or 29, in the case of a relevant platform, is an offence by the owner and manager of the platform,

• (f) regulation 23(1), 26, 27, 28, or 29 in the case of a ship other than a relevant platform, is an offence by the owner, manager, demise charterer and master of the ship,

• (g) regulation 30, 31, 32(1), 33(1) or (3), or 34(1), (2), (3), (4) or (5), in the case of a relevant platform, is an offence by the owner and manager of the platform,

• (h) regulation 30, 31, 32(1), 33(1) or (3), or 34(1), (2), (3), (4) or (5), in the case of a ship other than a relevant platform, is an offence by the owner, manager, demise charterer and master of the ship,

• (i) regulation 32(3) or 34(7) in the case of a relevant platform, is an offence by the manager of the platform,

• (j) regulation 32(3) or 34(7) in the case of a ship other than a relevant platform, by the master of the ship,

• (k) regulation 33(4) is an offence by the owner of the ship,

• (l) regulation 34(1) or (2) in the case of a relevant platform, is an offence by the owner and manager of the platform, and the officer in charge of the discharge operation or incineration,

• (m) regulation 34(1) or (2) in the case of a ship other than a relevant platform, is an offence by the owner, manager, demise charterer and master of the ship, and the officer in charge of the discharge operation or incineration.

• (2) Subject to paragraph (3), an offence under paragraph (1) is punishable—

• (a) on summary conviction by a fine not exceeding the statutory maximum, or

• (b) on conviction on indictment by a fine.

• (3) A contravention referred to in paragraph (1)(e) or (f) is specified for the purposes of article 6 of the (Merchant Shipping (Prevention of Pollution by Sewage and Garbage) Order 2006²⁴ (which applies section 131(3) of the 1995 Act²⁵ (penalties for certain pollution offences) subject to a modification).

• (4) Where an offence under this regulation is committed, or would be committed save for the operation of regulation 47(1), by any person due to the act or default of some other person, that other person is also guilty of the offence, and a person may be charged with and convicted of an offence by virtue of this paragraph whether or not proceedings are taken against the first mentioned person.

Service of documents on foreign companies

43

Section 143(6) of the 1995 Act (service of documents on foreign companies required or authorised by any statutory provision in connection with proceedings for an offence under section 131 of the 1995 Act) applies to proceedings for an offence under these Regulations as it applies to proceedings for an offence under section 131, as if—

• (a) the reference to section 131 were to these Regulations,

• (b) in the case of an offence in respect of a ship other than a relevant platform, the reference to the owner were to the owner, manager or demise charterer, and

• (c) in the case of an offence in respect of a relevant platform, the reference to—

• (i) the owner of the ship were to the owner of the platform,

• (ii) the master of the ship were to the manager of the platform.

Enforcement and application of fines

44

Section 146 of the 1995 Act (enforcement and application of fines) applies to any fine for an offence under regulation 42(1)(e) to (m), as if—

• (a) in subsection (1) of that section the reference to proceedings against the owner or master of a ship for an offence under Chapter 2 were a reference to proceedings against the owner, master, demise charterer or manager for an offence under regulation 42(1)(e) to (m); and

• (b) in subsection (2) of that section, the reference to an offence under section 131 were a reference to an offence under regulation 42(1)(e) or (f).

Restriction on jurisdiction over offences outside United Kingdom limits

45

• (1) Where there has been an offence under regulation 42(1)(e) or (f) in respect of a ship which is not a United Kingdom ship in the internal waters, territorial sea or exclusive economic zone of a foreign State, proceedings in respect of that offence must not be instituted in the United Kingdom unless—

• (a) that foreign State, the flag State of the ship in question or a State polluted or threatened with pollution as a result of the offence requests that such proceeding be taken; or

• (b) the offence has caused or is likely to cause pollution in controlled waters or United Kingdom waters.

• (2) Where such proceedings have been instituted but not concluded, they must be suspended upon the request of the foreign State in question and the Secretary of State must send all the evidence, court records and documents relating to the case, together with any sum paid or security given, to the foreign State.

• (3) In this regulation, “foreign State” means a State other than the United Kingdom.

Suspension of proceedings at flag state request

46

• (1) This regulation applies to proceedings instituted but not concluded in the United Kingdom in respect of a contravention of a provision in Part 4, 5 or 6 committed outside United Kingdom waters by a ship other than a United Kingdom ship.

• (2) Subject to paragraph (3), any proceedings must be suspended if the court is satisfied that the flag State of the ship in question has instituted proceedings corresponding to the proceedings in the United Kingdom in respect of the contravention of that provision within six months of the institution of the proceedings by the United Kingdom.

• (3) Paragraph (2) does not apply—

• (a) where the contravention of these Regulations resulted in serious pollution of the United Kingdom; or

• (b) the Secretary of State certifies that the flag State in question has repeatedly disregarded its obligations to enforce effectively the requirements of the Convention in respect of its ships.

• (4) Where proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings must be terminated.

Defences

47

• (1) In any proceedings for an offence under these Regulations, it is a defence for the person charged to prove that that person took all reasonable steps and exercised all due diligence to ensure that the regulation in question was complied with.

• (2) Without prejudice to paragraph (1), in any proceedings in respect of a ship for an offence under regulation 42(1)(e) or (f), it is a defence for the person charged to prove that—

• (a) the ship was not a United Kingdom ship;

• (b) the discharge or disposal took place in waters which were neither controlled waters nor United Kingdom waters; and

• (c) the ship was in a port in the United Kingdom at the time of the institution of the proceedings by reason only of stress of weather or any other reason beyond the control of the master or owner or any charterer or manager of the ship.

• (3) Without prejudice to paragraph (1), in any proceedings for an offence under regulation 42(1)(e) or (f) in relation to a discharge of sewage, it is a defence for the person charged to prove that—

• (a) that the discharge took place in waters under the jurisdiction of a State other than the United Kingdom; and

• (b) the discharge was in accordance with such less stringent requirements as were imposed by that State.

SCHEDULE — GROSS TONNAGE

1

The “gross tonnage” of a United Kingdom ship is to be determined in accordance with paragraphs 3 to 7, and the “gross tonnage” of a ship other than a United Kingdom ship is to be determined in accordance with paragraphs 8 to 10.

2

In this Schedule—

• “the 1997 Regulations” means the Merchant Shipping (Tonnage) Regulations 1997²⁶;

• “length overall” and “length” (except in the expression “length overall”) have the same meaning as in the 1997 Regulations; and

• “the Tonnage Convention” means the International Convention on Tonnage Measurement of Ships, 1969²⁷.

United Kingdom ships

3

In the case of a ship of 24 metres in length or over for which the Secretary of State permits the continuing use of a gross tonnage pursuant to regulation 12(1) of the 1997 Regulations, the “gross tonnage” is the smaller of—

• (a) the largest gross tonnage permitted for that ship pursuant to regulation 12(1) of the 1997 Regulations; and

• (b) the gross tonnage of the ship determined in accordance with regulation 6 of the 1997 Regulations.

4

In the case of any other ship of 24 metres in length or over, the “gross tonnage” is the gross tonnage of the ship determined in accordance with regulation 6 of the 1997 Regulations.

5

In the case of a fishing vessel of 15 metres or more in length overall but less than 24 metres in length, the “gross tonnage” is the tonnage of the vessel determined in accordance with regulations 6 and 12C²⁸ of the 1997 Regulations.

6

In the case of a fishing vessel of less than 15 metres in length overall and less than 24 metres in length, the “gross tonnage” is the Registered Tonnage of the vessel determined in accordance with regulation 7 of the Merchant Shipping (Fishing Vessels – Tonnage) Regulations 1988²⁹.

7

In the case of any other ship of less than 24 metres in length, the “gross tonnage” is the tonnage of the ship determined in accordance with regulation 14(2) of the 1997 Regulations.

Ships other than United Kingdom ships

8

Subject to paragraph 9, in the case of a ship which has a gross tonnage determined in accordance with the Tonnage Convention, the “gross tonnage” is that gross tonnage.

9

Where a ship has a gross tonnage determined in accordance with the Tonnage Convention but the State whose flag the ship flies or is entitled to fly permits the use of some other gross tonnage, the “gross tonnage” of the ship is the smaller of—

• (a) the largest gross tonnage permitted by the flag State to be used for that ship; and

• (b) the gross tonnage determined in accordance with the Tonnage Convention.

10

In the case of a ship which does not have a gross tonnage determined in accordance with the Tonnage Convention, the “gross tonnage” is the gross tonnage or equivalent measure determined in accordance with the law of the State whose flag the ship flies or is entitled to fly (and where the ship has more than one such gross tonnage or equivalent measure, the “gross tonnage” is to be taken to be the largest of them).

Signed

Signed by authority of the Secretary of State

Jim Fitzpatrick — Parliamentary Under Secretary of State — Department for Transport — 18th December 2008

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations implement Annexes IV (Regulations for the Prevention of Pollution by Sewage) and V (Regulations for the Prevention of Pollution by Garbage) of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating to that Convention (“the Convention”). Annex IV came into force internationally on 27th September 2003, and a revised Annex IV came into force on 1st August 2005. Annex V came into force internationally on 31st December 1988.

In relation to Annex IV, the Regulations make provision for the surveys to be carried out and Sewage Certificates to be issued (regulations 7 to 19). They also provide for surveys of United Kingdom ships to be carried out voluntarily, where the ships are not subject to the requirements but the owners request a survey (regulation 20). They also provide for ships to have certain equipment (regulations 21 and 22). The discharge of sewage into the sea is prohibited, apart from in controlled and regulated circumstances (regulations 23 to 25).

In relation to Annex V, the Regulations prohibit the disposal of plastics into the sea (regulation 26), and prohibit the disposal of other garbage except in certain circumstances (regulations 27 to 29). United Kingdom ships are restricted from entering the Antarctic area (as defined in regulation 2) unless they have sufficient capacity for the retention of garbage on board (regulation 30), and requirements are imposed for the carrying of placards relating to the disposal of garbage (regulation 31). Ships are required to have a garbage management plan (regulation 32). Requirements are also imposed in relation to keeping a garbage record book (regulations 33 to 35).

Part 7 of the Regulations makes provision in relation to powers of inspection and detention of ships. This Part also contains provision for offences, defences, and provisions for enforcement. Provision is also made for jurisdiction over offences committed outside the United Kingdom (regulation 45) and for suspension of proceedings at flag state request (regulation 46).

An Impact Assessment has been prepared and copies may be obtained from the Maritime and Coastguard Agency (“the MCA”), Spring Place, 105 Commercial Road, Southampton SO15 1EG. A copy has also been placed in the library of each House of Parliament. The Impact Assessment may also be accessed on the OPSI website www.opsi.gov.uk.

Merchant Shipping Notices are published by the MCA and copies may be obtained from Mail Marketing (Scotland), MCA, PO Box 87, Glasgow G14 0JF (telephone number 0141 300 4906; fax 0141 950 2726; e-mail orders mca@promo-solution.com). They may also be accessed via the MCA’s website http://www.mcga.gov.uk), which also has details of any amendments or replacements.

Copies of the Convention and its Protocols and amendments, and of the Convention on Dumping and the Tonnage Convention and of resolutions of the Marine Environment Protection Committee or the STCW Conference, may be obtained from the International Maritime Organization at 4 Albert Embankment, London SE1 7SR.

Footnotes