The Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Regulations 2022

the ship is liable to be detained until a surveyor of ships is satisfied that it can proceed to sea without presenting a threat of harm to the environment, human health, property or resources.

• (2) Notwithstanding paragraph (1), a person having power to detain a ship may permit a ship which is liable to be detained under paragraph (1) to proceed to sea for the purpose of—

• (a) discharging ballast water; or

• (b) proceeding to the nearest appropriate repair yard or reception facility available,

provided that in proceeding to sea the ship will not present a threat of harm to the environment, human health, property or resources.

• (3) A person permitting a ship to proceed to sea under paragraph (2) must inform the ship’s next port of call of all information relevant to the detention of the ship under paragraph (1).

• (4) Where a surveyor of ships has clear grounds for believing that an offence under regulation 44(1)(a) (offences) has been committed in respect of a ship, the ship is liable to be detained.

• (5) The power under this regulation to detain a ship may only be exercised if the ship is—

• (a) in a port in the United Kingdom;

• (b) at an offshore terminal in United Kingdom waters or controlled waters; or

• (c) a floating platform in United Kingdom waters or controlled waters, other than a floating platform which is in transit.

• (6) Section 284 of the 1995 Act¹⁵ (enforcing detention of a ship) applies where a ship is liable to be detained under the preceding provisions of this regulation as if—

• (a) references to detention of a ship under the Act were references to detention of the ship in question under the preceding provisions of this regulation; and

• (b) subsection (7) were omitted.

• (7) Where a ship is liable to be detained under the preceding provisions of this regulation, the person detaining the ship must serve on the master of the ship a detention notice which—

• (a) states the grounds for the detention; and

• (b) requires the terms of the notice to be complied with until the ship is released by any person mentioned in section 284(1) of the 1995 Act.

• (8) Where a ship is detained the person detaining the ship must—

• (a) in the case of a United Kingdom ship, inform the Certifying Authority that issued the ship’s IBWM Certificate; or

• (b) in the case of a ship which is not a United Kingdom ship, immediately inform the appropriate maritime authorities of the ship’s flag State or a diplomatic representative of that State.

• (9) Where a ship is detained under paragraph (4), a person having power to detain the ship must immediately release the ship—

• (a) if no proceedings for an offence under regulation 44(1)(a) (offences) are instituted within the period of seven days beginning with the day on which the ship is detained;

• (b) if any proceedings for an offence under regulation 44(1)(a) (offences), instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted;

• (c) if either—

• (i) the sum of £30,000 is paid to the Secretary of State by way of security; or

• (ii) security which, in the opinion of the Secretary of State, is satisfactory and is for an amount not less than £30,000 is given to the Secretary of State,

by or on behalf of the owner, manager, demise charterer or master;

• (d) where the owner, manager, demise charterer or master is convicted of an offence under regulation 44(1)(a) (offences), if any costs or expenses ordered to be paid by that person, and any fine imposed on that person, have been paid; or

• (e) if the release is ordered by a court or tribunal referred to in Article 292 of UNCLOS and any bond or other financial security ordered by such court or tribunal is posted.

• (10) The Secretary of State must repay any sum paid in pursuance of paragraph (9)(c) or release any security so given—

• (a) if no proceedings for an offence under regulation 44(1)(a) (offences) are instituted within the period of seven days beginning with the day on which the sum is paid; or

• (b) if any proceedings for an offence under regulation 44(1)(a) (offences), instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted.

• (11) Where a sum has been paid, or security has been given, by any person in pursuance of paragraph (9)(c) and the owner, manager, demise charterer or master is convicted of an offence under regulation 44(1)(a) (offences), 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.

• (12) Section 145 of the 1995 Act (interpretation of section 144) applies for the purposes of paragraphs (9) to (11) as if—

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

• (b) references to an offence under section 131 (discharge of oil from ships into certain United Kingdom waters) were references to an offence under regulation 44(1)(a) (offences).

Power for a harbour master to detain a ship

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• (1) Where the harbour master of a harbour in the United Kingdom has clear grounds for believing that an offence has been committed under regulation 44(1)(a) (offences) by the discharge from a ship of any ballast water or sediments into the waters of the harbour, the harbour master may detain the ship.

• (2) Section 144(2) and (3) of the 1995 Act (harbour master’s power of detention of ships for certain offences) apply to a detention under paragraph (1) as it applies to a detention under section 144(1) of the 1995 Act.

• (3) Where a ship is liable to be detained under this regulation, the harbour master detaining the ship must serve on the master of the ship a detention notice which—

• (a) states the grounds for the detention; and

• (b) requires the terms of the notice to be complied with until the ship is released by the harbour authority.

• (4) Where a ship is detained under this regulation, the harbour master must immediately release the ship—

• (a) if no proceedings for an offence under regulation 44(1)(a) (offences) are instituted within the period of seven days beginning with the day on which the ship is detained;

• (b) if proceedings for an offence under regulation 44(1)(a) (offences), having been instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted;

• (c) if either—

• (i) the sum of £30,000 is paid to the harbour authority by way of security; or

• (ii) security which, in the opinion of the harbour master, is satisfactory and is for an amount not less than £30,000 is given to the harbour authority,

by or on behalf of the owner, manager, demise charterer or master;

• (d) where the owner, manager, demise charterer or master is convicted of an offence under regulation 44(1)(a) (offences), if any costs or expenses ordered to be paid by that person, and any fine imposed on that person, have been paid; or

• (e) if the release is ordered by a court or tribunal referred to in Article 292 of UNCLOS and any bond or other financial security ordered by such court or tribunal is posted.

• (5) The harbour authority must repay any sum paid in pursuance of paragraph (4)(c) or release any security so given—

• (a) if no proceedings for an offence under regulation 44(1)(a) (offences) are instituted within the period of seven days beginning with the day on which the sum is paid; or

• (b) if proceedings for an offence under regulation 44(1)(a) (offences), having been instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted.

• (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 44(1)(a) (offences), 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 of the ship were references to the owner, manager, demise charterer or master; and

• (b) references to an offence under section 131 (discharge of oil from ships into certain United Kingdom waters) were references to an offence under regulation 44(1)(a) (offences).

Duty of a harbour master to report deficient ships

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The harbour master of a harbour in the United Kingdom must immediately notify the Secretary of State if the harbour master has reason to believe that a ship is about to—

• (a) enter the harbour; or

• (b) leave the harbour,

and does not comply with the requirements of these Regulations.

Right of appeal and compensation

43

• (1) Regulations 15 (arbitration) and 16 (compensation) of the Merchant Shipping (Port State Control) Regulations 2011¹⁶ 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 (implementation of Directive 2009/16/EC) 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—

• (i) “issue of a refusal of access notice”;

• (ii) “refusal of access”;

• (iii) “refusal of access notice”;

• (iv) “served with a refusal of access notice”; and

• (v) “service of a refusal of access notice”,

are omitted; and

• (c) in regulation 16(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 must be paid by the harbour authority”.

Offences

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• (1) Any contravention of—

• (a) regulation 5(1) (requirement to conduct ballast water management) or 39(4) (prohibition on discharge following sampling) is an offence by the owner, manager, demise charterer and master of the ship;

• (b) regulation 9(1), (4) or (5) (ballast water management plan), 10(1)(a), (2) to (4), (6) or (8) (ballast water record book), 16(2) (approval of ballast water management systems) or 29(2) (extension of periods of validity of IBWM Certificates by a Certifying Authority), is an offence by the owner, manager, demise charterer and master of the ship;

• (c) regulation 9(3) (ballast water management plan) or 10(5) (ballast water record book) is an offence by the master of the ship;

• (d) regulation 10(4) (ballast water record book) is an offence by the officer in charge of the relevant operation;

• (e) regulation 10(10) (ballast water record book), 16(1) (approval of ballast water management systems) or 35(5) (procedure to be adopted when a ship is deficient) is an offence by the owner of the ship;

• (f) regulation 14(2) (requirement to provide sediment reception facilities) is an offence by the owner and operator of the shipyard in question;

• (g) regulation 20(4) (ballast water management systems which use active substances), 23 (prohibition on United Kingdom ships proceeding to sea without an IBWM Certificate), 24 (prohibition on non-United Kingdom ships proceeding to sea without an IBWM Certificate or appropriate documentation), 31(1) or (2) (responsibilities of the owner and the master), 32(2) (additional surveys of United Kingdom ships) or 37(5) (miscellaneous provisions relating to IBWM Certificates) is an offence by the owner and the master of the ship;

• (h) regulation 31(3) (responsibilities of the owner and the master) is an offence by the owner, demise charterer and the master of the ship; or

• (i) regulation 37(4) (miscellaneous provisions relating to IBWM Certificates) is an offence by the person in question.

• (2) Any failure by a master to comply with a requirement under regulation 38(6)(b) (inspection of ships) is an offence.

• (3) An offence under paragraphs (1) or (2) is punishable—

• (a) on summary conviction—

• (i) in England and Wales, by a fine; or

• (ii) in Scotland or Northern Ireland by a fine not exceeding the statutory maximum; or

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

Defences

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• (1) In any proceedings for an offence under these Regulations, it is a defence for the person charged to prove that they 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 for an offence comprising a contravention of regulation 5(1) (requirement to conduct ballast water management) or regulation 39(4) (prohibition on discharge following sampling) it is a defence for the person charged to prove that—

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

• (b) the discharge took place in waters that were not United Kingdom waters or controlled 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 owner, manager, charterer or master of the ship.

Restriction on jurisdiction over offences outside United Kingdom limits

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• (1) In respect of a ship which is not a United Kingdom ship, proceedings for an offence under regulation 44(1)(a) (offences) alleged to have been committed in the internal waters, territorial sea or exclusive economic zone of a foreign State must not be instituted in the United Kingdom unless—

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

• (b) the offence has caused or is likely to cause pollution in United Kingdom waters or controlled 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 “exclusive economic zone” in relation to a foreign State, means the area beyond and adjacent to the territorial sea of that State, but not extending beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Suspension of proceedings at flag State request

47

• (1) This regulation applies to proceedings instituted but not concluded in the United Kingdom for an offence under regulation 44(1)(a) (offences) alleged to have been committed outside United Kingdom waters in relation to a ship which is not a United Kingdom ship.

• (2) Subject to paragraph (3), any proceedings must be suspended if the court is satisfied that the ship’s flag State has instituted proceedings corresponding to the proceedings in paragraph (1) within six months of the institution of the proceedings in the United Kingdom.

• (3) Paragraph (2) does not apply—

• (a) where the offence resulted in serious pollution of the United Kingdom; or

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

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

Service of documents on foreign companies

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Section 143(6) of the 1995 Act¹⁷ (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 (discharge of oil from ships into certain United Kingdom waters) of the 1995 Act, 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 floating platform, the reference to the owner were to the owner, manager or demise charterer; and

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

• (i) the owner of the ship were to the owner of the platform; and

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

Enforcement and application of fines

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Section 146 of the 1995 Act (enforcement and application of fines) applies to any fine for an offence under regulation 44(1)(a) (offences) 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, manager, demise charterer or master for an offence under regulation 44(1)(a) (offences); and

• (b) in subsection (2) of that section, the reference to an offence under section 131 (discharge of oil from ships into certain United Kingdom waters) were a reference to an offence under regulation 44(1)(a) (offences).

PART 8 — Amendment

Amendment to the Merchant Shipping (Fees) Regulations 2018

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In the Table in paragraph 5 of Part 1 of Schedule 1 (fees under the Merchant Shipping Act 1995) to the Merchant Shipping (Fees) Regulations 2018¹⁸ after the entry under heading J (prevention and control of pollution) relating to the Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018¹⁹, insert—

The Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Regulations 2022	2022/737	None

PART 9 — Review

Review

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• (1) The Secretary of State must from time to time—

• (a) carry out a review of the regulatory provision contained in these Regulations; and

• (b) publish a report setting out the conclusions of the review.

• (2) The first report must be published before 29th July 2027.

• (3) Subsequent reports must be published at intervals not exceeding 5 years.

• (4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015²⁰ requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the obligations under the Convention are implemented in other countries which are subject to the obligations.

• (5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular—

• (a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

• (b) assess the extent to which those objectives are achieved;

• (c) assess whether those objectives remain appropriate; and

• (d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

• (6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Signed

Signed by authority of the Secretary of State for Transport

Robert Courts — Parliamentary Under Secretary of State — Department for Transport — 3rd July 2022

We consent to the making of these Regulations

Michael Tomlinson — Gareth Johnson — Two of the Lords Commissioners of Her Majesty’s Treasury — 30th June 2022

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations implement the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (“the Convention”). The Convention was adopted on 13th February 2004 and came into force internationally on 8th September 2017. The United Kingdom acceded to the Convention on 26th May 2022. These Regulations implement all amendments to the Convention as at the date of this statutory instrument.

The Regulations apply to United Kingdom ships wherever they may be and any other ship whilst it is operating in United Kingdom waters or controlled waters (regulation 4). The Regulations are disapplied in relation to certain ships including those which are not designed or constructed to carry ballast water, ships which operate only in waters under the jurisdiction of a single Contracting State or only in waters under the jurisdiction of a single Contracting State and on the high seas and ships which carry permanent ballast water in sealed tanks not subject to discharge.

Part 2 imposes a prohibition on discharging any ballast water or sediments from a ship unless they are subject to ballast water management (regulation 5). There are a number of exceptions (regulation 6) and the Secretary of State may grant exemptions (regulation 7) and, for certain ships, approve equivalents (regulation 8).

Part 3 requires ships to have an approved ballast water management plan (regulation 9) and to carry a ballast water record book to record operations concerning ballast water (regulation 10). Regulation 11 imposes requirements on where ballast water exchange may take place and regulation 12 sets the standard for the exchange of ballast water. Regulation 13 sets the standard for the treatment of ballast water and sediments.

Part 4 requires the owner and operator of a shipyard within a harbour to provide sediment reception facilities (regulation 14).

Part 5 of the Regulations contains a power to designate nominated bodies to carry out type approval of ballast water management systems (regulation 15). Regulation 16 imposes a requirement on United Kingdom ships to have a valid BWMS (ballast water management system) Type Approval Certificate when the BWMS is installed. The procedure for applying for type approval is contained in regulation 17, whilst the requirements that must be fulfilled for type approval to be granted are in regulation 18. Regulation 19 enables nominated bodies to suspend or withdraw type approval in certain circumstances. Part 5 also makes provision for the Secretary of State to prohibit the use of systems which use active substances and the substances themselves (regulation 20). Regulation 21 allows the Secretary of State to approve the testing of prototype ballast water management systems.

Part 6 of the Regulations provides that a UK ship must not proceed to sea or, if it is already at sea, remain at sea without a valid IBWM Certificate (International Ballast Water Management Certificate) (regulation 23). There is a similar requirement for non-UK ships (regulation 24). United Kingdom ships must be subjected to various surveys (regulation 25) and if they satisfy the requirements of these surveys then a Certifying Authority must issue them with an IBWM Certificate or endorse an existing IBWM Certificate (regulations 26 and 27). Part 6 also provides that an additional survey will be required following a change, replacement or significant repair (regulation 32) and that the ship must be maintained to conform with the provisions of the Regulations following a survey (regulation 31).

Part 7 of the Regulations makes provision in relation to the powers of inspection and detention of ships, and in relation to offences and penalties.

Part 8 amends the Merchant Shipping (Fees) Regulations 2018 (S.I. 2018/1104) to allow fees to be charged for various functions carried out by the Maritime and Coastguard Agency (“MCA”) under these Regulations.

The Secretary of State must review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years thereafter (regulation 51). Following such a review it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or amended. A further instrument would be needed to revoke the Regulations or to amend them.

Merchant Shipping Notices are published by the MCA and a copy of MSN 1908 (M+F) can be obtained free of charge at www.gov.uk or in hard copy from the MCA of Spring Place, 105 Commercial Road, Southampton SO15 1EG.

Guidance supporting these Regulations has been published in a Marine Guidance Note (MGN 675 (M+F)). Copies can be obtained free of charge at www.gov.uk or in hard copy from the address given above.

The Convention can be obtained from the International Maritime Organization (“the IMO”) at IMO Publishing, 4 Albert Embankment, London SE1 7SR, www.imo.org/publications; email: sales@imo.org; telephone: 0207 735 7611. The text of IMO Regulations can be obtained in hard copy from the IMO Library at the same address as IMO Publishing.

A full impact assessment of the effect that this instrument will have on the costs of business, the voluntary sector and the public sector is published with the Explanatory Memorandum alongside this instrument on www.legislation.gov.uk.

Footnotes

Editorial notes