Merchant Shipping (Port State Control) Regulations, 2004

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 17,528, 9 ta’ Jannar, 2004

L.N. 12 of 2004

MERCHANT SHIPPING ACT

(CAP. 234)

Merchant Shipping (Port State Control) Regulations, 2004

IN exercise of the powers conferred by articles 154 and 374 of the

Merchant Shipping Act and article 28 of the Malta Maritime Authority

Act, the Minister for Transport and Communications has made the

following regulations>–

(1) The title of these regulations is the Merchant Shipping Citation,

commencement and

(Port State Control) Regulations, 2004.

scope.

(2) These regulations shall come into force on the 1st May,

2004. (3) These regulations adopt the measures contained in

Council Directive 95#21#EC of 19 June, 1995 in its up-to-date version,

hereinafter referred to in these regulations as Council Directive

95#21#EC.

(1)

In these regulations, unless the context otherwise Interpretation.

requires>-

“the Act” means the Merchant Shipping Act<

“continental shelf” shall have the same meaning as is assigned Cap. 194.

to it in article 2 of the Continental Shelf Act<

“Council Directive” or “Council Regulation” means a

directive or regulation of the Council of the European Union

published in the Official Journal of the European Union, as the

case may be<

“flag State” means the State whose flag the ship is entitled to

fly<

“inspector” means a person duly authorised by the competent

authority to carry out port State control inspections, and responsible

to that authority<

“ISM Code” means the International Management Code for

the Safe Operation of Ships and for Pollution Prevention as defined

in the 1974 SOLAS Convention<

“member State” means a member State of the European

Union<

“off-shore installation” means a fixed or floating platform

operating on or over the continental shelf of Malta<

“port” shall have the same meaning as is assigned to it under

article 2 of the Malta Maritime Authority Act and shall include

off-shore installations unless the text otherwise clearly excludes

them<

“recognised State” means a State the maritime administration

of which either is a signatory to the MOU or enjoys a cooperating

status in terms of the MOU<

“ship” shall mean any seagoing vessel to which one or more

of the Conventions apply, flying a flag other than that of Malta.

“the competent authority” in relation to Malta means the

Executive Director responsible for merchant shipping of the Malta

Maritime Authority established by the Malta Maritime Authority

Act, hereinafter referred to as the Executive Director and, in relation

to any other State means the national maritime administration

maintained by that State for the inspection of ships<

(2) Unless otherwise defined in these regulations or unless

the context otherwise requires, words and expressions used in these

regulations shall have the same meaning assigned to them in Council

Directive 95#21#EC.

(1) These regulations apply to any ship and her crew>

(a)

calling at a port in Malta or at an off-shore installation,

(b) anchored off such a port or such an installation>

Provided that nothing in these regulations shall affect the rights

of intervention available to any authority under any of the relevant

international Conventions or under any other convention.

(2) These regulations shall not apply to,

(a)

fishing vessels,

(b) government ships used for non-commercial purposes,

(c)

naval auxiliaries,

(d) pleasure yachts not engaged in trade,

(e)

ships of war,

(f)

ships registered in Malta, or

(g) wooden ships of a primitive build.

(3) In case of ships of a gross tonnage below 500, the

inspector shall apply those requirements of a relevant Convention which

are applicable and shall, to the extent that a Convention does not apply

and without prejudice to any other powers under these regulations, take

such action as may be necessary to ensure that the ships concerned are

not clearly hazardous to safety, health or the environment. In the

application of this sub-regulation the inspector shall be guided by Annex

1 to the MOU.

(4) When inspecting a ship flying the flag of a State which

is not a party to a Convention, the treatment given to such ship and its

crew shall be no more favourable than that given to a ship flying the

flag of a State which is a party to that Convention or to the crew of such

a ship.

(1) The competent authority shall, annually, carry out a total Inspection

commitments.

number of inspections of the ships referred in sub-regulation (2) of this

regulation and in regulation 6 hereof, corresponding to at least twenty

five per cent of the average annual number of ships to which these

regulations apply, calculated on the basis of the three most recent

calendar years for which statistics are available.

(2) The competent authority shall, subject to the provisions

of regulation 7 hereof, ensure that an inspection in accordance with

regulation 5 is carried out on any ship, not subject to an expanded

inspection, with a target factor greater than 50 in the Sirenac information

system, provided that a period of at least one month has elapsed since

the last inspection carried out in a port in a recognised State.

(3) In selecting other ships for inspection, the competent

authority shall determine the order of priority as follows>

(a) the first ships to be selected for inspection shall be those

listed in Part I Overriding factors of Annex I Ships To Be

Considered For Priority Inspection to Council Directive 95#21#EC,

irrespective of their target factor,

(b) the ships listed in Part II Overall targeting factor of

Annex I Ships To Be Considered For Priority Inspection to Council

Directive 95#21#EC shall be selected in descending order,

depending on the order of priority resulting from the value of their

target factor ranges as referred to in the Sirenac information system.

(4) The competent authority shall refrain from inspecting

ships which have been inspected by any recognised State within the

previous six months, provided that>

(a) the ship is not listed in Annex I Ships To Be Considered

For Priority Inspection to Council Directive 95#21#EC<

(b) no deficiencies have been reported following a previous

inspection<

(c)

no clear grounds exist for carrying out an inspection<

(d) the ship is not covered by sub-regulation (2) hereof.

(1) When carrying out an inspection in accordance with these

regulations, the inspector shall as a minimum>

(a) check the certificates and documents listed in Annex II

List Of Certificates And Documents to Council Directive 95#21#EC,

to the extent applicable<

(b) satisfy himself of the overall condition of the ship,

including the engine room and accommodation and including

hygienic conditions.

(2) The inspector may also examine all relevant certificates

and documents, other than those listed in Annex II List Of Certificates

And Documents to Council Directive 95#21#EC, required to be carried

on board in accordance with the Conventions.

(3) Whenever there are clear grounds for believing, after

the inspection referred to in sub-regulations (1) and (2) hereof, that the

condition of a ship or of its equipment or crew does not substantially

meet the relevant requirements of a Convention, a more detailed

inspection shall be carried out, including further checking of compliance

with on-board operational requirements.

(4) For the purposes of sub-regulation (3) hereof, “clear

grounds” exist when the inspector finds evidence which in his

professional judgement warrants a more detailed inspection of the ship,

its equipment or its crew. Without prejudice to its generality the term

“clear grounds” includes, the circumstances set out in Annex III

Examples Of ‘Clear Grounds’ For A More Detailed Inspection to

Council Directive 95#21#EC.

(5) The inspector shall also observe the relevant procedures

and guidelines for the control of ships specified in Annex IV Procedures

For The Control Of Ships to Council Directive 95#21#EC.

(1) A ship in one of the categories in section A Categories Mandatory

Of Ships Subject To Expanded Inspection of Annex V to Council expanded

of certain ships.

Directive 95#21#EC, is liable to an expanded inspection after a period

of twelve months since the last expanded inspection carried out in a

port of a recognised State.

(2) If such a ship is selected for inspection in accordance

with sub-regulation 4(3) hereof, an expanded inspection shall be carried

out. However, an inspection in accordance with regulation 5 hereof

may be carried out in the period between two expanded inspections.

(3) Following the lapse of a period of twelve months since

the last expanded inspection, the operator or master of a ship to which

sub-regulation (1) hereof applies shall communicate to the competent

authority in Malta all the information listed in section B Information To

Be Notified To The Competent Authority of Annex V to Council

Directive 95#21#EC before each call at a port in Malta. This information

shall be provided at least three days before the expected time of arrival

in the port or before leaving the previous port if the voyage is expected

to take fewer than three days.

(4) Any ship not complying with the provisions of sub-

regulation (3) hereof shall be subject to an expanded inspection at the

port of destination.

(5) Subject to regulation 7 of these regulations, the

competent authority shall ensure that an expanded inspection is carried

out in respect of a ship to which sub-regulation (3) hereof applies and

which has a target factor of 7 or more at its first visit to a port in Malta

following the lapse of a period of twelve months since the last expanded

inspection.

Provided that if the competent authority is unable to increase

its capacity in time to carry out all the additional inspections required,

particularly because of problems connected with the recruitment and

training of inspectors, the competent authority is allowed until 1 February

2005 to build its inspection service gradually.

(6) An expanded inspection shall be carried out in

accordance with the procedures in section C Procedures Relating To

Expanded Inspection Of Certain Categories Of Ships of Annex V to

Council Directive 95#21#EC.

(1) In cases where, for operational reasons, the competent

authority is unable to carry out an inspection of a ship with a target

factor of more than 50 as referred to in sub-regulation 4(2) hereof or a

mandatory expanded inspection as referred to in sub-regulation 6(5)

hereof, it shall, without delay, inform the Sirenac information system

that such inspection did not take place.

(2) The competent authority shall, at intervals of six months,

notify the case mentioned in sub-regulation (1) hereof to the European

Commission together with the reasons for not inspecting the ships

concerned.

(3) During any calendar year, such cases of non-inspection

shall not exceed 5% of the average annual number of individual ships

eligible for the inspections referred to in sub-regulation (1) hereof calling

at ports in Malta, calculated on the basis of the three most recent calendar

years for which statistics are available.

(4) Where a ship, which for operational reasons was not

subject to an inspection of the type referred to in sub-regulation 4(2)

hereof or a mandatory expanded inspection of the type referred to in

sub-regulation 6(5) hereof, as appropriate, at its previous call at a port

in a member State, including Malta, visits a port in Malta, it shall be

inspected, as appropriate by the competent authority.

(1) Save in the cases provided for in sub-regulation 13(9)

hereof no access to any port in Malta shall be granted to a ship falling

within one of the categories of Section A Categories Of Ships Subject

To Refusal Of Access To Community Ports of Annex XI to Council

Directive 95#21#EC, if the ship,

(a) either flies the flag of a State appearing in the black list

as published in the annual report of the MOU, and has been detained

more than twice in the course of the preceding twenty four months

in a port of a recognised State<

(b) or flies the flag of a State described as ‘very high risk’

or ‘high risk’ in the black list as published in the annual report of

the MOU, and has been detained more than once in the course of

the preceding thirty six months in a port of a recognised State.

(2) The refusal of access in accordance with sub-regulation

(1) hereof, shall become applicable immediately the ship has been

authorised to leave the port where it has been the subject of a second or

third detention as appropriate.

(3) In the case of refusal of access in accordance with sub-

regulation (1) hereof, the procedures relating to refusal of access laid

down in Section B Procedures Relating To Refusal Of Access To

Community Ports of Annex XI to Council Directive 95#21#EC shall

apply.

On completion of an inspection, a more detailed inspection or Report of inspection

to the master.

an expanded inspection, the inspector shall draw up a report in

accordance with Annex IX Inspection Report Drawn Up In Accordance

With Article 8 to Council Directive 95#21#EC and a copy of the inspection

report shall be provided to the ship’s master.

(1) Any deficiencies confirmed or revealed by the Rectification and

detention.

inspection referred to in regulations 4 and 6 hereof shall be rectified in

accordance with the Conventions to the satisfaction of the competent

authority.

(2) (a) In the case of deficiencies which are clearly

hazardous to safety, health or the environment, the competent authority

shall order the ship to be detained, or shall order the operation in the

course of which the deficiencies have been revealed to be stopped.

(b) A detention order or an order for the stoppage of

an operation may include a direction that a ship shall remain in a

particular place, or shall move to a particular anchorage or berth, and

may also specify circumstances when the master of a ship may move

his ship from a specified place for reasons of safety or prevention of

pollution.

(c) The detention order or the order for the stoppage

of an operation shall not be lifted until the hazard is removed or until

the competent authority establishes that the ship can, subject to any

necessary conditions, proceed to sea or the operation be resumed without

risk to the safety and health of passengers or crew, or risk to other

ships, or without there being an unreasonable threat of harm to the marine

environment.

(d) Where deficiencies as referred to in this sub-

regulation are found and cannot be rectified in the port of detention, the

relevant provisions of regulation 13 shall apply.

(3) When exercising his professional judgment as to whether

or not a ship should be detained, the inspector shall apply the criteria

set out in Annex VI Criteria For Detention Of A Ship to Council

Directive 95#21#EC.

(4) A ship shall be detained if not equipped with a

functioning voyage data recorder system, when its use is compulsory

in accordance with Annex XII International And Community

Requirements Concerning Voyage Data Recorder Systems to Council

Directive 95#21#EC. If this deficiency cannot be readily rectified in the

port of detention, the competent authority may allow the ship to proceed

to the nearest appropriate port where it shall be readily rectified or require

that the deficiency is rectified within a maximum period of thirty days.

For these purposes, the procedures laid down in regulation 13 shall

apply.

(5) In exceptional circumstances, where the overall

condition of a ship is obviously substandard, the inspector may suspend

the inspection of that ship until the responsible parties have taken the

steps necessary to ensure that it complies with the relevant requirements

of the Conventions, and in the meantime the ship shall be considered to

be detained.

(6) Without prejudice to any other requirement in the

Convention enactments, in the event that an inspection referred to in

sub-regulation 4(2) or regulation 6 hereof gives rise to detention, the

competent authority shall immediately inform, in writing and including

the report of inspection, the flag administration, or when this is not

possible, the Consul or, in his absence, the nearest diplomatic

representative of the State of the flag administration of all the

circumstances in which intervention was deemed necessary. In addition,

nominated surveyors or recognised organisations responsible for the

issue of class, radio or other certificates issued on behalf of the State of

the flag administration in accordance with international Conventions

shall also be notified where relevant.

(7) The provisions of these regulations shall be without

prejudice to the additional requirements of the Conventions concerning

notification and reporting procedures related to port State control.

(8) When exercising port State control under these

regulations, all possible efforts shall be made to avoid a ship being

unduly detained or delayed.

(9) If a ship is unduly detained or delayed, the owner or

operator shall be entitled to compensation for any actual loss or damage

suffered. In any instance of alleged undue detention or delay the burden

of proof shall lie with the owner or operator of the ship.

(1) Where the inspection reveals that the copy of the Procedure

applicable in the

document of compliance or the safety management certificate issued in absence of ISM

accordance with the ISM Code are missing on board a ship to which, Certificates.

within the European Community the ISM Code is applicable at the date

of the inspection, the competent authority shall order that the ship in

question be detained.

(2) Notwithstanding the absence of the documentation

referred to in sub-regulation (1) hereof, if the inspection finds no other

deficiencies warranting detention, the competent authority may, in order

to avoid port congestion, lift the detention order. Whenever such a

decision is taken, the competent authority shall immediately inform the

competent authorities of the other recognised States thereof.

(3) A ship which has been authorised to leave a port in a

recognised State under circumstances analogous to those referred to in

sub-regulation (2) hereof, shall be refused access to all ports in Malta,

except in the situations referred to in sub-regulation 13(9) hereof, until

the owner or operator of the vessel has demonstrated, to the satisfaction

of the competent authority of that recognised State in which detention

was ordered, that the ship has valid certificates issued in accordance

with the ISM Code.

(4) Where deficiencies as referred to in sub-regulation

10(2)(a) are found and cannot be rectified in Malta the relevant

provisions of regulation 13 shall also apply.

(1) Subject to the provisions of this is regulation, the owner Right of appeal.

or the operator of a ship or his representative in Malta shall have a right

of appeal against a decision for detention or stoppage of operation or

refusal of access taken by the competent authority.

(2) The competent authority shall properly inform the master

of a ship referred to in sub-regulation (1) hereof, of the right of appeal.

(3) An appeal shall not cause the detention or stoppage of

operation or refusal of access to be suspended.

(4) An appeal against a decision for detention or stoppage

of operation or refusal of access may be made by means of an application

before the Court of Appeal (Inferior Jurisdiction).

(5) An appeal for the purpose of sub-regulation (4) hereof

shall be filed within twenty days of the service of the order of detention

or stoppage of operation or the day of refusal of access, as the case may

be, and shall be served on the Executive Director who shall reply thereto

within ten days of notification.

(6) If the owner or the operator of a ship or his representative

in Malta shows to the satisfaction of the Court that>

(a) the matter did not constitute a valid basis for the relevant

inspector’s opinion, and

(b) there were no reasonable grounds for the inspector to

form that opinion,

the Court may award the owner such compensation in respect of any

actual loss suffered by him in consequence of the detention or stoppage

of operation or refusal of access as it deems fit.

(7) The burden of satisfying the Court as to the matters

specified in sub-regulation 6 hereof, shall lie with the owner or the

operator of a ship or his representative in Malta, as the case may be.

(8) The Court shall also have regard, in coming to its

decision, to any matters not specified in the order of detention or stoppage

of operation or in the refusal of access order that appears to it to be

relevant as to whether the ship was or was not liable to be detained or

refused access.

(9) Where the Court decides, that the matter did not

constitute a valid basis for the inspector’s opinion, it shall either cancel

the order of detention or refusal of access or shall affirm the order with

such modifications as it may in the circumstances deem fit.

(10) The Court shall include in its findings whether there

was or not a valid basis for the order of detention or refusal of access.

(1) Where deficiencies as referred to in sub-regulation Follow up to

inspections and

10(2)(a) hereof cannot be rectified in Malta, the competent authority detention.

may allow the ship concerned to proceed to the nearest appropriate

repair yard available, as chosen by the master and the authorities

concerned, provided that the conditions determined by the competent

authority of the flag State and agreed to by the competent authority are

complied with. Such conditions shall ensure that the ship can proceed

without risk to the safety and health of passengers or crew, or risk to

other ships, or without there being an unreasonable threat of harm to

the marine environment.

(2) In the circumstances referred to in sub-regulation (1)

hereof, the competent authority shall notify the competent authority of

the State where the repair yard is situated, the parties mentioned in sub-

regulation 10(6) and any other authority as appropriate of all the

conditions for the voyage.

(3) The notification of the parties referred to in sub-

regulation (2) hereof shall be in accordance with Annex 2 to the MOU.

(4) When the competent authority receives a notification

analogous to the one referred to in sub-regulation (1) hereof from the

competent authority of another recognised State it shall inform the

notifying authority of the action taken.

(5) The competent authority shall take measures to ensure

that ships that proceed to sea from a port in any recognised State in

circumstances analogous to those referred to in sub-regulation (1) hereof>

(a) without complying with the conditions determined by

the competent authority in the port of inspection< or

(b) which refuse to comply with the applicable requirements

of the Conventions by not calling into the indicated repair yard,

are refused access to any port in Malta, until the owner or operator has

provided evidence to the satisfaction of the competent authority of the

port of inspection where the ship was found to be deficient that the ship

fully complies with all applicable requirements of the Conventions.

(6) If a ship proceeds to sea from a port in Malta without

complying with the conditions determined by the competent authority

in accordance with sub-regulation (5)(a) hereof, the competent authority

shall immediately alert the competent authorities of all the other

recognised States.

(7) If a ship to which sub-regulation 5(b) hereof applies is

to proceed to a repair yard in Malta, but fails to call into the indicated

repair yard, the competent authority shall immediately alert the

competent authorities of all the other recognised States.

(8) Before denying entry pursuant to circumstances

analogous to those referred to in sub-regulations (6) and (7) hereof, the

competent authority may request consultations with the flag

administration of the ship concerned.

(9) Notwithstanding the provisions of sub-regulation (5)

hereof, access to a port in Malta may be permitted by the competent

authority in the event of force majeure or overriding safety

considerations, or to reduce or minimize the risk of pollution or to have

deficiencies rectified, provided adequate measures to the satisfaction

of the competent authority have been implemented by the owner, the

operator or the master of the ship to ensure safe entry.

(1) Inspections under these regulations shall be carried out

only by inspectors who fulfil the qualification criteria specified in Annex

VII Minimum Criteria For Inspectors to Council Directive 95#21#EC>

Provided that, inspectors not fulfilling these criteria are also

accepted if on the date of the coming into force of these regulations

they were authorised for statutory surveys or port State control

inspections by the competent authority.

(2) When the required professional expertise cannot be

provided by the competent authority, the inspector may be assisted by

any person with the required expertise.

(3) The inspectors carrying out port State control and the

persons assisting them shall have no commercial interest either in the

port of inspection or in the ships inspected, nor shall the inspectors be

employed by or undertake work on behalf of non-governmental

organisations which issue statutory and classification certificates or

which carry out the surveys necessary for the issue of those certificates

to ships.

(4) Each inspector shall carry a personal document in the

form of an identity card issued by the Executive Director indicating

that the inspector is authorised to carry out inspections.

(1) Pilots of Malta, engaged in berthing or unberthing ships Reports

and port authorities.

or engaged on ships bound for or out of a port in Malta shall immediately

inform the competent authority whenever they learn in the course of

their normal duties that there are deficiencies which may prejudice the

safe navigation of the ship, or which may pose a threat of harm to the

marine environment.

(2) If port authorities, when exercising their normal duties,

learn that a ship within their port has deficiencies which may prejudice

the safety of the ship or poses an unreasonable threat of harm to the

marine environment, such authority shall immediately inform the

competent authority about such deficiencies.

(1) The port authorities, other relevant authorities and Cooperation and

exchange of

commercial organisations shall cooperate with the competent authority information.

in order that the competent authority obtains all relevant information

on ships calling at and leaving Malta.

(2) The competent authority shall set up the necessary

structure for the exchange of information and cooperation with the

competent authorities of other recognised States and shall maintain the

established operational link with the European Commission and the

Sirenac information system set up by the MOU.

(3) The information referred to in sub-regulation (1) hereof

is that specified in Annex 4 to the MOU and that required to comply

with the provisions of regulation 17 hereof.

(4) For the purposes of carrying out the inspections referred

to in sub-regulations 4(2) and regulation 6 hereof, inspectors shall consult

the public and private databases relating to ship inspection accessible

through the Equasis information system.

(1) The competent authority shall take necessary measures Release of

information.

in order to ensure that the information listed in Annex VIII Publication

Of Information Related To Detentions And Inspections In Ports Of

Member States Part I to Council Directive 95#21#EC concerning ships

which have been detained in, or which are subject to refusal of access

to a port in Malta during the previous month, is published at least on a

monthly basis.

(2) The provisions of this regulation shall be without

prejudice to any provision concerning liability under the laws of Malta.

The competent authority shall provide the European

Commission with the information listed in Annex X Data Provided In

The Context Of Monitoring Implementation In Application Of Article

17 of Council Directive 95#21#EC at the intervals stated therein.

(1) In the event that the inspections referred to in regulations

5 and 6 confirm or reveal deficiencies in relation to the requirements of

a Convention warranting the detention of a ship, all costs relating to the

inspections in any normal accounting period shall be borne by the owner

or the operator of a ship or by his representative in Malta.

(2) All costs relating to inspections carried out by the

competent authority under the provisions of sub-regulation 13(5) hereof

shall be charged to the owner or operator of the ship.

(3) In the case of detention of a vessel for deficiencies or

lack of valid certificates as laid down in regulation 10 hereof and in

Annex VI Criteria For Detention Of A Ship to Council Directive

95#21#EC, all costs relating to the detention in port shall be borne by

the owner or operator of the ship.

(4) The detention or stoppage of operation shall not be lifted

until full payment has been made or a sufficient guarantee has been

given for the reimbursement and payment of the costs.

(1) Where any order for the detention of a ship or for

stoppage of operation of a ship is breached, the owner or operator of a

ship and her master shall each be guilty of an offence and shall for each

offence be liable to a fine (multa) not exceeding one thousand units.

(2) Where a ship>

(a) fails to proceed to a repair yard as specified in accordance

with sub-regulation 13(1) or breaches any of the conditions which

may have been imposed thereunder, or

(b) enters a port in breach of a refusal of access to enter

port,

the owner or operator of the ship and her master shall each be guilty of

an offence and shall for each offence be liable to a fine (multa) not

exceeding one thousand units.

(3) Any person who obstructs an inspector or any person

assisting the inspector shall be guilty of an offence and shall for each

offence be liable to a fine (multa) not exceeding five hundred units.