SHIPPING (JERSEY) LAW 2002
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A LAW to make provisions in
respect of shipping, sanctioned by Order of Her Majesty in Council of the
22nd day of OCTOBER 2002
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(Registered on the 8th day of November 2002)
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STATES OF JERSEY
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The 6th day of December 2001
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THE STATES, subject
to the sanction of Her Most Excellent Majesty in Council, have adopted the
following Law -
PART 1
INTERPRETATION
ARTICLE 1
General interpretation provisions
(1) In this Law, unless the
context otherwise requires -
“certificate” in Part 4
includes a licence, and a reference in another Part to a certificate issued
under Part 4 is to be construed accordingly;
“charterer”, includes a
person managing a ship under a management agreement defined in Article
61(7)(a);
“commissioned naval
officer” means a commissioned officer of Her Majesty’s Navy on full
pay;
“Committee” means the
Harbours and Airport Committee;
“consular officer”, in
relation to a foreign country, means the officer recognised by Her Majesty as a
consular officer of that country;
“contravention” includes
failure to comply;
“country” includes Jersey, a relevant British possession and a territory or
dependency of another country, if the laws of that British possession, or
territory or dependency, allow it to register its own ships;
“customs officer” means
the Agent of the Impôts or an officer of the Impôts;
“enactment” means a Law
or subordinate legislation of Jersey, or an
Act, Order in Council or statutory instrument of the United Kingdom;
“failure” includes
refusal;
“fishing vessel” means a
vessel for the time being used or, in the context of an application for
registration, intended to be used for or in connection with fishing for sea
fish, other than a vessel used or intended to be used for fishing otherwise
than for profit; and for the purposes of this definition “sea fish”
includes shellfish, salmon and migratory trout;
“foreign”, in relation
to a ship, means that it is neither a Jersey
ship nor a small ship, as defined in Article 2(2), that is a Jersey
ship;
“Government ship” has the
meaning given in Article 198;
“harbour” includes
piers, jetties and other works in or at which ships can obtain shelter or ship
and unship goods or passengers;
“Harbour Master” means
the person appointed to that post under Article 2 of the Harbours Administration
(Jersey) Law 1961;
“inspector” means a
person appointed under Article 154(1);
“Jersey” means the
Island of Jersey and its dependencies;
“Jersey
connection” has the meaning given in Article 10(1)(a);
“Jersey
ship” has the meaning given in Article 2;
“Jersey
waters” means the sea within the seaward limits of the territorial waters
of Jersey;
“master” includes any
person, except a pilot, having command or charge of a ship and, in relation to
a fishing vessel, means the skipper;
“nationality” means
belonging to a country as defined in this paragraph;
“police officer” means a
member of the Honorary Police or the States of Jersey Police Force;
“port” includes place;
“proper officer” means a
consular officer appointed by her Majesty’s Government in the United
Kingdom and, in relation to a port in a country outside the United Kingdom and
the British Islands that is not a foreign country, also an officer exercising
in that port functions similar to those of a shipping master;
“qualifying foreign
ship” has the meaning given in Article 3;
“register”, as a noun,
means the register of Jersey ships maintained under Article 11 and
“registered”, except with reference to the law of another country,
is to be construed accordingly;
“Registrar” means the
Registrar of Shipping appointed under Article 188 or, as respects functions of
his being discharged by another authority or person, that authority or person;
“Registration
Regulations” means Regulations made under Article 13;
“relevant British possession”
means -
(a) the
Isle of Man;
(b) the
Bailiwick of Guernsey; or
(c) a colony (as defined in
Schedule 1 to the Interpretation Act 1978 of the United Kingdom);
“Safety Regulations”
means Regulations made under Article 49 and includes Orders made under
paragraph (6)(a) of that Article;
“seaman” means a person,
except a master and a pilot, employed or engaged in any capacity on board a
ship;
“ship” includes every
description of vessel used in navigation;
“shipping master” means
a person appointed under Article 189;
“surveyor of ships”
means a person appointed under Article 154(2);
“Tonnage Regulations”
means Regulations made under Article 21(1).
(2) A vessel for the time
being used, or intended to be used, wholly for the purpose of conveying persons
wishing to fish for pleasure is not a fishing vessel.
(3) A reference in this Law
to a “right of innocent passage” is to be construed in accordance
with the United Nations Convention on the Law of the Sea.
(4) A reference in this Law
to a requirement, restriction or prohibition under this Law includes any such
requirement, restriction or prohibition constituting a term of an approval,
licence, consent or exemption given in a document issued under this Law.
(5) In this Law -
(a) a reference to a Part,
Article or Schedule by number only is a reference to the Part, Article or
Schedule of that number in this Law;
(b) a reference in an
Article or other division of this Law to a paragraph, sub-paragraph or clause
by number or letter only is a reference to the paragraph, sub-paragraph or
clause of that number or letter in the Article or other division of this Law in
which the reference occurs;
(c) a reference by number
or letter to two or more Articles, paragraphs or other divisions of this Law or
another enactment is to be construed as including both the first and last
mentioned.
(6) A reference in this Law
to an enactment, other than the Merchant Shipping Act 1995, is a reference to
that enactment as amended from time to time and includes a reference to that
enactment as extended or applied by or under another enactment, including
another provision of that enactment.
(7) Where in this Law or
subordinate legislation made under it -
(a) a penalty is specified
in respect of an offence, that penalty is the maximum that may be imposed for
that offence;
(b) more than one penalty
is specified in respect of an offence, the use of the word “and”
between the respective penalties means that the penalties may be imposed
cumulatively or in the alternative.
ARTICLE 2
Meaning of “Jersey
ship”
(1) A ship is a Jersey ship for the purposes of this Law, except Articles
49 (safety and health on ships) and
111(1) (power to detain ships), if
the ship is -
(a) registered in Jersey under Part 3;
(b) a small ship, other
than a fishing vessel, that is not registered under Part 3 but that -
(i) is wholly owned
by British citizens ordinarily resident in Jersey
or by a company incorporated in Jersey, and
(ii) is not registered under
the law of a country outside Jersey; or
(c) a Government ship
registered in Jersey by means of an Order made
under Article 198.
(2) For the purpose of
paragraph (1)(b), “small ship” means a ship that is less than 24
metres in length when its “length” is determined in accordance with
the Tonnage Regulations.
ARTICLE 3
Meaning of “qualifying foreign
ship”
(1) In this Law
“qualifying foreign ship” means a ship other than -
(a) a Jersey
ship;
(b) a ship that is not
registered under Part 3 and that, although not by virtue of Article 2(1)(b) a Jersey ship -
(i) is wholly owned
by persons falling within paragraph (2), and
(ii) is not registered under
the law of a country outside the United Kingdom, the Channel Islands or the Isle of Man.
(2) The persons referred to
in paragraph (1)(b)(i) are -
(a) British citizens;
(b) British Dependent
Territories citizens;
(c) British Overseas
citizens;
(d) persons who under the
British Nationality Act 1981 of the United Kingdom are British
subjects;
(e) British Nationals
(Overseas) within the meaning of that Act;
(f) British protected
persons within the meaning of that Act; or
(g) bodies corporate incorporated
in the United Kingdom
or in a relevant British possession and having their principal place of
business in the United
Kingdom or in a relevant British possession.
PART 2
JERSEY SHIPS
ARTICLE 4
Jersey flag
(1) The flag that a Jersey ship may fly is -
(a) the red ensign without
any defacement or modification;
(b) the red ensign defaced
or modified, whose adoption for ships registered in Jersey
is -
(i) authorized or
confirmed by Her Majesty by Order in Council, or
(ii) authorized by the
States;
(c) colours allowed to be
worn under a warrant from Her Majesty.
(2) Paragraph (1) does not
apply to Government ships.
ARTICLE 5
Character of Jersey
ships
(1) If the master, owner or
any charterer of a ship that is not a Jersey ship does anything, or permits
anything to be done, for the purpose of causing the ship to appear to be a
Jersey ship then, except as provided by paragraphs (2) and (5), the ship is
liable to forfeiture and the master, the owner and any charterer each commits
an offence.
(2) If the registration of
a ship has terminated by virtue of a provision of the Registration Regulations,
any marks prescribed by those Regulations displayed on the ship within the
period of 14 days beginning with the date of termination of that registration
are to be disregarded.
(3) If the master, owner or
any charterer of a Jersey ship does anything,
or permits anything to be done, for the purpose of concealing the nationality
of the ship, the ship is liable to forfeiture and the master, the owner and any
charterer each commits an offence.
(4) Without prejudice to
the generality of paragraphs (1) and (3), those paragraphs apply in
particular to acts or deliberate omissions as respects -
(a) the flying of a
national flag;
(b) the carrying or
production of certificates of registration or other documents relating to the
nationality of the ship; and
(c) the display of marks
required by the law of any country.
(5) Liability does not
arise under paragraph (1) or (3) if the assumption or concealment of Jersey
nationality has been made for the purpose of escaping capture by an enemy or by
a foreign ship of war in the exercise of some belligerent right.
(6) A person who commits an
offence under this Article is liable to imprisonment for 2 years and a fine.
(7) This Article applies to
things done outside, as well as within, Jersey.
ARTICLE 6
Offence of carrying improper colours
(1) If any of the
following, namely -
(a) any distinctive
national colours except -
(i) the red ensign,
(ii) colours authorized or
confirmed under Article 4(b) or (c),
(iii) the Union flag with a white
border, or
(iv) the Jersey
flag or ensign;
(b) any colours usually
worn by Her Majesty’s ships or resembling those of Her Majesty; or
(c) the pennant usually
carried by Her Majesty’s ships or a pendant resembling that pennant,
are hoisted on board a Jersey ship
without warrant from Her Majesty, the owner or any charterer of the ship, if on
board, or the master of the ship, and any other person hoisting them each
commits an offence and is liable to a fine.
(2) If colours are hoisted
on board a ship in contravention of paragraph (1) -
(a) a commissioned naval or
military officer;
(b) a customs officer; or
(c) a British consular
officer,
may board the ship and seize and
take away the colours.
(3) Any colours so seized
are to be forfeited.
(4) In this Article
“colours” includes a pennant.
ARTICLE 7
Duty to show Jersey flag
(1) A Jersey
ship, other than a fishing vessel, shall hoist the red ensign or other proper
national colours -
(a) on a signal being made
to the ship by one of Her Majesty’s ships, including a ship under the
command of a commissioned naval officer;
(b) on entering or leaving
a foreign port; and
(c) in the case of ships of
50 or more tons gross tonnage, on entering or leaving a Jersey
port.
(2) Paragraph (1)(c) does
not apply to a small ship (as defined in Article 2(2)) registered under Part 3.
ARTICLE 8
Duty to declare national character of ship
(1) A customs officer shall
not grant a clearance or transire for a ship until the master of the ship has
declared to that officer the name of the nation to which he claims that the
ship belongs.
(2) The officer shall then
immediately enter that name on the clearance or transire.
(3) If a ship attempts to
proceed to sea without a clearance or transire, the ship may be detained until
the declaration is made.
ARTICLE 9
Proceedings on forfeiture of a ship
(1) If a ship has either
wholly or as to any share in it become liable to forfeiture under this Part -
(a) a commissioned naval or
military officer; or
(b) a person appointed by
the Committee for the purposes of this Article,
may seize and detain the ship and
bring it for adjudication before the Royal
Court.
(2) If a ship is subject to
adjudication under this Article the Court may -
(a) adjudge the ship and
her equipment to be forfeited; and
(b) make such order in the
case as seems just.
(3) An officer or person
bringing proceedings under this Article is not liable in damages in respect of
the seizure or detention of the ship, notwithstanding that -
(a) the ship has not been
proceeded against; or
(b) if proceeded against,
adjudicated not liable to forfeiture,
if the Court is satisfied that there
were reasonable grounds for seizure or detention.
(4) If the Court is not so
satisfied it may award costs and damages to the party aggrieved and make such
other order as it thinks just.
PART 3
REGISTRATION
ARTICLE 10
Interpretation of Part
(1) In this Part -
(a) a reference to a ship
having a Jersey connection is a reference to compliance with the conditions of
entitlement imposed by Article 12(1)(a) and (b), and “declaration of
Jersey connection” is to be construed accordingly;
(b) “the private law
provisions for registered ships” means the provisions of Schedule 1 and
includes provisions in the Registration Regulations made for the purpose of
that Schedule or under Article 13(3)(a).
(2) If, for the purposes of
an enactment, the question arises whether a ship is owned by a person qualified
to own a Jersey ship, the question is to be
determined by reference to the Registration Regulations.
ARTICLE 11
Register of Jersey ships
(1) The Registrar shall
maintain a register of Jersey ships.
(2) The Registrar -
(a) shall so constitute the
register as to distinguish, in a separate part, registrations of fishing
vessels, and may otherwise divide the register into parts so as to distinguish
between classes or descriptions of ships;
(b) shall maintain the
register in accordance with -
(i) the Registration
Regulations,
(ii) the private law
provisions for registered ships, and
(iii) any directions given by the
Committee under paragraph (3)(b); and
(c) shall make the register
available for public inspection at all reasonable times.
(3) The Committee may -
(a) designate a person to
discharge, on behalf of the Registrar, all his functions or such of them as the
Committee may direct;
(b) give the Registrar
directions of a general nature as to the discharge of any of his functions.
ARTICLE 12
Basic provisions as to registration
(1) A ship shall be
registered if -
(a) it is owned to the
prescribed extent by a person or persons qualified to own a Jersey
ship; and
(b) any condition
prescribed under paragraph (2)(b) is satisfied; and
(c) application for
registration is duly made.
(2) The Registration
Regulations shall -
(a) determine the
qualification a person must posses to be qualified to be the owner of a Jersey
ship, or a Jersey ship of any class or description, and prescribe the extent of
the ownership required for compliance with paragraph (1)(a); and
(b) prescribe other
requirements designed to secure that, taken in conjunction with the requisite
ownership, only ships having a Jersey
connection are registered.
(3) Despite paragraph (1),
the Registrar may, if the Registration Regulations so provide -
(a) refuse to register or
terminate the registration of a ship if, having regard to any relevant
requirements of this Law, he considers it would be inappropriate for the ship
to be, or to remain, registered;
(b) register a fishing
vessel despite the fact that paragraph (1)(a) is not satisfied in relation
to a particular owner of a share in the vessel if the vessel otherwise has a Jersey connection.
(4) If a ship becomes
registered at a time when it is already registered under the law of a country
other than Jersey, the owner of the ship shall
take all reasonable steps to secure the termination of the ship’s
registration under the law of that country.
(5) Paragraph (4) does not
apply to a ship that becomes registered on a transfer of registration from the United Kingdom
or a relevant British possession.
(6) A person who
contravenes paragraph (4) commits an offence and is liable to a fine at level 3
on the standard scale.
(7) In paragraph (3)(a)
“relevant requirements of this Law” means the requirements,
including requirements falling to be complied with after registration, relating
to -
(a) the condition of a ship
or its equipment so far as relevant to its safety or a risk of pollution;
(b) the safety, health and
welfare of people employed or engaged on a ship; and
(c) the numbers and
qualifications of officers, doctors, cooks and other seamen that are required
to be carried on a ship.
ARTICLE 13
Registration Regulations
(1) The States shall make
Regulations to provide generally for and in connection with the registration of
Jersey ships and, in particular, for any of
the following matters -
(a) to restrict the
registration of ships by reference to their gross tonnage or length;
(b) the persons by whom and
the manner in which applications in connection with registration are to be
made;
(c) the information and
evidence, including declarations of Jersey
connection, to be provided in connection with applications and such
supplementary information or evidence as may be required by any specified
authority;
(d) the shares in the
property in, and the number of owners, including joint owners, of, a ship
permitted for the purposes of registration and the persons required or
permitted to be registered in respect of a ship or to be so registered in
specific circumstances;
(e) the issue of
certificates, including provisional certificates, of registration, their
production and surrender;
(f) to restrict and
regulate the names of ships registered or to be registered;
(g) the marking of ships
registered or to be registered, including marks for identifying the port to
which a ship is to be treated as belonging;
(h) the period for which
registration is to remain effective without renewal;
(i) the production to
the Registrar of declarations of Jersey connection or other information
relating to it, as respects registered ships, at specified intervals or at his
request;
(j) the survey and
inspection of ships registered or to be registered and the recording of their
tonnage as ascertained or re-ascertained under the Tonnage Regulations;
(k) the refusal, suspension
and termination of registration in specified circumstances;
(l) matters arising
out of the expiry, suspension or termination of registration, including the
removal of marks and the cancellation of certificates;
(m) the charging of fees in
connection with the registration of registered ships;
(n) the transfer of the
registration of ships to and from the register from and to registers or corresponding
records in countries other than Jersey;
(o) the inspection of the
register;
(p) any other matter that
is authorized or required by this Part to be prescribed by the Registration
Regulations.
(2) The Registration
Regulations may -
(a) create offences
punishable with a fine not exceeding level 4 on the standard scale;
(b) provide for -
(i) the approval of
forms by the Committee,
(ii) the discharge of
specified functions by specified authorities or persons;
(c) make any of their
provisions extend to places outside Jersey;
(d) provide that a
reference in another Law or an enactment extending to Jersey, or in an
instrument made under it, to the port of registry or the port to which a ship
belongs is to be construed as a reference to the port identified by the marks
required for the purpose by the Registration Regulations;
(e) provide for authorizing
investigations and conferring powers of inspection for verifying the Jersey connection of a ship.
(3) The Registration
Regulations -
(a) may provide for the
registration of any class or description of ships to be such as to exclude the
application of the private law provisions for registered ships, and, if they
do, may regulate the transfer, transmission or mortgaging of ships of the class
or description so excluded;
(b) may provide for any
matter that is authorized or required by those provisions to be prescribed by
the Registration Regulations; and
(c) shall provide for the
preclusion of notice of a trust being entered in the register or being
receivable by the Registrar except as respects specified classes or
descriptions of ships or in specified circumstances.
(4) A document that
purports -
(a) to be a copy of
information contained in an entry in the register; and
(b) to be certified as a
true copy by the Registrar,
is evidence of the matters stated in
the document.
ARTICLE 14
Tonnage ascertained for registration
to be tonnage of ship
(1) If the tonnage of a
ship has been ascertained and registered in accordance with the Tonnage
Regulations, that tonnage is to be treated as the tonnage of the ship.
(2) Paragraph (1) shall not
apply if the Registration Regulations provide, in specified circumstances, for
the ship to be re-measured and the register to be amended accordingly.
ARTICLE 15
Tonnage of ships of foreign countries adopting Tonnage Regulations
(1) The Committee may by
Order provide in relation to the ships of a foreign country as is authorized by
this Article if it appears to the Committee that the Tonnage Regulations have
been adopted by the foreign country and are in force there.
(2) An Order under this
Article may provide that the ships of the foreign country are, without being
remeasured in Jersey, to be treated as being of the tonnage denoted by their
certificates of registration or other national papers, to the same extent, and
for the same purposes, as the tonnage denoted in the certificate of
registration of a Jersey ship is treated as being the tonnage of that ship.
(3) Subject to paragraph
(4), if an Order under this Article is in force in relation to the ships of any
country, any space shown in the ship’s certificate of registration or
other national papers as deducted from the tonnage shall, if a similar
deduction in the case of a Jersey ship depends on -
(a) compliance with any
conditions; or
(b) on the compliance being
evidenced in any manner,
be treated as complying with those
conditions and as being so evidenced.
(4) Paragraph (3) shall not
apply if a surveyor of ships certifies to the Committee that the construction
and equipment of the ship as respects that space do not come up to the standard
that would be required if the ship were a Jersey ship.
(5) An Order under this
Article may operate for a limited time.
(6) If it appears to the
Committee that the tonnage of a foreign ship, as measured by the rules of the
country to which the ship belongs, materially differs from what it would be
under the Tonnage Regulations, the Committee may by Order prescribe that,
despite any Order in force under paragraph (1), any of the ships of that
country may, for all or any of the purposes of this Law, be remeasured in
accordance with the Tonnage Regulations.
ARTICLE 16
Status of certificate of
registration
The
certificate of registration of a Jersey ship -
(a) is not to be used
except for the lawful navigation of the ship; and
(b) is not to be subject to
detention to secure a private right or claim.
ARTICLE 17
Offences relating to a ship’s Jersey connection
(1) A person commits an
offence if, in relation to a matter relevant to the Jersey
connection of a ship, he makes a false statement to the Registrar, or furnishes
the Registrar with false information -
(a) the person knows to be
false; or
(b) concerning which he is
reckless as to whether it is false.
(2) If at any time there
occurs, in relation to a registered ship, a change affecting the Jersey
connection of the ship, the owner of the ship shall, as soon as practicable
after the change occurs, notify the Registrar of that change; and if he fails
to do so he commits an offence.
(3) A person commits an
offence if he intentionally alters, suppresses, conceals or destroys a document
that contains information relating to the Jersey
connection of a ship and that he has been required to produce to the Registrar
under the Registration Regulations.
(4) A person who commits an
offence under this Article is liable to imprisonment for 2 years and a fine.
(5) This Article applies to
things done outside as well as within Jersey.
ARTICLE 18
Supplementary provisions as respects fishing vessels
(1) If a fishing vessel
that -
(a) is either -
(i) entitled to be
registered, or
(ii) wholly owned by persons
qualified to be owners of Jersey ships; but
(b) is registered neither
under this Law in the part of the register relating to fishing vessels nor
under the law of a country outside Jersey,
is used for fishing for profit, the
vessel is liable to forfeiture and the skipper, the owner and any charterer of
the vessel each commits an offence.
(2) Paragraph (1) does not
apply to fishing vessels of such classes or descriptions, or in such
circumstances, as may be specified in an Order made by the Committee.
(3) If the skipper, owner
or any charterer of a fishing vessel that is not registered in Jersey does anything, or permits anything to be done, for
the purpose of causing the vessel to appear to be so registered, the vessel is
liable to forfeiture and the skipper, the owner and any charterer of the vessel
each commits an offence.
(4) If the registration of
a fishing vessel has terminated by virtue of a provision of the Registration
Regulations, any marks prescribed by those Regulations displayed on the fishing
vessel within the period of 14 days beginning with the date of termination of
that registration are to be disregarded for the purposes of paragraph (3).
(5) A person who commits an
offence under this Article is liable to imprisonment for 2 years and a fine.
(6) Proceedings for an
offence under this Article shall not be instituted except by or with the
consent of the Attorney General.
(7) This Article applies to
things done outside as well as within Jersey.
(8) Article 15 of the Sea
Fisheries (Jersey) Law 1994 (powers of fishery officers)
applies in relation to a provision of this Article or of the Registration
Regulations in their application to fishing vessels or fishing vessels of any
class or description; and Article 16 of that Law (offences) applies accordingly.
ARTICLE 19
Private law provisions for registered ships and liability as owner
(1) Schedule 1 has effect
in relation to the title to, and the registration of mortgages over ships,
except ships that are excluded from its application by any provisions of the
Registration Regulations made under Article 13(3)(a).
(2) If a person is
beneficially interested, otherwise than as a mortgagee, in a ship or a share in
a ship registered in the name of some other person as owner, the person so
interested, as well as the registered owner, is liable to any pecuniary
penalties imposed by or under this Law or another Law, or any enactment
extending to Jersey, on the owners of registered ships.
(3) If the registration of
a ship terminates by virtue of a provision of the Registration Regulations, the
termination of that registration does not affect an entry in the register so
far as relating to an undischarged registered mortgage of that ship or of any
share in it.
(4) In paragraph (3)
“registered mortgage” has the same meaning as in Schedule 1.
ARTICLE 20
Ships bareboat chartered-in by Jersey
charterers
(1) This Article applies to
a ship that -
(a) is chartered on
bareboat charter terms to a charterer who is a person qualified to own Jersey ships; and
(b) is so chartered in
circumstances where the conditions of entitlement to registration prescribed
under Article 12(2)(b), read with the requisite modifications, are
satisfied as respects the charterer of the ship.
(2) The “requisite
modifications” of the conditions referred to in paragraph (1) are the
substitution for any requirement to be satisfied by or as respects the owner of
a ship of a corresponding requirement to be satisfied by or as respects the
charterer of the ship.
(3) A ship to which this
Article applies is entitled to be registered if an application for registration
is duly made, but Article 12(3)(a) (Registrar’s power to refuse to
register) applies also in relation to registration by virtue of this Article.
(4) The registration of a
ship registered by virtue of this Article remains in force until the end of the
charter period unless terminated earlier by virtue of the Registration
Regulations and is subject to suspension under those Regulations.
(5) Article 12(4) (duty to
take steps to secure the termination of registration in another country) does
not apply to a ship registered by virtue of this Article, but the Registration
Regulations shall include provisions for securing that the authority
responsible for the registration of ships in any country in which the ship is
otherwise registered is notified of the registration of the ship under this
Article and of the termination of its registration, whether by virtue of
paragraph (4) or the Registration Regulations.
(6) Throughout the period
of registration under this Article -
(a) the ship, as a Jersey ship, is entitled to fly a flag that a Jersey ship is entitled to fly under Article 4;
(b) subject to paragraphs
(7) and (8), this Law applies to the ship as it applies to other Jersey ships; and
(c) subject to paragraph
(8), any other enactment applicable to Jersey
ships applies to the ship.
(7) The private law
provisions for registered ships do not apply to a ship registered by virtue of
this Article, and any matters or questions corresponding to those for which
those provisions provide are to be determined -
(a) by reference to the law
of the country in which the ship is otherwise registered; or
(b) in the event of the
ship not being so registered, by reference to the law of the country with which
the owners are most closely connected.
(8) The Committee may by
Order provide that this Law or an enactment referred to in paragraph (6)(c), or
any provision of either, is not to have effect, or is to have effect subject to
any modifications specified in the Order; but no provision is to be made by the
Order that would have the effect of relaxing -
(a) the condition of ships
or their equipment so far as relevant to their safety or a risk of pollution;
(b) the safety, health and
welfare of persons employed or engaged in them; and
(c) the numbers and
qualifications of officers, doctors, cooks and other seamen that are required
to be carried in them.
(9) An Order under
paragraph (8) may include provisions divesting, or providing for the divestment
of, ownership in the ship, as appear to the Committee to be necessary or
expedient.
(10) In this Article -
“bareboat
charter terms”, in relation to a ship, means the hiring of the ship for a
stipulated period on terms that give the charterer possession and control of
the ship, including the right to appoint the master and crew;
“the
charter period” means the period during which the ship is chartered on
bareboat charter terms.
ARTICLE 21
Tonnage Regulations
(1) The tonnage of a ship
to be registered under this Part shall be ascertained in accordance with
Regulations made by the States.
(2) The Tonnage Regulations
may provide -
(a) for the measurement and
survey of ships to be undertaken, in circumstances specified in the
Regulations, by persons appointed by such organisations as may be authorized by
the Committee;
(b) for the issue, by the
Committee or by persons appointed by organisations authorized for the purpose
by the Committee, of certificates of -
(i) the registered
tonnage of a ship, or
(ii) the tonnage that is to
be taken for a purpose specified in the Regulations as the tonnage of a ship
not registered in Jersey;
(c) for the cancellation
and delivery up of the certificates in circumstances prescribed by the
Regulations;
(d) for assigning a ship,
either instead of or as an alternative to the tonnage ascertained in accordance
with the other provisions of the Regulations, a lower tonnage applicable if the
ship is not loaded to the full depth to which it can safely be loaded;
(e) for indicating on the
ship, by a mark specified in the Regulations, that a lower tonnage has been
assigned to it; and
(f) if a lower
tonnage has been assigned to it as an alternative, for indicating on the ship the
depth to which the ship may be loaded for the lower tonnage to be applicable.
(3) The Tonnage Regulations
may -
(a) prohibit or restrict
the carriage of goods or stores in spaces not included in the registered
tonnage and provide for making the master, any charterer and the owner each
guilty of an offence and liable to a fine not exceeding level 3 on the standard
scale if such a prohibition or
restriction is contravened;
(b) in the case of
Regulations requiring the delivery up of a certificate, make failure to comply
with the requirement an offence punishable with a fine not exceeding level 3 on
the standard scale.6
ARTICLE 22
Proceedings on forfeiture of ships under Part 3
Article
9 applies in relation to ships or shares in ships that become liable to
forfeiture under this Part as it applies to those liable to forfeiture under
Part 2.
ARTICLE 23
Disclosure of information relating to registration
(1) An obligation as to
secrecy or other restriction on the disclosure of information, whether imposed
by enactment or otherwise, does not preclude any of the persons mentioned in
paragraph (2) from disclosing to -
(a) the Committee or an
authorized officer of the Committee; or
(b) the Registrar,
information for the purpose of
assisting the Committee in the performance of its functions under this Part.
(2) The persons referred to
in paragraph (1) are -
(a) the Agriculture and
Fisheries Committee;
(b) the Finance and
Economics Committee;
(c) the Home Affairs
Committee;
(d) the Jersey
Financial Services Commission,
and
an authorized officer or agent of any of them.
(3) Information obtained
under paragraph (1) shall not be disclosed by a person receiving it to another
person except if the disclosure is made to a person to whom information could
have been disclosed by a person mentioned in paragraph (2) in accordance with
paragraph (1), or for the purpose of legal proceedings arising out of this
Part.
PART 4
MASTERS AND SEAMEN
ARTICLE 24
Interpretation of Part
(1) A reference in this
Part to going to sea includes a reference to going to sea from a country
outside Jersey.
(2) A power conferred by
this Part to provide for or grant an exemption includes power to provide for or
grant the exemption subject to conditions.
ARTICLE 25
Application of certain Articles
Articles
29 to 33 apply to -
(a) a Jersey
ship; and
(b) a ship registered under
the law of a country outside Jersey that
carries passengers -
(i) between places in
Jersey or between Jersey
and the United Kingdom,
the Isle of Man or any of the other Channel Islands, or
(ii) on a voyage that begins
and ends at the same place in Jersey and on
which the ship calls at no place outside Jersey.
ARTICLE 26
Obligation of shipowners as to
seaworthiness
(1) In a contract of
employment between the owner of a Jersey ship
and the master of or a seaman employed in the ship there is implied an
obligation on the owner of the ship, despite any agreement to the contrary,
that -
(a) the owner of the ship;
(b) its master; and
(c) an agent charged -
(i) to load the ship,
(ii) to prepare it for sea,
or
(iii) to send it to sea,
shall use all reasonable means to
ensure the seaworthiness of the ship for the voyage at the time when the voyage
commences and to keep the ship in a seaworthy condition for the voyage during
the voyage.
(2) Liability on the owner
of a ship does not arise under paragraph (1) in respect of a ship that is sent
to sea in an unseaworthy state if, owing to special circumstances, the sending
of the ship to sea in that state was reasonable and justifiable.
ARTICLE 27
Complaints about provisions or water
(1) The master of a Jersey
ship shall investigate any complaint made by three or more seamen employed in
the ship that they consider that the provisions or water provided for the
seamen employed in the ship is not in accordance with any requirement of the
Safety Regulations, whether because of bad quality, unfitness for use or
deficiency in quantity.
(2) If the seamen are
dissatisfied with the action taken by the master as a result of his
investigation or by his failure to take any action, they may state their
dissatisfaction to him and may claim to complain to a shipping master or proper
officer; and in that case the master shall make adequate arrangements to enable
the seamen to do so as soon as the service of the ship permits.
(3) The shipping master or
proper officer to whom a complaint has been made under this Article shall
investigate the complaint and may examine the provisions or water on the ship
or cause them to be examined.
(4) If the master fails
without reasonable excuse to comply with paragraph (2) he commits an offence
and is liable to a fine at level 3 on the standard scale.
(5) If the master has been
notified in writing by the person making an examination under paragraph (3)
that any provisions or water are found to be unfit for use or not of the
quality required by the Regulations -
(a) if they are not
replaced within a reasonable time, the master, the owner and any charterer each
commits an offence and is liable to a fine at level 3 on the standard scale,7 unless
he proves that the failure to replace them was not due to his neglect or
default;
(b) if the master, without
reasonable excuse, permits them to be used he commits an offence and is liable
to a fine at level 3 on the standard scale.
ARTICLE 28
Expenses of medical and other treatment during voyage
(1) If a person, while
employed on a Jersey ship, receives outside Jersey -
(a) surgical or medical
treatment; or
(b) dental or optical
treatment, including the repair or replacement of an appliance, that cannot be
postponed without impairing efficiency,
the reasonable expenses of the
treatment are to be paid by the person by whom he is employed.
(2) If a person dies while
employed in a Jersey ship and is buried or
cremated outside Jersey, the expenses of his
burial or cremation are to be paid by the person by whom he is employed.
(3) The reference in
paragraph (2) to burial includes burial at sea.
ARTICLE 29
Manning
(1) The Committee may by
Order -
(a) require ships to which
this Article applies to carry the number of qualified officers of any
description, qualified doctors and qualified cooks, and the number of other
seamen or qualified seamen of any description specified in the Order; and
(b) prescribe or enable the
Committee to specify standards of competence to be attained and other
conditions to be satisfied, subject to any exceptions allowed by or under the
Order, by officers and other seamen of any description in order to be qualified
for the purposes of this Article,
but the Committee shall not exercise
its power to require ships to carry seamen other than doctors and cooks except
to the extent that it appears to the Committee necessary or expedient in the
interests of safety.
(2) Without prejudice to
the generality of paragraph (1)(b), the conditions prescribed or specified
under that paragraph may include conditions as to nationality, and an Order
made for the purposes of that paragraph may provide, or enable the Committee to
provide, for -
(a) the manner in which the
attainment of a standard or the satisfaction of any other condition is to be
evidenced;
(b) the conduct of any
examinations, the conditions for admission to them and the appointment and
remuneration of examiners; and
(c) the issue, form and
recording of certificates and other documents.
(3) If an Order under this
Article exempts a ship or ships of a particular description from a requirement
of the Order, the exemption may be confined to a particular period or to one or
more particular voyages.
(4) If a person makes a
statement that he knows to be false or recklessly makes a statement that is
false in a material particular for the purpose of obtaining for himself or
another person a certificate or other document that may be issued under this
Article, that person commits an offence and is liable to a fine at level 4 on
the standard scale.
ARTICLE 30
Prohibition of going to sea undermanned
Subject
to any exemption under Article 29(3), if a ship to which this Article applies
goes to sea or attempts to go to sea without carrying the officers and other
seamen that it is required to carry by virtue of Article 29, the owner, the
master and any charterer each commits an offence and is liable to a fine, and
the ship, if in Jersey, may be detained.
ARTICLE 31
Production of certificates and other
documents of qualification
(1) A person serving or
engaged to serve in a ship to which this Article applies and holding a
certificate or other document that is evidence that he is qualified for the
purpose of Article 29 shall produce it on demand to a shipping master, surveyor
of ships or proper officer and, if he is not himself the master, to the master
of the ship.
(2) A person who fails
without reasonable excuse to comply with paragraph (1) commits an offence and
is liable to a fine at level 2 on the standard scale.9
ARTICLE 32
Crew’s knowledge of English
(1) If in the opinion of a
shipping master or proper officer the crew of a ship to which this Article
applies consists of or includes persons who may not understand orders given to
them in the course of their duty because of their insufficient knowledge of
English and the absence of adequate arrangements for transmitting the orders in
a language of which they have sufficient knowledge -
(a) the ship shall not go
to sea if the shipping master or proper officer has informed the master of that
opinion; and
(b) if the ship is a Jersey ship, it may be detained.
(2) If a ship goes to sea
or attempts to go to sea in contravention of this Article, the owner, the
master and any charterer each commits an offence and is liable to a fine at
level 4 on the standard scale.
ARTICLE 33
Unqualified persons going to sea as qualified
If
a person goes to sea as a qualified officer or seaman of any description
without being qualified as such for the purposes of Article 29, he commits an
offence and is liable to a fine.
ARTICLE 34
Medical treatment on board ship
The
master of a Jersey ship that does not carry a
doctor among the seamen employed in the ship shall make arrangements to secure
that any medical attention on board the ship is given either by him, or under
his supervision by a person appointed by him for the purpose.
ARTICLE 35
Special certificates of competence
(1) The Committee may issue
and record documents certifying the attainment of any standard of competence
relating to ships or their operation, despite the fact that the standard is not
among those prescribed or specified under Article 29(1)(b); and may, in
relation to it, make an Order for purposes corresponding to those mentioned in
Article 29(2).
(2) If a person makes a
statement that he knows to be false, or recklessly makes a statement that is false
in a material particular, for the purpose of obtaining for himself or another
person a document that may be issued under this Article, he commits an offence
and is liable to a fine at level 4 on the standard scale.
ARTICLE 36
Young persons
(1) A person of compulsory
school age shall not be employed in a Jersey
ship except as permitted by an Order under this Article.
(2) The Committee may by
Order -
(a) prescribe circumstances
in which, and conditions subject to which, persons of compulsory school age who
have attained an age specified in the Order may be employed in a ship in
capacities that are specified;
(b) prescribe circumstances
and capacities in which persons over compulsory school age but under the age of
18, or under any lower age specified in the Order, shall not be employed in a Jersey ship, or may be so employed only subject to
conditions specified in the Order.
(3) If a person is employed
in a ship in contravention of this Article, or if a condition subject to which
a person may be employed under an Order made under paragraph (2) is not
complied with, the owner, the master and any charterer each commits an offence
and is liable to a fine at level 3 on the standard scale.11
(4) In this Article
“compulsory school age” is to be construed in accordance with
Article 2 of the Education (Jersey) Law 1999.
ARTICLE 37
Conduct endangering ships, structures or individuals
(1) This Article applies -
(a) to the master of, or a
seaman employed in, a Jersey ship; and
(b) to the master of, or a
seaman employed in, a ship that -
(i) is registered
under the law of a country outside Jersey, and
(ii) is in a port in Jersey, or within Jersey
waters while proceeding to or from any such port.
(2) A person to whom this
Article applies commits an offence if, while on board his ship or in its
immediate vicinity that person -
(a) does an act that causes
or is likely to cause -
(i) the loss or
destruction of, or serious damage to, his ship or its machinery, navigational
equipment or safety equipment,
(ii) the loss or destruction
of, or serious damage to, another ship or any structure, or
(iii) the death of, or serious
injury to, a person; or
(b) omits to do anything
required -
(i) to preserve his
ship or its machinery, navigational equipment or safety equipment from being
lost, destroyed or seriously damaged,
(ii) to preserve a person on
board his ship from death or serious injury, or
(iii) to prevent his ship from
causing the loss or destruction of, or serious damage to, another ship or any
structure, or the death of, or serious injury to, a person not on board his
ship,
and either of the conditions
specified in paragraph (3) is satisfied with respect to that act or omission.
(3) Those conditions are -
(a) that the act or
omission was deliberate, or amounted to a breach or neglect of duty; or
(b) that the master or
seaman in question was under the influence of drink or a drug or both at the
time of the act or omission.
(4) A person to whom this
Article applies commits an offence if that person -
(a) discharges any of his
duties, or performs another function in relation to the operation of his ship
or its machinery or equipment, in such a manner as to cause, or be likely to
cause, loss, destruction, death or injury as is mentioned in paragraph (2)(a);
or
(b) fails to discharge any
of his duties, or perform any such function, properly, to the extent as to
cause, or be likely to cause, any of those things.
(5) A person who commits an
offence under this Article is liable to imprisonment for 2 years and a fine.
(6) In proceedings for an
offence under this Article it is a defence to prove -
(a) in the case of an
offence under paragraph (2) -
(i) if the act or
omission alleged against the defendant constituted a breach or neglect of duty,
that the defendant took all reasonable steps to discharge that duty, or
(ii) that at the time of the
act or omission alleged against the defendant he was under the influence of a
drug taken by him for medical purposes and either that he took it on medical
advice and complied with any directions given as part of that advice, or that
he had no reason to believe that the drug might have the influence it had;
(b) in the case of an
offence under paragraph (4), that the defendant took all reasonable precautions
and exercised all due diligence to avoid committing the offence; or
(c) in the case of an
offence under either of those paragraphs -
(i) that he could
have avoided committing the offence only by disobeying a lawful command, or
(ii) that in all the
circumstances the loss, destruction, death or injury in question, or, as the
case may be, the likelihood of its being caused, either could not reasonably
have been foreseen by the defendant or could not reasonably have been avoided
by him.
(7) In the application of
this Article to a person falling within paragraph (1)(b) -
(a) paragraphs (2) and (4)
have effect as if paragraph (2)(a)(i) and (b)(i) were omitted; and
(b) proceedings for an
offence under this Article are not to be instituted except by or with the
consent of the Attorney-General.
(8) In this Article -
“breach or neglect of
duty”, except in relation to a master, includes disobedience to a lawful
command;
“duty” -
(a) in relation to a master
or seaman, means a duty falling to be discharged by him in his capacity as
such;
(b) in relation to a
master, includes his duty with respect to the good management of his ship and
his duty with respect to the safety of operation of his ship, its machinery and
equipment;
“structure” means a
fixed or movable structure of any description other than a ship.
ARTICLE 38
Concerted disobedience and neglect
of duty
(1) A seaman employed in a Jersey ship commits an offence if he combines with other
seamen employed in that ship -
(a) to disobey a lawful
command that is required to be obeyed at a time when the ship is at sea;
(b) to neglect a duty that
is required to be discharged at such a time; or
(c) to impede, at such a
time, the progress of a voyage or the navigation of the ship,
and is liable to imprisonment for 2
years and a fine.
(2) For the purposes of
this Article a ship is to be treated as being at sea at any time when it is not
securely moored in a safe berth.
ARTICLE 39
Inquiry into fitness or conduct of officer
(1) If it appears to the
Committee that an officer -
(a) is unfit to discharge
his duties, whether by reason of incompetence or misconduct or for another
reason;
(b) has been seriously
negligent in the discharge of his duties; or
(c) has failed to comply
with Article 55 (assistance at sea),
the Committee may cause an inquiry
to be held by one or more persons appointed by it and may suspend, pending the
outcome of the inquiry, a certificate issued to the officer under Article 29
and require the officer to deliver it to the Committee.
(2) If a certificate has
been suspended under paragraph (1), the suspension may, on the application of
the officer, be terminated by the Royal
Court, and the decision of the Court on the application
is final.
(3) An inquiry under this
Article is to be conducted in accordance with provisions made under Article
43(1), and those provisions shall require the persons holding the inquiry to
hold it with the assistance of one or more assessors.
(4) The persons holding an
inquiry under this Article -
(a) may, if satisfied as to
any of the matters mentioned in paragraphs (1)(a) to (c) -
(i) cancel or suspend
a certificate issued to him under Article 29, or
(ii) censure him;
(b) may make an order with
regard to costs of the inquiry as they think just; and
(c) shall make a report on
the case to the Committee,
and if the certificate is cancelled
or suspended the officer, unless he has delivered it to the Committee under
paragraph (1), shall deliver it immediately to the person holding the inquiry
or to the Committee.
(5) Any costs that a person
is ordered to pay under paragraph (4)(b) may be recovered from him by the
Committee.
ARTICLE 40
Disqualification of holders of certain certificates
(1) This Article applies to
-
(a) a certificate issued
under Article 29, other than one certifying that a person is qualified as an
officer; and
(b) a certificate issued
under Article 35.
(2) If it appears to the
Committee that a person who is the holder of a certificate to which this
Article applies is unfit to be the holder of it, whether by reason of
incompetence or misconduct or for another reason, the Committee may give him
notice in writing that the Committee is considering the suspension or
cancellation of the certificate stating -
(a) the reasons why it
appears to the Committee that the person is unfit; and
(b) that within a period
specified in the notice, or such longer period as the Committee may allow, the
person may make written representations to the Committee or claim to make oral
representations to the Committee.
(3) After considering any
representations made under paragraph (2) the Committee shall decide
whether to suspend or cancel the certificate and give the holder written notice
of its decision.
(4) If the Committee
decides to cancel or suspend the notice it shall state -
(a) the date from which the
cancellation is to take effect; or
(b) the date from which and
the period for which the suspension is to take effect,
and shall require the holder to
deliver the certificate to the Committee not later than the date so specified,
unless before that date the holder has required the case to be dealt with by an
inquiry under Article 41.
(5) If, before the date
specified in the notice, the holder requires the case to be dealt with by such
an inquiry, then, unless he withdraws the requirement, the suspension or
cancellation is not to take effect except as ordered under the inquiry.
(6) The Committee may by
Order prescribe the procedure to be followed with respect to the making and
consideration of representations under this Article, the form of any notice to
be given under this Article and the period to be specified in the notice as the
period within which any steps are to be taken.
ARTICLE 41
Inquiry into fitness or conduct of
seaman other than officer
(1) If a person has, before
the date mentioned in Article 40(4), required his case to be dealt with by
an inquiry under this Article, the Committee shall cause an inquiry to be held
by one or more persons appointed by it.
(2) An inquiry under this
Article shall be conducted in accordance with provisions made under Article
43(1), and those provisions shall require the persons holding the inquiry to
hold it with the assistance of one or more assessors.
(3) The persons holding an
inquiry under this Article -
(a) may confirm the
decision of the Committee and cancel or suspend the certificate accordingly;
(b) may, if the decision
was to cancel the certificate, suspend it instead;
(c) may, if the decision
was to suspend the certificate, cancel it or suspend it for a different period;
(d) may, instead of
confirming the decision of the Committee -
(i) censure the
holder of the certificate, or
(ii) take no further action;
(e) may make such order
with regard to costs of the inquiry as they think just; and
(f) shall make a
report on the case to the Committee,
and if the certificate is cancelled
or suspended the person who is the subject of the inquiry shall deliver it
immediately to the person holding the inquiry or to the Committee.
(4) Any costs that a person
is ordered to pay under paragraph (3)(e) may be recovered from him by the
Committee.
ARTICLE 42
Rehearings and appeals
(1) If an inquiry has been
held under Article 39 or 41, the Committee may order the whole or part of the
case to be reheard by a Jurat, or an Advocate of the Royal Court of not less
than 10 years’ standing, and shall do so -
(a) if new and important
evidence that could not be produced at the inquiry has been discovered; or
(b) if there appear to the
Committee to be other grounds for suspecting that a miscarriage of justice may
have occurred.
(2) A rehearing under this
Article is to be conducted in accordance with provisions made under Article 43.
(3) If the persons holding
the inquiry have decided to cancel or suspend the certificate of a person, or
found a person to be at fault, then, if no application for an order under
paragraph (1) has been made or such an application has been refused, that
person or any other person who, having an interest in the inquiry, has appeared
at the hearing and is affected by the decision or finding, may appeal within 28
days of the decision or finding to the Royal Court.
(4) If, after a rehearing
under this Article, the cancellation or suspension of the certificate of a
person, or finding that the person is at fault, has been confirmed, that person
or any other person who, having an interest in the rehearing, has appeared at
the rehearing and is affected by the decision or finding, may appeal within 28
days of the decision or finding to the Royal Court on a point of law only.
ARTICLE 43
Provisions as to inquiries and appeals
(1) The Committee may by
Order make provision for the conduct of inquiries under Articles 39 and 41 and
for the conduct of any rehearing under Article 42 and, without prejudice to the
generality of that power, may provide for -
(a) the appointment and
summoning of assessors;
(b) the manner in which a
fact may be proved;
(c) the persons allowed to
appear; and
(d) the notices to be given
to persons affected.
(2) Rules of Court made for
the purpose of appeals to the Royal
Court may require the Court to hold an appeal with
the assistance of one or more assessors, subject to any exception that may be
allowed by the Rules.
ARTICLE 44
Failure to deliver cancelled or
suspended certificate
A
person who fails to deliver a certificate as required under Article 39, 40
or 41 commits an offence and is liable to a fine at level 2 on the standard
scale.
ARTICLE 45
Power to restore certificate
If
a certificate has been cancelled or suspended under Article 39, 40, 41 or 42,
the Committee may, if of the opinion that the justice of the case requires it -
(a) re-issue the
certificate;
(b) reduce the period of
suspension and return the certificate; or
(c) grant a new certificate
of the same or a lower grade in place of the cancelled or suspended
certificate.
ARTICLE 46
Power to summon witnesses to inquiries
(1) The persons holding an
inquiry under Article 39 or 41, or a rehearing under Article 42, may -
(a) by summons require a
person to attend, at a time and place stated in the summons, to give evidence
or to produce a document in his custody or under his control that relates to a
matter in question at the inquiry; and
(b) take evidence on oath,
and for that purpose administer oaths, or, instead of administering an oath,
require the person examined to make a solemn affirmation.
(2) If, on the failure of a
person to attend an inquiry in answer to a summons under this Article, the
persons holding the inquiry are satisfied by evidence on oath that -
(a) the person in question
is likely to be able to give material evidence or produce a document that
relates to a matter in question at the inquiry;
(b) he has been duly served
with a summons; and
(c) a reasonable sum has
been paid or tendered to him for costs and expenses,
and it appears to them that there is
no just excuse for the failure, they may order the Viscount to issue a warrant
to arrest him and bring him before the inquiry at a time and place specified in
the warrant.
(3) If a person attending
or brought before the inquiry refuses without just excuse to be sworn or give
evidence, or to produce a document, the persons holding the inquiry may -
(a) commit him to custody
until the end of a period not exceeding 1 month as may be specified in the
warrant or until he gives evidence or produces the document, whichever occurs
first; or
(b) impose on him a fine at
level 3 on the standard scale,
or both.
(4) A fine imposed under
paragraph (3)(b) is to be treated, for the purposes of its collection,
enforcement and remission as having been imposed by the Magistrate’s
Court, and the persons holding the inquiry shall, as soon as practicable after
imposing it, give particulars of it to the Judicial Greffier.
ARTICLE 47
Official log books
(1) Except as provided by
an Order under this Article, an official log book in a form approved by the
Committee shall be kept in every Jersey ship.
(2) The Committee may by
Order -
(a) prescribe the
particulars to be entered in an official log book, the persons by whom entries
are to be made, signed or witnessed, and the procedure to be followed in the
making of entries and in their amendment or cancellation;
(b) require the production
or delivery of an official log book to persons, in circumstances, and within
such times, as may be specified;
(c) make contravention of a
provision of the Order an offence punishable with a fine not exceeding level 2
on the standard scale.
(3) A person who
intentionally destroys, mutilates, or renders illegible an entry in, an
official log book commits an offence and is liable to a fine at level 4 on the
standard scale.15
ARTICLE 48
Handing over of documents by master
If
a person ceases to be a master of a Jersey ship during a voyage of the ship, he
shall deliver to his successor the documents relating to the ship or its crew
that are in his custody; and if he fails to do so without reasonable excuse he
commits an offence and is liable to a fine at level 3 on the standard scale.15
PART 5
SAFETY
ARTICLE 49
Safety and health on ships
(1) The States may make
Regulations -
(a) to secure the safety of
Jersey ships and persons on them;
(b) to protect the health
of persons on Jersey ships;
(c) to secure the safety of
other ships and persons on them while they are within Jersey
waters;
(d) to protect the health
of persons on ships other than Jersey ships
while they are in Jersey waters.
(2) The Safety Regulations
-
(a) are not to apply in
relation to a qualifying foreign ship while it is exercising a right of
innocent passage, or to persons on it while it is exercising such a right; but
(b) are to apply in
relation to such a ship, and persons on it, even though the ship is exercising
such a right, to the extent that the Regulations give effect to any provisions
of an international agreement, ratified by the United Kingdom on behalf of
Jersey, so far as it relates to the safety of ships or persons on them or to
the protection of the health of persons on ships.
(3) In paragraph (1)
“Jersey ship” means a ship that -
(a) is registered in Jersey; or
(b) is not registered under
the law of any country but is wholly owned by persons each of whom is -
(i) a British citizen
resident in Jersey, or
(ii) a body corporate that
is established under Jersey law and has its
principal place of business in Jersey.
(4) The Safety Regulations
may make provision with respect to any of the following matters -
(a) the design,
construction, maintenance, repair, alteration, inspection, surveying and
marking of ships and their machinery and equipment;
(b) the packing, marking,
loading, placing, moving, inspection, testing and measuring of cargo and
anything on a ship that is not cargo, machinery or equipment;
(c) the carrying out of any
operation involving a ship;
(d) the use of the
machinery and equipment of a ship and of anything on a ship that is not cargo,
machinery or equipment;
(e) the manning of ships,
including the employment on ships of persons qualified to attend to the health
and safety of persons on the ships;
(f) the arrangements
to ensure communications between persons in different parts of a ship and
between persons in the ship and other persons;
(g) the access to, presence
in and egress from a ship, and different parts of it, of persons of any
description;
(h) the ventilation,
temperature and lighting of different parts of a ship;
(i) the steps to be
taken to prevent or control noise, vibration and radiation in and from a ship
and the emission in or from a ship of smoke, gas and dust;
(j) the steps to be
taken to prevent, detect and deal with outbreaks of fire on a ship;
(k) the steps to be taken
to prevent a collision involving a ship and following a collision involving a
ship;
(l) the steps to be
taken if a ship is in distress or stranded or wrecked to save the ship and its
machinery, equipment and cargo and the lives of persons on or from the ship,
including the steps to be taken by other persons for giving assistance in such
a case;
(m) the removal, by jettisoning
or otherwise, of its equipment and of other things from a ship to avoid, remove
or reduce danger to persons or property;
(n) the steps to be taken,
if danger of any kind occurs or is suspected on a ship, to remove or reduce the
danger and to warn persons who are not on the ship of the danger or suspected
danger;
(o) the records to be made
and the documents to be kept relating to ships, and the information to be kept
and used on a ship to facilitate the navigation of the ship;
(p) the registers to be
kept and the certificates to be issued where registration or a certificate is
required by virtue of the Regulations;
(q) information to be
provided,
but the mention of specific matters
in this paragraph is not to be construed as restricting the generality of the
power conferred by paragraph (1).
(5) The power conferred by
paragraph (1) extends to the making of Regulations -
(a) for the prevention of
collisions between seaplanes on the surface of the water and between ships and
seaplanes; and paragraphs (4)(k) and (6) to (8) have effect accordingly;
(b) making it an offence,
subject to any defence prescribed by the Regulations, for a master of, or a
seaman employed or engaged in, a ship, while on board the ship, to be under the
influence of drink or a drug or both to such an extent that his capacity to
fulfil his responsibility for the ship, or to carry out the duties of his
employment or engagement, is impaired.
(6) The Safety Regulations
-
(a) may authorize the
making of Orders for the purposes of this Article;
(b) may make provision in
terms of approvals given by the Committee or another person and in terms of
documents that the Committee or another person considers relevant from time to
time;
(c) may provide for the
cancellation of an approval given under the Regulations and for the alteration
of the terms of such an approval; and
(d) shall provide for an
approval under the Regulations to be given in writing and to specify the date
on which it takes effect and the conditions, if any, on which it is given.
(7) Without prejudice to
Article 50(1)(b), the Safety Regulations may provide -
(a) for the Committee or
another person to grant, on any terms the Committee or other person may
specify, an exemption for a class of cases or an individual case from a
specified provision of the Regulations; and
(b) for the alteration or
cancellation of an exemption granted under the Regulations.
(8) The Safety Regulations
may provide -
(a) that where prescribed
by the Regulations a ship shall be liable to be detained and that Article 177 (enforcing detention) shall have effect,
with any modifications prescribed by the Regulations, in relation to the ship;
(b) that a contravention of
the Regulations shall be an offence punishable with imprisonment for 2 years
and a fine, or such lesser penalty as is prescribed by the Regulations;
(c) that where prescribed
by the Regulations prescribed persons shall each be guilty of an offence
created by virtue of sub-paragraph (b).
(9) Schedule 2 (load lines) has effect.
ARTICLE 50
Provisions supplementary to Article 49: general
(1) The Safety Regulations may
-
(a) be made so as to apply
outside Jersey;
(b) provide that if a
signal is used or displayed otherwise than in accordance with the Regulations
for compensation to be paid for any expense or loss caused in consequence of
the signal being taken for a signal of distress,
and any compensation required to be
paid by virtue of Regulations under sub-paragraph (b) may, without prejudice to
another remedy, be recovered in the same manner as salvage.
(2) The States may, by
Regulations -
(a) repeal or modify a
provision of this Law, and of an instrument made under it, as they consider
appropriate in consequence or in anticipation of the making of the Safety
Regulations;
(b) repeal or modify a
provision of another enactment in force in Jersey, or that applies to Jersey
ships, as they consider appropriate in connection with any repeal or
modification made or to be made under sub-paragraph (a);
(c) provide for anything
done under a provision repealed or otherwise modified by virtue of
sub-paragraph (a) or (b) to have effect as if done under the Safety
Regulations.
(3) Nothing in Article
49(4) to (7), or in paragraph (1) of this Article, is to be construed as
prejudicing the generality of Article 49(1).
ARTICLE 51
Provisions supplementary to Article
49: dangerous goods
(1) If dangerous goods have
been sent or carried, or attempted to be sent or carried, on board a ship,
whether or not a Jersey ship -
(a) without being marked as
required by the Safety Regulations;
(b) without notice having
been given as is required by the Safety Regulations; or
(c) with a false
description of their sender or carrier,
the Royal Court may declare the goods, and
any package or receptacle in which they are contained, to be forfeited; and on
a declaration of forfeiture being made the goods may be disposed of as the
Court directs.
(2) The power of the Court
under paragraph (1) is exercisable notwithstanding that the owner of the goods
-
(a) has not committed an
offence under the Safety Regulations relating to dangerous goods;
(b) is not before the
Court; and
(c) has no notice of the
proceedings,
and notwithstanding that there is no
evidence to show to whom the goods belong; but the Court may require such
notice as it directs to be given to the owner or shipper of goods before they
are forfeited.
(3) In this Article
“dangerous goods” means goods so designated by the Safety
Regulations.
ARTICLE 52
Safety of submersible and supporting apparatus
(1) This Article applies to
submersible or supporting apparatus -
(a) operated within Jersey waters; or
(b) launched or operated
from, or comprising, a Jersey ship.
(2) The Committee may by
Order provide -
(a) for the safety of
submersible and supporting apparatus;
(b) for the prevention of
accidents in or near submersible or supporting apparatus;
(c) for the safety, health
and welfare of persons on or in submersible and supporting apparatus;
(d) for prohibiting or
otherwise restricting the operation of submersible apparatus except in
accordance with the conditions of a licence granted under the Order;
(e) for the registration of
submersible apparatus,
and Schedule 3 has effect for
supplementing this Article.
(3) In this Article -
“apparatus”
includes a vessel, vehicle or hovercraft, and any structure, diving plant or
equipment, or other form of equipment;
“submersible
apparatus” means apparatus used, or designed for use, in supporting human
life on or under the bed of any waters or elsewhere under the surface of any
waters;
“supporting
apparatus” means apparatus used, or designed for use, in connection with
the operation of submersible apparatus.
ARTICLE 53
Charts and other information
(1) The Committee may by
Order specify charts, directions or information and other aids to navigation
that appear to them necessary or expedient for the safe operation of ships, and
the Order may require -
(a) Jersey
ships; or
(b) Jersey
ships of any descriptions specified in the Order,
to carry, either at all times or on
any voyage specified in the Order, copies of the charts, directions or
information, or aids to navigation so specified.
(2) If a ship goes to sea
without carrying copies of the charts, directions or information that it is
required to carry by an Order under this Article, the master, the owner and
charterer each commits an offence and is liable to a fine at level 3 on the
standard scale.
ARTICLE 54
Report of dangers to navigation
(1) The master of a Jersey
ship, on meeting with a danger to navigation shall send information accordingly
by all means of communication at his disposal and in accordance with any Order
made by the Committee for the purpose of this Article to ships in the vicinity
and to such authorities on shore as are prescribed by the Order.
(2) A danger to navigation
referred to in paragraph (1) includes -
(a) dangerous ice;
(b) a dangerous derelict;
(c) a tropical storm;
(d) air temperatures below
freezing point associated with gale force winds causing severe ice accretion on
the superstructure of ships;
(e) winds of force 10 or
above on the Beaufort scale for which no storm warning has been received.
(3) A master of a ship who
fails to comply with this Article or an Order made under it commits an offence
and is liable to a fine at level 4 on the standard scale.16
(4) A person in charge of a
controlled station for wireless telegraphy shall, on receiving the signal
prescribed by the Order for indicating that a message is about to be sent under
this Article, refrain from sending messages for a time sufficient to allow
other stations to receive the message, and, if so required by the Committee,
shall transmit the message in the manner required by the Committee.
(5) Compliance with
paragraph (4) is to be regarded as a condition of every wireless telegraphy
licence.
(6) In this Article -
“controlled
station for wireless telegraphy” means a station controlled by the
Secretary of State; and “controlled” includes control by means of a
licence granted by the Secretary of State;
“Secretary
of State” has the meaning given to that expression in Schedule 1 to the
Interpretation Act 1978 of the United Kingdom;
“tropical
storm” means a hurricane, typhoon, cyclone, or other storm of a similar
nature;
“wireless
telegraphy licence” and “station for wireless telegraphy”
have the same meanings as in the Wireless Telegraphy (Channel
Islands) Order 1952.
(7) For the purpose of this
Article the master of a ship is to be regarded as having met with a tropical
storm if he has reason to believe that there is such a storm in his vicinity.
ARTICLE 55
Duty of ships to assist each other
in case of collision
(1) If ships collide, the
master of each ship, if and so far as he can do so without danger to his own
ship, crew and any passengers, shall -
(a) give the other ship,
its master, crew and any passengers all assistance that it is practicable to
give and is necessary to save them from any danger caused by the collision;
(b) stay by the other ship
until he has ascertained that it has no need of further assistance; and
(c) give the master of the
other ship the name of his own ship and also the names of the ports from which
it comes and to which it is bound.
(2) The duties imposed on
the master by paragraph (1) apply to the masters of Jersey ships and to the masters
of foreign ships when in Jersey waters.
(3) The failure of the
master of a ship to comply with this Article does not raise a presumption of
law that the collision was caused by his wrongful act, neglect or default.
(4) A master who fails
without reasonable excuse to comply with this Article commits an offence and is
liable -
(a) in the case of an
offence under paragraph (1)(a) or (b), to imprisonment for 2 years and a fine;
(b) in the case of an
offence under paragraph (1)(c) to a fine,
and in either case, if he is a
certified officer, an inquiry into his conduct may be held, and his certificate
cancelled or suspended.
ARTICLE 56
Duty to assist ships etc. in distress
(1) The master of a ship,
on receiving at sea a signal of distress or information that a ship or aircraft
is in distress, shall proceed with all speed to the assistance of the persons
in distress (and if practicable inform them that he is doing so) unless -
(a) he is unable to do so;
(b) in the special
circumstances of the case he considers it unreasonable or unnecessary to do so;
or
(c) he is released from the
duty to do so under paragraph (4).
(2) If the master of a ship
in distress has requisitioned a ship that has answered his call, the master of
the requisitioned ship shall comply with the requisition by continuing to
proceed with all speed to the assistance of the persons in distress.
(3) The duties imposed by
paragraphs (1) and (2) apply to the masters of Jersey ships and to the masters
of foreign ships when in Jersey waters.
(4) A master is released -
(a) from the duty imposed
by paragraph (1) as soon as he is informed of the requisition of one or more
ships other than his own and that that requisition is being complied with by
the ship or ships requisitioned;
(b) from the duty imposed
by paragraph (1) and, if his ship has been requisitioned, from that imposed by
paragraph (2), if he is informed by the persons in distress, or by the master
of a ship that has reached the persons in distress, that assistance is no
longer required.
(5) A master who fails to
comply with this Article commits an offence and is liable to imprisonment for 2
years and a fine.
(6) Compliance by the
master of a ship with this Article does not affect his right, or the right of
another person, to salvage.
ARTICLE 57
Meaning of “dangerously unsafe ship”
(1) For the purposes of
Articles 58 to 61 -
(a) a ship in port is
“dangerously unsafe” if, having regard to the nature of the service
for which it is intended to be used, the ship is, by reason of matters relevant
to the safety of the ship, unfit to go to sea without serious danger to human
life;
(b) a ship at sea is
“dangerously unsafe” if, having regard to the nature of the service
for which it is being used or is intended to be used, the ship is, by reason of
the matters relevant to the safety of the ship, unfit either -
(i) to remain at sea,
or
(ii) to go on a voyage,
without
serious danger to human life.
(2) In paragraph (1)
“matters relevant to the safety of the ship” includes -
(a) the condition, or the
unsuitability for its purpose, of -
(i) the ship or its
machinery or equipment; or
(ii) any part of the ship or
its machinery or equipment;
(b) any undermanning of the
ship;
(c) any overloading or
unsafe or improper loading of the ship.
(3) In Articles 58 to 61
“relevant inspector” means a person mentioned in Article 156(1) (persons empowered to inspect ships).
ARTICLE 58
Power to detain dangerously unsafe ship
(1) If a ship that is -
(a) in a port in Jersey; or
(b) at sea in Jersey
waters,
appears to a relevant inspector to
be a dangerously unsafe ship, the ship may be detained.
(2) The power of detention
conferred by paragraph (1) is exercisable in relation to a foreign ship as well
as a Jersey ship, unless it is a qualifying foreign ship exercising the right
of innocent passage.
(3) The officer detaining
the ship shall serve on the master of the ship a detention notice that -
(a) states that the
relevant inspector is of the opinion that the ship is a dangerously unsafe
ship;
(b) specifies the matter
that, in the relevant inspector’s opinion, makes the ship a dangerously
unsafe ship; and
(c) requires the ship to
comply with the terms of the notice until it is released by a competent
authority.
(4) In the case of a ship
that is not a Jersey ship or a British ship, the officer detaining the ship
shall cause a copy of the detention notice to be sent as soon as possible to
the nearest consular officer for the country to which the ship belongs.
(5) In this Article -
“British
ship” means a ship as defined in section 1 of the Merchant Shipping Act
1995 of the United Kingdom, other than a Jersey ship;
“competent
authority” means an officer mentioned in Article 177(1) (officers empowered to detain ships).
ARTICLE 59
Reference of detention notices to arbitration
(1) Paragraph (2) applies
if -
(a) an officer has served a
detention notice in respect of a ship in accordance with Article 58(3); and
(b) there is a question as
to whether the matter specified in the notice in accordance with
Article 58(3)(b) constitutes a valid basis for the opinion of the relevant
inspector that the ship is a dangerously unsafe ship.
(2) If the master, owner or
any charterer of the ship so requires by a notice given to the relevant
inspector within 21 days from the service of the detention notice, the question
is to be resolved by a single arbitrator appointed -
(a) by agreement between
the parties; or
(b) failing agreement, by
the Bailiff.
(3) If the master, owner or
charterer of a ship gives notice under paragraph (2), the detention of the ship
is not suspended unless the arbitrator, on the application of the master, owner
or charterer, so directs.
(4) The arbitrator shall,
in resolving the question, have regard to any other matter not specified in the
detention notice that appears to him to be relevant as to whether the ship is a
dangerously unsafe ship.
(5) If the arbitrator
decides that the ship is not a dangerously unsafe ship he shall cancel the
detention notice.
(6) If the arbitrator
decides that the ship is a dangerously unsafe ship (whether by virtue of the
matter that formed the basis of the relevant inspector’s opinion or by
virtue of another matter) he shall affirm the detention notice.
(7) Article 162(4) applies
to qualification for appointment as an arbitrator under this Article.
(8) In connection with his
functions under this Article an arbitrator has the powers conferred on an
inspector by Article 157.
ARTICLE 60
Compensation in connection with invalid detention of ship
(1) If, on a reference
under Article 59 relating to a detention notice in relation to a ship, the
arbitrator decides -
(a) that the ship was not a
dangerously unsafe ship; and
(b) that there were no
reasonable grounds on which the inspector could have formed an opinion that it
was,
the arbitrator may award the owner
of the ship such compensation in respect of any loss suffered by him in
consequence of the detention as the arbitrator thinks fit.
(2) Compensation awarded
under this Article shall be paid by the Committee.
ARTICLE 61
Owner and master liable in respect of dangerously unsafe ship
(1) If a ship that -
(a) is in a port in Jersey;
or
(b) is a Jersey ship and is
in another port,
is dangerously unsafe, then, subject
to paragraphs (4) and (5), the master and the owner each commits an offence and
is liable to imprisonment for 2 years and a fine.
(2) If, at the time when a
ship is dangerously unsafe, any responsibilities of the owner with respect to
the matters relevant to its safety have been assumed, whether wholly or in
part, by a person other than the owner, and have been so assumed by that person
either -
(a) directly, under the
terms of a charter-party or management agreement made with the owner; or
(b) indirectly, under the
terms of a series of charter-parties or management agreements,
the reference to the owner in
paragraph (1) is to be construed as a reference to the other person.
(3) It is a defence in
proceedings for an offence under this Article to prove that at the time of the
alleged offence -
(a) arrangements had been
made that were appropriate to ensure that before the ship went to sea it was
made fit to do so without serious danger to human life by reason of the matters
relevant to its safety that are specified in the charge or summons; or
(b) it was reasonable for
those arrangements not to have been made.
(4) It is also a defence in
those proceedings to prove -
(a) that, under the terms
of one or more charter-parties or management agreements entered into by the
defendant, the following responsibilities -
(i) if the defendant
is the owner, his responsibilities with respect to matters relevant to the
ship’s safety, or
(ii) if the defendant is
liable to proceedings under this Article by virtue of paragraph (2), so much of
those responsibilities as had been assumed by him as mentioned in that
paragraph,
had
at the time of the alleged offence been wholly assumed by some other person or
persons party to the charter-party or management agreement; and
(b) that in all the
circumstances of the case the defendant had taken such steps as it was
reasonable for him to take, and exercised such diligence as it was reasonable
for him to exercise, to secure the proper discharge of those responsibilities
during the period during which they had been assumed by the other person or
persons,
and, in determining whether the
defendant had done so, regard is to be had in particular to the matters
mentioned in paragraph (5).
(5) Those matters are -
(a) whether before the time
of the alleged offence the defendant was, or in all the circumstances ought
reasonably to have been, aware of any deficiency in the discharge of the
responsibilities mentioned in paragraph (4)(a); and
(b) the extent to which the
defendant was or was not able, under the terms of any such charter-party or
management agreement mentioned in paragraph (4)(a) -
(i) to terminate it,
or
(ii) to intervene in the
management of the ship,
in the event of any such deficiency,
and whether it was reasonable for the defendant to place himself in that
position.
(6) Proceedings for an
offence under this Article shall not be instituted except by or with the
consent of the Attorney General.
(7) In this Article -
(a) “management
agreement” in relation to a ship means an agreement, other than a
charter-party or a contract of employment, under which the ship is managed,
either wholly or in part, by a person other than the owner, whether on behalf
of the owner or on behalf of some other person; and
(b) a reference to
responsibilities being assumed by a person under the terms of a charter-party
or management agreement is a reference to their being so assumed by him,
whether or not he has entered into a further charter-party or management
agreement providing for them to be assumed by some other person.
ARTICLE 62
Use of unsafe lighters etc.
(1) A person who uses or
causes or permits to be used in navigation a lighter, barge or similar vessel
when, because of -
(a) the defective condition
of its hull or equipment;
(b) overloading or improper
loading; or
(c) undermanning,
it is so unsafe that human life is
endangered commits an offence and is liable to a fine.
(2) Proceedings for an
offence under this Article shall not be instituted except by, or with the
consent of, the Attorney General.
(3) This Article does not
affect the liability of the owner or any charterer of a lighter, barge or
similar vessel in respect of loss of life or personal injury caused to a person
carried in the vessel.
ARTICLE 63
Owner liable for unsafe operation of ship
(1) This Article applies to
-
(a) a Jersey
ship; and
(b) a ship that -
(i) is registered
under the law of a country outside Jersey, and
(ii) is within Jersey waters while proceeding to or from a port in Jersey,
unless the ship would not be so
proceeding but for weather conditions or any other unavoidable circumstances.
(2) If the owner of a ship
to which this Article applies fails to take all reasonable steps to secure that
the ship is operated in a safe manner he commits an offence and is liable to
imprisonment for 2 years and a fine.
(3) If such a ship -
(a) is chartered by demise;
or
(b) is managed, either
wholly or in part, by a person other than the owner under the terms of a
management agreement within the meaning of Article 61(7),
the reference to the owner of the
ship in paragraph (2) of this Article is to be construed as a reference -
(c) to the charterer under
the charter by demise; or
(d) to a manager referred
to in sub-paragraph (b); or
(e) if the ship is both so
chartered and managed, to both the charterer and any such manager,
and accordingly the reference in
paragraph (2) to the taking of all reasonable steps is, in relation to the
owner, the charterer or manager, to be construed as a reference to the taking
of all steps that it is reasonable for him to take in the circumstances of the
case.
(4) Proceedings for an
offence under this Article shall not be instituted except by or with the
consent of the Attorney General.
ARTICLE 64
Power to establish temporary
exclusion zones
(1) Paragraph (2) applies
if a ship, structure or other thing is in Jersey
waters and is wrecked, damaged or in distress.
(2) If it appears to the
Committee that -
(a) significant harm will
or may occur as a direct or indirect result of the ship, structure or thing
being wrecked, damaged or in distress; and
(b) if access to an area
round the ship, structure or thing were restricted in accordance with Article
65, that harm, or the risk of it, would be prevented or reduced,
it may by direction identify an area
to which access is so restricted (in this Article and Article 65 called a
“temporary exclusion zone”).
(3) A temporary exclusion
zone -
(a) shall not include an
area outside Jersey waters;
(b) may be identified by
reference to the position of the ship, structure or other thing.
(4) If it appears to the Committee
after a temporary exclusion zone is established that the zone -
(a) is larger than is
needed for the purpose of preventing or reducing the harm, or the risk of it;
or
(b) is not needed for that
purpose,
it shall by direction, in a case
within sub-paragraph (a), vary the direction establishing the zone accordingly
or, in a case within sub-paragraph (b), revoke the direction.
(5) If the Committee gives
a direction under this Article it shall -
(a) as soon as practicable
publish it in a manner that the Committee considers appropriate for bringing it
to the attention of persons likely to be affected by it; and
(b) within 24 hours from
the giving of the direction send a copy of it to the International Maritime
Organisation.
(6) In this Article -
“significant
harm” means significant pollution in Jersey
or Jersey waters, or significant damage to
persons or property;
“pollution”
includes the introduction directly or indirectly into Jersey
or Jersey waters of any substance, or energy,
where its introduction results or is likely to result in -
(a) a hazard to human
health;
(b) harm to any living
resource or ecosystem;
(c) damage to any amenity;
or
(d) interference with any
legitimate use of Jersey waters,
and whether or not its introduction
is or would be the only contributing factor to that hazard, harm, damage or
interference.
ARTICLE 65
Offences relating to temporary
exclusion zones
(1) If a temporary
exclusion zone is established, a ship shall not enter or remain in the zone
except -
(a) in accordance with the
directions establishing the zone;
(b) with the consent of the
Committee; or
(c) in accordance with an
Order made by the Committee for the purposes of this Article.
(2) If a ship enters or
remains in a temporary exclusion zone in contravention of paragraph (1) its
owner, master and any charterer each commits an offence and is liable to
imprisonment for 2 years and a fine.
(3) It is a defence for a
person charged with an offence under this Article to prove that the existence
of the temporary exclusion zone was not and would not on reasonable enquiry
have become known to the master.
ARTICLE 66
Power to require ships to be moved
(1) The powers conferred by
this Article are exercisable if a ship in Jersey
waters -
(a) is not a qualifying
foreign ship; or
(b) is a qualifying foreign
ship but appears to the Committee not to be exercising a right of innocent
passage.
(2) The Committee may -
(a) to secure the safety of
a ship or of other ships, of persons on the ship or other ships, or of other
persons or property;
(b) to prevent or reduce
the risk to the safety of a ship or of other ships, of persons on the ship or
other ships, or of other persons or property; or
(c) to prevent or reduce
pollution, or the risk of pollution, in Jersey
or Jersey waters,
give a direction to the owner or any
person in possession or control of the ship, or the master of the ship,
requiring -
(d) that the ship be moved,
or be removed from a specified area or locality or from Jersey
waters; or
(e) that the ship not be
moved to a specified place or area within Jersey
waters, or over a specified route within those waters.
(3) The power under paragraph
(2)(d) to require that a ship be removed from Jersey
waters is not exercisable in relation to a Jersey
ship.
(4) If in the opinion of
the Committee the powers conferred by paragraph (2) are, or have proved to be,
inadequate for a purpose mentioned in that paragraph, the Committee itself,
acting through persons specifically authorized by it, may for that purpose take
any such action as it has power to require to be taken by a direction given
under paragraph (2).
(5) A person concerned with
compliance with a direction given, or action taken, under paragraph (2) shall
use his best endeavours to avoid risk to human life.
(6) Action taken as
respects a ship that is under arrest, or as respects the cargo of such a ship,
does not constitute a contempt of court if it
is -
(a) duly taken in
accordance with a direction given under paragraph (2); or
(b) taken under paragraph
(4).
(7) In this Article -
“pollution”
includes the introduction directly or indirectly into Jersey
or Jersey waters of any substance, or energy,
where its introduction results or is likely to result in -
(a) a hazard to human
health;
(b) harm to any living
resource or ecosystem;
(c) damage to any amenity;
or
(d) interference with any
legitimate use of Jersey waters,
and whether or not its introduction
is or would be the only contributing factor to that hazard, harm, damage or
interference;
“specified”
means specified by the direction.
ARTICLE 67
Service of directions under Article
66
(1) If the Committee is satisfied
that a company or other body is not one to which Article 72 of the Companies
(Jersey) Law 1991 (service of documents)
applies so as to authorize the service of a direction on that body, it may give
a direction under Article 66 of this Law to that body as -
(a) the owner of; or
(b) the person in
possession of,
a ship by serving the direction on
the master of the ship.
(2) A person acting on
behalf of the Committee may go on board a ship to give or serve a direction
under Article 66 to or on a person on the ship.
ARTICLE 68
Offences in relation to Article 66
(1) A person to whom a
direction is duly given under Article 66 commits an offence if he
contravenes a requirement of the direction.
(2) A person commits an
offence if he intentionally obstructs a person who is acting -
(a) on behalf of the
Committee in connection with the giving or service of a direction under Article
66;
(b) in compliance with a
direction under that Article; or
(c) under Article 66(4).
(3) A person who commits an
offence under this Article is liable to a fine; but in proceedings for an
offence under paragraph (1) it is a defence for the defendant to prove that he
-
(a) used all due diligence
to ensure compliance with the direction; or
(b) had reasonable cause to
believe that compliance with the direction would have involved a serious risk
to human life.
ARTICLE 69
Offences in connection with passenger ships
(1) This Article applies to
-
(a) a ship for which there
is in force a Passenger Ship Safety Certificate or Passenger Certificate, as
the case may be, issued under or recognised by the Safety Regulations;
(b) a ship carrying more
than 12 passengers that is -
(i) a Jersey ship, or
(ii) a ship not registered
in Jersey that is on a voyage that begins or
ends in Jersey, including a voyage in which
the ship does not call at a port outside Jersey.
(2) A person commits an
offence if, in relation to a ship to which this Article applies, he does any of
the following things -
(a) if, being drunk or
disorderly, he has been on that account refused permission to board the ship by
the owner or a person in his employment and, after having the amount of any
fare he has paid returned or tendered to him, he nevertheless persists in
attempting to board the ship;
(b) if, being drunk or
disorderly on board the ship, he is requested by the owner or a person in his
employment to leave the ship at any place in Jersey at which he can
conveniently do so and, after having the amount of any fare he has paid
returned or tendered to him, he does not comply with the request;
(c) if, on board the ship,
after a warning by the master or other officer of the ship, he molests or
continues to molest a passenger;
(d) if, after having been
refused permission to board the ship by the owner or a person in his employment
on account of the ship being full, and having had the amount of any fare he has
paid returned or tendered to him, he nevertheless persists in attempting to
board the ship;
(e) if, having boarded the
ship at any place, and being requested by the owner or a person in his
employment to leave the ship, on account of the ship being full, before it has
left that place, and having had the amount of any fare he has paid returned or
tendered to him, he does not comply with that request;
(f) if, on arriving
in the ship at a point to which he has paid his fare, he intentionally refuses
or neglects to leave the ship;
(g) if on board the ship he
fails, when requested by the master or other officer of the ship, either -
(i) to pay his fare,
or
(ii) to show a ticket or a
receipt showing the payment of his fare, of a kind that is usually given to a
person paying a fare for the passage,
but his liability in respect of any
such offence does not prejudice the recovery of any fare payable by him.
(3) A person commits an
offence if, on board a ship to which this Article applies, he intentionally
does or causes to be done anything in such a manner as -
(a) to obstruct or damage a
part of the machinery or equipment of the ship; or
(b) to obstruct, impede or
molest a member of the crew in the navigation or management of the ship, or
otherwise in the execution of his duty on or about the ship.
(4) The master or other
officer of a ship to which this Article applies, and any person called by him
to his assistance -
(a) may detain a person who
commits an offence against paragraph (2) or (3) and whose name and address are
unknown to the master or officer; and
(b) shall deliver the
person to a police officer.
(5) A person who commits an
offence against paragraph (2) or (3) is liable to a fine at level 2 on the
standard scale.
(6) If a person commits an
offence against paragraph (2) or (3) and on the application of the master of
the ship, or another person in the employment of the owner of the ship, he
refuses to give his name and address, or gives a false name or address, that
person commits a further offence and is liable to a fine at level 2 on the standard
scale.18
(7) References in this
Article to the owner of a ship include any charterer of the ship.
ARTICLE 70
Power to exclude drunken passengers from certain passenger ships
(1) This Article applies to
a ship carrying more than 12 passengers that is -
(a) a Jersey
ship; or
(b) a ship not registered
in Jersey that is on a voyage that begins or
ends in Jersey, including a voyage in which
the ship does not call at a port outside Jersey.
(2) The master of a ship to
which this Article applies -
(a) may refuse to receive
on board the ship a person who by reason of drunkenness or otherwise is in such
a state, or misconducts himself in such a manner, as to be likely to cause
annoyance or injury to passengers on board the ship; and
(b) if such a person is on
board the ship may put him on shore at a convenient place.
(3) A person so refused
admission or put ashore is not entitled to the return of any fare he has paid.
ARTICLE 71
Stowaways
(1) A person who goes or
attempts to go to sea in a ship without the consent of its master or of another
person authorized to give it commits an offence and is liable to a fine at
level 3 on the standard scale.
(2) Nothing in Article 173
(jurisdiction in cases of offences on
board ship) is to be construed as limiting the jurisdiction of a court in Jersey to deal with an offence under this Article that
has been committed in a country outside Jersey
by a person who is not a British citizen.
ARTICLE 72
Unauthorized presence on board ship
(1) This Article applies if
a Jersey ship or a ship registered in another
country is in a port in Jersey.
(2) A person who is neither
in Her Majesty’s service nor authorized by law to do so who -
(a) goes on board a ship to
which this Article applies without the consent of its master or of another
person authorized to give it; or
(b) remains on board such a
ship after being requested to leave by its master, a police officer, an officer
authorized by the Committee or a customs officer,
commits an offence and is liable to
a fine at level 4 on the standard scale.19
ARTICLE 73
Master’s power of arrest
The
master of a Jersey ship may cause a person on board the ship to be put under
restraint if and for so long as it appears to him necessary or expedient to do
so in the interest of safety or for the preservation of good order or
discipline on board the ship.
ARTICLE 74
Unauthorized persons: offences relating to safety
If
a person goes to sea in a ship without the consent of the master or of another
person authorized to give it, Articles 37 and 38 (conduct on board ships) apply as if he were a seaman employed in
the ship.
ARTICLE 75
Return to be furnished by masters of ships as to passengers
(1) The master of a ship,
whether or not a Jersey ship, that carries passengers to a place in Jersey from
a place outside Jersey, or from a place in Jersey to a place outside Jersey,
shall, if so directed by the Committee, furnish to such person and in such
manner as the Committee directs a return giving the total number of passengers
so carried.
(2) The return shall -
(a) distinguish between the
total number of any class of passengers carried; and
(b) give such particulars
with respect to passengers as may for the time being be required by the Committee.
(3) A passenger shall
furnish the master with any information required by him for the purpose of the
return.
(4) If -
(a) the master fails to
make a return as required by this Article, or makes a false return;
(b) a passenger refuses to
give information required by the master for the purpose of a return required by
this Article or, for that purpose, gives to the master information that he
knows to be false or recklessly gives to him information that is false,
the master or passenger, as the case
may be, commits an offence and is liable to a fine at level 3 on the standard
scale.
ARTICLE 76
Returns of births and deaths in ships etc.
(1) The Committee may, in
relation to births and deaths, by Order require -
(a) the master of a Jersey ship to make a return to a shipping master or
proper officer of -
(i) the birth or
death of a person occurring in the ship, and
(ii) the death of a person
employed in the ship, wherever occurring outside Jersey, and to notify any such
death to any person the deceased may have named to the master as next of kin;
(b) the master of a ship
not registered in Jersey but that calls at a port in Jersey in the course of or
at the end of a voyage to make a return to a shipping master of any birth or
death of a British citizen, a British Dependent Territories citizen or a
British Overseas citizen that has occurred in the ship during the voyage,
and require that the returns be
transmitted to the Registrar.
(2) The Order may require
the Registrar to record such information as may be specified in the Order about
a death referred to in paragraph (1)(a)(ii) if it appears to him that the
master of the ship cannot do so because he has himself died or is incapacitated
or missing.
(3) The Order may require
the Registrar to record such information as may be specified in the Order about
a death referred to in paragraph (1)(a)(ii) if -
(a) the death has been the
subject of -
(i) an inquest, or
(ii) an inquiry held under
Article 170,
and
the findings of the inquest or inquiry include a finding that the death
occurred;
(b) the deceased’s
body has been the subject of a post mortem examination and in consequence the
Viscount is satisfied that an inquest is unnecessary.
(4) The Order may require
the Registrar to send a certified copy of a return or record made under this
Article to the Registrar of the Parish of St. Helier.
(5) The Registrar of the
Parish of St. Helier, on receiving the certified copy -
(a) shall record the
information contained in it as if the birth or death had occurred in the Parish
of St. Helier; and
(b) may record such
additional information as appears to him to be desirable for the purpose of
ensuring the completeness and correctness of the register.
(6) The enactments relating
to the registration of births and deaths in Jersey
shall, for the purposes of this Article, have effect as if -
(a) where a certified copy
of a return or record made under this Article is sent to the Registrar of the
Parish of St. Helier the birth or death occurred in the Parish of St. Helier;
and
(b) the certified copy had
been transmitted to the Registrar of the Parish of St. Helier in accordance
with those enactments.
(7) An Order under this
Article may make a contravention of a provision of it an offence punishable
with a fine not exceeding level 2 on the standard scale.
(8) In this Article a
reference to a death occurring in a ship includes a reference to a death
occurring in a ship’s boat.
PART 6
FISHING VESSELS
Chapter 1 - Skipper and seamen
ARTICLE 77
Hours of work
(1) The Committee may by
Order prescribe maximum periods of duty and minimum periods of rest for seamen
employed in Jersey fishing vessels.
(2) If a provision of an
Order made under this Article is contravened the persons employing the seaman,
the master of the fishing vessel and any charterer each commits an offence and
is liable to a fine at level 3 on the standard scale.21
ARTICLE 78
Manning and qualifications
(1) A person who is serving
or engaged to serve in a Jersey fishing vessel
and who holds a certificate or other document that is evidence that he is
qualified for the purposes of Article 29 shall produce the certificate or
document to a fishery officer upon being requested to do so.
(2) A person who fails
without reasonable excuse to comply with a request made under paragraph (1)
commits an offence and is liable to a fine at level 2 on the standard scale.
(3) In this Article
“fishery officer” means a person so designated for the purposes of
the Sea Fisheries (Jersey) Law 1994.
ARTICLE 79
Drunkenness etc. on duty
(1) The skipper of, or a
seaman employed or engaged in, a Jersey fishing vessel who, while on board the
vessel, is under the influence of drink or a drug or both to the extent that
his capacity to fulfil his responsibility for the vessel, or to carry out the
duties of his employment or engagement, is impaired, commits an offence and is
liable to imprisonment for 2 years and a fine.
(2) In proceedings for an
offence under this Article it is a defence to prove that at the time of the act
or omission alleged -
(a) the defendant was under
the influence of a drug taken by him for medical purposes; and
(b) either that -
(i) he took it on
medical advice and complied with any directions given as part of that advice,
or
(ii) he had no reason to
believe that the drug might have the influence it had.
ARTICLE 80
Unauthorized liquor
(1) A person who, in Jersey or elsewhere -
(a) takes unauthorized
liquor on board a Jersey fishing vessel;
(b) has unauthorized liquor
in his possession on board the vessel;
(c) permits another person
to take unauthorized liquor on board the vessel, or to have it in his
possession on board the vessel; or
(d) intentionally obstructs
another person in the exercise of powers conferred on the other person by
paragraph (3),
commits an offence and is liable to
imprisonment for 2 years and a fine.
(2) It is a defence to
prove -
(a) in proceedings for an
offence under paragraph (1)(a),(b) or (c), that the defendant believed
that the liquor in question was not unauthorized liquor in relation to the
vessel in question and that he had reasonable grounds for that belief; or
(b) in proceedings for an
offence under paragraph (1)(a) or (b), that the defendant did not know that the
liquor in question was in his possession.
(3) If an authorized person
has reason to believe that an offence under paragraph (1)(a) or (b) has been
committed by another person in relation to a fishing vessel, the authorized
person may -
(a) go on board the vessel
and search it and any property on it and, if the other person is on board the
vessel, search him there in an authorized manner; and
(b) take possession of any
liquor that he finds on the vessel and has reason to believe is unauthorized
liquor, and detain the liquor for the period needed to ensure that the liquor
is available as evidence in proceedings for the offence.
(4) The Committee may by
Order make provisions as to the authorized manner of searches under paragraph
(3)(a).
(5) In this Article -
“authorized person”, in
relation to a vessel, means -
(a) a
shipping master;
(b) a
proper officer;
(c) a person appointed
under Article 156(1)(d) (person with
power to inspect);
(d) the skipper of the
vessel in question;
(e) the owner or any
charterer of the vessel in question;
(f) a person
instructed by the skipper or owner to prevent the commission of offences under
paragraph (1) in relation to the vessel;
“liquor” means spirits,
wine, beer, cider, perry and any other fermented, distilled or spirituous
liquor;
“unauthorized liquor”
means, in relation to a vessel, liquor as to which permission to take it on
board the vessel has been given neither by the skipper nor the owner or any
charterer of the vessel nor by a person authorized by the owner or any
charterer of the vessel to give that permission.
(6) A reference in
paragraph (5) to the owner of a vessel is to be construed -
(a) as excluding a member
of the crew of the vessel; and
(b) subject to that, as a reference
to the person or all the persons who, in the certificate of registration of the
vessel, is or are stated to be the registered owner or owners of the vessel.
ARTICLE 81
Exemptions and non-application of provisions
(1) Article 38(1)(a) and
(b) (concerted disobedience and neglect
of duty) does not apply to fishing vessels and to persons serving in them.
(2) The Committee may by
Order grant an exemption from a requirement of Part 4 or this Chapter -
(a) with respect to a
fishing vessel or to a fishing vessel of a specified description; or
(b) with respect to a
person or a person of a specified description serving in a fishing vessel or in
a fishing vessel of a specified description.
(3) Nothing in another
provision of Part 4 or this Chapter that confers a power to provide for or
grant exemptions is to be taken to restrict the power conferred by this
Article.
Chapter 2 - Safety
ARTICLE 82
Interpretation of Chapter
In
this Chapter -
“fishing
vessel certificate” means a certificate granted under Article 85;
“fishing
vessel construction and equipment provisions” means the fishing vessel
construction provisions and provisions of the Safety Regulations relating to
life-saving, radio and navigational equipment for fishing vessels;
“fishing
vessel construction provisions” means provisions made by an Order under
Article 83;
“fishing
vessel survey provisions” means provisions made by an Order under Article
84.
ARTICLE 83
Provisions for the construction of
fishing vessels
(1) The Committee may by
Order make provisions for the construction of fishing vessels prescribing
requirements for the hull, equipment and machinery of Jersey
fishing vessels of any description.
(2) The Committee may
exempt any fishing vessel or description of fishing vessel from any requirement
of those provisions -
(a) generally or for a
specified time; or
(b) with respect to a
specified voyage, or voyages in a specified area,
and may do so subject to any
specified conditions.
(3) A surveyor of ships may
inspect a fishing vessel to see that it complies with the fishing vessel
construction provisions.
(4) If, in respect of a
fishing vessel -
(a) the fishing vessel
construction provisions are contravened; or
(b) the vessel is, under
paragraph (2), exempted from a requirement subject to a condition and the
condition is not complied with,
the owner, any charterer and the
skipper of the vessel each commits an offence and is liable to a fine.
ARTICLE 84
Provisions for the surveying of fishing vessels
The
Committee may by Order make provisions for the surveying and periodical
inspection of Jersey fishing vessels or any
description of those vessels to ensure their compliance with the requirements
of the fishing vessel construction and equipment provisions.
ARTICLE 85
Fishing vessel certificates
(1) If the Committee or a
person authorized by it for the purpose is satisfied, on receipt of a
declaration of survey in respect of a fishing vessel surveyed under the fishing
vessel survey provisions, that the vessel complies with such of the
requirements of the fishing vessel construction and equipment provisions as are
or will be applicable to the vessel, the Committee or the person authorized by
it shall, on the application of its owner, issue a fishing vessel certificate
showing that the vessel complies with those requirements.
(2) The fishing vessel
survey provisions may require, in the case of a fishing vessel certificate
specified in the provisions, that the Committee or person authorized by the
Committee to issue the certificate shall not do so unless satisfied that the
vessel in respect of which it is to be issued is provided with lights, shapes
and means of making fog signals required by the Safety Regulations to prevent
collisions.
(3) A fishing vessel
certificate shall be in the form prescribed by the fishing vessel survey
provisions.
(4) The fishing vessel
survey provisions may provide for -
(a) the duration, extension
or cancellation of fishing vessel certificates; and
(b) the endorsement on a fishing
vessel certificate -
(i) of information
relating to the inspection, in accordance with the provisions, of the vessel to
which it relates, and
(ii) of any extension of the
period for which the certificate was issued.
ARTICLE 86
Provisions supplementary to Article
85
(1) The Committee may
require a fishing vessel certificate that has expired, or been cancelled, to be
delivered up as it directs.
(2) The owner, any
charterer or skipper of a fishing vessel to whom a fishing vessel certificate
is issued shall, as soon as practicable after receipt of it by him or his
agent, cause a copy of it to be -
(a) put in a conspicuous
place on board the vessel so as to be legible to everybody on board; and
(b) kept so put up and
legible while the certificate remains in force and the vessel is in use.
(3) If the owner, any
charterer or skipper fails without reasonable excuse to comply with a
requirement under paragraph (1), or to comply with paragraph (2), each commits
an offence and is liable to a fine at level 2 on the standard scale.
(4) A person who
intentionally makes, or assists in making, or procures to be made, a false or
fraudulent fishing vessel certificate commits an offence and is liable to
imprisonment for 2 years and a fine.
(5) A fishing vessel
certificate is admissible in evidence.
ARTICLE 87
Prohibition on going to sea without
appropriate certificate
(1) A fishing vessel
required to be surveyed under the fishing vessel survey provisions shall not be
taken to sea unless there are in force fishing vessel certificates showing that
the vessel complies with such of the requirements of the fishing vessel
construction and equipment provisions as are applicable to it.
(2) If a fishing vessel is
taken to sea in contravention of paragraph (1) the owner, any charterer and the
skipper of the vessel each commits an offence and is liable to a fine.
(3) The skipper of a Jersey fishing vessel shall produce a certificate
required by this Chapter on being requested to do so by a customs officer or by
a person authorized by the Committee.
(4) If a skipper fails to
comply with a request made under paragraph (3) and the vessel is in Jersey waters it may be detained until the certificate is
produced.
ARTICLE 88
Notice of alterations
(1) This Article applies if
a fishing vessel certificate is in force in respect of a fishing vessel that
shows that the vessel complies with the requirements of the fishing vessel
construction provisions and -
(a) an alteration is made
in the vessel’s hull, equipment or machinery that affects the
vessel’s efficiency or seaworthiness; or
(b) an alteration is made
affecting the efficiency or completeness of the appliances or equipment that
the vessel is required to carry by those provisions.
(2) If this Article applies
the owner, any charterer or skipper of the vessel shall, as soon as possible
after the alteration is made, give written notice containing full particulars
of the alteration to the Committee or, if the certificate was issued by another
person, to that person.
(3) If the notice required
by paragraph (2) is not given the owner, any charterer and the skipper each
commits an offence and is liable to a fine at level 3 on the standard scale.
(4) In this Article -
“alteration”
includes a renewal;
“fishing
vessel equipment provisions” means the provisions of the fishing vessel
construction and equipment provisions other than the fishing vessel
construction provisions.
ARTICLE 89
Training in safety matters
(1) The Committee may make
Orders for the purpose of securing that the skipper of, and each seaman
employed or engaged in, a Jersey fishing
vessel is trained in safety matters.
(2) Orders may provide that
if a person goes to sea on a fishing vessel in contravention of a requirement
of the Order -
(a) he commits an offence
and is liable to a fine at level 2 or, if he is the skipper or an owner of the
vessel, at level 4, on the standard scale, and
(b) the skipper and each
owner and any charterer of the vessel commits an offence and is, except if he
himself is the person going to sea in contravention of a requirement of the
Order, liable to a fine at level 4 on the standard scale.26
PART 7
PREVENTION OF POLLUTION
Chapter 1 - Pollution generally
ARTICLE 90
Prevention of pollution from ships etc.
(1) The States may by
Regulations make such provision as they consider necessary to give effect in
Jersey to any international agreements ratified by the United Kingdom on behalf
of Jersey that relate to the prevention, reduction or control of pollution from
ships.
(2) The international
agreements referred to in paragraph (1) include -
(a) the International
Convention for the Prevention of Pollution from Ships (including its protocols,
annexes and appendices), that constitutes attachment 1 to the Final Act of the
International Conference on Marine Pollution signed in London on 2nd November
1973;
(b) the Protocol relating
to Intervention on the High Seas in Cases of Marine Pollution by Substances
other than Oil, that constitutes attachment 2 to that final act;
(c) the Protocol relating
to that Convention that constitutes attachment 2 to the Final Act of the
International Conference on Tanker Safety and Pollution Prevention signed in London on 17th February 1978;
(d) the International
Convention on Oil Pollution Preparedness, Response and Co-operation, 1990
(including the Final Act of the Conference and the attached resolutions) signed
in London on
30th November 1990.
(3) The reference in
paragraph (1) to an international agreement includes an international agreement
that provides for the modification of another international agreement including
an international agreement mentioned in paragraph (2).
(4) The power in paragraph
(1) to make provision to give effect to an international agreement includes
power to provide for the provision to come into force although the agreement
has not itself come into force.
(5) Regulations made under
paragraph (1) may apply the provisions of an international agreement to any
areas of land or sea, despite the fact that the agreement in question does not
itself apply to those areas.
(6) Without prejudice to
the generality of paragraph (1), Regulations under it may in particular include
provisions -
(a) for applying for the
purpose mentioned in that paragraph any enactment or instrument relating to the
pollution of the sea or other waters and also Article 52 (safety of submersible
apparatus) or 167 (investigation by marine accident tribunal);
(b) with respect to -
(i) the carrying out
of surveys and inspections, and
(ii) the issue, duration and
recognition of certificates,
for
that purpose;
(c) for repealing the
provisions of any enactment or instrument so far as it appears to the States
that those provisions are not required having regard to any provision made or
proposed to be made by virtue of this Article;
(d) with respect to the
application of the Regulations to the Crown and the extra-territorial operation
of any provision made by or under the Regulations;
(e) that a contravention of
a provision made by or under the Regulations is to be an offence punishable
with imprisonment for 2 years and a fine, or any lesser penalty prescribed by
the Regulations;
(f) in connection
with offences created by or under the Regulations, corresponding to that made
in connection with offences under Article 98 (discharge of oil) by
Articles 110(2) (service of documents), 111 (power to detain ships) and
112 (application of fines), whether by applying, or making provision for the
application of, any of those Articles, subject to such modifications as may be
specified by or under the Regulations, or otherwise;
(g) for detaining a ship in
which such a contravention is suspected to have occurred and, in relation to
such a ship, for applying Article 177 with such modifications, if any, as are
prescribed by the Regulations.
(7) Nothing in a single
sub-paragraph of paragraph (6) is to be construed as prejudicing the generality
of another of those sub-paragraphs.
(8) Regulations under
paragraph (1) may -
(a) make provision in terms
of a document that the States or any person considers relevant from time to
time;
(b) provide for the
delegation of functions exercisable by virtue of the Regulations;
(c) authorize the making of
Orders for the purposes of this Article, except for the purposes of paragraphs
(6)(a) and (c);
(d) provide that any
enactment or instrument applied by the Regulations is to have effect as so
applied subject to such modifications as may be specified in the Regulations.
(9) If Regulations under
paragraph (1) authorize the making of Orders to give effect to an international
agreement, the Regulations may also authorize the making of Orders to give
effect to an international agreement that provides for the modification of such
an agreement.
(10) Paragraph (9) applies in relation
to Regulations and international agreements whenever made.
(11) Orders made by virtue of paragraph
(8)(c) may make provision corresponding to the provision authorized for
Regulations by paragraph (1).
ARTICLE 91
Further provision for prevention of
pollution from ships
(1) The States may by
Regulations make provision as they consider appropriate for giving effect to
any provision of the United Nations Convention on the Law of the Sea 1982 for
the protection and preservation of the marine environment from pollution by
matter from ships.
(2) Without prejudice to
the generality of paragraph (1), Regulations under it may in particular include
provision corresponding to any provision authorized for the purpose of Article
90 by paragraphs (6), (7) and (8) of that Article; and a provision that
authorizes the making of Regulations authorizes the amendment or revocation of
Orders made by virtue of paragraph (8)(c) of that Article.
ARTICLE 92
Regulation of transfers between
ships in territorial waters
(1) The Committee may by
Order make, in relation to the transfer of cargo, stores, bunker fuel or
ballast between ships while within Jersey waters, provision to prevent -
(a) pollution, danger to
health or to navigation; or
(b) hazards to the
environment or to natural resources.
(2) An Order under this
Article may, in particular, do all or any of the following -
(a) prohibit transfers of a
specified description or prohibit transfers if, or unless, carried out in
specified areas, circumstances or ways;
(b) make provision about -
(i) the design of,
and standards to be met by, ships and equipment,
(ii) the manning of ships,
including the qualifications and experience to be possessed by persons of a
specified description employed on board, and
(iii) the qualifications and
experience to be possessed by persons, whether masters or not, who control the
carrying out of transfers or operations ancillary to transfers;
(c) provide for proposed
transfers to be notified to and approved by persons appointed by the Committee
or by another person, and for the supervision of transfers, and the inspection
of ships and equipment, by persons so appointed;
(d) provide -
(i) for the procedure
to be followed in relation to the approval of transfers to be as may be
prescribed by any document specified in the Order,
and
(ii) for references in the
Order to any document so specified to operate as references to that document as
revised or re-issued from time to time;
(e) provide for the making
and keeping of records about ships and equipment, the issuing of certificates,
and the furnishing of information;
(f) provide for the
granting by the Committee or by another person of exemptions from specified
provisions of the Order, on such terms, if any, as the Committee or that person
may specify, and for altering or cancelling exemptions.
(3) An Order under this
Article may provide that -
(a) a contravention of the
Order is to be an offence punishable with imprisonment for 2 years and a fine,
or any lesser penalty prescribed by the Order;
(b) in circumstances
prescribed by the Order, persons so prescribed are each to be taken to have
committed an offence created by virtue of sub-paragraph (a).
Chapter 2 - Waste reception
facilities at harbours
ARTICLE 93
Interpretation of Chapter
(1) In this Chapter -
“the
Order” means an Order made under Article 94(1);
“terminal”
means a terminal, jetty, pier, floating structure or other works within a
harbour at which ships can obtain shelter or can ship and unship goods or
passengers;
“waste
reception facilities” means facilities of the type referred to in Article
94(1).
(2) For the purposes of
this Chapter a person operates a terminal if activities at the terminal are
under his control.
ARTICLE 94
General
(1) The Committee may by
Order make provisions in relation to -
(a) the installation at
harbours of facilities for the reception of waste from ships; and
(b) the use of waste
reception facilities provided at harbours.
(2) In making the Order the
Committee shall take into account the need to give effect to provisions
relating to waste reception facilities that are contained in an international
agreement mentioned in Article 90(1).
ARTICLE 95
Charges for, and use of, waste reception facilities
(1) The Order may provide
for the imposition of charges to recover the whole or part of the costs of the
provision by or on behalf of the Committee of waste reception facilities at a
harbour.
(2) The Order may require
the master of a ship -
(a) if reasonably required
to do so by an officer authorized by the Committee; or
(b) in prescribed
circumstances,
to deposit in a waste reception
facility provided at a harbour waste or prescribed waste carried by the ship.
(3) The Order may provide
for -
(a) a question as to
whether a requirement made under paragraph (2)(a) was reasonable to be referred
to arbitration; and
(b) compensation to be paid
by the Committee if the requirement is found to have been unreasonable.
(4) The Order may regulate
charges to deposit waste, or prescribed waste, in a waste reception facility
provided at a harbour by -
(a) prohibiting the
imposition of a charge; or
(b) authorizing the imposition
of a charge subject to prescribed restrictions.
(5) The Order may permit a
charge to be imposed under sub-paragraph (4) even though the charge -
(a) is for the deposit of
waste in compliance with a requirement imposed under paragraph (2); and
(b) it is in addition to a
charge imposed under paragraph (1).
(6) The Order may provide
for the recovery of a charge imposed under this Article.
ARTICLE 96
Supplementary
The
Order may provide for -
(a) contravention of a
requirement under it to be an offence punishable with imprisonment for up to 2
years and a fine;
(b) references in it to a
specified document to operate as references to that document as revised or
re-issued from time to time.
Chapter 3 - Oil pollution
ARTICLE 97
Interpretation of Chapter
(1) In this Chapter -
“harbour” means -
(a) a port, haven, dock or
other place the waters of which are within Jersey
waters; and
(b) if an enactment
empowers the making of a charge (other than in respect of navigational aids or
pilotage) in respect of the entry into or the use of the port, haven, dock or
other place by ships;
“oil” means any
description of oil and of spirit produced from oil, and includes tar;
“oil residues” means
waste consisting of, or arising from, oil or a mixture containing oil;
“place on land” has the
meaning given in Article 98;
“transfer”, in relation
to oil, means transfer in bulk.
(2) A reference in a
provision of this Chapter to a mixture containing oil is to be construed as a
reference to a mixture of oils or, as the case may be, of oil of a description
referred to in the provision, with water or another substance.
(3) A reference in this
Chapter, other than in Article 103, to the discharge of oil or a mixture
containing oil, or to its being discharged, from a ship, place or thing, except
if the reference is to its being discharged for a specific purpose, includes a
reference to the escape of oil or mixture, or, as the case may be, to its
escaping, from that ship place or thing.
(4) A floating craft, other
than a ship, that is attached to a ship is to be treated as part of the ship
for the purposes of a provision of this Chapter relating to the discharge of
oil or a mixture containing oil from a ship.
(5) A power conferred by
Article 157 (powers of inspectors) in its application to this Chapter to test
equipment on board a ship is to be construed as including power to require
persons on board the ship to carry out any work that may be required for the
purpose of testing the equipment; and a provision of that Article as to
submitting equipment for testing is to be construed accordingly.
(6) Subject to Article 16
of the Interpretation (Jersey) Law 1954 (offences under 2 or more
enactments), nothing in this Chapter -
(a) affects a restriction
imposed by or under another enactment; or
(b) derogates from a right
of action or other remedy, whether civil or criminal, in proceedings instituted
otherwise than under this Chapter.
ARTICLE 98
Discharge of oil from ships into Jersey
waters
(1) If oil or a mixture
containing oil is discharged into Jersey waters as mentioned in sub-paragraph
(a) or (b), then, subject to the following provisions of this Chapter, those
persons mentioned in the sub-paragraph commit an offence and are liable to a fine
-
(a) if the discharge is
from a ship, the owner, any charterer and the master of the ship, unless it is
proved that the discharge took place and was caused as mentioned in
sub-paragraph (b);
(b) if the discharge is
from a ship but takes place in the course of a transfer of oil to or from
another ship or a place on land, and is caused by the act or omission of a
person in charge of apparatus in that other ship or that place, the owner, any
charterer and the master of that other ship or, as the case may be, the
occupier of that land.
(2) Paragraph (1) does not
apply to a discharge that -
(a) is made at sea; and
(b) is of a kind or is made
in circumstances for the time being prescribed by an Order made by the
Committee.
(3) In this Article -
“occupier”,
in relation to anything in the definition of “place on land” that
has no occupier, means the owner of it;
“place
on land” includes anything resting on the bed or shore of the sea in Jersey waters, and also includes anything afloat, other
than a ship, if it is anchored or attached to the bed or shore of the sea in
those waters.
ARTICLE 99
Defences of owner and master charged with offence under Article 98
If
a person is charged with an offence under Article 98 as the owner, a charterer
or master of a ship, it is a defence to prove that -
(a) the oil or mixture was
discharged -
(i) to secure the
safety of the ship,
(ii) to prevent damage to a
ship or cargo, or
(iii) to save life,
unless
the court is satisfied that the discharge was not necessary for that purpose or
was not a reasonable step to take in the circumstances;
(b) the oil or mixture
escaped as a consequence of damage to the ship, and that as soon as practicable
after the damage occurred all reasonable steps were taken to prevent or, if it
could not be prevented, to stop or reduce the escape of the oil or mixture; or
(c) the oil or mixture
escaped by reason of leakage, that neither the leakage nor any delay in
discovering it was due to want of reasonable care, and that as soon as
practicable after the escape was discovered all reasonable steps were taken to
stop or reduce it.
ARTICLE 100
Defence of occupier charged with offence under Article 98
If
a person is charged, in respect of the escape of oil or a mixture containing
oil, with an offence under Article 98 as the occupier of a place on land, it is
a defence to prove -
(a) that neither the escape
nor any delay in discovering it was due to want of reasonable care; and
(b) that as soon as
practicable after it was discovered all reasonable steps were taken to stop or
reduce it.
ARTICLE 101
Protection for acts done in exercise of powers of the Committee
If
-
(a) oil, or a mixture
containing oil, is discharged in consequence of -
(i) the exercise of a
power conferred by Article 153 (power in relation to wrecks), or
(ii) the exercise, to
prevent obstruction or danger to navigation, of a power to dispose of sunk,
stranded or abandoned ships that is exercisable by the Committee under an
enactment; and
(b) apart from this
Article, the Committee or a person employed by or acting on behalf of the
Committee would commit an offence under Article 98 in respect of that
discharge,
the Committee or person is not to be
convicted unless it is shown that it or he failed to take such steps, if any,
as were reasonable in the circumstances to prevent, stop or reduce the
discharge.
ARTICLE 102
Restrictions on transfer of oil at night
(1) Between sunset and
sunrise oil shall not be transferred to or from a ship in a harbour in Jersey unless -
(a) the requisite notice
has been given in accordance with this Article; or
(b) the transfer is for the
purposes of emergency services during an emergency.
(2) A general notice may be
given to the Harbour Master that transfers of oil will frequently be carried
out between sunset and sunrise at a place in the harbour specified in the
notice within a period ending not later than 12 months after the date on which
the notice is given.
(3) If oil is transferred
to or from a ship in contravention of this Article the master of the ship and,
if the oil is transferred from or to a place on land, the occupier of that
place each commits an offence and is liable to a fine at level 3 on the
standard scale.
(4) In this Article “requisite
notice” means a notice that -
(a) is given in compliance
with paragraph (2), in relation to transfers of oil at the place and within the
period specified in the notice; or
(b) is given to the Harbour
Master not less than 3 hours nor more than 96 hours before the transfer of the
oil is to begin.
ARTICLE 103
Duty to report discharge of oil into
waters of harbours
(1) If oil or a mixture
containing oil -
(a) is discharged from a
ship into the waters of a harbour; or
(b) is found to be escaping
or to have escaped from a ship into waters of a harbour,
the owner, any charterer or the
master of the ship shall immediately report the occurrence to the Harbour
Master.
(2) The notice shall state
whether the occurrence falls within paragraph (1)(a) or (b).
(3) A person who fails to
make a report as required by this Article commits an offence and is liable to a
fine at level 4 on the standard scale.
ARTICLE 104
Shipping casualties
(1) The Harbour Master may
exercise the powers conferred by this Article if -
(a) an accident has
occurred to or in a ship; and
(b) the Harbour Master is
of the opinion that -
(i) oil from the ship
will or may cause significant pollution in Jersey
or in Jersey waters, and
(ii) the use of the powers
conferred by this Article is urgently needed.
(2) The Harbour Master may,
to prevent or reduce oil pollution or the risk of oil pollution, give
directions in respect of the ship or its cargo -
(a) to the owner, to any
charterer of the ship, or to a person apparently in possession of the ship;
(b) to the master of the
ship;
(c) to the pilot of the
ship; or
(d) to a salvor in
possession of the ship, or to a person who is an employee or agent of that
salvor and who is in charge of the salvage operation.
(3) Directions given under
paragraph (2) may require the person to whom they are given to take, or refrain
from taking, any action and may, in particular, require -
(a) that the ship is, or is
not, to be -
(i) moved,
(ii) moved to a specific
place or area,
(iii) removed from a specific area
or locality,
(iv) moved over a specified route;
(b) that oil or other cargo
is, or is not, to be unloaded or discharged; or
(c) that specified salvage
measures are, or are not, to be taken.
(4) If in the opinion of
the Harbour Master the powers otherwise conferred by this Article are, or have
proved to be, inadequate, the Harbour Master may, to prevent or reduce oil
pollution, take, in respect of the ship or its cargo, any action whatsoever including
-
(a) sinking or destroying
the ship;
(b) taking control of the
ship.
(5) A person concerned with
compliance with directions given, or with action taken, under this Article
shall do his best to avoid risk to human life.
(6) The provisions of this
Article are without prejudice to any rights or powers of Her Majesty or the
States exercisable under international law or otherwise.
(7) Action taken under this
Article in respect of a ship under arrest or in respect the cargo of such a
ship -
(a) does not constitute
contempt of court; and
(b) does not make the
Harbour Master liable in civil proceedings.
(8) A direction under this
Article does not to apply to a ship of Her Majesty’s navy and action
shall not be taken under paragraph (4) in respect of such a ship.
(9) In this Article -
“accident”
means a collision of ships, a stranding or another incident of navigation, or
other occurrence on board a ship or external to it that causes material damage
to a ship or cargo or the imminent threat of such damage;
“pilot”
means a person not belonging to a ship who has the conduct of the ship;
“specified”,
in relation to a direction under this Article, means specified by the
direction.
ARTICLE 105
Right to recover in respect of unreasonable loss or damage
(1) If action taken by a
person in accordance with a direction given to him under Article 104, or action
taken under paragraph (4) of that Article -
(a) was not reasonably
necessary to prevent or reduce oil pollution, or the risk of oil pollution; or
(b) was such that the good
it did or was likely to do was disproportionately less than the expense
incurred, or damage suffered, as a result of the action,
a person who incurred expense or
suffered damage as a result of, or by himself taking, the action is entitled to
recover compensation from the Committee.
(2) In considering whether
paragraph (1) applies, account is to be taken of -
(a) the extent and risk of
oil pollution if the action had not been taken;
(b) the likelihood of the action
being effective; and
(c) the extent of the
damage that has been caused by the action.
(3) A reference in this
Article to the taking of action includes a reference to compliance with a
direction not to take some specified action.
(4) The admiralty
jurisdiction of the Royal Court
includes jurisdiction to hear and determine a claim arising under this Article.
ARTICLE 106
Application of Articles 104 and 105 to pollution by substances
other than oil
In
Articles 104 and 105 a reference to oil pollution includes a reference to
pollution by another substance that -
(a) is prescribed by the
Committee by Order for the purposes of this Article; or
(b) although not so
prescribed, is liable to create hazards to human health, to harm living resources
and marine life, to damage amenities or to interfere with other legitimate uses
of the sea,
and, accordingly, a reference in
those Articles to oil includes a reference to a substance falling within
sub-paragraph (a) or (b) of this Article.
ARTICLE 107
Offences in relation to Article 104
(1) A person to whom a
direction is given under Article 104 and who contravenes a requirement of it
commits an offence.
(2) In proceedings for an
offence under paragraph (1) it is a defence for the defendant to prove that -
(a) he used all due
diligence to ensure compliance with the direction; or
(b) he had reasonable cause
for believing that compliance with the direction would have involved a serious
risk to human life.
(3) A person commits an
offence if he intentionally obstructs a person who is -
(a) acting on behalf of the
Harbour Master in connection with the giving or service of a direction under
Article 104;
(b) acting in compliance
with a direction under that Article; or
(c) acting under paragraph
(4) of that Article.
(4) A person who commits an
offence under this Article is liable to a fine.
ARTICLE 108
Service of directions under Article 104
(1) If the Harbour Master
is satisfied that a company or other body is not one to whom Article 72 of the
Companies (Jersey) Law 1991 (service of documents) applies so
as to authorize the service of a direction on that body, he may give a
direction under Article 104 of this Law -
(a) to that body, as the
owner or charterer of, or the person in possession of, a ship, by serving the
direction on the master of the ship; or
(b) to that body, as a
salvor, by serving the direction on the person in charge of the salvage
operations.
(2) A person acting on
behalf of the Harbour Master may go on board a ship to give or serve a
direction under Article 101 to or on a person on the ship.
ARTICLE 109
Oil records
(1) The Committee may by
Order require that an oil record book is carried in a Jersey
ship or any class of Jersey ships specified in
the Order.
(2) The Order may require
the master of a Jersey ship required to carry
an oil book to record in it -
(a) the carrying out,
either on board or in connection with the ship, of any of the following
operations -
(i) the loading of
oil cargo,
(ii) the transfer of oil
cargo during a voyage,
(iii) the discharge of oil cargo,
(iv) the ballasting of oil tanks,
whether cargo or bunker fuel tanks, and the discharge of ballast from, and
cleaning of, those tanks,
(v) the separation of oil
from water, or from other substances, in a mixture containing oil,
(vi) the disposal of oil or water,
or another substance, arising from operations relating to any of the matters
specified in clauses (i) to (v), or
(vii) the disposal of any other oil
residues;
(b) any occasion on which
oil or a mixture containing oil -
(i) was discharged
from the ship to secure the safety of any ship, or to prevent damage to any
ship or cargo, or to save life,
(ii) was found to be
escaping, or to have escaped, from the ship in consequence of damage to the
ship, or by reason of leakage.
(3) The Committee may by
Order also require a record to be kept relating to the transfer of oil to and
from a ship while it is in Jersey waters.
(4) A record required to be
kept by an Order made under paragraph (3) shall be kept -
(a) if the ship is not a
barge, by the master of the ship; and
(b) if the ship is a barge
-
(i) so far as the
record relates to the transfer of oil to the barge, by the person supplying the
oil, and
(ii) so far as it relate to
the transfer of oil from the barge, by the person to whom the oil is delivered.
(5) An Order made under
this Article may -
(a) prescribe the form of
an oil record book or record and the entries to be made in it;
(b) require the person
providing or keeping the book or record to keep it for a prescribed period;
(c) require that person, at
the end of the prescribed period, to transmit the book or record to a place or
person specified in the Order;
(d) provide for the custody
or disposal of books and records after their transmission to the place or
person.
(6) If an oil record book
is not carried in a ship required by the an Order made under this Article to
carry one, both the owner and the master commits an offence and is liable to a
fine at level 4 on the standard scale.
(7) A person who fails to
comply with a requirement imposed on him by or under this Article commits an
offence and is liable to a fine at level 4 on the standard scale.31
(8) A person who makes an
entry in an oil record book or record required to be carried or kept under an
Order made under this Article that is to his knowledge false or misleading in a
material particular commits an offence and is liable to imprisonment for 2
years and a fine.
(9) In proceedings under
this Chapter -
(a) an oil record book or
record required to be carried or kept under an Order made under this Article is
admissible in evidence of the facts stated in it;
(b) a copy of an entry in
such an oil record book or record that is certified to be a true copy of the
entry by the master of the ship in which the book is carried, or by the person
by whom the record is required to be kept is admissible as evidence of the
facts stated in the entry;
(c) a document that
purports to be an oil record book or record required to be carried or kept
under an Order made under this Article, or that purports to be a certified copy
mentioned in sub-paragraph (b) is to be presumed to be such a book, record
or copy unless the contrary is proved.
(10) In this Article “barge”
includes a lighter and any similar vessel.
ARTICLE 110
Prosecutions and service of documents
(1) Proceedings for an
offence under this Chapter may be brought only by or with the consent of the
Attorney General.
(2) A document required or
authorized, by virtue of any enactment, to be served on an external company for
the purposes of the institution of, or otherwise in connection with,
proceedings for an offence under Article 98 alleged to have been committed by
the company as owner or charterer of the ship, is to be treated as duly served
on that company if served on the master of the ship.
(3) A person authorized to
serve a document for the purposes of the institution of, or otherwise in
connection with, proceedings for an offence under this Chapter may, for that
purpose, go on board the ship in question.
(4) In this Article
“external company” has the same meaning as in Article 1 of the
Companies (Jersey) Law 1991.
ARTICLE 111
Power to detain ships for Article 98 offences
(1) The Harbour Master may
detain a ship if he has reason to believe that the owner, charterer or master
of the ship has committed an offence under Article 98 by the discharge from the
ship of oil, or a mixture containing oil, into the waters of a harbour.
(2) Article 177 (enforcing
detention), in its application to the detention of a ship under this Article,
has effect with the omissions of paragraphs (1), (6) and (7) and as if -
(a) in paragraph (3), the
reference to a competent authority were a reference to the Harbour Master; and
(b) in paragraph (5), the
persons in relation to whom that paragraph applies were the Harbour Master or a
person acting on his behalf.
(3) If the Harbour Master
detains a ship other than a Jersey ship under
this Article he shall immediately inform the Lieutenant Governor who shall
thereupon notify -
(a) if the ship is a
British ship, the Secretary of State; or
(b) in any other case, the
consul or diplomatic representative of the State whose flag the ship is
entitled to fly or the appropriate maritime authorities of that State.
(4) In paragraph (3)
“Jersey ship” has the same meaning
as in Article 49(3).
(5) If the Harbour Master
has detained a ship under this Article he shall immediately release the ship -
(a) if proceedings for the
offence are not instituted within the period of 7 days beginning with the day
on which the ship was detained;
(b) if proceedings for the
offence, having been instituted within that period, are concluded without the
master or owner being convicted;
(c) if -
(i) £255,000 is
paid to the Committee by way of security, or
(ii) other security is
provided to the Committee that in the opinion of the Harbour Master is satisfactory
and is worth at least £255,000,
by
or on behalf of the master, charterer or owner; or
(d) if the master,
charterer or owner is convicted of the offence, when any costs or expenses
ordered to be paid by him, and any fine imposed on him, are paid.
(6) The Committee shall
repay any sum paid or release any security provided under paragraph (5)(c)
-
(a) if proceedings for the
offence are not instituted within the period of 7 days beginning with the day
on which the sum was paid; or
(b) if proceedings for the
offence, having been instituted within that period, are concluded without the
master, charterer or owner being convicted.
(7) If a sum has been paid
or security provided under paragraph (5)(c) and the master, charterer or owner
is convicted of the offence, that sum or security shall be applied -
(a) first, in payment of
any costs or expenses ordered by the court to be paid by the master, charterer
or owner;
(b) next, in payment of any
fine imposed by the court; and
(c) finally, in respect of
any balance, to the person who paid the sum or provided the security.
(8) This Article does not
apply in relation to a ship of Her Majesty’s navy or a Government ship.
(9) For the purposes of
this Article -
(a) proceedings for an
offence under Article 98 are to be taken to have been instituted when -
(i) a person is
charged with the offence, or
(ii) the Attorney General
issues a summons in respect of the offence;
(b) proceedings for an
offence under Article 98 are to be taken to have been concluded without the
master, charterer or owner of the ship having been convicted if -
(i) the proceedings
are discontinued,
(ii) the owner, charterer or
master or, if more than one are charged, those charged are acquitted,
(iii) the conviction of the owner,
charterer or master or, if more than was convicted, those convicted are
quashed,
(iv) Her Majesty grants a pardon
in respect of the conviction of the owner, charterer or master or, if more than
was convicted, each of the convictions.
ARTICLE 112
Application of fines
If
-
(a) a court convicts a
person of an offence under Article 98 and imposes a fine in respect of the
offence; and
(b) it appears to the court
that a person has incurred, or will incur, expenses in removing pollution, or
in making good damage attributable to the offence,
the court may order the whole or
part of the fine to be paid to that person for or towards defraying those
expenses.
ARTICLE 113
Enforcement of Conventions relating
to oil pollution
(1) The Committee may by
Order authorize a person specified in the Order to board a Convention ship
while in a harbour, and to require production of an oil record book required to
be carried on the ship in accordance with the Convention.
(2) The Order may, with
necessary modifications, apply -
(a) provisions of this
Chapter relating to -
(i) the production
and inspection of an oil record book and the taking of a copy of an entry in
it, and
(ii) the admissibility in
evidence of an oil record book and of a copy of any entry in one;
(b) penal provisions of
this Chapter relating to those matters; and
(c) Article 157 (powers of
inspectors).
(3) In this Article -
“the Convention” means
any Convention accepted by Her Majesty’s Government in the United Kingdom
so far as it relates to the prevention of pollution of the sea by oil;
“Convention ship” means
a ship registered in -
(a) a country the
government of which has been declared by an Order made by Her Majesty in
Council to have accepted the Convention, and has not been so declared to have
denounced it; or
(b) a territory to which it
has been so declared that the Convention extends, not being a territory to
which it has been so declared that the Convention has ceased to extend.
ARTICLE 114
Power of the Committee to grant exemptions
The
Committee may by Order exempt from all or any of the provisions of this Chapter
or of an Order made under it, either absolutely or subject to compliance with
conditions -
(a) a ship or class of
ship;
(b) a discharge of oil or
of a mixture containing oil.
ARTICLE 115
Application to Government ships
(1) This Chapter does not
apply to -
(a) ships of Her
Majesty’s navy;
(b) Government ships in the
service of the Secretary of State while employed for the purposes of Her
Majesty’s navy.
(2) Subject to paragraph
(1), and to Articles 104(8) and 111(8) -
(a) provisions of this
Chapter that are expressed to apply to Jersey ships only apply to Government
ships registered in Jersey;
(b) provisions of this
Chapter that are expressed to apply to ships generally apply to Government
ships.
Chapter 4 - Carriage of hazardous and noxious substances
ARTICLE 116
Interpretation of Chapter and Schedule 4
(1) In this Chapter
“the Convention” means the International Convention on Liability
and Compensation for Damage in Connection with the Carriage of Hazardous and
Noxious Substances by Sea 1996.
(2) The text of the
Convention, excluding the annexes, is set out in Schedule 4.
(3) In interpreting the
definition of “hazardous and noxious substances” in Article 1,
paragraph 5 of the Convention, a reference in that paragraph to a particular
convention or code as amended is to be taken as a reference to that convention
or code as amended from time to time, whether before or after the commencement
of this Chapter.
ARTICLE 117
Power to give effect to Convention
(1) The States may make
Regulations to give effect to -
(a) the Convention on or
after its ratification by the United
Kingdom on behalf of Jersey;
or
(b) a revision of the
Convention that appears to the Committee to have been agreed to by the
Government of the United
Kingdom on behalf of Jersey.
(2) The Regulations may
provide that they may come into force even though the Convention or agreement
has not come into force.
(3) The Regulations may
include provisions that -
(a) require contributions
to be paid in accordance with the Convention to the International Hazardous and
Noxious Substances Fund established under it;
(b) apply, with or without
modification, an enactment relating to the pollution of the sea or other
waters, including a provision that creates an offence;
(c) amend an enactment in
so far as it is necessary to do so for the purposes specified in paragraph (1);
(d) relate to the application
of the Regulations to the Crown or to the States;
(e) provide for the
detention of a ship in respect of which a contravention of a provision made by
or under the Regulations is suspected to have occurred and, in relation to such
a ship, apply Article 177 (enforcing detention) with or without modification;
(f) provide for a
certificate issued by or on behalf of the States that states that at a time
specified in the certificate a substance also specified in the certificate was,
or was not, a hazardous or noxious substance for the purposes of the Convention
to be conclusive evidence of the matter.
(3) Regulations that give
effect to a revision of the Convention may modify Schedule 4 in accordance with
the revision.
(4) Regulations under paragraph
(1) may -
(a) authorize the making of
Orders for the purposes of this Article;
(b) make provision for
references in the Regulations to a specified document to operate as references
to that document as revised or re-issued from time to time;
(c) provide for the
delegation of functions exercisable by virtue of the Regulations.
PART 8
LIABILITY OF SHIPOWNERS AND OTHERS
ARTICLE 118
Scheduled Convention to have force
of law
(1) The provisions of the
Convention relating to the Carriage of Passengers and their Luggage by Sea set
out in Part 1 of Schedule 5 (in this Article and in Part 2 of Schedule 5
referred to as “the Convention”) have the force of law in Jersey.
(2) Part 2 of Schedule 5
has effect in connection with the Convention, and paragraph (1) of this Article
has effect subject to that Part.
(3) The States may make
Regulations that modify this Article or Schedule 5 to resolve any conflict
between -
(a) the provisions of this
Article, or of Part 1 or 2 of Schedule 5; and
(b) any provisions relating
to the carriage of passengers or luggage for reward by land, sea or air -
(i) in a convention
that was signed or ratified on behalf of Jersey by or on behalf of the
government of the United Kingdom before 4 April 1979 (excluding the
Convention),
(ii) any enactment of the
Parliament of the United
Kingdom which is in force in Jersey giving effect to such a convention.
(4) If the government of
the United Kingdom
has agreed to a revision of the Convention, the States may by Regulations
modify Parts I and II of Schedule 5 in consequence of the revision.
(5) Nothing in paragraph
(1) or (2), or in a modification made by virtue of paragraphs (3) and (4),
affects any rights or liabilities arising out of an occurrence that took place before
paragraph (1) or (2) came into force or, as the case may be, any modification
made by virtue of paragraph (3) or (4), comes into force.
(6) This Article binds the
Crown, and any Regulations made by virtue of this Article may provide that the
Regulations or specified provisions of them bind the Crown.
ARTICLE 119
Limitation of liability for maritime
claims
(1) The provisions of the
Convention on Limitation of Liability for Maritime Claims 1976 set out in Part
1 of Schedule 6 (in this Article, in Article 120 and in Part 2 of Schedule 6
referred to as “the Convention”) have the force of law in Jersey.
(2) Part 2 of Schedule 6
has effect in connection with the Convention, and paragraph (1) of this Article
has effect subject to that Part.
(3) The provisions that
have the force of law under this Article do not apply in respect of loss of
life or personal injury caused to, or loss of or damage to any property of, a
person who is on board the ship in question or employed in connection with that
ship or with salvage operations in question if -
(a) he is so on board or
employed under a contract of service governed by Jersey
law; and
(b) the liability arises
from an occurrence that took place after the commencement of this law,
and in this paragraph
“ship” and “salvage” have the same meanings as in the
Convention.
(4) The States may by
Regulations modify Parts 1 and 2 of Schedule 6 in consequence of -
(a) a revision agreed to on
behalf of Jersey by the Government of the United Kingdom of the Convention or
of Article 8 of the Protocol of 1996 amending it; or
(b) an amendment of a limit
for the time being specified in paragraph 1 of Article 6, or paragraph 1 of
Article 7, of the Convention that is adopted on behalf of Jersey in accordance
with Article 8 of that Protocol.
(5) A modification made by
virtue of paragraph (4) does not affect a right or liability arising out of an
occurrence that took place before the modification comes into force.
ARTICLE 120
Exclusion of liability
(1) The owner of a Jersey ship is not liable for loss or damage if -
(a) property on board the
ship is lost or damaged by fire on board the ship; or
(b) gold, silver, watches,
jewels or precious stones on board the ship -
(i) are lost or
damaged by reason of theft, robbery or other dishonest conduct, and
(ii) their nature and value
were not at the time of shipment declared by their owner or shipper to the
owner or master of the ship in the bill of lading or otherwise in writing.
(2) If the loss or damage
arose from anything done or omitted to be done by a person in his capacity as
master or member of the crew or, otherwise than in that capacity, in the course
of his employment as an employee of the owner of the ship, paragraph (1) also
excludes the liability of -
(a) the master, member of
the crew or employee; and
(b) if the master or member
of the crew is the employee of a person whose liability would not be excluded
by paragraph (1) apart from this sub-paragraph, the person whose employee
he is.
(3) This Article does not
exclude the liability of a person for loss or damage resulting from a personal
act or omission mentioned in Article 4 of the Convention.
(4) In this Article
“owner”, in relation to a ship, includes a part owner and a charterer,
manager or operator of the ship.
ARTICLE 121
Apportionment of liability for
damage or loss
(1) If, by the fault of two
or more ships, damage or loss is caused to -
(a) one or more of those
ships;
(b) their cargoes or
freight; or
(c) property on board,
liability to make good the loss or
damage is to be in proportion to the degree in which each ship was at fault.
(2) If it is not possible,
having regard to all the circumstances, to establish different degrees of
fault, the liability is to be apportioned equally.
(3) This Article applies,
as well as to the owner of a ship, to a person other than its owner who is
responsible for the fault of the ship.
(4) If, by virtue of a
charter or demise, or for another reason, the owner of a ship is not
responsible for its navigation and management, this Article applies to the
charterer or other person for the time being so responsible instead of its
owner.
(5) This Article does not -
(a) make a ship liable for
loss or damage to which the fault of the ship has not contributed;
(b) affect the liability of
a person under a contract of carriage or any contract;
(c) impose a liability on a
person from which he is exempted by a contract or provision of law;
(d) affect the right of a
person to limit his liability in a manner provided by law.
(6) For the purposes of
this Article damage or loss caused by the fault of a ship is to be taken to
include salvage or other expenses, consequent on that fault, recoverable at law
by way of damages.
(7) In this Article
“freight” includes passage money and hire.
ARTICLE 122
Joint and several liability for loss
of life and personal injuries
(1) If a person loses his
life or suffers a personal injury on board a ship owing to the fault of that
ship and of another ship or ships, the liability of the owners of the ships is
joint and several.
(2) This Article does not -
(a) deprive a person of a
right of defence on which, apart from this Article, he might have relied in an
action brought against him by the injured person, or a person entitled to sue
in respect of the loss of life; or
(b) affect the right of a
person to limit his liability in a manner provided by law.
(3) Articles 121(3), (4)
and (6) apply in respect of this Article.
ARTICLE 123
Right of contribution for loss of
life and personal injuries
(1) If -
(a) a person loses his life
or suffers a personal injury on board a ship owing to the fault of that ship
and of another ship or ships; and
(b) the proportion of any
damages recovered in respect of the loss of life or injury from the owner of
one of the ships exceeds the proportion in which the ship was at fault,
that owner may recover by way of
contribution the amount of the excess from the owner or owners of the other
ship or ships to the extent to which that ship or those ships were respectively
at fault.
(2) This Article does not
authorize the recovery of an amount that -
(a) because of a statutory
or contractual limitation of, or exemption from, liability; or
(b) for another reason,
could not be recovered in the first
instance as damages by the person entitled to sue for them.
(3) In addition to any
other remedy provided by law, a person entitled to a contribution recoverable
under this Article has, for the purpose of recovering it, the same rights and
powers as the person entitled to sue for the damages had in the first instance.
(4) Articles 121(3) and (4)
apply in respect of this Article.
ARTICLE 124
Time limit for proceedings against owners or ship
(1) Except as provided by
paragraphs (3) and (4), proceedings to enforce a claim or lien against a ship
or its owner cannot be brought, irrespective of the extent of the fault -
(a) in respect of damage or
loss caused by the fault of that ship to another ship, its cargo or freight or
any property on board it; or
(b) for damages for loss of
life or personal injury caused by the fault of that ship to a person on board
another ship,
after two years from the date when
the damage was caused or the loss of life or injury was suffered.
(2) Except as provided by
paragraphs (3) and (4), proceedings under Article 121, 122 or 123 to enforce a
contribution in respect of an overpaid proportion of damages for loss of life
or personal injury cannot be brought after one year from the date of payment.
(3) The Royal Court may, in accordance with Rules
of Court, extend the period allowed for bringing proceedings referred to in
paragraph (1) or (2) to the extent, and on such conditions, as it thinks fit.
(4) If the Royal Court is satisfied
that there has not, during the period allowed for bringing proceedings referred
to in paragraph (1) or (2), been a reasonable opportunity to arrest the
defendant ship -
(a) in the jurisdiction of
the court; or
(b) in the territorial sea
of the country to which the plaintiff’s ship belongs or in which the
plaintiff resides or has his principal place of business,
it shall extend that period to an
extent sufficient to give a reasonable opportunity of so arresting the ship.
ARTICLE 125
Limitation of liability of Committee
(1) The liability of the
Committee for loss or damage to a ship, or to goods, merchandise or any other
things whatever on board a ship is limited in accordance with paragraph (4) by
reference to the tonnage of the largest ship that, at the time of the loss or
damage is, or within the preceding five years has been, within the area over
which the Committee is responsible for discharging any functions.
(2) The limitation of
liability under this Article -
(a) relates to the whole of
any loss and damage that may arise on any one distinct occasion, although the
loss and damage may be sustained by more than one person; and
(b) applies whether the
liability arises under customary law or under an enactment, and despite anything
contained in the enactment.
(3) This Article does not -
(a) exclude the liability
referred to in paragraph (1) for loss or damage resulting from a personal act
or omission mentioned in Article 4 of the Convention;
(b) impose a liability for
loss or damage if no liability exists apart from this Article.
(4) The limit of liability
is to be ascertained by applying to the ship by reference to which the
liability is to be determined the method of calculation specified in paragraph
1(b) of Article 6 of the Convention read with paragraph 5(1) and (2) of Part 2
of Schedule 6.
(5) Articles 11 and 12 of
the Convention and paragraphs 8 and 9 of Part 2 of Schedule 6 apply for
the purposes of this Article.
(6) For the purposes of
paragraph (1) of this Article a ship is not to be treated as having been within
the area over which the Committee is responsible for discharging a function by
reason only that it -
(a) has been built or
fitted out within the area;
(b) has taken shelter
within or passed through the area on a voyage between two places both situated
outside that area; or
(c) has loaded or unloaded
mail or passengers within the area.
(7) In this Article
“the Convention” means the Convention on Limitation of Liability
for Maritime Claims 1976 set out in Part 1 of Schedule 6.
ARTICLE 126
Application to Crown and its ships
(1) Articles 119 to 124,
except Article 124(4), apply in the case of Her Majesty’s ships as they
apply in relation to other ships.
(2) In this Article
“Her Majesty’s ships” means -
(a) ships of which the
beneficial interest is vested in Her Majesty;
(b) ships that are
registered in Jersey, the United Kingdom
or a relevant British possession as Government ships;
(c) ships that are for the
time being demised or sub-demised to or in the exclusive possession of the
Crown;
but does not include a ship in which
Her Majesty is interested otherwise than in right of Her Government in the
United Kingdom, unless that ship is for the time being demised or sub-demised
to Her Majesty in right of Her Government in the United Kingdom or in the
exclusive possession of Her Majesty in that right.
ARTICLE 127
Compulsory insurance or security
(1) The States may make
Regulations that require, in specified cases, that while a ship is in Jersey waters there shall be in force in respect of the
ship -
(a) a contract of insurance
that -
(i) insures a
specified person or specified persons against specified liabilities, and
(ii) satisfies any specified
requirements; or
(b) other security relating
to those liabilities that satisfies specified requirements.
(2) Regulations cannot be
made under this Article so as to apply to -
(a) a qualifying foreign
ship while it is exercising the right of innocent passage;
(b) a warship; or
(c) a ship being used by
the government of a State for other than commercial purposes.
(3) Regulations cannot be
made under this Article so as to require insurance or security to be maintained
in respect of a ship in relation to liability in a case where an obligation to
maintain insurance or security in respect of that ship in relation to that
liability is imposed -
(a) by section 163 of the
Merchant Shipping Act 1995 of the United Kingdom, as applied by the
Merchant Shipping (Oil Pollution) (Jersey)
Order 1997; or
(b) by Regulations made
under Article 117 (power to give effect to the Convention set out in Schedule
6).
(4) Regulations made under
this Article may -
(a) require that if a
person is obliged to have in force in respect of a ship a contract of insurance
or other security, specified documentary evidence of the existence of the
contract of insurance or other security shall be -
(i) carried on the
ship by a specified person, and
(ii) produced on demand to
specified persons;
(b) provide that in
specified cases a ship that contravenes the Regulations is liable to be
detained and that Article 177 (enforcing detention) is to have effect with any
specified modifications that relate to the ship;
(c) provide that a
contravention of the Regulations is to be an offence punishable by a fine.
(5) Regulations under this
Article may make provision in terms of any document that the States or any
person considers relevant from time to time.
(6) In this Article
“specified” means specified by or under Regulations made under this
Article.
PART 9
SALVAGE AND WRECK
Chapter 1 - Interpretation
ARTICLE 128
Interpretation of Part
(1) In this Part -
“officer”, in the
definition of Receiver, means an officer appointed under Article 2(1) of the
Harbours (Administration) (Jersey) Law 1961 to deputise for the Harbour Master
in the event of his absence from duty;
“Receiver” means -
(a) the Harbour Master; but
(b) if the Committee
considers in any specific case that it would be inappropriate (whether by
reason of a conflict of interests or otherwise) for the Harbour Master to act,
means in respect of that case the officer appointed by the Committee to act in
that case;
“salvage” includes,
subject to the Salvage Convention, all expenses properly incurred by the salvor
in the performance of salvage services;
“the Salvage Convention”
means the International Convention on Salvage 1989, as set out in Part 1 of
Schedule 7;
“salvor”, in the case of
salvage services rendered by the officers or crew or part of the crew of a ship
belonging to Her Majesty, means the person in command of the ship;
“tidal water” means a
part of the sea within the ebb and flow of the tide at ordinary spring tides,
not being a harbour;
“vessel” includes a
ship, boat or other description of vessel used in navigation;
“wreck” includes jetsam,
flotsam, lagan and derelict found in, or on the shores of, the sea or tidal
water.
(2) For the purposes of
this Part, a fishing boat or fishing gear lost or abandoned at sea and either -
(a) found or taken
possession of within Jersey waters; or
(b) found or taken
possession of beyond those waters and brought within those waters,
is to be treated as wreck.
(3) In so far as it is
inconsistent with this Part, the customary law relating to wreck is abrogated.
Chapter 2 - Salvage
ARTICLE 129
Salvage Convention 1989 to have
force of law
(1) The Salvage Convention
has the force of law in Jersey.
(2) Part 2 of Schedule 7
has effect in connection with the Salvage Convention, and paragraph (1) of this
Article has effect subject to that Part.
(3) If it appears to the
States that the Government of the United Kingdom has agreed to a
revision of the Salvage Convention on behalf of Jersey,
they may by Regulations modify Parts 1 and 2 of Schedule 7 as they consider
appropriate in consequence of the revision.
(4) Nothing -
(a) in paragraph (1) or (2)
affects rights or liabilities arising out of salvage operations started or
other acts done before the date of coming into force of this Chapter;
(b) in any modification
made under paragraph (3) affects rights or liabilities arising out of salvage
operations started or other acts done before the day on which the modification
comes into force.
(5) The reference in
Article 2 of the Salvage Convention to a “State Party” includes a
reference to Jersey.
ARTICLE 130
Valuation of property by Receiver
(1) If a dispute as to
salvage arises, the Receiver may, on the application of either party, appoint a
valuer to value the property.
(2) When the valuation has
been made the Receiver shall give copies of it to both parties.
(3) A copy of the
valuation, purporting to be signed by the valuer, and to be certified as a true
copy by the Receiver, is admissible in evidence in any subsequent proceedings.
(4) The person applying for
the valuation shall pay in respect of it a fee that the Committee may direct.
ARTICLE 131
Detention of property liable for salvage by Receiver
(1) If salvage is due to a
person under this Chapter, the Receiver shall -
(a) if the salvage is due
in respect of services rendered -
(i) in assisting the
vessel,
(ii) in saving life from a
vessel, or
(iii) in saving the cargo and equipment
of a vessel;
detain
the vessel and cargo or equipment; and
(b) if the salvage is due
in respect of the saving of a wreck, and the wreck is not sold as unclaimed
under this Chapter, detain the wreck.
(2) Subject to paragraph
(3), the Receiver shall detain the vessel and the cargo and equipment, or the
wreck, as the case may be, until -
(a) payment is made for
salvage; or
(b) process is issued for
the arrest or detention of the property by the Royal Court.
(3) The Receiver may
release property detained under paragraph (2)(b) if security is given -
(a) to his satisfaction; or
(b) if the claim for
salvage exceeds £5,000 and a question is raised as to the sufficiency of
the security, to the satisfaction of the Court.
(4) Security given for
salvage under this Article to an amount exceeding £5,000 may be enforced
by the Court in the same manner as if bail had been given in that Court.
ARTICLE 132
Sale of detained property by Receiver
(1) The Receiver may sell
detained property if the persons liable to pay the salvage in respect of which
the property is detained are aware of the detention, in the following cases -
(a) if the amount is not
disputed, and payment of the amount due is not made within 20 days after the
amount is due;
(b) if the amount is
disputed, but no appeal lies from the first court to which the dispute is
referred, and payment is not made within 20 days after the decision of the
first court;
(c) if the amount is
disputed, and an appeal lies from the decision of the first court to some other
court, and within 20 days of the decision of the first court neither payment of
the sum due is made nor proceedings commenced for an appeal.
(2) The proceeds of sale of
detained property, after payment of the expenses of sale, are to be applied by
the Receiver in payment of the expenses, fees and salvage, and any excess is to
be paid to the owners of the property immediately before the sale or other
persons entitled to the excess.
(3) In this Article
“detained property” means property detained by the Receiver under
Article 131(2).
ARTICLE 133
Apportionment of salvage under £5,000 by Receiver
(1) If -
(a) the aggregate amount of
salvage payable in respect of salvage services rendered in Jersey waters has
been finally determined and does not exceed £5,000; but
(b) a dispute arises as to
the apportionment of the amount among several claimants,
the person liable to pay the amount
may apply to the Receiver for leave to pay it to him.
(2) The Receiver may
receive the amount and, if he does, he shall give the person paying it a
certificate stating the amount paid and the services in respect of which it is
paid.
(3) A certificate under
paragraph (2) is a full discharge and indemnity to the person by whom it was
paid, and to his vessel, cargo, equipment and effects against the claims of all
persons in respect of the services mentioned in the certificate.
(4) The Receiver shall as
soon as possible distribute an amount received by him under this Article among
the persons entitled to it, on such evidence, and in such shares and
proportions, as he thinks fit; and a decision under this paragraph is to be
made on the basis of the criteria contained in Article 13 of the Salvage
Convention.
(5) The Receiver may retain
money that appears to him to be payable to a person who is absent.
(6) A distribution made by
the Receiver under this Article is final and conclusive as against all persons
claiming to be entitled to any part of the amount distributed.
ARTICLE 134
Apportionment of salvage by the Royal Court
(1) If -
(a) the aggregate amount of
salvage payable in respect of salvage services rendered in Jersey waters has
been finally determined and exceeds £5,000; or
(b) the aggregate amount of
salvage payable in respect of salvage services rendered outside Jersey waters (of whatever amount) has been finally
determined,
but, in either case, a delay or
dispute arises as to the apportionment of the amount, the Royal Court may cause the amount of
salvage to be apportioned among the persons entitled to it as it thinks just.
(2) A decision of the Royal Court under
this Article is to be made on the basis of the criteria contained in Article 13
of the Salvage Convention.
(3) For the purpose of
making the apportionment, the Royal
Court may -
(a) appoint a person to
carry the apportionment into effect;
(b) compel any person in
whose hands or under whose control the amount may be to distribute it or to pay
it into Court to be dealt with as the Court directs; and
(c) issue such process as
it thinks fit.
ARTICLE 135
Salvage claims against the Crown and Crown rights of salvage
(1) So far as consistent
with the Salvage Convention, the law relating to civil salvage, whether of life
or property, except Articles 130, 131 and 132, applies in relation to salvage
services in assisting any of Her Majesty’s ships, or in saving life from
them, or in saving cargo or equipment belonging to Her Majesty in right of Her
Government in the United Kingdom, as if the ship, cargo or equipment belonged
to a private person.
(2) If salvage services are
rendered by or on behalf of Her Majesty, whether in right of Her Government in
the United Kingdom or otherwise, Her Majesty, in respect of those services -
(a) is entitled to claim
salvage to the same extent; and
(b) has the same rights and
remedies,
as any other salvor.
(3) A claim for salvage
services by the commander or crew, or part of the crew, of any of Her
Majesty’s ships shall not be finally adjudicated upon without the consent
of the Secretary of State to the prosecution of the claim; and if a claim is
prosecuted without that consent it shall be dismissed with costs.
(4) A document purporting
to give the consent of the Secretary of State for the purposes of paragraph (3)
and to be signed by an Officer of the United Kingdom Ministry of Defence is
evidence of that consent.
(5) In this Article
“Her Majesty’s ships” has the same meaning as in Article 126.
Chapter 3 - Wreck
ARTICLE 136
Application of, and discharge of functions under, Articles 137 to 140
(1) Articles 137 to 140
apply in circumstances if a Jersey or foreign
vessel is wrecked, stranded or in distress at a place on or near the coast of Jersey or in tidal water within Jersey
waters.
(2) The Receiver may
authorize a customs officer or any officer appointed for the time being under
Article 2(1) of the Harbours (Administration) (Jersey)
Law 1961 to discharge a function conferred
on the Receiver by any of those Articles.
(3) An officer discharging
a function of the Receiver in accordance with paragraph (2) is to be treated as
the agent of the Receiver with respect to goods or articles belonging to a
vessel the delivery of which to the Receiver is required by a provision of this
Chapter; but the officer so discharging a function is not deprived of any right
to salvage to which he would otherwise be entitled.
(4) In those Articles
“shipwrecked persons”, in relation to a vessel, means persons
belonging to the vessel.
ARTICLE 137
Duty of Receiver if vessel in
distress
(1) In circumstances in
which this Article applies by virtue of Article 136 in relation to a vessel,
the Receiver shall, on being informed of the circumstances, but subject to
paragraphs (2) and (3), discharge the following functions -
(a) immediately proceed to
the place where the vessel is;
(b) take command of all
persons present; and
(c) assign duties and give
directions to each person as he thinks fit for the preservation of the vessel
and of the lives of the shipwrecked persons.
(2) The Receiver shall not
interfere between the master and crew of the vessel in reference to the
management of the vessel unless he is requested to do so by the master.
(3) Subject to paragraph
(2), a person who intentionally disobeys a direction of the Receiver commits an
offence and is liable to a fine at level 3 on the standard scale.
ARTICLE 138
Powers of Receiver in relation to vessel in distress
(1) In circumstances in
which this Article applies by virtue of Article 136 in relation to a vessel,
the Receiver may, for the purpose of the preservation of shipwrecked persons or
of the vessel, cargo and equipment -
(a) require persons he
thinks necessary to assist him;
(b) require the master, or
other person having the charge, of any vessel near at hand to give any
assistance with his men or vessel as may be in his power; and
(c) require the use of any
vehicle that may be near at hand.
(2) The receiver does not
have the power under paragraph (1) to impose a requirement on the master or
other person having the charge of a vessel owned or operated by the Royal
National Lifeboat Institution.
(3) A person who refuses,
without reasonable excuse, to comply with a requirement made under paragraph
(1) commits an offence and is liable to a fine at level 3 on the standard
scale.
ARTICLE 139
Power to pass over adjoining land
(1) In circumstances in
which this Article applies by virtue of Article 136 in relation to a vessel, a
person may -
(a) to render assistance to
the vessel;
(b) to save the lives of shipwrecked
persons; or
(c) to save the cargo or
equipment of the vessel,
without interruption by the owner or
occupier of adjoining land, pass and repass over it, with or without vehicles,
and deposit on it cargo or other articles recovered from the vessel.
(2) A right of passage is
not conferred by paragraph (1) if there is a public road equally convenient.
(3) A right of passage
conferred by paragraph (1) shall be exercised so as to do as little damage as
possible.
(4) Any damage sustained by
the owner or occupier of land in consequence of the exercise of a right of
passage conferred by paragraph (1) is a charge on the vessel, cargo or
articles in respect of or by which the damage is caused.
(5) The amount payable in
respect of any damage is -
(a) in case of dispute, to
be determined; and
(b) in default of payment,
recoverable,
in the same manner as salvage is
determined and recoverable.
(6) An owner or occupier of
land commits an offence if he -
(a) impedes or hinders a
person in the exercise of the rights conferred by this Article;
(b) impedes or hinders the
deposit on the land of cargo or other articles recovered from the vessel;
(c) prevents or attempts to
prevent cargo or other articles recovered from the vessel from remaining
deposited on the land for a reasonable time until they can be moved to a safe
place of public deposit,
and is liable to a fine at level 3
on the standard scale.
ARTICLE 140
Duties of finder etc. of wreck
If
a person finds or takes possession of wreck in Jersey waters, or finds or takes
possession of wreck outside Jersey waters and brings it within those waters, he
shall -
(a) if he is the owner of
it, give notice to the Receiver stating that he has found or taken possession
of it and describing the marks by which it may be recognised;
(b) if he is not the owner
of it, give notice to the Receiver that he has found or taken possession of it
and, as directed by the Receiver, either hold it to the Receiver’s order
or deliver it to the Receiver.
ARTICLE 141
Failure by finder etc. of wreck to carry out duties
(1) A person who -
(a) finds or takes
possession of wreck in Jersey waters; or
(b) finds or takes
possession of wreck outside Jersey waters and
brings it within those waters;
and who, without reasonable excuse,
fails to comply with Article 140 commits an offence and is liable to a fine not
exceeding level 4 on the standard scale.
(2) If the person is not
the owner of the wreck he also -
(a) forfeits any claim to
salvage; and
(b) is liable to pay twice
the value of the wreck -
(i) if it is claimed,
to the owner of it, or
(ii) if it is unclaimed, to
the Receiver.
ARTICLE 142
Provisions as to cargo etc.
(1) If a vessel is wrecked,
stranded, or in distress on or near the coast of Jersey or in tidal water
within Jersey waters, any cargo or other articles belonging to or separated
from the vessel that are washed on shore or otherwise lost or taken from the
vessel shall be delivered to the Receiver.
(2) A person, whether the
owner or not, commits an offence if he -
(a) conceals or keeps
possession of any such cargo or article; or
(b) refuses to deliver it
to the Receiver or to a person authorized by the Receiver to require delivery,
and is liable to a fine at level 4
on the standard scale.
(3) The Receiver or a
person authorized by him may take any such cargo or article, if necessary by
force, from a person who refuses to deliver it.
ARTICLE 143
Receiver to give notice of wreck
(1) If the Receiver takes
possession of wreck he shall, within 48 hours -
(a) make a record
describing the wreck and any marks by which it is distinguished; and
(b) if in his opinion the
value of the wreck exceeds £5,000, also transmit a copy of the record to
the chief executive officer of Lloyds in London,
to be posted in a conspicuous place there for inspection.
(2) The Receiver shall make
the record under paragraph (1)(a) available for inspection by any person during
reasonable hours without charge.
ARTICLE 144
Claims of owners to wreck
(1) The owner of wreck in
the possession of the Receiver who establishes his claim to the wreck to the
satisfaction of the Receiver within one year from the time when the wreck came
into the Receiver’s possession is entitled, on paying the salvage, fees
and expenses due, to have the wreck delivered or the proceeds of sale paid to
him.
(2) If -
(a) a foreign ship has been
wrecked on or near the coast of Jersey; or
(b) articles belonging to
or forming part of, or of the cargo of, a foreign ship that has been wrecked on
or near the coast of Jersey are found on or near the coast or are brought into
a port,
the appropriate officer is, in the
absence of the owner and of the master or other agent of the owner, to be
treated as the agent of the owner for the purposes of the custody and disposal
of the wreck and the articles.
(3) In paragraph (2)
“appropriate officer” means -
(a) in relation to a
foreign ship that is not a British ship registered outside Jersey, the consul
general of the country to which the ship or, as the case may be, the owners of
the cargo may have belonged or a consular officer of that country authorized for
the purpose by any treaty or arrangement with that country;
(b) in relation to a
British ship registered outside Jersey, the
Registrar of Shipping in the port of registry of the ship.
ARTICLE 145
Immediate sale of wreck in certain
cases
(1) The Receiver may at any
time sell wreck in his possession if, in his opinion -
(a) it is under the value
of £5,000;
(b) it is so much damaged,
or of so perishable a nature, that it cannot with advantage be kept; or
(c) it is not of sufficient
value to pay for storage.
(2) The Receiver may also
sell wreck in his possession before the end of the year referred to in Article
144(1) if in his opinion it is unlikely that an owner will establish a claim to
the wreck within that year.
(3) Subject to paragraph
(4), the proceeds of sale, after defraying the expenses of the sale, are to be
held by the Receiver for the same purposes and subject to the same claims,
rights and liabilities as if the wreck had remained unsold.
(4) If the Receiver sells
wreck under paragraph (2), he may make an advance payment to the salvors, of an
amount and subject to conditions as he thinks fit, on account of salvage that
may become payable to them in accordance with Article 144(2)(b).
(5) The Committee may
increase the amount specified in paragraph (1)(a) by Order.
ARTICLE 146
Right to unclaimed wreck
(1) This Article applies
where wreck that was found in Jersey or Jersey waters is in the possession of the Receiver one
year after it came into his possession and no person has established ownership
of it.
(2) Where this Article
applies the wreck shall form part of the property of the Committee.
(3) Where wreck has become
the property of the Committee the Committee may -
(a) direct the Receiver to
sell or otherwise dispose of the wreck on behalf of the Committee; or
(b)
retain the wreck.
(4) Where the Receiver
sells wreck on behalf of the Committee the Receiver shall -
(a) deduct from the amount
realised by the sale -
(i) the expenses of
the sale, and
(ii) any other expenses
incurred by him;
(b) pay the salvors the
amount of salvage directed by the Committee either generally or in the
particular case; and
(c) pay the balance to the
States as part of the income of the States.
(5) The Committee shall not
retain possession of wreck to the detriment of any salvor but if it retains
possession of wreck it shall pay fair compensation to any salvor.
ARTICLE 147
Effect of delivery of wreck etc.
under this Chapter
(1) Delivery of wreck or
payment of the proceeds of sale of wreck by the Receiver under this Chapter
discharges the Receiver from all liability in respect of the delivery or
payment.
(2) Delivery of wreck by
the Receiver under this Chapter does not, however, prejudice or affect any
question that may be raised by third parties concerning the right or title to
the wreck or concerning the title to the soil of the place where the wreck was
found.
ARTICLE 148
Taking wreck etc. to foreign port
A
person who takes into a foreign port and sells -
(a) a vessel stranded,
derelict or otherwise in distress found on or near the coast of Jersey or in tidal water within Jersey
waters;
(b) the whole or part of
the cargo or equipment of, or anything belonging to, such a vessel; or
(c) wreck found within Jersey waters,
commits an offence and is liable to
imprisonment for 5 years or a fine.
ARTICLE 149
Interfering with wrecked vessel or wreck
(1) A person commits an
offence if, not being -
(a) the Receiver or a
person lawfully acting as the Receiver;
(b) a person acting on the
instruction of a person referred to in sub-paragraph (a); or
(c) a person authorized by
the master to do so,
he boards or attempts to board a
vessel that is wrecked, stranded or in distress, and is liable to a fine at
level 3 on the standard scale.
(2) The master of a vessel
may forcibly repel a person committing or attempting to commit an offence under
paragraph (1).
(3) A person commits an
offence if he -
(a) impedes or hinders, or
attempts to impede or hinder, the saving of -
(i) a vessel stranded
or in danger of being stranded, or otherwise in distress, on or near the coast
or tidal water,
(ii) the whole or part of
the cargo or equipment of such a vessel,
(iii) wreck;
(b) conceals wreck;
(c) defaces or obliterates
any mark on a vessel;
(d) wrongfully carries away
or removes -
(i) any part of a
vessel stranded or in danger of being stranded, or otherwise in distress, on or
near the coast or tidal water,
(ii) the whole or part of
the cargo or equipment of such a vessel,
(iii) wreck;
and is liable to a fine at level 4
on the standard scale.
ARTICLE 150
Powers of entry etc.
(1) If the Receiver has
reason to believe that wreck -
(a) is being concealed by,
or is in the possession of, a person who is not the owner of it; or
(b) is being otherwise
improperly dealt with,
he may apply to the Bailiff or a
Jurat for a search warrant.
(2) If a search warrant is
granted under paragraph (1) the Receiver may, by virtue of the warrant -
(a) enter a house or other
place, wherever situated, or a vessel; and
(b) search for, seize and
detain any wreck found there.
(3) When executing a warrant
granted under paragraph (1) the Receiver -
(a) may be accompanied by a
police officer or a customs officer or any person named in the warrant, who
shall have the same powers as the Receiver when executing the warrant; and
(b) may use such force as
may be reasonably necessary to carry out the search.
(4) If a seizure of wreck
is made under this Article in consequence of information given by a person to
the Receiver, the person giving the information is entitled, by way of salvage,
to a sum, not exceeding £100, that the Receiver may allow.
Chapter 4 - Supplemental
ARTICLE 151
Expenses of Receiver
(1) There shall be paid to
the Receiver the expenses properly incurred by him in the discharge of his
functions and any prescribed fees in respect of matters prescribed by the
Committee by Order.
(2) The Receiver is not
entitled to any other remuneration in respect of his functions under this Law.
(3) The Receiver has, in
addition to all other rights and remedies for the recovery of those expenses and
fees, the same rights and remedies in respect of those expenses and fees as a
salvor has in respect of salvage due to him.
(4) If a dispute arises as
to the amount payable to the Receiver in respect of expenses or fees, the
dispute is to be determined by the Committee, whose decision on it is final.
ARTICLE 152
Release of goods from customs
control
The
Agent of the Impôts shall, subject to taking security for the protection
of the revenue in respect of the goods, permit all goods saved from a ship stranded
or wrecked -
(a) to be forwarded to the
port of its original destination if it was on its homeward voyage;
(b) to be returned to the
port at which they were shipped if it was on its outward voyage.
ARTICLE 153
Powers of Harbour Master in relation to wrecks
(1) If a vessel is sunk,
stranded or abandoned -
(a) in, or in or near an
approach to, a harbour or tidal water; or
(b) in a fairway, on the
seashore, or on or near a rock, shoal, bank or island in Jersey
waters,
in a manner that, in the opinion of
the Harbour Master, is, or is likely to become, an obstruction or danger to
navigation or to lifeboats engaged in lifeboat service, he may exercise any of
the powers in paragraph (2).
(2) Those powers are -
(a) to take possession of,
and raise, remove or destroy the whole or part of the vessel and its property;
(b) to light or buoy the
vessel or part of the vessel and its property until it is raised, removed or
destroyed;
(c) subject to paragraph
(3), to sell, in such manner as he thinks fit, the vessel or part of the vessel
so raised or removed and any property recovered in the exercise of the power
conferred by sub-paragraph (a) or (b);
(d) to reimburse himself,
out of the proceeds of the sale, for the expenses incurred by him in relation
to the sale.
(3) The following
provisions attach to a sale under paragraph (2)(c) -
(a) except in the case of
property that is of a perishable nature or that would deteriorate in value by
delay, no sale is to be made until at least seven days notice of the intended
sale has been give by advertisement in a newspaper circulating in Jersey;
(b) at any time before
property is sold the owner of it is entitled to have it delivered to him on
payment of its fair market value;
(c) the proceeds of a sale
of a vessel and any other property recovered from the vessel are to be treated
as a common fund;
(d) any surplus of the
proceeds of a sale is to be held by the Harbour Master in trust for the persons
entitled to it.
(4) For the purposes of paragraph
(3)(b) -
(a) the market value of
property is that agreed on between the Harbour Master and the owner or, failing
agreement, that determined by a person appointed for the purpose by the
Bailiff;
(b) the sum paid to the
Harbour Master is to be treated for the purposes of this Article as the
proceeds of sale of the property.
(5) This Article is without
prejudice to any other powers of the Harbour Master.
(6) In this Article
“property”, in relation to a vessel, means an article, thing or
collection of things being or forming part of the equipment, cargo, stores or
ballast of the vessel.
PART 10
ENFORCEMENT OFFICERS AND POWERS
ARTICLE 154
Appointment of inspectors and surveyors
(1) The Committee may
appoint a person as an inspector to report to it -
(a) on the nature and
causes of an accident or damage that a ship has or is alleged to have sustained
or caused;
(b) whether a requirement,
restriction or prohibition imposed by or under this Law has been complied with
or, as the case may be, contravened;
(c) whether the hull and
machinery of a ship are sufficient and in good condition;
(d) what measures have been
taken to prevent the escape of oil or mixtures containing oil.
(2) The Committee may
appoint persons to be surveyors of ships for the purposes of this Law.
(3) A surveyor of ships may
be appointment as a ship surveyor, an engineer surveyor, or both.
(4) A surveyor of ships may
be appointed either generally or for a particular case or purpose.
(5) The Committee may also
appoint a Chief Marine Surveyor for Jersey and
other officers in connection with the survey of ships and other matters
incidental to it as the Committee thinks fit.
(6) Each surveyor of ships
is to be treated as a person appointed generally under paragraph (1) to report
to the Committee in every kind of case falling within sub-paragraphs (b) and
(d) of that paragraph in relation to Chapter 3 of Part 7 (oil pollution).
(7) The Committee may
appoint persons to be inspectors for the purposes of Articles 159 to 164.
(8) An inspector appointed
under paragraph (1) is to be treated as also appointed under
paragraph (7).
ARTICLE 155
Powers to require production of
ships’ documents
(1) The powers conferred by
this Article are conferred in relation to Jersey
ships and are available to the following officers -
(a) the Harbour Master;
(b) a commissioned naval
officer;
(c) a British consular
officer;
(d) the Registrar or a
person discharging the functions of the Registrar;
(e) the Agent of the Impôts
or his deputy;
(f) an inspector;
(g) a surveyor of ships;
(h) a shipping master,
whenever the officer has reason to
suspect that this Law or any law for the time being in force relating to seamen
or navigation is not being complied with.
(2) Those powers are -
(a) to require the owner,
any charterer, the master, or any of the crew to produce an official log-book,
or other document relating to the crew or a member of the crew, in his
possession or control, and to take copies of or extracts from that log-book or
other document;
(b) to require the master
to appear and give any explanation required concerning the ship or her crew or
an official log-book or document produced or required to be produced;
(c) to require the master
to produce a list of all persons on board his ship;
(d) to muster the crew.
(3) A person who, on being
required by an officer under this Article to produce a log-book or document,
fails without reasonable excuse to produce it, commits an offence and is liable
to a fine at level 2 on the standard scale.
(4) A person who, on being
required by an officer under this Article -
(a) to produce a log-book
or document, refuses to allow it to be inspected or copied;
(b) to give an explanation,
refuses or neglects to give the explanation or knowingly misleads or deceives
the officer; or
(c) to muster the crew,
fails or refuses to do so or impedes the muster,
commits an offence and is liable to
a fine at level 2 on the standard scale.
ARTICLE 156
Powers to inspect ships and their
equipment etc.
(1) To ensure that the
provisions of this Law, other than Articles 98 to 108 and 110 to 115, and the
provisions of Regulations and Orders made under this Law (other than under
those Articles) or that the terms of an approval, licence, consent, direction
or exemption given by virtue of those Regulations or Orders are duly complied
with -
(a) a surveyor of ships;
(b) a shipping master;
(c) a proper officer;
(d) a person appointed by
the Committee, either generally or in a particular case, to exercise powers
under this Article,
may, on production of his authority
to do so, if requested, at all reasonable times go on board a ship in Jersey or
Jersey waters and inspect the ship and its equipment or a part of the equipment,
an article on board and a document carried in the ship in accordance with this
Law or Regulations or Orders made under it.
(2) The powers conferred by
paragraph (1) -
(a) are not exercisable in
relation to a qualifying foreign ship while the ship is exercising the right of
innocent passage;
(b) are also exercisable
outside Jersey waters if the ship is a Jersey ship.
(3) A person exercising
powers under this Article shall not unnecessarily detain or delay a ship, but
may, if he considers it necessary in consequence of an accident or for another
reason, require a ship to be taken into dock for a survey of its hull and
machinery.
(4) If a person mentioned
in paragraph (1) has reasonable grounds for believing that there are on
premises provisions or water intended for supply to a Jersey
ship that, if provided to the ship, would not comply with applicable Safety
Regulations, he may enter those premises and inspect the provisions or water to
ascertain whether they would so comply.
(5) A person who -
(a) obstructs a person in
the exercise of his powers under this Article; or
(b) fails to comply with a
requirement made under paragraph (3),
commits an offence and is liable to
a fine at level 4 on the standard scale.
ARTICLE 157
Powers of inspectors in relation to premises and ships
(1) The powers conferred by
this Article are conferred in relation to -
(a) premises in Jersey; or
(b) a Jersey
ship wherever it may be and any other ship that is present in Jersey
or Jersey waters,
and are available to an inspector
for the purpose of performing his functions.
(2) An inspector -
(a) may at any reasonable
time (or, in a situation that in his opinion is or may be dangerous, at any
time) -
(i) enter premises,
or
(ii) board a ship,
if
he has reason to believe that it is necessary for him to do so;
(b) may on entering
premises or boarding a ship by virtue of sub-paragraph (a), take with him any
other person authorized for the purpose by the Committee and any equipment or
materials he requires;
(c) may make such
examination and investigation as he considers necessary;
(d) may give a direction
requiring that the premises or ship, or a part of either, or anything in
either, shall be left undisturbed (whether generally or in particular respects)
for so long as is reasonably necessary for the purposes of an examination or
investigation under sub-paragraph (c);
(e) may take measurements
and photographs and make recordings he considers necessary for the purpose of
an examination or investigation under sub-paragraph (c);
(f) may take a sample
of an article or a substance found in the premises or ship, and of the
atmosphere in or in the vicinity of the premises or ship;
(g) may, in the case of an
article or substance that he finds in the premises or ship and that appears to
him to have caused or to be likely to cause danger to health or safety, cause
it to be dismantled or subjected to a process or test (but not so as to damage
or destroy it unless that is in the circumstances necessary);
(h) may in the case of an
article or substance mentioned in sub-paragraph (g), take possession of it and
detain it for so long as is necessary for all or any of the following purposes
-
(i) to examine it and
do anything to it that he has the power to do under that sub-paragraph,
(ii) to ensure that it is
not tampered with before his examination of it is completed,
(iii) to ensure that it is
available for use as evidence in proceeding for an offence under this Law or
subsidiary legislation made under it;
(i) may require a
person whom he has reasonable cause to believe is able to give information
relevant to an examination or investigation under sub-paragraph (c) -
(i) to attend at a
place and time specified by the inspector,
(ii) to answer (in the
absence of persons other than those whom the inspector may allow to be present
and a person nominated to be present by the person on whom the requirement is
imposed) questions that the inspector thinks fit to ask, and
(iii) to sign a declaration of the
truth of his answers;
(j) may require the
production of, and inspect and take copies of, or of an entry in -
(i) a book or
document that is required to be kept by virtue of this Law, or
(ii) any other book or
document that he considers it necessary for him to see for the purposes of an
examination or investigation under sub-paragraph (c);
(k) may require a person to
afford him facilities and assistance with respect to a matter or thing within
that person’s control or in relation to which that person has
responsibility as the inspector considers are necessary to enable him to
exercise any of the powers conferred on him by this paragraph.
(3) The powers conferred -
(a) by paragraph (2) -
(i) to require the
production of a document and to copy it, include, in relation to oil record
books required to be carried under Article 109, the power to require the master
to certify the copy as true,
(ii) to inspect premises,
are also exercisable, for the purpose of Chapter 3 of Part 7, in relation to
apparatus used for transferring oil;
(b) by paragraph (2)(a),
(c) and (j) are also exercisable, in relation to a ship in a harbour in Jersey,
by the Harbour Master or other persons appointed by the Committee, for the
purpose of ascertaining the circumstances relating to an alleged discharge of
oil or a mixture containing oil from the ship into the harbour.
(4) Nothing in paragraphs
(1) to (3) authorizes a person -
(a) to take any action
under those articles if upon being requested to do so by a person apparently in
charge of the premises or ship they fail to produce their authority to take
that action; or
(b) unnecessarily to
prevent a ship from proceeding on a voyage.
(5) The Committee may by
Order make provision as to -
(a) the procedure to be
followed in connection with the taking of a sample under paragraphs (2)(f) and
(7); and
(b) the way in which a
sample that has been so taken is to be dealt with.
(6) If an inspector
proposes to exercise a power conferred by paragraph (2)(g) in the case of an
article or substance found in premises or a ship, he shall -
(a) consult any person who
appear to him appropriate for the purpose of ascertaining what dangers, if any,
there may be in doing anything that he proposes to do under that power; and
(b) if so requested by a
person who at the time is present in and has a responsibility in relation to
the premises or ship, cause anything that is to be done by virtue of that power
to be done in the presence of that person, unless the inspector considers that
its being so done would be prejudicial to the safety of that person.
(7) If, under the power
conferred by paragraph (2)(h), an inspector proposes to take possession of an
article or substance found in premises or a ship, he shall -
(a) before taking
possession of it, if it is practical for him to do so, take a sample of the
substance and give a responsible person at the premises or on board the ship a
portion of the sample marked in a manner sufficient to identify it;
(b) on taking possession of
it, leave there, either with a responsible person or, if that is impracticable,
fixed in a conspicuous position, a notice giving particulars of that article or
substance sufficient to identify it and stating that he has taken possession of
it under that power.
(8) With regard to the
exercise of a power under paragraph (2)(i) -
(a) an answer given by a
person in accordance with a requirement imposed is not admissible in evidence
against that person or the husband or wife of that person in proceedings except
proceedings under Article 158(1)(c) in respect of a statement in, or a
declaration relating to, the answer;
(b) a person nominated as
mentioned in that paragraph is entitled, when the questions mentioned there are
asked, to make representations to the inspector on behalf of the person who
nominated him.
ARTICLE 158
Provisions supplementary to Article 157
(1) A person commits an
offence if he -
(a) intentionally obstructs
an inspector in the exercise of a power available to him under Article 157;
(b) without reasonable
excuse, fails to comply with a requirement imposed under Article 157 or
prevents another person from complying with such a requirement; or
(c) without prejudice to
the generality of sub-paragraph (b), makes a statement or signs a declaration
that he knows is false, or recklessly makes a statement or signs a declaration
that is false, in purported compliance with a requirement made under Article
157(2)(i),
and is liable to imprisonment for 2
years and a fine.
(2) Nothing in Article 157
compels the production by a person of a document of which he would, on the
ground of legal professional privilege, be entitled to withhold production on
an order for discovery in an action in the Royal Court.
(3) A person who complies
with a requirement imposed on him under Article 157(2)(i)(i) or (k) is entitled
to recover from the person who imposed the requirement expenses reasonably
incurred in complying with the requirement.
ARTICLE 159
Improvement notices
(1) If an inspector
appointed under Article 154(7) is of the opinion that a person -
(a) is contravening one or
more of the relevant statutory provisions; or
(b) has contravened one or
more of those provisions in circumstances that make it likely that the contraventions
will continue or be repeated,
he may serve on that person a notice
(referred to in this and the following Articles of this Part as an
“improvement notice”).
(2) An improvement notice
shall -
(a) state that the
inspector is of that opinion;
(b) specify the provision
or provisions as to which he is of that opinion;
(c) give particulars as to
why he is of that opinion; and
(d) require the person on
whom it is served to remedy the contravention in question or, as the case may
be, the matters occasioning it within the period specified in the notice.
(3) The period specified in
paragraph (2)(d) shall not expire before the end of the period within which a
notice can be given under Article 162 requiring questions relating to the
improvement notice to be referred to arbitration.
(4) In this Article and
Articles 160 to 164 “the relevant statutory provisions” means -
(a) the following Articles
-
(i) 29 to 36 (manning
and crew),
(ii) 49 and Schedule 2, 50,
52 and Schedule 3, 53 and 62 (safety and health),
(iii) 77, 78 and 83 to 88 (manning,
health and safety on fishing vessels),
(iv) 90 to 115 (pollution
generally and oil pollution), and
(v) 171 (inquiries into
injuries);
(b) the provisions of any
instrument of a legislative character having effect under any of those
provisions.
ARTICLE 160
Prohibition notices
(1) If, as regards relevant
activities that are being or are likely to be carried on on board ship by or
under the control of a person, an inspector appointed under Article 154(5) is
of the opinion that, as so carried on or likely to be carried on, the
activities involve or will involve the risk of -
(a) serious personal injury
to a person, whether on board the ship or not; or
(b) serious pollution of
navigable waters,
the inspector may serve on the
first-mentioned person a notice (referred to in this and the following Articles
of this Part as a “prohibition notice”).
(2) In paragraph (1)
“relevant activities” means activities to or in relation to which
any of the relevant statutory provisions apply or will, if the activities are
carried on as mentioned in that paragraph, apply.
(3) A prohibition notice
shall -
(a) state that the
inspector is of that opinion;
(b) specify the matters
that in his opinion give or will give rise to the risk;
(c) if in his opinion any
of those matters involve or will involve a contravention of any of the relevant
provisions -
(i) state that he is
of that opinion,
(ii) specify the provision
or provisions as to which he is of that opinion, and
(iii) give particulars as to why he
is of that opinion;
(d) direct -
(i) that the
activities to which the notice relates shall not be carried on by or under the
control of the person on whom the notice is served,
(ii) that the ship shall not
go to sea, or
(iii) both of those things,
unless
the matters specified in the notice under sub-paragraph (b), and any
associated contraventions of any provision so specified under sub-paragraph
(c), have been remedied.
(4) A direction contained
in a prohibition notice under paragraph (3)(d) takes effect -
(a) at the end of a period
specified in the notice; or
(b) if the direction is
given in pursuance of paragraph (3)(d)(ii) or (iii), or the notice so declares,
immediately.
ARTICLE 161
Provisions supplementary to Articles
159 and 160
(1) An improvement notice
or a prohibition notice may, but need not, include directions as to the
measures to be taken to remedy a contravention or matter to which the notice
relates; and the directions may be framed so as to afford the person on whom
the notice is served a choice between different ways of remedying the
contravention or matter.
(2) An improvement notice
or a prohibition notice shall not direct a measure to be taken to remedy the
contravention of a relevant statutory provision that is more onerous than is
necessary to secure compliance with that provision.
(3) If an improvement
notice or a prohibition notice that is not to take immediate effect has been
served -
(a) the notice may be
withdrawn by an inspector at any time before the end of the period specified in
it under Article 159(2)(d) or 160(4); and
(b) the period so specified
may be extended or further extended by an inspector at any time when a
reference to arbitration in respect of the notice is not pending under Article
162.
ARTICLE 162
References of notices to arbitration
(1) A question -
(a) as to whether a reason
or matter specified in an improvement notice or a prohibition notice in
pursuance of Article 159(2)(b) or (c), or 160(3)(b) or (c) in connection with
an opinion formed by the inspector constituted a valid basis for that opinion;
or
(b) as to whether a
direction included in the notice in pursuance of Article 161(1) was reasonable,
shall, if the person on whom the
notice was served so requires by a counter-notice given to the inspector within
21 days from the service of the notice, be referred to a single arbitrator
appointed by agreement between the parties or, failing agreement, by the
Bailiff, for that question to be decided by the arbitrator.
(2) If a counter-notice is
given under paragraph (1) -
(a) in the case of an
improvement notice, the giving of the counter-notice has the effect of
suspending the operation of the improvement notice until the decision of the
arbitrator is published to the parties or the reference is abandoned by the
person giving the counter-notice;
(b) in the case of a
prohibition notice, the giving of the counter-notice has the effect of so
suspending the operation of the prohibition notice if, but only if, on the
application of the person giving the counter-notice, the arbitrator so directs,
and then only from the giving of the direction.
(3) If on a reference under
this Article the arbitrator decides as respects a reason, matter or direction
to which the reference relates, that in all the circumstances -
(a) the reason or matter
did not constitute a valid basis for the inspector’s opinion; or
(b) the direction was
unreasonable,
he shall either cancel the notice or
affirm it with such modifications as in the circumstances he thinks fit; and in
any other case the arbitrator shall affirm the notice in its original form.
(4) A person is qualified
as an arbitrator under this Article if he is -
(a) a person holding -
(i) a certificate of
competency as a master mariner or as a marine engineer officer class 1, or
(ii) a certificate
equivalent to that certificate;
(b) a naval architect;
(c) a person with special
experience of shipping matters, of the fishing industry, or of activities
carried on in ports;
(d) a person who is -
(i) a Jurat,
(ii) an Advocate of the
Royal Court of at least 10 years’ standing,
(iii) a member of the bar of
England and Wales,
or Northern Ireland,
or a solicitor of the Supreme Court of England and Wales, or Northern Ireland,
of at least 10 years’ standing,
(iv) an advocate or solicitor in Scotland of at
least 10 years’ standing.
ARTICLE 163
Compensation in connection with
invalid prohibition notices
(1) If on a reference under
Article 162 relating to a prohibition notice the arbitrator decides -
(a) that -
(i) a reason or
matter did not constitute a valid basis for the inspector’s opinion, and
(ii) it appears to him that
there were no reasonable grounds for the inspector to form that opinion; or
(b) that a direction
included in the notice was unreasonable,
the arbitrator may, subject to
paragraph (3), award compensation to the person on whom the notice was served
in respect of loss suffered by him in consequence of the service of the notice
or direction as the arbitrator thinks fit.
(2) An arbitrator shall not
award compensation under paragraph (1) unless -
(a) the direction given
under Article 160(3)(d) contained a requirement that the ship should not go to
sea; or
(b) it appears to him that
-
(i) the inspector was
of the opinion that there would be such a risk of injury or pollution as is
referred to in the notice if the ship went to sea, and
(ii) the effect of the
direction given under Article 160(3)(d) was to prohibit the departure of
the ship unless the matter or (as the case may be) the matter and
contravention, referred to in the direction were remedied.
(3) Compensation awarded
under this Article is payable by the Committee.
ARTICLE 164
Offences
(1) A person who
contravenes a requirement imposed by an improvement notice or a prohibition
notice commits an offence and is liable -
(a) in the case of an
improvement notice, to a fine;
(b) in the case of a
prohibition notice, to imprisonment for 2 years and a fine.
(2) It is a defence for a
person charged with an offence under this Article to prove that he exercised
all due diligence to avoid a contravention of the requirement or the
prohibition in question.
(3) In this Article a
reference to an improvement notice or a prohibition notice includes a reference
to a notice as modified under Article 162(3).
PART 11
ACCIDENT INVESTIGATIONS AND
INQUIRIES
Chapter 1 - Marine accident investigations
ARTICLE 165
Application and interpretation of Chapter
(1) An accident referred to
in this Chapter means an accident that involves a ship or ship’s boat if,
at the time of the accident -
(a) the ship is a Jersey ship; or
(b) the ship or, in the
case of an accident that involves a ship’s boat, that boat, is in Jersey waters.
(2) In this Chapter, unless
the context otherwise requires, a reference to an accident is a reference to -
(a) an incident that
involves, or occurs on board, a Jersey ship or
other ship in Jersey or Jersey
waters whereby -
(i) a ship is lost or
presumed to be lost,
(ii) a ship is abandoned,
(iii) a ship is disabled, stranded,
in collision or seriously damaged,
(iv) there is loss of life or
serious injury to a person on board, or a person is lost from, a ship or
ship’s boat; or
(b) any other hazardous
incident.
(3) In this Article -
“disabled” means not
under command for a period of more than 12 hours, or for a lesser period if, as
a result, the ship needs assistance to reach port;
“hazardous incident”
means an incident, other than one under paragraph (2)(a) -
(a) by which the safety of
a ship or a person on board is imperilled; or
(b) as a result of which
serious damage to another ship, a structure or the environment might be caused;
“serious injury” means -
(a) fracture
of the skull, spine or pelvis;
(b) fracture of a bone in
the arm other than in the wrist or hand;
(c) fracture of a bone in
the leg other than in the ankle or foot;
(d) amputation
of a hand or foot; or
(e) other physical injury
that results in the person being admitted to hospital as an in-patient for more
than 24 hours or, if the ship is at sea, that would have so resulted had it
been in port;
“ship’s boat”
includes a life-raft and a painting punt;
“stranded” means having
made involuntary contact with the ground in circumstances whereby a ship cannot
immediately refloat.
ARTICLE 166
Investigation of marine accidents
(1) The Committee may, if
there has been an accident, appoint a person to hold an inquiry to determine
the circumstances of the accident and its cause.
(2) A person appointed
under paragraph (1) has, for the purposes of the inquiry, the powers conferred
on an inspector by Article 157 and may conduct the inquiry at a time,
place and in such manner, as he thinks fit.
(3) An inquiry under this
Article may cover -
(a) events and
circumstances preceding the accident that in the opinion of the person holding
the inquiry may have been relevant to its cause or outcome;
(b) the consequences of the
accident.
(4) On completion of an
inquiry the person appointed to hold it shall submit to the Committee a report
that contains -
(a) his findings as to the
facts of the accident and, if the facts cannot be clearly established, his
opinion as to the most probable facts, clearly distinguishing between
established facts and conjecture;
(b) his analysis and
conclusions; and
(c) such observations and
recommendations concerning the accident as he thinks fit to make.
(5) Except as provided by paragraph
(6), the Committee may publish a report submitted to it under paragraph (4).
(6) If the report indicates
that there was or may have been a breach of the law and that as a consequence a
prosecution should be considered, the Committee shall not publish the report
until -
(a) if it is decided to
prosecute, the prosecution, including any appeal, has been concluded; or
(b) it is decided not to
prosecute.
(7) The Committee may at
any time during the course of an inquiry under this Article direct that the
inquiry should be discontinued; and in that case the person appointed to hold
the inquiry need not submit a report.
(8) The Committee shall pay
the expenses reasonably incurred by a person required to attend before an
inquiry under this Article.
ARTICLE 167
Investigation by marine accident
tribunal
(1) The Committee may, if
there has been an accident, and whether or not an inquiry under Article 166 has
been instituted or completed in respect of the accident, cause an investigation
to be held by a marine accident tribunal consisting of a chairman and, subject
to paragraph (5), one or more assessors, all of whom are to be appointed by the
Bailiff.
(2) The chairman shall be a
person who is qualified to be an arbitrator under Article 162(4)(d), and an
assessor shall be a person so qualified under Article 162(4)(a), (b) or (c).
(3) The tribunal has, in
holding its investigation, all the powers, including power to award and enforce
the payment of costs, of the Magistrate’s Court, and in particular it has
the power -
(a) to inquire into the
conduct of an officer or seaman; and
(b) if it is satisfied that
any of the matters mentioned in paragraph (1)(a) to (c) of Article 39 apply and
if, in the case of a matter mentioned in paragraph (1)(a) or (b) of that
Article, it is further satisfied that the conduct caused or contributed to the
accident, to -
(i) cancel or suspend
a certificate issued to the officer or seaman under Article 29, or
(ii) censure him.
(4) Articles 39(4), 41(3)
and 44 apply with regard to the delivery up of a certificate that has been
cancelled or suspended by the tribunal except that each reference to “the
person holding the inquiry” shall be read as a reference to “the
tribunal”.
(5) If a question of the
cancellation or suspension of a certificate of an officer or seaman is likely
to arise the tribunal shall comprise a chairman and two or more assessors.
(6) If the tribunal orders
the cancellation or suspension of a certificate of an officer or seaman under
this Article, the officer or seaman may appeal against the order within 28 days
to the Royal Court.
(7) Article 43(2) applies
with regard to the making of Rules of Court relating to appeals under paragraph
(6).
(8) The tribunal shall, on
the conclusion of the investigation, prepare a report on it and submit the
report to the Committee.
(9) The Committee may
exercise a power in sub-paragraphs (a) to (c) of Article 45 (restoring
certificate) if it is of the opinion that the justice of the case requires it.
(10) The Committee may by Order make
provisions for the conduct of investigations under this Article.
(11) Without prejudice to the generality
of paragraph (10), Orders made under that paragraph may provide for the matters
referred to in sub-paragraphs (a) to (d) of Article 43(1).
ARTICLE 168
Rehearings and appeals from
investigation
If
an investigation has been held under Article 167, the powers and rights set out
in Article 42 (rehearings and appeals) apply to -
(a) the Committee; and
(b) to a person -
(i) whose certificate
the tribunal has ordered be cancelled or suspended, or
(ii) whom the tribunal has
found to be at fault,
as though for references to an
inquiry under Article 39 or 41 there were substituted references to the
investigation and for references to persons holding the inquiry there were
substituted the marine accident tribunal.
ARTICLE 169
Duties of owners, masters etc. in relation to accidents
(1) If there is an
accident, other than an incident referred to in Article 165(2)(b), that
involves a Jersey ship (other than a pleasure vessel) -
(a) whereby the ship is
lost, presumed lost or abandoned, the owner, master or senior surviving officer
shall send a report of the accident to the Committee as soon as is practicable by
the quickest means available; or
(b) in the case of any
other accident, the master shall so send a report and in any case not later
than 24 hours after the ship next arrives in port.
(2) The Committee may
require the owner or master of a Jersey ship involved in an accident to provide
information or further information that it considers necessary before deciding
whether to cause -
(a) an inquiry to be held
under Article 166; or
(b) an investigation to be
carried out by a marine accident tribunal under Article 167.
(3) An owner or master
shall provide to the best of his ability and knowledge information he is
required to provide under paragraph (2).
(4) The owner and the
master of a ship shall so far as possible ensure that -
(a) a chart, log-book or
other document that might reasonably be considered relevant to an inquiry or
investigation of an accident referred to in paragraph (1) is safely kept and
that no alteration is made to it; and
(b) any equipment that
might reasonably so be considered relevant is left undisturbed,
until either -
(c) notification is
received from the Committee that an inquiry under Article 166 or an
investigation under Article 167 is not to take place; or
(d) if notification is
received that such an inquiry or investigation is to take place, the person
appointed under Article 166(1) or, as the case may be, the tribunal convened
under Article 167, indicates that it is no longer required.
(5) An owner, master or
officer commits an offence if, without reasonable excuse, he fails -
(a) to send a report under
paragraph (1);
(b) to provide information
or further information in accordance with paragraph (3);
(c) to comply with
paragraph (4),
and is liable to a fine at level 4
on the standard scale.
(6) In this Article -
“pleasure vessel” means
-
(a) a
vessel that at the time it is being used is -
(i) in
the case of a vessel wholly owned by an individual or individuals, used only
for sport or pleasure of the owner or the immediate family or friends of the owner
or, in the case of a vessel owned by a body corporate, the persons on the
vessel are employees or officers of the body corporate, or their immediate
family or friends, and
(ii) on
a voyage or excursion that is one for which the owner does not receive money
for or in connection with operating the vessel or carrying any person, other
than a contribution to the direct expenses of the operation of the vessel
incurred during the voyage or excursion; or
(b) a vessel wholly owned
by or on behalf of a members’ club formed for the purpose of sport or
pleasure that, at the time it is being used, is used only for the sport or
pleasure of members of the club or their immediate families, and for the use of
which any charges are paid into club funds and applied for the general use of
the club,
and, in the case of a vessel
referred to in either sub-paragraph (a) or (b) no other payment is made by or
on behalf of the users of the vessel, other than by the owner;
“immediate family” in
the definition of “pleasure vessel” means, in relation to an
individual, the husband or wife of the individual and a brother, sister,
ancestor or lineal descendant of the individual or the individual’s
husband or wife.
Chapter 2 - Inquiries into and
Reports on Deaths and Injuries
ARTICLE 170
Inquiries into deaths of crew
members and others
(1) If -
(a) a person dies in a
Jersey ship or in a boat or life-raft from such a ship; or
(b) the master of, or a
seaman employed in, such a ship dies in a country outside Jersey,
an inquiry into the cause of death
shall be held by a shipping master or proper officer at the next port the ship
calls after the death where there is a shipping master or proper officer, or at
another place that the Committee may direct.
(2) If it appears to the
Committee that -
(a) in consequence of an
injury sustained or a disease contracted by a person when he was master of, or
a seaman employed in, a Jersey ship, he ceased to be employed in the ship and
subsequently died; and
(b) the death occurred in a
country outside Jersey during the period of one year beginning with the day on
which he ceased to be employed in the ship,
the Committee may arrange for an
inquiry into the cause of the death to be held by a shipping master or proper
officer.
(3) If it appears to the
Committee that a person -
(a) may have died in a
Jersey ship or in a boat or life-raft from such a ship; or
(b) may have been lost from
such a ship, boat or life-raft and may have died in consequence of being so
lost,
the Committee may arrange for an
inquiry to be held by a shipping master or proper officer into whether the
person died in that way and, if the shipping master or proper officer finds
that he did, into the cause of death.
(4) The person holding the
inquiry has, for that purpose, the powers conferred on an inspector by Article
157.
(5) The person holding the
inquiry shall make a report of his findings to the Committee which shall make
the report available -
(a) if the person to whom
the report relates was employed in the ship and a person was named as next of
kin in the crew agreement or list of the crew in which the name of the person
to whom the report relates last appeared, to the person so named;
(b) in any case, to any
person requesting it who appears to the Committee to be interested.
(6) This Article does not
apply if an inquest is to be held.
ARTICLE 171
Reports of and inquiries into injuries
(1) If the master or a
member of the crew of a Jersey fishing vessel is injured during a voyage a
shipping master or proper officer may hold an inquiry into the cause and nature
of the injury.
(2) The shipping master or
proper officer has, for the purpose of the inquiry, the powers conferred on an
inspector by Article 157 and shall make a report of his findings to the
Committee.
ARTICLE 172
Transmission of particulars of certain deaths on ships
If
-
(a) an inquest is held into
the death or a post mortem examination is made of a dead body as a result of
which the Viscount is satisfied that an inquest is unnecessary; and
(b) it appears to the
Viscount that the death in question is such as is mentioned in Article
76(1)(a)(ii),
the Viscount shall send to the
Registrar particulars in respect of the deceased of a kind prescribed in an
Order made by the Committee.
PART 12
LEGAL PROCEEDINGS
ARTICLE 173
Jurisdiction in case of offences on
board ship, etc.
(1) This Article applies
where -
(a) a person being a
British citizen ordinarily resident in the Island is charged with having
committed an offence -
(i) on board a Jersey
ship on the high seas or in a foreign port or harbour, or
(ii) on board a foreign ship
to which the person does not belong; or
(b) a person is charged
with having committed an offence on board a Jersey ship on the high seas,
and
that person is found in Jersey.
(2) It also applies where a
person is charged with having committed an offence within the territorial
waters adjacent to Jersey, whether or not on board a ship.
(3) Where this Article
applies a court in Jersey has jurisdiction to deal with the offence referred to
in paragraph (1) or (2).
(4) For the purpose of
investigating and prosecuting the offence it shall be assumed that the offence
was committed in St. Helier.
(5) In paragraphs (1) and
(2) “charged with having committed an offence” includes being
accused of having committed the offence.
ARTICLE 174
Offences committed by Jersey masters
and seamen
(1) An act in relation to
property or person done in or at a place (ashore or afloat) outside Jersey by a
master or seaman who is at the time employed in a Jersey ship, that if done in
Jersey would be an offence under Jersey law -
(a) is an offence under
that law; and
(b) is to be treated, for
the purposes of jurisdiction and trial, as if it had been done in Jersey.
(2) Paragraph (1) also
applies in relation to a person who had been so employed within the period of
three months immediately before the act was done.
(3) Paragraphs (1) and (2)
apply to omissions as they apply to acts.
ARTICLE 175
Offences by officers of bodies
corporate
(1) Where an offence under
this Law committed by a body corporate is proved to have been committed with
the consent or connivance of, or to be attributable to any neglect on the part
of -
(a) a person who is a
director, manager, secretary or other similar officer of the body corporate; or
(b) any person purporting
to act in any such capacity,
the person shall also be guilty of
the offence and liable in the same manner as the body corporate to the penalty
provided for that offence.
(2) Where the affairs of a
body corporate are managed by its members, paragraph (1) shall apply in
relation to acts and defaults of a member in connection with his functions of
management as if he were a director of the body corporate.
ARTICLE 176
Secondary offenders
(1) A person who aids,
abets, counsels or procures the commission of an offence under this Law shall
also be guilty of the offence and liable in the same manner as a principal
offender to the penalty provided for that offence.
(2) Paragraph (1) does not
prejudice Article 175 or a provision in this Law that imposes liability
expressly on a master, owner or other person.
ARTICLE 177
Enforcing detention of ship
(1) If under this Law a
ship shall or may be detained, it may be detained by -
(a) a commissioned naval or
military officer;
(b) the Harbour Master;
(c) an inspector;
(d) a surveyor of ships;
(e) a customs officer; or
(f) a British
consular officer.
(2) A notice of detention
of a ship may -
(a) include a direction
that it shall remain in a particular place, or shall be moved to a particular
anchorage or berth;
(b) if it includes such a
direction, specify the circumstances (that must relate to safety or the
prevention of pollution) in which the master may move his ship from that place,
anchorage or berth.
(3) If a ship in respect of
which notice of detention has been served on the master -
(a) proceeds to sea,
otherwise than in accordance with such a notice, before it is released by a
competent authority; or
(b) fails to comply with a
direction given under paragraph (2)(a),
the master of the ship commits an
offence and is liable to a fine.
(4) If an offence is
committed under paragraph (3) -
(a) the owner of the ship;
(b) any charterer of the
ship; and
(c) a person who sends the
ship to sea,
if party or privy to the offence,
also commit the offence and are liable accordingly.
(5) If a ship proceeds to
sea in contravention of paragraph (3) and carries away without his consent
a person authorized under paragraph (1) to detain the ship who is on board
in the execution of his duty, the owner, any charterer and the master each -
(a) is liable to pay the
expenses of and incidental to the person being carried away; and
(b) commits an offence and
is liable to a fine.
(6) If under this Law a
ship -
(a) must be detained; or
(b) may be detained,
a customs officer in a case falling
within sub-paragraph (a) shall, and in a case falling within sub-paragraph (b)
may, refuse to clear the ship outwards or grant a transire to the ship.
(7) If a provision of this
Law provides that a ship may be detained until a document is produced to the
proper customs officer, the officer able to grant a clearance or transire of
the ship is, unless the context otherwise requires, that officer.
ARTICLE 178
Sums ordered to be paid leviable by distraint on the ship
(1) If a court has power to
make an order directing payment to be made of a sum of money, then, if -
(a) the person directed to pay
is the master, charterer or owner of a ship; and
(b) the money directed to
be paid is not paid in accordance with the order,
the court that made the order may
direct the Viscount to realise the amount unpaid by distraint and sale (for
which no further confirmation of the court is required) on the ship and its
equipment.
(2) The remedy made
available by this Article is in addition to any other power for compelling the
payment of money ordered to be paid.
ARTICLE 179
Written statements of persons abroad admissible
(1) If -
(a) the evidence of a
person is required in the course of proceedings before a court in Jersey; and
(b) it is proved that that
person cannot be found in Jersey,
any written statement that he may
have previously made outside Jersey in relation to the same subject matter is
admissible in evidence in those proceedings if the conditions in paragraph (2)
have been complied with.
(2) Those conditions are
that the statement was -
(a) taken on oath before a
justice or magistrate in the United Kingdom or a relevant British possession,
or a British consular officer in any other place;
(b) authenticated by the
signature of the justice, magistrate or officer; and
(c) if the proceedings are
criminal proceedings, taken in the presence of the defendant.
(3) Proof need not be given
of the signature or official character of the person appearing to have signed
the deposition.
(4) In criminal proceedings
a certificate stating that the deposition was taken in the presence of the
defendant is evidence of that fact unless the contrary is proved.
(5) This Article also
applies to proceedings before a person authorized by law or consent of the
parties to receive evidence.
(6) Nothing in this Article
affects the admissibility in evidence of statements under another enactment or
the practice of a court.
ARTICLE 180
Admissibility in evidence and inspection of certain documents
(1) The following documents
are admissible in evidence -
(a) a certificate issued
under Article 29;
(b) the official log book
of a ship kept under Article 47 and, without prejudice to Article 181(2), a
document purporting to be a copy of an entry in it and to be certified as a
true copy by the master of the ship;
(c) returns or reports
under Article 76;
(d) documents transmitted
to the Registrar under Article 190.
(2) If a document mentioned
in paragraphs (1)(b) to (d) is in the custody of the Registrar he shall make it
available for public inspection at reasonable times.
ARTICLE 181
Admissibility of documents in
evidence
(1) If a document is
declared by this Law to be admissible in evidence, the document is, on its
production from proper custody -
(a) admissible in evidence
in a court, or before a person having by law or consent of parties authority to
receive evidence; and
(b) subject to all just
exceptions, evidence of the matters stated in the document.
(2) A copy of, or extract
from, a document so made admissible in evidence is also admissible in evidence
and is evidence of the matters stated in the document if the conditions in
paragraph (3) are complied with.
(3) Those conditions are -
(a) that it is proved to be
an examined copy or extract; or
(b) it purports to be
signed and certified as a true copy or extract by the officer to whose custody
the original document was entrusted,
and the officer shall furnish the
certified copy or extract to a person who applies for it at a reasonable time
and pays for it a reasonable price as determined by the Committee.
(4) A person is entitled to
have a certified copy of a declaration or document that is made evidence by
this Law on payment of a reasonable price as determined by the Committee.
(5) An officer who has a
duty of certification under paragraph (3) in relation to a document commits
an offence if he intentionally certifies a document as being a true copy or
extract knowing that it is not a true copy or extract, and is liable to
imprisonment for 2 years and a fine.
ARTICLE 182
Inspection and admissibility in evidence of copies of
certain documents
(1) If under an enactment a
document is open to public inspection when it is in the custody of the
Registrar -
(a) there may be supplied
for public inspection a copy or other reproduction of the document instead of
the original; but
(b) the original is
nevertheless to be made available for public inspection if the copy or other
reproduction is illegible.
(2) If the Registrar
destroys a document that has been sent to him under an enactment, and keeps a
copy or other reproduction of that document, then -
(a) an enactment providing
for that document to be admissible in evidence or open to public inspection;
and
(b) in the case of a
document falling within paragraph (1), that paragraph,
apply to the copy or other
reproduction as if it were the original.
(3) For the purposes of
this Article, and Article 181(2) in its application to documents in the custody
of the Registrar, a copy is to be treated as the copy of a document
notwithstanding that it is taken from a copy or other reproduction of the
original.
ARTICLE 183
Proof etc. of exemptions
(1) If an exception,
exemption, excuse or qualification applies in relation to an offence under this
Law -
(a) it may be proved by the
defendant; but
(b) need not be specified
or negatived in a charge or summons,
and, if so specified or negatived,
is not required to be proved by the informant or complainant.
(2) This Article applies in
relation to an offence whether or not the exception, exemption, excuse or
qualification is contained in the Article creating the offence.
ARTICLE 184
Service of documents
(1) A document authorized
or required to be served on a person may be so served -
(a) by delivering it to
him;
(b) by leaving it at his
proper address; or
(c) by sending it by post
to him at his proper address.
(2) Any such document
authorized or required to be served on the master of a ship may be served -
(a) if there is a master,
by leaving it for him on board the ship with the person appearing to be in
command or charge of the ship;
(b) if there is no master -
(i) on the managing
owner of the ship, or
(ii) if there is no managing
owner, on an agent of the owner, or
(iii) if no such agent is known or
can be found, by leaving a copy of the document fixed to the mast of the ship.
(3) A document authorized
or required to be served on a person may -
(a) in the case of a body
corporate, be served on the secretary or clerk of that body;
(b) in the case of a
partnership, be served on a partner or a person having the control or
management of the partnership business.
(4) A notice or
counter-notice -
(a) authorized or required
by or under Part 3 to be served on the Committee may be served by post;
(b) authorized by Article
162 to be given to an inspector may be given by delivering it to him or by
leaving it at, or sending it by post to, his office.
(5) A document authorized
or required by or under an enactment to be served on the registered owner of a
Jersey ship is to be treated as duly served on him if served on the person, in
the circumstances, and by the method, that may be specified in the Registration
Regulations.
(6) For the purposes of
this Article, and of Article 12 of the Interpretation (Jersey)
Law 1954 (service by post) in its application to this Article, the
“proper address” of a person on whom a document is to be served is
his last known address but -
(a) in the case of a body
corporate or its secretary or clerk, it is the address of the registered or
principal office of that body;
(b) in the case of a
partnership or a person having the control or management of the partnership
business, it is the principal office of the partnership,
and for the purposes of this
paragraph the principal office of a company registered outside Jersey, or of a partnership carrying on business outside Jersey, is its principal office in Jersey.
(7) If the person to be
served with a notice has, whether under the Registration Regulations or
otherwise, specified an address in Jersey other than his proper address within
the meaning of paragraph (6) as the one at which he or someone on his behalf
will accept notices of the same description as that notice, that address is
also his proper address for the purposes of this Article and Article 12 of the
Interpretation (Jersey) Law 1954.
PART 13
SUPPLEMENTAL
ARTICLE 185
General functions of Committee
(1) The Committee has the
general superintendence of all matters relating to shipping and seamen and is
authorized to carry into execution the provisions of this Law and of all
enactments relating to shipping for the time being in force, except if
otherwise provided or so far as relating to revenue.
(2) The Committee may take
legal proceedings under this Law in the name of any of its officers.
ARTICLE 186
Functions of Committee in relation to marine pollution
(1) The Committee shall
take or co-ordinate measures to prevent, reduce, and minimise the effects of,
marine pollution.
(2) In particular the
Committee shall prepare, review and implement a plan setting out arrangements
for responding to incidents that cause or may cause marine pollution with a
view to preventing such pollution or reducing or minimising its effects.
(3) To carry out its
functions the Committee may -
(a) acquire, maintain, use
and dispose of ships, aircraft and other property; and
(b) provide services,
including research, training and advice.
(4) The Committee may make
reasonable charges for the supply of goods or services.
(5) If under paragraph (1)
the Committee agrees that another person is to take measures to prevent, reduce
or minimise the effects of marine pollution, it may agree to indemnify that
other person in respect of liabilities incurred by that person in connection
with the taking of the measures.
(6) In this Article -
“marine
pollution” means pollution caused by ships, offshore installations or
submarine pipelines affecting or likely to affect Jersey or Jersey waters;
“offshore
installation” means an installation that is maintained for underwater
exploitation or exploration to which the Mineral Working (Offshore
Installations) Act 1971 of the United Kingdom applies;
“pipeline”
has the same meaning as in Part III of the Petroleum and Submarine Pipelines
Act 1975 of the United Kingdom;
“submarine”
means in, under or over Jersey waters.
ARTICLE 187
General power to dispense
(1) The Committee may, upon
any conditions it thinks fit to impose, exempt a ship from any specified
requirement of, or prescribed under, this Law other than Chapter 2 of Part 7
(oil pollution), or dispense with the observance of any such requirement in the
case of a ship, if it is satisfied, as respects that requirement, of the
matters specified in paragraph (2).
(2) Those matters are -
(a) that the requirement
has been substantially complied with in the case of that ship or that
compliance with it is unnecessary in the circumstances; and
(b) that the action taken
or provision made as respects the subject matter of the requirement in the case
of the ship is as effective as, or more effective than, actual compliance with
the requirement.
ARTICLE 188
Registrar of Shipping
(1) There is to be an
officer known as the Registrar of Shipping who is to be appointed by, and may
be removed by, the Committee.
(2) The Registrar shall
exercise the functions conferred on him by this Law and shall keep records and
perform other duties as the Committee may direct.
(3) The Committee may
appoint persons to perform on behalf of the Registrar such of his functions,
other than those under Part 3, as the Committee or the Registrar may direct.
(4) The Committee may
remove a person so appointed.
ARTICLE 189
Shipping masters
(1) The Committee may
appoint shipping masters to exercise the functions conferred on them by this
Law.
(2) The Committee may
remove a person so appointed.
ARTICLE 190
Transmission of documents to Registrar
(1) A shipping master or a
customs officer shall, with regard to all documents that are delivered or
transmitted to, or retained by, him under this Law -
(a) take charge of them and
keep them for such time, if any, as may be necessary for the purpose of
settling any business arising at the place where the documents come into his
possession, or for another purpose;
(b) if required, produce
them for any of those purposes,
and then transmit them to the
Registrar.
(2) The Registrar shall
retain documents transmitted to him under paragraph (1) for such period as the
Committee may direct.
ARTICLE 191
Returns etc. to Committee
(1) A shipping master shall
-
(a) make and send to the
Committee any return or report on a matter relating to Jersey shipping or
seamen that it may require;
(b) when required by the
Committee to do so, produce to it any log-book or other document delivered to
him under this Law.
(2) A surveyor of ships
shall make any return to the Committee that it may require with respect to -
(a) the build, dimensions,
draught, burden, speed and room for fuel of a ship surveyed by him;
(b) the nature and
particulars of machinery and equipment of such a ship.
(3) The owner, any
charterer, master and engineer of a ship being surveyed shall each, when
required to do so, give to a surveyor all information and assistance within his
power that the surveyor requires for the purpose of a return under paragraph
(2).
(4) An owner, any
charterer, master or engineer who fails, without reasonable excuse, to comply
with a requirement made under paragraph (3) commits an offence and is liable to
a fine at level 3 on the standard scale.
ARTICLE 192
Forms
(1) The Committee -
(a) may prepare and approve
a form for a book, instrument or paper required under this Law, and may alter
such a form as it thinks fit;
(b) shall -
(i) cause such a form
to be marked with a distinguishing mark, and
(ii) before finally issuing
or making an alteration in such a form, cause public notice of the fact to be
given in a manner that the Committee thinks suitable in order to avoid
inconvenience;
(c) shall cause such a form
to be supplied -
(i) at the offices of
the Agent of the Impôts and of the Harbour Master, free of charge or at a
reasonable price fixed by the Committee,
(ii) by persons licensed by
the Committee to print and sell them, or
(iii) in both those ways.
(2) Each book, instrument
or paper made under this Law -
(a) shall be made in the
form, if any, approved by the Committee, or as near as circumstances permit,
and unless so made is not admissible in evidence in civil proceedings on the
part of the owner, any charterer, or master of a ship;
(b) is, if in a form
purporting to be the proper form and marked in accordance with paragraph
(1)(b)(i), to be treated as being in a form required by this Law unless the
contrary is proved.
(3) Paragraphs (1) and (2)
do not apply if special provision is made by this Law.
(4) A person commits an
offence if he prints, sells or uses a document purporting to be a form approved
by the Committee knowing that the document -
(a) is not the form
approved for the time being; or
(b) has not been prepared
or issued by the Committee,
and is liable to a fine at level 2
on the standard scale.
ARTICLE 193
Fees
(1) The Committee may by
Order prescribe fees to be charged in respect of -
(a) the issue or recording
under this Law of a certificate, licence or other document;
(b) the doing of anything
under this Law.
(2) In the case of fees for
the measurement of a ship’s tonnage, the fees may be prescribed as
maximum fees.
ARTICLE 194
Expenses charged on money provided
by the States
The
following expenses and other amounts shall be payable out of money provided for
the purpose by the States -
(a) the expenses incurred
by the Committee under this Law;
(b) the salaries, pensions,
gratuities and allowances of surveyors of ships, inspectors and shipping
masters;
(c) the expenses of
obtaining depositions, reports and returns respecting wrecks and casualties;
(d) sums that the Committee
may think fit to pay in respect of claims on account of the proceeds of wreck;
(e) the expenses incurred
by the Harbour Master or other person performing the duties of Receiver under
Part 9;
(f) expenses that the
Committee directs for -
(i) establishing and
maintaining proper lifeboats with the necessary crews and equipment,
(ii) affording assistance
towards the preservation of life and property in cases of shipwreck and
distress at sea, or
(iii) rewarding the preservation of
life in those cases;
(g) any other amounts that
are by virtue of this Law payable out of money provided by the States.
ARTICLE 195
Application of Acts of Parliament of the United Kingdom
The
States may by Regulations direct that any provision of an Act of Parliament of
the United Kingdom that makes provision for shipping and that amends or extends
the Merchant Shipping Act 1995, is, with any modifications, adaptations
and exceptions specified in the Regulations, to apply to Jersey and Jersey
ships as part of the law of Jersey.
ARTICLE 196
General provisions relating to the
making of subordinate legislation
(1) A power conferred by
this Law to make Regulations or Orders, or to designate or appoint a person to
perform an act or carry out a purpose includes -
(a) power to apply, with
any exceptions, adaptations and modifications specified in the Regulations or
Order, to Jersey or to Jersey ships, as part of the law of Jersey -
(i) an Order made by
Her Majesty in Council,
(ii) regulations, rules or
orders made by a Secretary of State in the United Kingdom,
under
powers vested in Her Majesty or the Secretary of State by the Merchant Shipping
Act 1995 of the United Kingdom;
(b) power to direct that,
if an instrument mentioned in sub-paragraph (a)(i) and (ii) is applied,
references to the United Kingdom, to British or United Kingdom ships, and to
the Secretary of State are, unless otherwise directed, to be construed as
references to Jersey, Jersey ships and the Committee respectively,
and any such instrument is to be
regarded as subordinate legislation made under this Law.
(2) A power conferred by
this Law to make Regulations or Orders may be exercised -
(a) in relation to -
(i) all cases to
which the power extends,
(ii) all those cases subject
to specified exemptions or exceptions,
(iii) any specified cases or
classes of case;
(b) so as to make, as
respects the cases in relation to which it is exercised -
(i) the full
provision to which the power extends or a lesser provision, whether by way of
exemption, exception or otherwise,
(ii) the same provision for
all cases in relation to which the power is exercised,
(iii) different provisions for
different cases or classes of case,
(iv) different provisions as
respects the same case or class of case for different purposes of this Law,
(v) any such provision
either unconditionally or subject to specified conditions;
(c) so as to make
transitional, incidental or supplementary provisions as appear to be necessary
or expedient.
(3) The Subordinate
Legislation (Jersey) Law 1960 applies to all Orders made under
this Law.
ARTICLE 197
Application of Law to non-Jersey ships
(1) The Committee may by
Order specify any description of non-Jersey ships and direct that a provision
of this Law or of subordinate legislation made under this Law specified in the
Order extends to non-Jersey ships of that description and to masters and seamen
employed in them.
(2) In this Article
“non-Jersey ships” means ships that are not registered in Jersey.
ARTICLE 198
Application of Law to Government ships
(1) Except as otherwise
provided by this Law, this Law does not apply to ships belonging to Her
Majesty’s navy or to Government ships.
(2) The Committee may by
Order make provision with respect to the manner in which Government ships may
be registered as Jersey ships under Part 3; and this Law, subject to any
exceptions or modifications that may be made in the Order, either generally or
as respects any special class of Government ships, then applies to Government
ships registered in accordance with the Order as if they were registered in
accordance with Part 3.
(3) In this Article
“Government ship” means a ship not forming part of Her
Majesty’s navy that -
(a) belongs to Her Majesty;
or
(b) is held by a person on
behalf of or for the benefit of the Crown.
ARTICLE 199
Application of Law to certain structures etc.
(1) The Committee may by
Order provide that a thing designed or adapted for use at sea and described in
the Order is or is not to be treated as a ship for the purposes of a specified
provision of this Law or of subordinate legislation made under it.
(2) An Order under this
Article that provides that a thing is to be treated as a ship for the purposes
of a specified provision, may provide that the provision is to have effect in
relation to the thing with specified modifications.
(3) In this Article
“specified” means specified in the Order.
ARTICLE 200
Lighthouses
The
arrangements set out in Schedule 10 apply in respect of the lighthouses, buoys
and beacon (as defined in that Schedule) in and around Jersey.
ARTICLE 201
Repeals, consequential amendments, transitional and
savings provisions
(1) The enactments set out
in Schedule 8 are repealed.
(2) A reference in another
enactment to an enactment or a provision of an enactment repealed by this Law
and, in particular, a reference to the registration of a ship or fishing vessel
under Part I of the Merchant Shipping Act 1894 or section 5 of the Merchant
Shipping Act 1983 is to be read with the necessary amendments as a
reference to, or to registration under, the corresponding provision in this
Law.
(3) Article 19(2) of the
Interpretation (Jersey) Law 1954 (effect of repeal on things
previously done, etc.) applies to an Act or statutory instrument of the United
Kingdom (or a part of any such Act or statutory instrument) applied to Jersey
by virtue of its own provision or by Order in Council as if the Act or
statutory instrument (or part) were an enactment within the meaning of Article
1(1) of that Law.
(4) The transitional and
savings provisions set out in Schedule 9 apply.
ARTICLE 202
Short title and commencement
(1) This Law may be cited as
the Shipping (Jersey) Law 2002.
(2) This Law shall come
into force on such day or days as the States may by Act appoint.
(3) Different days may be
appointed under paragraph (2) for different purposes or for different
provisions of this Law and, in particular, different days may be appointed for
the taking effect of the repeal of a particular enactment set out in Schedule 8
or of a part of such an enactment.
M.N.
DE LA HAYE
Deputy Greffier of the States.
SCHEDULE 1
(Article 19(1))
Private law provisions
for registered ships
Definitions
1. In
this Schedule -
“mortgage”
means an instrument creating a security for the repayment of a loan or for the
discharge of another obligation;
“prescribed”
means prescribed in the Registration Regulations;
“registered
mortgage” means a mortgage registered under paragraph 8(2).
General
2.-(1) Subject to any right
or power appearing from the register to be vested in another person, the
registered owner of a ship or of a share in a ship may absolutely dispose of it
in accordance with this Schedule and the Registration Regulations.
(2) Sub-paragraph (1) does
not imply that an interest arising under a contract or another interest cannot
subsist in relation to a ship or a share in a ship; and such an interest may be
enforced by or against the owner or a mortgagee of a ship in respect of his
interest in the ship or the share in a ship in the same manner as in respect of
any other movable property.
(3) The registered owner of
a ship or of a share in a ship may give an effectual receipt for money paid or
advanced by way of consideration on a disposal of the ship or the share in the
ship.
Transfers etc. of registered ships
3.-(1) A transfer of a
registered ship, or of a share in a registered ship, shall be effected by a
bill of sale satisfying the prescribed requirements, unless the transfer will
result in the ship ceasing to have a Jersey connection.
(2) If a ship or a share
has been transferred under sub-paragraph (1), the transferee shall not be registered
as owner of the ship or share unless -
(a) he has made the
prescribed application to the registrar; and
(b) the Registrar is
satisfied that the ship retains a Jersey connection and that he would not
refuse to register the ship.
(3) If an application under
sub-paragraph (2) is granted by the Registrar, the Registrar shall register the
bill of sale in the prescribed manner.
(4) Bills of sale shall be
registered in the order in which they are produced to the Registrar for the
purposes of registration.
4.-(1) If a registered
ship, or a share in a registered ship, is transmitted to a person by lawful
means other than a transfer under paragraph 3 and the ship continues to have a
Jersey connection, that person is not to be registered as owner of the ship or
share unless -
(a) he has made the
prescribed application to the Registrar; and
(b) the Registrar is
satisfied that the ship retains a Jersey connection and that he would not
refuse to register the ship.
(2) If an application under
sub-paragraph (1) is granted by the Registrar, the Registrar shall cause the
applicant’s name to be registered as owner of the ship or share.
5.-(1) If the property in a
registered ship or a share in a registered ship is transmitted to a person by
lawful means other than a transfer under paragraph 3, but as a result the ship
no longer has a Jersey connection, the Royal Court may, on application by or on
behalf of that person, order a sale of the property so transmitted and direct
that the proceeds of sale, after deducting the expenses of the sale, are to be
paid to that person or otherwise as the Court directs.
(2) The Court may require
any evidence in support of the application it thinks requisite, and may make
the order on any terms and conditions it thinks just, or may refuse to make the
order, and generally may act in the case as the justice of the case requires.
(3) An application shall be
made within the period of 28 days beginning with the date of occurrence of the
event by which the transmission took place, or within such further time (not
exceeding one year) as the Court may allow.
(4) If -
(a) an application is not
made within the time allowed by or under sub-paragraph (3); or
(b) the Court refuses an
order for sale,
the ship or share that was
transmitted is liable to forfeiture.
6.-(1) If a court, whether
under paragraph 5 or otherwise, orders the sale of a registered ship or a share
in a registered ship, the order of the court shall contain a declaration
vesting in a named person the right to transfer the ship or share.
(2) The person so named may
transfer the ship or share in the same manner and to the same extent as if he
were the registered owner of the ship or share.
(3) The Registrar shall
deal with an application relating to the transfer of the ship or share made by
the person so named as if that person were the registered owner.
7.-(1) The Royal Court may,
without prejudice to the exercise of another power, on the application of an
interested person, make an order prohibiting for a specified time any dealing
with a registered ship or a share in a registered ship.
(2) The Court may make the
order on any terms or conditions it thinks just, or may refuse to make the
order, or may discharge the order when made, with or without costs, and
generally may act in the case as the justice of the case requires.
(3) The order, when a copy
is served on the Registrar, is binding on him whether or not he was made a
party to the proceedings.
Mortgages of
registered ships
8.-(1) A registered ship,
or a share in a registered ship, may be made the subject of a mortgage.
(2) The instrument creating
a mortgage shall be in the form prescribed by or approved under the
Registration Regulations.
(3) If a mortgage executed
in accordance with sub-paragraph (2) is produced to the Registrar, he
shall register the mortgage in the prescribed manner.
(4) Mortgages shall be
registered in the order in which they are produced to the Registrar for the
purposes of registration.
Priority of registered
mortgages
9.-(1) If two or more
mortgages are registered in respect of the same ship or share, the priority of
the mortgages between themselves is, subject to sub-paragraph (2), to be
determined by the order in which the mortgages were registered and not by
reference to another matter.
(2) The Registration
Regulations may provide for the giving to the Registrar by intending mortgagees
of “priority notices” in a form prescribed by or approved under the
Regulations that, when recorded in the register, determine the priority of the
interest to which the notice relates.
Registered
mortgagee’s power of sale
10.-(1) Subject to
sub-paragraph (2), a registered mortgagee may, if the mortgage money or part of
it is due, sell the ship or share in respect of which he is registered, and
give an effectual receipt for the purchase money.
(2) If two or more
mortgages are registered in respect of the same ship or share, a subsequent
mortgagee may not, except under an order of a court of competent jurisdiction,
sell the ship or share without the concurrence of every prior mortgagee.
Protection of
registered mortgages
11. If
a ship or share is subject to a registered mortgage, then -
(a) except in so far as may
be necessary to do so to make the ship or share available as a security for the
mortgage debt, the mortgagee is not by reason of the mortgage to be treated as
owner of the ship or share; and
(b) the mortgagor is to be
treated as not having ceased to be the owner of the ship or share.
Transfer of registered mortgage
12.-(1) A registered
mortgage may be transferred by an instrument made in the form prescribed by or
approved under the Registration Regulations.
(2) If such an instrument
is produced to the Registrar, the Registrar shall register the transferee in
the prescribed manner.
Transmission of
registered mortgage by operation of law
13. If
the interest of a mortgagee in a registered mortgage is transmitted to a person
by lawful means other than by a transfer under paragraph 12, the Registrar
shall, on production of the prescribed evidence, cause the name of that person
to be entered in the register as mortgagee of the ship or share in question.
Discharge of
registered mortgage
14. If
a registered mortgage has been discharged, the Registrar shall, on production
of the mortgage deed and such evidence of the discharge of the mortgage as may
be prescribed, cause an entry to be made in the register to the effect that the
mortgage has been discharged.
SCHEDULE 2
(Article 49(9))
Load Lines
PART 1 - PRELIMINARY
Interpretation
1.-(1) In this Schedule -
“alteration”
includes deterioration;
“clearance”
includes transire;
“Convention
country” means -
(a) a country the
government of which has been declared by Her Majesty by Order in Council to
have accepted or acceded to the 1966 Convention, and has not been declared to
have denounced that Convention; or
(b) a territory to which it
has been so declared that the 1966 Convention extends, not being a territory to
which it has been so declared that that Convention has ceased to extend;
“the
1966 Convention” means the International Convention on Load Lines that
was signed in London on 5 April 1966;
“Contracting
Government” means a government referred to in paragraph (a) of the
definition of “Convention country”;
“deck-line”
means a mark referred to in paragraph 3(2)(c) of this Schedule;
“international
voyage” means, subject to sub-paragraph (2) of this paragraph, a voyage
between -
(a) a port in Jersey and a
port outside Jersey; or
(b) a port in a Convention
country other than Jersey and a port in another country or territory, whether a
Convention country or not, that is outside Jersey;
“load
line provisions” means provisions made by Order under paragraph 3;
“load
lines” means lines referred to in paragraph 3(2)(d) of this Schedule;
“material
date” in the definition of “post-1966 Convention ship” means
-
(a) in relation to a ship
whose parent country is a Convention country other than the United Kingdom, the
date as from which Her Majesty by Order in Council declares either that the
government of that country has accepted or acceded to the 1966 Convention or
that it is a territory to which that Convention extends; and
(b) in relation to any
other ship, 21 July 1968;
“non-Jersey
ship” means a ship that is not registered in Jersey;
“post-1966
Convention ship” means a ship whose keel is laid, or is at a similar
stage of construction, on or after the material date;
“pre-1966
Convention ship” means a ship that is not a post-1966 Convention ship;
“parent
country”, in relation to a ship, means the country in which the ship is
registered, or, if the ship is not registered, the country whose flag the ship
flies;
“pleasure
vessel” has the meaning given to that expression by Article 169(6);
“valid
Convention certificate” means a certificate that -
(a) was issued under
paragraph 13(2) and is for the time being in force; or
(b) having been issued as
mentioned in paragraph 13(3), is produced in circumstances in which it is
required by the load line provisions to be recognised for the purposes of this
Schedule.
(2) In determining, for the
purpose of the definition of “international voyage”, what are the
ports between which a voyage is made, no account is to be taken of a deviation
of a ship from its intended voyage that was solely due to weather or other
circumstance that neither the master nor any charterer of the ship could have
prevented or forestalled.
(3) For the purpose of the
definition of “international voyage” a colony, protectorate or
other dependency, and a territory for whose international relations a
government is responsible, is to be taken to be a separate territory.
(4) A reference in this
Schedule to the gross tonnage of a ship is to be construed as a reference to
the gross tonnage of the ship as ascertained in accordance with the Tonnage
Regulations and, if in accordance with those Regulations alternative gross
tonnages are assigned to a ship, the gross tonnage of the ship is, for the
purposes of this Schedule, to be taken to be the larger of those tonnages.
(5) For the purposes of
this Schedule, the length of a ship is to be ascertained in accordance with an
Order made by the Committee.
(6) A reference in this
Schedule to a provision of the 1966 Convention is, in relation to a time after
that provision has been amended under Article 29 of that Convention, to be
construed as a reference to that provision as so amended.
Application
2. This
Schedule applies to all ships except -
(a) ships of war;
(b) ships solely engaged in
fishing; and
(c) pleasure vessels,
and “ship” is to be construed
accordingly.
Load line provisions
3.-(1) The Committee shall,
by Order, make provisions, to be called “load line provisions” in
accordance with the following provisions of this Schedule.
(2) In making load line
provisions the Committee shall, in particular, have regard to the 1966
Convention.
(3) Load line provisions
shall make provision -
(a) for the surveying and
periodical inspection of ships;
(b) for determining
freeboards to be assigned from time to time to ships;
(c) for determining, in
relation to ships, the deck that is to be taken as freeboard deck of the ship,
and for requiring the position of that deck to be indicated on each side of the
ship by a mark of a description prescribed by the provisions;
(d) for determining, by
reference to that mark and the freeboards for the time being assigned to ships,
the positions in which each side of the ship is to be marked with lines of a
description prescribed by the provisions, indicating the maximum depths to
which the ship may be loaded in circumstances prescribed by the provisions.
(4) Load line provisions
shall contain provisions -
(a) specifying requirements
in respect of the hulls, superstructures, fittings and appliances of ships that
appear to the Committee to be relevant to the assignment of freeboards to
ships;
(b) whereby, at the time
when freeboards are assigned to a ship in accordance with the load line
provisions, such particulars relating to those requirements as may be
determined in accordance with the provisions are to be recorded in such manner
as may be so determined;
(c) for determining by
reference to those requirements and that record whether, after freeboards have
been assigned to a ship and while they continue to be so assigned, the ship is
for the purpose of this Schedule to be taken to comply, or not to comply, with
the conditions of assignment,
and those provisions shall be set
out separately in the load line provisions under the title of “provisions
as to conditions of assignment”.
(5) The load line
provisions shall also contain provisions requiring information relating to -
(a) the stability of a ship
to which freeboards are assigned; and
(b) the loading and
ballasting of such a ship,
as may be determined in accordance
with the provisions to be provided for the guidance of the master of the ship
in the manner determined in accordance with the provisions.
(6) In relation to a matter
authorized or required by this Schedule to be prescribed by the load line
provisions, those provisions may make different provision by reference to, or
to a combination of -
(a) different descriptions
of ships;
(b) different areas;
(c) different seasons of
the year; and
(d) any other different
circumstances.
PART 2 - JERSEY SHIPS
Compliance with load line provisions
4.-(1) Subject to any
exemption conferred by or under this Schedule, a Jersey ship shall not proceed
or attempt to proceed to sea unless -
(a) the ship has been
surveyed in accordance with the load line provisions;
(b) the ship is marked with
a deck-line and with load lines in accordance with those provisions;
(c) the ship complies with
the conditions of assignment; and
(d) the information
required by those provisions to be provided as mentioned in paragraph 3(5) of
this Schedule is provided for the guidance of the master of the ship in the
manner determined in accordance with the provisions.
(2) If a ship proceeds or
attempts to proceed to sea in contravention of sub-paragraph (1), the owner,
any charterer and the master of the ship each commits an offence and is liable
to a fine.
(3) A ship that proceeds or
attempts to proceed to sea without being surveyed or marked as mentioned in
sub-paragraph (1)(a) or (b) and that is in Jersey waters may be detained until
it has been so surveyed and marked.
(4) A ship mentioned in
sub-paragraph (1) that does not comply with the conditions of assignment is to
be regarded as dangerously unsafe for the purposes of Articles 58, 59 and 60.
Submersion of load
lines
5.-(1) If a Jersey ship is
marked with load lines, the ship shall not be so loaded that -
(a) if the ship is in salt
water and has no list, the appropriate load line on each side of the ship is
submerged; or
(b) in any other case, the
appropriate load line on each side of the ship would be submerged if the ship
were in salt water and had no list.
(2) If a ship is loaded in
contravention of sub-paragraph (1), the owner, any charterer and the master of
the ship each commits an offence and is liable to a fine.
(3) If -
(a) the master of a ship
takes the ship to sea;
(b) any other person,
having reason to believe that the ship is so loaded, sends or is party to
sending the ship to sea,
when it is loaded in contravention
of sub-paragraph (1), he commits an offence and, without prejudice to any fine
to which he may be liable in respect of an offence under sub-paragraph (2), he
is liable to a fine.
(4) It is a defence for a
person charged with an offence under sub-paragraph (2) to prove that the
contravention was -
(a) solely due to deviation
or delay; and
(b) the deviation or delay
was caused solely by stress of weather or other circumstances that neither the
master nor the owner nor the charterer, if any, could have prevented or
forestalled.
(5) Without prejudice to
any proceedings under this paragraph, a ship that is loaded in contravention of
sub-paragraph (1) may be detained until it ceases to be so loaded.
(6) For the purpose of the
application of this paragraph to a ship in any circumstances prescribed by the
load line provisions in accordance with paragraph 3(3)(d) of this Schedule,
“the appropriate load line” means the load line that, in accordance
with those provisions, indicates the maximum depth to which the ship may be
loaded in salt water in those circumstances.
Miscellaneous offences
in relation to marks
6. If,
in respect of a Jersey ship marked in accordance with the requirements as to
marking imposed by this Schedule -
(a) its owner, any
charterer or the master fails without reasonable excuse to keep the ship so
marked; or
(b) a person conceals,
removes, alters defaces or obliterates, or causes or permits a person under his
control to conceal, remove, alter, deface or obliterate, a mark with which the
ship is so marked, except if he does so under the authority of a person
empowered under the load line provisions to authorize him for that purpose,
each commits an offence and is
liable to a fine at level 4 on the standard scale.
Issue of load line
certificates
7.-(1) If a Jersey ship has been surveyed and marked in accordance
with the load line provisions, the appropriate certificate shall be issued to
the owner of the ship on his application.
(2) For the purpose of this
paragraph the appropriate certificate is -
(a) a certificate to be
called an “International Load Line Certificate (1966)” in the case
of -
(i) a pre-1966
Convention ship of not less than 150 tons gross tonnage, or
(ii) a post-1966 Convention
ship of not less than 24 metres in length;
(b) a certificate to be
called a “Jersey load line
certificate” in the case of any other ship.
(3) Subject to
sub-paragraph (4), a certificate required by sub-paragraph (1) shall be issued
by the Committee or a person authorized by the Committee for that purpose, and
be in the form, and be issued in the manner, prescribed by the load line
provisions.
(4) The Committee may
request a Contracting Government to issue an International Load Line Certificate
(1966) in respect of a Jersey ship falling within sub-paragraph (2)(a).
(5) The following
provisions of this Schedule have effect in relation to a certificate issued in
accordance with a request made under sub-paragraph (5) that contains a
statement that it has been issued at the request of the States of Jersey, as
they have effect in relation to an International Load Line Certificate (1966)
issued by the Committee.
Effect of load line certificate
8. If
a certificate issued under paragraph 7 and for the time being in force is
produced in respect of the ship to which the certificate relates -
(a) the ship is to be
regarded as having been surveyed in accordance with the load line provisions;
and
(b) if lines are marked on
the ship corresponding in number and description with the deck-lines and load
lines required by the load line provisions, and the positions of those lines
correspond with the positions of the deck-lines and load lines so specified in
the certificate, the ship is to be regarded as marked as required by those
provisions.
Duration, endorsement
and cancellation of load line certificates
9.-(1) The load line
provisions shall make provision for determining the period during which a
certificate issued under paragraph 7 is to remain in force, including
provision for -
(a) enabling the period for
which the certificate is originally issued to be extended, within limits, and
in circumstances, prescribed by the provisions; and
(b) cancelling the
certificate in prescribed circumstances.
(2) While the certificate
is in force in respect of a ship there shall be endorsed on it such information
relating to -
(a) periodical inspections
of the ship in accordance with the load line provisions; and
(b) any extension of the period
for which the certificate was issued,
as may be prescribed in the
provisions.
Ships not to proceed
to sea without load line certificate
10.-(1) Subject to any
exception conferred by or under this Schedule, a Jersey ship shall not proceed
or attempt to proceed to sea unless the appropriate certificate is in force in
relation to the ship.
(2) Before the ship
proceeds to sea, the master of the ship shall produce the appropriate
certificate to the customs officer from whom a clearance for the ship is
demanded; and a clearance shall not be granted and the ship may be detained
until the appropriate certificate is so produced.
(3) If a ship proceeds or
attempts to proceed to sea in contravention of this paragraph, the master of
the ship commits an offence and is liable to a fine.
(4) In this paragraph
“appropriate certificate” means the certificate so designated for
the purposes of paragraph 7.
Publication of load
line certificate and entry of particulars
in official log book
11.-(1) When a certificate
is issued in respect of a ship under paragraph 7, the owner of the ship shall
on receipt of the certificate cause it to be framed and displayed in a
conspicuous place on board the ship, and kept so framed and displayed, and
legible, while it is in force and the ship is in use.
(2) Before a Jersey ship
leaves a dock, wharf, harbour or other place to proceed to sea, the master of
the ship shall cause a notice to be displayed in a conspicuous place on board
the ship, and kept displayed and legible until the ship arrives at another
dock, wharf, harbour or place.
(3) The notice under
sub-paragraph (2) shall be in a form, and contain particulars relating to the
depth to which the ship is for the time being loaded, as may be specified in
the load line provisions.
(4) If the owner or the
master of a ship fails to comply with any requirement imposed on him by this
paragraph, he commits an offence and is liable to a fine at level 3 on the
standard scale.
Inspection of ships
12. A
ship surveyor or engineer surveyor may inspect a Jersey
ship to see that the provisions of this Schedule have been complied with in
respect of the ship.
PART 3 - NON-JERSEY SHIPS
Valid Convention
certificates
13.-(1) This paragraph
applies to a non-Jersey ship that -
(a) is registered in a
Convention country or, not being registered in such a country or elsewhere,
flies the flag of a Convention country; and
(b) is either a pre-1966
Convention country ship of not less than 150 tons gross tonnage, or a post-1966
Convention ship of not less than 24 metres in length.
(2) The Committee may, at
the request of the government of the parent country of a ship to which this
paragraph applies, issue in respect of the ship a certificate in a form as may
be prescribed by the load line provisions, if the Committee is satisfied that
it could properly issue a certificate in respect of the ship under paragraph 7
if the ship were a Jersey ship.
(3) The load line
provisions shall make appropriate provision for securing that certificates
issued as International Load Line Certificate (1966) in respect of ships to
which this paragraph applies, and so issued by governments other that the
States of Jersey, are recognised for the purposes of this Schedule in
circumstances prescribed by the provisions.
(4) Certificates issued as
mentioned in sub-paragraphs (2) and (3) are to be included among
certificates called “International Load Line Certificate (1966)”.
Compliance with load
line provisions
14.-(1) Subject to
sub-paragraph (2) and to any exception conferred by this Schedule, a non-Jersey
ship shall not proceed or attempt to proceed to sea from a port in Jersey
unless -
(a) the ship has been
surveyed in accordance with the load line provisions;
(b) the ship is marked with
a deck-line and with load lines in accordance with those provisions;
(c) the ship complies with
the conditions of assignment; and
(d) the information
required by those provisions to be provided as mentioned in paragraph 3(4) is
provided for the guidance of the master of the ship in the manner determined in
accordance with the provisions.
(2) Sub-paragraph (1) does
not apply to a ship in respect of which a valid Convention certificate is
produced.
(3) If a ship proceeds or
attempts to proceed to sea in contravention of this paragraph the owner, any
charterer and the master of the ship each commits an offence and is liable to a
fine.
(4) A ship that in
contravention of this paragraph proceeds or attempts to proceed to sea without
being surveyed and marked as mentioned in sub-paragraph (1)(a) and (b) and that
is in Jersey waters may be detained until it has been so surveyed and marked.
(5) The power of detention
conferred by sub-paragraph (4) is not exercisable in relation to a qualifying
foreign ship while the ship is exercising the right of innocent passage.
(6) A ship mentioned in
sub-paragraph (1), not being a ship in respect of which a valid Convention
certificate is produced, that does not comply with the conditions of assignment
is to be regarded as dangerously unsafe for the purposes of Articles 58, 59 and
60.
Submersion of load
lines
15.-(1) If a non-Jersey ship
is in a port in Jersey and is marked with load lines, the ship shall not be
loaded so that -
(a) if the ship is in salt
water and has no list, the appropriate load line on each side of the ship is
submerged; or
(b) in any other case, the
appropriate load line on each side of the ship would be submerged if the ship
were in salt water and had no list.
(2) Subject to
sub-paragraph (3) of this paragraph, sub-paragraphs (2), (4) and (5) of
paragraph 5 have effect with the necessary amendments for the purposes of this
paragraph.
(3) A ship to which
paragraph 13 applies shall not be detained, and proceedings shall not be
brought by virtue of sub-paragraph (2) of this paragraph, unless the ship has
been inspected by a ship surveyor or engineer surveyor under paragraph 18.
(4) In relation to a ship
in respect of which a valid Convention certificate is produced -
(a) “load line”
in sub-paragraph (1) of this paragraph means a line marked on the ship in the
position of a load line specified in that certificate;
(b) for the purposes of the
application of the relevant provisions to that ship in circumstances for which
a particular load line is specified in the certificate, “appropriate load
line” means the load line that, in accordance with the certificate,
indicates the maximum depth to which the ship may be loaded in salt water in
those circumstances.
(5) If a valid Convention
certificate is not produced in respect of a ship, then, for the purposes of the
application of the relevant provisions to that ship in circumstances prescribed
by the load line provisions in accordance with paragraph 3(2)(d) of this Schedule,
“appropriate load line” means the load line that, in accordance
with those provisions, indicates the maximum depth to which the ship may be
loaded in salt water in those circumstances.
(6) In sub-paragraphs (4)
and (5) “the relevant provisions” means -
(a) sub-paragraph (1) of
this paragraph; and
(b) the provisions of
paragraph 5 as applied by sub-paragraph (2) of this paragraph.
Jersey load line
certificates
16.-(1) If a non-Jersey ship
has been surveyed and marked in accordance with the load line provisions, then
on the application of the owner of the ship a load line certificate is to be
issued to him by the Committee or by a person authorized for the purpose by the
Committee.
(2) Subject to subparagraph
(3) of this paragraph, paragraphs 8 and 9 apply in relation to a certificate
issued under this paragraph as they apply to one issued under paragraph 7.
(3) A certificate issued
under this paragraph in respect of a ship to which paragraph 13 applies is
valid only so long as the ship is not sailing on international voyages, and
shall be cancelled by the Committee if it has reason to believe that the ship
is so sailing.
Production of
certificate to customs officer
17.-(1) Subject to any
exemption conferred by or under this Schedule, before a non-Jersey ship
proceeds to sea from a port in Jersey the master of the ship shall produce the
appropriate certificate to the customs officer from whom a clearance for the
ship is demanded; and a clearance shall not be granted, and the ship may be detained,
until the appropriate certificate is produced.
(2) In this paragraph
“appropriate certificate” means -
(a) in the case of a ship
to which paragraph 13 applies -
(i) if clearance for
the ship is demanded in respect of an international voyage, a valid Convention
certificate,
(ii) if clearance for the
ship is demanded in respect of any other voyage, either a valid Convention
certificate or a load line certificate for the time being in force in respect
of the ship;
(b) in any other case, a
load line certificate for the time being in force in respect of the ship.
Provisions as to inspection
18.-(1) Subject to this
paragraph, a ship surveyor or engineer may inspect a non-Jersey ship while the
ship is in Jersey waters.
(2) The surveyor may go on
board a ship to which paragraph 13 applies while the ship is in Jersey
waters to demand production of an International Load Line Certificate 1966 or a
Jersey load line certificate for the time being in force in relation to the
ship.
(3) A power of inspection
conferred by sub-paragraph (1) or (2) is not exercisable in relation to a
qualifying foreign ship exercising the right of innocent passage.
(4) If on such a demand a
valid Convention certificate is produced, the powers of the surveyor are limited
to seeing that -
(a) the ship is not loaded
beyond the limits allowed by the certificate;
(b) lines are marked on the
ship in the positions of the load lines specified in the certificate;
(c) material alterations
have not taken place in the hull or superstructures of the ship that affect the
position in which any of those lines ought to be marked; and
(d) the fittings and
appliances for the protection of openings, the guard rails, the freeing ports
and the means of access to the crew’s quarters have been maintained on
the ship in as effective a condition as they were when the certificate was
issued.
(5) If on an inspection
under this paragraph the ship is found to have been so materially altered in
respect of the matters referred to in sub-paragraph (4)(c) or (d) that the ship
is manifestly unfit to proceed to sea without danger to human life, it is to be
regarded as dangerously unsafe for the purposes of Articles 58, 59 and 60.
(6) If a ship is detained
under this Law as applied by sub-paragraph (5), the Harbour Master shall order
the ship to be released as soon as he is satisfied that the ship is fit to
proceed to sea without danger to human life.
PART 4 - EXEMPTIONS
Power to make
exemption Orders
19.-(1) If in the opinion of the Committee
the sheltered nature and conditions of international voyages -
(a) between near
neighbouring ports in Jersey and in a Convention country; or
(b) between near
neighbouring ports in any two or more countries or territories outside Jersey,
make it unreasonable or impractical
to apply the provisions of this Schedule to ships sailing on those voyages, and
the Committee is satisfied that the government of the other country or
territory, or, as the case may be, of each of those countries or territories,
agrees with that opinion, the Committee may by Order specifying those ports
direct that ships sailing on international voyages between those ports, or any
class of ships specified in the Order, are to be exempt from the provisions of
this Schedule.
(2) The Committee may by
Order direct that ships under 80 tons register engaged solely in the coasting
trade, or any class of those ships specified in the Order, are exempt from the
provisions of this Schedule -
(a) while not carrying
cargo; or
(b) whether carrying cargo
or not.
Further powers to
exempt ships
20.-(1) In this paragraph a
reference to exempting a ship is a reference to exempting a ship either -
(a) from all the provisions
of this Schedule and of the load line provisions; or
(b) from such of those
provisions as are specified in the instrument conferring the exemption.
(2) On the application of
the owner of a Jersey ship that is either a pre-1966 Convention ship of not
less than 150 tons gross tonnage or a post-1966 Convention ship of not less
than 24 metres in length, the Committee may exempt the ship if in its opinion
the ship embodies features of a novel kind such that, if the ship had to comply
with all the requirements of this Schedule and of the load line provisions, the
development of those features in their incorporation in ships on international
voyages might be seriously impeded.
(3) On the application of
the owner of a Jersey ship that is either -
(a) a pre-1966 Convention
ship of less than 150 tons gross tonnage or a post-1966 Convention ship of less
than 24 metres in length; or
(b) a ship not falling
within (a) that does not sail on international voyages,
the Committee may exempt the ship.
(4) Without prejudice to
sub-paragraph (3), if a Jersey ship referred to in clause (a) of that
sub-paragraph does not normally sail on international voyages but is, in
exceptional circumstances, required to undertake a single international voyage,
the Committee, on the application of the owner of the ship specifying the international
voyage in question, may exempt the ship while engaged on that voyage.
(5) An exemption under this
paragraph may be conferred subject to such conditions as the Committee thinks
fit; and if conditions are imposed the exemption does not have effect unless
those conditions are complied with.
Issue of exemption
certificates
21.-(1) If the Committee
exempts a ship under paragraph 20 it shall issue the appropriate certificate to
the owner of the ship.
(2) In this paragraph
“appropriate certificate” means -
(a) if the exemption is
conferred under paragraph 20(2) or (4), an International Load Line Exemption
Certificate; and
(b) if the exemption is
conferred under paragraph 20(3), a Jersey load line exemption certificate.
(3) A certificate issued
under this paragraph is to be in a form, and issued in the manner, prescribed
by the load line provisions.
Duration and
termination etc. of exemptions and certificates
22.-(1) The load line
provisions shall make provision for determining the period during which an
exemption conferred under paragraph 20, or a certificate issued under paragraph
21, is to remain in force, including provision -
(a) enabling the period for
which an exemption or certificate is originally conferred or issued to be extended
within limits and in circumstances prescribed by the provisions;
(b) for terminating the
exemption, and cancelling the certificate, in circumstances prescribed.
(2) While such a
certificate is in force in respect of a ship, there shall be endorsed on the
certificate information relating to -
(a) periodical inspection
of the ship in accordance with the load line provisions; and
(b) any extension of the
period for which the certificate was issued,
as may be prescribed by the
provisions.
International Load Line Exemption Certificates
23.-(1) The load line
provisions shall make provision as appears to the Committee to be appropriate
for securing that exemption certificates that, in accordance with the
Convention of 1966, are issued in respect of ships to which paragraph 13
applies, and are so issued by governments other than the States of Jersey,
shall in circumstances prescribed by the provisions have the same effect for
the purposes of this Schedule as if they were valid Convention certificates.
(2) Certificates issued as
mentioned in sub-paragraph (1) are to be included among “International
Load Line Exemption Certificates”.
PART 5 - SUBDIVISION LOAD LINES AND
DECK CARGO
Subdivision load lines
24. If
in pursuance of the Safety Regulations -
(a) a Jersey passenger ship
is marked with subdivision load lines, and the lowest of those lines in lower
than the line that, apart from this sub-paragraph, would be the appropriate
load line for the purposes of paragraph 5;
(b) a non-Jersey passenger
ship is marked with subdivision load lines, and the lowest of those lines is
lower than the line that, apart from this sub-paragraph, would be the
appropriate load line for the purposes of paragraph 15,
that paragraph has effect as if that
subdivision load line were the appropriate load line for the purposes of that
paragraph.
Deck cargo
25.-(1) The Committee shall
by Order, in this paragraph referred to as “the Order”, prescribe
requirements to be complied with if deck cargo is carried in uncovered space on
the deck of a ship.
(2) If the load line
provisions provide, either generally or in a particular case or class of case,
for assigning special freeboards to ships that are to have effect only if a
cargo of timber is so carried, then, without prejudice to the generality of
sub-paragraph (1), the Order may prescribe special requirements to be complied
with in circumstances when any such special freeboard has effect.
(3) In prescribing any such
special requirements, the Committee shall have regard in particular to Chapter
IV of the Convention of 1966.
(4) If any provisions of
the Order are contravened the master of a Jersey ship, or of any other ship
while in port in Jersey, commits an offence and is liable to a fine.
(5) If a person is charged
with an offence under sub-paragraph (4), it is a defence to prove that the
contravention was due solely to deviation or delay and that the deviation or
delay was caused solely by stress of weather or other circumstances that
neither the master nor the owner nor any charterer could have prevented or
forestalled.
(6) For the purposes of
securing compliance with the Order, a person authorized for the purpose by the
Committee may inspect a ship that is carrying cargo in an uncovered space on
its deck.
PART 6 - MISCELLANEOUS
Notice in respect of proceedings against foreign ships
26. If
a non-Jersey ship is detained under this Schedule and proceedings are taken
against the master or owner of the ship, notice shall forthwith be served,
specifying the grounds on which the ship has been detained or proceedings taken
-
(a) in the case of a
British ship, as defined in the Merchant Shipping Act 1995 of the United
Kingdom or any enactment amending or replacing that Act, on Her Majesty’s
Government;
(b) in any other case, on a
consular officer of the country to which the ship belongs who is -
(i) resident in the
United Kingdom, or
(ii) if there is no such
officer, resident in the nearest place to Jersey.
Delivery up of
certificates
27. The
Committee may require a certificate that may be issued under this Schedule and
that has expired or been cancelled to be delivered up as it directs; and an
owner or master of a ship who fails without reasonable excuse to comply with
such a requirement commits an offence and is liable to a fine at level 2 on the
standard scale.
Penalty for false
statements etc.
28. A
person who intentionally makes a false or fraudulent certificate that may be
issued under this Schedule commits an offence and is liable to imprisonment for
2 years and a fine.
Admissibility of
certificates in evidence
29. A
certificate issued under this Schedule is admissible in evidence.
SCHEDULE 3
(Article 52(2))
Orders relating to
submersible and supporting apparatus
Interpretation
1.-(1) In this Schedule
“Order” means an Order made under Article 52(2), and
“prescribed” means prescribed by the Order.
(2) Nothing in this
Schedule is to be taken as prejudicing the generality of Article 52.
Registration of
submersible apparatus
2. An
Order may provide -
(a) for all matters
relevant to the maintenance of a register of submersible apparatus;
(b) without prejudice to
sub-paragraph (a), for -
(i) the period for
which a registration or exemption is to remain effective without renewal,
(ii) the alteration or
cancellation in prescribed circumstances of registration or exemption or a
condition attached to either,
(iii) the person by whom and the
manner in which applications in connection with a registration or exemption are
to be made, and
(iv) information and evidence to
be furnished in connection with any such application;
(c) for the marking or
other means of identification of submersible apparatus;
(d) for the issue of
certificates of registration or exemption, and the custody, surrender,
production or display of the certificates or copies of them;
(e) for matters arising out
of the termination of a registration or exemption, or a condition attached to
either.
Offences
3. An
Order may -
(a) provide for the
creation of offences;
(b) afford, in respect of
any description of offence created by the Order, any defence prescribed;
(c) impose a punishment for
an offence created by the Order of imprisonment for 2 years and a fine, or any
lesser punishment prescribed.
Exemptions from Order
4.-(1) Without prejudice to
Article 196(3), the operation of an Order may be excluded in whole or in part
in relation to any particular submersible or supporting apparatus by the
direction of the Committee given in a manner that it considers appropriate; and
such a direction may be made subject to the imposition of conditions specified
by the direction.
(2) If, under this
paragraph, a person is exempted or excluded from the provisions of an Order
subject to a condition, and the condition is not observed, the exemption or
exclusion does not have effect, and accordingly proceedings may be brought in respect
of an offence created by the Order.
General
5. An
Order may provide -
(a) for its operation
outside Jersey and for its application to -
(i) any persons,
(ii) any companies, whether
or not incorporated under the law of Jersey;
(b) that in proceedings for
an offence under the Order an averment in any process that anything was done or
situated within Jersey waters is, until the contrary is proved, sufficient
evidence of the fact as stated in the averment;
(c) that proceedings for an
offence under the Order may be taken, and the offence treated for all purposes
as having been committed, in Jersey;
(d) for any provisions of
Part 11 relating to inquiries and investigations into marine accidents to
apply, with any modifications specified, in relation to accidents involving any
submersible apparatus that is not a ship as they apply to ships;
(e) that specified
provisions of any enactment, other than Article 52 and this Schedule, are,
in circumstances that may be prescribed, not to have effect in relation to any
class or description of, or to any particular, submersible or supporting
apparatus that may be prescribed.
SCHEDULE 4
(Article 116)
International
Convention on Liability and Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea
Text of Convention
The
States parties to the present Convention,
Conscious
of the dangers posed by the world-wide carriage by sea of hazardous and noxious
substances,
Convinced
of the need to ensure that adequate, prompt and effective compensation is
available to persons who suffer damage caused by incidents in connection with
the carriage by sea of such substances,
Desiring
to adopt uniform international rules and procedures for determining questions
of liability and compensation in respect of such damage,
Considering
that the economic consequences of damage caused by the carriage by sea of
hazardous and noxious substances should be shared by the shipping industry and
the cargo interests involved,
Have
agreed as follows:
CHAPTER I
General
Provisions
Definitions
Article 1
For
the purposes of this Convention:
1. “Ship”
means any seagoing vessel and seaborne craft, of any type whatsoever.
2. “Person”
means any individual or partnership or any public or private body, whether
corporate or not, including a State or any of its constituent subdivisions.
3. “Owner”
means the person or persons registered as the owner of the ship or, in the
absence of registration, the person or persons owning the ship. However, in the
case of a ship owned by a State and operated by a company which in that State
is registered as the ship’s operator, “owner” shall mean such
company.
4. “Receiver”
means either:
(a) the person who
physically receives contributing cargo discharged in the ports and terminals of
a State Party; provided that if at the time of receipt the person who
physically receives the cargo acts as an agent for another who is subject to
the jurisdiction of any State Party, then the principal shall be deemed to be
the receiver, if the agent discloses the principal to the HNS Fund; or
(b) the person in the State
Party who in accordance with the national law of that State Party is deemed to
be the receiver of contributing cargo discharged in the ports and terminals of
a State Party, provided that the total contributing cargo received according to
such national law is substantially the same as that which would have been
received under (a).
5. “Hazardous
and noxious substances” (HNS) means:
(a) any substances,
materials and articles carried on board a ship as cargo, referred to in (i) to
(vii) below:
(i) oils carried in
bulk listed in appendix I of Annex I to the International Convention for the
Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978
relating thereto, as amended;
(ii) noxious liquid
substances carried in bulk referred to in appendix II of Annex II to the
International Convention for the Prevention of Pollution from Ships, 1973, as
modified by the Protocol of 1978 relating thereto, as amended, and those
substances and mixtures provisionally categorized as falling in pollution
category A, B, C or D in accordance with regulation 3(4) of the said Annex II;
(iii) dangerous liquid substances
carried in bulk listed in chapter 17 of the International Code for the
Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, 1983,
as amended, and the dangerous products for which the preliminary suitable
conditions for the carriage have been prescribed by the Administration and port
administrations involved in accordance with paragraph 1. 1.3 of the Code;
(iv) dangerous, hazardous and
harmful substances, materials and articles in packaged form covered by the
International Maritime Dangerous Goods Code, as amended;
(v) liquefied gases as
listed in chapter 19 of the International Code for the Construction and
Equipment of Ships Carrying Liquefied Gases in Bulk, 1983, as amended, and the
products for which preliminary suitable conditions for the carriage have been
prescribed by the Administration and port administrations involved in
accordance with paragraph 1. 1.6 of the Code;
(vi) liquid substances carried in
bulk with a flashpoint not exceeding 60°C (measured by a closed cup test);
(vii) solid bulk materials possessing
chemical hazards covered by appendix B of the Code of Safe Practice for Solid
Bulk Cargoes, as amended, to the extent that these substances are also subject
to the provisions of the International Maritime Dangerous Goods Code when carried
in packaged form; and
(b) residues from the
previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v)
to (vii) above.
6. “Damage”
means:
(a) loss of life or
personal injury on board or outside the ship carrying the hazardous and noxious
substances caused by those substances;
(b) loss of or damage to
property outside the ship carrying the hazardous and noxious substances caused
by those substances;
(c) loss or damage by
contamination of the environment caused by the hazardous and noxious
substances, provided that compensation for impairment of the environment other
than loss of profit from such impairment shall be limited to costs of
reasonable measures of reinstatement actually undertaken or to be undertaken;
and
(d) the costs of preventive
measures and further loss or damage caused by preventive measures.
Where
it is not reasonably possible to separate damage caused by the hazardous and
noxious substances from that caused by other factors, all such damage shall be deemed
to be caused by the hazardous and noxious substances except if, and to the
extent that, the damage caused by other factors is damage of a type referred to
in article 4, paragraph 3.
In
this paragraph, “caused by those substances” means caused by the
hazardous or noxious nature of the substances.
7. “Preventive
measures” means any reasonable measures taken by any person after an
incident has occurred to prevent or minimize damage.
8. “Incident”
means any occurrence or series of occurrences having the same origin, which
causes damage or creates a grave and imminent threat of causing damage.
9. “Carriage
by sea” means the period from the time when the hazardous and noxious
substances enter any part of the ship’s equipment, on loading, to the
time they cease to be present in any part of the ship’s equipment, on
discharge. If no ship’s equipment is used, the period begins and ends
respectively when the hazardous and noxious substances cross the ship’s
rail.
10. “Contributing
cargo” means any hazardous and noxious substances which are carried by
sea as cargo to a port or terminal in the territory of a State Party and
discharged in that State. Cargo in transit which is transferred directly, or
through a port or terminal, from one ship to another, either wholly or in part,
in the course of carriage from the port or terminal of original loading to the
port or terminal of final destination shall be considered as contributing cargo
only in respect of receipt at the final destination.
11. The “HNS
Fund” means the International Hazardous and Noxious Substances Fund
established under article 13.
12. “Unit of
account” means the Special Drawing Right as defined by the International
Monetary Fund.
13. “State of the
ship’s registry” means in relation to a registered ship the State
of registration of the ship, and in relation to an unregistered ship the State
whose flag the ship is entitled to fly.
14. “Terminal”
means any site for the storage of hazardous and noxious substances received
from waterborne transportation, including any facility situated off-shore and
linked by pipeline or otherwise to such site.
15. “Director”
means the Director of the HNS Fund.
16. “Organization”
means the International Maritime Organization.
17. “Secretary-General”
means the Secretary-General of the Organization.
Annexes
Article 2
The
Annexes to this Convention shall constitute an integral part of this
Convention.
Scope of Application
Article 3
This
Convention shall apply exclusively:
(a) to any damage caused in
the territory, including the territorial sea, of a State Party;
(b) to damage by
contamination of the environment caused in the exclusive economic zone of a
State Party, established in accordance with international law, or, if a State
Party has not established such a zone, in an area beyond and adjacent to the
territorial sea of that State determined by that State in accordance with
international law and extending not more than 200 nautical miles from the
baselines from which the breadth of its territorial sea is measured;
(c) to damage, other than
damage by contamination of the environment, caused outside the territory,
including the territorial sea, of any State, if this damage has been caused by
a substance carried on board a ship registered in a State Party or, in the case
of an unregistered ship, on board a ship entitled to fly the flag of a State
Party; and
(d) to preventive measures,
wherever taken.
Article 4
1. This
Convention shall apply to claims, other than claims arising out of any contract
for the carriage of goods and passengers, for damage arising from the carriage
of hazardous and noxious substances by sea.
2. This
Convention shall not apply to the extent that its provisions are incompatible
with those of the applicable law relating to workers’ compensation or
social security schemes.
3. This
Convention shall not apply:
(a) to pollution damage as
defined in the International Convention on Civil Liability for Oil Pollution
Damage, 1969, as amended, whether or not compensation is payable in
respect of it under that Convention; and
(b) to damage caused by a
radioactive material of class 7 either in the International Maritime Dangerous
Goods Code, as amended, or in appendix B of the Code of Safe Practice for Solid
Bulk Cargoes, as amended.
4. Except as
provided in paragraph 5, the provisions of this Convention shall not apply to
warships, naval auxiliary or other ships owned or operated by a State and used,
for the time being, only on Government non-commercial service.
5. A State
Party may decide to apply this Convention to its warships or other vessels
described in paragraph 4, in which case it shall notify the Secretary-General
thereof specifying the terms and conditions of such application.
6. With
respect to ships owned by a State Party and used for commercial purposes, each
State shall be subject to suit in the jurisdictions set forth in article 38 and
shall waive all defences based on its status as a sovereign State.
Article 5
1. A State
may, at the time of ratification, acceptance, approval of, or accession to,
this Convention, or any time thereafter, declare that this Convention does not
apply to ships:
(a) which do not exceed 200
gross tonnage; and
(b) which carry hazardous
and noxious substances only in packaged form; and
(c) while they are engaged
on voyages between ports or facilities of that State.
2. Where two
neighbouring States agree that this Convention does not apply also to ships
which are covered by paragraph 1(a) and (b) while engaged on voyages between
ports or facilities of those States, the States concerned may declare that the
exclusion from the application of this Convention declared under paragraph 1
covers also ships referred to in this paragraph.
3. Any State
which has made the declaration under paragraph 1 or 2 may withdraw such
declaration at any time.
4. A
declaration made under paragraph 1 or 2, and the withdrawal of the declaration
made under paragraph 3, shall be deposited with the Secretary-General who
shall, after the entry into force of this Convention, communicate it to the
Director.
5. Where a
State has made a declaration under paragraph 1 or 2 and has not withdrawn
it, hazardous and noxious substances carried on board ships covered by that
paragraph shall not be considered to be contributing cargo for the purpose of
application of articles 18, 20, article 21, paragraph 5 and article 43.
6. The HNS
Fund is not liable to pay compensation for damage caused by substances carried
by a ship to which the Convention does not apply pursuant to a declaration made
under paragraph 1 or 2, to the extent that:
(a) the damage as defined
in article 1, paragraph 6(a), (b) or (c) was caused in:
(i) the territory,
including the territorial sea, of the State which has made the declaration, or
in the case of neighbouring States which have made a declaration under
paragraph 2, of either of them; or
(ii) the exclusive economic
zone, or area mentioned in article 3(b), of the State or States referred to in
(i);
(b) the damage includes
measures taken to prevent or minimize such damage.
Duties of
State Parties
Article 6
Each
State Party shall ensure that any obligation arising under this Convention is
fulfilled and shall take appropriate measures under its law including the imposing
of sanctions as it may deem necessary, with a view to the effective execution
of any such obligation.
CHAPTER II
Liability
Liability of the owner
Article 7
1. Except as
provided in paragraphs 2 and 3, the owner at the time of an incident shall be
liable for damage caused by any hazardous and noxious substances in connection
with their carriage by sea on board the ship, provided that if an incident
consists of a series of occurrences having the same origin the liability shall
attach to the owner at the time of the first of such occurrences.
2. No
liability shall attach to the owner if the owner proves that:
(a) the damage resulted
from an act of war, hostilities, civil war, insurrection or a natural
phenomenon of an exceptional, inevitable and irresistible character; or
(b) the damage was wholly
caused by an act or omission done with the intent to cause damage by a third
party; or
(c) the damage was wholly
caused by the negligence or other wrongful act of any Government or other
authority responsible for the maintenance of lights or other navigational aids
in the exercise of that function; or
(d) the failure of the
shipper or any other person to furnish information concerning the hazardous and
noxious nature of the substances shipped either
(i) has caused the
damage, wholly or partly; or
(ii) has led the owner not
to obtain insurance in accordance with article 12;
provided
that neither the owner nor its servants or agents knew or ought reasonably to
have known of the hazardous and noxious nature of the substances shipped.
3. If the
owner proves that the damage resulted wholly or partly either from an act or
omission done with intent to cause damage by the person who suffered the damage
or from the negligence of that person, the owner may be exonerated wholly or
partially from liability to such person.
4. No claim
for compensation for damage shall be made against the owner otherwise than in
accordance with this Convention.
5. Subject to
paragraph 6, no claim for compensation for damage under this Convention or
otherwise may be made against:
(a) the servants or agents
of the owner or the members of the crew;
(b) the pilot or any other
person who, without being a member of the crew, performs services for the ship;
(c) any charterer
(howsoever described, including a bareboat charterer), manager or operator of
the ship;
(d) any person performing
salvage operations with the consent of the owner or on the instructions of a
competent public authority;
(e) any person taking preventive
measures; and
(f) the servants or
agents of persons mentioned in (c), (d) and (e);
unless the damage resulted from
their personal act or omission, committed with the intent to cause such damage,
or recklessly and with knowledge that such damage would probably result.
6. Nothing in
this Convention shall prejudice any existing right of recourse of the owner
against any third party, including, but not limited to, the shipper or the
receiver of the substance causing the damage, or the persons indicated in
paragraph 5.
Incidents
involving two or more ships
Article 8
1. Whenever
damage has resulted from an incident involving two or more ships each of which
is carrying hazardous and noxious substances, each owner, unless exonerated
under article 7, shall be liable for the damage. The owners shall be jointly
and severally liable for all such damage which is not reasonably separable.
2. However,
owners shall be entitled to the limits of liability applicable to each of them
under article 9.
3. Nothing in
this article shall prejudice any right of recourse of an owner against any
other owner.
Limitation
of liability
Article 9
1. The owner
of a ship shall be entitled to limit liability under this Convention in respect
of any one incident to an aggregate amount calculated as follows:
(a) 10 million units of
account for a ship not exceeding 2,000 units of tonnage; and
(b) for a ship with a
tonnage in excess thereof, the following amount in addition to that mentioned
in (a):
for
each unit of tonnage from 2,001 to 50,000 units of tonnage, 1,500 units of
account
for
each unit of tonnage in excess of 50,000 units of tonnage, 360 units of account
provided, however, that this
aggregate amount shall not in any event exceed 100 million units of account.
2. The owner
shall not be entitled to limit liability under this Convention if it is proved
that the damage resulted from the personal act or omission of the owner,
committed with the intent to cause such damage, or recklessly and with
knowledge that such damage would probably result.
3. The owner
shall, for the purpose of benefiting from the limitation provided for in
paragraph 1, constitute a fund for the total sum representing the limit of
liability established in accordance with paragraph 1 with the court or
other competent authority of any one of the States Parties in which action is
brought under article 38 or, if no action is brought, with any court or other
competent authority in any one of the States Parties in which an action can be brought
under article 38. The fund can be constituted either by depositing the sum or
by producing a bank guarantee or other guarantee, acceptable under the law of
the State Party where the fund is constituted, and considered to be adequate by
the court or other competent authority.
4. Subject to
the provisions of article 11, the fund shall be distributed among the claimants
in proportion to the amounts of their established claims.
5. If before
the fund is distributed the owner or any of the servants or agents of the owner
or any person providing to the owner insurance or other financial security has
as a result of the incident in question, paid compensation for damage, such
person shall, up to the amount that person has paid, acquire by subrogation the
rights which the person so compensated would have enjoyed under this
Convention.
6. The right
of subrogation provided for in paragraph 5 may also be exercised by a person
other than those mentioned therein in respect of any amount of compensation for
damage which such person may have paid but only to the extent that such
subrogation is permitted under the applicable national law.
7. Where
owners or other persons establish that they may be compelled to pay at a later
date in whole or in part any such amount of compensation, with regard to which
the right of subrogation would have been enjoyed under paragraphs 5 or 6 had
the compensation been paid before the fund was distributed, the court or other
competent authority of the State where the fund has been constituted may order
that a sufficient sum shall be provisionally set aside to enable such person at
such later date to enforce the claim against the fund.
8. Claims in
respect of expenses reasonably incurred or sacrifices reasonably made by the
owner voluntarily to prevent or minimize damage shall rank equally with other
claims against the fund.
9.-(a) The
amounts mentioned in paragraph 1 shall be converted into national currency on
the basis of the value of that currency by reference to the Special Drawing
Right on the date of the constitution of the fund referred to in
paragraph 3. The value of the national currency, in terms of the Special
Drawing Right, of a State Party which is a member of the International Monetary
Fund, shall be calculated in accordance with the method of valuation applied by
the International Monetary Fund in effect on the date in question for its
operations and transactions. The value of the national currency, in terms of
the Special Drawing Right, of a State Party which is not a member of the
International Monetary Fund, shall be calculated in a manner determined by that
State.
(b) Nevertheless, a State
Party which is not a member of the International Monetary Fund and whose law
does not permit the application of the provisions of paragraph 9(a) may, at the
time of ratification, acceptance, approval of or accession to this Convention
or at any time thereafter, declare that the unit of account referred to in
paragraph 9(a) shall be equal to 15 gold francs. The gold franc referred
to in this paragraph corresponds to sixty-five-and-a-half milligrammes of gold
of millesimal fineness nine hundred. The conversion of the gold franc into the
national currency shall be made according to the law of the State concerned.
(c) The calculation
mentioned in the last sentence of paragraph 9(a) and the conversion
mentioned in paragraph 9(b) shall be made in such manner as to express in
the national currency of the State Party as far as possible the same real value
for the amounts in paragraph 1 as would result from the application of the
first two sentences of paragraph 9(a). States Parties shall communicate to the
Secretary-General the manner of calculation pursuant to paragraph 9(a), or the
result of the conversion in paragraph 9(b) as the case may be, when
depositing an instrument of ratification, acceptance, approval of or accession
to this Convention and whenever there is a change in either.
10. For the purpose of this
article the ship’s tonnage shall be the gross tonnage calculated in accordance
with the tonnage measurement regulations contained in Annex I of the
International Convention on Tonnage Measurement of Ships, 1969.
11. The insurer or other
person providing financial security shall be entitled to constitute a fund in
accordance with this article on the same conditions and having the same effect
as if it were constituted by the owner. Such a fund may be constituted even if,
under the provisions of paragraph 2, the owner is not entitled to limitation of
liability, but its constitution shall in that case not prejudice the rights of
any claimant against the owner.
Article 10
1. Where the
owner, after an incident, has constituted a fund in accordance with article 9
and is entitled to limit liability:
(a) no person having a claim
for damage arising out of that incident shall be entitled to exercise any right
against any other assets of the owner in respect of such claim; and
(b) the court or other
competent authority of any State Party shall order the release of any ship or other
property belonging to the owner which has been arrested in respect of a claim
for damage arising out of that incident, and shall similarly release any bail
or other security furnished to avoid such arrest.
2. The
foregoing shall, however, only apply if the claimant has access to the court
administering the fund and the fund is actually available in respect of the
claim.
Death and
injury
Article 11
Claims
in respect of death or personal injury have priority over other claims save to
the extent that the aggregate of such claims exceeds two-thirds of the total
amount established in accordance with article 9, paragraph 1.
Compulsory insurance of the owner
Article 12
1. The owner
of a ship registered in a State Party and actually carrying hazardous and
noxious substances shall be required to maintain insurance or other financial
security, such as the guarantee of a bank or similar financial institution, in
the sums fixed by applying the limits of liability prescribed in article 9,
paragraph 1, to cover liability for damage under this Convention.
2. A
compulsory insurance certificate attesting that insurance or other financial
security is in force in accordance with the provisions of this Convention shall
be issued to each ship after the appropriate authority of a State Party has
determined that the requirements of paragraph 1 have been complied with. With
respect to a ship registered in a State Party such compulsory insurance
certificate shall be issued or certified by the appropriate authority of the
State of the ship’s registry; with respect to a ship not registered in a
State Party it may be issued or certified by the appropriate authority of any
State Party. This compulsory insurance certificate shall be in the form of the
model set out in Annex I and shall contain the following particulars:
(a) name of the ship,
distinctive number or letters and port of registry;
(b) name and principal
place of business of the owner;
(c) IMO ship identification
number;
(d) type and duration of
security;
(e) name and principal
place of business of insurer or other person giving security and, where
appropriate, place of business where the insurance or security is established;
and
(f) period of
validity of certificate, which shall not be longer than the period of validity
of the insurance or other security.
3. The
compulsory insurance certificate shall be in the official language or languages
of the issuing State. If the language used is neither English, nor French nor
Spanish, the text shall include a translation into one of these languages.
4. The
compulsory insurance certificate shall be carried on board the ship and a copy
shall be deposited with the authorities who keep the record of the ship’s
registry or, if the ship is not registered in a State Party, with the authority
of the State issuing or certifying the certificate.
5. An
insurance or other financial security shall not satisfy the requirements of
this article if it can cease, for reasons other than the expiry of the period
of validity of the insurance or security specified in the certificate under
paragraph 2, before three months have elapsed from the date on which notice of
its termination is given to the authorities referred to in paragraph 4, unless
the compulsory insurance certificate has been issued within the said period.
The foregoing provisions shall similarly apply to any modification which
results in the insurance or security no longer satisfying the requirements of
this article.
6. The State
of the ship’s registry shall, subject to the provisions of this article,
determine the conditions of issue and validity of the compulsory insurance
certificate.
7. Compulsory
insurance certificates issued or certified under the authority of a State Party
in accordance with paragraph 2 shall be accepted by other States Parties for
the purposes of this Convention and shall be regarded by other States Parties
as having the same force as compulsory insurance certificates issued or
certified by them even if issued or certified in respect of a ship not
registered in a State Party. A State Party may at any time request consultation
with the issuing or certifying State should it believe that the insurer or
guarantor named in the compulsory insurance certificate is not financially
capable of meeting the obligations imposed by this Convention.
8. Any claim
for compensation for damage may be brought directly against the insurer or
other person providing financial security for the owner’s liability for
damage. In such case the defendant may, even if the owner is not entitled to
limitation of liability, benefit from the limit of liability prescribed in
accordance with paragraph 1. The defendant may further invoke the defences
(other than the bankruptcy or winding up of the owner) which the owner would have
been entitled to invoke. Furthermore, the defendant may invoke the defence that
the damage resulted from the wilful misconduct of the owner, but the defendant
shall not invoke any other defence which the defendant might have been entitled
to invoke in proceedings brought by the owner against the defendant. The
defendant shall in any event have the right to require the owner to be joined
in the proceedings.
9. Any sums
provided by insurance or by other financial security maintained in accordance
with paragraph 1 shall be available exclusively for the satisfaction of claims
under this Convention.
10. A State Party shall not
permit a ship under its flag to which this article applies to trade unless a
certificate has been issued under paragraph 2 or 12.
11. Subject to the
provisions of this article, each State Party shall ensure, under its national
law, that insurance or other security in the sums specified in paragraph 1 is
in force in respect of any ship, wherever registered, entering or leaving a port
in its territory, or arriving at or leaving an offshore facility in its
territorial sea.
12. If insurance or other
financial security is not maintained in respect of a ship owned by a State
Party, the provisions of this article relating thereto shall not be applicable
to such ship, but the ship shall carry a compulsory insurance certificate
issued by the appropriate authorities of the State of the ship’s registry
stating that the ship is owned by that State and that the ship’s
liability is covered within the limit prescribed in accordance with paragraph
1. Such a compulsory insurance certificate shall follow as closely as possible
the model prescribed by paragraph 2.
CHAPTER III
Compensation by the International Hazardous
and Noxious Substances Fund (HNS Fund)
Establishment of the HNS Fund
Article 13
1. The
International Hazardous and Noxious Substances Fund (HNS Fund) is hereby
established with the following aims:
(a) to provide compensation
for damage in connection with the carriage of hazardous and noxious substances
by sea, to the extent that the protection afforded by chapter II is inadequate
or not available; and
(b) to give effect to the
related tasks set out in article 15.
2. The HNS
Fund shall in each State Party be recognized as a legal person capable under
the laws of that State of assuming rights and obligations and of being a party
in legal proceedings before the courts of that State. Each State Party shall
recognize the Director as the legal representative of the HNS Fund.
Compensation
Article 14
1. For the
purpose of fulfilling its function under article 13, paragraph 1(a), the HNS
Fund shall pay compensation to any person suffering damage if such person has
been unable to obtain full and adequate compensation for the damage under the
terms of chapter II:
(a) because no liability
for the damage arises under chapter II;
(b) because the owner
liable for the damage under chapter II is financially incapable of meeting the
obligations under this Convention in full and any financial security that may
be provided under chapter II does not cover or is insufficient to satisfy the
claims for compensation for damage; an owner being treated as financially
incapable of meeting these obligations and a financial security being treated as
insufficient if the person suffering the damage has been unable to obtain full
satisfaction of the amount of compensation due under chapter II after having
taken all reasonable steps to pursue the available legal remedies;
(c) because the damage
exceeds the owner’s liability under the terms of chapter II.
2. Expenses
reasonably incurred or sacrifices reasonably made by the owner voluntarily to
prevent or minimize damage shall be treated as damage for the purposes of this
article.
3. The HNS
Fund shall incur no obligation under the preceding paragraphs if:
(a) it proves that the
damage resulted from an act of war, hostilities, civil war or insurrection or
was caused by hazardous and noxious substances which had escaped or been
discharged from a warship or other ship owned or operated by a State and used,
at the time of the incident, only on Government non-commercial service; or
(b) the claimant cannot
prove that there is a reasonable probability that the damage resulted from an
incident involving one or more ships.
4. If the HNS
Fund proves that the damage resulted wholly or partly either from an act or
omission done with intent to cause damage by the person who suffered the damage
or from the negligence of that person, the HNS Fund may be exonerated wholly or
partially from its obligation to pay compensation to such person. The HNS Fund
shall in any event be exonerated to the extent that the owner may have been
exonerated under article 7, paragraph 3. However, there shall be no such
exoneration of the HNS Fund with regard to preventive measures.
5.-(a) Except
as otherwise provided in subparagraph (b), the aggregate amount of compensation
payable by the HNS Fund under this article shall in respect of any one incident
be limited, so that the total sum of that amount and any amount of compensation
actually paid under chapter II for damage within the scope of application of
this Convention as defined in article 3 shall not exceed 250 million units of
account.
(b) The aggregate amount of
compensation payable by the HNS Fund under this article for damage resulting
from a natural phenomenon of an exceptional, inevitable and irresistible
character shall not exceed 250 million units of account.
(c) Interest accrued on a
fund constituted in accordance with article 9, paragraph 3, if any, shall not
be taken into account for the computation of the maximum compensation payable
by the HNS Fund under this article.
(d) The amounts mentioned
in this article shall be converted into national currency on the basis of the
value of that currency with reference to the Special Drawing Right on the date
of the decision of the Assembly of the HNS Fund as to the first date of payment
of compensation.
6. Where the
amount of established claims against the HNS Fund exceeds the aggregate amount
of compensation payable under paragraph 5, the amount available shall be
distributed in such a manner that the proportion between any established claim
and the amount of compensation actually recovered by the claimant under this Convention
shall be the same for all claimants. Claims in respect of death or personal
injury shall have priority over other claims, however, save to the extent that
the aggregate of such claims exceeds two-thirds of the total amount established
in accordance with paragraph 5.
7. The
Assembly of the HNS Fund may decide that, in exceptional cases, compensation in
accordance with this Convention can be paid even if the owner has not
constituted a fund in accordance with chapter II. In such cases paragraph 5(d)
applies accordingly.
Related
tasks of the HNS Fund
Article 15
For
the purpose of fulfilling its function under article 13, paragraph 1(a), the
HNS Fund shall have the following tasks:
(a) to consider claims made
against the HNS Fund;
(b) to prepare an estimate
in the form of a budget for each calendar year of:
Expenditure:
(i) costs and
expenses of the administration of the HNS Fund in the relevant year and any
deficit from operations in the preceding years; and
(ii) payments to be made by the
HNS Fund in the relevant year;
Income:
(iii) surplus funds from operations
in preceding years, including any interest;
(iv) initial contributions to be
paid in the course of the year;
(v) annual contributions if
required to balance the budget; and
(vi) any other income;
(c) to use at the request
of a State Party its good offices as necessary to assist that State to secure
promptly such personnel, material and services as are necessary to enable the
State to take measures to prevent or mitigate damage arising from an incident
in respect of which the HNS Fund may be called upon to pay compensation under
this Convention; and
(d) to provide, on
conditions laid down in the internal regulations, credit facilities with a view
to the taking of preventive measures against damage arising from a particular
incident in respect of which the HNS Fund may be called upon to pay
compensation under this Convention.
General
provisions on contributions
Article 16
1. The HNS
Fund shall have a general account, which shall be divided into sectors.
2. The HNS
Fund shall, subject to article 19, paragraphs 3 and 4, also have separate
accounts in respect of:
(a) oil as defined in
article 1, paragraph 5(a)(i) (oil account);
(b) liquefied natural gases
of light hydrocarbons with methane as the main constituent (LNG) (LNG account);
and
(c) liquefied petroleum
gases of light hydrocarbons with propane and butane as the main constituents
(LPG) (LPG account).
3. There shall
be initial contributions and, as required, annual contributions to the HNS
Fund.
4. Contributions
to the HNS Fund shall be made into the general account in accordance with
article 18, to separate accounts in accordance with article 19 and to either
the general account or separate accounts in accordance with article 20 or
article 21, paragraph 5. Subject to article 19, paragraph 6, the general
account shall be available to compensate damage caused by hazardous and noxious
substances covered by that account, and a separate account shall be available
to compensate damage caused by a hazardous and noxious substance covered by
that account.
5. For the
purposes of article 18, article 19, paragraph 1(a)(i), paragraph 1(a)(ii) and
paragraph 1(c), article 20 and article 21, paragraph 5, where the quantity
of a given type of contributing cargo received in the territory of a State
Party by any person in a calendar year when aggregated with the quantities of
the same type of cargo received in the same State Party in that year by any
associated person or persons exceeds the limit specified in the respective
subparagraphs, such a person shall pay contributions in respect of the actual
quantity received by that person notwithstanding that that quantity did not
exceed the respective limit.
6. “Associated
person” means any subsidiary or commonly controlled entity. The question
whether a person comes within this definition shall be determined by the
national law of the State concerned.
General
provisions on annual contributions
Article 17
1. Annual contributions
to the general account and to each separate account shall be levied only as
required to make payments by the account in question.
2. Annual
contributions payable pursuant to articles 18, 19 and article 21, paragraph 5
shall be determined by the Assembly and shall be calculated in accordance with
those articles on the basis of the units of contributing cargo received or, in
respect of cargoes referred to in article 19, paragraph 1(b), discharged
during the preceding calendar year or such other year as the Assembly may
decide.
3. The
Assembly shall decide the total amount of annual contributions to be levied to
the general account and to each separate account. Following that decision the
Director shall, in respect of each State Party, calculate for each person
liable to pay contributions in accordance with article 18, article 19,
paragraph 1 and article 21, paragraph 5, the amount of that person’s
annual contribution to each account, on the basis of a fixed sum for each unit
of contributing cargo reported in respect of the person during the preceding
calendar year or such other year as the Assembly may decide. For the general
account, the above mentioned fixed sum per unit of contributing cargo for each
sector shall be calculated pursuant to the regulations contained in
Annex II to this Convention. For each separate account, the fixed sum per
unit of contributing cargo referred to above shall be calculated by dividing
the total annual contribution to be levied to that account by the total quantity
of cargo contributing to that account.
4. The
Assembly may also levy annual contributions for administrative costs and decide
on the distribution of such costs between the sectors of the general account
and the separate accounts.
5. The
Assembly shall also decide on the distribution between the relevant accounts
and sectors of amounts paid in compensation for damage caused by two or more
substances which fall within different accounts or sectors, on the basis of an
estimate of the extent to which each of the substances involved contributed to
the damage.
Annual contributions to the general account
Article 18
1. Subject to
article 16, paragraph 5, annual contributions to the general account shall be
made in respect of each State Party by any person who was the receiver in that
State in the preceding calendar year, or such other year as the Assembly may
decide, of aggregate quantities exceeding 20,000 tonnes of contributing cargo,
other than substances referred to in article 19, paragraph 1, which fall within
the following sectors:
(a) solid bulk materials
referred to in article 1, paragraph 5(a)(vii);
(b) substances referred to
in paragraph 2; and
(c) other substances.
2. Annual
contributions shall also be payable to the general account by persons who would
have been liable to pay contributions to a separate account in accordance with
article 19, paragraph 1 had its operation not been postponed or suspended in
accordance with article 19. Each separate account the operation of which has
been postponed or suspended under article 19 shall form a separate sector
within the general account.
Annual
contributions to separate accounts
Article 19
1. Subject to
article 16, paragraph 5, annual contributions to separate accounts shall be
made in respect of each State Party:
(a) in the case of the oil
account,
(i) by any person who
has received in that State in the preceding calendar year, or such other year
as the Assembly may decide, total quantities exceeding 150,000 tonnes of
contributing oil as defined in article 1, paragraph 3 of the International
Convention on the Establishment of an International Fund for Compensation for
Oil Pollution Damage, 1971, as amended, and who is or would be liable to pay
contributions to the International Oil Pollution Compensation Fund in
accordance with article 10 of that Convention; and
(ii) by any person who was
the receiver in that State in the preceding calendar year, or such other year
as the Assembly may decide, of total quantities exceeding 20,000 tonnes of
other oils carried in bulk listed in appendix I of Annex I to the International
Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto, as amended;
(b) in the case of the LNG
account, by any person who in the preceding calendar year, or such other year
as the Assembly may decide, immediately prior to its discharge, held title to
an LNG cargo discharged in a port or terminal of that State;
(c) in the case of the LPG
account, by any person who in the preceding calendar year, or such other year
as the Assembly may decide, was the receiver in that State of total quantities
exceeding 20,000 tonnes of LPG.
2. Subject to
paragraph 3, the separate accounts referred to in paragraph 1 above shall
become effective at the same time as the general account.
3. The initial
operation of a separate account referred to in article 16, paragraph 2 shall be
postponed until such time as the quantities of contributing cargo in respect of
that account during the preceding calendar year, or such other year as the
Assembly may decide, exceed the following levels:
(a) 350 million tonnes of
contributing cargo in respect of the oil account;
(b) 20 million tonnes of
contributing cargo in respect of the LNG account; and
(c) 15 million tonnes of
contributing cargo in respect of the LPG account.
4. The
Assembly may suspend the operation of a separate account if:
(a) the quantities of
contributing cargo in respect of that account during the preceding calendar
year fall below the respective level specified in paragraph 3; or
(b) when six months have
elapsed from the date when the contributions were due, the total unpaid
contributions to that account exceed ten per cent of the most recent levy to
that account in accordance with paragraph 1.
5. The
Assembly may reinstate the operation of a separate account which has been
suspended in accordance with paragraph 4.
6. Any person
who would be liable to pay contributions to a separate account the operation of
which has been postponed in accordance with paragraph 3 or suspended in
accordance with paragraph 4, shall pay into the general account the
contributions due by that person in respect of that separate account. For the
purpose of calculating future contributions, the postponed or suspended
separate account shall form a new sector in the general account and shall be
subject to the HNS points system defined in Annex II.
Initial
contributions
Article 20
1. In respect
of each State Party, initial contributions shall be made of an amount which
shall for each person liable to pay contributions in accordance with article
16, paragraph 5, articles 18, 19 and article 21, paragraph 5 be calculated on
the basis of a fixed sum, equal for the general account and each separate account,
for each unit of contributing cargo received or, in the case of LNG, discharged
in that State, during the calendar year preceding that in which this Convention
enters into force for that State.
2. The fixed
sum and the units for the different sectors within the general account as well
as for each separate account referred to in paragraph 1 shall be determined by
the Assembly.
3. Initial
contributions shall be paid within three months following the date on which the
HNS Fund issues invoices in respect of each State Party to persons liable to
pay contributions in accordance with paragraph 1.
Reports
Article 21
1. Each State
Party shall ensure that any person liable to pay contributions in accordance
with articles 18, 19 or paragraph 5 of this article appears on a list to be
established and kept up to date by the Director in accordance with the
provisions of this article.
2. For the
purposes set out in paragraph 1, each State Party shall communicate to the
Director, at a time and in the manner to be prescribed in the internal
regulations of the HNS Fund, the name and address of any person who in respect
of the State is liable to pay contributions in accordance with articles 18, 19
or paragraph 5 of this article, as well as data on the relevant quantities of
contributing cargo for which such a person is liable to contribute in respect
of the preceding calendar year.
3. For the
purposes of ascertaining who are, at any given time, the persons liable to any
contributions in accordance with articles 18, 19 or paragraph 5 of this article
and of establishing, where applicable, the quantities of cargo to be taken into
account for any such person when determining the amount of the contribution,
the list shall be prima facie
evidence of the facts stated therein.
4. Where a
State Party does not fulfil its obligations to communicate to the Director the
information referred to in paragraph 2 and this results in a financial loss for
the HNS Fund, that State Party shall be liable to compensate the HNS Fund for
such loss. The Assembly shall, on the recommendation of the Director, decide
whether such compensation shall be payable by a State Party.
5. In respect
of contributing cargo carried from one port or terminal of a State Party to
another port or terminal located in the same State and discharged there, States
Parties shall have the option of submitting to the HNS Fund a report with an
annual aggregate quantity for each account covering all receipts of
contributing cargo, including any quantities in respect of which contributions
are payable pursuant to article 16, paragraph 5. The State Party shall, at
the time of reporting, either:
(a) notify the HNS Fund
that that State will pay the aggregate amount for each account in respect of
the relevant year in one lump sum to the HNS Fund; or
(b) instruct the HNS Fund
to levy the aggregate amount for each account by invoicing individual receivers
or, in the case of LNG, the title holder who discharges within the jurisdiction
of that State Party, for the amount payable by each of them. These persons
shall be identified in accordance with the national law of the State concerned.
Non-payment
of contributions
Article 22
1. The amount
of any contribution due under articles 18, 19, 20 or article 21, paragraph 5 and
which is in arrears shall bear interest at a rate which shall be determined in
accordance with the internal regulations of the HNS Fund, provided that
different rates may be fixed for different circumstances.
2. Where a
person who is liable to pay contributions in accordance with articles 18, 19,
20 or article 21, paragraph 5 does not fulfil the obligations in respect of any
such contribution or any part thereof and is in arrears, the Director shall
take all appropriate action, including court action, against such a person on
behalf of the HNS Fund with a view to the recovery of the amount due. However,
where the defaulting contributor is manifestly insolvent or the circumstances
otherwise so warrant, the Assembly may, upon recommendation of the Director,
decide that no action shall be taken or continued against the contributor.
Optional liability of States Parties for
the payment of contributions
Article 23
1. Without
prejudice to article 21, paragraph 5, a State Party may at the time when it deposits
its instrument of ratification, acceptance, approval or accession or at any
time thereafter declare that it assumes responsibility for obligations imposed
by this Convention on any person liable to pay contributions in accordance with
articles 18, 19, 20 or article 21, paragraph 5 in respect of hazardous and
noxious substances received or discharged in the territory of that State. Such
a declaration shall be made in writing and shall specify which obligations are
assumed.
2. Where a
declaration under paragraph 1 is made prior to the entry into force of this
Convention in accordance with article 46, it shall be deposited with the
Secretary-General who shall after the entry into force of this Convention
communicate the declaration to the Director.
3. A
declaration under paragraph 1 which is made after the entry into force of this
Convention shall be deposited with the Director.
4. A
declaration made in accordance with this article may be withdrawn by the
relevant State giving notice thereof in writing to the Director. Such a
notification shall take effect three months after the Director’s receipt
thereof.
5. Any State
which is bound by a declaration made under this article shall, in any
proceedings brought against it before a competent court in respect of any
obligation specified in the declaration, waive any immunity that it would
otherwise be entitled to invoke.
Organization
and administration
Article 24
The
HNS Fund shall have an Assembly and a Secretariat headed by the Director.
Assembly
Article 25
The
Assembly shall consist of all States Parties to this Convention.
Article 26
The
functions of the Assembly shall be:
(a) to elect at each
regular session its President and two Vice-Presidents who shall hold office
until the next regular session;
(b) to determine its own
rules of procedure, subject to the provisions of this Convention;
(c) to develop, apply and
keep under review internal and financial regulations relating to the aim of the
HNS Fund as described in article 13, paragraph 1(a), and the related tasks of
the HNS Fund listed in article 15;
(d) to appoint the Director
and make provisions for the appointment of such other personnel as may be
necessary and determine the terms and conditions of service of the Director and
other personnel;
(e) to adopt the annual
budget prepared in accordance with article 15(b);
(f) to consider and
approve as necessary any recommendation of the Director regarding the scope of
definition of contributing cargo;
(g) to appoint auditors and
approve the accounts of the HNS Fund;
(h) to approve settlements
of claims against the HNS Fund, to take decisions in respect of the
distribution among claimants of the available amount of compensation in
accordance with article 14 and to determine the terms and conditions according
to which provisional payments in respect of claims shall be made with a view to
ensuring that victims of damage are compensated as promptly as possible;
(i) to establish a
Committee on Claims for Compensation with at least 7 and not more than 15
members and any temporary or permanent subsidiary body it may consider to be
necessary, to define its terms of reference and to give it the authority needed
to perform the functions entrusted to it; when appointing the members of such
body, the Assembly shall endeavour to secure an equitable geographical
distribution of members and to ensure that the States Parties are appropriately
represented; the Rules of Procedure of the Assembly may be applied, mutatis mutandis, for the work of such
subsidiary body;
(j) to determine
which States not party to this Convention, which Associate Members of the
Organization and which intergovernmental and international non-governmental
organizations shall be admitted to take part, without voting rights, in
meetings of the Assembly and subsidiary bodies;
(k) to give instructions
concerning the administration of the HNS Fund to the Director and subsidiary
bodies;
(l) to supervise the
proper execution of this Convention and of its own decisions;
(m) to review every five years
the implementation of this Convention with particular reference to the
performance of the system for the calculation of levies and the contribution
mechanism for domestic trade; and
(n) to perform such other
functions as are allocated to it under this Convention or are otherwise
necessary for the proper operation of the HNS Fund.
Article 27
1. Regular
sessions of the Assembly shall take place once every calendar year upon
convocation by the Director.
2. Extraordinary
sessions of the Assembly shall be convened by the Director at the request of at
least one-third of the members of the Assembly and may be convened on the
Director’s own initiative after consultation with the President of the
Assembly. The Director shall give members at least thirty days’ notice of
such sessions.
Article 28
A
majority of the members of the Assembly shall constitute a quorum for its
meetings.
Secretariat
Article 29
1. The
Secretariat shall comprise the Director and such staff as the administration of
the HNS Fund may require.
2. The
Director shall be the legal representative of the HNS Fund.
Article 30
1. The
Director shall be the chief administrative officer of the HNS Fund. Subject to
the instructions given by the Assembly, the Director shall perform those
functions which are assigned to the Director by this Convention, the internal
regulations of the HNS Fund and the Assembly.
2. The
Director shall in particular:
(a) appoint the personnel
required for the administration of the HNS Fund;
(b) take all appropriate
measures with a view to the proper administration of the assets of the HNS
Fund;
(c) collect the
contributions due under this Convention while observing in particular the
provisions of article 22, paragraph 2;
(d) to the extent necessary
to deal with claims against the HNS Fund and to carry out the other functions
of the HNS Fund, employ the services of legal, financial and other experts;
(e) take all appropriate
measures for dealing with claims against the HNS Fund, within the limits and on
conditions to be laid down in the internal regulations of the HNS Fund,
including the final settlement of claims without the prior approval of the
Assembly where these regulations so provide;
(f) prepare and
submit to the Assembly the financial statements and budget estimates for each
calendar year;
(g) prepare, in
consultation with the President of the Assembly, and publish a report on the
activities of the HNS Fund during the previous calendar year; and
(h) prepare, collect and
circulate the documents and information which may be required for the work of
the Assembly and subsidiary bodies.
Article 31
In
the performance of their duties the Director and the staff and experts
appointed by the Director shall not seek or receive instructions from any
Government or from any authority external to the HNS Fund. They shall refrain
from any action which might adversely reflect on their position as
international officials. Each State Party on its part undertakes to respect the
exclusively international character of the responsibilities of the Director and
the staff and experts appointed by the Director, and not to seek to influence
them in the discharge of their duties.
Finances
Article 32
1. Each State
Party shall bear the salary, travel and other expenses of its own delegation to
the Assembly and of its representatives on subsidiary bodies.
2. Any other
expenses incurred in the operation of the HNS Fund shall be borne by the HNS
Fund.
Voting
Article 33
The
following provisions shall apply to voting in the Assembly:
(a) each member shall have
one vote;
(b) except as otherwise
provided in article 34, decisions of the Assembly shall be made by a majority
vote of the members present and voting;
(c) decisions where a
two-thirds majority is required shall be a two-thirds majority vote of members
present; and
(d) for the purpose of this
article the phrase “members present” means “members present
at the meeting at the time of the vote”, and the phrase “members
present and voting” means “members present and casting an
affirmative or negative vote”. Members who abstain from voting shall be
considered as not voting.
Article 34
The
following decisions of the Assembly shall require a two-thirds majority:
(a) a decision under
article 19, paragraphs 4 or 5 to suspend or reinstate the operation of a
separate account;
(b) a decision under
article 22, paragraph 2, not to take or continue action against a contributor;
(c) the appointment of the
Director under article 26(d);
(d) the establishment of
subsidiary bodies, under article 26(i), and matters relating to such
establishment; and
(e) a decision under
article 51, paragraph 1, that this Convention shall continue to be in force.
Tax
exemptions and currency regulations
Article 35
1. The HNS
Fund, its assets, income, including contributions, and other property necessary
for the exercise of its functions as described in article 13, paragraph 1,
shall enjoy in all States Parties exemption from all direct taxation.
2. When the
HNS Fund makes substantial purchases of movable or immovable property, or of
services which are necessary for the exercise of its official activities in
order to achieve its aims as set out in article 13, paragraph 1, the cost of
which include indirect taxes or sales taxes, the Governments of the States
Parties shall take, whenever possible, appropriate measures for the remission
or refund of the amount of such duties and taxes. Goods thus acquired shall not
be sold against payment or given away free of charge unless it is done
according to conditions approved by the Government of the State having granted
or supported the remission or refund.
3. No
exemption shall be accorded in the case of duties, taxes or dues which merely
constitute payment for public utility services.
4. The HNS
Fund shall enjoy exemption from all customs duties, taxes and other related
taxes on articles imported or exported by it or on its behalf for its official
use. Articles thus imported shall not be transferred either for consideration
or gratis on the territory of the country into which they have been imported
except on conditions agreed by the Government of that country.
5. Persons
contributing to the HNS Fund as well as victims and owners receiving compensation
from the HNS Fund shall be subject to the fiscal legislation of the State where
they are taxable, no special exemption or other benefit being conferred on them
in this respect.
6. Notwithstanding
existing or future regulations concerning currency or transfers, States Parties
shall authorize the transfer and payment of any contribution to the HNS Fund
and of any compensation paid by the HNS Fund without any restriction.
Confidentiality of information
Article 36
Information
relating to individual contributors supplied for the purpose of this Convention
shall not be divulged outside the HNS Fund except in so far as it may be
strictly necessary to enable the HNS Fund to carry out its functions including
the bringing and defending of legal proceedings.
CHAPTER IV
Claims and Actions
Limitation of actions
Article 37
1. Rights to
compensation under chapter II shall be extinguished unless an action is brought
thereunder within three years from the date when the person suffering the
damage knew or ought reasonably to have known of the damage and of the identity
of the owner.
2. Rights to
compensation under chapter III shall be extinguished unless an action is
brought thereunder or a notification has been made pursuant to article 39,
paragraph 7, within three years from the date when the person suffering the
damage knew or ought reasonably to have known of the damage.
3. In no case,
however, shall an action be brought later than ten years from the date of the
incident which caused the damage.
4. Where the
incident consists of a series of occurrences, the ten-year period mentioned in
paragraph 3 shall run from the date of the last of such occurrences.
Jurisdiction
in respect of action against the owner
Article 38
1. Where an
incident has caused damage in the territory, including the territorial sea or
in an area referred to in article 3(b), of one or more States Parties, or
preventive measures have been taken to prevent or minimize damage in such
territory including the territorial sea or in such area, actions for
compensation may be brought against the owner or other person providing
financial security for the owner’s liability only in the courts of any
such States Parties.
2. Where an
incident has caused damage exclusively outside the territory, including the
territorial sea, of any State and either the conditions for application of this
Convention set out in article 3(c) have been fulfilled or preventive measures
to prevent or minimize such damage have been taken, actions for compensation may
be brought against the owner or other person providing financial security for
the owner’s liability only in the courts of:
(a) the State Party where
the ship is registered or, in the case of an unregistered ship, the State Party
whose flag the ship is entitled to fly; or
(b) the State Party where
the owner has habitual residence or where the principal place of business of
the owner is established; or
(c) the State Party where a
fund has been constituted in accordance with article 9, paragraph 3.
3. Reasonable
notice of any action taken under paragraph 1 or 2 shall be given to the
defendant.
4. Each State
Party shall ensure that its courts have jurisdiction to entertain actions for
compensation under this Convention.
5. After a
fund under article 9 has been constituted by the owner or by the insurer or
other person providing financial security in accordance with article 12, the
courts of the State in which such fund is constituted shall have exclusive
jurisdiction to determine all matters relating to the apportionment and
distribution of the fund.
Jurisdiction
in respect of action against the HNS Fund or taken by the HNS Fund
Article 39
1. Subject to
the subsequent provisions of this article, any action against the HNS Fund for
compensation under article 14 shall be brought only before a court having
jurisdiction under article 38 in respect of actions against the owner who is
liable for damage caused by the relevant incident or before a court in a State
Party which would have been competent if an owner had been liable.
2. In the
event that the ship carrying the hazardous or noxious substances which caused
the damage has not been identified, the provisions of article 38, paragraph 1,
shall apply mutatis mutandis to
actions against the HNS Fund.
3. Each State
Party shall ensure that its courts have jurisdiction to entertain such actions
against the HNS Fund as are referred to in paragraph 1.
4. Where an
action for compensation for damage has been brought before a court against the
owner or the owner’s guarantor, such court shall have exclusive
jurisdiction over any action against the HNS Fund for compensation under the
provisions of article 14 in respect of the same damage.
5. Each State
Party shall ensure that the HNS Fund shall have the right to intervene as a
party to any legal proceedings instituted in accordance with this Convention
before a competent court of that State against the owner or the owner’s
guarantor.
6. Except as
otherwise provided in paragraph 7, the HNS Fund shall not be bound by any
judgement or decision in proceedings to which it has not been a party or by any
settlement to which it is not a party.
7. Without
prejudice to the provisions of paragraph 5, where an action under this
Convention for compensation for damage has been brought against an owner or the
owner’s guarantor before a competent court in a State Party, each party
to the proceedings shall be entitled under the national law of that State to
notify the HNS Fund of the proceedings. Where such notification has been made
in accordance with the formalities required by the law of the court seized and
in such time and in such a manner that the HNS Fund has in fact been in a
position effectively to intervene as a party to the proceedings, any judgement
rendered by the court in such proceedings shall, after it has become final and
enforceable in the State where the judgement was given, become binding upon the
HNS Fund in the sense that the facts and findings in that judgement may not be
disputed by the HNS Fund even if the HNS Fund has not actually intervened in
the proceedings.
Recognition
and enforcement
Article 40
1. Any
judgement given by a court with jurisdiction in accordance with article 38,
which is enforceable in the State of origin where it is no longer subject to
ordinary forms of review, shall be recognized in any State Party, except:
(a) where the judgement was
obtained by fraud; or
(b) where the defendant was
not given reasonable notice and a fair opportunity to present the case.
2. A judgement
recognized under paragraph 1 shall be enforceable in each State Party as soon
as the formalities required in that State have been complied with. The
formalities shall not permit the merits of the case to be re-opened.
3. Subject to
any decision concerning the distribution referred to in article 14, paragraph
6, any judgement given against the HNS Fund by a court having jurisdiction in
accordance with article 39, paragraphs 1 and 3 shall, when it has become
enforceable in the State of origin and is in that State no longer subject to
ordinary forms of review, be recognized and enforceable in each State Party.
Subrogation and recourse
Article 41
1. The HNS
Fund shall, in respect of any amount of compensation for damage paid by the HNS
Fund in accordance with article 14, paragraph 1, acquire by subrogation the
rights that the person so compensated may enjoy against the owner or the
owner’s guarantor.
2. Nothing in
this Convention shall prejudice any rights of recourse or subrogation of the
HNS Fund against any person, including persons referred to in article 7,
paragraph 2(d), other than those referred to in the previous paragraph, in so
far as they can limit their liability. In any event the right of the HNS Fund
to subrogation against such persons shall not be less favourable than that of
an insurer of the person to whom compensation has been paid.
3. Without
prejudice to any other rights of subrogation or recourse against the HNS Fund
which may exist, a State Party or agency thereof which has paid compensation
for damage in accordance with provisions of national law shall acquire by
subrogation the rights which the person so compensated would have enjoyed under
this Convention.
Supersession clause
Article 42
This
Convention shall supersede any convention in force or open for signature,
ratification or accession at the date on which this Convention is opened for
signature, but only to the extent that such convention would be in conflict
with it; however, nothing in this article shall affect the obligations of
States Parties to States not party to this Convention arising under such
convention.
CHAPTER V
Transitional Provisions
Information on contributing cargo
Article 43
When
depositing an instrument referred to in article 45, paragraph 3, and annually
thereafter until this Convention enters into force for a State, that State
shall submit to the Secretary-General data on the relevant quantities of
contributing cargo received or, in the case of LNG, discharged in that State
during the preceding calendar year in respect of the general account and each
separate account.
First
session of the Assembly
Article 44
The
Secretary-General shall convene the first session of the Assembly. This session
shall take place as soon as possible after the entry into force of this
Convention and, in any case, not more than thirty days after such entry into
force.
CHAPTER VI
Final
Clauses
Signature,
ratification, acceptance, approval and accession
Article 45
1. This
Convention shall be open for signature at the Headquarters of the Organization
from 1 October 1996 to 30 September 1997 and shall thereafter remain
open for accession.
2. States may
express their consent to be bound by this Convention by:
(a) signature without
reservation as to ratification, acceptance or approval; or
(b) signature subject to
ratification, acceptance or approval, followed by ratification, acceptance or
approval; or
(c) accession.
3. Ratification,
acceptance, approval or accession shall be effected by the deposit of an instrument
to that effect with the Secretary-General.
Entry into force
Article 46
1. This
Convention shall enter into force eighteen months after the date on which the
following conditions are fulfilled:
(a) at least twelve States,
including four States each with not less than 2 million units of gross tonnage,
have expressed their consent to be bound by it, and
(b) the Secretary-General
has received information in accordance with article 43 that those persons in
such States who would be liable to contribute pursuant to article 18,
paragraphs 1(a) and (c) have received during the preceding calendar year a
total quantity of at least 40 million tonnes of cargo contributing to the
general account.
2. For a State
which expresses its consent to be bound by this Convention after the conditions
for entry into force have been met, such consent shall take effect three months
after the date of expression of such consent, or on the date on which this
Convention enters into force in accordance with paragraph 1, whichever is the
later.
Revision and amendment
Article 47
1. A
conference for the purpose of revising or amending this Convention may be
convened by the Organization.
2. The
Secretary-General shall convene a conference of the States Parties to this Convention
for revising or amending the Convention, at the request of six States Parties
or one-third of the States Parties, whichever is the higher figure.
3. Any consent
to be bound by this Convention expressed after the date of entry into force of
an amendment to this Convention shall be deemed to apply to the Convention as
amended.
Amendment of
limits
Article 48
1. Without
prejudice to the provisions of article 47, the special procedure in this
article shall apply solely for the purposes of amending the limits set out in
article 9, paragraph 1 and article 14, paragraph 5.
2. Upon the
request of at least one half, but in no case less than six, of the States
Parties, any proposal to amend the limits specified in article 9, paragraph 1,
and article 14, paragraph 5, shall be circulated by the Secretary-General to
all Members of the Organization and to all Contracting States.
3. Any
amendment proposed and circulated as above shall be submitted to the Legal
Committee of the Organization (the Legal Committee) for consideration at a date
at least six months after the date of its circulation.
4. All
Contracting States, whether or not Members of the Organization, shall be
entitled to participate in the proceedings of the Legal Committee for the
consideration and adoption of amendments.
5. Amendments
shall be adopted by a two-thirds majority of the Contracting States present and
voting in the Legal Committee, expanded as provided in paragraph 4, on
condition that at least one half of the Contracting States shall be present at
the time of voting.
6. When acting
on a proposal to amend the limits, the Legal Committee shall take into account
the experience of incidents and, in particular, the amount of damage resulting
therefrom, changes in the monetary values and the effect of the proposed
amendment on the cost of insurance. It shall also take into account the
relationship between the limits established in article 9, paragraph 1, and
those in article 14, paragraph 5.
7.-(a) No
amendment of the limits under this article may be considered less than five
years from the date this Convention was opened for signature nor less than five
years from the date of entry into force of a previous amendment under this
article.
(b) No limit may be
increased so as to exceed an amount which corresponds to a limit laid down in
this Convention increased by six per cent per year calculated on a compound
basis from the date on which this Convention was opened for signature.
(c) No limit may be
increased so as to exceed an amount which corresponds to a limit laid down in
this Convention multiplied by three.
8. Any
amendment adopted in accordance with paragraph 5 shall be notified by the
Organization to all Contracting States. The amendment shall be deemed to have
been accepted at the end of a period of eighteen months after the date of
notification, unless within that period no less than one-fourth of the States
which were Contracting States at the time of the adoption of the amendment have
communicated to the Secretary-General that they do not accept the amendment, in
which case the amendment is rejected and shall have no effect.
9. An
amendment deemed to have been accepted in accordance with paragraph 8 shall
enter into force eighteen months after its acceptance.
10. All Contracting States
shall be bound by the amendment, unless they denounce this Convention in
accordance with article 49, paragraphs 1 and 2, at least six months before the
amendment enters into force. Such denunciation shall take effect when the amendment
enters into force.
11. When an amendment has
been adopted but the eighteen month period for its acceptance has not yet
expired, a State which becomes a Contracting State during that period shall be
bound by the amendment if it enters into force. A State which becomes a
Contracting State after that period shall be bound by an amendment which has
been accepted in accordance with paragraph 8. In the cases referred to in this
paragraph, a State becomes bound by an amendment when that amendment enters into
force, or when this Convention enters into force for that State, if later.
Denunciation
Article 49
1. This
Convention may be denounced by any State Party at any time after the date on
which it enters into force for that State Party.
2. Denunciation
shall be effected by the deposit of an instrument of denunciation with the
Secretary-General.
3. Denunciation
shall take effect twelve months, or such longer period as may be specified in
the instrument of denunciation, after its deposit with the Secretary-General.
4. Notwithstanding
a denunciation by a State Party pursuant to this article, any provisions of
this Convention relating to obligations to make contributions under articles
18, 19 or article 21, paragraph 5 in respect of such payments of compensation
as the Assembly may decide relating to an incident which occurs before the
denunciation takes effect shall continue to apply.
Extraordinary sessions of the Assembly
Article 50
1. Any State
Party may, within ninety days after the deposit of an instrument of
denunciation the result of which it considers will significantly increase the
level of contributions from the remaining States Parties, request the Director
to convene an extraordinary session of the Assembly. The Director shall convene
the Assembly to meet not less than sixty days after receipt of the request.
2. The
Director may take the initiative to convene an extraordinary session of the
Assembly to meet within sixty days after the deposit of any instrument of
denunciation, if the Director considers that such denunciation will result in a
significant increase in the level of contributions from the remaining States
Parties.
3. If the
Assembly, at an extraordinary session, convened in accordance with paragraph 1
or 2 decides that the denunciation will result in a significant increase in the
level of contributions from the remaining States Parties, any such State may,
not later than one hundred and twenty days before the date on which the
denunciation takes effect, denounce this Convention with effect from the same
date.
Cessation
Article 51
1. This
Convention shall cease to be in force:
(a) on the date when the
number of States Parties falls below 6; or
(b) twelve months after the
date on which data concerning a previous calendar year were to be communicated
to the Director in accordance with article 21, if the data shows that the total
quantity of contributing cargo to the general account in accordance with
article 18, paragraphs 1(a) and (c) received in the States Parties in that
preceding calendar year was less than 30 million tonnes.
Notwithstanding (b), if the total
quantity of contributing cargo to the general account in accordance with
article 18, paragraphs 1(a) and (c) received in the States Parties in the
preceding calendar year was less than 30 million tonnes but more than 25
million tonnes, the Assembly may, if it considers that this was due to
exceptional circumstances and is not likely to be repeated, decide before the
expiry of the above-mentioned twelve month period that the Convention shall
continue to be in force. The Assembly may not, however, take such a decision in
more than two subsequent years.
2. States
which are bound by this Convention on the day before the date it ceases to be
in force shall enable the HNS Fund to exercise its functions as described under
article 52 and shall, for that purpose only, remain bound by this Convention.
Winding up
of the HNS Fund
Article 52
1. If this
Convention ceases to be in force, the HNS Fund shall nevertheless:
(a) meet its obligations in
respect of any incident occurring before this Convention ceased to be in force;
and
(b) be entitled to exercise
its rights to contributions to the extent that these contributions are
necessary to meet the obligations under (a), including expenses for the
administration of the HNS Fund necessary for this purpose.
2. The
Assembly shall take all appropriate measures to complete the winding up of the
HNS Fund including the distribution in an equitable manner of any remaining
assets among those persons who have contributed to the HNS Fund.
3. For the
purposes of this article the HNS Fund shall remain a legal person.
Depositary
Article 53
1. This
Convention and any amendment adopted under article 48 shall be deposited
with the Secretary-General.
2. The
Secretary-General shall:
(a) inform all States which
have signed this Convention or acceded thereto, and all Members of the
Organization, of:
(i) each new
signature or deposit of an instrument of ratification, acceptance, approval or
accession together with the date thereof;
(ii) the date of entry into
force of this Convention;
(iii) any proposal to amend the
limits on the amounts of compensation which has been made in accordance with
article 48, paragraph 2;
(iv) any amendment which has been
adopted in accordance with article 48, paragraph 5;
(v) any amendment deemed to
have been accepted under article 48, paragraph 8, together with the date on
which that amendment shall enter into force in accordance with paragraphs 9 and
10 of that article;
(vi) the deposit of any instrument
of denunciation of this Convention together with the date on which it is
received and the date on which the denunciation takes effect; and
(vii) any communication called for by any
article in this Convention; and
(b) transmit certified true
copies of this Convention to all States which have signed this Convention or
acceded thereto.
3. As soon as
this Convention enters into force, a certified true copy thereof shall be
transmitted by the depositary to the Secretary-General of the United Nations
for registration and publication in accordance with Article 102 of the Charter
of the United Nations.
Languages
Article 54
This
Convention is established in a single original in the Arabic, Chinese, English,
French, Russian and Spanish languages, each text being equally authentic.
SCHEDULE 5
(Article 118)
Convention Relating to the Carriage
of Passengers and their Luggage by Sea
PART 1
Text of Convention
ARTICLE 1
Definitions
In
this Convention the following expressions have the meaning here assigned to
them:
1.-(a) “carrier”
means a person by or on behalf of whom a contract of carriage has been
concluded, whether the carriage is actual performed by him or by a performing carrier;
(b) “performing
carrier” means a person other than the carrier, being the owner,
charterer or operator of a ship, who actually performs the whole or a part of
the carriage;
2. “contract
of carriage” means a contract made by or on behalf of a carrier for the
carriage by sea of a passenger or of a passenger and his luggage, as the case
may be;
3. “ship”
means only a seagoing vessel, excluding an air-cushion vehicle;
4. “passenger”
means any person carried in a ship,
(a) under a contract of
carriage, or
(b) who, with the consent
of the carrier, is accompanying a vehicle or live animals which are covered by
a contract for the carriage of goods not governed by this Convention;
5. “luggage”
means any article or vehicle carried by the carrier under a contract of
carriage, excluding:
(a) articles and vehicles
carried under a charter party, bill of lading or other contract primarily
concerned with the carriage of goods, and
(b) live animals;
6. “cabin
luggage” means luggage which the passenger has in his cabin or is
otherwise in his possession, custody or control. Except for the application of
paragraph 8 of this Article and Article 8, cabin luggage includes luggage which
the passenger has in or on his vehicle.
7. “loss
of or damage to luggage” includes pecuniary loss resulting from the
luggage not having been re-delivered to the passenger within a reasonable time
after the arrival of the ship on which the luggage has been or should have been
carried, but does not include delays resulting from labour disputes;
8. “carriage”
covers the following periods:
(a) with regard to the
passenger and his cabin luggage, the period during which the passenger and/or
his cabin luggage are on board the ship or in the course of embarkation or disembarkation,
and the period during which the passenger and his cabin luggage are transported
by water from land to the ship or vice versa, if the cost of such transport is
included in the fare or if the vessel used for the purpose of auxiliary
transport has been put at the disposal of the passenger by the carrier.
However, with regard to the passenger, carriage does not include the period
during which he is in a marine terminal or station or on a quay or in or on any
other port installation;
(b) with regard to cabin
luggage, also the period during which the passenger is in a marine terminal or
station or on a quay or in or on any other port installation if that luggage
has been taken over by the carrier or his servant or agent and has not been
re-delivered to the passenger;
(c) with regard to other
luggage which is not cabin luggage, the period from the time of its taking over
by the carrier or his servant or agent onshore or on board until the time of
its re-delivery by the carrier or his servant or agent;
9. “international
carriage” means any carriage in which, according to the contract of
carriage, the place of departure and the place of destination are situated in
two different States, or in a single State if, according to the contract
carriage or the scheduled itinerary, there is an intermediate port of call in
another State.
ARTICLE 2
Application
1. This
Convention shall apply to any international carriage if:
(a) the ship is flying the
flag of or is registered in a State Party to the Convention, or
(b) the contract of
carriage has been made in a State Party to the Convention, or
(c) the place of departure
or destination, according to the contract of carriage, is in a State Party to
this Convention.
2. Notwithstanding
paragraph 1 of this Article, this Convention shall apply when the carriage is
subject, under any other international convention concerning the carriage of
passengers or luggage by another mode of transport to a civil liability regime
under the provisions of such convention, in so far those provisions have
mandatory application to carriage by sea.
ARTICLE 3
Liability of the carrier
1. The carrier
shall be liable for the damage suffered as a result of the death of or personal
injury to a passenger and the loss of or damage to luggage if the incident
which caused the damage so suffered occurred in the course of the carriage and
was due to the fault or neglect of the carrier or of his servants or agents
acting within the scope of their employment.
2. The burden
of proving that the incident which caused the loss or damage occurred in the
course of the carriage, and the extent of the loss or damage, shall lie with
the claimant.
3. Fault or
neglect of the carrier or of his servants or agents acting within the scope of
their employment shall be presumed, unless the contrary is proved, if the death
of or personal injury to the passenger or the loss of or damage to cabin
luggage arose from or in connection with the shipwreck, collision, stranding
explosion or fire, or defect in the ship. In respect of loss of or damage to
other luggage, such fault or neglect shall be presumed, unless the contrary is
proved irrespective of the nature of the incident which caused the loss or
damage. In all other cases the burden of proving fault or neglect shall lie
with the claimant.
ARTICLE 4
Performing carrier
1. If the
performance of the carriage or part thereof has been entrusted to a performing
carrier, the carrier shall nevertheless remain liable for the entire carriage
according to the provisions of this Convention. In addition, the performing
carrier shall be subject and entitled to the provisions of the Convention for
the part of the carriage performed by him.
2. The carrier
shall, in relation to the carriage performed by the performing carrier, be
liable for the acts and omissions of the performing carrier and of his servants
and agents acting within the scope of their employment.
3. Any special
agreement under which the carrier assumes obligations not imposed by this
Convention or any waiver of rights conferred by this Convention shall affect
the performing carrier only if agreed by him expressly and in writing.
4. Where and
to the extent that both the carrier and the performing carrier are liable,
their liability shall be joint and several.
5. Nothing in
this Article shall prejudice any right of recourse as between the carrier and
the performing carrier.
ARTICLE 5
Valuables
The
carrier shall not be liable for the loss of or damage to monies, negotiable
securities, gold, silverware, jewellery, ornaments, works of art, or other
valuables, except where such valuables have been deposited with the carrier for
the agreed purpose of safe-keeping in which case the carrier shall be liable up
to the limit provided for in paragraph 3 of Article 8 unless a higher limit is
agreed on in accordance with paragraph 1 of Article 10.
ARTICLE 6
Contributory fault
If
the carrier proves that the death of or personal injury to a passenger or the
loss of or damage to his luggage was caused or contributed to by the fault or
neglect of the passenger, the court seized of the case may exonerate the
carrier wholly or partly from his liability in accordance with the provisions
of the law of that court.
ARTICLE 7
Limit of liability personal injury
1. The
liability of the carrier for the death of or personal injury to a passenger
shall in no case exceed 46,666 units of account per carriage. Where in
accordance with the law of the court seized of the case damages are awarded in
the form of periodical income payments, the equivalent capital value of those
payments shall not exceed the said limit.
2. Notwithstanding
paragraph 1 of this Article, the national law of any State Party to this
Convention may fix, as far as carriers who are nationals of such State are
concerned, a higher per capita limit of liability.
ARTICLE 8
Limit of liability for loss of or
damage to luggage
1. The
liability of the carrier for the loss of or damage to cabin luggage shall no
case exceed 833 units of account per passenger, per carriage.
2. The
liability of the carrier for the loss of or damage to vehicles including all
luggage carried in or on the vehicle shall in no case exceed 3,333 units of
account vehicle per carriage.
3. The
liability of the carrier for the loss of or damage to luggage other than that
mentioned in paragraphs 1 and 2 of this Article shall in no case exceed 1,200
units of account per passenger, per carriage.
4. The carrier
and the passenger may agree that the liability of the carrier shall be subject
to a deduction not exceeding 117 units of account in the case of damage to a
vehicle and not exceeding 13 units of account per passenger in the case of loss
of or damage to other luggage, such sum to be deducted from the loss or damage.
ARTICLE 9
Unit of account and conversion
The
Unit of Account mentioned in this Convention is the special drawing right as
defined by the International Monetary Fund. The amounts mentioned Articles 7
and 8 shall be converted into the national currency of the State of the court
seized of the case on the basis of the value of that currency on the date the
judgment or the date agreed upon by the Parties.
ARTICLE 10
Supplementary provisions on limits of liability
1. The carrier
and the passenger may agree, expressly and in writing, to higher limits of
liability than those prescribed in Articles 7 and 8.
2. Interest on
damages and legal costs shall not be included in the limits of liability
prescribed in Articles 7 and 8.
ARTICLE 11
Defences and limits for carriers’ servants
If
an action is brought against a servant or agent of the carrier or of the
performing carrier arising out of damage covered by this Convention, such
servant or agent, if he proves that he acted within the scope of his
employment, shall be entitled to avail himself of the defences and limits of
liability which the carrier or the performing carrier is entitled to invoke
under this Convention.
ARTICLE 12
Aggregation of claims
1. Where the
limits of liability prescribed in Articles 7 and 8 take effect, they shall
apply to the aggregate of the amounts recoverable in all claims arising out of
the death of or personal injury to any one passenger or the loss of or damage
to his luggage.
2. In relation
to the carriage performed by a performing carrier, the aggregate of the amounts
recoverable from the carrier and the performing carrier and from their servants
and agents acting within the scope of their employment shall not exceed the
highest amount which could be awarded against either the carrier or the
performing carrier under this Convention, but none of the persons mentioned
shall be liable for a sum in excess of the limit applicable to him.
3. In any case
where a servant or agent of the carrier or of the performing carrier is
entitled under Article 11 of this Convention to avail himself of the limit of
liability prescribed in Articles 7 and 8, the aggregate of the amount
recoverable from the carrier, or the performing carrier as the case may be, an
from that servant or agent, shall not exceed those limits.
ARTICLE 13
Loss of right to limit liability
1. The carrier
shall not be entitled to the benefit of the limits of liability prescribed in
Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage
resulted from an act or omission of the carrier done with the intent to cause
such damage, or recklessly and with knowledge that such damage would probably
result.
2 The
servant or agent of the carrier or of the performing carrier shall not be
entitled to the benefit of those limits if it is proved that the damage
resulted from an act or omission of that servant or agent done with the intent
to cause such damage, or recklessly and with knowledge that such damage would
probably result.
ARTICLE 14
Basis for claims
No
action for damages for the death of or personal injury to a passenger, or for
the loss of or damage to luggage, shall be brought against a carrier or
performing carrier otherwise than in accordance with this Convention.
ARTICLE 15
Notice of loss or damage to luggage
1. The
passenger shall give written notice to the carrier or his agent:
(a) in the case of apparent
damage to luggage:
(i) for cabin
luggage, before or at the time of disembarkation of the passenger;
(ii) for all other luggage,
before or at the time of its re-delivery;
(b) in the case of damage
to luggage which is not apparent, or loss of luggage, within 15 days from the
date of disembarkation or re-delivery or from the time when such re-delivery
should have taken place.
2. If the
passenger fails to comply with this Article, he shall be presumed, unless the
contrary is proved, to have received the luggage undamaged.
3. The notice
in writing need not be given if the condition of the luggage has at the time of
its receipt been the subject of joint survey or inspection.
ARTICLE 16
Time-bar for actions
1. Any action
for damages arising out of the death of or personal injury to a passenger or
for the loss of or damage to luggage shall be time-barred after a period of two
years.
2. The
limitation period shall be calculated as follows:
(a) in the case of personal
injury, from the date of disembarkation of the passenger;
(b) in the case of death
occurring during carriage, from the date when the passenger should have
disembarked, and in the case of personal injury occurring during carriage and
resulting in the death of the passenger after disembarkation, from the date of
death, provided that this period shall not exceed three years from the date of
disembarkation;
(c) in the case of loss of
or damage to luggage, from the date of disembarkation or from the date when
disembarkation should have taken place, whichever is later.
3. The law of
the court seized of the case shall govern the grounds of suspension and
interruption of limitation periods, but in no case shall an action under this
Convention be brought after the expiration of a period of three years from the
date of disembarkation of the passenger or from the date when disembarkation
should have taken place, whichever is later.
4. Notwithstanding
paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended
by a declaration of the carrier or by agreement of the parties after the cause
of action has arisen. The declaration or agreement shall be in writing.
ARTICLE 17
Competent jurisdiction
1. An action
arising under this Convention shall, at the option of the claimant, be brought
before one of the courts listed below, provided that the court located in a
State Party to this Convention:
(a) the court of the place
of permanent residence or principal place of business of the defendant, or
(b) the court of the place
of departure or that of the destination according to the contract of carriage,
or
(c) a court of the State of
the domicile or permanent residence of the claimant, if the defendant has a
place of business and is subject to jurisdiction in that State, or
(d) a court of the State
where the contract of carriage was made, if the defendant has a place of
business and is subject to jurisdiction in the State.
2. After the
occurrence of the incident which has caused the damage, the parties may agree
that the claim for damages shall be submitted to any jurisdiction or to
arbitration.
ARTICLE 18
Invalidity of contractual provisions
Any
contractual provision concluded before the occurrence of the incident which has
caused the death of or personal injury to a passenger or the loss of or damage
to his luggage, purporting to relieve the carrier of his liability toward the
passenger or to prescribe a lower limit of liability than that fixed in this
Convention except as provided in paragraph 4 of Article 8, and any such
provision purporting to shift the burden of proof which rests on the carrier,
or having the effect of restricting the option specified in paragraph 1 of
Article 17 shall be null and void, but the nullity of that provision shall not
render void the contract of carriage which shall remain subject to the
provisions of this Convention.
ARTICLE 19
Other conventions on limitation of liability
This
Convention shall not modify the rights or duties of the carrier, the performing
carrier, and their servants or agents provided for in international conventions
relating to the limitation of liability of owners of seagoing ships.
ARTICLE 20
Nuclear damage
No
liability shall arise under this Convention for damage caused by a nuclear
incident:
(a) if the operator of a
nuclear installation is liable to such damage under either the Paris Convention
of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as
amended by its Additional Protocol of 28 January 1964, or the Vienna Convention
of 21 May 1963 on Civil Liability for Nuclear Damage, or
(b) if the operator of a
nuclear installation is liable for such damage by virtue of a national law
governing the liability for such damage, provided that such law is in all
respects as favourable to persons who may suffer damage as either the Paris or
the Vienna Conventions.
ARTICLE 21
Commercial carriage by public
authorities
This
Convention shall apply to commercial carriage undertaken by States or Public
Authorities under contracts of carriage within the meaning of Article 1.
PART 2
Provisions having
effect in connection with Convention
Interpretation
1. In
this Part of this Schedule “the Convention” means the Convention as
set out in Part 1 of this Schedule, a reference to a numbered article is a
reference to the article of the Convention that is so numbered, and an
expression to which a meaning is given by article 1 of the Convention has that
meaning.
Provisions adapting or
supplementing specified articles of the Convention
2. For
the purposes of paragraph 2 of article 2, provisions of an international
convention referred to in that paragraph that apart from this paragraph do not
have mandatory application to carriage by sea are to be treated as having
mandatory application to carriage by sea if it is stated in the contract of
carriage for the carriage in question that those provisions are to apply in
connection with the carriage.
3. The
reference in article 6 to the law of the court is to be construed as a
reference to the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.
4. The
Committee may by Order provide that, in relation to a carrier whose principal
place of business is in Jersey, paragraph 1 of article 7 is to have effect
with the substitution for the limit for the time being specified in that
paragraph of a different limit specified in the Order, that shall not be lower
than 46,666 units of account.
5.-(1) For the purpose of
converting from special drawing rights into sterling the amounts mentioned in
articles 7 and 8 in respect of which a judgment is given, one special drawing
right is to be treated as equal to such a sum in sterling as the International
Monetary Fund have fixed as being one special drawing right for -
(a) the day on which the
judgment is given; or
(b) if no sum has been so
fixed for that day, the last day before that day for which a sum has been so
fixed.
(2) A certificate given on
behalf of the Finance and Economics Committee stating -
(a) that a particular sum
in sterling has been fixed as mentioned in sub-paragraph (1) for a particular
day; or
(b) that no sum has been so
fixed for that day and a particular sum in sterling has been so fixed for a day
that is the last day for which a sum has been so fixed before the particular
day,
is conclusive evidence of those
matters for the purposes of articles 7 to 9; and a document purporting to be
such a certificate is to be received in evidence in any proceedings and, unless
the contrary is proved, is to be treated as such a certificate.
6. The
limitations on liability mentioned in article 12 in respect of a passenger or
his luggage apply to the aggregate liabilities of the persons in question in
all proceedings for enforcing the liabilities or any of them that may be
brought whether in Jersey or elsewhere.
7. Article
16 applies to an arbitration as it applies to an action.
8.-(1) The court before
which proceedings are brought under article 17 to enforce a liability may at
any stage of the proceedings make orders that appear to the court to be
equitable in view of -
(a) the provisions of
article 12; and
(b) any other proceedings
that have been or are likely to be begun in Jersey or elsewhere to enforce the
liability in whole or part.
(2) Without prejudice to
the generality of sub-paragraph (1), if the liability is or may be partly
enforceable in other proceedings in Jersey or elsewhere, a court has
jurisdiction -
(a) to award an amount less
than it would have awarded if the limitation applied solely to the proceedings
before it; or
(b) to make part of its
award conditional on the results of any other proceedings.
Other provisions
adapting or supplementing the Convention
9. A
reference in the Convention to a contract of carriage excludes a contract of
carriage that is not for reward.
10. If
Her Majesty in Council declares that a State specified in the Order is a party
to the Convention in respect of a particular country, the Order is, subject to
any subsequent Order made by virtue of this paragraph, conclusive evidence of
that fact.
11. The
Committee may by Order make provision -
(a) for requiring a person
who is the carrier in relation to a passenger to give to the passenger, in a
manner specified in the Order, notice of such of the provisions of the
Convention as are so specified;
(b) for a person who fails
to comply with a requirement imposed on him by the Order to commit an offence
punishable with a fine of up to level 4 on the standard scale.
Application of
Articles 119 and 120
12.-(1) Nothing in the
Convention affects the operation of Article 119 of this Law (limitation of a shipowner’s liability
in certain cases of loss of life, injury or damage).
(2) Nothing in Article 120
of this Law (that among other things
limits a shipowner’s liability for loss or damage of goods in certain
cases) relieves a person of a liability imposed on him by the Convention.
SCHEDULE 6
(Article 119)
Convention on
Limitation of Liability for Maritime Claims 1976
PART 1
Text of Convention
CHAPTER I
THE RIGHT OF LIMITATION
ARTICLE 1
Persons entitled to limit liability
1. Shipowners
and salvors, as hereinafter defined, may limit their liability in accordance
with the rules of this Convention for claims set out in Article 2.
2. The term
“shipowner” shall mean the owner, charterer, manager or operator of
a seagoing ship.
3. Salvor
shall mean any person rendering services in direct connection with salvage
operations. Salvage operations shall also include operations referred to in
Article 2, paragraph 1(d), (e) and (f).
4. If any
claims set out in Article 2 are made against any person for whose act, neglect
or default the shipowner or salvor is responsible, such person shall be
entitled to avail himself of the limitation of liability provided for in this
Convention.
5. In this
Convention the liability of a shipowner shall include liability in an action
brought against the vessel herself.
6. An insurer
of liability for claims subject to limitation in accordance with the rules of
this Convention shall be entitled to the benefits of this Convention to the
same extent as the assured himself.
7. The act of
invoking limitation of liability shall not constitute an admission of
liability.
ARTICLE 2
Claims subject to limitation
1. Subject to
Articles 3 and 4 the following claims, whatever the basis of liability may be,
shall be subject to limitation of liability:
(a) claims in respect of
loss of life or personal injury or loss of or damage to property (including
damage to harbour works, basins and waterways and aids to navigation),
occurring on board or in direct connection with the operation of the ship or
with salvage operations, and consequential loss resulting therefrom;
(b) claims in respect of
loss resulting from delay in the carriage by sea of cargo, passengers or their
luggage;
(c) claims in respect of
other loss resulting from infringement of rights other than contractual rights,
occurring in direct connection with the operation of the ship or salvage
operations;
(d) claims in respect of
the raising, removal, destruction or the rendering harmless of a ship which is
sunk, wrecked, stranded or abandoned, including anything that is or has been on
board such ship;
(e) claims in respect of
the removal, destruction or the rendering harmless of the cargo of the ship;
(f) claims of a
person other than the person liable in respect of measures taken in order to
avert or minimise loss for which the person liable may limit his liability in
accordance with this Convention, and further loss caused by such measures.
2. Claims set
out in paragraph 1 shall be subject to limitation of liability even if brought
by way of recourse or for indemnity under a contract or otherwise. However,
claims set out under paragraph 1(d), (e) and (f) shall not be subject to
limitation of liability to the extent that they relate to remuneration under a
contract with the person liable.
ARTICLE 3
Claims excepted from limitation
The
rules of this Convention shall not apply to:
(a) claims for salvage or
contribution in general average;
(b) claims for oil
pollution damage within the meaning of the International Convention on Civil
Liability for Oil Pollution Damage dated 29th November 1969 or of any amendment
or Protocol thereto which is in force;
(c) claims subject to any
international convention or national legislation governing or prohibiting
limitation of liability for nuclear damage;
(d) claims against the shipowner
of a nuclear ship for nuclear damage;
(e) claims by servants of
the shipowner or salvor whose duties are connected with the ship or the salvage
operations, including claims of their heirs, dependants or other persons
entitled to make such claims, if under the law governing the contract of
service between the shipowner or salvor and such servants the shipowner or
salvor is not entitled to limit his liability in respect of such claims, or if
he is by such law only permitted to limit his liability to an amount greater
than that provided for in Article 6.
ARTICLE 4
Conduct barring limitation
A
person liable shall not be entitled to limit his liability if it is proved that
the loss resulted from his personal act or omission, committed with the intent
to cause such loss, or recklessly and with knowledge that such loss would
probably result.
ARTICLE 5
Counterclaims
Where
a person entitled to limitation of liability under the rules of this Convention
has a claim against the claimant arising out of the same occurrence, their
respective claims shall be set off against each other and the provisions of
this Convention shall only apply to the balance, if any.
CHAPTER II
LIMITS OF LIABILITY
ARTICLE 6
The general limits
1. The limits
of liability for claims other than those mentioned in Article 7 arising on any
distinct occasion, shall be calculated as follows:
(a) in respect of claims
for loss of life or personal injury,
(i) 333,000 Units of
Account for a ship with a tonnage not exceeding 500 tons,
(ii) for a ship with a
tonnage in excess thereof, the following amount in addition to that mentioned
in (i):
for
each ton from 501 to 3,000 tons, 500 Units of Account;
for
each ton from 3,001 to 30,000 tons, 333 Units of Account;
for
each ton from 30,001 to 70,000 tons, 250 Units of Account, and
for
each ton in excess of 70,000 tons, 167 Units of Account,
(b) in respect of any other
claims,
(i) 167,000 Units of
Account for a ship with a tonnage not exceeding 500 tons,
(ii) for a ship with a
tonnage in excess thereof the following amount in addition to that mentioned in
(i):
for
each ton from 501 to 30,000 tons, 167 Units of Account;
for
each ton from 30,001 to 70,000 tons, 125 Units of Account; and
for
each ton in excess of 70,000 tons, 83 Units of Account.
2. Where the
amount calculated in accordance with paragraph 1(a) is insufficient to pay
the claims mentioned therein in full, the amount calculated in accordance with
paragraph 1(b) shall be available for payment of the unpaid balance of claims
under paragraph 1(a) and such unpaid balance shall rank rateably with
claims mentioned under paragraph 1(b).
4. The limits
of liability for any salvor not operating from any ship or for any salvor
operating solely on the ship to, or in respect of which he is rendering salvage
services, shall be calculated according to a tonnage of 1,500 tons.
ARTICLE 7
The limit for passenger claims
1. In respect
of claims arising on any distinct occasion for loss of life or personal injury
to passengers of a ship, the limit of liability of the shipowner thereof shall
be an amount of 46,666 Units of Account multiplied by the number of passengers
which the ship is authorised to carry according to the ship’s
certificate, but not exceeding 25 million Units of Account.
2. For the
purpose of this Article “claims for loss of life or personal injury to
passengers of a ship” shall mean any such claims brought by or on behalf
of any person carried in that ship:
(a) under a contract of passenger
carriage, or
(b) who, with the consent
of the carrier, is accompanying a vehicle or live animals which are covered by
a contract for the carriage of goods.
ARTICLE 8
Unit of Account
The
Unit of Account referred to in Articles 6 and 7 is the special drawing right as
defined by the International Monetary Fund. The amounts mentioned in Articles 6
and 7 shall be converted into the national currency of the State in which
limitation is sought, according to the value of that currency at the date the
limitation fund shall have been constituted, payment is made, or security is
given which under the law of that State is equivalent to such payment.
ARTICLE 9
Aggregation of claims
1. The limits
of liability determined in accordance with Article 6 shall apply to the
aggregate of all claims which arise on any distinct occasion:
(a) against the person or
persons mentioned in paragraph 2 of Article 1 and any person for whose act,
neglect or default he or they are responsible; or
(b) against the shipowner
of a ship rendering salvage services from that ship and the salvor or salvors
operating from such ship and any person for whose act, neglect or default he or
they are responsible; or
(c) against the salvor or
salvors who are not operating from a ship or who are operating solely on the
ship to, or in respect of which, the salvage services are rendered and any
person for whose act, neglect or default he or they are responsible.
2. The limits
of liability determined in accordance with Article 7 shall apply to the
aggregate of all claims subject thereto which may arise on any distinct
occasion against the person or persons mentioned in paragraph 2 of Article 1 in
respect of the ship referred to in Article 7 and any person for whose act,
neglect or default he or they are responsible.
ARTICLE 10
Limitation of liability without constitution of a limitation fund
1. Limitation
of liability may be invoked notwithstanding that a limitation fund as mentioned
in Article 11 has not been constituted.
2. If
limitation of liability is invoked without the constitution of a limitation
fund, the provisions of Article 12 shall apply correspondingly.
3. Questions
of procedure arising under the rules of this Article shall be decided in
accordance with the national law of the State Party in which action is brought.
CHAPTER III
THE LIMITATION FUND
ARTICLE 11
Constitution of the Fund
1. Any person
alleged to be liable may constitute a fund with the Court or other competent
authority in any State Party in which legal proceedings are instituted in
respect of claims subject to limitation. The fund shall be constituted in the
sum of such of the amounts set out in Articles 6 and 7 as are applicable to
claims for which that person may be liable, together with interest thereon from
the date of the occurrence giving rise to the liability until the date of the
constitution of the fund. Any fund thus constituted shall be available only for
the payment of claims in respect of which limitation of liability can be invoked.
2. A fund may
be constituted, either by depositing the sum, or by producing a guarantee
acceptable under the legislation of the State Party where the fund is
constituted and considered to be adequate by the Court or other competent
authority.
3. A fund
constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or
paragraph 2 of Article 9 or his insurer shall be deemed constituted all persons
mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively.
ARTICLE 12
Distribution of the fund
1. Subject to
the provisions of paragraphs 1 and 2 of Article 6 and of Article 7, the fund
shall be distributed among the claimants in proportion to their established
claims against the fund.
2. If, before
the fund is distributed, the person liable, or his insurer, has settled a claim
against the fund such person shall, up to the amount he has paid, acquire by
subrogation the rights which the person so compensated would have enjoyed under
this Convention.
3. The right
of subrogation provided for in paragraph 2 may also be exercised by persons
other than those therein mentioned in respect of any amount of compensation
which they may have paid, but only to the extent that such subrogation is
permitted under the applicable national law.
4. Where the
person liable or any other person establishes that he may be compelled to pay,
at a later date, in whole or in part any such amount of compensation with
regard to which such person would have enjoyed a right of subrogation pursuant
to paragraphs 2 and 3 had the compensation been paid before the fund was
distributed, the Court or other competent authority of the State where the fund
has been constituted may order that a sufficient sum shall be provisionally set
aside to enable such person at such later date to enforce his claim against the
fund.
ARTICLE 13
Bar to other actions
1. Where a
limitation fund has been constituted in accordance with Article 11, any person
having made a claim against the fund shall be barred from exercising any right
in respect of such a claim against any other assets of a person by or on behalf
of whom the fund has been constituted.
2. After a
limitation fund has been constituted in accordance with Article 11, any ship or
other property, belonging to a person on behalf of whom the fund has been
constituted, which has been arrested or attached within the jurisdiction of a
State Party for a claim which may be raised against the fund, or any security
given, may be released by order of the Court or other competent authority of
such State. However, such release shall always be ordered if the limitation
fund has been constituted:
(a) at the port where the
occurrence took place, or, if it took place out of port, at the first port of
call thereafter; or
(b) at the port of
disembarkation in respect of claims for loss of life or personal injury; or
(c) at the port of
discharge in respect of damage to cargo; or
(d) in the State where the
arrest is made.
3. The rules
of paragraphs 1 and 2 shall apply only if the claimant may bring a claim
against the limitation fund before the Court administering that fund and the
fund is actually available and freely transferable in respect of that claim.
ARTICLE 14
Governing law
Subject
to the provisions of this Chapter the rules relating to the constitution and
distribution of a limitation fund, and all rules of procedure in connection
therewith, shall be governed by the law of the State Party in which the fund
constituted.
CHAPTER IV
SCOPE OF APPLICATION
ARTICLE 15
This
Convention shall apply whenever any person referred to in Article 1 seeks to
limit his liability before the Court of a State Party or seeks to procure the
release of a ship or other property or the discharge of any security given
within the jurisdiction of any such State.
PART 2
Provisions having
effect in connection with Convention
Interpretation
1.-(1) In this Part of this
Schedule “the Convention” means the Convention as set out in Part 1
of this Schedule, and a reference to a numbered article is a reference to the
article of the Convention that is so numbered.
(2) A reference in the
Convention and this Part of this Schedule to -
(a) a court, is a reference
to the Royal Court;
(b) a ship, includes a
reference to a structure, whether completed or in the course of completion,
launched and intended for use in navigation as a ship or part of a ship.
Right to limit
liability
2. Subject
to paragraph 6, the right to limit liability under the Convention applies in
relation to any ship, whether seagoing or not, and the definition of
“shipowner” in paragraph 2 of article 1 is to be construed
accordingly.
Claims subject to limitation
3.-(1) Paragraph 1(a) of
article 2 has effect as if the reference to “loss of life or personal
injury” did not include a reference to loss of life or personal injury to
passengers of seagoing ships;
(2) Paragraph 1(d) of
article 2 does not apply in Jersey.
Claims excluded from
limitation
4.-(1) Claims for damage
within the meaning of the International Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous and
Noxious Substances by Sea 1996, or any amendment of or Protocol to that
Convention, that arise from occurrences that take place after the coming into
force of the first Regulations made by the States under Article 117 of this Law
are to be excluded from the Convention.
(2) The claims excluded
from the Convention by paragraph (c) of article 3 are claims made by virtue of
sections 10 or 11 of the Nuclear Installations Act 1965 of the United Kingdom
as extended to Jersey by the Nuclear Installations (Jersey) Order 1980.
The general limits
5.-(1) In the application
of article 6 to a ship with a tonnage of less than 300 tons that article has
effect as if -
(a) paragraph 1(a)(i)
referred to 1,000,000 Units of Account; and
(b) paragraph 1(b)(i)
referred to 500,000 Units of Account.
(2) For the purposes of
article 6 and this paragraph, a ship’s tonnage is its gross tonnage
calculated in a manner that may be prescribed by an Order made by the
Committee.
Limit for passenger claims
6.-(1) Article 7 of the
Convention does not apply in respect of a seagoing ship; and has effect in the
case of a ship that is not seagoing as if, in paragraph 1 of that article -
(a) after
“thereof” there were inserted “in respect of each
passenger,”; and
(b) the words from
“multiplied” onwards were omitted.
(2) In paragraph 2 of
article 7 the reference to claims brought on behalf of a person includes a
reference to a claim in respect of the death of a person under the Fatal
Accidents (Jersey) Law 1962.
Units of Account
7.-(1) For the purpose of
converting the amounts mentioned in articles 6 and 7 from special drawing
rights into sterling, one special drawing right is to be treated as equal to
such a sum in sterling as the International Monetary Fund have fixed as being
one special drawing right for -
(a) the relevant date under
paragraph 1 of article 8; or
(b) if no sum has been so
fixed for that day, the last day before that day for which a sum has been so
fixed.
(2) A certificate given on
behalf of the Finance and Economics Committee stating -
(a) that a particular sum
in sterling has been fixed as mentioned in sub-paragraph (1) for a particular
day; or
(b) that no sum has been so
fixed for that day and a particular sum in sterling has been so fixed for a day
that is the last preceding day for which a sum has been so fixed,
is conclusive evidence of those
matters for the purposes of those articles; and a document purporting to be
such a certificate is to be received in evidence in any proceedings and, unless
the contrary is proved, is to be treated as such a certificate.
Applicable law
8.-(1) If an action is
brought in Jersey, the reference in paragraph 3 of article 10 to the national
law of the State Party is to be construed as a reference to the law of Jersey.
(2) In article 14, the
reference to the law of the State Party is, if the fund is constituted in
Jersey, to be construed as a reference to the law of Jersey.
Constitution of fund
9.-(1) The Committee may,
with the concurrence of the Finance and Economics Committee, by Order prescribe
the rate of interest to be applied for the purposes of paragraph 1 of article
11; but in the absence of such a prescription the rate of interest is the rate
applicable in the United Kingdom under an order made by the Secretary of State
for that purpose.
(2) If a fund is
constituted with the court in accordance with article 11 for the payment of
claims arising out of any occurrence, the court may stay any proceedings
relating to a claim arising out of that occurrence that are pending against the
person by whom the fund has been constituted.
Distribution of fund
10. A
lien or other right in respect of any ship or property does not affect the
proportions in which under article 12 the fund is distributed among several
claimants.
Bar to other actions
11. If
the release of a ship or other property is ordered under paragraph 2 of article
13, the person on whose application it is ordered to be released is to be
regarded as having submitted to the jurisdiction of the court to adjudicate on
the claim for which the property was arrested or attached.
Meaning of
“State Party”
12. If
Her Majesty in Council declares that a State specified in the Order is a party
to the Convention as amended by the 1996 Protocol, the Order is, subject to any
subsequent Order made by virtue of this paragraph, conclusive evidence of that
fact; but the Order shall not have effect in Jersey
unless registered by the Royal
Court.
SCHEDULE 7
(Articles 128 and 129)
International
Convention on Salvage 1989
PART 1
Text of Convention
CHAPTER I
GENERAL PROVISIONS
ARTICLE 1
Definitions
For
the purpose of this Convention -
(a) Salvage operation means
any act or activity undertaken to assist a vessel or any other property in
danger in navigable waters or in any other waters whatsoever.
(b) Vessel means any ship
or craft, or any structure capable of navigation.
(c) Property means any property
not permanently and intentionally attached to the shoreline and includes
freight at risk.
(d) Damage to the
environment means substantial physical damage to human health or to marine life
or resources in coastal or inland waters or areas adjacent thereto, caused by
pollution, contamination, fire, explosion or similar major incidents.
(e) Payment means any
reward, remuneration or compensation due under this Convention.
(f) Organisation
means the International Maritime Organisation.
(g) Secretary-General means
the Secretary-General of the Organisation.
ARTICLE 2
Application of the Convention
This
Convention shall apply whenever judicial or arbitral proceedings relating to
matters dealt with in this Convention are brought in a State Party.
ARTICLE 3
Platforms and drilling units
This
Convention shall not apply to fixed or floating platforms or to mobile offshore
drilling units when such platforms or units are on location engaged in the
exploration, exploitation or production of sea-bed mineral resources.
ARTICLE 4
State-owned vessels
1. Without
prejudice to article 5, this Convention shall not apply to warships or other
non-commercial vessels owned or operated by a State and entitled, at the time
of salvage operations, to sovereign immunity under generally recognised
principles of international law unless that State decides otherwise.
2. Where a
State Party decides to apply the Convention to its warships or other vessels
described in paragraph 1, it shall notify the Secretary-General thereof
specifying the terms and conditions of such application.
ARTICLE 5
Salvage operations controlled by public authorities
1. This
Convention shall not affect any provisions of national law or any international
convention relating to salvage operations by or under the control of public
authorities.
2. Nevertheless,
salvors carrying out such salvage operations shall be entitled to avail
themselves of the rights and remedies provided for in this Convention in
respect of salvage operations.
3. The extent
to which a public authority under a duty to perform salvage operations may
avail itself of the rights and remedies provided for in this Convention shall
be determined by the law of the State where such authority is situated.
ARTICLE 6
Salvage contracts
1. This
Convention shall apply to any salvage operations save to the extent that a
contract otherwise provides expressly or by implication.
2. The master
shall have the authority to conclude contracts for salvage operations on behalf
of the owner of the vessel. The master or the owner of the vessel shall have
the authority to conclude such contracts on behalf of the owner of the property
on board the vessel.
3. Nothing in
this article shall affect the application of article 7 nor duties to prevent
or minimise damage to the environment.
ARTICLE 7
Annulment and modification of
contracts
A
contract or any terms thereof may be annulled or modified if -
(a) the contract has been
entered into under undue influence or the influence of danger and its terms are
inequitable; or
(b) the payment under the
contract is in an excessive degree too large or too small for the services
actually rendered.
CHAPTER II
PERFORMANCE OF SALVAGE OPERATIONS
ARTICLE 8
Duties of the salvor and of the owner and master
1. The salvor
shall owe a duty to the owner of the vessel or other property in danger -
(a) to carry out the
salvage operations with due care;
(b) in performing the duty
specified in subparagraph (a), to exercise due care to prevent or minimise damage
to the environment;
(c) whenever circumstances
reasonably require, to seek assistance from other salvors; and
(d) to accept the
intervention of other salvors when reasonably requested to do so by the owner
or master of the vessel or other property in danger; provided however that the
amount of his reward shall not be prejudiced should it be found that such a
request was unreasonable.
2. The owner
and master of the vessel or the owner of other property in danger shall owe a
duty to the salvor -
(a) to co-operate fully
with him during the course of the salvage operations;
(b) in so doing, to
exercise due care to prevent or minimise damage to the environment; and
(c) when the vessel or
other property has been brought to a place of safety, to accept redelivery when
reasonably requested by the salvor to do so.
ARTICLE 9
Rights of coastal States
Nothing
in this Convention shall affect the right of the coastal State concerned to
take measures in accordance with generally recognised principles of
international law to protect its coastline or related interests from pollution
or the threat of pollution following upon a maritime casualty or acts relating
to such a casualty which may reasonably be expected to result in major harmful
consequences, including the right of a coastal State to give directions in
relation to salvage operations.
ARTICLE 10
Duty to render assistance
1. Every
master is bound, so far as he can do so without serious danger to his vessel
and persons thereon, to render assistance to any person in danger of being lost
at sea.
2. The States
Parties shall adopt the measures necessary to enforce the duty set out in
paragraph 1.
3. The owner
of the vessel shall incur no liability for a breach of the duty of the master
under paragraph 1.
ARTICLE 11
Co-operation
A
State Party shall, whenever regulating or deciding upon matters relating to
salvage operations such as admittance to ports of vessels in distress or the
provision of facilities to salvors, take into account the need for co-operation
between salvors, other interested parties and public authorities in order to
ensure the efficient and successful performance of salvage operations for the
purpose of saving life or property in danger as well as preventing damage to
the environment in general.
CHAPTER III
RIGHTS OF SALVORS
ARTICLE 12
Conditions for reward
1. Salvage
operations which have had a useful result give right to a reward.
2. Except as
otherwise provided, no payment is due under this Convention if the salvage
operations have had no useful result.
3. This
chapter shall apply, notwithstanding that the salved vessel and the vessel
undertaking the salvage operations belong to the same owner.
ARTICLE 13
Criteria for fixing the reward
1. The reward
shall be fixed with a view to encouraging salvage operations, taking into
account the following criteria without regard to the order in which they are
presented below -
(a) the salved value of the
vessel and other property;
(b) the skill and efforts
of the salvors in preventing or minimising damage to the environment;
(c) the measure of success
obtained by the salvor;
(d) the nature and degree
of the danger;
(e) the skill and efforts
of the salvors in salving the vessel, other property and life;
(f) the time used and
expenses and losses incurred by the salvors;
(g) the risk of liability
and other risks run by the salvors or their equipment;
(h) the promptness of the
services rendered;
(i) the availability
and use of vessels or other equipment intended for salvage operations;
(j) the state of
readiness and efficiency of the salvor’s equipment and the value thereof.
2. Payment of
a reward fixed according to paragraph 1 shall be made by all of the vessel and
other property interests in proportion to their respective salved values.
However, a State Party may in its national law provide that the payment of a
reward has to be made by one of these interests, subject to a right of recourse
of this interest against the other interests for their respective shares.
Nothing in this article shall prevent any right of defence.
3. The
rewards, exclusive of any interest and recoverable legal costs that may be
payable thereon, shall not exceed the salved value of the vessel and other
property.
ARTICLE 14
Special compensation
1. If the
salvor has carried out salvage operations in respect of a vessel which by
itself or its cargo threatened damage to the environment and has failed to earn
a reward under article 13 at least equivalent to the special compensation
assessable in accordance with this article, he shall be entitled to special
compensation from the owner of that vessel equivalent to his expenses as herein
defined.
2. If, in the
circumstances set out in paragraph 1, the salvor by his salvage operations has
prevented or minimised damage to the environment, the special compensation
payable by the owner to the salvor under paragraph 1 may be increased up to a
maximum of 30 per cent of the expenses incurred by the salvor. However, the
tribunal, if it deems it fair and just to do so and bearing in mind the
relevant criteria set out in article 13, paragraph 1, may increase such special
compensation further, but in no event shall the total increase be more than 100
per cent of the expenses incurred by the salvor.
3. Salvor’s
expenses for the purpose of paragraphs 1 and 2 means the out-of-pocket expenses
reasonably incurred by the salvor in the salvage operation and a fair rate for
equipment and personnel actually and reasonably used in the salvage operation,
taking into consideration the criteria set out in article 13, paragraph 1(h),
(i) and (j).
4. The total
special compensation under this article shall be paid only if and to the extent
that such compensation is greater than any reward recoverable by the salvor
under article 13.
5. If the
salvor has been negligent and has thereby failed to prevent or minimise damage
to the environment, he may be deprived of the whole or part of any special
compensation due under this article.
6. Nothing in
this article shall affect any right of recourse on the part of the owner of the
vessel.
ARTICLE 15
Apportionment between salvors
1. The
apportionment of a reward under article 13 between salvors shall be made on the
basis of the criteria contained in that article.
2. The
apportionment between the owner, master and other persons in the service of
each salving vessel shall be determined by the law of the flag of that vessel.
If the salvage has not been carried out from a vessel, the apportionment shall
be determined by the law governing the contract between the salvor and his
servants.
ARTICLE 16
Salvage of persons
1. No
remuneration is due from persons whose lives are saved, but nothing in this
article shall affect the provisions of national law on this subject.
2. A salvor of
human life, who has taken part in the services rendered on the occasion of the
accident giving rise to salvage, is entitled to a fair share of the payment
awarded to the salvor for salving the vessel or other property or preventing or
minimising damage to the environment.
ARTICLE 17
Services rendered under existing
contracts
No
payment is due under the provisions of this Convention unless the services
rendered exceed what can be reasonably considered as due performance of a contract
entered into before the danger arose.
ARTICLE 18
The effect of salvor’s misconduct
A
salvor may be deprived of the whole or part of the payment due under this
Convention to the extent that the salvage operations have become necessary or
more difficult because of fault or neglect on his part or if the salvor has
been guilty of fraud or other dishonest conduct.
ARTICLE 19
Prohibition of salvage operations
Services
rendered notwithstanding the express and reasonable prohibition of the owner or
master of the vessel or the owner of any other property in danger which is not
and has not been on board the vessel shall not give rise to payment under this
Convention.
CHAPTER IV
CLAIMS AND ACTIONS
ARTICLE 20
Maritime lien
1. Nothing in
this Convention shall affect the salvor’s maritime lien under any
international convention or national law.
2. The salvor
may not enforce his maritime lien when satisfactory security for his claim,
including interest and costs, has been duly tendered or provided.
ARTICLE 21
Duty to provide security
1. Upon the
request of the salvor a person liable for a payment due under this Convention
shall provide satisfactory security for the claim, including interest and costs
of the salvor.
2. Without
prejudice to paragraph 1, the owner of the salved vessel shall use his best
endeavours to ensure that the owners of the cargo provide satisfactory security
for the claims against them including interest and costs before the cargo is
released.
3. The salved
vessel and other property shall not, without the consent of the salvor, be
removed from the port or place at which they first arrive after the completion
of the salvage operations until satisfactory security has been put up for the
salvor’s claim against the relevant vessel or property.
ARTICLE 22
Interim payment
1. The
tribunal having jurisdiction over the claim of the salvor may, by interim
decision, order that the salvor shall be paid on account such amount as seems
fair and just, and on such terms including terms as to security where
appropriate, as may be fair and just according to the circumstances of the
case.
2. In the
event of an interim payment under this article the security provided under
article 21 shall be reduced accordingly.
ARTICLE 23
Limitation of actions
1. Any action
relating to payment under this Convention shall be time-barred if judicial or
arbitral proceedings have not been instituted within a period of two years. The
limitation period commences on the day on which the salvage operations are
terminated.
2. The person
against whom a claim is made may at any time during the running of the
limitation period extend that period by a declaration to the claimant. This
period may in the like manner be further extended.
3. An action
for indemnity by a person liable may be instituted even after the expiration of
the limitation period provided for in the preceding paragraphs, if brought
within the time allowed by the law of the State where proceedings are
instituted.
ARTICLE 24
Interest
The
right of the salvor to interest on any payment due under this Convention shall
be determined according to the law of the State in which the tribunal seized of
the case is situated.
ARTICLE 25
State-owned cargoes
Unless
the State owner consents, no provision of this Convention shall be used as a
basis for the seizure, arrest or detention by any legal process of, nor for any
proceedings in rem against,
non-commercial cargoes owned by a State and entitled, at the time of the
salvage operations, to sovereign immunity under generally recognised principles
of international law.
ARTICLE 26
Humanitarian cargoes
No
provision of this Convention shall be used as a basis for the seizure, arrest
or detention of humanitarian cargoes donated by a State, if such State has
agreed to pay for salvage services rendered in respect of such humanitarian
cargoes.
ARTICLE 27
Publication of arbitral awards
States
Parties shall encourage, as far as possible and with the consent of the
parties, the publication of arbitral awards made in salvage cases.
PART 2
Provisions
having effect in connection with Convention
Interpretation
1.-(1) In this Part of this
Schedule “the Convention” means the Convention as set out in Part 1
of this Schedule, and a reference to a numbered article is a reference to the
article of the Convention that is so numbered.
(2) A reference in the
Convention to judicial proceedings is a reference to proceedings in the Royal
Court; and a reference to the tribunal having jurisdiction, in so far as it refers
to judicial proceedings, is to be construed accordingly.
Assistance to persons
at sea
2.-(1) The master of a
vessel who fails to comply with the duty imposed on him by paragraph 1 of
article 10 commits an offence and is liable to imprisonment for 2 years and a
fine.
(2) Compliance by the
master of a vessel with that duty does not affect his right or the right of
another person to a payment under the Convention or under any contract.
The reward and special
compensation: the common understanding
3. In
fixing a reward under article 13 and assessing special compensation under
article 14 the court or arbitrator is under no duty to fix a reward under
article 13 up to the maximum salved value of the vessel and other property
before assessing the special compensation to be paid under article 14.
Recourse for life
salvage payment
4.-(1) This paragraph
applies if -
(a) services are rendered
wholly or in part in Jersey waters in saving life from a vessel of any
nationality, or elsewhere in saving life from a Jersey ship; and
(b) either -
(i) the vessel and
other property are destroyed, or
(ii) the sum to which the
salvor is entitled under paragraph 2 of article 16 is less than a
reasonable amount for the services rendered in saving life.
(2) If this paragraph
applies, the Committee may pay to the salvor a sum, or as the case may be an
additional sum, as it thinks fit in respect of the services rendered in saving
life.
Meaning of
“State Party”
5. If
Her Majesty in Council declares that a State specified in the Order is a party
to the Convention in respect of a particular country or territory, the Order
is, subject to any subsequent Order made by virtue of this paragraph,
conclusive evidence of that fact.
SCHEDULE 8
(Article 201(1))
Repeals
PART 1 – ACTS OF THE UNITED KINGDOM
IN
SO FAR AS THEY APPLY TO JERSEY
Short title
|
Merchant Shipping Act 1894
|
Merchant Shipping (Liability of
Shipowners and others) Act 1900
|
Merchant Shipping Act 1906
|
Maritime Conventions Act 1911
|
PART 2 – JERSEY ENACTMENTS
Short title
|
Merchant Shipping (Jersey) Act 1916
|
Oil in Territorial Waters (Jersey) Law 1950
|
Merchant Shipping (Registry of
British Ships) (Jersey) Law 1987
|
SCHEDULE 9
(Article 201(4))
Transitional and
savings provisions
Qualifications:
certificates of A.B.
1.-(1) A seaman engaged in
a Jersey ship is not to be rated as A.B. unless he is the holder of a
certificate of competency -
(a) granted in pursuance of
an Order made under this paragraph providing for the grant of those
certificates of competency; or
(b) recognised by the
Committee for the purposes of this paragraph.
(2) An Order under
paragraph (1) may make provision in particular for -
(a) the payment of
prescribed fees in respect of an application for the grant or replacement of a
certificate;
(b) for applying section
104 of the Merchant Shipping Act 1894 of the United Kingdom (offences) to certificates, subject to
any adaptations prescribed.
(3) A shipping master or
other officer before whom a seaman is engaged in a Jersey ship shall refuse to
enter the man as A.B. on the crew agreement unless the seaman produces a
certificate of competency or other proof, that appears to the shipping master
to be satisfactory, that he is the holder of such a certificate.
Manning: certificates
existing in 1979
2.-(1) The power to make an
Order under Article 29 includes power to provide that pre-1979 certificates
are, except for cases specified in the Order, to be treated for the purposes of
any provisions of Part 4 that are so specified -
(a) as being issued in
pursuance of that Article; and
(b) to confer on the
persons to whom they were issued the qualifications for the purposes of that
Article as are so specified.
(2) In this paragraph
“pre-1979 certificate” means a certificate -
(a) granted under section
93, 99 or 414 of the Merchant Shipping Act 1894 of the United Kingdom;
(b) referred to in an Order
in Council made under section 104 of that Act;
(c) granted under section
27(2) of the Merchant Shipping Act 1906 of the United Kingdom or by an
institution approved in pursuance of that subsection; and
(d) granted under section 5
of the Merchant Shipping Act 1948 of the United Kingdom.
Masters and seamen and
documents: transitory provisions
3 The
Committee may by Order appoint a day or days on which Article 190, paragraph 27
of Schedule 2 and paragraph 1 of this Schedule cease to have effect.
SCHEDULE 10
(Article 200)
Lighthouses
Interpretation
1.-(1) In this Schedule the
“1995 Act” means the Merchant Shipping Act 1995 of the United
Kingdom, as from time to time amended.
(2) Words and phrases
defined in the 1995 Act and used in this Schedule have the same meaning in this
Schedule as they do in the 1995 Act.
General lighthouse
authority
2. Pursuant
to paragraph 9(2) of Schedule 14 to the 1995 Act, the Trinity House shall
exercise their powers under Part VIII of the 1995 Act with respect to
lighthouses, buoys and beacons in Jersey to the same extent as they were
authorized to exercise their powers under Part XI of the Merchant Shipping Act
1894 in its application to Jersey immediately before the commencement of this
Law.
Light dues
3.-(1) The Committee may
make a fair contribution towards any costs incurred by the Trinity House with
respect to lighthouses, buoys and beacon erected or placed in or near Jersey.
(2) Such contributions
shall be paid out of monies collected as light dues under the Harbour and Light
Dues (Jersey) Law 1947.
Local lighthouse authority
4.-(1) Subject to
sub-paragraph (2), the Committee shall be the local lighthouse authority and
the statutory harbour authority for the purposes of this Law and Part VIII of
the 1995 Act in its application to Jersey.
(2) The Committee may
appoint some other person or body to be the local lighthouse authority or
statutory harbour authority or both.
General powers of
lighthouse authorities
5.-(1) The local lighthouse
authority shall have the same powers as a general lighthouse authority has
under section 197(1) and (7) of the 1995 Act.
(2) The States may acquire
land by compulsory purchase in accordance with the Compulsory Purchase of Land
(Procedure) (Jersey) Law 1961 if the States are satisfied that
the land should be acquired for a purpose specified in section 197(5) of the
1995 Act in its application to the local lighthouse authority by virtue of
sub-paragraph (1).
(3) The local lighthouse
authority shall be the acquiring authority within the meaning of the Compulsory
Purchase of Land (Procedure) (Jersey) Law 196162 in
respect of land purchased in accordance with sub-paragraph (2).
Damages etc. to
lighthouses etc.
6.-(1) Section 219 of the
1995 Act shall apply in respect of Jersey.
(2) The Royal Court shall have jurisdiction in
respect of any offence or the recovery of any expenses under section 219 of the
1995 Act in its application to Jersey.
Prevention of false
lights
7.-(1) The local lighthouse
authority for Jersey, shall have the same
powers as the general lighthouse authority has under section 220 of the 1995
Act in its application to Jersey.
(2) The Royal Court shall have jurisdiction in
respect of any offence or the recovery of any expenses under section 220 of the
1995 Act in its application to Jersey whether
that application is by virtue of section 193(5) of the 1995 Act or by virtue of
sub-paragraph (1).
Exemption from taxes,
duties, etc.
8. Section
221(1) of the 1995 Act shall apply in Jersey.
Exemption from harbour
dues
9. Section
222 of the 1995 Act shall apply to harbours, ports, docks and piers in Jersey.