Harbours (Amendment
No. 41)
(Jersey) Regulations 2008
Made 29th April 2008
Coming into force 6th May 2008
THE STATES, in pursuance of Articles 4 and 4A of the Harbours (Administration)
(Jersey) Law 1961[1], have made the following
Regulations –
1 Interpretation
In these Regulations “the principal
Regulations” means the Harbours (Jersey) Regulations 1962[2].
2 Parts
1 and 2 substituted
For Parts 1 and 2 of the principal Regulations there are substituted
the following Parts –
“Part 1
powers of the Minister
1 Minister
may restrict, prohibit and reserve access
(1) If it appears to the Minister necessary or
expedient to do so, the Minister may issue a direction restricting or
prohibiting access to any part of –
(a) a harbour; or
(b) territorial waters.
(2) If it appears to the Minister necessary or
expedient to do so, the Minister may issue a direction reserving a specified
part of –
(a) a harbour; or
(b) territorial waters,
for a specific purpose,
subject to such conditions and in such manner as the Minister considers
appropriate.
(3) The Minister must publish a direction issued
under this Regulation.
(4) A person who contravenes a direction issued
under this Regulation is guilty of an offence and is liable to a fine of level
3 on the standard scale.
Part 2
Powers of the HARBOUR master
2 Unserviceable
vessels and other obstructions
(1) The Harbour Master may issue a direction
requiring the removal of an unserviceable or abandoned vessel or other
obstruction from –
(a) a harbour; or
(b) territorial waters.
(2) The direction must be –
(a) served on the owner of the vessel or
obstruction; or
(b) published if the owner is unknown or cannot
be traced.
(3) If, within 7 days, the vessel or obstruction
has not been moved in accordance with the direction the Harbour Master may
cause the vessel or obstruction to be moved.
(4) If the Harbour Master causes the vessel or
obstruction to be moved –
(a) expenses incurred in removing and storing
the vessel or obstruction shall be payable by the owner; and
(b) no claim for damages shall lie against the
Harbour Master or any person who moved and stored the vessel or obstruction.
(a) the expenses mentioned in paragraph (4)(a)
are not paid within 7 days of being demanded; or
(b) the owner of the vessel or obstruction
cannot be found after reasonable enquiry,
the Harbour Master may
dispose of the vessel or obstruction in such manner as the Harbour Master
considers appropriate.
(6) The Harbour Master must pay any proceeds
arising from the disposal, after deduction of the expenses
incurred –
(a) to the owner; or
(b) if no owner can be found, into the consolidated
fund.
(7) For the purpose of this Regulation a vessel
or obstruction is to be taken to be unserviceable or abandoned –
(a) if it appears to the Harbour Master to be
abandoned due to its state of neglect, lack of maintenance or lack of attention
by its owner; or
(b) where it is occupying a space in return for
the payment of a fee, charge or other consideration, if the fee, charge or
other consideration has not been paid.
(1) The Harbour Master may give
directions –
(a) to regulate the time at, and the manner in
which, a vessel may enter into, go out of, or lie in, a harbour;
(b) to regulate a vessel’s position,
mooring or unmooring, placing and removing, while in a harbour.
(2) The Harbour Master may give directions to
regulate the time at, and the position in which a vessel may –
(a) take in or discharge its cargo or any part
of its cargo;
(b) take in or land its passengers;
(c) take in or deliver ballast,
within a harbour.
(3) The Harbour Master, or a person authorized
to do so by the Harbour Master, may give directions and orders
necessary –
(a) to maintain order in a harbour;
(b) to control the movement of persons and
vehicles in a harbour;
(c) to maintain security in a harbour;
(d) to maintain safety in a harbour.
(4) A person must comply with a direction or
order given in accordance with paragraph (3) that is applicable to the person.
(5) The Harbour Master may give
directions in respect of –
(a) the circulation and parking of vehicles in a harbour;
(b) the charges to be paid to park a vehicle in
a harbour or in any part of a harbour.
(6) Despite Regulation 2,
the Harbour Master may cause to be removed any vessel or obstruction
from –
(a) a harbour; or
(b) territorial waters,
where the Harbour
Master is satisfied that its immediate removal is necessary.
4 Use
of facilities or provision of services that requires permits
(1) For the purposes of Article 4A of the Law,
the Harbour Master may designate –
(a) a facility; or
(b) a service,
in a harbour or in
territorial waters that may not be used or provided except with and in
accordance with a permit.
(2) In doing so the Harbour Master must follow
the policy guidelines specified in Schedule 1.
(3) The Harbour Master must publish details of a
designation under paragraph (1).
(4) The Minister may, by written notice, direct
the Harbour Master –
(a) to amend a designation made under paragraph
(1); or
(b) to make such a designation,
as specified in the
direction.
(5) The Harbour Master must act in accordance
with the direction.
(6) The Minister must lay a copy of a direction
given under paragraph (4) before the States Assembly at the first
opportunity to do so.
(7) The –
(a) use of a facility; or
(b) provision of a service,
designated under
paragraph (1) without a permit issued under Regulation 5 is an
offence punishable by a fine.
(a) use of a facility; or
(b) provision of a service,
designated under paragraph (1)
by a person permitted to use the facility or to provide the service under a
permit issued under Regulation 5 other than in accordance with the terms,
conditions and limitations of the permit is an offence punishable by a fine of
level 4 on the standard scale.
(9) An offence under paragraph (8) may be
charged by reference to a day or any longer period of time and a person may be
convicted of a second offence or subsequent offences under paragraph (8)
by reference to any period of time following the preceding conviction for such
an offence.
(1) This Regulation applies where the Harbour
Master has designated a facility or service under Regulation 4(1).
(2) A person who wants to acquire a permit to
use the designated facility or to provide the designated service, as the case
may be, must apply to the Harbour Master for the permit.
(3) The application must be made in such form as
the Harbour Master may publish.
(4) The Harbour Master must publish the
application and seek comment from those likely to be affected.
(5) When considering the application the Harbour
Master must follow the policy guidelines specified in Schedule 1.
(6) The Harbour Master must also take into
account any relevant –
(a) policy of the States as conveyed to the
Harbour Master by the Minister; and
(b) comments received as a result of publishing
the application.
(7) After considering the application the
Harbour Master may –
(a) issue the permit;
(b) refuse to issue the permit; or
(c) issue the permit subject to terms (including
terms requiring the payment of fees or charges), conditions and limitations.
(8) The Harbour Master may at any
time –
(a) amend the terms, conditions or limitations
attached to a permit; or
(b) suspend or revoke a permit.
(9) If the Harbour Master takes any action
mentioned in paragraph (7)(b) or (c) or paragraph (8), the Harbour Master
must give the applicant for, or holder of, the permit –
(a) written reasons for doing so; and
(b) notice of his or her right to appeal under
paragraph (10).
(10) The applicant or holder may, within 28 days
of receiving those reasons and the notice, appeal to the Royal Court against
the action taken by the Harbour Master on the grounds that taking the action
was not reasonable in the circumstances.
(11) The Royal Court may –
(a) uphold the action taken by the Harbour
Master; or
(b) direct the Harbour Master to take such other
action as the Court considers appropriate.
(12) The Harbour Master must comply with the direction.
(13) In reaching its decision, the Royal Court must
take into account the extent to which the Harbour Master has complied with
paragraphs (5) and (6).
6 Use
of facility or provision of a service by agreement
(1) For the purposes of Article 4A of the
Law, the Harbour Master may designate a facility or a service in a harbour or
in territorial waters that may not be used or provided except with and in
accordance with an agreement.
(2) In doing so the Harbour Master must follow
the policy guidelines specified in Schedule 1.
(3) The Harbour Master may but, if required to
do so by the Minister, must, publish details of a designation under paragraph
(1).
(4) The Minister may, by written notice, direct
the Harbour Master –
(a) to amend a designation made under paragraph
(1); or
(b) to make such a designation,
as specified in the
direction.
(5) The Harbour Master must act in accordance
with the direction.
(6) The Minister must lay a copy of any direction
given under paragraph (4) before the States Assembly at the first
opportunity to do so.
(7) Where the Harbour Master has designated a
facility or service under paragraph (1), the Harbour Master may enter into
an agreement with a person that provides for the person to use the facility or
to provide the service, as the case may be, in accordance with the agreement
(which may include provisions for the payment of fees or charges).
(8) Before entering into the agreement, the
Harbour Master may but, if required to do so by the Minister, must, publish
details of the proposed agreement and seek comment from those likely to be
affected.
(9) In negotiating the terms of the agreement
the Harbour Master must follow the policy guidelines specified in Schedule 1.
(10) The Harbour Master must also take into account any
relevant –
(a) policy of the States as conveyed to the
Harbour Master by the Minister; and
(b) comments received as a result any
publication of the proposed agreement.
(a) use of a facility; or
(b) provision of a service,
designated under paragraph (1)
without an agreement entered into under this Regulation is an offence
punishable by a fine.”.
3 Regulation
8 substituted
For Regulation 8 of the principal Regulations there is
substituted the following Regulation –
“8 Communication
to be made by vessel bound for harbour
(1) The master of a vessel that –
(a) is bound for a harbour in Jersey; and
(b) is equipped with a means of communication by
radio telephone,
must, on arrival in
territorial waters, establish communication with Jersey Coastguard, and
maintain the communication until the vessel enters the harbour or leaves
territorial waters.
(2) The master of a vessel that is in
territorial waters bound for a harbour in Jersey must, at the first opportunity
to do so, inform the Harbour Master of any deficiency or incident that
may –
(a) decrease the normal safe manoeuvrability of
the vessel; or
(b) constitute a hazard to the marine
environment or adjacent areas, or both.”.
4 Regulation
11 substituted
For Regulation 11 of the principal Regulations there is
substituted the following Regulation –
(1) The Harbour Master may issue directions
limiting the speed at which vessels may travel in any part of a harbour or of
territorial waters.
(2) The Harbour Master must publish a direction
issued under paragraph (1).
(3) The master of a vessel must comply with any
direction published in accordance with this Regulation that is applicable to
the vessel.”.
5 Regulation
16 substituted
For Regulation 16 of the principal Regulations there is
substituted the following Regulation –
“16 Lost
anchors, etc. to be reported
(1) This Regulation applies if –
(a) a vessel within a harbour parts from its
anchor;
(b) a vessel (other than a small ship) within
the territorial water parts from it anchor; or
(c) a vessel in a harbour on in territorial
waters loses anything overboard that may cause an obstruction on the sea bed.
(2) The master of the vessel must report the
incident to the Harbour Master as soon as possible.
(3) In this Regulation, ‘small ship’ means a vessel that is less
than 24 metres in length when its length is determined in accordance with
the Tonnage Regulations.”.
6 Regulation
33 amended
For Regulation 33(b)(iv) of the principal Regulations there is
substituted the following sub-clause –
“(iv) the Harbour Master must ensure that
adequate and properly tested fire fighting facilities are provided in the
vicinity of any ship loading or unloading explosives,”.
7 Regulation
42 amended
In Regulation 42(1) of the principal Regulations for
“arrival in the territorial waters of Jersey” there is substituted
“arrival in territorial waters”.
8 Part
7 substituted
For Part 7 of the principal Regulations there is substituted the
following Part –
“PART 7
LOADING AND UNLOADING OF
GOODS AND EMBARKATION AND DISEMBARKATION OF PASSENGERS
45 Goods
(1) The Harbour Master may give directions in
respect of the loading and unloading of goods on and from a vessel in a
harbour.
(2) The Minister may publish a notice providing
that if a person, without the Harbour Master’s permission, allows goods
to remain on a harbour in excess of the period specified in the notice the
person shall be liable to the charges specified in the notice.
(3) In addition, if the Harbour Master considers
that the goods are interfering with the normal working of the harbour, the
Harbour Master may remove them to such other place, within or outwith the
harbour, as the Harbour Master thinks fit.
(4) The Harbour Master may, on behalf of the
Minister, recover as a debt due to the Minister from the owner of the
goods –
(a) any charges incurred under paragraph (2);
(b) any expenses incurred in removing the goods
under paragraph (3); and
(c) any expenses subsequently incurred in
storing the goods.
(5) No claim for damages shall lie against the
Minister or an officer in an administration of the States for which the
Minister is assigned responsibility in connection with the removal or storage
of the goods.
(6) If –
(a) goods have been removed under this Regulation;
and
(b) any charges and expense mentioned in
paragraph (4) have not been paid by their owner within 7 days of
being demand or if their owner cannot be found,
the Harbour Master may sell
the goods and, after deducting the expenses incurred in doing so and any
charges and expense mentioned in paragraph (4), pay the proceeds, to the
owner or, if the owner cannot be found, into the consolidated fund.
(1) The Harbour Master may give directions in
respect of the embarkation and disembarkation of passengers and their personal
baggage on and from a vessel in a harbour.
(2) Except with the permission of the Harbour
Master, a person must not board a vessel carrying passengers following its
arrival in a harbour until all its passengers have disembarked.
(3) In this Article, ‘passengers’
means the persons carried on a vessel other than –
(a) a
person employed or engaged in any capacity on the business of the vessel; and
(b) a
person on board the vessel either in pursuance of the obligation laid upon the
master to carry shipwrecked, distressed or other persons, or by reason of any
circumstance that neither the master nor the owner nor the charterer (if any)
could have prevented or forestalled.”.
9 Regulation 47 amended
Regulation 47 of the principal Regulations is amended by
omitting paragraph (3).
10 Regulation
48 substituted
For Regulation 48 of the principal Regulations there is
substituted the following Regulation –
(1) A person must not in a harbour –
(a) throw, deposit or put ballast, earth, ashes,
stones or other thing into the water;
(b) throw down, deposit, put or leave refuse of
any nature whatsoever;
(c) leave faeces of a dog for which a person is
responsible;
(d) injure, or deface by writing or otherwise, a
wall, building, structure, machinery, statue, erection, seat, railing or other
thing;
(e) behave in a manner reasonably likely to
offend against public decency;
(f) wilfully and unreasonably interfere
with the convenience of, or cause annoyance to, another person;
(g) throw or discharge a stone or missile;
(h) cause an obstruction to free passage;
(i) obstruct, impede, resist or assault an
officer in an administration of the States for which the Minister is assigned
responsibility in the exercise of the officer’s duties.
(2) Despite paragraph (1), a person may in a
harbour –
(a) leave refuse in a receptacle provided for
the purpose;
(b) leave dog faeces in a receptacle provide for
the purpose;
(c) discharge ballast water in accordance with the International Maritime Organization’s Guidelines for the
Control and Management of Ships’ Ballast Water to Minimize the Transfer
of Harmful Aquatic Organisms and Pathogens, as stated in resolution A.868(20), as
for the time being in force.”.
11 Regulation
50 substituted
For Regulation 50 of the principal Regulations there is
substituted the following Regulation –
“50 Penalties
and criminal responsibility
(1) A person who contravenes –
(a) a provision of these Regulations; or
(b) a direction issued or given under these
Regulations,
in relation to which no
special penalty is provided, is guilty of an offence and is liable to a fine of
level 2 on the standard scale.
(2) Where an offence under these Regulations
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.
(3) Where the affairs of a body corporate are
managed by its members, paragraph (2) shall apply in relation to acts and
defaults of a member in connection with his or her functions of management as
if he or she were a director of the body corporate.
(4) A person who aids, abets, counsels or
procures the commission of an offence under these Regulations shall also be
guilty of the offence and liable in the same manner as a principal offender to
the penalty provided for that offence.
(5) Where it is relevant to do so, an offence
under these Regulations may be charged by reference to a person’s actions
during a period of time and the person may be convicted of a second offence or
subsequent offences by reference to the same action during a period of time
following the preceding conviction for the offence.”.
12 Schedule
1 substituted
For Schedule 1 to the principal Regulations there is
substituted the following Schedule –
“SCHEDULE 1
(Regulations 4, 5 and 6)
policy guidelines To be
followed by harbour master
1 Application
This Schedule applies to the
following functions of the Harbour Master –
(a) the
designation of a facility or service under Regulation 4(1);
(b) the
grant of a permit under Regulation 5;
(c) the
designation of a facility or a service under Regulation 6(1); and
(d) the
negotiation of an agreement under Regulation 6(7).
2 Performance
of function by Harbour Master
The Harbour Master must
perform a function to which this Schedule applies in a manner that is best
calculated to ensure that, so far as is reasonably practicable and
safe –
(a) shipping services and facilities in the
harbours and territorial waters; and
(b) shipping services between Jersey and other
jurisdictions,
are provided in a manner that
achieves the objectives mentioned in paragraph 3.
The objectives referred to in
paragraph 2 are –
(a) to protect and further the long-term
interests of end-users of the services and facilities;
(b) to satisfy all current and prospective
demands for the services and facilities;
(c) to promote competition, efficiency, economy
and effectiveness in commercial activities connected with port and shipping
services;
(d) to impose a minimum of restriction on
persons engaged in commercial activities connected with port and shipping
services;
(e) to ensure that persons engaged in commercial
activities connected with port and shipping services have sufficient expertise
and financial and other resources to conduct the activities.
4 Harbour
Master not to show preference or to discriminate
The Harbour Master must not
show undue preference or unfairly discriminate in exercising a function to which
this Schedule applies.”.
13 Citation
and commencement
(1) These
Regulations may be cited as the Harbours (Amendment No. 41) (Jersey)
Regulations 2008.
(2) They
come into force 7 days after they are made.
m.n. de la haye
Greffier of the States