The Merchant Shipping (Prevention of Oil Pollution) Regulations 1996

PART IX POWERS TO INSPECT, DENY ENTRY, DETENTION AND PENALTIES

Power to Inspect

34.—(1) (a) A ship to which these Regulations apply shall be subject, in any United Kingdom port or offshore terminal, to inspections by persons appointed by the Secretary of State.

(b) Any such inspection shall be limited to verifying that there is on board a valid IOPP Certificate in the form prescribed by the Convention or a UKOPP Certificate in a form prescribed by the Secretary of State, unless there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of that Certificate. In that case, or if the ship does not carry a valid certificate, the inspector shall take such steps as he may consider necessary to ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment. The Secretary of State may in such a case permit the ship to leave the port or offshore terminal for the purposes of proceeding to the nearest appropriate repair yard.

(c) Notwithstanding subparagraph (b) above, and without prejudice to any specific control provisions over operational procedures provided for in these Regulations, the inspector may investigate any operation regulated by these Regulations if there are clear grounds for believing that the master or crew are not familiar with essential ship board procedures for preventing pollution by oil. In the event of any such inspection revealing deficiencies the Inspector shall take such steps as to ensure that the ship will not sail until the situation has been brought to order in accordance with the requirements of these Regulations.

(2) Upon receiving evidence that a particular ship has discharged oil or an oily mixture contrary to the provisions of these Regulations the Secretary of State shall cause the matter to be investigated and shall inform the State which has reported the contravention, as well as the International Maritime Organisation, of the action taken.

(3) For the purposes of this regulation any person appointed as an inspector shall have the powers of an inspector set out in sections 259 and 260 of the Merchant Shipping Act 1995.

Power to deny entry or detain

35.—(1) If a harbour master has reason to believe that a ship which he believes proposes to enter the harbour does not comply with the requirements of these Regulations, he shall immediately report the matter to the Secretary of State who, if he is satisfied that the ship presents an unreasonable threat of harm to the marine environment, may deny the entry of such ship to United Kingdom ports or offshore terminals.

(2) (a) In any case where a ship to which these Regulations apply is suspected of a contravention of the requirements of these Regulations, the ship shall be liable to be detained.

(b) Where the steps taken by an inspector under regulation 34(1)(b) or (c) involve detention of the ship, or in the event of detention under this regulation, then section 284 of the Merchant Shipping Act 1995 (which relates to the detention of a ship) shall have effect in relation to the ship, subject to the modifications that as if the words “this Act” wherever they appear, there were substituted “the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996”.

(3) Where a ship other than a United Kingdom ship is—

(a) denied entry pursuant to paragraph (1); or

(b) detained pursuant to paragraph (2); or

(c) detained pursuant to regulation 37(3);

the Secretary of State shall immediately inform the consul or diplomatic representative of the State whose flag the ship is entitled to fly or the appropriate maritime authorities of that State.

Penalties

36.—(1) If any ship fails to comply with any requirement of these Regulations (other than regulations 12, 13 and 16) the owner and the master of the ship shall each be guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum and on conviction on indictment by a fine.

(2) If any ship fails to comply with any requirement of regulation 12, 13 or 16, the owner and the master shall each be guilty of an offence and section 131(3) of the Merchant Shipping Act 1995 shall apply as it applies to an offence under that section, so that each of the owner and the master shall be liable on summary conviction to a fine not exceeding £50,000 or on conviction on indictment to a fine.

(3) It shall be a defence for a person charged under paragraph (1) of this regulation to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

(4) Where an offence under this regulation is committed, or would have been committed save for the operation of paragraph (3), by any person due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of an offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person.

Enforcement and application of fines

37.—(1) Any document required or authorised, by virtue of any statutory provision, to be served on a foreign company for the purposes of the institution of or otherwise in connection with, proceedings for an offence of contravening regulation 12, 13 or 16 alleged to have been committed by the company as the owner of a ship shall be treated as duly served on that company if the document is served on the master of the ship; and any person authorised to serve any document for the purposes of the institution of, or otherwise in connection with proceedings for an offence under these Regulations (whether or not in pursuance of the foregoing provisions of this paragraph) shall, for that purpose, have the right to go on board the ship in question.

(2) In paragraph (1), a “foreign company” means a company or body which is not one to whom any of the following provisions applies—

(a) section 695 and 725 of the Companies Act 1985(1);

(b) Article 645 and 673 of the Companies (Northern Ireland) Order 1986(2),

so as to authorise the service of the document in question under any of those provisions.

(3) A person exercising the power of detention conferred by regulation 35(2)(a) in respect of an alleged contravention of regulation 12, 13 or 16 shall immediately release the ship if—

(a) no proceedings for the offence in question are instituted within the period of 7 days beginning with the day on which the vessel is detained;

(b) such proceedings, having been instituted through exercise of the power conferred by paragraph (1) within that period, are concluded without the master or owner being convicted;

(c) either—

(i) the sum of £55,000 is paid to the Secretary of State by way of security; or

(ii) security which, in the opinion of the Secretary of State, is satisfactory and is for an amount not less than £55,000 is given to the Secretary of State, by or on behalf of the master or owner; or

(d) where the master or owner is convicted of the offence, any costs or expenses ordered to be paid by him, and any fine imposed on him, have been paid, or;

(e) the release is ordered by a court or tribunal referred to in Article 292 of the United Nations Convention on the Law of the Sea 1982, and any bond or other financial security ordered by such a court or tribunal is posted.

(4) The Secretary of State shall repay any sum paid in pursuance of paragraph (3)(c) or release any security so given—

(a) if no proceedings for the offence in question are instituted within the period of 7 days beginning with the day on which the sum is paid; or

(b) if such proceedings, having been instituted within that period are concluded without the master or owner being convicted.

(5) Where a sum has been paid, or security has been given, by any person in pursuance of paragraph (3)(c) and the master or owner is convicted of the offence in question, the sum so paid or the amount made available under the security shall be applied as follows—

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

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

and any balance shall be repaid to the person paying the sum, or giving the security.

(6) For the purposes of this regulation in its application to England and Wales and subject to paragraph (8) in its application to Northern Ireland—

(a) proceedings for an offence are instituted—

(i) when a justice of the peace issues a summons or warrant under section 1 of the Magistrates' Courts Act 1980(3) in respect of the offence,

(ii) when a person is charged with the offence after being taken into custody without a warrant,

(iii) when a bill of indictment is preferred by virtue of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933(4);

and where the application of this paragraph would result in their being more than one time for the institution of proceedings, they shall be taken to have been instituted at the earliest of those times; and

(b) proceedings for an offence are concluded without the master or owner being convicted on the occurrence of one of the following events—

(i) the discontinuance of the proceedings;

(ii) the acquittal of the master or owner;

(iii) the quashing of the master or owner’s conviction for the offence;

(iv) the grant of Her Majesty’s pardon in respect of the master or owner’s conviction for the offence.

(7) For the purposes of this regulation in its application to Scotland—

(a) proceedings for an offence are instituted—

(i) on the granting by the sheriff of a warrant in respect of the offence on presentation of a petition under section 12 of the Criminal Procedure (Scotland) Act 1975(5);

(ii) when, in the absence of a warrant or citation, the master or owner is first brought before a court competent to deal with the case;

(iii) when, in the case where he is liberated upon a written undertaking in terms of section 18(2)(a), 294(2)(a) or 295(1)(a) of the Criminal Procedure (Scotland) Act 1975, the master or owner appears at the specified court at the specified time;

(iv) when, in a case mentioned in paragraph (iii) above where the master or owner fails to appear at the specified court at the specified time, the court grants warrant for his apprehension;

(v) when summary proceedings are commenced in terms of section 33 1(3) of the Criminal Procedure (Scotland) Act 1975; and

(b) proceedings for an offence are concluded without the master or owner being convicted on the occurrence of one of the following events—

(i) the court pronounces a verdict of not guilty or not proven against the master or owner in respect of the offence;

(ii) the proceedings are expressly abandoned (other than pro loco et tempore) by the prosecutor or are deserted simpliciter;

(iii) the conviction is quashed;

(iv) the accused receives Her Majesty’s pardon in respect of the conviction.

(8) In its application to proceedings in Northern Ireland, paragraph (6)(a) above shall have effect as if—

(a) in sub-paragraph (i), for the references to section 1 of the Magistrates' Courts Act 1980 there were substituted a reference to Article 20 of the Magistrates' Courts (Northern Ireland) Order 1981(6); and

(b) for sub-paragraph (iii) there were substituted—

“(iii) when an indictment is presented under section 2(2)(c), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969(7).”

(9) Where a fine imposed by a court in proceedings against the owner or master of a ship for an offence under regulations 12, 13 or 16 above is not paid or any costs or expenses ordered to be paid by him are not paid at the time ordered by the court, the court shall, in addition to any other powers for enforcing payment, have power to direct the amount remaining unpaid to be levied by distress or arrestment and sale of the ship, her tackle, furniture and apparel.

(10) Where a person is convicted of an offence under regulations 12, 13 or 16 above, and the court imposes a fine in respect of the offence, then if it appears to the court that any person has incurred, or will incur, expenses in removing any pollution, or making good any damage, which is 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.

(1)

1985 c. 6.

(2)

S.I. 1986/1032 (N.I.6).

(3)

1980 c. 43.

(4)

1933 c. 36.

(5)

1975 c. 21.

(6)

S.I. 1981/1657 (N.I.26).

(7)

1969 c. 15(N.I.).