The Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008

PART 4Inspections, Detentions and Offences

Inspection of ships

26.—(1) In so far as sections 258 and 259 of the 1995 Act (1) (powers to inspect ships and their equipment, powers of inspectors in relation to premises and ships) apply in relation to a ship to which any of these Regulations apply [F1or any ship delivering fuel oil for combustion purposes], for the purposes of checking compliance with these Regulations those sections have effect subject to the following modifications.

(2) The power in those sections to inspect a ship and its equipment, any part of the ship, any articles on board and any documentation carried in the ship, is limited to—

(a)verifying whether an appropriate certificate has been issued in respect of the ship and is still valid,

(b)verifying whether documentation referred to in regulation 19(2) (“appropriate documentation”) has been issued in respect of the ship and is still valid,

(c)investigating any operation regulated by these Regulations, if there are clear grounds for believing that the master or the crew are not familiar with essential shipboard procedures relating to the prevention of air pollution,

(d)verifying whether the ship has emitted any substances in violation of these Regulations,

(e)inspecting the log book entries required under [F2paragraph 5 of Schedule 2A], or

(f)inspecting bunker delivery notes that are to be made available for inspection under regulation 25(8)(a),

except where there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the appropriate certificate or other appropriate documentation referred to in sub-paragraph (a) and (b).

[F3(2A) The powers in sections 258 and 259 of the 1995 Act also apply to verifying—

(a)whether an IEE Certificate has been issued in respect of the ship;

(b)whether the ship has a SEEMP and that it is duly implemented in accordance with Regulation 28 of Annex VI; and

(c)whether a Statement of Compliance has been issued and is still valid.]

[F4(3) The power in those sections to go on board a ship may only be exercised if the ship in question is—

(a)in a port in the United Kingdom,

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

(c)a fixed platform in United Kingdom waters or controlled waters, or

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

(4) Where the ship is inspected for the purposes of paragraph (2)(d) [F5or (2A)] and is not a United Kingdom ship, the person exercising the powers of inspection must ensure that the report of the inspection is sent to—

(a)the consul or diplomatic representative of the State whose flag the ship is entitled to fly or the appropriate maritime authorities of that State, and

(b)any other Party to the Convention that requested the inspection.

(5) Where log book entries are inspected under paragraph (2)(e), or bunker delivery notes are inspected under paragraph (2)(f), the person exercising the power of inspection may—

(a)make a copy of an entry in that book, and

(b)require the master of the ship to certify that the copy is a true copy of the original.

(6) Any copy certified in accordance with paragraph (5) is to be admissible in any judicial proceeding as evidence of the facts stated in it.

Textual Amendments

Investigation of alleged violations by United Kingdom ships

27.  Upon receiving evidence that a United Kingdom ship has emitted a substance in violation of these Regulations the Secretary of State must—

(a)cause the matter to be investigated,

(b)inform the IMO of the action taken, and

(c)where another State has reported the violation, inform that State of the action taken.

General provisions on detention

28.—(1) [F6Where a determination is made of the kind mentioned in regulation 16(1)] in relation to a ship, or a surveyor of ships has clear grounds for believing that—

(a)an appropriate certificate is required to have been issued in respect of a ship but has not been issued, or has been issued and is not valid,

(b)documentation referred to in regulation 19(2) (“appropriate documentation”) is required to have been issued in respect of a ship but has not been issued, or has been issued but is not valid,

(c)the condition of a ship or its equipment does not correspond substantially with the particulars of that certificate or other appropriate documentation,

(d)the master or crew of a ship are not familiar with essential shipboard procedures relating to the prevention of air pollution, or

(e)an offence under regulation 32(1)(a) to (e) is being committed in respect of the ship,

the ship is liable to be detained until a surveyor of ships is satisfied that it can proceed to sea without presenting any unreasonable threat of harm to the marine environment.

(2) But a person having powers to detain a ship may permit a ship which is liable to be detained under paragraph (1) to proceed to sea for the purposes of proceeding to the nearest appropriate repair yard available.

(3) Where a surveyor of ships has clear grounds for believing that [F7a relevant offence] has been committed in respect of a ship, the ship is liable to be detained.

[F8(4) The power under this regulation to detain a ship may only be exercised if the ship in question is—

(a)in a port in the United Kingdom,

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

(c)a fixed platform in United Kingdom waters or controlled waters, or

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

(5) Section 284 of the 1995 Act(2) (enforcing detention of a ship) applies where a ship is liable to be detained under the preceding provisions of this regulation as if—

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

(b)subsection (7) were omitted.

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

(a)states the grounds of the detention, and

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

(7) Where a ship other than a United Kingdom ship is detained, the Secretary of State must 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.

(8) Where a ship is detained under paragraph (3), a person having power to detain the ship must, at the request of the owner, master, demise charterer or manager, immediately release the ship—

(a)if no proceedings for [F9a relevant offence] are instituted within the period of seven days beginning with the day on which the ship is detained,

(b)if proceedings for [F10a relevant offence] having been instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted,

(c)if either—

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

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

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

(d)where the owner, manager, demise charterer or master is convicted of [F11a relevant offence], if any costs or expenses ordered to be paid by that person, and any fine imposed on that person, 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(3), and any bond or other financial security ordered by such court or tribunal is posted.

(9) The Secretary of State must repay any sum paid in pursuance of paragraph (8)(c) or release any security so given—

(a)if no proceedings for [F12a relevant offence] are instituted within the period of seven days beginning with the day on which the sum is paid, or

(b)if proceedings for any such offence, having been instituted within that period, are concluded without the owner, manager or demise charterer or master being convicted.

(10) Where a sum has been paid, or security has been given, by any person in pursuance of paragraph (8)(c) and the owner, manager, demise charterer or master is convicted of [F13a relevant offence], the sum so paid or the amount made available under the security must be applied as follows—

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

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

and any balance must be repaid to the first-mentioned person.

(11) Section 145 of the 1995 Act (4) (interpretation of section 144) applies for the purposes of paragraphs (8) to (10) as if—

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

(b)references to an offence under section 131 were references to [F14a relevant offence].

Textual Amendments

Power for harbour master to detain

29.—(1) Where the harbour master of a harbour in the United Kingdom has clear grounds for believing that [F15a relevant offence [F16other than a contravention of regulation 11ZA(1) or (4), 13B(4), 19A(1) or (4) or 25A(2) or (3)]] has been committed the harbour master may detain that ship.

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

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

(a)states the grounds for the detention, and

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

(4) Where a ship is detained under paragraph (2), the harbour master must immediately release the ship—

(a)if no proceedings for [F17the relevant offence] are instituted within the period of seven days beginning with the day on which the ship is detained,

(b)if proceedings for [F17the relevant offence], having been instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted,

(c)if either—

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

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

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

(d)where the owner, manager, demise charterer or master is convicted of [F17the relevant offence] if any costs or expenses ordered to be paid by that person, and any fine imposed on that person, 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 court or tribunal is posted.

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

(a)if no proceedings for [F17the relevant offence] are instituted within the period of seven days beginning with the day on which the sum is paid, or

(b)if proceedings for [F17the relevant offence], having been instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted.

(6) Where a sum has been paid, or security has been given, by any person in pursuance of paragraph (4)(c) and the owner, manager, demise charterer or master is convicted of [F17the relevant offence], the sum so paid or the amount made available under the security must be applied as follows—

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

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

and any balance must be repaid to the first-mentioned person,

(7) Section 145 of the 1995 Act (interpretation of section 144) applies for the purposes of paragraphs (4) to (6) as if—

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

(b)references to an offence under section 131 were references to [F18a relevant offence] [F19other than a contravention of regulation 11ZA(1) or (4), 13B(4), 19A(1) or (4) or 25A(2) or (3)].

Textual Amendments

Duty of harbour master to report deficient ships

30.  If the harbour master of a harbour in the United Kingdom has reason to believe that a ship is about to enter or leave the harbour and does not comply with the requirements of these Regulations, the harbour master must immediately report the matter to the Secretary of State.

Right of appeal and compensation

31.—(1) — Regulations 11 and 12 of the 1995 Regulations (right of appeal and compensation) apply in relation to the exercise of the powers of detention under these Regulations as they apply in relation to the exercise of those powers under Part 1 of those Regulations, subject to the modifications referred to in paragraph (2).

(2) The modifications are—

(a)references to “inspector” are to be taken as references to the authority detaining the ship or the harbour master, as the case may be,

(b)references to “access refusal notice”, “service of access refusal notice” and “refusal of access” are to be omitted, and

(c)in regulation 12(2) after “State” there is added “, except where the ship is detained by a harbour master, in which case any compensation awarded under this section shall be payable by the harbour authority.”.

[F20Non-compliant fuel oil for combustion purposes

31A.—(1) Where any person exercising a power of inspection under section 258 or 259 of the 1995 Act finds on a ship fuel oil for combustion purposes that does not comply with these Regulations and which is intended for use on a relevant ship, that person may require the relevant local supplier of fuel oil—

(a)to bring that fuel oil into compliance, or

(b)not to deliver that fuel oil to the relevant ship.

(2) Where any person exercising a power of inspection under section 258 or 259 of the 1995 Act finds on a relevant ship fuel oil for combustion purposes that does not comply with these Regulations that person may require that it be brought into compliance or removed.

(3) In this regulation “local supplier of fuel oil” and “relevant ship” have the same meaning as in regulation 25.]

Textual Amendments

Offences

32.—(1) Any contravention of—

(a)regulation 5(1), 6(1), 7(1), 8(1), 9(1), (2) or (3), 10(2), [F2111ZA(1) or (4),] 18(4), 19(1) or (2), [F2219A(1) or (4),] 20(3), 23(3) or (4) or 25(9)(c) [F23, [F2425A(2) or (3), 25B(1)] or paragraph 5(6) of Schedule 2A F25...,] is an offence by the owner and by the master of the ship in question,

(b)regulation [F2616(5)], 21(6) [F27or (10)] or 24(2) is an offence by the owner of the ship in question,

[F28(c)regulation 20(1), 21(11), 23(6), 24(1), (4), (6), (7), (9), (10) or (11), 25(3), (3A) or (3B), (8), (10) or (11) or paragraph 2(3) to (5) or 5(1) to (5) of Schedule 2A is an offence by the master of the ship in question;]

[F29(d)regulation 15(5), 19 F30..., 21(4), (4B) or (4D), 24(8), 25(4) or (5) or paragraph 2(2) to 2(3A) or 4(3) of Schedule 2A is an offence by the owner, manager, demise charterer and master of the ship in question;]

(e)regulation [F3113B(4) or] 18(3) is an offence by the person in question;

(f)regulation 23(1) or (2) is an offence by the harbour authority or terminal operator in question;

(g)regulation 25(2) is an offence by the fuel oil supplier in question;

(h)regulation 25(7) or (9)(a) or (b) is an offence by the local supplier of fuel oil in question.

(2) An offence under paragraph (1) is punishable—

(a)on summary conviction by a fine not exceeding the statutory maximum; or

(b)on conviction on indictment by a fine.

(3) A fuel oil supplier’s representative who makes a false declaration in a bunker delivery note is guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine.

[F32(3A) Where a ship uses an emission abatement method which is not—

(a)permitted in accordance with paragraph 6 or 7 of Schedule 2A,

(b)authorised for the purposes of [F33paragraphs 2 and 4 of Article 8, and Article 9, of the 2016 Directive] by an EEA state F34..., or

(c)authorised for the purposes of Annex VI by a Contracting Government other than the United Kingdom,

the owner and master are guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine.]

F35(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3C) A local supplier of fuel oil who fails to comply with a requirement under regulation 31A(1) is guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine.

(3D) A person to whom a requirement under regulation 31A(2) is addressed who fails to comply with that requirement is guilty of an offence and punishable on summary conviction by a fine not exceeding the statutory maximum or on conviction on indictment by a fine.

(4) Where an offence under these Regulations is committed, or would be committed save for the operation of regulation 37(1), by any person due to the act or default of some other person, that other person is also 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 person.

(5) [F36In this regulation] “fuel oil supplier’s representative”, “fuel oil supplier” and “local supplier of fuel oil” have the same meaning as in regulation 25.

Textual Amendments

Service of documents of foreign companies

33.  Section 143(6) of the 1995 Act (service of documents on foreign companies required or authorised by any statutory provision in connection with proceedings for an offence under section 131 of the 1995 Act) applies to proceedings for an offence under these Regulations as it applies to proceedings for an offence under section 131 as if—

(a)the reference for section 131 were to these Regulations,

(b)in the case of an offence in respect of a ship other than a platform, the reference to the owner were to the owner, manager or demise charterer, and

(c)in the case of an offence in respect of a platform the reference to—

(i)the owner of the ship were to the owner of the platform, and

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

Enforcement and application of fines

34.  Section 146 of the 1995 Act (enforcement and application of fines) applies to any fine for [F37a relevant offence] as if—

(a)in subsection (1) of that section the reference to proceedings against the owner or master of a ship for an offence under Chapter 2 were a reference to proceedings against the owner, master, demise charterer or manager for [F38a relevant offence], and

(b)in subsection (2) of that section, the reference to an offence under section 131 were a reference to [F39a relevant offence].

Textual Amendments

Restriction on jurisdiction over offences outside United Kingdom limits

35.—(1) Where there has been [F40a contravention of regulation [F4121(4), (4B) or (4D) or paragraph 2(2), (3) or (3A)] of Schedule 2A] in respect of a ship which is not a United Kingdom ship in the internal waters, territorial sea or exclusive economic zone of a foreign State, proceedings in respect of that offence must not be instituted in the United Kingdom unless—

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

(b)the offence has caused or is likely to cause air pollution in controlled waters or United Kingdom waters.

(2) Where proceedings have been instituted but not concluded, they must be suspended upon the request of the foreign State in question and the Secretary of State must send all the evidence, court records and documents relating to the case, together with any sum paid or security given, to the foreign State.

(3) In this regulation “foreign State” means a State other than the United Kingdom.

Textual Amendments

Suspension of proceedings at flag state request

36.—(1) This regulation applies to proceedings instituted but not concluded in the United Kingdom in respect of a contravention of regulation [F42[F4321(4), (4B) or (4D) or paragraph 2(2), (3) or (3A)] of Schedule 2A] committed outside United Kingdom waters by a ship which is not a United Kingdom ship.

(2) Subject to paragraph (3), any proceedings must be suspended if the court is satisfied that the flag State of the ship in question has instituted proceedings corresponding to the proceedings in the United Kingdom in respect of the contravention of that provision within six months of the institution of the proceedings by the United Kingdom.

(3) Paragraph (2) does not apply—

(a)where the contravention of regulation [F44[F4521(4), (4B) or (4D) or paragraph 2(2), (3) or (3A)] of Schedule 2A] resulted in serious pollution to the United Kingdom; or

(b)the Secretary of State certifies that the flag State in question has repeatedly disregarded its obligation to enforce effectively the requirements of the Convention in respect of its ships.

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

Textual Amendments

Defences

37.—(1) In any proceedings for an offence under these Regulations, it is a defence for the person charged to prove that person took all reasonable steps and exercised all due diligence to ensure that the regulation in question was complied with.

(2) Without prejudice to paragraph (1), in any proceedings for an offence [F46comprising a contravention of regulation [F4721(4), (4B) or (4D) or paragraph 2(2), (3) or (3A)] of Schedule 2A] it is a defence for the person charged to prove that—

(a)the ship was not a United Kingdom ship,

(b)the emission took place in waters that were neither controlled waters nor [F48United Kingdom waters, and]

(c)the ship was in a port in the United Kingdom at the time of the institution of proceedings by reason only of stress of weather or any other reason beyond the control of the master or owner or any charterer or manager.

Textual Amendments

[F49Review

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

(a)carry out a review of these Regulations;

(b)set out the conclusions of the review in a report; and

(c)publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how Council Directive 1999/12/EC, relating to a reduction in the sulphur content of certain liquid fuels is implemented in other Member States.

(3) The report must in particular—

(a)set out the objectives intended to be achieved by the regulatory system established by these regulations;

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

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before 16th December 2019.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.]

Textual Amendments

(1)

Section 258 was amended by the Merchant Shipping and Maritime Security Act 1997 (c.28), Schedule 1, paragraph (4).

(2)

Section 284 was amended by the Maritime Shipping and Maritime Security Act 1997 (c.28), Schedule 1.

(3)

Cmnd 8941.

(4)

Section 145 was amended by the Criminal Justice Act 2003 (c.44), Schedule 36.