The Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010

Citation and commencement U.K.

1.—(1) These Regulations may be cited as the Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010.

(2) Subject to paragraph (3), regulations 3(2), 4, 5 and 7(2), and regulation 7(1) insofar as it relates to any of those provisions, come into force on [F1 1st October 2012].

(3) Where a harbour authority has made an application under regulation 5(1)(b) within two months starting on [F2 1st April 2012], the provisions mentioned in paragraph (2) do not come into force in respect of the harbour authority waters regulated or managed by that harbour authority until—

(a) [F3 1st October 2012], or

(b) the making of the licence decision,

whichever is the later.

[F4 (3A) Regulation 5A(2) comes into force on 1st April 2012].

(4) The other provisions of these Regulations come into force on [F5 1st April 2012].

[F6 (5) These Regulations cease to have effect at the end of the period of seven years beginning with the day on which these Regulations come into force.]

Textual Amendments

F1 Words in reg. 1(2) substituted (30.9.2011) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) (No. 2) Regulations 2011 (S.I. 2011/2183), regs. 1(2), 2(2)

F2 Words in reg. 1(3) substituted (30.9.2011) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) (No. 2) Regulations 2011 (S.I. 2011/2183), regs. 1(2), 2(3)

F3 Words in reg. 1(3)(a) substituted (30.9.2011) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) (No. 2) Regulations 2011 (S.I. 2011/2183), regs. 1(2), 2(4)

F4 Reg. 1(3A) inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(2)

F5 Words in reg. 1(4) substituted (30.9.2011) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) (No. 2) Regulations 2011 (S.I. 2011/2183), regs. 1(2), 2(5)

F6 Reg. 1(5) inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 2(1)

Commencement Information

I1 Reg. 1 in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

[F7 Review U.K.

1A.— (1) Before the end of the review period, the Secretary of State must—

(a) carry out a review these Regulations;

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

(c) publish the report.

(2) 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.

(3) “Review period” means the period of five years beginning with the day on which these Regulations come into force.]

Textual Amendments

F7 Reg. 1A inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 2(1)

Commencement Information

I2 Reg. 1A in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

Interpretation U.K.

2.  In these Regulations—

“application” means, except as provided otherwise by regulation 6(4) and in regulation 7(3), an application for an oil transfer licence submitted by a harbour authority to the Secretary of State under regulation 5(1);

“bunkering operation” means the transfer between ships of a substance consisting wholly or mainly of oil for consumption by the engines of the ship receiving the substance;

“cargo transfer” means the transfer between two ships of a substance consisting wholly or mainly of oil which is transported by either or both of the ships for reward, but does not include—

(a)

a bunkering operation, or

(b)

a transfer of—

(i)

cargo residues, or

(ii)

ship-generated waste,

as defined by regulation 2 of the Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) Regulations 2003(1);

“consolidation operation” means a cargo transfer carried out—

(a)

in harbour authority waters,

(b)

between two ships which normally carry out bunkering operations in the harbour authority waters in which the operation takes place,

(c)

with the prior consent of the harbour authority which regulates or manages the waters in which the operation takes place, and

(d)

for the purpose of rationalising cargo capacity;

“the consultation bodies” means—

(a)

such of—

(i)

Natural England,

(ii)

[F8 the Natural Resources Body for Wales],

(iii)

Scottish Natural Heritage, and

(iv)

the Council for Nature Conservation and the Countryside,

as the Secretary of State considers likely to have an interest in an application by reason of their responsibilities, and

(b)

any authority or other body the Secretary of State considers likely to have an interest in an application (whether by virtue of having specific environmental responsibilities under any enactment or otherwise);

“European site” means a “European site” as defined in regulation 8 of the Conservation of Habitats and Species Regulations 2010(2)and a “European offshore marine site” as defined in regulation 15 of the Offshore Marine Conservation (Natural Habitats &c) Regulations 2007(3);

“general lighthouse authority” has the meaning given to it in section 193 of the Merchant Shipping Act 1995(4);

“the Habitats Directive” means Council Directive 92/43/EEC of 21st May 1992 on the conservation of natural habitats and of wild fauna and flora(5);

“harbour authority” has the meaning given to it in section 57(1) of the Harbours Act 1964(6);

“harbour authority waters” means waters regulated or managed by a harbour authority, excluding any areas outside a harbour over which a harbour authority exercises control in accordance with the Pilotage Act 1987(7) by virtue of an order of the Secretary of State made under section 1(3)(a) of that Act;

“licence decision” means the decision of the Secretary of State whether to grant an oil transfer licence or an amended oil transfer licence and, if so, as to the terms on which to do so;

“lightening operation” means a cargo transfer carried out—

(a)

in harbour authority waters,

(b)

[F9 with the prior consent] of a harbour authority which regulates or manages the waters in which the operation takes place, and

(c)

[F10 in order to reduce the draught of the ship transferring the cargo, to enable it to move to shallower waters in a harbour authority area;]

[F11 “Merchant Shipping Notice” means a notice described as such and issued by the Maritime and Coastguard Agency, an executive agency of the Department for Transport, and any reference to a particular Merchant Shipping Notice includes a reference to that Merchant Shipping Notice as revised or reissued from time to time;]

“Natura 2000” has the meaning given to it by regulation 2(1) of the Conservation (Natural Habitats, &c) Regulations 1994(8);

“offshore installation” means–

(a)

an offshore installation within the meaning of section 44 of the Petroleum Act 1998(9), which is not a ship, or

(b)

a renewable energy installation within the meaning of section 104 of the Energy Act 2004(10);

“oil” has the meaning given to it by section 151 of the Merchant Shipping Act 1995; and

“oil transfer licence” means a licence granted to a harbour authority by the Secretary of State, enabling the harbour authority to authorise cargo transfers—

(a)

of a substance or substances specified in the licence,

(b)

in a specified location or locations, and

(c)

subject to any conditions specified in the licence.

Textual Amendments

F8 Words in reg. 2 substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 389 (with Sch. 7)

F9 Words in reg. 2 substituted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(3)(a)

F10 Words in reg. 2 substituted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(3)(b)

F11 Words in reg. 2 inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(3)(c)

Commencement Information

I3 Reg. 2 in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

Prohibited transfers U.K.

3.— [F12 (1) Subject to paragraph (3) and regulation 6, a cargo transfer must not be carried out in United Kingdom waters unless—

(a) the ships carrying out the transfer are within harbour authority waters; or

(b) the ships carrying out the cargo transfer are within the permit area, and a permit has been obtained from the Secretary of State in accordance with the procedure set out in Merchant Shipping Notice 1829.]

(2) Subject to paragraph (3) and (4) and regulation 8, a cargo transfer must not be carried out in harbour authority waters, except in accordance with an authorisation of the harbour authority which regulates or manages the waters in which the cargo transfer is carried out.

[F13 (2A) Subject to paragraphs (3) and (5) and regulation 6, a bunkering operation must not be carried out in United Kingdom waters unless the ships carrying out the operation are within harbour authority waters.]

(3) [F14 Paragraphs (1), (2) and (2A)] do not apply to a cargo transfer or bunkering operation—

(a) between a ship and an offshore installation;

(b) to or from a warship, naval auxiliary ship or other ship owned or operated by a State and used solely, for the time being, on government non-commercial service; or

(c) carried out by or on behalf of a general lighthouse authority.

(4) Paragraph (2) does not apply to a cargo transfer which is—

(a) a lightening operation; or

(b) a consolidation operation.

[F15 (5) Paragraph (2A) does not apply to a bunkering operation between a ship and its rescue boat or tender.

(6) In this regulation—

“permit area” means the area of sea off Southwold in Suffolk defined by a circle of radius 1.5 nautical miles centred on position 52° 16’N. 01° 57.3’E;

“rescue boat” means a ship designed or used to rescue persons in distress and to marshal life rafts.]

Textual Amendments

F12 Reg. 3(1) substituted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(4)(a)

F13 Reg. 3(2A) inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(4)(b)

F14 Words in reg. 3(3) substituted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(4)(c)

F15 Reg. 3(5)(6) inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(4)(d)

Commencement Information

I4 Reg. 3(1)(3)(4) in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

I5 Reg. 3(2) in force at 1.10.2012 (subject to reg. 1(3)), see reg. 1(2)(3) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

Authorisation of cargo transfers U.K.

4.—(1) A harbour authority may only authorise a cargo transfer which is within the scope permitted by an oil transfer licence.

(2) The authorisation of a cargo transfer by a harbour authority is valid only if given—

(a) on receipt of a written application for authorisation,

(b) in advance of the cargo transfer, and

(c) in writing.

Commencement Information

I6 Reg. 4 in force at 1.10.2012 (subject to reg. 1(3)), see reg. 1(2)(3) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

Oil transfer licences U.K.

5.—(1) Before a harbour authority may obtain an oil transfer licence the harbour authority must—

(a) determine, in accordance with the procedure in Schedule 1, whether the cargo transfers to be authorised pursuant to the licence would be likely to have a significant effect on any European site; and

(b) apply for the licence to the Secretary of State in accordance with the procedure in Schedule 2.

(2) In harbour authority waters where—

(a) an oil transfer licence has effect, and

(b) the harbour authority which regulates or manages those harbour authority waters becomes aware of circumstances which render the information provided in the application inaccurate to what is or may be a material extent,

the harbour authority must apply to the Secretary of State for an amended oil transfer licence.

(3) The harbour authority must make the application under paragraph (2) within 3 months of becoming aware of the circumstances referred to in that paragraph.

(4) A harbour authority applying for an amended oil transfer licence must use the procedure in Schedules 1 and 2, and for this purpose—

(a) references in Schedules 1 and 2 to the oil transfer licence are to be taken as references to the amended oil transfer licence;

(b) references in Schedules 1 and 2 to the application are to be taken as references to the application for the amended oil transfer licence; and

(c) references in Schedules 1 and 2 to the licence decision are to be taken as references to the decision whether to issue an amended oil transfer licence.

(5) Where a harbour authority applies for an amended oil transfer licence under paragraph (2) the Secretary of State may—

(a) issue an amended oil transfer licence in such terms as the Secretary of State considers appropriate;

(b) decline to issue an amended oil transfer licence, leaving the existing oil transfer licence to continue in effect; or

(c) decline to issue an amended oil transfer licence and revoke the existing oil transfer licence.

Commencement Information

I7 Reg. 5 in force at 1.10.2012 (subject to reg. 1(3)), see reg. 1(2)(3) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

[F16 Ship-to-ship transfer operations plans and notification of cargo transfers in the Pollution Control Zone U.K.

5A.— (1) A cargo transfer to or from a ship with a gross tonnage of 150 tons or more must not be carried out in United Kingdom waters or in the Pollution Control Zone unless a ship-to-ship transfer operations plan has been approved by the ship’s flag State.

(2) A cargo transfer to or from such a ship must not be carried out in the Pollution Control Zone unless the Secretary of State has been notified in accordance with the procedure specified in Merchant Shipping Notice 1829.

(3) A cargo transfer to or from such a ship in United Kingdom waters or in the Pollution Control Zone must be carried out in compliance with its ship-to-ship transfer operations plan.

(4) In this regulation—

“flag State”, in relation to a ship, means the State whose flag the ship is entitled to fly;

[F17 “Pollution Control Zone” means the areas of sea specified by the Merchant Shipping (Prevention of Pollution) (Limits) Regulations 2014 as waters within which the jurisdiction and rights of the United Kingdom are exercisable in accordance with Part XII of the United Nations Convention on the Law of the Sea for the protection and preservation of the marine environment; and]

“ship-to-ship transfer operations plan” means a document which—

(a)

is in the working language of the ship to which it relates; and

(b)

sets out how cargo transfer operations should be conducted, based on best practice guidelines identified by the International Maritime Organization.

(5) For the purposes of this regulation, gross tonnage is to be determined in accordance with Schedule 3.]

Textual Amendments

F16 Reg. 5A inserted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(5)

F17 Words in reg. 5A(4) substituted (28.1.2015) by The Merchant Shipping (Prevention of Pollution) (Limits) Regulations 2014 (S.I. 2014/3306), reg. 1, Sch. 2 para. 9

Commencement Information

I8 Reg. 5A in force at 1.4.2012, see reg. 1(3A)(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; S.I. 2011/2183, reg. 2; and S.I. 2012/742, reg. 3(2))

Exemptions U.K.

6.— [F18 (1) Subject to paragraph (3), the Secretary of State may exempt—

(a) a cargo transfer from the provisions of regulation 3(1); and

(b) a bunkering operation from the provisions of regulation 3(2A).]

(2) The Secretary of State may make any such exemption subject to such conditions as the Secretary of State considers appropriate.

(3) Where the Secretary of State considers that a cargo transfer or bunkering operation is likely to have a significant effect on a European site, the Secretary of State must, before granting an exemption under paragraph (1), require the person applying for the exemption to provide sufficient information to enable the Secretary of State to carry out an appropriate assessment of the implications of the cargo transfer or bunkering operation for the European site, in view of the conservation objectives of the site.

(4) The procedure for the assessment referred to in paragraph (3) is the procedure for assessment of an application for an oil transfer licence in Schedules 1 and 2, and for this purpose—

(a) references in Schedules 1 and 2 to the harbour authority are to be taken as references to the person who applied for the exemption;

(b) references in Schedules 1 and 2 to the application are to be taken as references to the application for the exemption;

(c) references in Schedules 1 and 2 to the oil transfer licence are to be taken as references to the proposed exempt cargo transfer or bunkering operation; and

(d) references in Schedules 1 and 2 to the licence decision are to be taken as references to the decision whether to grant the exemption.

Textual Amendments

F18 Reg. 6(1) substituted (11.9.2017) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2017 (S.I. 2017/837), regs. 1, 2(2)

Commencement Information

I9 Reg. 6 in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2, S.I. 2011/974, reg. 2, S.I. 2011/2183, reg. 2)

Offences U.K.

7.—(1) If a cargo transfer or bunkering operation is carried out in contravention of these Regulations, the owner, the manager and the master of each ship carrying out the cargo transfer or bunkering operation is guilty of an offence.

(2) A harbour authority which—

(a) authorises a cargo transfer without an oil transfer licence;

(b) fails to take all reasonable steps to prevent a cargo transfer which is neither—

(i) authorised under an oil transfer licence, nor

(ii) exempted under regulation 3(3) or (4); or

(c) knowingly or recklessly provides false information in an application,

is guilty of an offence.

(3) A person who knowingly or recklessly provides false information to the Secretary of State in relation to an application for an exemption under regulation 6 is guilty of an offence.

(4) A person guilty of an offence under this regulation is liable [F19 on summary conviction to a fine not exceeding £25,000 and on conviction on indictment to a fine] [F19 on summary conviction, or on conviction on indictment, to a fine] .

(5) Where a person is charged with an offence under paragraph (1), (2)(a) or (2)(b), it is a defence for the person charged to prove that the cargo transfer or bunkering operation was for one or more of the following purposes—

(a) securing the safety of any ship;

(b) preventing damage to any ship or cargo;

(c) saving life;

(d) preventing pollution,

unless the court is satisfied that the cargo transfer or bunkering operation was not necessary for any of those purposes and was not a reasonable step to take in the circumstances.

Textual Amendments

F19 Words in reg. 7(4) substituted (E.W.) (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 82 (with reg. 5(1))

Commencement Information

I10 Reg. 7(1) in force at 1.4.2012 for specified purposes, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

I11 Reg. 7(1) in force at 1.10.2012 in so far as not already in force (subject to reg. 1(3)), see reg. 1(2)(3) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

I12 Reg. 7(2) in force at 1.10.2012 (subject to reg. 1(3)), see reg. 1 (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

I13 Reg. 7(3)-(5) in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

Transitional provision U.K.

8.  Where at least six cargo transfers have been carried out within the same harbour authority waters during the twelve months prior to [F20 1st April 2012], regulation 3(2) does not apply in respect of cargo transfers in those harbour authority waters until either—

(a) a licence decision has been made in respect of that harbour authority’s application; or

(b) the expiry of two years starting on [F20 1st April 2012],

whichever is sooner.

Textual Amendments

F20 Words in reg. 8 substituted (31.3.2012) by The Merchant Shipping (Ship-to-Ship Transfers) (Amendment) Regulations 2012 (S.I. 2012/742), regs. 1(2), 3(6)

Commencement Information

I14 Reg. 8 in force at 1.4.2012, see reg. 1(4) (as amended by S.I. 2010/1769, reg. 2; S.I. 2011/974, reg. 2; and S.I. 2011/2183, reg. 2)

Signed by authority of the Secretary of State for Transport

Paul Clark

Parliamentary Under Secretary of State

Department for Transport

8th April 2010