The Merchant Shipping (Marine Equipment) Regulations 2016

PART 6 Enforcement

Restricting, suspending or withdrawing EU conformity approval

23.—(1) A notified body may by giving notice to the manufacturer restrict, suspend or withdraw EU conformity approval of equipment or a quality system where a manufacturer fails—

(a) to take corrective measures required under regulation 12(5); or

(b) to comply with regulation 16 or 20(1) to (6).

(2) Before issuing a notice under paragraph (1), a notified body must give the manufacturer an opportunity to make written representations.

(3) A notice under paragraph (1) must—

(a) be in writing;

(b) specify the date on which it is to take effect; and

(c) specify the grounds for the decision.

(4) The notified body must send a copy of any notice given under paragraph (1) to the Secretary of State.

Sample checks

24.  Where equipment approved by a notified body under regulation 12 is placed on the market or supplied for use in the United Kingdom but not yet placed on board a ship, the Secretary of State may carry out sample checks of that equipment to ensure it complies with the applicable international standards.

Defective Equipment

25.—(1) The Secretary of State may—

(a) direct an economic operator to withdraw or recall defective equipment from the market;

(b) prohibit or restrict the extent to which an economic operator may place defective equipment on the market; or

(c) prohibit or restrict the use of defective equipment on ships.

(2) Before issuing a direction, prohibition or restriction, the Secretary of State must notify any economic operator in writing and give the economic operator, not less than 10 days, to make written representations.

(3) The Secretary of State may withdraw or vary a direction, prohibition or restriction.

(4) In this regulation—

“defective equipment” means equipment to which regulation 5(1) applies that is specified in Annex 1 of Merchant Shipping Notice MSN 1874 and complies with applicable international standards, but which, in the opinion of the Secretary of State—

(a)

may compromise the health and safety of the ship’s crew, passengers or other persons; or

(b)

adversely affect the marine environment.

Offences and penalties

26.—(1) The owner and master of a ship are each guilty of an offence, where—

(a) equipment is placed on a ship otherwise than in compliance with regulation 5; or

(b) any of the restrictions or conditions imposed by a certificate issued under regulations 7(3), 8(3) or 10(3) are not complied with.

(2) It is an offence for a person—

(a) to affix a conformity mark to equipment which has not been granted EU conformity approval;

(b) to fail to comply with regulation 14, 15, 20, 21 or 22;

(c) to forge, counterfeit or otherwise alter, deface or remove any conformity mark or identification number affixed to equipment under these Regulations; or

(d) to fail to comply with a direction, prohibition or restriction given under regulation 25.

(3) A person guilty of an offence under this regulation is liable—

(a) on summary conviction—

(i) in England and Wales to a fine, and

(ii) in Scotland and Northern Ireland to a fine not exceeding the statutory maximum, or

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(4) Where a body corporate is guilty of an offence under this regulation and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, that person as well as the body corporate is guilty of an offence.

(5) Where the affairs of the body corporate are managed by its members, paragraph (4) applies in relation to the acts and defaults of a member in connection with that member’s functions of management as if that member were a director of the body corporate.

(6) Where an offence under this regulation is committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, that partner as well as the partnership is guilty of that offence.

(7) In any proceedings for an offence under these Regulations, it is a defence for the person charged to show that all reasonable steps had been taken by that person to ensure compliance with the provision concerned.

Powers to detain

27.—(1) A ship is liable to be detained where a surveyor of ships is satisfied that there is or has been a failure—

(a) to comply with regulation 5(1); or

(b) by the owner of a ship to comply with a direction issued under regulation 10(2).

(2) Section 284(1) to (6) and (8) of the Act (enforcing detention of ship)(1) applies to a ship which is liable to be detained under this regulation as if references to detention of a ship under the Act were references to detention of the ship in question under this regulation.

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

(a) states that a surveyor of ships is of the opinion that, in relation to that ship, there is a failure to comply with the requirements of regulation 5(1) or a direction issued under regulation 10(2);

(b) details the reasons that the surveyor is of the opinion those requirements of regulation 5(1) or a direction issued under regulation 10(2) are not met; and

(c) requires the terms of the notice to be complied with until the ship is released.

(4) Sections 96 and 97 of the Act (which relate to arbitration and compensation in connection with detention of a ship) apply in relation to a detention notice under this regulation as those sections apply to a detention notice under section 95 of the Act with the following modifications—

(a) the arbitrator must have regard in coming to a decision to any other matters not specified in the detention notice which appear to be relevant to whether or not the ship was liable to be detained under paragraph (1); and

(b) the arbitrator must state in the decision whether or not there was a valid basis for detention of the ship.

Application of powers of inspectors in relation to Government ships

28.  Sections 258 to 266 of the Act(2) apply to these Regulations as if they were for all purposes made under section 85 of the Act and accordingly those sections apply in relation to Government ships.

(1)

Section 284 was amended by the Merchant Shipping and Maritime Security Act 1997 (c.28), Schedule 1, paragraph 5.

(2)

These sections provide powers to inspect ships and their equipment, powers of inspectors in relation to premises and ships, for the service of improvement and prohibition notices and their reference to arbitration, compensation for invalid prohibition notices and offences for failing to comply with improvement and prohibition notices.