The Merchant Shipping (Radiocommunications) (Amendment) Regulations 2021

PART 1 General

Citation, commencement and extent

1.—(1) These Regulations may be cited as the Merchant Shipping (Radiocommunications) (Amendment) Regulations 2021 and come into force on 24th December 2021.

(2) These Regulations extend to England and Wales, Scotland and Northern Ireland.

Amendments

2.  The amendments listed in Schedule 1 have effect.

Interpretation

3.  In these Regulations—

“cargo ship” means a ship which is not a passenger ship;

“Chapter IV” means Chapter IV in the Annex to the Convention (relating to radiocommunications)(1);

“Convention” means the International Convention for the Safety of Life at Sea, 1974(2);

“fishing vessel” means a ship used for catching fish, whales, seals, walrus or other living resources of the sea;

“gross tonnage” means gross tonnage as determined in accordance with regulation 6 or 12(1) of the Merchant Shipping (Tonnage) Regulations 1997(3);

“international voyage” means a voyage between—

(a)

a port in the United Kingdom and a port outside the United Kingdom; or

(b)

a port in a Convention country other than the United Kingdom and a port in any other country or territory, whether a Convention country or not, which is outside the United Kingdom,

and, for the purposes of paragraph (b), “Convention country” means a country or territory which is either a country the Government of which is party to the Convention or a territory to which the Convention extends whether or not it is subject to the amendments to, or reservations in respect of, the Convention;

“Marine Guidance Note” means a note described as such and issued by the Maritime and Coastguard Agency (an executive agency of the Department for Transport) and includes a reference to any document amending or replacing that note which is considered by the Secretary of State to be relevant from time to time and is specified in a Marine Guidance Note;

“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 includes a reference to any document amending or replacing that notice which is considered by the Secretary of State to be relevant from time to time and is specified in a Merchant Shipping Notice;

“non-United Kingdom ship” means any ship other than a United Kingdom ship;

“passenger” is a person other than—

(a)

the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and

(b)

a child under one year of age;

“passenger ship” is a ship which carries more than 12 passengers;

“pleasure vessel” means—

(a)

any vessel which at the time it is being used is—

(i)

in the case of a vessel wholly owned by–

(aa)

an individual or individuals, used only for the sport or pleasure of the owner or the immediate family or friends of the owner; or

(bb)

a body corporate, used only for sport or pleasure and on which the persons on board are employees or officers of the body corporate, or their immediate family or friends; and

(ii)

on a voyage or excursion which is one for which the owner does not receive money for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion; or

(b)

any vessel wholly owned by or on behalf of a members’ club formed for the purpose of sport or pleasure which, at the time it is being used, is used only for the sport or pleasure of members of that club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club,

where, in the case of any vessel referred to in paragraphs (a) or (b), no other payments are made by or on behalf of users of the vessel, other than by the owner; and in this definition “immediate family” means, in relation to an individual, the spouse or civil partner of the individual, and a relative of the individual or the individual’s spouse or civil partner; and “relative” means brother, sister, ancestor or lineal descendant;

“radio installation” means any radio installation provided on board a ship in compliance with Chapter IV, including its associated antennas, interconnecting circuits and, where appropriate, sources of electrical energy;

“Radio Regulations” means the Radio Regulations(4) annexed to, or regarded as being annexed to, the Constitution and Convention of the International Telecommunication Union, 1992(5);

“sea area A2”, “sea area A3”, and “sea area A4” have the same meaning as in regulation 2.1 of Chapter IV.

Application

4.—(1) Subject to paragraph (2), these Regulations apply to—

(a) United Kingdom ships, wherever they may be; and

(b) non-United Kingdom ships while they are within United Kingdom waters.

(2) These Regulations do not apply to—

(a) ships of war or naval auxiliaries;

(b) ships owned or operated by a State and engaged only on governmental non-commercial service;

(c) cargo ships of less than 300 gross tonnage;

(d) ships not propelled by mechanical means;

(e) wooden ships of primitive build;

(f) pleasure vessels;

(g) fishing vessels;

(h) ships to which the Merchant Shipping (Radio Installations) Regulations 1998(6) apply;

(i) ships to which the Merchant Shipping (Passenger Ships on Domestic Voyages) Regulations 2000(7) apply;

(j) ships to which the Merchant Shipping (High Speed Craft) Regulations 2004(8) apply;

(k) ships while being navigated within the Great Lakes of North America and their connecting and tributary waters as far east as the lower exit of St. Lambert Lock in Montreal in the Province of Quebec, Canada.

(3) A non-United Kingdom ship flying the flag of a State which is not a party to the Convention is not subject to these Regulations if it would not have been in United Kingdom waters but for stress of weather or any other circumstances which neither the master nor the owner or the charterer could have prevented.

(4) Where persons are on board a ship as a consequence of—

(a) the circumstances described in paragraph (3); or

(b) an obligation laid upon the master to carry shipwrecked or other persons(9),

those persons are not to be taken into account for the purpose of determining the application to that ship of any provision of these Regulations.

(5) Nothing in these Regulations prohibits any ship, survival craft or person in distress from using any means at their disposal to attract attention, make known their position or obtain help.

Exemptions

5.—(1) The Secretary of State may grant an exemption from any provision of Chapter IV in respect of—

(a) a ship which does not normally engage on international voyages but is, in exceptional circumstances, required to undertake a single international voyage;

(b) a ship which embodies features of a novel kind if research into the development of those features and their incorporation in ships engaged on international voyages may be seriously impeded if the ship had to comply with the requirements of Chapter IV.

(2) Subject to paragraph (11), the Secretary of State may exempt from the requirements of regulations 7.1.1.1 and 7.1.2 of Chapter IV a ship which—

(a) was constructed before 1st February 1997; and

(b) is engaged exclusively on voyages within—

(i) sea area A2;

(ii) sea areas A2 and A3; or

(iii) sea areas A2, A3 and A4,

provided that the ship maintains, when practicable, a continuous listening watch on VHF channel 16 at the position from which the ship is normally navigated.

(3) The Secretary of State may, in exceptional circumstances not provided for in paragraph (1), grant an exemption from any provision of Chapter IV in respect of a ship or class of ship if satisfied that compliance with such provision is either impracticable or unreasonable in the case of that ship or class of ship.

(4) Subject to paragraph (5), the Secretary of State may, having taken into account the effect of an exemption on the general efficiency of the service for the safety of all ships, grant an exemption from the requirements of regulations 7 to 11 of Chapter IV in respect of a ship provided the functional requirements of regulation 4 of Chapter IV are satisfied in respect of that ship.

(5) An exemption under paragraph (4) may be granted only—

(a) if the conditions affecting safety are such as to render the full application of regulations 7 to 11 of Chapter IV unreasonable or unnecessary; or

(b) in exceptional circumstances, in respect of a single voyage outside the sea area or areas for which the ship is equipped.

(6) An exemption under paragraph (1), (2), (3) or (4) may be granted subject to such safety requirements as the Secretary of State thinks fit to ensure the overall safety of the ship.

(7) An exemption granted under paragraph (1), (2), (3) or (4), on the giving of reasonable notice, may be altered or cancelled.

(8) An exemption granted under paragraph (1), (2), (3) or (4), or an alteration or cancellation under paragraph (7), must—

(a) be in writing;

(b) specify the date on which it takes effect; and

(c) specify the terms, if any, on which it is given.

(9) The requirement that an exemption granted under paragraph (1), (2), (3) or (4), or an alteration or cancellation under paragraph (7), be in writing is satisfied where the text of the exemption, alteration or cancellation is—

(a) transmitted by electronic means;

(b) received in legible form; and

(c) capable of being used for subsequent reference.

(10) Where an exemption is granted subject to safety requirements under paragraph (6), the exemption ceases to have effect if those requirements are not complied with.

(11) No exemption may be granted under paragraph (2) after 31st December 2023.

Equivalents

6.—(1) Where a provision of Chapter IV requires that—

(a) a particular radiocommunications appliance or type of radiocommunications appliance, which may include any fitting, material or apparatus, be fitted on, or carried in, a ship;

(b) any particular radiocommunications arrangement be made on, or in relation to, a ship; or

(c) any particular provision be made in relation to a ship,

the Secretary of State may approve any other radiocommunications appliance, radiocommunications arrangement or other provision if satisfied that it is as least as effective as that required by Chapter IV.

(2) An approval given under paragraph (1) may, on the giving of reasonable notice, be continued, altered or cancelled.

(3) Any approval given under paragraph (1), or a continuation, alteration or cancellation under paragraph (2), must—

(a) be in writing;

(b) specify the date on which it takes effect; and

(c) specify the terms, if any, on which it is given.

(4) The requirement that the approval referred to in paragraph (1), or a continuation, alteration or cancellation under paragraph (2), be in writing is satisfied where the text of the approval is—

(a) transmitted by electronic means;

(b) received in legible form; and

(c) capable of being used for subsequent reference.

Ambulatory reference

7.—(1) In these Regulations, any reference to Chapter IV, or Article 47 of the Radio Regulations, is to be construed—

(a) as a reference to Chapter IV, or Article 47 of the Radio Regulations, as modified from time to time; and

(b) as, if Chapter IV, or Article 47 of the Radio Regulations, is replaced, a reference to the replacement.

(2) For the purposes of paragraph (1), Chapter IV, or Article 47 of the Radio Regulations, is modified or replaced if the modification or replacement takes effect—

(a) in relation to Chapter IV, in accordance with Article VIII of the Convention;

(b) in relation to Article 47 of the Radio Regulations, in accordance with Article 54 of the Constitution of the International Telecommunication Union.

(3) A modification or replacement of Chapter IV or Article 47 of the Radio Regulations has effect at the time such modification or replacement comes into force—

(a) in relation to Chapter IV, in accordance with Article VIII of the Convention;

(b) in relation to Article 47 of the Radio Regulations, in accordance with Article 54 of the Constitution of the International Telecommunication Union.

PART 2 Ship Requirements

Functional requirements

8.  A ship, while at sea, must comply with each requirement in regulation 4 of Chapter IV.

PART 3 Requirements relating to Radio Installations, Equipment etc.

Performance standards

9.  All radio equipment fitted on or carried in a ship must—

(a) in relation to a United Kingdom ship, unless approved in accordance with the Merchant Shipping (Marine Equipment) Regulations 2016(10), be of a type approved by the Secretary of State or any person authorised by the Secretary of State; or

(b) in relation to a non-United Kingdom ship, must conform to standards not inferior to those set out in Section 5 of Annex 1 to Merchant Shipping Notice 1874 (M+F) Amendment 4(11).

Radio installations and equipment

10.  A ship must comply with each of the requirements in the following provisions of Chapter IV applicable to that ship—

(a) regulation 6 (radio installations);

(b) regulation 7 (radio equipment: general);

(c) regulation 8 (radio equipment: sea area A1);

(d) regulation 9.1 to 9.3 (radio equipment: sea areas A1 and A2):

(e) regulation 10.1 to 10.3 (radio equipment: sea areas A1, A2 and A3);

(f) regulation 11.1 (radio equipment: sea areas A1, A2, A3 and A4).

Watches, maintenance requirements, radio personnel and records etc.

11.—(1) A ship must comply with each of the requirements in the following provisions of Chapter IV applicable to that ship—

(a) regulation 12 (watches);

(b) regulation 13 (sources of energy);

(c) regulation 15.1 to 15.4 and 15.6, 15.7 and 15.9.2 (maintenance requirements);

(d) regulation 16 (radio personnel);

(e) regulation 17 (radio records);

(f) regulation 18 (position-updating).

(2) For the purposes of regulation 15.3 of Chapter IV, accepted methods are those listed in paragraph 6.7 of Marine Guidance Note 641(12).

(3) For the purposes of regulation 17 of Chapter IV, a GMDSS radio log must be maintained on the ship.

(4) In this regulation, a “GMDSS radio log” means a document for keeping a record of—

(a) communications relating to distress, urgency and safety traffic and the time such communications occurred;

(b) important incidents connected with the radio service and the time such incidents occurred;

(c) the position of the ship at least once a day and the time at which the ship was in that position.

Testing of equipment

12.—(1) This regulation applies to a person who—

(a) holds an operator certificate of a type described in Articles 47.20 to 47.23 of the Radio Regulations; and

(b) has been designated by the master to carry out tests on radio equipment.

(2) A person to whom this regulation applies must—

(a) carry out the tests specified in paragraph (3); and

(b) inform the master if any radio equipment required by these Regulations is not in working order.

(3) The specified tests are—

(a) the tests specified in regulation 15.9.1 of Chapter IV; and

(b) in relation to a United Kingdom ship, the tests specified in Schedule 2.

PART 4 Control and enforcement

Offences and penalties

13.—(1) If a ship proceeds or attempts to proceed to sea or on any voyage, or arrives within United Kingdom waters, in breach of any of the requirements of these Regulations, the owner and the master are each guilty of an offence in respect of each case of non-compliance.

(2) A person to whom regulation 12 applies who fails to—

(a) carry out the specified tests in regulation 12(3), or

(b) inform the master if any radio equipment required by these Regulations is not in working order,

is guilty of an offence in respect of each case of non-compliance.

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

(a) on summary conviction—

(i) in England and Wales by a fine; or

(ii) in Scotland or Northern Ireland by a fine not exceeding the statutory maximum; or

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

(4) It is a defence for a person charged with an offence under this regulation to prove that the person charged took all reasonable steps to avoid the commission of the offence.

Detention

14.—(1) For the purposes of this regulation, any reference to “the Act” is a reference to the Merchant Shipping Act 1995.

(2) Subject to paragraph (10), a ship which does not comply with a requirement in these Regulations or a provision of Chapter IV referred to in regulation 10 or 11 may be detained.

(3) Section 284 of the Act(13) applies where a ship is liable to be detained under this regulation as if—

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

(b) subsection (7) were omitted.

(4) Where a ship is liable to be detained under this regulation, the person detaining the ship must serve on the master 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 Act.

(5) Subject to paragraph (6), section 96 (references of detention notices to arbitration)(14) and section 97 (compensation in connection with invalid detention of a ship) of the Act apply in relation to a detention notice issued pursuant to this regulation as they apply in relation to detention notices issued pursuant to section 95 (power to detain dangerously unsafe ship).

(6) For the purposes of paragraph (5)—

(a) section 96 of the Act applies as if—

(i) subsection (3) were omitted;

(ii) the words “as a dangerously unsafe ship” in subsection (5) were omitted;

(iii) subsection (11) were omitted; and

(b) sections 96 and 97 of the Act apply as if “the relevant inspector” means a person issuing the detention notice pursuant to this regulation.

(7) Subject to paragraph (8), where a non-United Kingdom ship is detained, the Secretary of State must immediately inform the ship’s flag administration in writing.

(8) If it is not possible to inform the ship’s flag administration in accordance with paragraph (7), the Secretary of State must inform the Consul of the State of the flag administration, or in the absence of a Consul, the nearest diplomatic representative of the State of the flag administration.

(9) For the purposes of paragraphs (7) and (8), “flag administration” in relation to a ship means the administration of the State whose flag the ship is entitled to fly.

(10) A ship must not be detained in a port where repair facilities are not readily available by reason of malfunction of the equipment for providing general radiocommunications referred to in regulation 4.1.8 of Chapter IV if the ship is capable of performing all other distress and safety functions as required by that regulation.

Review of the Regulations

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

(a) carry out a review of the regulatory provision contained in these Regulations; and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before 24th December 2026.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015(15) requires that a review carried out under this regulation must, so far as is reasonable, have regard to how the obligations under the Convention are implemented in other countries which are subject to the obligations.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

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

(c) assess whether those objectives remain appropriate; and

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Signed by authority of the Secretary of State for Transport

Robert Courts

Parliamentary Under Secretary of State

Department for Transport

29th November 2021

We consent

Alan Mak

Rebecca Harris

Two of the Lords Commissioners of Her Majesty’s Treasury

25th November 2021