Shipping (Amendment) Act, 2000 (No. 15 of 2000)

No. 15-2000 I assent. [L.S.] H.F. Coorrn, Governor-General~ 21st day of Nov,ember, 2000. AN ACT to Amend the Shipping Act, 1998. 'Ibo date nodfted by the Minister [ brinpna the Act Into operation ] BB IT ENACTED by The Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and House of Representatives of Jamaica, and by the authority of the same, as follows: 1. This Act may be cited as the Shipping (Amendment) Act, 2000 and shall be read and construed as one with the Shipping Act, 1998 (hereinafter referred to as the principal Act) and shall come into operation on a day to be appoint1:d by the Minister by notice published in the Gazette. 2. Section 2 of the principal Act is amended (a) by deleting the definition of "Director" and sub stituting therefor the following " "Director" means the Director-General of the Authority appointed under section 10, Short title, construction andcoru~ mencement. Amendment of section 2 of prin· cipal Act. Amendment of ,ection 10 of priD• cipal Act. Amendment of teetion 17 of prin cipal Aet. Amendment of section 20ofprln cipal Act. and includes any person lawfully acting under the instructions of or on behalf of the Director-General;"; (b) by inserting the following definition immediately after that of ''fishing vessel" " "foreign maritime entity" means a business entity, other than a body corporate, estab lished under and subject to the law of a state other than Jamaica which, pursuant to that law, is entitled to own or operate ships;". 3. Section 10 of the principal Act is amended (a) by deleting the marginal note and substituting therefor the word "Director-General"; (b) by deleting from subsection (1) the words "Director of Maritime Services" and substituting therefor the words "Director-General of the Authority"; and (c) by deleting from subsection (2) the words "Director of Maritime Services" and substituting therefor the word "Director-General". 4. Subsection (1) of section 17 of the principal Act is amended by deleting the word "if" and substituting therefor the word "unless". 5. Section 20 of the principal Act is amended (a) by inserting in paragraph (c) immediately after the word "corporate" the words "or partnership"; (b) by renumbering paragraph (d) as paragraph (e) and inserting the following as paragraph (d) " (d) business entities established under and subject to the law of a state other than Jamaica which, pursuant to that law, are entitled to own or operate ships;". 6. The principal Act is amended by inserting immediately after section 20 the following as section 20A "Require- 20A.-(1) The owner of a ship which is ments for managing registered as a Jamaican ship shall appoint a owner or • agent. person who satisfies the requirements of sub section (2), as managing owner or agent of that ship, for the period during which the ship is so registered. (2) A person is qualified for appoint ment as a managing owner or agent if (a) in the case of an individual, he is resident in Jamaica; (b) in the case of a body corporate, it is incorporated under the laws of Jamaica, and has a place of business in Jamaica; and (c) the person possesses such other qualifications as may be prescribed. (3) A document required or author ized, by virtue of any provision of this Act, to be served for the purposes of the institu tion of, or otherwise in connection with, pro ceedings for an offence under this Act, or regulations made hereunder, shall where the person to be served is the owner of a regis tered Jamaican ship, be treated as duly served on him if it is (a) served on any managing owner or agent for the time being appointed in relation to the ship; Imertion of new section 20A in principal Act. Amendment of sectioD 21 of prin· cipal Act. (b) sent to any such person by regis tered post or by electronic or other appropriate means to the address notified (or, as the case may be, last notified) to the registrar under section 27 in relation to the ship; or (c) left for any such person at that address. (4) In addition to the other require ments of this section, a managing owner or agentshall (a) provide such information with res pect to the ship and the owner thereof; and (b) carry out such directives with res pect to the managing owner or agent's duties and responsibilities in relation to that ship or owner, as may be required by the Director. (5) A managing owner or agent who fails to comply with the provisions of subsection (4) commits an offence and is liable on summary conviction thereof in a Resident Magistrate's Court to a fine not exceeding five hundred thousand dollars or in def a ult of payment thereof to imprison ment for a term not exceeding six months.,,. 7. Subsection (1) of section 21 of the principal Act is amended by inserting immediately after the words ''pre scribed form" the words "accompanied by the prescribed fee'', 8. The principal Act is amended by inserting immediately =~!s after section 24 the following as sections 24A, 24B and 24A, 24B. 24c an!1 ~4C m - pnnCJ.pal "Repters. 2Dtries in re,aistera. 24A.-(1) Separate registers shall be kept in the prescribed form in respect of (a) ships; (b) ships under construction; (c) ships in respect of which a pro visional Certificate of Registry is issued under section 41; (d) bareboat chartered ships; (e) pleasure craft; and (f) such other categories of vessels as the Registrar-General may direct. (2) The registration of a ship regis tered in the register for ships under construc tion, shall upon completion of the construc tion of that ship, be transferred to another appropriate register. (3) The registration of a provision ally registered ship may, where appropriate, be transferred to another register. (4) The registers shall be maintained by registrars in accordance with this Part, any registration regulations made hereunder, and any directions given by the Director. 24B. Entries in the registers shall be made in accordance with the following provisions (a) the property in a ship is deemed to be divided into sixty-four shares; (b) subject to the provisions of this Part with respect to joint owners or Act. Certain restrictions on registra tion. owners by transmission, at no time shall more than sixty-four persons be registered as owners of any one ship; but this provision shall not affect the beneficial title of any number of individuals or bodies corporate represented by or claim ing under or through any registered or joint owner; (c) except as provided in paragraph (e), a person may not be registered as the owner of a fractional part of a share in a ship, but any number of persons not exceeding five may be registered as joint owners of any share therein; (d) joint owners shall be regarded as constituting one person only, as regards the persons entitled to be registered, and shall not be entitled to dispose in severalty of any in terest in a ship, or any share therein in respect of which they are regis tered; (e) in the case of a ship wholly or partly owned by a foreign maritime entity, a person who is a member of that entity may be registered as owner of a fractional part of a share in the ship if the sum of all the shares in the ship is sixty-four. 24C. The registrar shall not register any ship purchased or otherwise acquired where any bill of sale or other document under or by virtue of which the ship became vested in the applicant for registry contains any provisions, express, implied or constructive, restricting the use of the ship or imputing any measure of continued control thereof by the government of a foreign state.". 9. Section 25 of the principal Act is amended by (a) deleting the marginal note and substituting there for the following "Certificate of registry and records."; (b) deleting subsections (2), (3) and (5). 10. Subsections (1), (2) and (3) of section 27 of the princi pal Act are amended by inserting immediately after the words "managing owner'' wherever they appear, the words "or agent". 11. Subsection 1 (b) of section 29 of the principal Act is amended by (a) deleting the word "tonnage"; (b) deleting the words "2 years" and substituting there for the words "1 year". 12. Section 32 of the principal Act is repealed and the following substituted therefor .. Port of 32. The Minister may by order published registry. in the Gazette declare any port of Jamaica as a port of registry for the registration of ships.". 13. Section 38 of the principal Act is amended (a) by deleting the full stop at the end of paragraph (e) and substituting therefor a semicolon; (b) by adding thereto next after paragraph (e) the following as paragraph (f) "(f) the registration of ships and mortgages, referred to in this Aot as "registration regulations".". Amendmen1 of section 25 of prin• cipal Act. Amendment of section 27 of prin• cipal Act. Amendment of section 29of prin· ci1pal Act. Repead and replacement of section 32 of prin· cipal Act. Amendment of seotion 38 of prin cipal Act. Amendment of section 64 of prin cipal AcL Repeal and replac~ent of section 66 of prin cipal Act. Amendment of section 69 of prin cipal Act. 14. Subsection (2) of section 64 of the principal Act is deleted. 15. Section 66 of the principal Act is repealed and the following substituted therefo:r "Ship liable 66. Where the property in a registered tode- J . . . d b nkru registration ama1can ship is transm1tte on a ptcy, :fs~0: ans- death or otherwise and the ship no longer meets the requirements of this Act for regis tration as a Jamaican ship, the ship so trans mitted shall thereupon be liable to be de registered. ". 16. Section 69 of the principal Act is amended by inserting next after subsection (6) the following as subsections (7), (8), (9) and (10) " (7) A mortgage may be registered in the appropriate register in respeot of a provisionally registered ship, and where a mortgage is so registered, the provisions of this Act relating to mortgages and the registration regulations shall apply, with such modificatfons as may be necessary, to provisionally registered ships. (8) A mortgage registered pursuant to subsection (7) shall continue to be a registered mortgage until it is discharged, notwithstanding that the provisional regis tration of the ship to which the mortgage relates, ceases to be effective. (9) A mortgage in respect of a ship under construc tion shall be registered in the appropriate register, so, however, that upon the registration of such a ship being transferred to another register, the entries relating to the mortgage shall, unless the mortgage is discharged, be transferred in like manner to that other register. (10) A mortgage in respect of a ship under construc tion shall, for the purposes of determining priority under this Act or any other law, and in all other respects, be treated as a registered ship mortgage and shall continue to be treated as such until it is discharged, notwithstanding that the ship ceases to be registered under this Act; and a ship under construction shall, for the purposes of a mortgage thereon under this Act or any other law, be treated as maritime property.". 17. Section 81 of the principal Act is amended by deleting Amend ment the words ''paragraphs (d) and (e)" and substituting therefor ~f :C= the words "paragraph (d)". cipal Act. 18. Section 82 of the principal Act is repealed and the Repeal f II . b . d th and rcplace-0 owing SU stltute erefor- ment of .... • "t f 82 Th • • 1. . l . th section 82 ,.-non Y O • e mantime 1ens m re abon to e of prin maritime ·.-1 liens. claims specified in section 80(a) shall take er- Act. priority over any preferential rights arising under the law of bankruptcy, and except as provided in section 89(2)(a) and (b), no other claim shall take priority over them.". 19· Section 83 of the principal Act is amended by- Amendment of section (a) deleting from paragraph (a) the letter "(c)" and !f;f =· substituting therefor the letter "(b)"; (b) deleting from paragraph (b) the words "(a), (b), (d) and (e)" and substituting therefor the words "(a), (c) and (d)"; (c) deleting from paragraph (c) the letter "(c)" and substituting therefor the letter "(d)". 20. Section 84 of the principal Act is amended- Amendment of section (a) by deleting subsection (1) and substituting therefor s~ of prin• th f 11 , CLpal Act. e o owmg " (1) Where a lien or right of retention arises in respect of a ship in the possession of (a) a shipbuilder, in order to secure claims for the building of the ship; 01' Insertion of new section 84iA in prin cipal Act. Ainendmeni of 1 section 89 of prin cipal Act. RctPCal of aedtion 109 of principal AcL (b) a ship repairer, in order to secure claims for the repair (including re construction) of the ship, effected during such possession, such right shall be postponed to all maritime liens set out in section 80 and, subject to sub section (2), shall take precedence over any registered mortgage or other preferential rights."; (b) by inserting in subsection (2) immediately after the words "the claims of" the words "holders of mortgages registered under this Act and". 21. The principal Act is amended by inserting immedi ately after section 84 the fallowing as section 84A "Priority of 84A. The claims of holders of mortgages registered mortgages. registered under this Act shall take priority over maritime liens securing any of the claims set out in section SO(b), (c) and (d) ,, 22. Subsection (2) of section 89 of the principal Act is amended by deleting sub-paragraphs (i), (ii) and (iii) of paragraph (c) and substituting therefor the following " (i) the holders of maritime liens securing any claim under section 80(a); (ii) the holders of mortgages registered under this Act; (iii) the holders of maritime liens securing any claim under section 80(b), (c) and (d); (iv) the holders of rights under section 84; (v) the holders of other preferential rights.''. 23. Section 109 of the principal Act is repealed. 24. The principal Act is amended by inserting immediately Insertion of new Part after Part IV the following as Part IV A- NA in prin cipal Act. " PART IV A. Taxation and Other Concessions Intcr,prota- 101 A. In this Part tion. Application for exempt status. "exempted seafarer" means a seafarer serving on board an exempted ship; "exempted ship" means a ship which has been declared to be an exempted ship under section 101 C; "foreign-going trade" means (a) trade to or from Jamaica; (b) trade between ports out side Jamaica; "operation", in respect of an exempted ship, means the operation of that ship by the owner thereof and in cludes the . operation of that ship under charter; "shipping entity" means a partnership, foreign maritime entity, body cor porate or other business entity that is qualified to own a Jamaican ship and owns, operates or is a bareboat charterer of a Jamaican ship. lOlB.-(1) A shipping entity which intends to own or operate an exempted ship shall sub mit an application in writing in the prescribed form to the Director containing the following particulars (a) the name of the shipping entity; (b) the name and tonnage of the ship which it wishes to own or operate as an exempted ship; Declaration of exempted ship (c) the address of the registered office of the shipping entity and of the managing owner or agent; (d) such other particulars as may be prescribed, and shall notify the Director in wrWng from time to time of any changes to such parti culars. (2) A ship shall not be eligible to be declared an exempted ship unless (a) it is a registered Jamaican ship owned or operated by the shipping entity concerned; (b) it is engaged in foreign-going trade; (c) all fees payable under this Act in respect thereof have been duly paid; and (d) except in the case of a ship of under twenty-four metres in length, it is engaged in the carriage of goods or passengers. (3) The Director shall, not later than three days after receiving the applica tion submit the application, accompanied by his recommendations thereon to the Minister. 101C. The Minister may, after considera tion of an application and recommendations under section 101B and, subject to such con ditions as he may deem appropriate (a) by order published in the Gazette, declare the ship concerned to be an exempted ship; or Eligibiil.ity for benefits. (b) refuse the application. 101D.-(1) A shipping entity which owns or operates exempted ships (in this Part called an approved shipping entity) shall, during the concession period, be eligible for the benefits conferred under this Part if it is regarded as being engaged solely in the business of owning or operating exempted ships, and it shall be so regarded notwith standing (a) that it has power to engage in and has engaged in operations incidental to the ownership or operation of ex empted ships; or (b) the investment of the profits derived from such ownership or operation in other assets, if the principal business of the shipping entity remains that of owning or operating exempted ships. (2) In this section "concession period" in relation to the ownership or operation of an exempted ship by an approved shipping entity means, subject to subsection (3), the period of ten years begin ning on the commencement date of the rele vant order under section lOlC. (3) An approved shipping entity may prior to the expiration of the ten-year period under subsection (2), make an appli cation in the prescribed form for an extension of the concession period. ( 4) The provisions of this Part shall, with such modifications as may be Termination of benefits. necessary, apply to an application under subsection (3) and the extended period as they apply in relation to the original appli cation and concession period. IOlE. Subject to the provisions of this Part, the status of a ship as an exempted ship and the benefits conferred under this Part, shall terminate upon the occurrence of any circumstance specified in section 29 (1). Exemption lOIF.-(1) The following shall be exempt from mcome . tax. from mcome tax (a) the income of an approved shipping entity, in respect of gains or profits derived from the ownership or operation by the entity of an exempted ship; (b) any dividend paid to shareholders or, as the case may be, profits paid to partners of such shipping entity out of income exempted from in come tax under paragraph (a); (c) where such a shareholder is a com pany any dividend paid to the share holders of that company to the extent that such dividend is paid out of gains or profits derived from the ownership . or operation of an exempted ship or out of that com pany's share in such profits. (2) There shall be exempt from income tax, any interest or other income pay able to a person by an approved shipping entity in respect of any loan raised or other Exemption from trans fer tax. Exemption from other taxes. duties and fees. debt due by such shipping entity for the pur pose of (a) acquiring the ownership of an exempted ship; or (b) the operation of an exempted ship. (3) Nothing in this section shall exempt an approved shipping entity from its obligation under the Income Tax Act (a) to deduct and account to the Com missioner of Taxpayer Audit and Assessment for income tax required to be withheld from emoluments payable to its employees; or (b) to render to that Commissioner returns and information. 101G. The transfer of shares in an ap proved shipping entity shall be exempt from tax under the Transfer Tax Act. lOlH.-(1) An approved shipping entity shall be exempt from that portion of stamp duty which would otherwise be payable by it in respect of any instrument executed by it or on its behalf. (2) No customs duty, tax payable under the General Consumption Tax Act, or other similar impost shall be payable upon any article imported into Jamaica, or taken out of bond in Jamaica by an approved ship ping entity and shown to the satisfaction of the Commissioner of Customs to be required for the use of the entity in the operation of an exempted ship. A rnendment o' section 4 8 of prin cipal Act. ~mend.ment O' section 419 of prin cipal Act. Validity of crew agree• ment of an exempted 1hip. Special provisions for ~pediting registration. 1011. An approved shipping entity and an exempted seafarer may enter into a crew agreement based on the mutual consent or act of the parties thereto and, notwithstanding section 122, such agreement shall be valid and enforceable in law. lOlJ. Notwithstanding any other pro visions of this Act, the Minister may, for the purposes of this Part, as he deems necessary waive any requirement of the Act in order to facilitate the expedition of any matter in relation to the registration of ships in Jamaica.''. 25. Section 418 of the principal Act is amended (a) by deleting from subsection (1) the words "and, at the time it occurs, the ship or ship's boat was in Jamaican waters"; (b) renumbering subsection (2) as subsection (3) and inserting therein immediately after subsection (1) the following as subsection (2) " (2) This section shall apply (a) to a Jamaican ship wherever the casualty occurs; and (b) to a foreign ship if at the time of the casualty, the ship· or ship's boat was in Jamaican waters.". 26. Subsection (1 )(a) of section 449 is amended by deleting the words "transmitting or" and adding immediately after the words "registered post" the words "or by electronic or other appropriate means" 27. Section 455 of the principal Act is repealed and the Re~al andt 11 . . f rep,acemen fo owmg substituted there or- of section 455 of prin ''Regulations subject to negative resol11tion. 455.-(1) Regulations made under this Act, cipaI Act. other than for matters specified in subsection (2), shall be subject to negative resolution of the House of Representaa:ives. (2) The matters referred to in sub section (1) are (a) the measurement of ship tonnage; (b) the safety of shipping as regards the construction and equipping of ships and load lines; (c) navigation of ships and the preven tion of collisions.". 28. Paragraph 1 (a) of the First Schedule to the principal ~;fr~ent ) .ct is amended by deleting the words "Director of Maritime Schedule to S :rvices" and substituting therefor the word "Director". ~cipat