Merchant Shipping (Amendment) Act 2006 (No. 3 of 2006)

REPUBLIC OF KIRIBATI (No. 3 of 2006) I assent, Beretitenti Assented on 7 July 2006 AN ACT TO AMEND THE MERCHANT SHIPPING ACT 1983, TO PROVIDE FOR REGISTRATION OF FOREIGN SHIPS, AND MATTERS ANCILLARY THERETO Commencement: 2006 MADE by the Maneaba ni Maungatabu and assented to by the Beretitenti. PART I – PRELIMINARY 1. Short title and commencement (1) This Act may be cited as the Merchant Shipping (Amendment) Act 2006. (2) This Act shall enter into force on such date as the Minister may, by notice in the Gazette, appoint. 2. Definition of principal Act In this Act, “principal Act” means the Merchant Shipping Act 1983. PART II – AMENDMENT OF PART I 3. Amendment of section 2 Section 2 of the principal Act is amended – (a) by inserting before the definition of ‘Court’ the following definition – “bareboat charterer’ means the contract for the lease or sub-lease of a ship for a stipulated period of time by virtue of which the charterer acquires full control and complete possession of the ship, including the right to appoint the master and crew for the duration of the charter but excluding the right to sell or mortgage the ship;” (b) by inserting after the definition of ‘Court’ the following definition – “foreign ship’ means a ship that is owned by a person who – 2 (a) if the person is a natural person, is not a citizen of Kiribati; or (b) if the person is a body corporate, is not established, registered or incorporated under the law of Kiribati;”; (c) by inserting after the definition of ‘government ship’ the following definitions – “Liens and Mortgages Convention’ means the International Convention on Maritime Liens and Mortgages done at Geneva on 6 May 1993, and any amendment, unless that amendment has been objected to by Kiribati; “Maritime Authority’ means the Authority appointed by the Minister under section 47A to administer the registration of foreign ships;”; (d) by repealing the definition of ‘qualified person’ and substituting the following definitions – “qualified person’ means – (a) in relation to a ship which is not a foreign ship – (i) a natural person who is a citizen of Kiribati; or (ii) a body corporate which is established, registered or incorporated under the law of Kiribati; or (b) in relation to a foreign ship – (i) a natural person who is not a citizen of Kiribati; or (ii) a body corporate which is not established, registered or incorporated under the law of Kiribati; ‘Register’ means – (a) the Register of Ships kept by the Registrar under section 4; or (b) the Register of Foreign Ships kept by the Registrar of Foreign Ships appointed under section 2A(2)(b)”; ‘Registrar’ means the Registrar appointed under section 3; ‘Registrar of Foreign Ships’ means the Registrar of Foreign Ships under section 47B;”; (e) after the definition of ‘surveyor’, by repealing the definitions of ‘the Register’ and the ‘Registrar’; 3 (f) by inserting after the definition of ‘tonnage certificate’ the following definition – “underlying registry’ means the registry of the State in which a ship to which section 47E applies is registered and to which jurisdiction and control will revert upon the termination of a bareboat charter registration under section47E.”. 4. New sections 2A and 2B After section 2 of the principal Act the following sections are inserted – “2A. Application of Act to foreign ships (1) Subject to subsection (2) – (a) this Act applies to foreign ships; and (b) unless the context otherwise requires, a reference in this Act to a ship includes a reference to a foreign ship. (2) This Act applies to foreign ships with the following modifications – (a) the powers and functions of the Registrar shall be exercised and performed in relation to foreign ships by the Registrar of Foreign Ships; (b) particulars of all foreign ships registered under this Act, and such other entries as may be required under this Act, shall be entered in the Register of Foreign Ships, to be kept by the Registrar of Foreign Ships; (c) the power of a diplomatic representative of Kiribati to grant a provisional certificate of registry under section18 may be exercised in relation to foreign ships by the Registrar of Foreign Ships; (d) the functions of a surveyor under section 11 shall be performed in relation to foreign ships by a Surveyor (Foreign Ships); (e) the jurisdiction of the Court under section 33 may be exercised in relation to a foreign ship may such court as may be expressly provided for in the mortgage; (f) the powers and functions of the Minister shall be exercised and performed in relation to foreign ships by the Maritime Authority, however the Minister may give to the Maritime Authority directions of a general nature as to the exercise or discharge of such powers and functions, and the Maritime Authority shall comply with such directions; and (g) any fees, tonnage taxes and other charges payable under this Act for the registration, and maintenance and renewal of registration, of any foreign ship, and for any other service provided by the Maritime Authority in 4 connection with a foreign ship for the purposes of this Act shall be collected by the Maritime Authority on behalf of the government. (3) For the avoidance of doubt, the powers and functions to be exercised or performed by the Maritime Authority or the Registrar of Foreign Ships under this Act shall be exercised exclusively by the Maritime Authority or the Registrar of Foreign Ships, as the case may be. 2B. Application of international conventions The international conventions set forth in the Second Schedule, and any amendments thereto (unless and amendment has been objected to by Kiribati), shall have the force of law in Kiribati, subject to any reservation as Kiribati may make at the time of accession, from and after the date that convention enters into force for Kiribati following the deposit of the instrument of accession with relevant depositary.”. PART III – AMENDMENT OF PART II 5. Repeal of section 7 Section 7 of the principal Act is repealed. 6. Amendment of section 8 Section 8 of the principal Act is amended by repealing subsection (1) and substituting the following subsection – “(1) Every ship, other than an exempt ship, which is owned wholly by a qualified person, or by persons each of whom is a qualified person – (a) if the ship is not a foreign ship, shall be registered under this Act; or (b) if the ship is a foreign ship, may be registered under this Act.”. 7. Amendment of section15 Section 15 of the principal Act is amended by inserting the following subsections after subsection (2) – “(2A) The Registrar of Foreign Ships shall not register a foreign ship unless the owner or owners of the ship have lodged a declaration in writing, undertaking that the ship will not be used for any of the following activities – (a) storage and transportation of illegal drugs; (b) people smuggling, trafficking in persons or unlawful carriage of refugees; 5 (c) involvement in any war or armed conflict; (d) supporting civil unrest in any State or territory; (e) terrorism or activities in support of terrorism; and (f) any other activity which would be contrary to the laws of Kiribati or any international convention to which Kiribati is a party, and the Registrar of Foreign Ships shall immediately cancel the registration of any foreign ship which he has reasonable grounds to believe has been used contrary to the provisions of the undertaking.”. 8. Amendment of section 18 Section 18 of the principal Act is amended by repealing subsections (3) and (4) and substituting the following subsections – “(3) A provisional certificate of registry issued under this section shall be deemed to be a certificate of registry granted under section16 until the expiry of – (a) if the ship in respect of which is granted is not a foreign ship – (i) 60 days after the date on which it was granted; or (ii) 10 days after the arrival of the ship in Betio, whichever first occurs; or (b) if the ship in respect of which it is granted is a foreign ship, six months after the date on which it was granted. (4) Upon application of the owner, the Registrar may extend the period of validity of a provisional certificate of registry if the circumstances warrant such an extension.”. 9. New section 30A After section 30 of the principal Act the following section is inserted – “30A Maritime liens (1) Notwithstanding anything contained in this Act or the Liens and Mortgages Convention, a maritime lien is not enforceable against a ship owned by a bona fide purchaser for value without notice unless such lien has been registered in the Register, but it is enforceable against the owner and vendor who has incurred the debt from which the maritime lien arises, irrespective of registration. 6 (2) The Registrar shall, at the request of the holder of a maritime lien, register the maritime lien by making the entry in the Register – (a) describing the claim against the owner, demise charterer, manager or operator of the ship secured by the maritime lien on the ship; and (b) the date of the event which gave rise to the maritime lien against the ship; and (c) the name and address of the lien holder for the service of notice or documents. (3) Subject to Article 9 of the Liens and Mortgages Convention, a maritime lien shall be extinguished after the period of one year. 10. Amendment of section 32 Section 32 of the principal Act is amended – (a) in the marginal note, by inserting the words “maritime liens” at the end thereof; and (b) by inserting after subsection (2) the following – “(3) A maritime lien recorded in the Register shall rank in priority as against other maritime liens and registered mortgages in accordance with the provisions of the Liens and Mortgages Convention.”. PART IV – NEW PART IIA 11. New Part IIA After Part II of the principal Act the following Part is inserted – “PART IIA – REGISTRATION OF FOREIGN SHIPS 47A. Maritime Authority The Minister, acting in accordance with the advice of the Cabinet, may, by notice in writing published in the Gazette, appoint a reputable and suitably qualified person to be the Maritime Authority. 47B. Registrar of Foreign Ships The Minister, acting in accordance with the advice of the Cabinet, tendered after consultation with the Maritime Authority, may, by notice in writing published in the Gazette, appoint a reputable and suitably qualified person to be the Registrar of Foreign 7 Ships. 47C. Registrar of Seafarers (Foreign Ships) The Minister, acting in accordance with the advice of the Cabinet, tendered after consultation with the Maritime Authority, may, by notice in writing published in the Gazette, appoint a reputable and suitably qualified person to be the Registrar of Seafarers (Foreign Ships), who shall have responsibility under the Shipping Act 1990 for certification of seafarers serving aboard foreign ships. 47D. Appointment of officers and agents The Maritime Authority may appoint such officers and agents as it considers necessary for the efficient and effective exercise and performance of its powers and functions under this Act. 47E. Bareboat charters (1) This section applies to any ship which – (a) is registered under the law of a country other than Kiribati; and (b) is chartered on bareboat charter terms to a charterer who is a qualified person. (2) Subject to subsection (3), a ship to which this section applies may be registered as a foreign ship upon application from the charterer. (3) No ship to which this section applies may be registered as a foreign ship without the prior approval in writing of the underlying registry. (4) The registration of a ship registered under this section shall remain in force (unless terminated earlier under this Act) until the end of the charter period and shall then terminate. (5) During the period of registration under this section, no title, deed, mortgage or other document shall be registered with the Maritime Authority or the Registrar of Foreign Ships, and all such documents shall be registered at the vessel’s underlying registry. (6) Where – (a) a foreign ship registered under this Act is chartered on bareboat charter terms; and (b) the Registrar of Foreign Ships receives a request in writing from the owner or owners of such ship for the Registrar’s consent to such ship being registered in a country other than Kiribati in a manner similar to that 8 provided for under this section, the Registrar of Foreign Ships may give his consent in writing.”. PART V – AMENDMENT OF PART III 12. Substitution of section 56 Section 56 of the principal Act is repealed and the following section is substituted – “56. Contravention of manning Regulations Where Regulations have been made prescribing the extent to which those manning any ship shall be citizens of Kiribati, the master or owner of a ship registered under this Act who suffers or permits that ship to go to sea while the ship is manned in contravention of such Regulations is guilty of an offence.”. 13. Amendment of section 57 Section 57 of the principal Act is amended by inserting after subsection (3) the following subsection – “(4) This section does not apply to foreign ships.”. 14. New section 75A After section 57 of the principal Act the following section is inserted – “57A Survey of foreign ships (1) The Maritime Authority shall, by notice in writing published in the Gazette, appoint a reputable and suitably qualified person to be the Principal Surveyor (Foreign Ships). (2) The Principal Surveyor (Foreign Ships) shall be responsible for carrying out, in relation to foreign ships, obligations in respect of flag State and port State control contained in the relevant international conventions set forth in the Second Schedule. (3) The Maritime Authority may appoint a person to be a classification society for the purposes of this Act. (4) The Maritime Authority may appoint a person (including a classification society) to be a Surveyor (Foreign Ships) for the purposes of this Act. (5) Where the Maritime Authority appoints a classification society, the classification society shall, subject to the approval of the Maritime Authority, nominate one or 9 more persons to carry out surveys, issue reports, make declarations of compliance and do all things necessary on its behalf.”. 15. Amendment of section 61 Section 61 of the principal Act is amended by inserting after subsection (2) the following subsection – “(3) Section 24(e) of the Interpretation and General Clauses Ordinance (which limits the maximum allowable penalties under subsidiary legislation) shall not apply to regulations made under this Act.”. PART IV – AMENDMENT OF THE SCHEDULES 16. Amendment of the First Schedule The First Schedule to the principal Act is repealed and the following schedule substituted – “FIRST SCHEDULE (Section 55) OFFENCES Section Offence Maximum penalty 12(3) Failing to mark, or keep marked, a ship $50,000, one year, or both 12(4) Concealing, removing, altering, defacing or erasing a mark on a ship $100,000, two years, or both 16(3) Unlawful use of a certificate of registry $250,000, five years, or both 16(4) Refusing to deliver a certificate of registry $50,000, one year, or both 18(5) Failing to deliver a provisional certificate of registry $50,000, one year, or both 21(9) Failing to give notice of loss of ship or change of ownership $50,000, one year, or both 22(2) Failing to register an alteration $100,000, two years, or both 37(1) Concealing the Kiribati character of a ship $250,000, five years, or both 40(2) Failing to hoist the national flag $25,000 40(3) Hoisting colours other than the national flag $25,000 41(2) Failing to comply with a direction to furnish information $100,000, two years, or both 46(1) Using a name other than the name by which a ship is registered $100,000, two years, or both 50(1) Making or uttering a false statement $100,000, two years, or both 56 Contravening manning Regulations $100,000, two years, or both 10 17. Amendment of the Second Schedule The Second Schedule to the principal Act is repealed and the following schedule substituted – “SECOND SCHEDULE (Sections 60 and 61(2)) INTERNATIONAL CONVENTIONS The International Convention on Load Lines done at London on 5 April 1966; The International Convention on Tonnage Measurement of Ships done at London on 23 June 1969; The Convention on the International Regulations for Preventing Collisions at Sea, done at London on 20 October 1972, together with the International Regulations for Preventing Collisions at Sea, 1972, constituted by the rules and other annexes attached to that Convention, as corrected by Proces-Verbal of Rectification dated 1 December 1973; The International Convention for Safe Containers done at Geneva on 2 December 1972; The International Convention for the Prevention of Pollution from Ships done at London on 2 November 1973, as modified by the 1978 Protocol relating thereto; The International Convention for the Safety of Life at Sea, done at London on 1 November 1976; The Convention on Limitation of Liability for Maritime Claims done at London on 19 November 1976; The International Convention on Maritime Search and Rescue done at Hamburg on 27 April 1979; The International Convention on Salvage done at London on 28 April 1989; The International Convention on Maritime Liens and Mortgages done at Geneva on 6 May 1993; The International Convention on the Control of Harmful Anti-fouling Systems on Ships done at London on 18 October 2001; and The International Convention for the Control and Management of Ships’ Ballast Water and Sediments done at London on 13 February 2004.”. 11 PART VII – AMENDMENT OF THE SHIPPING ACT 1990 18. New section 2A, Shipping Act 1990 After section 2 of the Shipping Act 1990 the following section is inserted in Part I – “2A. Application of Act to foreign ships (1) In this section – ‘foreign ship’ means a ship that is registered as a foreign ship under the Merchant Shipping Act 1983; ‘Registrar of Seafarers (Foreign Ships)’ means the Registrar of Seafarers (Foreign Ships) appointed under section 47C of the Merchant Shipping Act 1983. (2) Subject to subsection (3) – (a) this Act applies to foreign ships; and (b) unless the context otherwise requires, a reference in this Act to a vessel includes a reference to a foreign ship. (3) This Act applies to foreign ships with the following modifications – (a) the powers and functions of the Director of Marine and licensing officers as regards certification of seafarers serving aboard foreign ships (including the issuing of dispensations) shall be exercised and performed in relation to foreign ships by the Registrar of Seafarers (Foreign Ships); and (b) a certificate issued under section 22 to a seafarer serving aboard a foreign ship need not be in the Kiribati language, as required by section 22(3). (4) For the avoidance of doubt, the powers and functions to be exercised or performed by the Registrar of Seafarers (Foreign Ships) under this Act shall be exercised or performed exclusively by the Registrar of Seafarers (Foreign Ships).” 12 MERCHANT SHIPPING (AMENDMENT) ACT 2006 EXPLANATORY MEMORANDUM Titabu Tabane Attorney General 19 April 2006