Citation and commencement

1. These Regulations may be cited as the Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) and the Port State Control (Amendment) Regulations 2017 and come into force on 1st October 2017.

Interpretation

2. —(1) In these Regulations—

“ 2015 Regulation ” means Regulation (EU) 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport and amending Directive

“ the Act ” means the Merchant Shipping Act 1995 .

(2) Expressions used in these Regulations have the same meaning as in the 2015 Regulation.

(3) In these Regulations a certificate of compliance includes a certificate issued pursuant to the 2015 Regulation as it has effect in EU law on and after IP completion day.

Application

3. —(1) These Regulations apply to ships above 5,000 gross tonnage to which the 2015 Regulation applies.

(2) These Regulations do not apply to warships, naval auxiliaries, fish catching or fish processing ships, wooden ships of primitive build, ships not propelled by mechanical means or government ships used for non-commercial purposes.

Requirement to carry a document of compliance

4. —(1) Subject to paragraph (4), a ship may not enter or leave a port in the United Kingdom unless there is in force, in respect of that ship, a valid document of compliance.

(2) The valid document of compliance must be carried on board the ship.

(3) The valid document of compliance must be produced on demand by the master to the Secretary of State.

(4) Paragraph (1) does not apply to a ship which has not carried out a voyage arriving at or departing from a port in the United Kingdom during the relevant reporting period.

Penalties

5. —(1) A company is guilty of an offence if—

(a) a ship enters or leaves a port in contravention of regulation 4(1); or

(b) anyone attempts to navigate that ship into or out of a port in contravention of that regulation; or

(c) the document of compliance is not carried on board the ship in contravention of regulation 4(2).

(2) The company guilty of an offence under paragraph (1) is liable—

(a) on summary conviction—

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

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

(b) on conviction on indictment to a fine.

(3) A master who fails to comply with regulation 4(3) is guilty of an offence and is liable on summary conviction—

(a) in England and Wales to a fine; or

(b) in Scotland or Northern Ireland to a fine not exceeding the statutory maximum.

(4) Any document required or authorised by virtue of any statutory provision to be served on a foreign company for the purposes of or the institution of (or otherwise in connection with the institution of) proceedings for an offence under this regulation against the company as owner of the ship is to be treated as served on the company if the document is served on the master of the ship.

(5) In this regulation foreign company means a company or body which is not one to which section 1139 of the Companies Act 2006 applies so as to authorise the service of the document in question.

Power to detain

6. —(1) A ship may be detained if anyone attempts to navigate it out of a port in contravention of regulation 4.

(2) Section 284 of the Act (which relates to the detention of a ship) has effect in relation to the ship, subject to the modification that for—

(a) “this Act”, substitute “the Merchant Shipping (Monitoring, Reporting and Verification of Carbon Dioxide Emissions) and Port State Control (Amendment) Regulations 2017”; and

(b) “owner of a ship” substitute “company”.

(3) An officer detaining the ship must serve on the master of the ship a detention notice which—

(a) states the reason for the detention; and

(b) requires the ship to comply with the terms of the detention notice until it is released by a competent authority.

(4) Where a ship is detained which is not a United Kingdom ship the Secretary of State must immediately inform, in writing—

(a) the ship's flag state administration; or, if this is not possible,

(b) the Consul of the State of the flag administration; or, in the Consul's absence,

(c) the nearest diplomatic representative of the State of the flag administration.

(5) The written information referred to in paragraph (4) must set out all the circumstances of the decision to detain the ship.

(6) In this regulation “ competent authority ” means any officer mentioned in section 284(1) of the Act.

Expulsion order

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Power to permit prohibited ships to enter port

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Arbitration

9. —(1) Any question as to whether any of the matters specified in relation to a ship in a detention notice constituted a valid basis for the officer's opinion must, if the master or company so requires by a notice given to the officer within 21 days from the service of the detention notice, be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by the arbitrator.

(2) Where a notice is given by the master or company in accordance with paragraph (1), the giving of the notice does not suspend the operation of the detention notice.

(3) The arbitrator may have regard to any matter not specified in the detention notice which appears to the arbitrator to be relevant as to whether the ship was or was not liable to be detained.

(4) Where the arbitrator decides, as respects a matter to which the reference relates, that in all the circumstances the matter did not constitute a valid basis for the officer's opinion, the arbitrator must—

(a) cancel the detention notice; or

(b) affirm it with such modifications as the arbitrator may in the circumstances think fit.

(5) In any case other than one described in paragraph (4) the arbitrator must affirm the detention notice in its original form.

(6) The decision of the arbitrator must include a finding whether there was or was not a valid basis for the detention of the ship.

(7) To be qualified for appointment as an arbitrator under this regulation a person must be—

(a) a person holding a certificate of competency as a master mariner or as a marine engineer officer class 1, or a person holding a certificate equivalent to any such certificate;

(b) a naval architect;

(c) a person falling within paragraph (8); or

(d) a person with special experience of shipping matters or of activities carried on in ports.

(8) For the purposes of paragraph (7)(c) a person falls within this subsection if that person—

(a) satisfies the judicial appointment eligibility condition on a 7 year basis within the meaning of section 50 of the Tribunals, Courts and Enforcement Act 2007 ;

(b) is an advocate or solicitor in Scotland of at least 7 years' standing; or

(c) is a member of the bar of Northern Ireland or solicitor of the Court of Judicature of Northern Ireland of at least 7 years' standing.

Compensation for unjustified detention

10. —(1) If on a reference under regulation 9 relating to a detention notice the arbitrator decides that the company has proved—

(a) that the matter complained of did not constitute a valid basis for the opinion of the officer; and

(b) that there were no reasonable grounds for the issue of the detention notice;

the arbitrator must award the company such compensation in respect of any loss suffered in consequence of the detention of the ship as the arbitrator thinks fit.

(2) Any compensation awarded under this regulation is payable by the Secretary of State.

(3) In the application of this regulation to Scotland any reference to an arbitrator is to be construed as a reference to an arbiter.

Amendment of the Merchant Shipping (Port State Control) Regulations 2011

11.The Merchant Shipping (Port State Control) Regulations 2011 are amended as follows—

(a) in regulation 2 (interpretation) for the definition of initial inspection substitute—

“ “ initial inspection ” means a visit on board a ship by an inspector in order to check compliance with the relevant Conventions including at least the checks set out in Article 13.1 of the Directive and on and after 30th June 2019 compliance with Article 18 of Regulation (EU) 2015/757 ” .

(b) in regulation 3 (application of Part 1)—

(i) in paragraph (2) omit “These Regulations do” and substitute “ Part 1 of these Regulations does ” ; and

(ii) in paragraph (4) before “these Regulations” insert “ Part 1 of ” .

Review

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

(a) carry out a review of the regulatory provision contained in regulations 3 to 10, and

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

(2) The first report must be published before 1st October 2022.

(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 requires that a review carried out under this regulation must, so far as is reasonable, have regard to how Article 20 of the 2015 Regulation is implemented in other EEA States.

(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).