Merchant Shipping Act 1988 (c. 12)

(The document as of February, 2008)

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" Orders imposing charges, taxes or duties

2 (1) An order under subsection (3)(d) or (e) of the principal section --

(a) may apply to ships of any description specified in the order, and may apply in particular to ships registered in a specified country, or to ships carrying goods or cargoes of a specified description, or providing any other specified shipping services (within the meaning of the principal section), and

(b) may contain such provisions as appear to the Secretary of State expedient to enable the Commissioners of Customs and Excise to collect any charge, tax or duty imposed by the order, and

(c) may apply, subject to any modifications or exceptions specified in the order, any of the enactments for the time being in force relating to duties (whether of customs or excise) chargeable on goods imported into the United Kingdom.

(2) Any charge, tax or duty so imposed may be a fixed amount, or an amount depending on the tonnage of the ship.

(3) Any such charge, tax or duty shall be payable to the Secretary of State.

(4) An order shall not be made by the Secretary of State under subsection (3)(d) or (e) of the principal section except with the consent of the Treasury.

(5) Nothing in this paragraph prejudices subsection (6) of that section. "

39 Power to prohibit provision of coastal shipping services which are not British-based

(1) The Secretary of State may by order provide for the provision of shipping services to which this section applies to be prohibited except where such services are provided from one or more permanent places of business maintained in the British Islands.

(2) This section applies to the following shipping services--

(a) the carriage of goods or passengers by sea--

(i) between ports in the United Kingdom, or

(ii) between a port in the United Kingdom and an offshore installation in United Kingdom waters, or

(iii) between offshore installations in United Kingdom waters;

(b) the carriage of passengers by sea on voyages or excursions beginning and ending at the same port in the United Kingdom, other than voyages or excursions which involve calling at any port or ports outside the British Islands (whether passengers disembark there or not); and

(i) provided by means of ships operating out of ports in the United Kingdom (whether so provided within United Kingdom waters or not), or

(ii) provided within United Kingdom waters by means of ships operating out of ports outside the United Kingdom.

(3) An order under this section may make provision--

(a) with respect to the circumstances in which shipping services are to be regarded for the purposes of the order as being provided from one or more permanent places of business maintained in the British Islands;

(b) authorising the Secretary of State to issue licences sanctioning the provision of shipping services to which this section applies, notwithstanding that they are not provided as mentioned in paragraph (a) above, in cases where he is satisfied that there is no-one willing and able to provide the services in question as mentioned in that paragraph;

(c) requiring the payment, in connection with applications for such licences, of fees determined with the approval of the Treasury;

(d) exempting any prescribed class or description of shipping services from any prohibition imposed by virtue of subsection (1);

(e) authorising the Secretary of State, or a person appointed by him for the purpose, to serve notices requiring the production or furnishing of documents or information appearing to the Secretary of State or any such person to be necessary to enable him to determine such matters as may be prescribed;

(f) with respect to the manner of service of notices in pursuance of paragraph (e).

(4) An order under this section may--

(a) make different provision for different circumstances;

(b) make such transitional, incidental or supplementary provision as appears to the Secretary of State to be necessary or expedient.

(5) The provisions of an order under this section shall not discriminate between shipping services provided by different persons on the basis of the place of registration of the ships by means of which the services are provided.

(6) Section 728 of the 1894 Act (appointment of inspectors) shall have effect in relation to--

(a) any order under this section, or

(b) any licence issued by virtue of subsection (3)(b) above,

as it has effect in relation to any such regulations or licence as is mentioned in paragraph (b) of that section; but section 27 of the [1979 c. 39.] Merchant Shipping Act 1979 (powers of inspectors) shall have effect in relation to any inspector appointed by virtue of this subsection with the omission of paragraphs (f) to (h) of subsection (1) of that section.

(7) The power to make an order under this section shall be exercisable by statutory instrument, but no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

(8) In this section--

"offshore installation" has the same meaning as in the [1971 c. 61.] Mineral Workings (Offshore Installations) Act 1971;
"prescribed" means prescribed by an order under this section;
"shipping services" means--

(a) the carriage of goods or passengers by sea,

(b) services provided by offshore support vessels, and

"United Kingdom waters" means waters within the seaward limits of the territorial sea of the United Kingdom and waters in any area designated under section 1(7) of the [1964 c. 29.] Continental Shelf Act 1964.

40 Enforcement of s. 39

(1) Where--

(a) any ship is used in the course of the provision of any shipping services to which section 39 applies, or

(b) anything is done on board a ship with a view to its being used to provide any such services,

and the provision of those services is prohibited by virtue of subsection (1) of that section and is not sanctioned by any licence issued by virtue of subsection (3)(b) of that section, then (subject to subsections (6) and (7)), the master and the owner of the ship shall each be guilty of an offence.

(2) Where the ship--

(a) is chartered by demise, or

(b) is managed, either wholly or in part, by a person other than the owner under the terms of a management agreement,

the reference in subsection (1) to the owner of the ship shall be construed as including a reference--

(i) to the charterer under the charter by demise, or

(ii) to any such manager as is referred to in paragraph (b) above, or

(iii) (if the ship is both chartered and managed as mentioned above) to both the charterer and any such manager.

(3) Any person who--

(a) in connection with an application for such a licence as is mentioned in subsection (3)(b) of section 39, or

(b) in purported compliance with the requirements of any notice served on him by virtue of subsection (3)(e) of that section,

knowingly or recklessly furnishes information which is false in a material particular shall be guilty of an offence.

(4) Any person who--

(a) without reasonable excuse (the proof of which lies on him) fails to comply with the requirements of any such notice, or

(b) intentionally alters, suppresses, conceals or destroys a document which he has been required to produce in pursuance of subsection (3)(e) of that section,

shall be guilty of an offence.

(5) Any person guilty of an offence under this section shall be liable--

(a) on summary conviction, to a fine not exceeding £50,000;

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

(6) It shall be a defence in proceedings brought under subsection (1) against the master of a ship to prove--

(a) that the master did not know and had no reason to suspect that, in the circumstances of the case, the provision of the shipping services referred to in paragraph (a) or (as the case may be) paragraph (b) of that subsection was prohibited by virtue of subsection (1) of section 39, or

(b) that the master had reasonable grounds for believing that the provision of those services was sanctioned by a licence issued by virtue of subsection (3)(b) of that section.

(7) It shall be a defence in proceedings brought under subsection (1) against a person other than the master of a ship to prove that, under the terms of one or more charter-parties or management agreements entered into by the defendant, the right to determine the purpose for which the ship in question was being used at the time of the alleged offence was wholly vested in some other person or persons party thereto (whether or not any such other person or persons had entered into a further charter-party or management agreement providing for that right to be vested in some other person).

(8) Subsections (1), (3) and (4) apply to offences falling within those subsections wherever committed.

(9) Proceedings for an offence under this section may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.

(10) Proceedings for an offence under this section shall not be instituted--

(a) in England and Wales, except by or with the consent of the Attorney General or the Secretary of State; or

(b) in Northern Ireland, except by or with the consent of the Attorney General for Northern Ireland or the Secretary of State.

(11) Any document required or authorised, by virtue of any statutory provision, to be served for the purpose of the institution of, or otherwise in connection with, proceedings for an offence under subsection (1) shall, where it is to be served on a person who was, at the time of the alleged offence--

(a) the owner of the ship in question, or

(b) such a charterer by demise or manager of that ship as is mentioned in subsection (2),

be treated as duly served on that person if--

(i) sent to him by post at his last-known address (whether of his residence or of a place where he carries on business), or

(ii) left for him at that address,

or if the document is served on the master of the ship in question.

(12) In this section "management agreement" has the same meaning as in section 30.

Financing and administration of lighthouse service

41 Joint discharge of functions by general lighthouse authorities

The following section shall be inserted after section 634 of the 1894 Act--

" 634A Joint discharge of functions by general lighthouse authorities

(1) Two or more of the general lighthouse authorities may discharge any of their functions jointly; and for that purpose--

(a) those authorities may share any part of their respective establishments, and

(b) any of them may, in the area of another and on that other's behalf, execute any works or do any other thing which the authority have power to execute or do in their own area;

and any enactment relating to the functions in question or to the authorities by whom or the areas in which those functions are to be discharged shall be construed accordingly.

(2) Any expenses incurred by any of the general lighthouse authorities in pursuance of this section shall be apportioned between that authority and the other authority or authorities concerned in such manner as may be agreed between them or (in default of agreement) determined by the Secretary of State. "

42 Borrowing powers in connection with lighthouse expenditure

(1) The following sections shall be substituted for section 662 of the 1894 Act--

" 662 Borrowing powers of general lighthouse authorities

(1) A general lighthouse authority may, with the consent of the Secretary of State and the Treasury, borrow money for the purpose of defraying any expenses incurred or to be incurred by the authority in connection with the discharge of their functions under this Act.

(2) A general lighthouse authority may, in connection with any advance to them under this section, mortgage any land or other property belonging to them.

(3) Any sums payable by a general lighthouse authority under the terms of an advance under this section by way of principal, interest or otherwise shall be paid out of the General Lighthouse Fund.

662A Limit on borrowings under s. 662

(1) The aggregate amount outstanding in respect of the principal of any sums borrowed under section 662 of this Act shall not at any time exceed £100 million.

(2) The Secretary of State may, by order made by statutory instrument with the approval of the Treasury, increase or further increase that limit, but not by more than £33 million at a time.

(3) An order shall not be made under subsection (2) of this section unless a draft of the order has been laid before and approved by a resolution of the House of Commons.

662B Guarantees by Secretary of State

(1) The Secretary of State with the consent of the Treasury may guarantee, in such manner and on such conditions as he thinks fit, the repayment of the principal of, the payment of interest on, and the discharge of any other financial obligation in connection with, any sums borrowed by a general lighthouse authority under section 662 of this Act.

(2) Immediately after a guarantee is given under this section, the Secretary of State shall lay a statement of the guarantee before each House of Parliament, and where any sum is issued for fulfilling a guarantee so given the Secretary of State shall, as soon as possible after the end of each financial year beginning with that in which the sum is issued and ending with that in which all liability in respect of the principal of the sum and in respect of interest thereon is finally discharged, lay before each House of Parliament a statement relating to that sum.

(3) Any sums required by the Secretary of State for fulfilling any guarantee under this section shall be paid out of money provided by Parliament.

(4) If any sums are issued in fulfilment of any guarantee given under this section there shall be made to the Secretary of State out of the General Lighthouse Fund, at such times and in such manner as the Secretary of State may determine with the consent of the Treasury, payments of such amounts as the Secretary of State may so determine in or towards repayment of the sums so issued, and payments of interest on what is outstanding for the time being in respect of sums so issued at such rate as the Secretary of State may so determine.

(5) The Secretary of State, with the consent of the Treasury, may vary or revoke any determination made by him under subsection (4) of this section.

(6) Any sums received by the Secretary of State under that subsection shall be paid into the Consolidated Fund. "

(2) In consequence of subsection (1) above, section 663 of the 1894 Act (power of Public Works Loan Commissioners to advance money on security of mortgage effected under section 662 of that Act as originally enacted) shall cease to have effect.

43 Payment out of General Lighthouse Fund of certain expenses of Secretary of State

The following sections shall be inserted after section 2 of the [1898 c. 44.] Merchant Shipping (Mercantile Marine Fund) Act 1898--

" 2A Payment out of Fund of Secretary of State's expenses relating to certain navigational aids

(1) There shall be paid out of the General Lighthouse Fund--

(a) any expenses (whether of a capital nature or not) incurred by the Secretary of State in pursuance of any international agreement relating to the provision of an electronic position-fixing system which is intended as an aid to the navigation of ships ; and

(b) any expenses incurred by the Secretary of State preliminary to his entering into any such agreement.

(2) Any sums received by the Secretary of State in pursuance of any such agreement in respect of--

(a) expenses incurred by him as mentioned in subsection (1)(a) of this section, or

(b) expenses incurred by any of the general lighthouse authorities which, by virtue of any enactment, are payable out of the General Lighthouse Fund,

shall be paid into the Fund.

2B Payment out of Fund of administrative expenses of Secretary of State

There shall be paid out of the General Lighthouse Fund such sums as the Secretary of State may determine for the purposes of this section, being sums which appear to him to represent the amount or estimated amount of any expenses incurred or likely to be incurred by him in connection with the administration of the Fund. "

Inquiries

44 Power to summon witness to inquiry into fitness or conduct of officer or other seaman

(1) The persons holding an inquiry under section 52 or 54 of the [1970 c. 36.] Merchant Shipping Act 1970 (inquiries into fitness or conduct of officers or other seamen) may--

(a) by summons require any person to attend, at a time and place stated in the summons, to give evidence or to produce any documents in his custody or under his control which relate to any matter in question at the inquiry; and

(b) take evidence on oath (and for that purpose administer oaths) or, instead of administering an oath, require the person examined to make a solemn affirmation.

(2) If on the failure of a person to attend such an inquiry in answer to a summons under this section--

(a) the persons holding the inquiry are satisfied by evidence on oath--

(i) that the person in question is likely to be able to give material evidence or produce any document which relates to any matter in question at the inquiry, and

(ii) that he has been duly served with the summons, and

(iii) that a reasonable sum has been paid or tendered to him for costs and expenses, and

(b) it appears to them that there is no just excuse for the failure,

they may issue a warrant to arrest him and bring him before the inquiry at a time and place specified in the warrant.

(3) If any person attending or brought before such an inquiry refuses without just excuse to be sworn or give evidence, or to produce any document, the persons holding the inquiry may--

(a) commit him to custody until the end of such period not exceeding one month as may be specified in the warrant or until he gives evidence or produces the document (whichever occurs first), or

(b) impose on him a fine not exceeding £1,000,

or both.

(4) A fine imposed under subsection (3)(b) shall be treated for the purposes of its collection, enforcement and remission as having been imposed by the magistrates' court for the area in which the inquiry in question was held, and the persons holding the inquiry shall, as soon as practicable after imposing the fine, give particulars of it to the clerk of that court.

(5) This section does not apply to Scotland.

45 Procedure where inquiry into fitness or conduct of officer or other seaman is held by sheriff

Where an inquiry under section 52 or 54 of the [1970 c. 36.] Merchant Shipping Act 1970 (inquiries into fitness or conduct of officers or other seamen) is held in Scotland by a sheriff--

(a) he shall (subject to rules made under section 58(1) of that Act (rules of procedure)) dispose of the inquiry as a summary application; and

(b) (subject to section 57 of that Act (re-hearings and appeals)) his decision on the inquiry shall be final.

Crew agreements

46 Payment of wages on termination of crew agreement

(1) Section 7 of the Merchant Shipping Act 1970 (payment of seamen's wages) shall be amended as provided in subsections (2) to (8) below.

(2) The following subsection shall be substituted for subsection (1)--

" (1) Where a seaman employed under a crew agreement relating to a ship leaves the ship on being discharged from it, then, except as provided by or under this Act or any other enactment, the wages due to the seaman under the agreement shall either--

(a) be paid to him in full at the time when he so leaves the ship (in this section and section 8 of this Act referred to as the time of discharge), or

(b) be paid to him in accordance with subsections (3A) and (3B) of this section. "

(3) In subsection (2), after "payable to him under" there shall be inserted "paragraph (a) of".

(4) In subsection (3), for "the preceding provisions" there shall be substituted "subsection (1)(a) or (2)".

(5) The following subsections shall be inserted after subsection (3)--

" (3A) Where the crew agreement referred to in subsection (1) of this section provides for the seaman's basic wages to be payable up-to-date at specified intervals not exceeding one month, and for any additional amounts of wages to be payable within the pay cycle following that to which they relate, any amount of wages due to the seaman under the agreement shall (subject to subsection (3B) of this section) be paid to him not later than the date on which the next payment of his basic wages following the time of discharge would have fallen due if his employment under the agreement had continued.

(3B) If it is not practicable, in the case of any amount due to the seaman by way of wages additional to his basic wages, to pay that amount by the date mentioned in subsection (3A) of this section, that amount shall be paid to him not later than what would have been the last day of the pay cycle immediately following that date if his employment under the crew agreement had continued.

(3C) If any amount which, under subsection (3A) or (3B) of this section, is payable to a seaman is not paid at the time at which it is so payable, it shall carry interest at the rate of 20 per cent. per annum. "

(6) In subsection (4)--

(a) for "Subsection (3) of this section does" there shall be substituted "The provisions of subsection (3) or (3C) of this section shall"; and

(b) for "that subsection" there shall be substituted "those provisions".

(7) In subsection (6), for "(1) to (3)" there shall be substituted "(1) to (3A)".

(8) The following subsection shall be added after that subsection--

" (7) For the purposes of this section any amount of wages shall, if not paid to him in cash, be taken to have been paid to a seaman--

(a) on the date when a cheque, or a money or postal order issued by the Post Office, for that amount was despatched by the recorded delivery service to the seaman's last-known address, or

(b) on the date when any account kept by the seaman with a bank or other institution was credited with that amount. "

(9) In section 8 of the [1970 c. 36.] Merchant Shipping Act 1970 (account of seaman's wages)--

(a) in subsection (1), for "subsection (4)" there shall be substituted "subsections (3A) and (4)"; and

(b) the following subsection shall be inserted after subsection (3)--

" (3A) Where subsection (3A) or (3B) of section 7 of this Act applies to the payment of any amount of wages due to a seaman under a crew agreement--

(a) the persons who employed the seaman shall deliver to him an account of the wages payable to him under that subsection and of the deductions subject to which the wages are payable; and

(b) any such account shall be so delivered at the time when the wages are paid to him; and

and subsection (7) of section 7 shall apply for the purposes of this subsection as it applies for the purposes of that section. "

Miscellaneous

47 Application of Merchant Shipping Acts to ships chartered by demise to the Crown

(1) This section applies to a ship if for the time being--

(a) the ship is--

(i) registered in the United Kingdom, and

(ii) in the service of a government department ("the relevant department") by reason of a charter by demise to the Crown; and

(b) there is in force under section 80 of the [1906 c. 48.] Merchant Shipping Act 1906 (Government ships) an Order in Council providing for the registration of Government ships in the service of the relevant department.

(2) Where this section applies to any ship, the following statutory provisions, namely--

(a) the provisions of the Order in Council referred to in subsection (1)(b) (excluding those relating to registration under the Order), and

(b) the provisions of the Merchant Shipping Acts (as they apply by virtue of the Merchant Shipping Act 1906 and that Order in Council),

shall (subject to subsections (3) and (4)) have the same effect in relation to that ship as they have in relation to a Government ship in the service of the relevant department (whether referred to as such or as such a ship registered in pursuance of that Order in Council).

(3) Subject to subsection (4), the registration enactments shall have effect in relation to a ship to which this section applies in like manner as if it were not, for the purposes of the Merchant Shipping Acts, a ship belonging to Her Majesty.

(4) Her Majesty may by Order in Council provide that any statutory provision falling within subsection (2) or (3) and specified in the Order--

(a) shall not have effect in accordance with that subsection in relation to a ship to which this section applies, or

(b) shall so have effect in relation to such a ship, but subject to such modifications as are specified in the Order.

(5) In the application of any provision of the Merchant Shipping Acts (other than a provision of the registration enactments) in relation to a ship to which this section applies, any reference to the owner of the ship shall be construed as a reference to the relevant department.

(6) An Order in Council under this section--

(a) may make such transitional, incidental or supplementary provision as appears to Her Majesty to be necessary or expedient; and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section--

"government department" includes a Northern Ireland department;
"Government ship" means a Government ship within the meaning of section 80 of the [1906 c. 48.] Merchant Shipping Act 1906;
"the registration enactments" means--

(a) the provisions of Part I of the 1894 Act down to and including section 67 of that Act;

(b) section 5 of the [1983 c. 13.] Merchant Shipping Act 1983; and

48 Miscellaneous amendments of Merchant Shipping Acts

Schedule 5 to this Act (which contains miscellaneous amendments of the Merchant Shipping Acts 1894 to 1986) shall have effect.

Part IV General

49 Application to hovercraft

The enactments and instruments with respect to which provision may be made by Order in Council in pursuance of section 1(1)(h) of the [1968 c. 59.] Hovercraft Act 1968 shall include this Act and any instrument made under it.

50 Application to unregistered ships

(1) The Secretary of State may make regulations specifying any description of unregistered ships and directing that such of the provisions of sections 30, 31 and 33 as may be specified in the regulations--

(a) shall extend to unregistered ships of that description, or

(b) shall so extend in such circumstances as may be so specified,

with such modifications (if any) as may be so specified.

(2) Subsection (1) shall not be construed as prejudicing the application to unregistered ships of section 30(1)(a) or section 33(2)(a)(ii).

(3) In this section "unregistered ship" means a ship which is not registered in the United Kingdom or elsewhere.

51 Offences by officers of bodies corporate

(1) Where a body corporate is guilty of an offence under this Act or any regulations made under it, 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, a director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

52 Disclosure of information to Secretary of State by other government departments

(1) No obligation as to secrecy or other restriction on the disclosure of information (whether imposed by statute or otherwise) shall preclude any of the persons mentioned in subsection (2) from disclosing--

(a) to the Secretary of State, or

(b) to an authorised officer of the Secretary of State,

information for the purpose of assisting the Secretary of State in the performance of his functions under Part I or Part II.

(2) The persons referred to in subsection (1) are--

(a) the Minister of Agriculture, Fisheries and Food,

(b) the Secretaries of State respectively concerned with sea fishing in Scotland, Wales and Northern Ireland,

(d) the Commissioners of Customs and Excise, and

(e) an authorised officer of any of the persons falling within paragraphs (a) to (d) above.

(3) Information obtained by any person in pursuance of subsection (1) shall not be disclosed by him to any other person except where the disclosure is made--

(a) to a person to whom the information could have been disclosed by any of the persons mentioned in subsection (2) in accordance with subsection (1), or

(b) for the purposes of any legal proceedings arising out of Part I or Part II.

53 Regulations

(1) Any power of the Secretary of State to make regulations under this Act shall be exercisable by statutory instrument subject to annulment by a resolution of either House of Parliament.

(2) Regulations under this Act may--

(a) make different provision for different classes or descriptions of ships and for different circumstances; and

(b) make such transitional, incidental or supplementary provision as appears to the Secretary of State to be necessary or expedient.

54 Notices under Parts I and II

(1) Any notice required or authorised to be served by the Secretary of State under Part I or II may be served by post.

(2) Any notice required or authorised to be served by the Secretary of State under Part I or II on the registered owner of any registered ship or registered fishing vessel shall, where there are two or more registered owners, be treated as duly served--

(a) in the case of a ship in relation to which a managing owner is for the time being registered under section 59(1) of the 1894 Act, if served on that managing owner, and

(b) in the case of any other ship or in the case of a fishing vessel, if served on any one of the registered owners.

(3) For the purposes of section 7 of the [1978 c. 30.] Interpretation Act 1978 (service of documents by post) a letter containing--

(a) a notice to be served on any person in pursuance of subsection (2) above, or

(b) a notice required or authorised to be served under Part I on a representative person within the meaning of that Part,

shall be deemed to be properly addressed if it is addressed to that person at the address for the time being recorded in relation to him in the appropriate register; and a letter containing any other notice to which subsection (1) above applies shall be deemed to be properly addressed if it is addressed to the last-known address of the person to be served (whether of his residence or of a place where he carries on business).

(4) In this section--

"the appropriate register"--

(a) in relation to a notice in respect of a registered ship, means the register in which the ship is registered under Part I of the 1894 Act, and

(b) in relation to a notice in respect of a registered fishing vessel, means the register kept under Part II of this Act;

"registered ship" means a ship registered under Part I of the 1894 Act;
"registered fishing vessel" means a fishing vessel registered under Part II of this Act; and
"registered owner" means an owner registered under Part I of the 1894 Act or Part II of this Act, as the case may be.

55 Financial provisions

(1) There shall be paid out of money provided by Parliament any expenses incurred by the Secretary of State in consequence of the provisions of this Act.

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