Merchant Shipping Act 1988 (c. 12)

(The document as of February, 2008)

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(i) for "ship or boat belonging to any British subject" substitute "British ship", and

(ii) omit "or boat" (where last occurring); and

46 In section 74 (penalty for ship not showing colours)--

(a) in subsection (1), for "A ship belonging to a British subject" substitute "A British ship"; and

(b) for subsection (3) substitute--

" (3) This section shall not apply to a fishing vessel registered under Part II of the Merchant Shipping Act 1988 and duly marked in accordance with regulations under section 13 of that Act. "

47 (1) Section 76 (proceedings on forfeiture of ship) shall be amended as follows.

(2) In subsection (1)--

(a) for paragraphs (b) and (c) substitute " or

(b) any person appointed by the Secretary of State for the purposes of this section; " ;

(b) omit the words from "and elsewhere" to "dominions,"; and

(3) In subsection (2), for "as in this section mentioned" substitute "or other person as is mentioned in subsection (1) of this section".

48 In section 84(1) (tonnage of ships of foreign countries adopting tonnage regulations)--

(a) for "Her Majesty's dominions" substitute "the United Kingdom";

(b) for "British", in the first and second places where it occurs, substitute "registered"; and

49 Omit section 85 (space occupied by deck cargo to be liable to dues).

50 Omit sections 88 to 90 (registration of ships abroad).

51 Omit section 91 (application of Part I).

52 In Schedule 1 (forms relating to registration)--

(a) omit Part I; and

(b) in Part II--

(i) omit "Certificate of mortgage", "Certificate of sale" and "Revocation of certificate of sale or mortgage", and

(ii) at the end add--

"Mortgage."
"Transfer of mortgage."

Section 13.

SCHEDULE 2 Registration of Fishing Vessels: Supplementary Provisions

Interpretation

1 In this Schedule--

"declaration of British character" means a declaration, in such form as may be prescribed, relating to the eligibility of a fishing vessel to be registered as a British fishing vessel;
"regulations" means regulations made under section 13;
"relevant statutory provision" means any provision of this Part or ofregulations;
"specified" means specified in regulations.

Regulations: general provisions

2 Regulations may make provision--

(a) for the persons by whom and the manner in which applications in connection with registration are to be made (including provision limiting the persons who may apply for registration, whether by reference to residence or place of business or otherwise);

(b) for the information and evidence to be provided in connection with such applications and for such supplementary information or evidence as may be required by any authority specified in the regulations for the purpose to be so provided, and for the production, in connection with such applications, of declarations of British character;

(c) for the registration of vessels as vessels to which the provisions of this Part relating to transfers by bill of sale and the registration of mortgages do not apply;

(d) for the issue of certificates of registration (including temporary certificates), their production and surrender;

(e) for the marking of registered vessels;

(f) for the period for which the registration of a vessel is to remain effective without renewal;

(g) for matters arising out of the expiration or termination of registration (including the removal of marks and the cancellation of certificates);

(h) for declarations of British character to be produced to the Secretary of State, as respects registered vessels, at specified intervals or at the request of the Secretary of State;

(i) for the payment of fees determined with the approval of the Treasury;

(j) excluding from registration, or from any provision of the regulations, any specified class or description of vessel;

(k) for the manner in which notices or other documents required or authorised to be given or served by virtue of any relevant statutory provision are to be given or served;

(l) for prescribing anything which is authorised to be prescribed under this Part;

(m) for any of the provisions of Part I of the 1894 Act to have effect in relation to the registration of fishing vessels subject to such modifications (if any) as may be specified;

(n) for any other matters relating to the establishment and maintenance of the register (including its inspection).

Provisional registration

3 Regulations may make provision--

(a) for fishing vessels acquired outside the United Kingdom which are eligible to be registered as British fishing vessels to be provisionally registered as such pending their registration in the register;

(b) for any such provisional registration to terminate in specified circumstances (including failure to comply with requirements imposed by or under the regulations).

Transfers of registration

4 (1) Regulations may make provision with respect to the transfer to the register of--

(a) fishing vessels to which section 13(3) applies where those vessels are eligible to be registered as British fishing vessels, and

(b) undischarged mortgages affecting those vessels,

and with respect to matters consequential on the termination of the registration of fishing vessels under any of the enactments specified in section 13(2) (including vessels which are not transferred to the register).

(2) Any such regulations may make provision--

(a) for any of the matters specified in sub-paragraphs (a), (b) and (i) of paragraph 2;

(b) for applications under sections 19(3) and 20(1) to be treated, in cases where those provisions apply by virtue of section 13(4), as applications for registration of the vessels in question;

(c) for the issue of certificates of registration under this Part (including temporary certificates) and for the surrender of certificates of registration issued under any of the enactments specified in section 13(2);

(d) for preserving the effect of entries in any register kept under either of the enactments specified in section 13(2)(a) and (c) so far as those entries relate to undischarged mortgages affecting vessels which are not transferred to the register kept under this Part.

(3) Nothing in this paragraph prejudices the generality of paragraph 2.

Offences

5 (1) Regulations may provide for the creation of offences and their punishment on summary conviction in any of the following cases--

(a) where a person with intent to deceive, uses, or lends to or allows to be used by another, a certificate of registration, whether in force or not;

(b) where a person required by regulations to ensure that any requirement of the regulations as to the marking of a fishing vessel is satisfied fails to ensure that that requirement is satisfied;

(c) where a person required by regulations to surrender a certificate of registration fails without reasonable excuse to surrender the certificate.

(2) Any such regulations shall--

(a) in the case of an offence created by virtue of sub-paragraph (1)(a), provide for the offence to be punishable with a fine not exceeding the fifth level on the standard scale; and

(b) in the case of an offence created by virtue of sub-paragraph (1)(b) or (c), provide for it to be punishable with a fine not exceeding the third level on the standard scale.

(3) Regulations providing for the creation of an offence by virtue of sub-paragraph (1)(b) shall provide that it shall be a defence for a person charged with the offence to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.

Operation of regulations in territorial waters

6 Regulations may provide for any of their provisions to extend to the territorial sea of the United Kingdom.

Discharge of functions by persons appointed by Secretary of State

7 (1) The Secretary of State may appoint persons to discharge such functions in connection with--

(a) applications for registration, or

(b) the issue, production or surrender of certificates of registration,

as he may specify; and regulations may provide for references to the Secretary of State in any relevant statutory provision to be read as, or as including, references to any person so appointed.

(2) Sub-paragraph (1) does not authorise the appointment of any person todetermine applications for registration.

Construction of references in other enactments to fishing vessels excluded from registration

8 References in any statutory provision (apart from section 2(1)(c)) to fishing vessels excluded from registration by regulations under section 13 shall be construed as references to fishing vessels which, being eligible to be registered under this Part by virtue of section 14, are excluded from registration by such regulations (and are not registered under the law of any country outside the United Kingdom).

Section 21.

SCHEDULE 3 Mortgages of Registered Fishing Vessels

Interpretation

1 In this Schedule--

"mortgage" shall be construed in accordance with paragraph 2(2) below;
"registered mortgage" means a mortgage registered in pursuance of paragraph 2(3) below; and
"registered vessel" means a vessel registered otherwise than in pursuance of paragraph 2(c) of Schedule 2.

Mortgages of registered vessels

2 (1) Any registered vessel or share in a registered vessel may be made a security for the repayment of a loan or the discharge of any other obligation.

(2) The instrument creating any such security (referred to in this Schedule as a mortgage) shall be in such form as is prescribed or approved by the Secretary of State.

(3) Where a mortgage executed in accordance with sub-paragraph (2) is produced to the Secretary of State, he shall--

(a) register the mortgage by causing it to be recorded in the register, and

(b) endorse on it the fact that it has been recorded, together with the date and time when it was recorded.

(4) Mortgages shall be registered under sub-paragraph (3) in the order in which they are produced to the Secretary of State for the purposes of registration.

Priority of registered mortgages

3 Where two or more mortgages are registered in respect of the same vessel or share, the priority of the mortgagees between themselves shall (subject to paragraph 4) be determined by the order in which the mortgages were registered (and not by reference to any other matter).

Notices by intending mortgagees

4 (1) Where any person who is an intending mortgagee under a proposedmortgage of--

(a) a registered vessel, or

(b) a share in a registered vessel,

notifies the Secretary of State in writing of the interest which it is intended that he should have under the proposed mortgage, the Secretary of State shall cause that interest to be recorded in the register.

(2) Where any person who is an intending mortgagee under a proposed mortgage of--

(a) a fishing vessel which is not for the time being a registered vessel, or

(b) a share in any such vessel,

notifies the Secretary of State in writing of the interest which it is intended that he should have under the proposed mortgage and furnishes him with such particulars of that vessel as may be prescribed, the Secretary of State--

(i) shall cause that interest to be recorded in the register, and

(ii) if the vessel is subsequently registered (otherwise than in pursuance of paragraph 2(c) of Schedule 2), shall cause the vessel to be registered subject to that interest or, if the mortgage has by then been executed in accordance with paragraph 2(2) and produced to the Secretary of State, subject to that mortgage.

(3) In a case where--

(a) paragraph 3 operates to determine the priority between two or moremortgagees, and

(b) any of those mortgagees gave a notification under sub-paragraph (1) or (2) above with respect to his mortgage,

paragraph 3 shall have effect in relation to that mortgage as if it had been registered at the time when the relevant entry was made in the register under sub-paragraph (1) or (2) above.

(4) Any notification given by a person under sub-paragraph (1) or (2) (and anything done as a result of it) shall cease to have effect--

(a) if the notification is withdrawn, or

(b) at the end of the period of 30 days beginning with the date of the notification, unless the notification is renewed in accordance with sub-paragraph (5).

(5) The person by whom any such notification is given may renew or further renew the notification, on each occasion for a period of 30 days, by notice in writing given to the Secretary of State--

(a) before the end of the period mentioned in sub-paragraph (4)(b), or

(b) before the end of the current period of renewal,

as the case may be.

(6) Any notification or notice purporting to be given under this paragraph (and anything done as a result of it) shall not have any effect if the Secretary of State determines that it was not validly given.

Registered mortgagee's power of sale

5 (1) Subject to sub-paragraph (2), every registered mortgagee shall have power, if the mortgage money or any part of it is due, to sell the vessel or share in respect of which he is registered, and to give effectual receipts for the purchase money.

(2) Where two or more mortgagees are registered in respect of the same vessel or share, a subsequent mortgagee shall not, except under an order of a court of competent jurisdiction, sell the vessel or share without the concurrence of every prior mortgagee.

Transfer of registered mortgage

6 (1) A registered mortgage may be transferred by an instrument made in such form as is prescribed or approved by the Secretary of State.

(2) Where any such instrument is produced to the Secretary of State, he shall--

(a) cause the name of the transferee to be entered in the register as mortgagee of the vessel or share in question, and

(b) endorse on the instrument the fact that that entry has been made, together with the date and time when it was made.

Transmission of registered mortgage by operation of law

7 Where the interest of a mortgagee in a registered mortgage is transmitted to any person by any lawful means other than by a transfer under paragraph 6, the Secretary of State shall, on production of such evidence of the transmission as may be prescribed, cause the name of that person to be entered in the register as mortgagee of the vessel or share in question.

Discharge of registered mortgage

8 Where a registered mortgage has been discharged, the Secretary of State shall, on production of the mortgage deed with such evidence of the discharge of the mortgage as is prescribed, cause an entry to be made in the register to the effect that the mortgage has been discharged.

Transfer of mortgages from one system of registration to another

9 (1) Regulations may provide--

(a) for the transfer to the register of undischarged mortgages that have been registered under Part I of the 1894 Act and affect ships registered under that Part of that Act which become registered vessels otherwise than in pursuance of paragraph 4 of Schedule 2 to this Act; and

(b) for any provisions of this Part to have effect in relation to any such mortgages, or in relation to any mortgages transferred in pursuance of paragraph 4 of that Schedule, subject to such modifications as may be specified in the regulations.

(2) Regulations may also provide--

(a) for the transfer to registers kept under Part I of the 1894 Act of undischarged registered mortgages affecting registered vessels which become ships registered under that Part of that Act; and

(b) for any provisions of that Part of that Act to have effect in relation to any such mortgages subject to such modifications as may be specified in the regulations.

(3) Without prejudice to the generality of sub-paragraphs (1) and (2)--

(a) regulations made by virtue of sub-paragraph (1) may make provision, in connection with the transfer of mortgages in pursuance of that sub-paragraph, for the transmission of information relating to such mortgages which is recorded in registers kept under Part I of the 1894 Act, and for the recording of such information in the register kept under this Part; and

(b) regulations made by virtue of sub-paragraph (2) may make corresponding provision, in connection with the transfer of mortgages in pursuance of that sub-paragraph, for the transmission and recording of information relating to such mortgages which is recorded in the register kept under this Part.

(4) In this paragraph "regulations" means regulations made under section 13.

Section 34.

SCHEDULE 4 Amendments relating to Liability and Compensation for Oil Pollution Damage

Part I Amendments of Merchant Shipping (Oil Pollution) Act 1971

1 For section 1 substitute--

" 1 Liability for oil pollution

(1) Where, as a result of any occurrence, any oil is discharged or escapes from a ship to which this section applies, then (except as otherwise provided by this Act) the owner of the ship shall be liable--

(a) for any damage caused outside the ship in the area of the United Kingdom by contamination resulting from the discharge or escape; and

(b) for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the area of the United Kingdom by contamination resulting from the discharge or escape; and

(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship to which this section applies by contamination resulting from a discharge or escape of oil from the ship, then (except as otherwise provided by this Act) the owner of the ship shall be liable--

(a) for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the area of the United Kingdom; and

(b) for any damage caused outside the ship in the area of the United Kingdom by any measures so taken;

and in this Act any such threat is referred to as a relevant threat of contamination.

(3) Subject to subsection (4) of this section, this section applies to any ship constructed or adapted for carrying oil in bulk as cargo.

(4) Where any ship so constructed or adapted is capable of carrying other cargoes besides oil, this section shall apply to any such ship--

(a) while it is carrying oil in bulk as cargo; and

(b) unless it is proved that no residues from the carriage of any such oil remain in the ship, while it is on any voyage following the carriage of any such oil,

but not otherwise.

(5) Where a person incurs a liability under subsection (1) or (2) of this section he shall also be liable for any damage or cost for which he would be liable under that subsection if the references in it to the area of the United Kingdom included the area of any other Convention country.

(6) Where--

(a) as a result of any occurrence, a liability is incurred under this section by the owner of each of two or more ships, but

(b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,

each of the owners shall be liable, jointly with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.

(7) For the purposes of this Act--

(a) references to a discharge or escape of oil from a ship are references to such a discharge or escape wherever it may occur, and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank;

(b) where more than one discharge or escape results from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one, but any measures taken after the first of them shall be deemed to have been taken after the discharge or escape; and

(c) where a relevant threat of contamination results from a series of occurrences having the same origin, they shall be treated as a single occurrence.

(8) The [1945 c. 28.] Law Reform (Contributory Negligence) Act 1945 and, in Northern Ireland, the [1948 c. 23 (N.I.).] Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948 shall apply in relation to any damage or cost for which a person is liable under this section, but which is not due to his fault, as if it were due to his fault. "

2 For section 2 substitute--

" 2 Exceptions from liability under s.1

No liability shall be incurred by the owner of a ship under section 1 of this Act by reason of any discharge or escape of oil from the ship, or by reason of any relevant threat of contamination, if he proves that the discharge or escape, or (as the case may be) the threat of contamination--

(a) resulted from an act of war, hostilities, civil war, insurrection or an exceptional, inevitable and irresistible natural phenomenon; or

(b) was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner, with intent to do damage; or

(c) was due wholly to the negligence or wrongful act of a government or other authority in exercising its function of maintaining lights or other navigational aids for the maintenance of which it was responsible. "

3 For section 3 substitute--

" 3 Restriction of liability for oil pollution

(1) Where, as a result of any occurrence--

(a) any oil is discharged or escapes from a ship to which section 1 of this Act applies, or

(b) there arises a relevant threat of contamination,

then, whether or not the owner of the ship in question incurs a liability under section 1 of this Act--

(i) he shall not be liable otherwise than under that section for any such damage or cost as is mentioned in it, and

(ii) no person to whom this paragraph applies shall be liable for any such damage or cost unless it resulted from anything done or omitted to be done by him either with intent to cause any such damage or cost or recklessly and in the knowledge that any such damage or cost would probably result.

(2) Subsection (1)(ii) of this section applies to--

(a) any servant or agent of the owner of the ship;

(b) any person not falling within paragraph (a) above but employed or engaged in any capacity on board the ship or to perform any service for the ship;

(c) any charterer of the ship (however described and including a bareboat charterer), and any manager or operator of the ship;

(d) any person performing salvage operations with the consent of the owner of the ship or on the instructions of a competent public authority;

(e) any person taking any such measures as are mentioned in subsection (1)(b) or (2)(a) of section 1 of this Act;

(f) any servant or agent of a person falling within paragraph (c), (d) or (e) above.

(3) The liability of the owner of a ship under section 1 of this Act for any impairment of the environment shall be taken to be a liability only in respect of--

(a) any resulting loss of profits, and

(b) the cost of any reasonable measures of reinstatement actually taken or to be taken. "

4 For section 4 substitute--

" 4 Limitation of liability under s.1

(1) Where, as a result of any occurrence, the owner of a ship incurs a liability under section 1 of this Act by reason of a discharge or escape or by reason of any relevant threat of contamination, then (subject to subsection (3) of this section)--

(a) he may limit that liability in accordance with the provisions of this Act, and

(b) if he does so, his liability (that is to say, the aggregate of his liabilities under section 1 resulting from the occurrence) shall not exceed the relevant amount.

(2) In subsection (1) of this section "the relevant amount" means--

(a) in relation to a ship not exceeding 5,000 tons, 3 million special drawing rights;

(b) in relation to a ship exceeding 5,000 tons, 3 million special drawing rights together with an additional 420 special drawing rights for each ton of its tonnage in excess of 5,000 tons up to a maximum amount of 59.7 million special drawing rights;

but the Secretary of State may by order made by statutory instrument make such amendments of paragraphs (a) and (b) above as appear to him to be appropriate for the purpose of giving effect to the entry into force of any amendment of the limits of liability laid down in paragraph 1 of Article V of the Convention.

(3) Subsection (1) of this section shall not apply in a case where it is proved that the discharge or escape, or (as the case may be) the relevant threat of contamination, resulted from anything done or omitted to be done by the owner either with intent to cause any such damage or cost as is mentioned in section 1 of this Act or recklessly and in the knowledge that any such damage or cost would probably result.

(4) For the purposes of this section a ship's tonnage shall be its gross tonnage calculated in such manner as may be prescribed by an order made by the Secretary of State by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(5) Any such order shall, so far as it appears to the Secretary of State to be practicable, give effect to the regulations in Annex 1 of the International Convention on Tonnage Measurement of Ships 1969. "

5 In section 5 (limitation actions), after subsection (6) add--

" (7) No lien or other right in respect of any ship or other property shall affect the proportions in which any amount is distributed in accordance with subsection (2)(b) of this section. "

6 In section 7 (concurrent liabilities of owners and others), for the words from the beginning to "of that section," substitute "Where, as a result of any discharge or escape of oil from a ship or as a result of any relevant threat of contamination, the owner of a ship incurs a liability under section 1 of this Act and any other person incurs a liability, otherwise than under that section, for any such damage or cost as is mentioned in subsection (1) or (2) of that section,".

7 In section 9 (extinguishment of claims), after "escape" insert ", or (as the case may be) in the relevant threat of contamination,".

8 In section 10 (compulsory insurance against liability for pollution)--

(a) in subsection (1), omit "persistent";

(b) in subsection (3)(c), for the words from "a certificate recognised" onwards substitute "by or under the authority of the government of any Convention country other than the United Kingdom"; and

9 In section 12 (rights of third parties against insurers)--

(a) in subsection (1), after "occurring" insert ", or as a result of any relevant threat of contamination arising,";

(b) in subsection (2), after "escape" insert ", or (as the case may be) the threat of contamination,"; and

(c) in subsection (3), for "occurred without the owner's actual fault or privity" substitute ", or (as the case may be) the threat of contamination, resulted from anything done or omitted to be done by the owner as mentioned in section 4(3) of this Act."

10 In section 13 (jurisdiction of United Kingdom courts, etc.), for subsection (2) substitute--

" (2) Where--

(a) any oil is discharged or escapes from a ship but does not result in any damage caused by contamination in the area of the United Kingdom and no measures are reasonably taken to prevent or minimise such damage in that area, or

(b) any relevant threat of contamination arises but nomeasures are reasonably taken to prevent or minimise damage caused by contamination in the area of the United Kingdom resulting from a discharge or escape of oil from the ship,

no court in the United Kingdom shall entertain any action (whether in rem or in personam) to enforce a claim arising from any relevant damage or cost--

(i) against the owner of the ship, or

(ii) against any person to whom section 3(1)(ii) of this Act applies, unless any such damage or cost resulted from anything done or omitted to be done as mentioned in that provision.

(2A) In subsection (2) of this section "relevant damage or cost" means--

(a) in relation to any such discharge or escape as is mentioned in paragraph (a) of that subsection, any damage caused in the area of another Convention country by contamination resulting from the discharge or escape, or any cost incurred in taking measures to prevent or minimise such damage in the area of another Convention country;

(b) in relation to any such threat of contamination as is mentioned in paragraph (b) of that subsection, any cost incurred in taking measures to prevent or minimise damage caused by contamination in the area of another Convention country resulting from a discharge or escape of oil from the ship; or

and section 3(2)(e) of this Act shall have effect for the purposes of subsection (2)(ii) of this section as if it referred to any person taking any such measures as are mentioned in paragraph (a) or (b) above. "

11 In section 14(2) (Government ships), for the words from "Article V" onwards substitute "Article V of the Convention".

12 In section 15 (liability for cost of preventive measures where section 1 does not apply)--

(a) for subsection (1)(a) substitute--

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