Federal Law on Port State Control

Ata Atun, Clelia Theodolou, Other Committee Members

 

 

Foundation Agreement

Annex III, Attachment 11, Law 12

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Federal Law on Merchant Shipping (Port State Control)

 

 

 

 

 

 

 

 

 

 

 


 

 

For the purposes of harmonisation with the Community Act referred to as:

"Council Directive 95/21/EC of 19 June 1995 on port state control of shipping, (O.J. L157, p.1, 07/07/1995), as last amended by the Community Act referred to as  “Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships” (OJ L 324, 29.11.2002, p.53),

 

It is hereby provided as follows:

 

 

Short title.

1. This Law may be cited as the Federal Law on Merchant Shipping (Port State Control).

 

 

Interpretation.

2.(1) In this Law, unless the context otherwise requires-

 

 

 

"Commission" means the Commission of the European Union;

 

 

 

"Competent Authority" means the Competent Authority for the implementation of the provisions of this Law and of the Regulations made thereunder and shall be the Directorate;

 

 

 

"Conventions" means -

-       the International Convention on Load Lines, 1966 (LL 66),

-       the International Convention for the Safety of Life at Sea, 1974 (SOLAS 74)

-       the International Convention for the Prevention of Pollution from Ships, 1973 and the 1978 Protocol relating thereto (Marpol 73/78),

-       the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW 78),

-       the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Colreg 72),

-       the International Convention on Tonnage Measurement of Ships, 1969 (ITC 69),

-       the Merchant Shipping (Minimum Standards) Convention, 1976 (ILO No. 147),

-   the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 92),

 

together with the Protocols and amendments to these Conventions and related codes of mandatory status, in their up-to-date version;

 

 

“Cyprus” means the United Cyprus Republic;

 

 

"Cyprus ship" includes every description of vessel used in navigation not propelled by oars;

 

“Department” means the Department having the responsibility for maritime affairs;

 

 

 

 ”Directorate” means the Directorate of Maritime Affairs of the Department;

 

 

 

"Director" means the head of the Directorate;

 

 

 

“Directive 95/21/EC” means Council Directive 95/21/EC of 19 June 1995 on port state control of shipping, (O.J. L157, p.1, 07/07/1995), as last amended by the Community Act referred to as Directive 2002/84/EC of the European Parliament and of the Council of 5 November 2002 amending the Directives on maritime safety and the prevention of pollution from ships” (OJ L 324, 29.11.2002, p.53);

 

 

 

“Equasis information system” means the European system of information which provides information on the quality and safety of ships and their operators;

 

 

 

"Gazette" means the federal Official Gazette;

 

 

 

"ISM Code" means the International Code of Management for the Secure Functioning of the Ships and the Prevention of Environmental Pollution, which was issued by the International Maritime Organisation (IMO) on the 4 November of 1993 and was rendered mandatory pursuant to Chapter IX of the International Convention for the Safety of  Life at Sea of 1974, in its up-to-date version;

 

 

 

"inspection" means an inspection by a surveyor on board a ship, in order to check both the validity of the relevant certificates and other documents as well as the condition of the ship, its equipment and its crew and also the living and working conditions of the crew;

 

 

 

"master" means any person having the command or charge of the ship;

 

 

 

"member state" means a member state of the European Union;

 

 

 

"Member" means the member of the Presidential Council heading the Department;

 

 

 

"more detailed inspection" means an inspection where the ship, its equipment and crew as a whole, or as appropriate, parts thereof, are subjected, in the circumstances specified in subsection (3) of section 6, to an in-depth inspection covering the construction of the ship, its equipment, manning, living and working conditions and the compliance with on-board operational procedures;

 

 

 

“MOU” means the Memorandum of Understanding on Port State Control, signed in Paris on 26 January 1982, in its up-to-date version;

 

 

 

"notification" means a notification issued by the Director and published in the Gazette;

 

 

"offshore terminal installation" means any fixed or floating platform, operating on or over the continental shelf of Cyprus;

 

 

 

"operator of the ship" means the owner of the ship or any other person, such as the manager or the bareboat charterer, who has assumed the responsibility for operating the ship from the owner and who, by assuming such responsibility, has agreed to undertake all the duties and responsibilities which are imposed by the ISM Code;

 

"owner" means the person who owns the ship or a share therein and is registered as such in the Register of Ships of the flag state;

 

 

 

"passenger ship" means a sea-going vessel which carries more than twelve passengers;

 

 

 

"prohibition of sail" or "detention" means the explicit  prohibition on a ship to sail, due to established deficiencies which, individually or together, make the ship unseaworthy;

 

 

 

"ship" includes every description of vessel used in navigation not propelled by oars;

 

 

 

“Sirenac information system” means the central system of information for the registers concerning ship inspections, which take place in the context of port state control, which system is located in Saint-Malο of France and was established according to the Paris Memorandum of 1982, in its up-to-date version;

 

 

 

"stoppage of an operation" means an explicit prohibition on a ship of continuing an operation due to established deficiencies which, individually or together, would render the continued operation hazardous;

 

 

 

"surveyor" means a person, appointed by the Member  to the office of surveyor of ships, pursuant to paragraph (a) of subsection (2) of section 3 of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages) .

 

(2) The amendments to the international instruments referred to the definition of the term “Conventions” do not include amendments excluded from the scope of application of Directive 95/21/EC, pursuant to Article 5 of Regulation (EC) No. 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) and amending the Regulations on maritime safety and the prevention of pollution from ships (OJ L 324, 29.11.2002), as from time to time amended or replaced.

 

 

 

 

PART II – THE CYPRUS PORTS CONTROL

 

 

Extent of

application.

3.-(1) This Law shall apply to all ships and their crews which-

 

 

 

 

(a)       call at a port of Cyprus or at an off-shore terminal installation; or

 

 

(b)       are anchored off such a port or such an installation:

 

 

 

      Provided that this section shall apply without prejudice to the rights of intervention available to the authorities of Cyprus under the relevant Conventions.

 

 

 

(2) In case of ships of a gross tonnage below 500 tons, the applicable requirements of the relevant Convention shall apply and shall, to the extent that the Convention does not apply, take such action as may be necessary to ensure that the ships concerned are not clearly hazardous to safety, health or the environment.

 

       Provided that, on applying the provisions of this subsection, the surveyor shall be guided by Annex I to the MOU and as stipulated by a notification.

 

 

 

(3) When inspecting a ship flying a State’s flag, which is not a party to anyone of the Conventions, the Competent Authority shall ensure that the treatment given to such ship and its crew is no more favourable than that given to a ship flying the flag of a State which is a party to the particular Convention.

 

 

 

(4) The provisions of this Law shall not apply to fishing vessels, ships of war, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and recreational craft not engaged in trade.

 

 

Inspection

duties.

4.-(1) The total number of inspections of the ships referred to in sub-section (2) and section 6 to be carried out annually by the Competent Authority, shall correspond to at least 25% of the average annual number of individual ships which entered its ports, calculated on the basis of the three most recent calendar years for which statistics are available.

 

 

 

 (2) (a) The Competent Authority shall, subject to the provisions of section 6, ensure that an inspection in accordance with section 5 is carried out on any ship not subject to an expanded inspection with a target factor greater than 50 in the Sirenac information system, provided that a period of at least one month has elapsed since the last inspection carried out in a port in the MOU region.

 

   (b)     In selecting other ships for inspection, the Competent Authority shall determine the order of priority as follows:

 

 

 

- the first ships to be selected for inspection shall be those listed in Annex I, Part I of Directive 95/21/EC, irrespective of their target factor,

- the ships listed in Annex I, Part II of Directive 95/21/EC shall be selected in decreasing order, depending on the order of priority resulting from the value of their target factor ranges as referred to in the Sirenac information system.

 

 

 

(3) The Competent Authority shall refrain from inspecting ships which have been inspected by another member state within the previous six months, provided that -

 

 

 

 

-  the ship is not listed in Annex I of Directive 95/21/EC,

- no deficiencies have been reported, following a previous inspection,

-  no clear grounds exist for carrying out an inspection,

- the ship is not covered by sub-section 2(a).

 

 

 

(4) The provisions of subsection (3) shall not apply in the case of any operational controls specifically provided for in the Conventions.

 

 

 

Procedure of

inspection of

ships.

5.-(1)   The Competent Authority shall ensure that the surveyors shall as a minimum -

 

(a)       inspect the certificates and documents listed in Annex II to Directive 95/21EC and which are stated from time to time by a notification, to the extent that this is required, and

 

 

 

 

 

(b)       satisfy themselves of the overall condition of the ship, including the condition of the engine room and the accommodation, as well as of the hygienic conditions.

 

 

 

(2) The surveyor may examine all relevant certificates and documents other than those listed in Annex II to Directive 95/21EC which are stated from time to time by notification and which are required to be carried on board in accordance with the Conventions.

 

 

 

(3) Whenever, after the inspection mentioned in subsections (1) and (2), there are clear grounds for arriving at the conclusion that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention, a more detailed inspection shall be carried out, including further checking of compliance with onboard operational requirements.

 

 

 

(4) For the purposes of this section, ”clear grounds” exist when the surveyor finds evidence which in his professional judgment warrants a more detailed inspection of the ship, her equipment or her crew. Examples of clear grounds are set out in Annex III of Directive 95/21/EC.

 

 

 

5) In any case, the relevant procedures and guidelines specified in Annex IV of Directive 95/21EC for the control of ships and stated from time to time by a notification shall be observed.

 

 

Expanded Inspection of ships.

6.-(1) A ship in one of the categories in Section A, Annex V of Directive 95/21/EC is liable to an expanded inspection after a period of 12 months since the last expanded inspection carried out in a port of a State signatory of the MOU.

 

 

 

(2) If a ship referred in sub-section (1) is selected in accordance with paragraph (b), sub-section (2) of section 4, an expanded inspection shall be carried out. However an inspection in accordance with section 5 may be carried out in the period between two expanded inspections.

 

(3) (a) The operator or master of a ship to which sub-section (1) applies, shall communicate all the information listed in section B, Annex V of Directive 95/21/EC, to the Competent Authority, in case the ship visits a port of the Cyprus, after a period of 12 months since the last expanded inspection. This information shall be provided at least three days before the expected time of arrival in the port or before leaving the previous port if the voyage is expected to take fewer than three days.

 

   (b)    In case that neither the operator nor the master of the ship, complies with the obligation imposed by paragraph (a), the Competent Authority shall ensure that the ship shall be subject to an expanded inspection at the port of destination.

 

 

 

(4) Subject to Article 7, the Competent Authority ensures that an expanded inspection is carried out on a ship to which applies sub-paragraph (3) and which has a target factor of 7 or more at its first port visited after a period of 12 months since the last expanded inspection.

 

 

 

(5) Expanded inspection shall be carried out in accordance with the procedures in section C, Annex V of Directive 95/21/EC.

 

 

Procedure in case certain ships cannot be inspected.

7.-(1)  In cases where, for operational reasons, the Competent Authority is unable to carry out an inspection of a ship with a target factor of more than 50 as referred to in paragraph (a), sub-section (2) of section 4 or a mandatory expanded inspection as referred to in sub-section (4) of section 6, the Competent Authority shall, without delay, inform the Sirenac system that such inspection did not take place.

 

 

 

(2) Such cases shall be notified by the Competent Authority, at intervals of six months, to the Commission together with the reasons for not inspecting the ships concerned.

 

 

 

(3) During any calendar year, the non-inspections referred to in sub-section (1), shall not exceed 5% of the average annual number of individual ships eligible for the inspections-

 

(a)  which must be submitted to an inspection referred to in paragraph (a) of sub-section (2) of section 4 or in sub-section (4) of section 6, and

 

(b)  which call at the ports,

and whose average annual number is calculated on the basis of the three most recent calendar years for which statistics are available.

 

 

 

(4) In case that –

 

(a)     a ship called at a port of a member state including those of Cyprus, and the Competent Authority of such member state has not ensured that such a ship should be subject to inspection or expanded inspection, as provided for in Article 5(2)(a) and Article 7(4) respectively, of Directive 95/21/EC, and

 

(b)     that ship sails from the port of such a member state and the next port which it calls, is a port of Cyprus

 

 

the Competent Authority ensures that such a ship is subjected to an inspection or extended inspection as provided for in paragraph (a) of sub-section (2) of section 4 and sub-section (4) of section 6 respectively, as appropriate according to the provisions of this Law.

 

 

Access refusal measures concerning certain ships.

8.-(1) Subject to sub-section (2), the Competent Authority shall ensure that a ship in one of the categories of section A of Annex II of Directive 95/21/EC is refused access in the ports of Cyprus and the master of the ship is served with a relevant notice, if this ship either-

 

 

 

 

            - flies the flag of a State appearing in the black list as published  in the annual report of the MOU, and

            - has been detained more than twice in the course of the preceding 24 months in a port of a State signatory of the MOU,

or

            - flies the flag of a State described as “very high risk” or “high risk” in the black list as published in the annual report of the MOU, and

            - has been detained more than once in the course of the preceding 36 months in a port of a State signatory of the MOU.

 

 

 

The Competent Authority prohibits access in a port of Cyprus as soon as the ship has been authorized to leave the port where it has been the subject of a second or third detention as appropriate.

 

 

 

(2) The Competent Authority may allow access to a port of Cyprus, if any of the cases referred to sub-section (8) of section 12, apply.

 

 

 

(3) For the purposes of sub-section (1), the Competent Authority shall comply with the procedures laid down in section B, Annex XI, of Directive 95/21/EC.

 

 

 

Report of inspection delivered to

the master.

9. On completion of an inspection, a more detailed inspection or an expanded inspection, the surveyor shall draw up a report in accordance with Annex IX of Directive 95/21/EC . A copy of the inspection report shall be provided to the ship´s master.

 

 

 

 

Rectification of deficiencies and prohibition of sail

.10.-(1) The Competent Authority shall be satisfied that any deficiencies confirmed or revealed by the inspection referred to in sub-section (2) of section 4 and section 6 are or will be rectified in accordance with the Conventions.

 

 

 

(2) If the deficiencies are clearly hazardous to safety, health or the environment, the surveyor shall confirm the contravention, make a report to that effect to the Competent Authority which would prohibit the sailing of the ship or stop the operation to which the deficiencies are related and shall deliver a notification to that effect to the master. The prohibition of sailing or the stoppage of an operation shall not be lifted, unless and until the hazard is removed or until the Competent Authority establishes that the ship can, subject to any necessary conditions, sail or the operation be resumed without risk to the safety and health of passengers or crew or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

 

 

 

(3) When exercising his professional judgment as to whether or not a ship should be detained, the surveyor shall apply the criteria set out in Annex VI of Directive 95/21/EC. In this respect, the ship shall be detained, if not equipped with a functioning voyage data recorder system, when its use is compulsory in accordance with Annex XII of Directive 95/21/EC. If this deficiency cannot be readily rectified in the port of detention, the Competent Authority may allow the ship to proceed to the nearest appropriate port where it shall be readily rectified or require that the deficiency is rectified within a maximum period of 30 days. For these purposes, the procedures laid down in section 12 shall apply.

 

 

 

(4) In exceptional circumstances, where the overall condition of a ship is obviously in non-compliance with the relevant standards, the Competent Authority may suspend the inspection of the ship until the persons in charge have taken the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

 

 

 

(5) . In the event that the inspections referred to in sub-section (2) of section 4 and section 6 give rise to detention, the Competent Authority shall immediately inform, in writing and including the report of inspection, the administration of the State whose flag the ship is entitled to fly (hereinafter called “flag administration”) or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognized organizations responsible for the issue of class certificates or certificates issued on behalf of the flag State in accordance with the international conventions shall also be notified by the Competent Authority, where relevant.

 

 

 

(6) The provisions of this Law shall apply without prejudice to the additional requirements of the Conventions concerning the notification and reporting procedures related to port State control.

 

 

Procedure in case of absence of ISM

certificate.

11.-(1) If the inspection reveals that on board of a ship, to which the ISM Code applies, there is, on the date of inspection, no copy of the certificate of compliance or of the certificate of safety management which is issued in accordance with the ISM Code, the Competent Authority shall ensure that the ship be detained.

 

 

 

(2)  Notwithstanding the absence of documents referred to in sub-section (1) –

 

   (a) if the inspection finds no other deficiencies warranting detention, the Competent Authority may lift the detention in order to avoid port congestion and shall immediately inform the Competent Authorities of other member states for the lifting of such detention,

 

   (b)     if the inspection finds deficiencies in the meaning of sub-section (2) of section 10, which cannot be rectified in the inspection port, the provisions of section 12 are applied.    

 

 

 

(3)(a)  Saving the provisions of paragraph (b), in case that a ship was authorized to leave a port in a member state, under the circumstances referred to in sub-section (2)(a), the Competent Authority shall refuse access to a port of Cyprus issuing the master of the ship with a notice, until the operator or the owner of the ship has demonstrated to the Competent Authority of the member state in which the detention has been ordered, that the ship has valid certificates issued in accordance with the ISM Code.

 

 

Follow up to

inspections and

prohibition of

sailing.

12.-(1) Where deficiencies, as referred to in subsection (2) of section 10, cannot be rectified in the port of inspection, the Competent Authority may allow the ship concerned to sail to the nearest appropriate repair yard, as chosen by the master and the authorities concerned, provided that the conditions determined by the competent authorities of the State whose flag the ship is entitled to fly, and with which the Competent Authority agrees, shall be observed. Such conditions shall ensure that the ship can sail without risk to the safety and health of the passengers or crew or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

 

 

 

(2) In the circumstances referred to in subsection (1), the Competent Authority shall notify the competent authority of the State where the repair yard is situated, as well as the parties mentioned in subsection (5) of section 10 and any other authority, depending on the case, of all the conditions for the voyage.

 

 

 

(3) The communication of such information to the parties referred to in subsection (2) shall be made in accordance with the format which is specified in Annex 2 to the MOU and stated from time to time by a notification. The competent authority of every member state to which such notification is made, communicates the measures taken by it to the Competent Authority.

 

 

 

(4) Ships, referred to in subsection (1) and which sail -

 

 

 

 

(a)       without complying with the preconditions prescribed by the competent authority of the port of inspection; or

 

 

 

 

(b)       refusing to comply with the applicable requirements of the Conventions, by not calling at the indicated repair yard,

 

 

 

shall be refused access to any port of Cyprus by the Competent Authority by serving the master of the ship with a notice, until the owner or the operator of the ship provides evidence to the Competent Authority that the competent authority of the port in which the ship was found defective was satisfied, that the ship fully complies with all applicable requirements of the conventions.

 

 

 

(5) In the circumstances referred to in paragraph (a) of subsection (4), if the port of inspection is in Cyprus the Competent Authority, which found the deficiencies, shall alert immediately the competent authorities of all member states.

 

 

 

(6) In the circumstances referred to in paragraph (b) of subsection (4), if the repair yard is situated outside Cyprus the Competent Authority shall alert immediately the competent authorities of all member states.

 

 

 

(7) Before denying a ship flying a foreign flag entry into a port of Cyprus the Competent Authority may request consultation with the authorities of the flag State such ship.

 

 

 

(8) Notwithstanding the provisions of subsection (4), access to a port of Cyprus may be permitted by the Competent Authority in the event of force majeure or overriding safety considerations or in order to reduce or minimize the risk of pollution or to have deficiencies rectified, provided that the Competent Authority is satisfied that the owner, operator or the master of the ship will take adequate measures to ensure safe entry.

 

 

Professional qualifications of

surveyors.

13.-(1) The inspections shall be carried out only by surveyors who fulfill the qualifications specified in Annex VII of Directive 95/21/EC.

 

(2) When the required professional expertise cannot be provided by the Competent Authority, the surveyor may be assisted by any person possessing the required expertise.

 

 

 

(3) Surveyors, carrying out control of ships in ports of Cyprus, and the persons assisting them, shall have no commercial interest either in the port of inspection or in the ships undergoing inspections, nor shall they be employed by or undertake work on behalf of non-governmental organizations which issue the statutory and classification certificates in accordance with the relevant legislation or which carry out the inspections necessary for the issue of such certificates to ships.

 

 

 

(4) Whilst carrying out their duties, surveyors shall carry a special identity card issued by the Member in accordance with the Federal Regulations on Merchant Shipping (Identity Cards of the Surveyors of Ships and Inspectors of Ships) .

 

 

Report of pilots and port authorities

and the

relevant cooperation.

14.-(1) Pilots of the port authorities of Cyprus, who are engaged in berthing or unberthing ships or engaged on ships bound to sail for a port in Cyprus, shall immediately inform the Competent Authority whenever they learn, in the course of their normal duties, that there are deficiencies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

 

 

 

(2) If the port authorities of Cyprus, learn that a ship within their port has deficiencies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, the port authorities shall immediately inform the Competent Authority therefor.

 

 

Publication of

information.

15.-(1) The Competent Authority shall take all necessary measures to ensure that the information specified in Annex VIII, Part I to Directive 95/21EC as stated from time to time by a notification, concerning ships which were prohibited from sailing from, or entering into, a port of Cyprus, is published as soon as possible and definitely in the month following the month in which the prohibition of sailing or entry was decided.

 

 

 

(2) The Competent Authority ensures that –

 

(a)  the information listed in Parts I and II, Annex VIII of Directive 95/21/EC, and the information on changes, suspensions and withdrawals of class referred to in section 15(3) of the Federal Law on Merchant Shipping (Recognition and Authorisation of Organisations), shall be available in the Sirenac system, and

 

(b) the information mentioned above shall be made public through the Equasis information system, as soon as possible after the inspection or after the detention has been lifted.

 

 

 

(3) The provisions of this section do not affect legislation on liability from time to time in force in Cyprus.

 

 

 

PART III - MISCELLANEOUS PROVISIONS

 

 

Notice to  the master as to the right to object

and to file a hierarchical recourse.

16.-(1) In case a ship is prohibited from sailing , pursuant to this Law, the surveyor who takes the relevant decision, shall serve the master of the ship, with a notice informing him, of rights available to the owner or the operator of the ship or his representative in Cyprus, i.e. the filing of an objection and of a hierarchical recourse, according to sections 17 and 18, respectively,

 

 

 

(2) In case the access of a ship to a port is prohibited, pursuant to this Law, the person who takes the decision, shall inform the master of the ship, in the relevant notice with which he is served, of his right to file a hierarchical recourse according to section 18.

 

 

Right to object.

17.-(1) The decision of the Competent Authority to prohibit the sailing of a ship pursuant to the provisions of this Law, may be challenged by objection brought forward before the Director by the owner, or the operator of the ship, or his representative in Cyprus. The right to object shall be exercised in writing within a deadline of 48 hours of working days as from the time of the delivery of the notification of the prohibition of sail to the master pursuant to subsection (2) of section 9.

 

 

 

(2) Any objection submitted in accordance with subsection (1) shall not suspend the execution of the decision.

 

 

 

(3) The Director shall examine the objection and shall, after having heard the interested parties or having given them the opportunity to express their views in writing, issue a decision on it, pursuant to subsection (4), the latest within 48 hours of working days.

 

 

 

(4) The Director may decide -

 

 

 

 

(a)       to confirm the challenged decision.

 

 

 

 

(b)       to declare the challenged decision null and void.

 

 

 

 

(c)       to amend the challenged decision.

 

 

 

 

(d)       to issue a new decision in substitution for the challenged decision.

 

 

 

and shall communicate the decision he issues pursuant to this sub-section, to the person filing the objection, as well as the master of the ship involved, if he is not the person making the objection.

 

 

Hierarchical recourse.

18.-(1) The owner or the operator of the ship or his representative, may challenge by a hierarchical recourse to the Member, any of the following decisions, concerning the ship and having been issued under this Law:

 

(a)  a decision of the Competent Authority for the prohibition of sailing,

 

(b) a decision of the Competent Authority for the prohibition of access to a port of Cyprus,

(c) a decision of the Director, issued under section 17.

 

 

 

(2) A hierarchical recourse under subsection (1) before the Member shall be exercised in writing within a deadline of 5 working days from the service, of the communication of the challenged decision to the master of the ship.

 

 

 

(3) The hierarchical recourse, provided for in subsection (1), shall not suspend the execution of the decision.

 

 

 

(4) The Member shall examine the recourse and shall, after having heard the interested parties or having given them the opportunity to express their views in writing, issue a decision on it, pursuant to subsection (5), the latest within a deadline of 10 working days.

 

 

 

(5) The Member may decide -

 

 

 

 

 

(a)       to confirm the challenged decision.

 

 

 

 

(b)       to declare the challenged decision null and void.

 

 

 

 

 

(c)       to amend the challenged decision.

 

 

 

 

(d)       to issue a new decision in substitution for the challenged decision.

 

and shall communicate the decision he issues pursuant to this sub-section, to the person filing the recourse, as well as the master of the ship involved if he is not the one making the objection.

 

 

Liability for loss

and damage.

19.-(1) The Competent Authority shall, while carrying out the inspection pursuant to the provisions of this Law, make every possible effort, so as to avoid any unjustified prohibition of sailing or delay of a ship.

 

 

 

(2) In the event of unjustified prohibition of sailing or delay of a ship, the owner shall be entitled to compensation for any loss or damage suffered as a result thereof:

 

 

 

      Provided that where an allegation of unjustified prohibition of sail or delay is made, the burden of proof lies on the owner or the operator of such ship. 

 

 

Payment of

inspection expenditure.

20.-(1) When, in the course of the inspections referred to in sections 5 and 6, deficiencies relating to the requirements of a Convention are either confirmed or ascertained, and such deficiencies justify the prohibition of sailing of a ship, all expenditure, in a normal accounting period, which accrues from the inspection, shall be covered by the owner or the operator of such ship or his representative in Cyprus.

 

(2) All the expenditure relating to the inspections carried out by the Competent Authority pursuant to subsection (4) of section 12 shall be borne by the owner or the operator of the ship.

 

 

 

(3) In case of detention of a vessel for deficiencies or lack of valid certificates as laid down in section 10 and Annex VI of Directive 95/21/EC, all costs relating to the detention in port shall be borne by the owner or operator of the ship.

 

 

 

(4) A prohibition on sailing shall be lifted only if the whole amount of expenditure relating to the inspections referred to in subsections (1) and (2) is repaid or sufficient guarantee for covering the expenditure is given, which is secured by the deposit of a bank guarantee of an equal amount by a recognized bank and on terms which satisfy the Competent Authority:

 

      Notwithstanding the provisions of this sub-section, the sailing of a detained ship which calls regularly in Cyprus may be exceptionally allowed, for only one single return voyage , without the previous payment of the administrative fine imposed or the deposit of a bank guarantee as provided above  is effected, so as not to disrupt regular transport services or for any other exceptional reasons, or if the prompt production of a bank guarantee has proved practically impossible-

 

(a) if the [Member] approves the sailing of the ship; or

(b) a personal guarantee for the benefit of and with terms satisfying the Competent Authority has been deposited on behalf of the ship.

 

 

 

 

(5) All the expenditure to which this section refers shall be collected as a civil debt and shall be borne by the ship.

 

 

Cooperation.

21.-(1) The Competent Authority and the port authorities of Cyprus shall be jointly liable to ensure that the Competent Authority obtains all the necessary information about the ships which sail to the ports of Cyprus.

 

 

 

 (2)(a)  The Competent Authority shall handle matters relating to the exchange of information and cooperation with the relevant authorities of other member states and shall be the operational link with the Commission and the Sirenac information system.

 

   (b)     For the purposes of carrying out the inspections referred to in sub-section (2) of section 4 and section 6, the surveyors shall consult the public and private data-bases relating to ship inspection accessible through the Equasis information system.

 

 

Criminal offence.

22. Any owner, operator or master of a ship, shall be guilty of an offence, in case such person:

 

(a)     attempts to sail a ship in contravention of the prohibition of sail imposed on the ship pursuant to this Law;

 

(b)     attempts access of the ship in a port of Cyprus, in contravention of the prohibition of such access imposed on the ship pursuant to this Law;

 

(c)     fails to comply with an obligation imposed by sub-section (3)(a) of section 6;

 

(d)     fails to take the necessary measures for the ship to proceed to the nearest port as allowed by the Competent Authority pursuant to the sub-section (3) of section 10 or fails to take the necessary measures for rectifying a deficiency as requested by the Competent Authority;

 

(e)     fails to take the necessary measures to sail the ship to a repair yard, pursuant to sub-section (1) of section 12,

 

shall be liable to imprisonment for a term not exceeding two years or to a fine not exceeding five thousand pounds or to both such sentences. 

 

 

Charge over the ship.

23. Notwithstanding the provisions of any other law, any expenditure referred to in sections 19 and 20, which accrues from the inspection of the ship and the prohibition of sail, shall constitute a charge on the ship in respect of which the contravention was ascertained, and shall be satisfied in priority against any other creditors, subject to its ranking after the last mortgage.

 

 

Orders.

24. The Member may, for the purposes of up-dating a reference to any annex of the Directive 95/21/EC or the MOU, issue an Order published in the Gazette

 

 

Regulations.

25. The Presidential Council may make Regulations to be published in the Gazette for the better carrying into effect of the provisions of this Law.