Federal Law on Harmonised Safety Regime of Fishing Vessels

Ata Atun, Clelia Theodolou, Other Committee Members

 

 

Foundation Agreement

Annex III, Attachment 11, Law 14

 

 

 

 

 

 

 

 

 

Federal Law on Merchant Shipping (Harmonised Safety Regime for Fishing Vessels of 24 Metres in Length and Over)

 

 

 

 

 

 

 

 

 

 

 


 

 

For the purposes of:

 

     (i)   harmonisation with the Community Acts referred to as -

 

 

 

(a)     «Council Directive 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over» (OJ L 34 of 9.2.1998, p.1),

 

 

 

(b)     «Commission Directive 1999/19/EC of 18 March 1999 amending Council Directive 97/70/EC setting up a harmonised safety regime for fishing vessels of 24 metres in length and over» (OJ L 83 of 27.3.1999, p.48),  and

 

 

 

  (c)   “Commission Directive 2002/35/EC of 25 April 2002 amending Council Directive 97/70/EC setting up a harmonised safety regime for fishing vessels of 24 metres in length and over” (OJ L 112, of 27.04.2002, p.21) and

 

 

 

      (ii) harmonisation with Article 6 of 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 of 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 (Harmonised Safety Regime for Fishing Vessels of 24 Metres and Over).

 

 

Interpretation.

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

 

 

 

«certificate» means the certificate of compliance referred to in section 8;

 

 

 

«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 there under and shall be the Directorate;

 

 

 

«Council» means the Council of the European Union;

 

 

 

«Court» means a court of competent jurisdiction;

 

 

 

«Cyprus fishing vessel» means a fishing vessel which is registered in the Register of Cyprus Ships and flies the flag of United Cyprus Republic pursuant to the provisions of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages)

 

 

 

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

 

 

 

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

 

 

 

“directive 97/70/EC” means Council directive 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, as it was last amended by 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;

 

 

 

«existing fishing vessel» means a fishing vessel which is not a new fishing vessel;

 

 

 

«fishing vessel» or «vessel» means any vessel equipped or used commercially for catching fish or other living resources of the sea and does not include recreational craft engaged in non-commercial fishing;

 

 

 

«Gazette» means the federal Official Gazette;

 

 

 

«IMO» means the International Maritime Organization;

 

 

 

«length» means 96% of the total length on a waterline at 85 % of the least moulded depth measured from the keel line, or the length from the foreside of the stem to the axis of the rudder stock on that waterline, if that be greater; in vessels designed with rake of keel the waterline on which this length is measured shall be parallel to the designed waterline;

 

 

 

«master» means the person having the command or charge of any vessel;

 

 

 

«Member state» means Member  state of the European Union and any other state which is a contractual party to the European Economic Area agreement, which was signed in Oporto on the 2nd of May 1992 as it is from time to time amended;

 

 

 

«mile» means a nautical mile, that is a unit of length of 1852 metres;

 

 

 

«Member» means the member of the Presidential Council heading the Department

 

 

 

«new fishing vessel» means a fishing vessel for which-

 

 

 

(a)     on or after the first day of January 1999 a building or major conversion contract is placed; or

 

 

 

(b)     a building or major conversion contract has been placed before the first day of January 1999, and which is delivered three years or more after that date; or

 

 

 

(c)      in the absence of a building contract, on or after the first day of January 1999 -

 

 

 

 

(i)        the keel is laid, or

(ii)      construction identifiable with a specific ship begins, or

(iii)     assembly has commenced, comprising at least 50 tonnes or 1 % of the estimated mass of all structural material, whichever is less,

 

 

 

«operating» means catching or catching and processing fish or other living resources of the sea without prejudice to the right of innocent passage in the territorial sea and to freedom of navigation in any exclusive economic zone;

 

 

 

«owner» means any person who owns a vessel or a share therein and is registered as such in the register of ships of the flag state;

 

 

 

«operator of the vessel» means the owner of the vessel or any other person, such as the manager or the bareboat charterer, who has assumed the responsibility for operating the vessel from the owner and who, by assuming such responsibility, has agreed to undertake all the duties and responsibilities which are imposed for the purposes of this Law;

 

 

 

«recognised organization» means an organization which is recognised in accordance with Article 4 of Council Directive 94/57/EC of 22 November 1994;

 

 

 

«surveyor» means a person appointed by the Member  as a surveyor of ships under paragraph (a) of subsection (2) of section 3 of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages) ;

 

 

 

«Torremolinos Protocol» means the Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977, together with the amendments thereto, as it is contained in the consolidated text issued from time to time by the IMO, the text of which is lodged with the Directorate  and to which the public has access:

 

 

 

Provided that this definition does not include the amendments to this protocol which are excluded from the scope of directive 97/70/EC, pursuant to Article 5 of Regulation (EC) No 2099/2002 of Committee on Safe Seas and the Prevention of Pollution from ships (COSS).

Scope.

3. This Law lays down safety standards for sea-going fishing vessels of 24 metres in length and over, both new, and existing, in so far as the provisions of the Torremolinos Protocol apply to the latter.

 

 

Extent of application.

 4.-(1) This Law applies to sea-going fishing vessels of 24 metres in length and over, both new, and existing, in so far as the provisions of the Torremolinos Protocol apply to the latter, and:

 

(a)   are Cyprus fishing vessels  where ever they are; or

(b)   fishing vessels which are not Cyprus fishing vessels operating in the internal waters or territorial sea of Cyprus, or landing their catch in a port of  United Cyprus Republic.  

 

  

 

 

     (2) This Law shall apply without prejudice to the provisions of any of the laws of either of the constituent states regulating safety and health at work.

 

 

General requirements.  

5.-(1) The provisions of the Annex to the Torremolinos Protocol shall be applied to Cyprus fishing vessels, subject to the modifications set out in Annex I  of directive 97/70/EC. 

 

 

 

 

 

 

     (2) New Cyprus fishing vessels of 24 metres in length and over, shall comply with the requirements in Chapters IV, V, VII and IX of the Annex to the Torremolinos Protocol which shall apply to vessels of 45 metres in length and over, subject to the modifications set out in Annex  II of directive 97/70/EC. 

 

 

 

 

     (3) Cyprus fishing vessels operating in specific areas shall comply with the provisions for the relevant areas, as defined in Annex III of 97/70/EC.

 

 

 

     (4) Cyprus fishing vessels shall comply with the specific safety requirements laid down in Annex  IV of directive 97/70/EC.

 

 

 

 

 

 

 

 

     

     (5) Fishing vessels flying the flag of a country which is not a Member state shall be prohibited from operating in the internal waters or the territorial sea of United Cyprus Republic or landing their catch in the ports of United Cyprus Republic unless, and without prejudice to the provisions of the laws of either of the  constituent states regulating fisheries, they are certified by the Competent Authority of their flag State to comply with the requirements referred to in subsections (1), (2), (3) and (4) and in section 7.

 

 

 

     (6) Marine equipment listed in Part 1 of Annex A to , the directive 96/98/EC as it is from time to time amended when placed on board a fishing vessel to comply with the provisions of this Law, or, as the case may be, of relevant legislation of a Member state, shall be automatically considered to be in conformity with such provisions, whether or not these provisions require that the equipment must be approved and subjected to tests to the satisfaction of the competent authorities of the  State of flag.

 

 

Specific requirements, exemptions and equivalents.

6.-(1) If the Competent Authority either on its own or as a Member of a group of competent authorities of other Member states in which it participates, considers that certain situations, due to specific local circumstances or the vessel's particulars, require specific safety measures for fishing vessels operating in a certain area, and if the need therefore is demonstrated, it may adopt such specific safety measures to take account of local circumstances, such as the nature and climatic conditions of the waters in which these vessels operate, the length of their journeys, or their particulars, such as their construction material:

 

 

 

 

        Provided that the adoption of the specific safety measures referred to in this section is to be effected by amending Annex III of directive 97/70/EC.

 

 

 

     (2) For the approval of measures providing for exemptions, the provisions of Regulation 3, paragraph 3 of Chapter 1 of the Annex to the Torremolinos Protocol shall apply.

 

 

 

     (3) The measures adopted shall provide for equivalents in accordance with Regulation 4, paragraph 1 of Chapter 1 of the Annex to the Torremolinos Protocol.

 

 

 

     (4) When applying the provisions of subsections (1), (2) or (3) the following procedure shall apply -

 

 

 

 

 

(a)       the Competent Authority of the United Cyprus Republic shall notify the Commission of the measures which it intends to adopt, including particulars to the extent necessary to confirm that the level of safety is adequately maintained;

 

 

 

 

 

(b)       if, within a period of six months from the notification, it is decided, in accordance with the procedure laid down in Article 9 of the Community Act referred to in paragraph (a) of the preamble to this Law, that the proposed measures are not justified, the Competent Authority oh the United Cyprus Republic may be required by the Commission to amend or not to adopt the proposed measures;

 

 

 

 

 

(c)        the adopted measures shall be specified in the relevant  federal government legislation and shall be communicated to the Commission, which shall inform the other Member States of all particulars thereof;

 

 

 

 

 

(d)       any such measures shall be applied to all fishing vessels when operating under the same specified conditions, without discrimination with regard to their flag or to the nationality of their operator;

 

 

 

 

 

(e)       the measures referred to in subsection (2) shall only apply as long as the fishing vessel operates under the specified conditions.

 

 

Standards for design, construction and maintenance.

7.-(1) The standards for the design, construction and maintenance of hull, main and auxiliary machinery, electrical and automatic plants of a fishing vessel shall be in accordance with the rules in force at the date of its construction, specified for classification by a recognised organisation or used by the Competent Authority. 

 

 

 

     (2) For new vessels, the rules referred to in subsection (1) shall be in accordance with the procedure and subject to the conditions laid down in subsection (3) of section 14 of the Federal Law on Merchant Shipping (Recognition and Authorization of Organizations) .

 

 

Inspections and certificates.

8.-(1) A certificate of compliance with the provisions of this Law  shall be issued to fishing vessels complying with the requirements of sections 5 and 7, supplemented by a record of equipment and, where appropriate, exemption certificates.

 

 

 

 

     (2) The certificate of compliance, record of equipment and exemption certificate shall have the format laid down in Annex  V of directive 97/70/EC.

 

 

 

     (3)The certificates referred to in subsection (1) shall be issued by the Competent Authority  or by a recognised organization acting on its behalf after an initial inspection, carried out by the surveyors either of the Competent Authority itself or by the exclusive surveyors of a recognised organization or of a Member state authorised by the Competent Authority to carry out inspections, in accordance with Regulation 6, paragraph (1)(a) of Chapter 1 of the Annex to the Torremolinos Protocol.

 

 

 

     (4) The periods of validity of the certificates referred to in subsection (1) shall not exceed those established in Regulation 11 of Chapter 1 of the Annex to the Torremolinos Protocol. Renewal of the certificate of compliance shall be issued after periodical inspections, in accordance with Regulation 6 of Chapter 1 of the Annex to the Torremolinos Protocol, have been carried out.

 

 

Control provisions.

9.-(1) Cyprus fishing vessels, wherever they operate, shall be subject to control by the Competent Authority in order to verify that they comply with the provisions of this Law and of the Annex to the Torremolinos Protocol. 

 

 

 

     (2) Non-Cyprus fishing vessels operating in the internal waters or territorial sea of  United Cyprus Republic or landing their catch in the ports of Cyprus shall be subject to control by the Competent Authority, in accordance with Article 4 of the Torremolinos Protocol:

 

        Provided that this control is carried out without discrimination with regard to the flag of the vessel or the nationality of its operator, in order to verify that the fishing vessels comply with the provisions of this Law.

 

 

 

     (3) Fishing vessels, which are not operating in the internal waters or territorial sea of  United Cyprus Republic  nor landing their catch in the ports of Cyprus and flying the flag of another Member state, shall be subject to control by the Competent Authority, when in its ports, in accordance with Article 4 of the Torremolinos Protocol and without discrimination with regard to the flag of the vessel or the nationality of its operator, in order to verify that they comply with the provisions of this Law.

 

 

 

     (4) Fishing vessels flying the flag of a state which is not a Member state and which are not operating in the internal waters or territorial sea of United Cyprus Republic  nor landing their catch in the ports of United Cyprus Republic , shall be subject to control by the Competent Authority, when in its ports, in accordance with Article 4 of the Torremolinos Protocol, in order to verify their compliance with the provisions of the Torremolinos Protocol.

 

 

Prohibition of sailing.

10.-(1) As from the date of the entry into force of this Law, the Competent Authority may prohibit the sailing of -

 

 

 

   (a)    Cyprus fishing vessels or fishing vessels of other Member states which are subject to the provisions of this Law, as long as they do not comply with the requirements of subsections (1), (2), (3) and (4) of section 5 and subsection (2) of section 7 of this Law and of the Regulations made thereunder;

 

 

 

   (b)    Cyprus fishing vessels which are subject to the provisions of this Law, as long as they refuse to be subjected to the inspection referred to in subsection (1) of section 8;

 

 

 

   (c)     fishing vessels of states, which are not Member states, which are subject to the provisions of this Law, as long as they do not comply with the requirements of subsection (5) of section 5 and subsection (2) of section 7 of this Law and of the Regulations made thereunder;

 

 

 

     (2) If, during the inspection of a fishing vessel, the Competent Authority ascertains any contravention of the provisions of subsection (1), it shall confirm to the Master the particular  contravention in writing, call the Master to explain the situation in writing and issue an order prohibiting the ship from sailing until it is assured that the cause for non-compliance with the above provisions has been removed, and, if this is the case, that any administrative fine which may have been imposed pursuant to section 11 has been paid.

 

 

 

     (3) The cost of any inspection of the fishing vessel incurred in order to ensure that a contravention has been rectified shall be borne by the fishing vessel and shall be paid prior to the lifting of the prohibition of sailing.

 

 

 

     (4) While carrying out the inspection in accordance with the provisions of this Law, every possible effort must be made so that any unjustified prohibition of sailing or delay of a fishing vessel shall be avoided.

 

 

 

     (5) In case of unjustified prohibition of sailing or delay, the operator of the fishing vessel shall be entitled to compensation for any loss or damage suffered as a result:

 

     Provided that, where an allegation of unjustified prohibition of sailing or delay is made, the burden of proof lies on the operator of the fishing vessel.

Administrative fine.

11.(1)  Contravention of the provisions of this Law and the Regulations made thereunder, shall be punishable, notwithstanding whether a case of criminal or disciplinary liability arises under any other legal provision, with an administrative fine not exceeding five thousand pounds, depending on the seriousness of the contravention.

 

(2)       An administrative fine under sub-section (1) shall be imposed on the owner or the Company or the master, by a reasoned decision of the Competent Authority confirming the contravention.

(3)       The amount of any fine imposed under sub-sections (1) and (2), shall be calculated in each case on the basis of directions issued by the Member under this Law.

 

(4)       The Competent Authority shall notify in writing the person, on whom an administrative fine has been imposed under sub-sections (1) and (2), of its decision imposing the administrative fine and, in case the sailing of the ship has been prohibited under this Law, it shall not allow lifting of the order prohibiting the ship from sailing under this Law, until the administrative fine has been paid, or a bank guarantee issued by a recognized bank of equal amount for the benefit of and with terms satisfying the Competent Authority has been deposited.

 

(5)       A notification under sub-section (4) shall also include information about the right to hierarchical recourse under this Law.

 

(6)       Notwithstanding the provisions of sub-section (4), 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.

 

(7)       Administrative fines and bank guarantees shall be paid to the Federal Government.

 

 

 

Hierarchical recourse.

12.(1)  A recourse may be filed with the Member against-

 

(a)          an order of the Competent Authority  prohibiting the sailing of a ship under this Law; or

(b)          a decision of the Competent Authority imposing an administrative fine under this Law.

 

(2)       A recourse under sub-section (1) shall be filed-

 

(a)          within seventy two hours from the time of issue of the order prohibiting the sailing of the ship;

(b)          within thirty days from the date of notification of the decision to impose an administrative fine in the case of a contravention confirmed in a port of Cyprus; or

(c)          within sixty days from the date of notification of the decision to impose an administrative fine of a contravention confirmed in a foreign port.

 

(3)       A recourse under sub-section (1) shall not suspend the execution of an order prohibiting the sailing of the ship or of a decision imposing an administrative fine.

 

(4)       The Member shall examine the hierarchical recourse and shall, after having heard the interested parties or having given them an opportunity to express their views in writing, issue a decision on the recourse pursuant to sub-section (5)-

 

(a)          in case the recourse relates to an order prohibiting the sailing of a ship, not later than twenty-four hours ; or

(b)          in case the recourse relates to a decision imposing an administrative fine, not later than ten days;

 

from the time of the last hearing or of the receipt of the written submissions of the interested parties.

 

(5)       The Member may decide-

 

(a)          to confirm the challenged order or decision;

(b)          to declare the challenged order or decision null and void;

(c)          to amend the challenged decision; or

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

 

(6)       A decision under sub-section (5) shall also include information about the right to a recourse to the Supreme Court of Cyprus in accordance with the provisions of the Federal Law on the Administration of Justice.

 

(7)       A recourse under sub-section (6) shall not suspend the execution of a decision under sub-section (5).

 

(8)       The Competent Authority shall collect any amounts due under a bank guarantee in relation to an administrative fine imposed under this Law-

 

(a)          if no recourse to the Member  is filed under subsection (1), after the lapse of the time limits specified in sub-sections (2)(b) or (c);

(b)          if no recourse to the Supreme Court of Cyprus is filed against a decision made by the Member under sub-section (5), after the lapse of seventy five days from the date of the notification of the decision of the Member.

 

 

Court action for collection of the Administrative Fines

13. In case of failure to pay an administrative fine imposed under this Law, the Competent Authority may take steps for the collection of the amount due as a civil debt.

 

 

 

Fines and costs to be a charge on the ship

14. Fines or administrative fines imposed under this Law, as well as any charges for the inspection of the ship after it’s sailing has been prohibited under this Law, constitute a charge on the ship and shall be satisfied in priority against any other creditors, subject to their ranking after the last mortgage.

 

 

Criminal offences.

15.-(1) A master, who attempts to sail a fishing vessel in contravention of the prohibition of sail imposed on the vessel pursuant to section 10, shall be guilty of an offence and, in case of conviction, shall be liable to imprisonment not exceeding two years or to a fine not exceeding five thousand pounds or to both such sentences.

 

       (2) The same offence as that provided in subsection (1), shall be committed by the operator of the fishing vessel or any other person who knowingly aids or abets the commission of such offence.

 

 

(3)       Notwithstanding the provisions of any other Law, a fine imposed under this section constitutes a charge on the ship in respect of which the offence was committed.

 

 

Orders.

16.The Member may, for the purposes of up-dating a reference to the Directive 97/70/EC issue an Order published in the Gazette

 

 

Regulations.

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