Federal Law on the Prevention of Pollution of the Sea from Ships

Ata Atun, Clelia Theodolou, Other Committee Members

 

 

 

 

Foundation Agreement

Annex III, Attachment 11, Law 34

 

 

 

 

 

 

 

 

 

 

Federal Law on the Implementation of the International Convention for the Prevention of Pollution of the Sea from Ships

It is hereby provided as follows-

 

Short Title

 

1.        This Law may be cited as the Federal Law on the Implementation of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, as amended.

 

Interpretation

 

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

 

“Annex” or “Annexes” means the Annexes I, II, III, [IV and V to the Convention as modified by the Protocols;

          

“Company” means the owner of the ship or any other organisation or person such as the manager or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who on assuming the responsibility has agreed to take over all duties and responsibilities of the owner under this Law, the Protocol and under any public instrument;

 

“Competent Authority” means the competent authority provided for in section 4;

 

“Convention” means the International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol;

 

“Court” means a court of competent jurisdiction;

 

“Cyprus” means the United Cyprus Republic;

 

Cyprus port” means a harbour basin within Cyprus and includes its anchorages and roadsteads;

 

“Cyprus ship” has the meaning assigned to it by the Federal Law on Merchant Shipping (Registration of Ships, Sales, and Mortgages);

 

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

 

“Foreign ship” means a ship which is not a Cyprus ship;

 

“Gazette” means the federal Official Gazette;

 

“Incident” means any occurrence, or a series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage;

 

“Member” means the member of the Presidential Council heading the Department;

 

“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;

 

“Pollution damage” means loss or damage caused outside the ship by contamination resulting from the escape or discharge of harmful substances from the ship, wherever such escape or discharge may occur;

 

“Prescribed” means prescribed by a public instrument;

 

“Presidential Council” includes the Transitional Federal Government referred to in Article 41 of the Constitution of the United Cyprus Republic;

 

“Protocols” means the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, as amended and in force at the particular time.

Provided that any reference to the Protocol includes-

(a)         the Annexes to the Convention as modified by the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973;

(b)         Protocol I to the Convention on Provisions concerning the Reports relating to Harmful Substances, as amended by Resolutions MEPC.21(22) and MEPC.68(38) of the Marine Environment Protection Committee of the International Maritime Organisation; and

(c)         Protocol II to the Convention on Arbitration; and

(d)         the amendments to the Annexes to the Convention and to the Appendices to the Annexes to the Convention which have, in accordance with the provisions of Article VI of the Protocol and Article 16 of the Convention, been adopted and entered into force prior to the date this Law comes into effect; and

(e)         the amendments to the Annexes to the Convention and to the Appendices to the Annexes to the Convention which have, in accordance with the provisions of Article VI of the Protocol and Article 16 of the Convention, been adopted prior to the date this Law comes into effect and which come into force on or after the date on which this Law comes into effect; and

(f)          amendments to the articles of the Convention, to the Annexes to the Convention, to the Appendices to the Annexes to the Convention and to Protocols I and II to the Convention, adopted on or after the date this Law comes into effect, provided that, in accordance with the provisions of Article VI of the Protocol and Article 16 of the Convention, Cyprus-

(i)           in the case of an amendment to an article of the Convention, to Protocol II or to Protocol I or to an Annex to the Convention, not under the procedure specified in Article 16(2)(f)(iii) of the Convention, has accepted the specific amendment;

(ii)         in case of an amendment to Protocol I to the Convention, to an Annex to the Convention and to an Appendix to an Annex to the Convention, under the procedure specified in Article 16(2)(f)(iii) of the Convention, has not declared that either that it does not accept the amendment or that its express approval will be necessary before the specific amendment enters into force for Cyprus;

as from the date such amendments enter into force for Cyprus; and

(g)         any code or other requirements which has been made or is made mandatory under the provisions of the Convention as modified by the Protocol.

 

“Public instrument” means regulations and orders published in the Gazette, and instructions, directions, notices, notifications and circulars made or issued under this Law;

 

“Recognised bank” means a commercial bank registered with the Central Bank of Cyprus;

 

“Recognised organisation” has the meaning assigned to it by the Federal Law on Merchant Shipping (Recognition and Authorisation of Organisations);

 

(2)       Words and phrases used in this Law and not otherwise defined, have the meaning assigned to them by the Convention and the Protocols.

 

(3)       For the purposes of this Law, the English text of the Convention and of the Protocols prevails.

 

Scope of Application

 

3         This Law applies to-

 

(a)         Cyprus ships subject to the provisions of the Convention irrespective of where they may be; and

(b)         Foreign ships, irrespective of the flag they are entitled to fly, whilst they are within the territory or an area under the jurisdiction of Cyprus.

 

Competent Authority

 

4.(1)   Competent Authority for the application of the provisions of this Law, the Convention and the Protocols, shall be the Directorate of Maritime Affairs of the Department.

 

(2)       The Competent Authority shall have all the powers and competencies which by virtue of the provisions of the Convention and of the Protocols may or are required to be exercised by Cyprus as a Party to the Convention as modified by the Protocols or as Party to the Protocols, except those which have been specifically reserved under this Law, for the Member.

 

(3)       Without prejudice to the generality of sub-sections (1) and (2), the Competent Authority shall perform all functions of the Administration with respect to Cyprus ships, irrespective of where they may be and with respect to fixed and floating platforms under the jurisdiction of Cyprus.

 

(4)       Without prejudice to the generality of sub-sections (1), (2) and (3), the Competent Authority has, the power-

 

(a)         to survey and inspect ships in accordance with the provisions of the Convention;

(b)         to issue certificates to ships in accordance with the provisions of the Convention;

(c)         to inspect foreign ships in Cyprus ports and in offshore terminals under the jurisdiction of Cyprus and, if necessary, to detain such ships, to expel such ships from the territory, or from an area under the jurisdiction, of Cyprus, or to take any other appropriate actions against such ships;

(d)         to inspect Cyprus ships, irrespective of where they may be and, if necessary, if necessary, to detain such ships, to expel such ships from expel such ships from the territory, or from an area under the jurisdiction, of Cyprus, or to take any other appropriate actions against such ships;

(e)         to grant exemptions to Cyprus in accordance with the provisions of the Convention;

(f)          to carry out investigations into casualties in accordance with the provisions of the Convention;

(g)         to carry out investigations into alleged violations of the provisions of the Convention in accordance with the provisions of the Convention;

(h)         to communicate, to the International Maritime Organisation or to any other Party to the Protocol, information on matter relating to the Convention or the Protocol;

(i)           to supervise and monitor the work of persons and of recognised organisations entrusted by the Member in accordance with section 5(3) to act on behalf of Cyprus;

(j)           to initiate criminal proceedings under this Law;

(k)         to initiate such other proceedings as required may be required by the Convention;

(l)           to determine the terms and conditions of bank and personal guarantees;

(m)        to impose administrative fines under this Law in accordance with the directions of the Member to this end.

 

 

 

Supervising Authority

 

5.(1)   The Member shall be the supervising authority for all matters under this Law.

 

(2)       For the purposes of this Law, the Convention and the Protocols the Member has the power-

 

(a)         to hear and decide upon hierarchical recourses in accordance with this Law;

(b)         to issue instructions and/or directions to the Competent Authority for the better implementation of this Law, the Convention, the Protocol and any public instrument;

(c)         to authorise the Competent Authority to issue instructions and/or directions to the owners, masters or any other person related to Cyprus ships;

(d)         to authorise the Competent Authority to issue instructions and/or directions to the owners and masters or any other person related to foreign ships whilst within the territorial waters of Cyprus;

(e)         to authorise the Competent Authority to issue instructions and/or directions to the surveyors nominated or recognised organisations acting on behalf of Cyprus for matters under this Law;

(f)          to approve, by an Order, equivalent arrangements in accordance with the provisions of the Convention;

(g)         to issue directions indicating contraventions of this Law, the Convention, the Protocol, and any public instrument and the range of corresponding administrative fines for each such contravention:

Provided always that the Competent Authority retains the right of deciding freely the amount of the administrative fine to be imposed under this Law, on the basis of the facts and merits of each particular case, in exercise of its discretionary power, so long as such discretion is exercised within the framework of such directions.

 

(3)       The Member may authorise surveyors nominated for the purpose or recognised organizations the survey and the inspection of any Cyprus ship, and the issue, on behalf of Cyprus, of certificates to such ships.

 

Prohibition of Discharge

 

(4).(a) Any discharge of a harmful substance in violation of the provisions of the Convention and of this Law by any Cyprus ship wherever such a discharge occurs is prohibited.

 

(b)       Any discharge of a harmful substance in violation of the provisions of the Convention by any foreign ship within the territory or an area under the jurisdiction of Cyprus is prohibited.

 

Dispersants

 

(5).      The use, within the territory of Cyprus, of dispersants and other substances for the purposes of combating or controlling pollution from harmful substances is prohibited unless the specific dispersants and substances have been approved for use by the Member having the responsibility for natural resources, after appropriate consultation with the relevant Minister or Ministers in the affected constituent state or states.

 

Reports of Incidents involving the Discharge of Harmful Substances

 

(6).(a) The master or any person having charge of a Cyprus ship involved in the discharge of a harmful substance, irrespective of where such ship may be, shall, without delay, make a report on the incident to the Competent Authority and to the coastal States which may be affected by such a discharge, in accordance with the provisions of Protocol I to the Convention.

 

(b)       The master or any person having charge of a foreign ship involved in the discharge of a harmful substance in the territory or any other area under the jurisdiction of Cyprus shall, without delay, make a report on the incident to the Competent Authority and to the coastal States which may be affected by such a discharge, in accordance with the provisions of Protocol I to the Convention.

 

(c)       The master of any ship which navigates in the territory or any other area under the jurisdiction of Cyprus and the captain of any aircraft flying over the aforesaid area, irrespective of where such aircraft may have departed from or may land, who observes any ship discharging a harmful substance or any discharge of a harmful substance shall, without delay, report the observation to the Competent Authority and to any coastal States which may be affected by such a discharge.

 

Prohibition of Entry

 

(7).(a) Subject to the provisions of sub-section (b), the entry of a ship in the territory, or in an area under the jurisdiction, of Cyprus which does not comply with the requirements of this Law, the Convention and the Protocol is prohibited.

 

(b)       The Member may, in exceptional circumstances, in order to prevent the loss of life or to reduce the likelihood of pollution damage, direct the Competent Authority to issue a special permit allowing a particular ship to enter the territory or an area under the jurisdiction of Cyprus. The terms and conditions of such permits shall be approved by the Member on the basis of the recommendations of the Competent Authority.

 

Prohibition of ship-to-ship transfers of harmful substances

 

(8).(a) Subject to the provisions of sub-section (b), the ship-to-ship transfer of harmful substances between ships located within the territory of Cyprus is prohibited.

 

(b)       The Competent Authority may issue special permits allowing the ship-to-ship transfer of harmful substances. The terms and conditions of such transfer shall be determined by the Competent Authority on the merits of each case.

 

Reception Facilities

 

(9).(a) All reception facilities operating in Cyprus shall be approved and hold a valid licence issued by the Competent Authority after appropriate consultation with the relevant Minister or Ministers in the affected constituent state.

 

(2)       The terms and conditions for the approval and licensing of reception facilities shall be determined by the Competent Authority after appropriate consultation with the relevant Minister or Ministers in the affected constituent state.

 

 

Prohibition of Sailing

 

6.(1)   The sailing of ships, which are subject to the provisions of this Law, is prohibited for as long as they do not comply with the provisions of this Law, the Convention or the Protocols.

 

(2)       If during, the inspection of any foreign ship in a Cyprus port or in an offshore terminal under the jurisdiction of Cyprus, or the inspection of any Cyprus ship under this Law, the Competent Authority ascertains any contravention of this Law, the Convention or the Protocols, the Competent Authority shall-

 

(a)         confirm to the master the particular deficiency or irregularity in writing; and

(b)         call the master to explain the situation in writing; and

(c)         issue, if necessary, an order prohibiting the ship from sailing.

 

(3)       In case an order prohibiting the sailing of the ship has been issued, the Competent Authority shall not lift such order until is satisfied that-

 

(a)         the deficiencies and irregularities have been rectified and/or the ship can proceed to sea without presenting an unreasonable threat of harm to the marine environment; and

(b)         the charges for the inspection of the ship, in order to confirm the rectification of the deficiencies and irregularities and/or ascertainment of the ability of the ship proceed to sea without presenting an unreasonable threat of harm to the marine environment, have been paid by or on behalf of the ship; and

(c)         in case an incident has occurred which has caused pollution damage, the cost for reinstatement of the damage caused actually undertaken or to be undertaken has been paid;

(d)         in case an incident has occurred, the cost of the preventive measures has been paid;

(e)         in case of an administrative fine being imposed in accordance with the provisions of this Law, such fine has been paid.

 

(4)       An order prohibiting the ship from sailing under sub-section (2) shall also include information about the right to hierarchical recourse under this Law.

 

Criminal Offences

 

7.(1)   A master, who attempts to sail in contravention of the prohibition of sailing imposed on the ship under the provisions of this Law, shall be guilty of an offence, and upon conviction, shall be liable to imprisonment for a term not exceeding five years, or to a fine not exceeding two million pounds, or to both such sentences.

 

(2)       The master or any other person in charge of a ship who has discharged any harmful substance in contravention of the provisions of this Law and/or of the Convention shall be guilty of an offence, and upon conviction, shall be liable to imprisonment for a term not exceeding five years, or to a fine not exceeding two million pounds, or to both such sentences.

 

(3)       The master or any other person in charge of a ship who has discharged any harmful substance in contravention of the provisions of this Law and/or of the Convention and who fails to report the incident as required by this Law and the Convention shall be guilty of an offence, and upon conviction, shall be liable to imprisonment for a term not exceeding five years, or to a fine not exceeding two million pounds, or to both such sentences.

 

(4)       The owner, the Company, the agent of the ship or any other person who knowingly aids and/or assists in the commission of an offence under sub-section (1), (2) and (3) commits the same offence.

 

(5)       A fine imposed under this Law shall be paid to the Federal Government.

 

(6)       For the purposes of this section, the competent Court, in case of the ship committing an offence under sub-section (1), (2) and (3), whilst within any Cyprus port, is the competent Court of the respective constituent State.

 

Administrative Fine

 

8.(1)   Without prejudice to sub-section (8), contravention of the provisions of this Law, the Convention, the Protocol, and any public instrument, shall be punishable, notwithstanding whether a case of criminal or disciplinary liability arises under any other legal provision, with an administrative fine not exceeding two million 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 recognised 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.

 

In such a case the administrative fine due shall be paid on the first return of the ship to Cyprus.

 

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

 

(8)       No administrative fine shall be imposed on any foreign ship under sub-section (1) unless the ship is voluntarily in a Cyprus port or an offshore terminal under the jurisdiction of Cyprus, it has violated any of the provisions of the Convention whilst in the territory, or an area under the jurisdiction, of Cyprus and the discharge has caused or threatened to cause pollution damage to Cyprus or required Cyprus to take preventive measures.

 

Hierarchical Recourse

 

9.(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 Cyprus port;

(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 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;

(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; or

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

(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 sub-section (1), after the lapse of the time limits specified in sub-sections (2)(b) or (c); or

(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; or

(c)         upon the issue of a decision of the Supreme Court of Cyprus dismissing the case.

 

Court action for collection of the Administrative Fines

 

10.      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

 

11.      Notwithstanding the provisions of any other Law, fines or administrative fines imposed under this Law, as well as any charges for the inspection of the ship after its 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.

 

Regulations

 

12.(1) The Presidential Council may make Regulations published in the Gazette for prescribing or regulating any matter, which, according to the provisions of this Law, the Convention or the Protocols, needs to, or may, be prescribed or regulated.

 

(2)       Without prejudice to the generality of sub-section (1), the Regulations made under that sub-section may provide for a fine of up to five thousand pounds for the contravention of any of these regulations.