Federal Law On Merchant Shipping Organization Of Working Time Of Seafarers

Ata Atun, Clelia Theodolou, Other Committee Members

 

Foundation Agreement

Annex III, Attachment 11, Law 49

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL LAW ON MERCHANT SHIPPING (ORGANISATION OF WORKING TIME OF SEAFARERS)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the purposes of harmonisation with the Community Acts referred to as -

 

 

 

(a)       "Directive 1999/63/EC of the Council of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners´ Association (ECSA) and the Federation of Transport Workers´Union (FST)" (OJ L 167 of 02.07.1999, p. 33), and

 

 

 

(b)       "Directive 1999/95/EC and of the European Parliament and of the Council of 13 December 1999 concerning the imposition of provisions in respect of seafarers´ hours of work on board ships calling at Community ports" (OJ L 14 of 20.01.2000, p. 29), and

 

(c)        Article 17b of "Directive 93/104/EC of the Council of 23 November 1993 concerning certain aspects of the organisation of working time "(OJ L 307 of 13.12.1993, p. 18), as last amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ L 195 of 01.08.2000, p. 41),

 

 

 

PART I – INTRODUCTORY PROVISIONS

 

 

Short title. 

1. This Law may be cited as the Federal Law on Merchant Shipping (Organisation of Working Time of Seafarers) of 2004.

 

 

Interpretation.

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

 

 

 

“Convention No. 180 of the ILO” means the International Labour Organisation Convention No. 180, done in 1996 concerning Seafarers' Hours of Work and the Manning of Ships;

 

 

 

“Cyprus” means the United Cyprus Republic;

 

 

 

"Cyprus ship" means a seagoing ship and “seagoing fishing vessel” means a seagoing fishing vessel, which ship, or fishing vessel is registered-

 

 

 

 

(a)        In the shipping register of Cyprus ships and it hoists the flag of Cyprus, based on the provisions of the Federal Law on Merchant Shipping (Registration, Sales and Mortgages), or

 

 

 

 

 

(b)        in the Registry that is kept by the Directorate pursuant to the Federal Law on the Recording and Control of Small Vessels.

 

 

 

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

 

 

 

 

"Director" means the Head of the Directorate;

 

 

 

“fishing vessel” means any fishing vessel which is used for commercial maritime operations for catching fish or other living resources of the sea;

 

 

 

“ Gazette” means the federal Official Gazette;

 

 

 

"hours of rest” means the time outside the hours of work and outside the short breaks;

 

"hours of work" means the time during which a seafarer is required to do work on account of the ship or the fishing vessel, as the case may be;

 

 

 

"inspection" means any act of an surveyor based on section 21 aiming at the monitoring of compliance on board the ship or the fishing vessel of the relevant provisions of this Law;

 

 

 

"inspector of ships" means any person which is referred to in section 21(1)(a)(ii);

 

 

 

"master" means the person who has command of a ship or a fishing vessel;

 

 

 

"member state" means a member state which is a Contracting Part to the Agreement on the European Economic Area which was signed in Porto on the 2nd of May 1992, as it was modified by the Protocol which was signed in Brussels on the  17th of May 1993 as amended from time to time;

 

 

 

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

 

 

 

"operator of a ship" or "operator of a fishing vessel"  means the owner or any other person, such as the manager or the bareboat charterer of a ship or of a fishing vessel, as the case may be,  who has taken the responsibility for the operation of the ship, or the fishing vessel, as the case may be,  from the owner and by assuming such responsibility has agreed to assume all duties and obligations imposed for the purposes of this Law;

 

 

 

"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; ;

 

 

 

"Protocol to ILO Convention No 147"means the Protocol of 1996 of the International Labour Organisation concerning the Merchant Shipping (Minimum Standards) Convention, 1976;

 

 

 

"seafarer" means any person who is employed or engaged in any capacity on board a seagoing ship or seagoing fishing vessel, and includes the master;

 

 

 

"seagoing ship" means ship and "seagoing fishing vessel" means fishing vessel , but these terms do not include ships and fishing vessels , respectively, which are engaged exclusively - 

 

 

 

 

(a)       in inland waters or in waters within, or closely adjacent to, sheltered waters, in a distance not greater than three nautical miles from the nearest coast of Cyprus, or

 

 

 

 

 

(b)       in areas where port regulations apply;

 

 

 

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

 

 

 

"surveyor" means any person which is referred to in section 21(1)(a);

 

 

 

"third country" means a country that is not a member state;

 

 

 

"week" means the time period of seven days beginning at 00:01 hours of Monday and expiring at 24:00 hours of next Sunday (local times).

 

 

Exercise of powers and implementation of duties based on the present Law or on regulations.

3.-(1) The Member has power to delegate in writing to the Director or to a surveyor or to a person serving at the Directorate, the exercise of any power, except for the power of issuing notices, as well as the implementation of any duty, granted and assigned to him, respectively, by this Law or by Regulations issued under it.  In case of such delegation, the Member maintains the power to practise such delegated power and to execute such a delegated duty, from the time and during such delegation.

 

 

 

 

 

 

     (2) The Director has the power to delegate in writing to a surveyor or to a person serving at the Directorate the exercise of any power and the implementation of any duty granted and assigned to him , respectively, by  this Law or by the Regulations issued under it.

 

 

 

In case of such delegation, the Director keeps the power to practise a power so delegated and to execute a duty so delegated, from the time and during such delegation.

 

 

 

     (3)(a) Any person, assigned with the exercise of power or the execution of a duty pursuant to subsection, (1), shall exercise the power and execute such duty, in accordance with any instructions given to him by the Member.

 

 

 

(b)  Any  person assigned with the exercise of power or the execution of a duty pursuant to subsection (2), shall exercise the power and execute the duty in accordance with any instructions given to him by the Director.

 

 

 

     (4)  The Member and the Director each have power to modify and recall a delegation that they did, pursuant to subsections (1) or (2), respectively, by notification in writing to the person to whom the delegation was made.

 

 

 

     (5)  The Member has power ex officio to exercise a power and to execute a duty, that this Law or the Regulations issued under it, grant and   assign  respectively, to the Director. In case that the Member acts in such manner, the Director and every person to whom a delegation was made according to subsection (2), maintain the power of exercising such power and executing such duty, that is related to the act of the Member.

 

 

 

     (6) In case that, according to this section, two or more persons simultaneously exercise the same power or execute the same duty, the person who is the hierarchically inferior of the persons in question, takes the required measures so that he does not exercise the power or execute the duty in the same factual situation with the person who is hierarchically  superior to him, unless the latter allows him to do so and according to any directions given by the latter.

 

 

 

      (7) In case that, according to this section, a person exercises a power or executes a duty, that this Law or the Regulations issued under it , grant or assign, respectively, to another person, this Law and the Regulations issued under it, are applicable as if they had explicitly granted the power in question to the person exercising it and had explicitly assigned the duty in question to the person executing it.

 

 

 

 

 

 

PART II - ORGANISATION OF WORKING TIME OF SEAFARERS ON BOARD SEAGOING VESSELS

 

 

Scope of application

of this Part.

4.-(1)  The provisions of this Part are applicable -

 

 

 

 

 

(a)       to every Cyprus ship, wherever that may be, whether publicly or privately owned, and which is ordinarily engaged in commercial maritime operations, and

 

 

 

 

 

(b)        to seafarers on board such a ship.

 

 

 

     (2) The provisions of this Part, with the exception of sections 10,11,12, and 13, are applicable -

 

 

 

 

(a)        to every seagoing ship, which hoists the flag or is registered in the territory of a member state other than Cyprus, is ordinarily engaged in maritime commercial operations and has called in a port of Cyprus, and

 

 

 

 

 

(b)       to the seafarers on board such a ship.

 

 

 

     (3) The provisions of this Part, with the exception of sections 10,11,12 and 13, are applicable -

 

 

(a)        to every seagoing ship, which hoists the flag or is registered in the territory of a third Country, is ordinarily engaged in maritime commercial operations and has called in a port of Cyprus, and

 

 

 

 

 

(b)        to the seafarers on board such a ship.

 

 

 

     (4)   In the event of doubt as to whether or not any ships are to be regarded as seagoing ships or engaged in commercial maritime operations for the purposes of this Law, the question shall be determined:

 

 

 

 

 

(a)        If the ship is a Cyprus ship, by a written and reasoned decision of the Director following his consultation with the Organisations of the Shipowners and Seafarers involved, and

 

 

 

 

 

(b)        if the ship is not a Cyprus ship, by the written decision of the Competent Authority of the State whose flag it flies.

 

 

 

 

     (5) In case of a criminal prosecution for non compliance with this Part, any of the decisions referred to in subsection (4), constitutes a prima facie evidence that the ship reported in the decision, comes within the scope of application of this Part.

 

 

Normal schedule of work and rest of seafarers on board the ship.

5.-(1)(a) The operator of the ship determines, subject to the following subsections of this section, the normal working hours standard of seafarers on board the ship. In principle this is based on the following model: an eight hour working day with one day of rest per week and rest on public holidays.

 

 

 

 

(b) A collective agreement, which may be concluded, may determine the seafarers' normal working hours standard, on another model than the one mentioned under paragraph (a), under the following conditions:

 

 

 

 

(i)         the model  foreseen in the said collective agreement, is as favourable as the one mentioned under paragraph (a), and

(ii)        the relevant provisions of the said collective agreement are approved by the Member.

 

 

 

   (2) The operator of the ship shall ensure that the seafarers on board the ship enjoy the following right: the minimum hours of rest shall not be less than ten hours in any 24 hour period and 77 hours in any seven-day period.

 

 

 

   (3) The operator of the ship shall ensure that the seafarers on board the ship enjoy the following rights:

 

 

 

 

(a)       In any 24 hour period, the hours of rest shall be divided into no more than two periods, one of which shall be at least six hours in length, the interval between consecutive periods of rest shall not exceed 14 hours;

 

 

 

 

 

(b)       musters, fire-fighting ,lifeboat drills, including those with rescue boats, as well as the drills, which are prescribed by legislation in force from time to time, shall be conducted in a manner that minimises the disturbance of rest periods and does not induce fatigue;

 

 

 

 

 

(c)        in respect of situations when a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.

 

 

 

   (4) It is allowed in a collective agreement, which may be concluded, to make exceptions from the limits set out in subsections (2) and (3)(a), under the following conditions:

 

 

 

 

(a)       the said collective agreement, has due regard for the general principles of the protection of health and safety of workers , and 

 

 

 

 

 

(b)       the provisions making the exceptions, of the said collective agreement are approved by the Member.

 

 

 

The abovementioned provisions must, as far as possible, respect the rights of the seafarers set out in this section, but may provide for more frequent or longer leave periods, or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ships on short voyages.

 

 

 

Annex I 

   (5) The operator of the ship, shall ensure that a table, which is established in accordance with the standard set out Annex I, or in accordance with any other equivalent standard, is posted, in an easily accessible place. This table shall contain the shipboard working arrangements, on board the ship and shall contain for every position at least:-

 

 

 

 

 

(a)       the schedule of service at sea and service in port; and

 

 

 

 

 

(b)       the minimum hours of rest, in accordance with this section.

 

 

 

The table shall be established in a standardised format in the working language or languages of the ship and in English.

 

Minimum age limit of seafarers working on

board the ship

6 (1) The operator of the ship shall ensure that-

 

 

(a)       no person under the age of 16 years of age shall work on board the ship, and 

 

 

 

 

 

(b)       seafarers of at least 16 years of age but under 18 years of age, shall not work at night.

 

 

 

 

  (2) The operator of the ship, is entitled not to comply with the provisions of subsection (1)(b) if the effective training of seafarers of at least 16 years of age but under 18 years of age would be impaired. The training is conducted  in accordance with established programmes and  working schedules.

 

 

 

   (3)  For the purposes of subsection (1) (b), "night" means a period of at least nine consecutive hours, including the interval from midnight to five a.m. (local hour).

 

 

Emergency hours of work for seafarers on board for the guarantee of marine safety.

7.-(1) Notwithstanding the provisions in section 5 , the master of a ship shall have the right to require a seafarer on board to perform any hours of work necessary, with relation to the following:

 

 

 

(a)       for the immediate safety of the ship, the persons on board or the cargo;

 

 

(b)       for giving assistance to other ships or persons in distress at sea.

 

 

 

  (2)  In accordance with subsection (1), the master may suspend the schedule of hours of rest, which is stipulated in the table referred to in section 5(5)  and  require a seafarer to perform any hours of work necessary, until the normal situation has been restored.

 

 

 

   (3) As soon as practicable after the normal situation has been restored, the master of the ship shall ensure that any seafarer who have performed work in a scheduled rest period, in accordance with subsection (2),  are provided with an adequate period of rest.

 

 

Keeping records of seafarers daily hours of rest.

8.-(1) The operator of the ship, shall ensure the following-

 

(a)       the keeping of a Registry on board, which is established in the languages referred to in section 5(5)-

 

 

 

 

 

 

 

 

Annex II. 

 

 

(i)         in which, the seafarers daily hours of rest shall be maintained for five years, and 

(ii)        which allows the monitoring of compliance with section 5(2) to (5), and

(iii)       which is established according to the standard set out in Annex II or an equivalent standard;

 

 

 

 

(b)       that every seafarer receives a copy of the records of the Registry pertaining to him, which shall be endorsed either by the master, or a person authorised by the master, and by the seafarer;

 

 

 

 

(c)        the keeping of a copy of this Law and of the collective agreements, referred to in section 5(1) and (4) which concern the seafarers on board the ship, in a place on board the ship easily accessible to the crew.

 

 

 

  (2) The Director shall ensure the examination and endorsement at appropriate intervals, of the Registries referred to in subsection (1), which are kept on board Cyprus ships, in order to monitor compliance with the provisions of this Part governing hours of rest.

 

 

Manning of the ship.

9. The operator of the ship, shall ensure that-

 

 

 

 

 

(a)       when determining, approving or revising manning levels, it is necessary to take into account the need to avoid or minimise, as far as practicable, excessive hours of work, to ensure sufficient rest and to limit fatigue;

 

 

 

 

 

(b)       if the Registry referred to in section 8 or any other evidence, indicate infringement of the provisions of this Law governing  hours of work or hours of rest, measures, including if necessary the revision of the manning of the ship, shall be taken so as to avoid future infringements;

 

 

 

 

 

 

 

(c)        sufficient, safe and effective manning of the ship, in accordance with the Federal Law on Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) of 2004 and any secondary legislation issued under it.

 

 

Health of seafarers on board the ship and their fitness for work certificate.

10.-(1)  The operator of the ship, shall ensure that-

 

 

(a)       all seafarers on board the ship shall have regular health assessments for which the costs will burden the operator of this ship,

 

 

 

 

 

(b)       all seafarers shall possess a valid medical certificate attesting to their fitness for the work for which they are to be employed at sea.

 

 

 

 

  (2) Notwithstanding the provisions of sections 3 and 9 of the Federal Law on Merchant Shipping (Medical Examination of Seafarers and Issue of Certificates) of 2004, Parts II and III of the Federal Law on Merchant Shipping (Medical Examination of Seafarers and Issue of Certificates) of 2004 shall be applicable for purposes of this Part.

 

 

   (3)(a) The operator of the ship, shall ensure that seafarers on board the ship who are employed as watchkeepers, and are suffering from health problems certified by a medical practitioner as being due to the fact that they perform night work, shall be transferred, wherever possible, to day work for which they are suitable.

 

 

 

(b)  For the purposes of paragraph (a) the term “night” shall have the meaning attributed to it, in section 6(3).

 

 

 

   (4)(a)       No person shall disclose the results of the health assessment which is conducted under paragraph (1) to any other person than the seafarer concerned. 

 

 

 

 

 

(b)      A person who acts in contraction of paragraph (1) shall commit an offence and shall be liable to a sentence of imprisonment not exceeding twelve months or to a fine not exceeding four thousand pounds or to both such sentences.

 

 

 

 

 

(c)        In case of criminal prosecution for an offence under paragraph (b), it shall constitute a defence for the person accused to prove that he revealed the results of the medical examination to another person other than the seafarer concerned-

 

 

 

 

 

 

(i)         with the written consent of the seafarer in question, or

(ii)       following the death of the seafarer in question, or

(iii)       for the purpose of  proof in criminal or civil proceedings before a court of competent jurisdiction.

 

 

Briefing of Director regarding seafarers working on board at night

11.-(1) The Director has the power to demand, directions in writting, and to receive, within a reasonable deadline set by him in the direction, information on watchkeepers and other night workers on board the ship from the operator of the ship.

 

 

 

   (2) The person to whom the demand for information is addressed according to subsection (1), shall commit a criminal offence, in case such person- 

 

 

 

 

 

(a)        withholds, destroys or forges the true information requested, or

 

 

 

 

 

(b)        denies to provide the Director with the required information that  he possesses, or

 

 

 

 

 

(c)        provides to the Director false, insufficient, inaccurate or misleading information, 

 

 

 

and shall be subject to -

 

 

 

 

(aa)      in case of a first offence, in a sentence of imprisonment not exceeding six months or to a fine not exceeding two thousands pounds or to both such sentences;

 

 

 

 

 

(bb)      in case of a subsequent offence, in a sentence of imprisonment not exceeding twelve months or to a fine not exceeding four thousands pounds or to both such sentences.

 

 

 

   (3)  In case of  a criminal prosecution for an offence according to subsection (2), concerning  the provision of false, insufficient, inaccurate or misleading information, it shall constitute a defence for the person accused to prove that he provided the information in good faith and without knowing that the information so provided was false, insufficient, inaccurate or misleading.

Protection of safety and health of seafarers on board the ship.

 

12.-(1) The operator of a ship shall ensure that - 

 

(a)        the seafarers on board the ship enjoy protection with regard to their  health and their safety, proportional to the nature of their work;  and

 

 

 

 

 

(b)        the services and the protection measures and prevention in the sector of safety and health of the seafarers of the ship, working at night are equivalent with the corresponding services and the measures that concern the seafarers of the ship which work during the day; and

 

 

 

 

 

(c)        the services and the protection measures and prevention in the sector of safety and health of the seafarers of the ship, which work during  the day or the night are available at all times .

 

 

 

   (2) For the purposes of subsection (1), the term "night" has the meaning attributed to it in section 6(3).

 

 

 Annual paid  leave of seafarers on board the ship and exercise of their rights.

13.-(1) Every seafarer on board the ship shall be entitled to annual paid leave-  

 

 

(a)       for a period of at least four weeks, or

 

 

 

 

 

(b)        for a proportional part of the abovementioned period, in case the  period of employment is less than a year, 

 

 

 

 

in accordance with the conditions for entitlement to , and granting of such leave provided for in the relevant legislation from time to time in force, in collective agreements and by practice.

 

 

 

  (2) The minimum period of annual paid leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

 

 

 

  (3) The operator of a ship shall ensure that the seafarers of the ship enjoy the rights set out in subsections (1) and (2).

 

 

 

   (4) In cases where a seafarer on board a ship, is eligible to hours of rest or annual leave, during any time period, in accordance with the provisions of this Part or any legal provision from time to time in force or a clause in the contract of employment or work the seafarer does not have the right to exercise the two rights separately, but is entitled to enjoy, during the said period of hours of rest or annual leave, according to which of the two rights mentioned before, is the most favourable for him.

 

 

Conformity with 

the requirements of the present Part.

14. The operator of the ship shall provide the master of the ship the necessary resources for the purpose of complying with the obligations set upon both of them under the provisions of this Part. The master of the ship shall take all necessary measures to ensure that the seafarer’s hours of work and rest on board the ship, as set out in provisions of the present Part, are complied with.

 

 

PART III – ORGANISATION OF WORKING TIME OF

 SEAFARERS ON BOARD SEAGOING FISHING VESSELS

 

 

Scope of application

this Part.

15.-(1)  The provisions  of this Part are applied -

 

 

(a)       to every Cyprus fishing vessel, wherever that may be, and

 

 

 

 

 

(b)       to the seafarers of such a vessel.

 

 

 

     (2) In cases of doubt as to whether or not , for the purposes of this Law -

 

 

 

 

 

(a)       a vessel is a fishing vessel, or 

 

 

 

 

 

(b)       a fishing vessel is a seagoing or a Cyprus vessel,

 

 

 

 

the matter shall be resolved by a written and reasoned decision of the Director of the Fisheries Department.

 

 

 

   (3) In case of a criminal prosecution for non compliance with this Part, the decision of the Director of the Fisheries Department, in accordance with subsection (2), shall constitute prima facie evidence that the fishing vessel, which is reported in the decision, comes under the scope of application of this Part.

 

 

Special arrangements for seafarers on board fishing vessels.

 

16. Notwithstanding the provision excluding from the scope of the legislation from time to time in force in Cyprus aiming at the harmonisation with Directive 93/104/EEC of the Council of 23 November 1993 concerning certain aspects of the organisation of working time "(OJ L 307 of 13.12.1993, p. 18), as last amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ L 195 of 01.08.2000, p. 41), the Provisions of the abovementioned legislation shall be applicable to seafarers on board fishing vessels, with the exception of the provisions of the said legislation aiming at harmonisation with articles 2(4), 4, 5, 6(1), 8(1), to (3) and 8(2) of the abovementioned Directive.

 

 

Normal working and resting hours standard of seafarers on board a fishing vessel.

17.-(1) The operator of a fishing vessel shall determine the normal working hours standard of seafarers on board a fishing vessel, subject to the following subsections of this section.

 

   (2) The operator of a fishing vessel shall ensure that the seafarers on board a fishing vessel are entitled to the following rights:

 

 

 

 

(a)       the seafarers on board a fishing vessel are entitled to  adequate rest;

 

 

 

 

 

(b)       to limit the number of hours of work to 48 per week on average calculated over a reference period not exceeding 12 months.

 

 

 

 

   (3)  The operator of a fishing vessel shall ensure that in view of the need to protect the safety and health of the seafarers of the fishing vessel, the seafarers concerned are entitled to the following right: the minimum hours of rest shall not be less than 10 hours in any 24-hour period, and 77 hours in any seven-day period.

 

 

 

   (4) The operator of a fishing vessel shall ensure that the seafarers on board a fishing vessel are entitled to the following right: the hours of rest may be divided into no more than two periods, one of which must be at least six hours in length, and the interval between two consecutive periods of rest shall not exceed 14 hours.

 

 

 

  (5)(a)     Exceptions from the limits set out in subsections (2), (3), and (4), including the establishment of the reference limits provided for in subsection (2)-

 

 

 

 

 

 

 

(i)         may be laid down by means of a notice issued by the Member, under the condition that they comply with the conditions stated in accordance with paragraphs (b) and (c); or

(ii)        in cases where no such notice exists, such exceptions may be laid down either by a collective agreement, or in cases where no such collective agreement exists, then at the level of the fishing vessel, in consultation, between the operator of the fishing vessel (hereafter “the employer”) and the representatives of the seafarers of the fishing vessel, under the condition that they comply with the conditions set out in paragraph (c).

 

 

 

 

 

(b)    The Member has the power to issue the said notice referred to in paragraph (a)(i), only if before its issuance the Member-

 

 

 

 

 

 

(i)         where possible, had a consultation with the representatives of the employers and seafarers concerned, and

(ii)        made an effort to encourage all relevant forms of social dialogue.

 

 

 

 

(c)     The exceptions set out in accordance with paragraph  (a), either through a notice of the Member, or a collective agreement or by consultation between the employer and the representatives of the seafarers concerned, are only valid if-

 

 

 

 

 

 

(i)         they take sufficiently into consideration, the general principles of the protection of the health and safety of seafarers, which are set out in accordance with the Federal Law on Merchant Shipping (Minimum  Safety and Health Requirements for Work on Board Cyprus Fishing Vessels) 2004 and in accordance with any secondary legislation issued under it and in force from time to time, and

(ii)        they comply as far as possible with the seafarers rights as these are provided for in this section; without prejudice as to their validity, the abovementioned exceptions may provide for more frequent or longer leave periods or the granting of compensatory leave for the seafarers.

 

 

Emergency hours of work for

18. The master of a seagoing fishing vessel shall have the right to demand  that  any seafarer on board, shall perform as many hours of

seafarers on board a fishing vessel for the guarantee of marine safety.

work necessary for any of the following purposes-

 

 

 

 

(a)       the immediate safety of the fishing vessel, the persons on board or the cargo; or

 

 

 

 

 

(b)       this giving of assistance to other vessels or persons in distress at sea.

 

 

Annual paid leave of seafarers on board the fishing vessel

19.  Every seafarer on board a fishing vessel, for which the  legislation from time to time in force or the practice, determines that it shall not be allowed to operate in a specific period of the calendar year which exceeds one month, shall take the annual leave, which he is entitled to, in accordance with the relevant provision of the legislation form time to time in force aiming at harmonisation with article 8 of Directive 93/104/EEC of the Council of 23 November 1993 concerning certain aspects of the organisation of working time "(OJ L 307 of 13.12.1993, p. 18), as last amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 (OJ L 195 of 01.08.2000, p. 41).

 

 

 

 

 

 

 

PART IV – CONTROL MECHANISMS – PORT STATE CONTROL WITH RESPECT TO THE HOURS OF WORK AND REST OF SEAFARERS ON BOARD SEAGOING SHIPS AND SEAGOING FISHING VESSELS

 

 

Scope of application of

the present Part

20.-(1) The provisions of this Part shall apply in relation to -

 

(a)      Cyprus ships, which fall within the scope of application of Part II in accordance with the provisions of section 4(1); and

 

 

 

(b)    ships, flying the flag or registered in the territory of a member state, which fall within the scope of application of Part II in accordance with the provisions of section 4(2); and

 

 

 

(c)     ships, flying the flag or registered in the territory of a third state, which fall within the scope of application of Part II in accordance with the provisions of section 4(3); and

 

 

 

(d)    Cyprus fishing vessels, which fall within the scope of application of Part III in accordance with the provisions of section 15(1); and

 

 

 

(e)    the seafarers of every ship or fishing vessel, referred to in paragraphs (a), (b), (c) and (d).

 

 

 

   (2)  In this Part-

 

 

 

“relevant fishing vessel” means a fishing vessel for which the provisions of this Part shall apply, in accordance with the provisions, of subsection (1)(d);

 

 

 

“relevant ship” means a ship for which the provisions of this Part shall apply in accordance with the provisions contained in subsections (1)(a), (b) and (c).

 

 

Powers of surveyors

21.-(1)(a)  The powers conferred by this section, with respect to the survey of a relevant ship and a relevant fishing vessel, are conferred to-

 

 

 

(i)        any surveyor appointed by the Presidential Council  under section 3(2)(a) of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages) of 2004, and

(ii)       any inspector of ships appointed by the Presidential Council under section 3(2)(b) of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages) of 2004.

 

 

 

(b) For the purpose of paragraph (a), section 3(2) of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages) of 2004 shall apply as if the phrase “for the purposes of this Law and of the Code”, contained in each of the paragraphs (a) and (b) of the said section, had been replaced by the phrase “for the purpose of this Law, the Code and the Federal Law on Merchant Shipping (Organisation of Working Time of Seafarers) of 2004”.

 

 

 

   (2) For the purposes of determining the conformity of any obligation deriving from either Parts II or III, or the Regulations or notice issued under this Law, every surveyor has the power at any reasonable time (or, in case he reasonably believes that this would involve danger, at any time) -

 

 

 

 

(a)       to stop, enter, survey and inspect any relevant ship or relevant fishing vessel, whether this is moored or is afloat, as well as the seafarers of the relevant ship or relevant fishing vessel; and

 

 

 

 

 

(b)       to examine any evidence, recorded in any computerised, electric or electronic data system and any books and documents which are on board a relevant ship or relevant fishing vessel, for which he has reasonable cause to believe they contain information or records relating to any obligation which derives as mentioned above, and to copy and photocopy, and to remove any copies, photocopies and their extracts, under the condition that, with respect to the extracts, he has reasonable cause to believe that these extracts might be needed as evidence in any criminal proceedings with respect to any contravention or omission to comply with this Law or the Regulations or notice, issued under it; and

 

 

 

 

 

(c)       to enter any relevant ship or relevant fishing vessel-

 

 

(i)            accompanied by any other person, whose presence he deems necessary for any purpose for which he carries out the powers under subsections (2) or (3), and

(ii)          bringing with him any equipment or materials, which he deems necessary for any purpose for which he carries out the powers under subsections (2) or (3).

 

 

 

   (3) The operator of a relevant ship or relevant fishing vessel, and the master or any other seafarer of such ship or fishing vessel, each have the duty to provide the surveyor, if the latter reasonably requests this with-

 

 

 

 

 

(a)          any facilitation, and

 

 

 

 

 

(b)          any information, and

 

 

 

 

 

(c)           a signed statement as to the truth of the information given to the surveyor,

 

 

 

the said surveyor has the power to demand and receive such facilitation, information and statement.

 

 

 

   (4)  Each surveyor, prior and at the time of exercising the powers conferred on him under subsections (2) and (3), must upon being requested to do so, show his identification document which is issued by the Member under the Federal Regulations on Merchant Shipping (Identification Documents of Surveyors and Inspectors) of 2004, as amended or replaced from time to time.

 

 

 

   (5)  A shall person commit a criminal offence if such person-

 

 

 

 

 

(a)              refuses or omits to comply with any obligation, imposed on him under subsection (3);

 

 

 

 

 

(b)              without prejudice to the generality of paragraph (a), withholds, destroys or alters information, statements, details, books or documents, or gives a surveyor false, incomplete, imprecise or misleading information, statements, details, books or documents or denies to give a surveyor information, statements, details, books or documents, such information, statements, details, books or documents having been requested by the surveyor during the exercise of the powers conferred on him by this section,

 

 

 

and shall be liable-

 

 

(aa)           in case of a first conviction, to imprisonment not exceeding six months or to a fine not exceeding two thousand pounds[1] or to both such sentences;

 

(bb)        in case of a subsequent offence, to imprisonment not exceeding twelve months or to a fine not exceeding four thousand pounds[2] or to both such sentences.

 

 

 

   (6) In the case of a criminal prosecution for an offence under subsection (5)-

 

 

 

(a)            with respect to the denial or omission to comply with an obligation imposed under subsection (3), it is a defence for the accused if he proves that he had reasonable cause for the said denial or omission;

 

 

 

(b)         with respect to the giving of false, incomplete, imprecise or misleading information, statements, details, books or documents it is a defence for the accused if he can prove that he gave the information, statement, records, book or document in good faith and without knowledge that the given information, statements, details, books or documents was false, incomplete, imprecise or misleading

 

 

 

   (7) Each surveyor, who conducts a survey under this section or exercises a duty in accordance with section 22, in relation to a ship registered in the territory or flying the flag of a state which has not signed ILO Convention No.180 or the Protocol to ILO Convention No.147, must take the necessary measures so that the treatment given to the said ship and its crew during the survey or the exercise of the duty is no more favourable than that given to a ship flying the flag of a state which is a party to the said Convention or the said Protocol or to both of them.

 

 

Duties of surveyors

with respect

to vessels.

22.-(1)  In case a surveyor is either instructed by the Director to determine the truth of a complaint lodged in accordance with section 23, relating to a relevant ship or otherwise he has reasonable cause to believe that there is a contravention of any of the provisions of Part II with respect to a relevant ship, he shall conduct a survey of the said ship in accordance with section 21 to determine whether-

 

 

 

 

 

(a)           the table referred to in section 5(5) has been established, drafted and posted, in accordance with the provisions of that section; and

 

 

 

 

 

(b)           a register as referred to in section 8(1)(a) is kept in accordance with the provisions of that section; and

 

 

 

 

 

(c)            there is evidential proof of the proper inspection of the said register by-

 

 

(i)            a surveyor, in case the relevant ship is a Cyprus ship, or

(ii)          the competent authorities of the State in whose territory the relevant ship is registered, in case the said ship is not a Cyprus ship.

 

 

 

   (2) In case a surveyor is either instructed by the Director to determine the truth of a complaint lodged in accordance with section 23 relating to the relevant ship or otherwise he has reasonable cause to believe that a seafarer of the relevant vessel is unduly fatigued, he shall conduct a survey of the said ship in accordance with section 21, which is more detailed than the one referred to in subsection (1), in order to determine whether the hours of rest recorded in the register referred to in section 8(1)(a)-

 

 

 

 

 

(a)          conform with the provisions of Part II, and

 

 

 

 

 

(b)          has been duly kept, taking into account other records relating to the operation of the said ship.

 

 

Lodging of complaint to Director for breach of

Part II or III.

23.-(1) Each one of the following is entitled to lodge a complaint to the Director in the form of information or report, with respect to a breach of any of the provisions of Part II relating to a relevant ship or with respect to a contravention of any of the provisions of Part III relating to a relevant fishing vessel:

 

(a)         a seafarer of the relevant ship or relevant fishing vessel;

 

(b)         a professional body, association and trade union, each one being lawfully established and constituted, by law or under its memorandum of association, with a sufficient interest in the safety of the relevant ship or the relevant fishing vessel, in particular as regards the safety or health of the seafarer of the said ship or fishing vessel;

 

(c)          generally, any other person having the same interest in the safety of the relevant ship or relevant fishing vessel, in particular as regards the safety or health of the seafarers of the said ship or fishing vessel.

 

 

 

   (2) In the case of lodging of a complaint to the Director under subsection (1), the Director shall ensure that the identity of the person lodging the complaint is neither revealed to the master of the relevant ship or the relevant fishing vessel, to which the complaint relates, nor to operator of the said ship or fishing vessel.

 

 

 

   (3) A surveyor or public servant, who discloses to the master or the operator of the relevant ship or relevant fishing vessel, the identity of the person lodging the complaint relating to the said ship or fishing vessel-

 

 

 

 

(a)            commits a criminal offence and is liable to a fine not exceeding two thousand pounds; and

 

 

 

 

 

(b)            commits a disciplinary offence which is punishable-

 

 

(i)          in the case of a public servants, in accordance with the Federal Law on Public Service,

(ii)         in the case of an inspector of ship, with the termination of his services as inspector by the Member.

 

 

 

 

Taking corrective measures in contravention

to Part II.

24.-(1)  Where-

 

 

(a)           A complaint has been submitted by the Director by virtue of section 23 regarding any contravention of any of the provisions of Part II, in relation to a relevant ship which is not a Cyprus ship, complaint which the Director finds to be well –founded, or

 

 

 

 

 

(b)           The Director has reasonable grounds for believing, either following a survey carried out by a surveyor by virtue of section 21 or otherwise, that any contravention has occurred in relation to any of the provisions of Part II, regarding a ship which is not a Cyprus ship,

 

 

 

the Director prepares a report on the contravention which he forwards to the government of the state with which the said ship is registered.

 

 

 

   (2) Where the Director ascertains, following a survey conducted by virtue of section 21, during which the surveyor acted in accordance with the provisions of section 22(1) or (2), that a contravention of any of the provisions of Part II has occurred in relation to-

 

 

 

 

 

(a)           a relevant Cyprus ship wherever it may be, or

 

 

 

 

 

(b)           a relevant  ship which is not a Cyprus ship while at a port of Cyprus during its ordinary course of commercial activities or for operational purposes,

 

 

 

the Director has the power and duty to take, at his discretion, all reasonable measures in order to recover any conditions on board the relevant ship which endanger the safety or health of the seafarers of the said ship.

 

 

 

   (3) Where the surveyor ascertains, following a survey conducted by virtue of section 21 and while acting in accordance with the provisions of section 22(1) or (2), that a contravention of any of the provisions in Part II has occurred in relation to-

 

 

 

 

(a)          a relevant Cyprus ship wherever it may be, or

 

 

 

 

 

(b)          a relevant ship which is not a Cyprus ship while at a port of Cyprus during its ordinary course of commercial business or for operational purposes,

 

 

 

the surveyor -

 

 

 

 

 

(aa)     prepares a relevant report which he forwards to the master of the relevant ship whom he calls to his defence and has the power, if he finds it reasonably necessary to do so, to prohibit the sailing of the relevant ship in accordance with the provisions of section 26-

 

 

 

 

 

 

(i)            until any conditions on board the relevant ship which endanger the safety or health of the seafarers of the said ship are restored, or

(ii)          until the seafarers of the relevant ship are adequately rested; and

 

 

 

 

 

(bb)     if he ascertains, following the abovementioned survey, that the seafarers of the said ship engaged in watchkeeping for the first or subsequent watches are fatigued beyond the expected, the surveyor prepares a relevant report which he forwards to the master of the relevant ship whom he calls to his defence and has a duty to prohibit the sailing of the relevant ship in accordance with the provisions of section 26-

 

 

 

 

 

 

(i)            until any conditions on board the relevant ship which endanger the safety or health of the seafarers of the said ship are restored, or

(ii)          until the aforementioned fatigued seafarers of the relevant ship are adequately  rested.

 

 

 

 

Taking corrective measures in contravention

of Part III.

25. Where the surveyor ascertains, following a survey prepared by virtue of section 21, that any contravention has occurred of any of the provisions of Part III in relation to a Cyprus fishing vessel, he prepares a relevant report which he forwards to the master of the relevant fishing vessel whom he calls to his defence and has the power, if he finds it reasonably necessary to do so, to prohibit the sailing of the relevant fishing vessel in accordance with the provisions of section 26-

 

 

 

 

(a)                      until any conditions on board the relevant fishing vessel which endanger the safety or health of the seafarers of the fishing vessel are restored, or

 

 

 

 

 

(b)                      until the seafarers of the relevant fishing vessel are adequately rested.

 

 

Procedure for ordering the prohibition of sailing.

26.-(1) A surveyor shall prohibit the sailing of a ship by virtue of section 24 or of a fishing vessel by virtue of section 25, by forwarding a written instruction to the master of the relevant ship or fishing vessel.

 

 

 

   (2) Each instruction mentioned in sub-section (1) is deemed enforceable upon its communication to the master of the ship or of the fishing vessel concerned and remains in force up to its lifting by the surveyor in accordance with the provisions of sub-section (9) or cancelled, amended, or replaced as a result of an objection or a hierarchical or judicial recourse.

 

 

 

   (3) In each instruction mentioned in sub-section (1), its issuing surveyor-

 

 

 

 

(a)       sufficiently, explicitly and duly lays down the grounds for imposing the prohibition of sailing and in particular -

 

 

 

 

 

 

(i)                   the outcome of surveys on which the grounds imposing the prohibition of sailing are founded, and

(ii)                 the reasonable corrective measures which, to his judgment, should be taken for the purpose of lifting the causes for the imposition of the prohibition of sailing· and

 

 

 

 

 

(b)       informs the master, to whom the instruction is forwarded-

 

 

 

 

 

(i)        of the  right provided in sub-section (6) to the master, the operator of the ship or of the fishing vessel, to which the instruction is directed and to the representative within Cyprus of the operator of the ship or of the fishing vessel,

(ii)                 of the right of the master, of the operator of the ship or fishing vessel and of the representative within Cyprus of the operator of the ship or fishing vessel to exercise a recourse against the instruction or issued decision of the Director by virtue of sub-section (6) -

 

 

 

 

 

(A)         by  a recourse before the Member in accordance with section 29, and

 

 

 

 

 

(B)         by a recourse before the Supreme Court, and

 

 

 

 

 

(iii)     of the time-limit within which the right under point (A) may be exercised, as prescribed in sub-section (6) of this section, section (9), section 29 of this Law.

 

 

 

   (4) The surveyor has the power to order, through his instruction provided in sub-section (1), the ship or fishing vessel concerned to-

 

 

 

 

(a)       remain at a particular position, or

 

 

 

 

 

(b)       move to a particular position and remain there.

 

 

 

   (5) The survey or shall communicate each of his instructions provided in sub-section (1)-

 

 

 

 

(a)       to the operator of the ship or fishing vessel, to which the instruction relates, and

 

 

 

 

 

(b)       where the instruction concerns a ship which is not a Cyprus ship, either to the competent authority of the flag state of the relevant ship or of the state with which the relevant ship is registered either to the consul of the relevant state or, in his absence, to the nearest diplomatic representative of the relevant state.

 

 

 

   (6)(a) The master of a ship or fishing vessel, to which the instruction provided in sub-section (1) relates, the operator of the ship or of the fishing vessel and the representative within Cyprus of the operator of the ship or fishing vessel, each have a right to file an objection before the Director, within a time-limit of 7 days from the communication of the relevant instruction to the master.

 

 

 

(b) An objection submitted under paragraph (a) does not stay   the execution of the disputed instruction.

 

 

 

(c) Where an objection is submitted by virtue of paragraph (a), the Director examines it without any undue delay, and is entitled to hear the person submitting the objection at his judgment and give him an opportunity to submit in writing the grounds on which the objection is based.

 

 

 

(d) The Director has the power to assign one officer of the Directorate or more, to examine matters relating to the aforementioned objection and expect them to submit the outcome of such examination prior to the issuing of his decision on the objection.

 

 

 

(e) The Director, within a time-limit of 3 days from the date of filing of the objection, issues his decision on the objection and forwards it to the person who has submitted it, in which decision he-

 

 

 

 

(i)                      accepts in whole or in part the objection, or rejects the same and,

(ii)                    depending on the case, cancels, amends, upholds or replaces the disputed instruction, and

 

 

 

the decision of the Director is rendered enforceable on its communication to the person objecting.

 

 

 

(f) Where the Director adopted in part or rejects an objection submitted under paragraph (a), his judgment on the objection must contain sufficiently, explicitly and duly the grounds on which it is based and informs the person filing the objection-

 

 

 

 

(i)                       of his right to exercise a recourse against the decision of the Director-

 

 

 

 

 

(A)        by a recourse before the Member in accordance with section 29, and

 

(B)      by a recourse before the Supreme Court, and      

 

 

 

 

 

(ii)                       of the time-limit within which the right under point (A) may be exercised, as prescribed in section 29 of this Law.

 

 

 

 

   (7) Each of the master and operator of the ship or fishing vessel, to whom the instruction provided for in sub-section (1) has been forwarded or communicated, shall during the period of validity of the instruction, comply with it and take all the necessary measures to lift the causes for which the issuing surveyor imposed the prohibition of sailing.

 

 

 

   (8)(a) Where the master of a ship or of a fishing vessel to whom the instruction provided for in sub-section (1) has been forwarded alleges to the Director that he has acted in conformity to sub-section

(7), the Director ensures that a survey of the relevant ship or fishing vessel is conducted at the earliest possible, in order to ascertain whether the causes for which the surveyor issued the prohibition of sailing have been lifted.

 

     (b) The expenses of each survey carried out according to paragraph (a) bear the operator of the surveyed ship or fishing vessel.

 

 

 

   (9) Where a surveyor is convinced that the grounds for imposing the prohibition of sailing, by an instruction as provided in sub-section (1), no longer exist, he recalls the instruction by a written decision which he forwards to the master and the operator of the ship or fishing vessel, whom the recalled instruction concerned.

 

 

 

   (10)  A master commits a criminal offence when-

 

 

 

 

(a)       he attempts the sailing of a ship or fishing vessel in contravention of a prohibition of sailing in force and imposed on the relevant ship or fishing vessel by virtue of this Law, or

 

 

 

 

 

(b)       contravenes an order in force of the surveyor as provided in sub-section (4),

 

 

 

and is subject to imprisonment not exceeding 18 months or to a fine not exceeding five thousand pounds or to both such sentences.

 

 

 

   (11) The criminal offence provided in sub-section (10) is also committed by the operator of the ship or fishing vessel or any other person who knowingly, assists or co-operates in the commission of the abovementioned criminal offence.

 

 

 

   (12) A person commits a criminal offence when -

 

 

 

 

 

(a)       he files an objection by virtue of sub-section (6) (a), which contains false, inaccurate or misleading information, or

 

 

 

 

 

(b)       submits any information, under sub-section (6)(c), which is false, inaccurate or misleading,

 

 

 

and is subject -

 

 

 

 

(aa)     in case of a first offence, to a sentence of imprisonment not exceeding six months or to a fine not exceeding two thousand pounds or to both such sentences.

 

 

 

 

 

(bb)     in case of a subsequent offence, to a sentence of imprisonment not exceeding twelve months or to a fine not exceeding four thousand pounds or to both such sentences.

 

   (13) A person who contravenes or fails to comply with an enforceable decision of the Director under sub-section (6)(e) commits a criminal offence and is subject to a sentence of imprisonment not exceeding twelve months or to a fine not exceeding five thousand pounds or to both such sentences.

 

 

Unjustifiable delay of a ship or fishing vessel.

27.-(1) During the exercise of a power or performance of a duty -

 

 

(a)       by a surveyor under section 21,22,24(3), 25 or 26,

 

 

 

 

 

(b)       by the Director under section 24(2),

 

 

 

each of the abovementioned puts every effort in order not to cause an unjustifiable prohibition of sailing or delay of a ship or fishing vessel.

 

 

 

   (2)(a) In case of an unjustifiable prohibition of sailing or delay of a ship or fishing vessel the operator of the ship or fishing vessel affected is entitled to compensation for any losses and damages incurred by the actions or omissions of a public servant of the federal government.

 

 

 

(b) In case of an allegation of an unjustifiable prohibition of sailing or delay of a ship or fishing vessel, the burden of proof lies with the operator of the ship or fishing vessel who makes the allegation.

 

 

Administrative fine.

28.-(1) In case where the Director, based on the outcome of a survey carried out by a surveyor under section 21, has reasonable grounds for believing that-

 

 

 

(a)    the operator of a Cyprus ship or the master of such ship does not fulfil any of his obligations under Part II or under Regulations or notice issued under this Law, or

 

 

 

(b)    the operator of a Cyprus fishing vessel or the master of such vessel does not fulfil any of his obligations under Part III or under Regulations or notices issued under this Law,

 

 

 

the Director shall have the power to impose on such person an administrative fine not exceeding five thousand pounds, depending on the seriousness of the contravention and irrespective of whether or not there is a concurrent case of criminal or disciplinary liability by virtue of this Law, or any other Law or Regulations.

 

 

 

   (2) The Director imposes an administrative fine by virtue of sub-section (1) by a written and reasoned decision-

 

 

 

(a)   which lays down the contravention· and

 

 

 

(b)   by which the offender is informed-

 

 

 

 

(i)          of his right under sub-section (4), and

(ii)         of his right to exercise a recourse against the decision-

 

 

 

 

 

(A)                   before the Member in accordance with the provisions of section 29, and

 

(B)                   before the Supreme Court Supreme Court, and

 

 

 

 

 

(iii)       of the time-limit within which the right under point (A) may be exercised, as prescribed in sub-section (4) of this section, section 29 of this Law· and

 

 

 

(c)   which he forwards to the offender.

 

 

 

   (3) The Member has a power to prescribe through his directions the criteria for calculating the height of the administrative fine imposed under sub-section (1), without this restricting the discretion of the Director to decide freely on the height of the administrative fine imposed on the basis of the real facts of the case.

 

 

 

   (4) The offender is entitled to submit representations to the Director against an imposition of an administrative fine or against its height, within a time-limit of five days from the communication of the decision for the imposition of an administrative fine to the offender. Following any submission of representations, the Director issues his decision at the earliest possible and forwards it to the offender.

 

 

 

   (5) A person to whom an administrative fine has been imposed has a duty to pay it to the Director once a time limit of seventy five days passes inactive-

 

 

 

 

(a)       from the communication of the decision imposing an administrative fine, or

 

 

 

 

 

(b)       where representations are submitted before the Director according to sub-section(4), from  the communication of the dismissing decision of the Director on the representations, or

 

 

 

 

 

(c)        where a recourse is brought before the Member under section 29, from the communication of the dismissing decision of the Member on the recourse.

 

 

Hierarchical Recourse.

29.-(1) The operator of a ship or fishing vessel, his representative in the Republic and the master of such ship or fishing vessel, each have the right to file a written and reasoned recourse before the Member regarding-

 

 

 

 

(a)       an instruction of a surveyor on the prohibition of sailing of a relevant ship or fishing vessel,

 

 

 

 

 

(b)       a decision of the Director on an imposition of an administrative fine, or

 

 

 

 

 

(c)        a dismissing decision of the Director either on objections submitted according to the provisions of section 26(6) or on representations made according to the provisions of section 28(4), decision which concerns the relevant ship or fishing vessel,

 

 

 

within a time-limit of 30 days from the communication of the decision to the person bringing a recourse in accordance with the provisions of this Law, of the instruction or decision  on which the recourse is based.

 

 

 

   (2) A recourse exercised under sub-section (1) does not stay the execution of the disputed instruction or decision.

 

 

 

    (3) Where a recourse is brought by virtue of sub-section (1), the Member examines it without any undue delay, and is entitled, at his judgment, to hear the person bringing a recourse and give him an opportunity to submit in writing the grounds on which the recourse is based.

 

 

 

   (4) The Member has the power to assign one officer of his Department or more to examine matters relating to the aforementioned recourse and expect them to submit the outcome of such examination prior to the issuing of his decision on the recourse.

 

 

 

   (5) The Member, within a time-limit of 10 days from the date of filing of the recourse, issues his decision on the recourse in writing and forwards it to the person who has filed it, decision with which he-

 

 

 

 

(a)       accepts in whole or in part the recourse, or dismisses the same and,

 

 

 

 

 

(b)       depending on the case, cancels, amends, upholds or replaces the disputed instruction or decision, and

 

 

 

the decision of the Member in rendered enforceable on its communication to the person who has filed it, except where it concerns a recourse against a decision issued by the Director by virtue of section 28(1) or (4).

 

 

 

   (6) Where the Member adopts in part or dismisses a recourse submitted under sub-section (1), his judgment on the recourse shall contain sufficiently, explicitly and duly the grounds on which it is based and informs the person filing the recourse of his right to bring a recourse against the decision of the Member before the Supreme Court.

 

 

 

   (7) A person commits a criminal offence it -

 

 

 

 

(a)       he files a recourse by virtue of sub-section (1), which contains false, inaccurate or misleading information, or

 

 

 

 

 

(b)       submits any information, under sub-section (3) which is false, inaccurate or misleading,

 

 

 

and is subject-

 

 

 

 

 

(aa)     in case of a first offence, to a sentence of imprisonment not exceeding six months or to a fine not exceeding two thousand pounds or to both such sentences, or

 

 

 

 

 

(bb)     in case of a subsequent offence, to a sentence of imprisonment not exceeding twelve months or to a fine not exceeding four thousand pounds or to both such sentences.

 

 

 

   (8) A person who contravenes or fails to comply with an enforceable decision of the Member under sub-section (5), which relates to a recourse against an instruction of the surveyor or a decision of the Director, regarding a prohibition of sailing, commits a criminal offence and is subject to a sentence of imprisonment not exceeding twelve months or to a fine not exceeding five thousand pounds or to both such sentences.

 

 

Payment of survey expenses and of an administrative or judicial fine.

30.-(1) In the event of a failure or neglect of -

 

 

(a)       the operator of the ship or fishing vessel to pay the survey expenses, which bear himself in accordance with section 26 (8) (b) to the Director, or

 

 

 

 

 

(b)       a person on whom an administrative fine was imposed by virtue of this Law, to pay such fine to the Director within the time-limit provided in section 28(5),

 

 

 

the Director takes legal measures and collects the amount due as a civil debt owed to Cyprus.

 

 

 

   (2) Any of the following constitute a charge on a ship or fishing vessel, which is satisfied in priority over other creditors, but follows in order of priority the last mortgage:

 

 

 

 

(a)       survey expenses which bear the operator of the ship or fishing vessel, according to section 26(8)(b),

 

 

 

 

 

(b)       administrative fine imposed to the operator of the ship or fishing vessel, by virtue of this Law, or

 

 

 

 

 

(c)        fine imposed by a Court by virtue of this Law to the operator of the ship or fishing vessel.

 

 

 

   (3) Where -

 

 

 

 

(a)       a prohibition of sailing has been successfully reviewed before the Director by virtue of section 26(6), or

 

 

 

 

 

(b)       a prohibition of sailing or an administrative fine imposed by virtue of this law, have been successfully reviewed either before the Member in accordance with the provisions of section 29 or before the Supreme Court,

 

 

 

the following apply:

 

 

 

 

 

(aa)     sub-sections (1) and (2)(a) and (b) do not apply-

 

 

 

 

 

(i)                      in relation  to any survey expenses which relate to such prohibition of sailing, and

(ii)          in relation to such administrative fine·

 

 

 

 

 

(bb)     the Director returns any sum of the aforementioned expenses and administrative fine paid, to the person who has paid such.

 

 

 

Administrative cooperation.

31. Section 21 of the Federal Law on the Merchant Shipping (Port State Control), applies for the purposes of this Law, as if section 21 had been amended as follows:

 

 

 

 

 

(a)       the phrase “the competent authority”, where it appears, had been replaced by the phrase “the Director”·

 

 

 

 

 

(b)       the term “ship, where it appears and in any grammatical variation, had the meaning attributed to this term by the this in the term “seaworthy ship”.

 

 

Publishing information.

32.  Section 15 of the Federal Law on the Merchant Shipping (Port State Control) applies on information relating to measures taken with respect to ships which are not Cyprus ships on applying section 22 or 24 of the present Law, as if the said section 15 had been amended as follows:

 

 

 

 

 

(a)       the phrase “the competent authority”, where it appears, had been replaced by the phrase “the Director”·

 

 

 

 

 

(b)       the term “ship, where it appears and in any grammatical variation, had the meaning attributed to this term by this Law in the term “seaworthy ship”.

 

 

 

 

 

(c)        the phrase “or the mooring at a port of Cyprus”, in sub-section (1), had been deleted.

 

 

 

 

PART V— MISCELLANEOUS PROVISIONS

 

 

Court jurisdiction in civil actions.

33. The Supreme Court is the competent Court for resolving any civil dispute connected with a Cyprus ship or a Cyprus fishing vessel.

 

 

General criminal offences.

34.-(1)(a) A master and operator of a ship or fishing vessel who acts in contravention to or fails to conform with an obligation imposed my Part II or III, for which Part II or III does not provide for any other offence, each commit a criminal offence and are subject to an imprisonment not exceeding twelve months or a fine not exceeding four thousand pounds or to both such sentences.

 

 

 

(b) In criminal proceedings commenced under paragraph (a), it shall be a defence for the accused to prove that-

 

 

 

(i)                   He had taken all reasonable measures to ensure conformity with his obligation relating to the alleged commission of the criminal offence, or

(ii)                 He acted within the framework of an allowed by or by virtue of this Law deviation of the obligation which relates to the alleged commission of the criminal offence.

 

 

 

   (2) A person who wilfully obstructs or impedes the Director, any surveyor or other officer, during the exercise of his powers or performance of his duties, by virtue of this Law or the Regulations issued under it, or through any gratuity or bribe, promise or other incentive inhibits or intends to inhibit any such person from duly exercising his powers or performing his duties, by virtue of this Law or the Regulations issued under it, commits an offence and is subject to-

 

 

 

(a)    a sentence of imprisonment not exceeding six months or a fine not exceeding three thousand pounds or to both such sentences;

 

 

 

(b)    in case of a subsequent offence, to an imprisonment not exceeding twelve months or a to fine not exceeding four thousand pounds or to both such sentences.

 

 

 

   (3) Where a criminal offence is committed, by virtue of this Law or the Regulations issued under it, by a legal person or by a person acting on behalf of a legal person and it is proved that it had either been committed with the consent or complicity or approval or that it had been facilitated by the negligence of its natural person who, at the time when the criminal offence had been committed, he held the position of a member, director, secretary or similar position in the legal person or appears to be acting in that capacity, the said natural person is guilty of the same criminal offence and is subject to the sentence provided in respect of this offence.

 

 

Criminal prosecution only with the consent of the Attorney-General.

35.  No criminal proceedings shall be commenced under this Law without the consent of the federal Attorney-General.

 

 

 

Amendment of Schedules of the present Law and of Regulations.

36. The Member has the power to amend by notice any Schedule of this Law and any Schedule of any Regulations issued therein.

 

 

Publication and entry into force of Orders of the Member.

37. Every notice, granted by the Member by virtue of the present Law, is published in the Gazette, and unless otherwise provided, shall enter into force on the date of its publication in the Gazette.

 

 

Power to issue regulations.

38.-(1) The Presidential Council has the power to issue regulations published in the Gazette for the more effective operation or implementation of this Law or for the determination or regulation of any matter relating to the organisation of working time of seafarers or any other related matter.

 

 

 

   (2) Without prejudice to the generality of subsection (1), the regulations issued in accordance with the present section may create an offence due to breach or omission to comply with any of their provisions, and may provide for sentences and administrative fines as punishment for the commission of such offences.

 

 

 

   (3)  The regulations issued in accordance with the present section shall enter into force on the date of publication of the Regulations in the Gazette, unless otherwise provided therein.

 

 

 

 

 

 

 



[1]  Reference based on the provisions of Annex III, Attachment 6 (p. 70 of Revised U.N. plan).

[2] Reference based on the provisions of Annex III, Attachment 6 (p. 70 of Revised U.N. plan).