S.I. No. 405 of 2001

European Communities (A system of Mandatory Surveys for the Safe Operation of Regular Ro-Ro Ferries and High-Speed Passenger Craft Services) Regulations, 2001

I, FRANK FAHEY, Minister for the Marine and Natural Resources, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 ( No. 27 of 1972 ), for the purpose of giving effect to Council Directive No. 1999/35/EC of 29 April 1999¹ , hereby make the following regulations:

Citation

1.       These Regulations may be cited as the European Communities (Mandatory Surveys for the Safe Operation of Regular Ro-Ro Ferry and High-Speed Passenger Craft Services) Regulations, 2001.

Interpretation

2.       (1)     In these Regulations -

“authorised officer” means a person appointed as an authorised officer under Regulation 9 for the purposes of these Regulations and the Directive;

“company” means a company operating a ship in accordance with Article 2 (o);

“competent authority” shall be construed in accordance with Regulation 4;

“Directive” means Directive 1999/35/EC of 29 April 1999¹ ;

“master” in relation to a ship, means the person (excluding, where appropriate, a pilot) having, for the time being, the command or charge of the ship;

“Minister” means Minister for the Marine and Natural Resources;

“ship” means a ro-ro ferry (within the meaning of Article 2 (a)) or a high-speed passenger craft (within the meaning of Article 2 (b)).

(2)     A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(3)     In these Regulations -

(a)      a reference to a Regulation or a Schedule is a reference to a Regulation of, or a Schedule to, these Regulations, unless it is indicated that reference to some other Regulations is intended,

(b)      a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c)      a reference to an Article is a reference to an Article of the Directive, unless it is indicated that reference to some other directive is intended.

Scope

3.       These Regulations apply to all ro-ro ferries and high-speed passenger craft operating to or from a port in the State on a regular service, regardless of their flag, when engaged on -

(a)      international voyages in seas -

(i)      between the State and the United Kingdom, and

(ii)      between the State and the northern coast of France, from the port of Saint Nazaire to the Belgian border, and

(b)      on domestic voyages in seas around the State.

Competent authority

4.       (1)     The Marine Survey Office of the Department of the Marine and Natural Resources is designated as the competent authority in the State for the purposes of these Regulations and the Directive.

(2)     A function conferred on the competent authority by these Regulations may be performed by an authorised officer or an officer of the Minister duly authorised by the competent authority in that behalf.

Initial verifications and surveys

5.       (1)     Prior to the start of operation by a ship on a regular service or, in the case of a ship already operating a regular service on 1 December 2000, within 12 months of that date, the competent authority shall -

(a)      check that the ship -

(i)      carries certificates in accordance with paragraph 1 (a),

(ii)      has been surveyed for the issue of certificates in accordance with paragraph 1 (b),

(iii)     complies with the standards specified in paragraph 1 (c),

(iv)     is fitted with a voyage data recorder in accordance with paragraph 1 (d), and

(v)      complies with specific stability requirements adopted in accordance with paragraph 1 (e),

of Article 4,

(b)      check that a company which operates or intends to operate a ship on a regular service complies with Article 5(1),

(c)      check, where the ship flies a flag of a state which is not a Member State of the European Communities, that the flag state has accepted the commitment of the company which operates the ship to meet the requirements of the Directive, and

(d)      carry out an initial specific survey, in accordance with Annexes I and III to the Directive to satisfy itself that the ship fulfils the necessary requirements for safe operation of a regular service.

(2)     Paragraph (1) need not apply in the cases referred to in Article 7 (2) and (3), at the discretion of the competent authority.

(3)     A ship shall once in every 12-month period be submitted by the company which operates it to the competent authority, at the request in writing of the competent authority, for a survey in accordance with Article 8.

(4)     A company which operates a ship shall permit the ship, or submit it, to be checked or surveyed by the competent authority in accordance with these Regulations.

(5)     A company which fails, without reasonable excuse, to comply with paragraph (3) or (4) is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 (£2,362.69).

(6)     The competent authority shall inform the company concerned of the outcome of verifications and surveys under these Regulations and the Directive.

(7)     Where a survey of a ship referred to in paragraph (3) confirms or reveals deficiencies in relation to the requirements of these Regulations and the Directive warranting a prevention of operation under Regulation 6, all costs relating to the surveys in any normal accounting period shall be covered by the company which operates the ship.

Prevention of operation

6.       (1)     The competent authority shall prevent the operation of a ship on a regular service:

(a)      when it has been unable to confirm compliance under Regulation 5 with the requirements in Articles 4 and 5,

(b)      whenever deficiencies are found during the surveys under Regulation 5 referred to in Articles 6 and 8 which pose an immediate danger to life, the ship, its crew and passengers,

(c)      when there is an established failure to comply with the Regulations and Community Regulations listed in Schedule 1 which poses an immediate danger to life, the ship, its crew and passengers,

(d)      whenever it has not been consulted by the flag State concerned on the matters referred to in Article 13(1) or (5),

until it is established to the competent authority's satisfaction that the danger has been removed and the requirements of these Regulations and the Directive are met.

(2)     Where a ship is already operating a regular service and deficiencies are established, the competent authority shall require the company which operates the ship to take the necessary measures for their prompt rectification or within a well-defined and reasonable period of time, as specified by the competent authority, provided they do not pose an immediate danger to the safety of the ship, its crew and passengers. After rectification of the deficiencies, the competent authority shall verify that the rectifications have been carried out to its full satisfaction. If this is not the case then the competent authority shall prevent the ship from operating on a regular service.

(3)     Where the competent authority proposes to prevent the operation of a ship under this Regulation it shall notify the company which operates the ship of the proposal, giving full reasons for the proposal, and the company may, within 14 days of the notification, make representations to the competent authority, which shall consider them.

(4)     A decision to prevent the operation of a ship under this Regulation shall take effect from the date specified in the notification to the company concerned.

(5)     Where a competent authority decides to prevent the operation of a ship under this Regulation, the company which operates the ship may, within 14 days of notification of the decision, appeal to a judge of the Circuit Court in whose Circuit the port in which the ship is detained is berthed.

(6)     Where an appeal is made under paragraph (5) the appellant may make an application to the Court that the decision to prevent the operation of the ship shall stand suspended until the appeal is dismissed or withdrawn.

(7)     On hearing an appeal under paragraph (5), the Court may confirm or vary the decision or allow the appeal.

(8)     A decision of the Circuit Court on an appeal under paragraph (5) shall be final, save that, by leave of the Court, an appeal from its decision shall lie to the High Court on a specified question of law.

(9)     In cases where Articles 4, 5 and 6 are applied prior to the start of operation by a ship on a regular service, a decision under the Regulation to prevent the ship operating must be taken within one month of the initial specific survey and communicated to the company concerned immediately.

(10)    A company which operates on a regular service a ship in contravention of a decision under this Regulation to prevent the operation of the ship is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 (£2,362.69).

(11)    A notification under this Regulation shall be made in writing and, as soon as possible, sent or given in any of the following ways -

(a)      by leaving it, or sending it by post in a pre-paid registered letter addressed to the company, at the address at which the company carries on business,

(b)      if an address for the service of notifications has been furnished by the company, by leaving it, or sending it by pre-paid registered post to, that address,

(c)      in any case where the competent authority considers the immediate giving of the notification is required, by sending it, by means of a facsimile machine, to a device or facility for the reception of facsimiles located at the address at which the company normally carries on business, or if an address for the service of notifications has been furnished by the company, that address, provided that the sender's facsimile generates a message confirming successful transmission of the total number of pages of the notification and a copy of the notification is sent to the company in any of the ways referred to in subparagraph (a) and (b) immediately thereafter.

Shipboard emergencies

7.       (1)     Companies operating ships to and from a port in the State shall maintain and implement an integrated system of contingency planning for shipboard emergencies to the satisfaction of the competent authority. To this end they shall make use of the framework provided by IMO Assembly Resolution A.852 (20) on guidelines for a structure of an integrated system of contingency.

(2)     Where a company is not maintaining or implementing an integrated system of contingency planning for shipboard emergencies to the satisfaction of the competent authority, the Minister may apply to the judge of the Circuit Court in whose Circuit the office where the company principally carries on business or port from which the company operates a ro-ro ferry or high-speed passenger craft service is located for an order directing the company to maintain or implement such a system to the satisfaction of the competent authority.

Specific requirements to be fulfilled by companies

8.       (1)     A company shall ensure that the specific requirements specified in Schedule 2 are complied with.

(2)     A company which fails to ensure that any of the specific requirements specified in Schedule 2 is complied with is guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 (£2,362.69).

Authorised officers

9.       (1)     The Minister may appoint such and so many persons as he or she thinks fit to be authorised officers for the purposes of these Regulations and the Directive.

(2)     An authorised officer shall be furnished with a warrant of the officer's appointment and, when exercising any power conferred on an authorised officer under these Regulations, shall, if requested by any person affected, produce the warrant to the person.

(3)     An authorised officer may for the purpose of these Regulations and the Directive and carrying out checks and surveys under these Regulations and the Directive -

(a)      at all reasonable times board any ship or enter any premises or place where a company operates a ro-ro ferry or high-speed passenger service for the purposes of carrying out a check or survey under these Regulations and in accordance with the Directive,

(b)      search and inspect the ship, premises or place and any documents or records found on board or therein,

(c)      require any person on board or at the premises or in the place to produce to the authorised officer any report, document or record (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) kept or used for a purpose connected with a ship,

(d)      inspect, examine and take copies of or extracts from or take away, if necessary, for the purposes of inspection or examination, any report, document or record (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) kept or used in connection with a ship and require the person by whom such document or record is kept or who produced the document or record to certify a copy thereof as a true copy,

(e)      request the production of, examine and take copies of any certificate,

(f)      question the master or person in charge of the ship or the director, manager, secretary or another officer of the company which operates the ship,

(g)      undertake, or arrange for the undertaking, of the examination, testing, processing or dismantling of any equipment on board the ship, as may be necessary.

(4)     For the purpose of exercising his or her powers under paragraph (3), an authorised officer may detain any ship during such time as is required for the exercise of those powers.

(5)     Where a competent authority is satisfied that an authorised officer appointed by it has, in a bona fide manner, exercised a power conferred on the inspector by or under these Regulations, the competent authority shall indemnify the officer against all actions or claims however arising in respect of the exercise by the officer of that power.

(6)     A person who obstructs or interferes with an authorised officer when the officer is exercising a power under this Regulation, or who fails or refuses to comply with a request or requirement of an inspector under this section, is guilty of an offence.

(7)     A person who wilfully gives to an authorised officer information which he or she knows to be false or misleading in a material respect, or makes any such false or misleading statement reckless as to its truth or otherwise, is guilty of an offence.

(8)     A person guilty of an offence under paragraph (6) or (7) shall be liable on summary conviction to a fine not exceeding €1,900 (£1,496.37).

Prosecution of offences

10.      An offence under these Regulations may be prosecuted by the Minister.

Offence by body corporate

11.      Where an offence under these Regulations is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body or a person who was purporting to act in any such capacity, such person is also guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

SCHEDULE 1

Regulation 6 (1) (c)

List of Regulations

European Communities (Minimum Requirements for Vessels Carrying Dangerous or Polluting Goods) Regulations, 1995 ( S.I. No. 229 of 1995 ), as amended by the European Communities (Minimum Requirements for Vessels Carrying Dangerous or Polluting Goods) Regulations, 1999 ( S.I. No. 96 of 1999 ),

Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) Regulations, 1998 ( S.I. No. 551 of 1998 ), as amended by the Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) (Amendment) Regulations, 2000 ( S.I. No. 85 of 2000 ),

Merchant Shipping (Training and Certification) Regulations, 1998 ( S.I. No. 553 of 1998 ), as amended by the Merchant Shipping (Training and Certification) (Amendment) Regulations, 1999 ( S.I. No. 404 of 1999 ), and the Merchant Shipping (Training and Certification) (Amendment) Regulations, 2000 ( S.I. No. 382 of 2000 ),

Council Regulation (EC) No. 3051/95 of 8 December 1995² , as amended by Commission Regulation (EC) No. 179/98³ .

SCHEDULE 2

Regulation 8

Specific requirements to be fulfilled by companies

Companies are to ensure that on board their ro-ro ferries and high-speed passenger craft:

1.       the master is provided with appropriate information on the availability of shore-based navigational guidance systems and other information schemes to assist him or her in the safe conduct of the voyages, before the ferry or craft begins to sail, and that he or she makes use of the navigational guidance and information schemes set up by the competent authority;

2.       the relevant provisions of paragraphs 2 to 6 of MSC/Circular 699, on revised guidelines for passenger safety instructions, are applied;

3.       a table with the shipboard working arrangements is posted in an easily accessible place, and contains:

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

(b)      the maximum hours of work or the minimum hours of rest required for watchkeepers;

4.       the master is not constrained from taking any decision, which in his or her professional judgement is necessary for safe navigation and operation, in particular in severe weather and in heavy seas;

5.       the master keeps a record of navigational activities and incidents which are of importance to safety of navigation;

6.       any damage to, or permanent deflection of shell doors and associated hull plating that may affect the integrity of the ferry or craft, and any deficiencies in the securing arrangements of such doors, are promptly reported to both the flag State administration and the competent authority and are promptly repaired to their satisfaction;

7.       an up-to-date voyage plan is available before the departure of the ro-ro ferry or high-speed passenger craft on its voyage. In preparing the voyage plan the guidelines set out in IMO Resolution A.893(21), on guidelines on voyage planning, are to be taken fully into account;

8.       general information about the services and assistance available to elderly and disabled persons on board is made known to the passengers and is made available in formats suitable for people with impaired sight.

EXPLANATORY NOTE

(THIS NOTE IS NOT PART OF THE INSTRUMENT AND DOES NOT PURPORT TO BE A LEGAL INTERPRETATION)

These regulations give effect to Commission Directive 1999/35/EC on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services.

The main purpose of the regulations is to lay down a system of mandatory surveys which will provide a greater assurance of safe operation of regular ro-ro ferries and high-speed passenger craft services to or from ports in the Member States of the Community. The Merchant Shipping (Investigation of Marine Casualties) Act, 2000 provides for the investigation of marine caualties as required by Article 12 of the Directive.

¹ O.J. No. L 138, 1.6.99. p. 1.

¹ O.J. No. L 138, 1.6.99. p.1.

² O.J. No. L 320, 30.12.95, p. 14

³ O.J. No. L 19, 24.01.98, p. 35