The Merchant Shipping (Control and Management of Ships’ Ballast Water and Sediments) Regulations 2022

General provisions on detention

40.—(1) Where—

(a) a determination is made of a kind mentioned in regulation 35(1) (procedure to be adopted when a ship is deficient) in relation to a ship; or

(b) a surveyor of ships has clear grounds for believing that—

(i) an IBWM Certificate is required to have been issued in respect of a ship but has not been issued, or has been issued but is not valid;

(ii) documentation referred to in regulation 24(b) (prohibition on non-United Kingdom ships proceeding to sea without an IBWM Certificate or appropriate documentation) (“appropriate documentation”) is required to have been issued in respect of a ship but has not been issued, or has been issued but is not valid;

(iii) a ship’s ballast water management does not conform to the particulars of the IBWM Certificate, if any, or other appropriate documentation issued in respect of that ship;

(iv) the master or crew of a ship are not familiar with essential shipboard procedures relating to the prevention of pollution by ballast water or have not implemented such procedures; or

(v) an offence under regulation 44 (offences) is being committed in respect of a ship,

the ship is liable to be detained until a surveyor of ships is satisfied that it can proceed to sea without presenting a threat of harm to the environment, human health, property or resources.

(2) Notwithstanding paragraph (1), a person having power to detain a ship may permit a ship which is liable to be detained under paragraph (1) to proceed to sea for the purpose of—

(a) discharging ballast water; or

(b) proceeding to the nearest appropriate repair yard or reception facility available,

provided that in proceeding to sea the ship will not present a threat of harm to the environment, human health, property or resources.

(3) A person permitting a ship to proceed to sea under paragraph (2) must inform the ship’s next port of call of all information relevant to the detention of the ship under paragraph (1).

(4) Where a surveyor of ships has clear grounds for believing that an offence under regulation 44(1)(a) (offences) has been committed in respect of a ship, the ship is liable to be detained.

(5) The power under this regulation to detain a ship may only be exercised if the ship is—

(a) in a port in the United Kingdom;

(b) at an offshore terminal in United Kingdom waters or controlled waters; or

(c) a floating platform in United Kingdom waters or controlled waters, other than a floating platform which is in transit.

(6) Section 284 of the 1995 Act(1) (enforcing detention of a ship) applies where a ship is liable to be detained under the preceding provisions of this regulation as if—

(a) references to detention of a ship under the Act were references to detention of the ship in question under the preceding provisions of this regulation; and

(b) subsection (7) were omitted.

(7) Where a ship is liable to be detained under the preceding provisions of this regulation, the person detaining the ship must serve on the master of the ship a detention notice which—

(a) states the grounds for the detention; and

(b) requires the terms of the notice to be complied with until the ship is released by any person mentioned in section 284(1) of the 1995 Act.

(8) Where a ship is detained the person detaining the ship must—

(a) in the case of a United Kingdom ship, inform the Certifying Authority that issued the ship’s IBWM Certificate; or

(b) in the case of a ship which is not a United Kingdom ship, immediately inform the appropriate maritime authorities of the ship’s flag State or a diplomatic representative of that State.

(9) Where a ship is detained under paragraph (4), a person having power to detain the ship must immediately release the ship—

(a) if no proceedings for an offence under regulation 44(1)(a) (offences) are instituted within the period of seven days beginning with the day on which the ship is detained;

(b) if any proceedings for an offence under regulation 44(1)(a) (offences), instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted;

(c) if either—

(i) the sum of £30,000 is paid to the Secretary of State by way of security; or

(ii) security which, in the opinion of the Secretary of State, is satisfactory and is for an amount not less than £30,000 is given to the Secretary of State,

by or on behalf of the owner, manager, demise charterer or master;

(d) where the owner, manager, demise charterer or master is convicted of an offence under regulation 44(1)(a) (offences), if any costs or expenses ordered to be paid by that person, and any fine imposed on that person, have been paid; or

(e) if the release is ordered by a court or tribunal referred to in Article 292 of UNCLOS and any bond or other financial security ordered by such court or tribunal is posted.

(10) The Secretary of State must repay any sum paid in pursuance of paragraph (9)(c) or release any security so given—

(a) if no proceedings for an offence under regulation 44(1)(a) (offences) are instituted within the period of seven days beginning with the day on which the sum is paid; or

(b) if any proceedings for an offence under regulation 44(1)(a) (offences), instituted within that period, are concluded without the owner, manager, demise charterer or master being convicted.

(11) Where a sum has been paid, or security has been given, by any person in pursuance of paragraph (9)(c) and the owner, manager, demise charterer or master is convicted of an offence under regulation 44(1)(a) (offences), the sum so paid or the amount made available under the security must be applied as follows—

(a) first, in payment of any costs or expenses ordered by the court to be paid by the owner, manager, demise charterer or master; and

(b) next, in payment of any fine imposed by the court,

and any balance must be repaid to the first-mentioned person.

(12) Section 145 of the 1995 Act (interpretation of section 144) applies for the purposes of paragraphs (9) to (11) as if—

(a) references to the master or owner of the ship were references to the owner, manager, demise charterer or master; and

(b) references to an offence under section 131 (discharge of oil from ships into certain United Kingdom waters) were references to an offence under regulation 44(1)(a) (offences).

(1)

Section 284 was amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), Schedule 1, paragraph 5, and S.I. 2015/664, Schedule 4, Part 1, paragraph 27(1) and (15).