Amendments to the Shipping (Jersey) Law 2002 in order to implement Chapter V of the Safety of Life at Sea Convention.

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A decision made (01/04/2009) regarding: Amendments to the Shipping (Jersey) Law 2002 in order to implement Chapter V of the Safety of Life at Sea Convention.

Decision Reference: MD-E-2009-0020
Decision Summary Title :	Amendments to the Shipping (Jersey) Law 2002		Date of Decision Summary:	02 February 2009
Decision Summary Author:	Maritime Compliance Manager		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Shipping Law Safety Amendment		Date of Written Report:	17 January 2009
Written Report Author:	Maritime Compliance Manager		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Amendments to the Shipping (Jersey) Law 2002 in order to implement Chapter V of the Safety of Life at Sea Convention.
Decision(s): The Minister approved the Shipping (Safety of Navigation) (Jersey) Regulations 200- and asked that the Regulations be lodged ‘au Greffe’ as soon as possible, with a view to securing the earliest possible date for debate.
Reason(s) for Decision: The States approved the principle to implement the Convention on 18 November 2003. As a consequence, the UK ratified the Convention on the Island’s behalf and since then two chapters out of twelve have been implemented locally, regarding local ship certification and port and ship security. Law drafting of the Order regarding the Safety of Navigation chapter is near completion and the Minister will shortly be asked to sign the Order. So as to give proper effect to the Order, two changes need to be made to the Primary Law. These changes will be made by the accompanying Regulations.
Resource Implications: There are no new financial, property, ICT or human resources issues arising.
Action required: Following the Ministerial Decision, the Regulations will be lodged for debate.
Signature: Senator A.J.H.Maclean		Position: Minister
Date Signed:		Date of Decision (If different from Date Signed):

Amendments to the Shipping (Jersey) Law 2002 in order to implement Chapter V of the Safety of Life at Sea Convention.

SHIPPING (SAFETY OF NAVIGATION) (JERSEY) REGULATIONS 200-

Report

Background

The States approved the principle to implement the Safety of Life at Sea (SOLAS) Convention on 18 November 2003. As a consequence, the UK ratified the Convention on the Island’s behalf and since then two chapters out of twelve have been implemented locally, regarding local ship certification and port and ship security.

Legislation to cover a third chapter, concerning Safety of Navigation, has been under development since that time. The Order through which it will be introduced is now in its final stages of preparation. However, for the Order to be properly effective two consequential changes are needed to the Primary Law.

Such changes can be made by States Regulations rather than by an amending Law, providing they are in consequence or anticipation of the Safety legislation. The changes are described in more detail below.

Consultation

The two specific changes that will be brought in by these Regulations have not been contentious and are necessary for the effectiveness of the Order. It is useful however at this stage for Members to be aware of the consultation that has taken place regarding the forthcoming Order.

External consultation on the detail to be covered by the Order took place in 2004-5 as part of the Red Tape Reform initiative in order to minimise any increase in regulation. At that time the basic limits of the Safety of Navigation package were agreed. Further public consultation took place between May and August 2008.

Shipping operators have either signalled consent or made no comment. This is because they are largely already compliant with the requirements. However, at their request a small improvement was made to the draft legislation. This will ensure that any exemption or equivalent to certain equipment requirements that the Flag State concerned has already recognised may also be accepted in Jersey at the discretion of the Minister.

Local boat owners have also been fully engaged. A number of issues have been raised and changes made. In particular, discussion has focussed on how best to apply requirements to carry radar reflectors and compasses as well as how far the legislation should follow its UK equivalent.

Opinions remain divided as some would seek greater alignment with the UK whilst others would like to see progress made towards a tougher regime which would include making compulsory some form of basic certificate of competence for local skippers.

In meeting the requirements of the Convention, the Minister has relatively little room for manoeuvre. However, Members will be glad to know that the Order will strike an appropriate balance: The bureaucracy, cost and enforcement issues surrounding compulsory certificates of competence for pleasure craft users make it unrealistic at this stage. On the other hand, making a compass or radar reflector a basic requirement are not matters that should be compromised and should be enforced.

Detail of the Proposed Changes

Regulation 1 amends Article 49 of the Law by inserting a new definition of ‘ship’. The reference to a vessel used in navigation is removed and replaced by a more far-reaching definition of its use for transportation on water. This change became necessary as a result of an attempted UK prosecution of a person following a collision between his personal water craft (PWC) or ‘jet ski’ and another PWC, causing serious injury. The defendant was found guilty but appealed. His appeal was upheld and to date the Appeal Court judgment that a PWC is not a vessel used in navigation stands 1 . Whilst Jersey law is not bound by such precedent it is clearly unwise to continue to use a definition that might mean owners of small craft, such as a jet ski, could escape prosecution.

The change of definition and the inclusion of the reference to Wing-in-Ground (WIG) craft also bring the definition in line with the Convention on International Regulations for Preventing Collisions at Sea, which the UK has also ratified on behalf of the Island.

Regulation 2 repeals article 56 of the Law regarding the duty to assist a ship in distress. It will be replaced by the relevant regulation in chapter V of the SOLAS Convention. This is necessary to take account of the requirement to inform those to whom assistance is being offered (or the search and rescue service) and to enter any reason for not offering assistance in the ship’s log book.

Without these additional requirements Jersey legislation would not be fully compliant with chapter V of the Convention.

Resource Implications

There are no new financial, manpower, property, ICT or other resource implications for the States of Jersey in these amendments.

Conclusions

These Regulations make small but vital differences to Safety of Life at Sea issues. They improve the effectiveness of the Shipping Law if a prosecution were found to be necessary and they help to ensure Jersey legislation is compliant with the relevant Convention requirements. They allow the Minister to make the necessary Order to provide effective implementation of the Safety of Navigation chapter of the SOLAS Convention and so move the Island a step closer to overall compliance with its international commitment in this area.

The Minister recommends the adoption of these Regulations.

1 R V Goodwin [2005] EWCA Crim 3184; [2006] 1 WLR