Shipping (Amendment No. 3) (Jersey) Law 201-
REPORT
Purpose of the Amendments
There are three unconnected amendments proposed for the Shipping (Jersey) Law 2002.
Carrying of Colours – Article 2, amending Article 6 of the principal Law
The provisions in Article 6 of the Shipping (Jersey) Law 2002 refer to ships flying a flag or ensign that they are not authorised to fly. The term, ‘colours’ is a generic one and it refers to national ensigns as well as flags containing a special badge or crest.
Flying the wrong flag can be a minor and unimportant mistake. It can however be a deliberate attempt to disguise the nationality of a ship. In June 2010 the States Assembly authorised Jersey-registered ships to fly the special Jersey ensign and it would now be an abuse of privilege if for example an owner flies the special Jersey ensign but has not registered his yacht in the Island.
At the moment, the authority to board a ship and if necessary confiscate colours rests with commissioned naval or military officers, customs officers or Consular officers. For local enforcement, the effect is to place a burden on customs officers alone and in practice is rarely exercised.
The draft law authorises the Registrar or other nominated officer to carry out this function. For overseas enforcement this could mean a yacht surveyor being appointed to deal with the matter much more appropriately than having to call on the assistance of a British Consular office.
Refusal to register or to renew registration of a Jersey Ship – Article 3, amending Article 12 of the principal Law
These are important powers for maintaining safety and environmental standards. Increasingly the power to refuse registration is also seen as important for ‘know your customer’ issues, ship security and the international reputation of a Flag State. However, the current legal provision is too narrowly drafted to be of use except in matters of ship safety.
There have been examples of attempted illegitimate use of British Ships registered in other Red Ensign jurisdictions. Some time ago, an Iranian Shipping Company attempted to register ships that were subject to UN Sanctions. It would cause considerable embarrassment and damage the good reputation of the Island if a Jersey-registered vessel were involved in crimes such as:-
- Terrorism – whether as a means to traffic terrorists, their weapons and equipment or if the vessel itself were used as a weapon;
- The carriage of illegal immigrants;
- Money laundering where the sale of the vessel is used as a vehicle for transferring money of dubious origin;
- Smuggling – contraband including weapons, precious metals and stones, drugs, duty-attracting goods such as alcohol and tobacco;
- Piracy/hijacking/hostage taking;
- Theft, fraud and deception – including tax evasion.
- Inappropriate/unsafe use – including sanctions busting, carrying dangerous but unrecorded goods;
- Espionage;
- Use by pressure groups;
- Environmental issues such as illegal dumping at sea and pollution;
- Port State Control – erroneous recording of detentions and deficiencies.
It is thus proposed that the Minister will either refuse initial registration of a ship suspected of being misused or failing that he should be able to remove a vessel from the Register were any misuse to come to light. Such action would be additional to any criminal sanction being taken against the owner or Master where appropriate.
Bermuda, the British Virgin Islands, Cayman Islands and the Isle of Man all have more robust powers than Jersey does within their equivalent legislation and the United Kingdom is now seeking to introduce its own amendments.
International Agreements – Article 4, amending Article 90 of the principal Law
Work is currently underway concerning legislation for Jersey to benefit from international agreements covering improved protection against oil pollution caused by ships in Jersey waters.
In discussion with the Law Draftsman’s and the Attorney General’s offices it has become apparent that the Regulation-making powers could be too restrictive and this amendment ensures that the States will be able to apply an international agreement in more effectively than at present.
European Convention on Human Rights
As part of reviewing the draft amendments proposed here, the Attorney General’s office undertook a Human Rights audit. Two issues were especially pertinent:
- If a person who was otherwise entitled to own a Jersey ship had registration refused or terminated the question arises whether this would deny him a civil right to carry on a commercial activity - In simple terms, the answer is that a person who cannot register a ship in Jersey is not barred from registering elsewhere except in certain narrow circumstances. This is because registers are nowadays largely international.
- If, however, the person was a local Jersey commercial ship owner who could not easily register his ship in another jurisdiction whilst still operating in Jersey waters, the issue arises whether he could appeal against the decision to refuse or terminate his registration. This is an unlikely event and the decision to refuse is likely to be a reasonable one given the examples listed above. Nevertheless, it has been confirmed that the person does have a right of appeal through judicial review and the Court would have full power of redress.
Article 16 of the Human Rights (Jersey) Law 2000 requires the Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention Rights (as defined by Article 1 of the Law).
In the view of the Economic Development Minister the provisions of this draft amendment are compatible with the Convention Rights.
Resources Implications
There are no additional staff, IT, financial, property or other resources requirements for the States.
Conclusions
These amendments are important in making sure that Jersey is genuinely committed to high standards of compliance and transparency in all maritime matters. The Island must protect its reputation for being able to have effective legal control over its fleet and is not unreasonably left open to criticism.
The States are recommended to endorse the changes.
End
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