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Merchant Shipping (Amendment) Act,2002

Merchant Shipping (Amendment) Act, 2002

 

 

      No. 63 OF 2002
                         
An Act further to amend the Merchant Shipping Act, 1958, and the Major Port Trusts Act, 1963.

       BE it enacted by Parliament in the Fifty-third Year  of the Republic of India as follows:-

 

 


CHAPTER I
PRELIMINARY     

1.(1) This Act may be called the Merchant Shipping (Amendment) Act, 2002. 

          (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.  

 

 

 


Short title and commencement.

 

 

 


44 of 1958.


CHAPTER II

AMENDMENT OF THE MERCHANT SHIPPING ACT, 1958

 

      2. For section 76 of the Merchant Shipping Act, 1958 (hereinafter referred to as the principal Act), the following section shall be substituted, namely:-  

         “76. (1) Every Indian ship, when going to sea from any port or place, shall be provided with officers duly certificated under this Act in accordance with  such manning scales as may be prescribed:

             Provided that the Central Government may prescribe different manning scales for different types of ships.  

(2) Every ship, whether at sea or in any port or place, shall engage such number of persons and with such qualifications as may be prescribed for maintaining  watches.”
 

 

 

 

Substitution of new section for section 76.

Certificates of competency to be held by officers of ships

Amendment of section 87.

      3. In section 87 of the principal Act, in sub-section (2), in clause (b), for the words “by a ship”, the words “by different types of ships” shall be substituted.

 

Amendment of section 95.

 

     4. In section 95 of the principal Act,-

     (i) in sub-section (1), for clauses (a) and (b), the following clauses shall be substituted, namely:- 

“(a) to issue licence, to regulate and control the recruitment and placement service, and to – 

(i) ensure that no fees or other charges for recruitment or placement of seafarers are  borne directly or indirectly or in whole or in part, by the seafarers;

(ii) ensure that adequate machinery and procedures exist for the investigation, if necessary, of complaints concerning the activities of recruitment and placement services; and 

(iii) to maintain registers of seamen in respect of the categories of seamen.”; 

(ii) sub-section (2) shall be omitted; 

(iii) in sub-section (3), for clauses (b) and (c), the following clauses shall be substituted, namely:- 

      “(b) the levy and collection of such fees as may be specified for the issue of licences to recruitment and placement services, renewal of such licences and services to be rendered by the seamen’s employment office;    

(c) the issue of directions by the Central Government to any seamen’s employment office or any recruitment and placement service with reference to the  exercise of any of its powers; “; 

(ca) the conditions under which the recruitment and placement service to recruit and place seafarers’ abroad; 

(cb) circumstances and conditions under which licence to be suspended or withdrawn; 

(cc) conditions under which seafarers’ personal data to be processed by the recruitment and placement services including the collection, storage, combination and communication of such data to third parties;”; 

(iv) after sub-section (3), the following Explanation shall be inserted, namely:– 

 ‘Explanation.- For the purposes of this section,– 

(a) “recruitment and placement service” means any person, company, institution, agency or other organisation, in the public or private sector which is engaged in recruiting seafarers on behalf of employers or placing seafarers with employers;  

(b) “seafarer” means any person who fulfils the conditions to be employed or engaged in any capacity on board a sea-going ship other than a government ship used for military or non-commercial purposes.’.

 

 

      5. For section 97 of the principal Act, the following section shall be substituted, namely:- 

 

 “97. (1) A person or company or organisation including a union purporting to represent the interests of seamen shall not demand or receive either directly or indirectly, from any seamen or person seeking employment as seamen or any person on his behalf, any remuneration or donation or fees or compulsory subscription of any kind attributable from such seamen or persons’ employment as seamen, other than the fees authorised by this Act. 

(2) It shall be the duty of the company employing or proposing to employ persons as seamen to ensure that no money has been demanded or received by any person or company or organisation including the union purporting to represent the interests of seamen by way of any remuneration or donation or fees or compulsory subscription of any kind attributable to employment of such  persons as seamen.”.
 

Substitution of new section for section 97.

 
Receipt of remuneration, donation, fees, etc., from seamen for shipping them prohibited.

 

 

 

       6. After section 97 of the principal Act, the following section shall be inserted, namely:–.
 

        “97A. There shall be no discrimination   between seamen ,-   

 

(a) on the ground of their membership or lack of membership in any particular union purporting to represent the interests of seamen and membership in such union shall not be pre-requisite condition; 

(b) on the basis of training institute from where they obtained training or place of issue of their continuous discharge certificates,  

for their recruitment and engagement on board  any ship.”.

Insertion of new section 97A.

Prohibition against discrimination.

 

      7. For the sub-heading “Safety certificates, safety equipment certificates, safety radio telegraphy certificates, safety radio telephony certificates, exemption certificates, etc.” above section 299 of the principal Act, the following sub-heading shall be substituted, namely:- 

 “Safety certificates, safety equipment certificates, safety radio certificates, exemption certificates, etc.”. 

Substitution of new sub-heading.

 

 

     8. In section 299 of the principal Act,-   

(a) in sub-section (1),- 

      (i) for the words “radio telegraphy or radio telephony installation and radio direction finder”, the words “radio installation” shall be substituted; 

      (ii) after the words “safety certificate”, the words “and record of equipment for passenger ship certificate” shall be added at the end; 

(b) in  sub-section (3), the words “or a pilgrim ship” shall be omitted;         

(c) after sub-section (3), the following sub-section shall be inserted, namely:- 

“(4) The Certificates issued under sub-sections (1) and (2), sub-sections (1) and (2) of section 300 and section 301   shall be supplemented by a record of equipment in the prescribed form.”. 

Amendment of section 299.

 

    9. In section 299A of the principal Act,- 

(a)    in sub-section (1)- 

(i) for the words “the Central Government”, the words “the Central Government or any person authorised by it  in this behalf “ shall be substituted; 

        (ii) for the words “the Central Government ”, the words “the Central Government or the authorised person ” shall be substituted;

 

       (b) in sub-section (2),-  

(i) for the words “of the Act and the Central Government”, the words “and the Central Government or any person authorised by it in this behalf” shall be substituted; 

        (ii) for the words “ the Central Government”, the words “the Central Government or the authorised  person ” shall be substituted; 

(c)  after sub-section (2), the following sub-section shall be inserted, namely:- 

 “(3) The owner of every ship in respect of which a certificate is issued under sub-section (1) or sub-section (2), sub-section (1) or sub-section (2) of section 300 or section 301 shall, so long as the certificate remains in force, cause the ship to be surveyed in the manner as specified in the Safety Convention or in cases where such specified manner is not applicable, in such manner as the rules made in this behalf prescribe, as the case may be.”. 

Amendment of section 299A.

 

 

      10. For section 300 of the principal Act, the following section shall be substituted, namely:–
 

“300. (1) If in respect of an Indian cargo ship the Central Government or any person authorised by it in this behalf is satisfied that the ship complies with the provisions of this Act and the rules made there under relating to life saving and fire appliances applicable to such ship and is provided with lights and shapes and the means of making fog and distress signals required by the collision regulations, the Central Government or  the authorised person may issue in respect of the ship- 

(a) if the ship is of five hundred tons gross or more and performs international voyages, a certificate in the prescribed form to be called a cargo ship safety equipment certificate;     

            (b) in other cases, a certificate in the prescribed form to             be called a cargo ship equipment certificate.              

               (2) Where, in respect of a ship referred to in sub-section (1), there is in force an exemption certificate granted under section 302 and the Central Government or any person authorised by it in this behalf is satisfied that the ship complies with all the requirements referred to in that sub-section other than those from which the ship is exempt under that certificate, the Central Government or the authorised person may issue a certificate in the prescribed form to be called a qualified cargo ship safety equipment or a qualified cargo ship equipment certificate, as the case may be.
 

Substitution of new section for section 300.

Cargo ship safety equipment and cargo ship equipment certificates for ships other than passenger ship.

Substitution of new section for section 301.

Cargo ship safety radio certificate and qualified cargo ship safety radio certificate, etc.

 

 

      11. For section 301 of the principal Act, the following section shall be substituted, namely:-

 

       “301. The owner or master of any Indian cargo ship, which is required by the provisions of section 291 to be provided with a radio installation shall, if the Central Government or any  person authorised by it  in this behalf is satisfied that the ship complies with all the provisions of this Act and the rules made thereunder relating to radio installation applicable to such ship, receive- 

       (a) in the case of a ship of  three hundred tons gross or more, a certificate in the prescribed form to be called a cargo ship safety radio certificate; 

      (b) in the case of a ship of  three hundred tons gross or more but less than three thousand  tons gross performing voyages only between ports or places in India, a certificate in the prescribed form to be called a qualified cargo ship safety radio certificate; and 

      (c) in other cases a certificate in the prescribed form to be called a cargo ship radio certificate.”.     
 

 

 

 

 

      12. For section 303 of the principal Act, the following section shall be substituted, namely:–

               

“303. (1) A passengers ship safety certificate, a qualified passenger ship safety certificate, a special trade passenger ship safety certificate and a special trade passenger ship space certificate issued under this Part shall be in force for a period of twelve months from the date of its issue or for such shorter period as may be specified in the certificate. 

(2) A cargo ship safety equipment certificate, a qualified cargo ship safety equipment certificate, a cargo ship equipment certificate, a qualified cargo ship equipment certificate, a cargo ship safety construction certificate, a qualified cargo ship safety construction certificate, a cargo ship construction certificate, a qualified cargo ship construction certificate, a cargo ship safety radio certificate, a qualified cargo ship safety radio certificate and a cargo ship radio certificate issued under this Part shall be in force for a period of five years from the date of its issue or for such shorter period as may be specified in the certificate. 

(3) An exemption certificate issued under section 302 shall be in force for the period for which the certificate to which it relates remains in force or for such shorter period as may be specified in the exemption certificate. 

(4) Notwithstanding the requirements of sub-sections (1), (2) and (3) when the renewal survey is completed within three months before the expiry date of the existing certificate, the new certificate may be valid from the date of completion of the renewal survey,- 

(a) for a passenger ship, a date not exceeding twelve months;  and

       (b) for a cargo ship, a date not exceeding five years,from the date of expiry of the existing  certificate. 

(5) The Central Government or any person authorised by it in this behalf may grant an extension of any certificate issued under this Part in respect of an Indian ship- 

(a) where the ship is not in a port in which it is to be surveyed, on the date when the certificate would, but for the extension, have expired, for such period not  exceeding three months from the said date as may be sufficient to enable the ship to complete its voyage to the port in which it is to be surveyed; 

(b) where the ship is engaged on a short voyage and whose certificate has not been extended under clause (a), for a period up to one month from the date when the certificate would have expired: 

 Provided that any extension granted under clause (a) shall cease to be operative upon the ship’s arrival at the port referred to in that clause: 

Provided further that no extension shall be granted under clause (b) in respect of a certificate extended under clause (a). 

     (6) Where an existing certificate of a ship has been extended under sub-section (5) and when renewal survey is completed, the new certificate shall be valid up to, – 

(a) for a passenger ship, a date not exceeding twelvemonths; or  

(b) for a cargo ship, a date not exceeding five years,         from the date of expiry of the existing certificate. 

(7) In special circumstances where the Central Government so determines, a new certificate, need not be dated from the date of expiry of the existing certificate, shall be valid up to,– 

        (a) for a passenger ship, a date not exceeding twelve months;               

             (b) for a cargo ship, a date not exceeding five years, from the date of completion of the renewal survey. 

      (8) Where a certificate referred to in sub-section (2) is issued for a period of less than five years, the Central Government or any  person authorised by it in this behalf may extend the validity of the certificate beyond the expiry date to the maximum period specified in sub-section (2)  if appropriate surveys, applicable when a certificate is issued for a period of five years, are carried out. 

(9) If a renewal survey has been completed and a new certificate cannot be issued or placed on board the ship before the expiry date of the existing certificate, the Central Government or any person authorised by it in this behalf may endorse the existing certificate and such certificate shall be in force for a further period which shall not exceed five months from the expiry date of the existing certificate. 

     (10) If annual, intermediate or  periodical surveys in the manner as specified in the Safety Convention or in cases where such specified manner is not applicable, in such manner as the rules made in this behalf prescribe, as the case may be, are completed before the period stipulated therefor, then- 

(a) the anniversary date mentioned on the relevant certificate shall be amended by endorsement to a date which shall not be more then three months later than the date on which the survey was completed; 

(b) the subsequent surveys  shall be completed at the stipulated intervals using the new anniversary date so endorsed; 

(c) the expiry date may remain unchanged provided one or more annual, intermediate or periodical surveys, as the case may be, are carried out so that the maximum stipulated intervals between the surveys are not exceeded. 

 (11) A certificate issued under section 299A, section 300 or section 301 shall cease to be valid,- 

(a) if the relevant surveys specified in the Safety Convention or in cases where such specified manner is not applicable, in such manner as the rules made in this behalf prescribe, as the case may be, are not completed within the stipulated  period; 

          (b) if the certificate is not endorsed; or 

                       (c) if the ship ceases to be an Indian ship.”.

Substitution of new section for section 303.


Duration of certificates.

Amendment of section 307.

 

 

    13. In section 307 of the principal Act,-   

       (a) in sub-section (2), in clause (b), for the words “ radio telegraphy certificate or a cargo ship safety radio telephony certificate”, the words “ radio certificate” shall be substituted; 

(b) for sub-section (2A), the following sub-section shall be substituted, namely:- 

“(2A) No sea-going Indian cargo ship, less than five hundred tons gross, shall proceed on a voyage from any port or place in India to any port or place in India or to any port or place outside India unless there is in force in respect of the ship a cargo ship construction certificate issued under section 299A and  a cargo ship equipment certificate issued under section 300 and, 

                           (i) a cargo ship safety radio certificate if the ship is three hundred tons gross or more;   

                          (ii) a qualified cargo ship safety radio certificate if the ship is operating within ports or places in India and is of  three hundred to five hundred tons gross; or   

                          (iii) a cargo ship radio certificate if the ship is less than three hundred tons gross, issued under section 301.”; 

(c) in sub-section (3),- 

(i)                   (i) in clause (a), for the words “equipment certificate issued under section 300”, the words “safety construction certificate or  cargo ship construction certificate issued under section 299A” shall be substituted; 

(ii)                   (ii) in clause (b), in the opening portion, after the word “a”, the words “cargo ship equipment certificate or ” shall be inserted; 

(iii)            (iii) in clause (c), for the words “radio telegraphy certificate or a cargo ship radio telephony certificate”, the words and figures “safety radio certificate or a qualified cargo ship safety radio certificate,  if the ship operates between ports or places in India and is between five hundred to three thousand tons gross,” shall be substituted. 

 

Amendment of section 317.

 

 

      14. In section 317 of the principal Act,-  

          (i) in sub-section (1), after the existing proviso, the following proviso shall be inserted, namely:–  

       “Provided further that when the renewal survey for the purpose of  issue of certificate under sub-section (1) of section 316 is completed within three months before the expiry date of the existing certificate, the new certificate may be valid from the date of completion of the renewal survey to a date not exceeding five years from the date of expiry of the existing certificate.”;  

         (ii) in sub-section (3), for the words “shall cease to be valid when the ship ceases to be an Indian ship.”, the words, brackets and figure “shall cease to be valid when-                

       (a) the ship ceases to be an Indian ship; 

       (b) material alterations such as would necessitate  assignment of an increased free board have taken place in the hull or superstructure of the ship;    

       (c) the fittings and appliances for the protection of openings, the guard rails, freeing ports, or the means of access to the crew’s quarters are not maintained in an effective condition; 

                       (d) the structural strength of the ship is lowered to such an extent as to render the ship unsafe; 

                       (e) the certificate is not endorsed to prove that the ship has been surveyed as required under sub-section (5); or 

                        (f) the marking of the deck line and load lines on the ship have not been properly maintained; 

               (iii)  sub-section (4) shall be omitted; 

     (iv) in sub-section (5), for the words beginning with the words “once at least in each year” and ending with the words “caused to be so surveyed.”, the following words, brackets and figures  shall be substituted, namely:- 

 “and the certificate endorsed once at least in each year during the period  commencing three months before and ending three months after the anniversary date of expiry of the certificate for the purpose of  ensuring that- 

        (a) alterations have not been made to the hull or superstructure which would affect the calculations determining the position of the load line; 

        (b) the fittings and the appliances for the protection of openings, the guard rails, freeing ports, or the means of access to the crew’s  quarters are maintained in an effective condition; 

        (c) the free board marks are correctly and permanently marked; and 

        (d) the stability information required under section 298 is readily available on board.”; 

               (v) for sub-sections (6) and (7), the following sub-sections shall be substituted, namely:- 

                  “(6) If an annual survey is completed before the period specified in sub-section (5) then,- 

              (a) the anniversary date mentioned on the certificate shall be amended by endorsement to a date which shall not be more than three months later than the date on which the survey was completed; 

               (b) the subsequent annual survey required by sub-section (5) shall be completed using the new anniversary date; 

                (c) the expiry date of the certificate may remain unchanged provided one or more annual survey is carried out so that the maximum interval between the surveys specified under sub-section (5) is not exceeded. 

       (7) If a certificate under sub-section (1) of section 316 is issued for a period of less than five years, the Central Government or any person authorised by it in this behalf, may extend the validity of the certificate beyond the expiry date to a maximum period specified in sub-section (1): 

       Provided that annual surveys referred to in sub-section (5) are carried out as may be appropriate. 

     (7A) If a ship at the time when a certificate expires is not in a port at which it is to be surveyed, the Central Government or any person authorised by it in this behalf may extend the period of validity of the certificate, but this extension shall be granted only for the purpose of allowing the ship to complete the voyage to the port in which it is to be surveyed and also only in cases where it appears proper and reasonable to do so:

Provided that  no certificate shall be extended for a period longer than three months and the ship to which an extension is granted shall on its arrival at the port in which it is to be surveyed leave that port without having a new certificate:

Provided further that when the renewal survey is completed, the new certificate shall be valid to a date not exceeding five years from the date of expiry of the existing certificate. 

     (7B) A certificate, issued to a ship engaged in short voyage which has not been extended under sub-section (7A), may be extended by the Central Government or any person authorised by it in this behalf for a period up to one month from the date of expiry when the renewal survey is completed, the new certificate shall be valid up to a date not exceeding five years from the date of expiry of the existing certificate. 

             (7C) In special circumstances where the Central Government so determines a new certificate, need not be dated from the date of expiry of the existing certificate, shall be valid up to a date not exceeding five years from the date of completion of the renewal survey.”.
 

 

 

         15. In section 344 of the principal Act, in sub-section (2), for clause (a), the following clauses shall be substituted, namely:-

       “(a) the form of any certificate and record of equipment issued under this Part;      

       (aa) the manner of surveys required to be made in respect of ships to which the manner of surveys specified in the Safety Convention is not applicable;”. 
 

Amendment of section 344.
 

16. In section 352 of the principal Act,- 

         (i) clause (b) shall be omitted; 

                 (ii) after clause (g), the following clauses shall be inserted, namely:– 

‘(h) “Convention” means the Convention on Limitation of liability for Maritime Claims, 1976 as amended from time to time;  

 (i) “salvor” means any person rendering services in direct connection with salvage operations. 

Explanation.–For the purpose of clause (i), “salvage operations includes,- 

       (a) the raising, removal, destruction or the rendering a ship harmless which is sunk, wrecked, stranded or abandoned including anything that is or has been on board such ship; 

       (b) removal, destruction or rendering the cargo of a ship harmless, and  

       (c) measures taken to avert or minimise loss to a ship or its cargo or both; 

(j) “ship owner” means owner, charterer, manager and operator of a sea going ship; 

(k) “Special Drawing Rights” means Special Drawing Rights as determined by the International Monetary Fund.’.
 

Amendment of section 352

 Substitution of new section for section 352A.

 Limitation of liability for damages in respect of certain claims.

 

            17. For section 352A of the principal Act, the following section shall be substituted, namely:–

 

“352A.  (1) The ship owner, salvor, any person for whose act, neglect or default the ship owner or salvor, as the case may be, is responsible, and an insurer of liability for claims to the same extent as the assured himself, may limit his liability as provided under section 352B in respect of,-  

(a) claims arising from loss of life of or personal injury to, or loss of or damage to, property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connection with the operation of the ship; 

(b) claims arising out of loss resulting from delay in the carriage by sea of cargo and passengers or their luggage; 

         (c) claims arising out of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship  or salvage operations; 

               (d) claims of a person other than the person liable in respect of measures taken in order to avert or minimise loss for which the person liable may limit his liability in accordance with the provisions of the Convention or the rules made in this behalf prescribe, as the case may be, and such further loss caused by such measures; 

       (e) claims for the loss of life or personal injury to passengers of a ship brought by or on behalf of any person ,- 

(i) under the contract of passenger carriage; or       

(ii) who, with the consent of the carrier, is accompanying a vehicle for live animals   which are covered by a contract for the carriage of goods,

            carried in that ship: 

          Provided that the limits for passengers claim specified in the rules made under this Part shall not be applicable to the passengers carried in and around the coast of India in respect of whom separate limits shall be prescribed. 

(2) Claims set out in sub-section (1) shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise:  

Provided that claims set out in clause (d) of sub-section (1) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable. 

          (3) Nothing in this section shall apply to- 

(a) claims for salvage or contribution in general    average; 

(b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, 1992 as amended from time to time; 

        (c) claims by servants of the ship owner or salvor whose duties are connected with the  ship or the  salvage operations,  including claims of their heirs, dependents or other persons entitled to make such claims, if under the law governing the contract of service between the ship owner or salvor and such servants  of the ship owner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in accordance with the provision of the Convention or the rules made under this Part prescribe; 

        (d) claims subject to any international Convention or any law for the time being in force in India governing or prohibiting limitation of liability for nuclear damage; 

(e) claims against the ship owner of a nuclear ship for nuclear damage. 

Explanation 1.-For the purpose of this section the act of involving limitation of liability shall not constitute an admission of liability. 

Explanation 2.-For the purpose of this Part the liability of a ship owner shall include liability in an action brought against the ship herself.”.
 

 

 

 

 

 

 Substitution of new section for section 352B.

Limitation of liability.

 

 

       18. For section 352B of the principal Act, the following section shall be substituted, namely:- 
 

 “352B. The amount to which any person referred to in sub-section (1) of section 352A may limit his liability in accordance with the provisions of the Convention and in cases where the provisions of the Convention are not applicable, the limit shall be in accordance with the rules made in this behalf prescribe.”.

 

 

 

      19. In section 352C of the principal Act,- 

(a) in the marginal heading the words “against owner” shall be omitted; 

(b) for sub-section (1), the following sub-section shall be substituted, namely:- 

“(1)  Where any liability is alleged to have been incurred by a person referred to in sub-section (1) of section 352A in respect of claims arising out of an occurrence, and legal  proceedings are instituted in respect of claims subject to limitation, then such person may apply to the High Court for the setting up of a limitation Fund for the total sum representing the amounts set out in the Convention or the  rules made in this behalf  under this Part applicable to claims for which that person may be liable together with interest thereon from the date of occurrence giving rise to the liability until the date of the constitution of the Fund.”; 

(c) in sub-section (2), for the words beginning with the words “or furnish” and ending with the words “or secured”, the words “or produce a  guarantee acceptable or produce a bank guarantee  in respect of the amount as in the opinion of the High Court is satisfactory and the amount so deposited or guarantee so given” shall be substituted; 

(d) for sub-sections (5) and (6), the following sub-sections shall be substituted, namely :- 

                       “(5) Where the person referred to in sub-section (1) or his insurer establishes that he has paid in whole or in part any claims in respect of which he can limit his liability under this Part, the High Court shall place him in the same  position and to the same extent in relation to the Fund as the claimant whose claim has been paid and allow to acquire by subrogation the rights which the person so compensated would have enjoyed under this Part:               

                      Provided that the right of subrogation provided for in this sub-section may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they might have paid  to that extent if prescribed by the rules made in this behalf under this Part. 

         (6) Where the person liable or any other person has established that he may at a later date be required  to pay in whole or in part, any of the claims under this Part, which could be settled from the Fund, the High Court may notwithstanding the foregoing provisions of this section order that a sufficient sum may be provisionally set aside for the purpose to enable the person to enforce his claim against the Fund at a later date in accordance with the provisions of sub-section (5).”.
 

Amendment of section 352C.

Amendment of section 352D.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

      20. In section 352D of the principal Act,- 

               (i) in sub-section (5), for clause (a), the following clause shall be substituted, namely:-          

                ‘(a) “Convention country” means a country in which the Convention on Limitation of Liability for Maritime Claims, 1976 as amended from time to time  is for the time being in force;”; 

(ii) after sub-section (5), the following sub-sections shall be inserted, namely:– 

       “(6) Notwithstanding anything contained in sub-sections (1) to (4), the vessels or property referred in sub-section (1) shall be ordered to be released if the limitation Fund has been constituted,- 

      (a) in the port where the occurrence took place, or, if it took place out of port, in the first  port of call thereafter;  

      (b) in the port of disembarkation in respect of claims for loss of life or personal injury; or 

       (c) in the port of discharge in respect of damage to cargo. 

       (7) The provision of sub-section (5) shall apply only if the claimant brings a claim against the limitation Fund before the High Court administering the Fund and the Fund is actually available and freely transferable in respect of that claim.”. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 21. For section 352E of the principal Act, the following section shall be substituted, namely:– 
 

      “352E. (1) The provisions of this Part shall apply whenever any person referred to in sub-section (1) of section 352A seeks to limit his liability before the Court or seeks to procure the release of a ship or other property or the discharge of any guarantee given within the Indian jurisdiction but any person referred to in sub-section (1) of section 352A who at the time when the provisions under this Part are invoked before any Court in India does not have his habitual residence in India or does not have his principal place of business in India or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the Indian Flag is wholly excluded from the provisions of this Part. 

      (2) The provisions of this Part shall not be applicable to the following vessels unless the Central Government, by notification, specify otherwise,- 

      (a) ships intended for navigation on or around coast of India and registered as coastal vessels under the provisions of this Act; 

      (b) ships less than three hundred tons; 

      (c) air-cushion vehicles; 

      (d) floating platforms constructed for the purpose of exploring or exploiting the natural resources of the sea-bed or the subsoil thereof.”.
 

Substitution of new section for section 352E.

 Scope of application.

 

 

      22. After section 352F of the principal Act, the following section shall be inserted, namely:- 


       “352FA. The Central Government may make rules to carry out the purposes of this Part:

 

 Provided that the rules under this Part shall be made having regard to the provisions of the Convention.”.

Insertion of new section 352FA.

 Power to make rules in respect of matters in this Part.

 

      23. For section 352H of the principal Act, the following section shall be substituted, namely:- 

        ‘352H. In this Part, unless the context otherwise              requires,- 

(a) “incident” means any occurrence, or series of    occurrences having the same origin, which causes  pollution damage or creates a grave and imminent threat of causing such damage; 

(b) “oil” means any persistent hydro carbon mineral oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil whether carried on board a ship as cargo or in the  bunker of such ship; 

            (c) “owner” means- 

            (i) the person registered as owner of the ship;   

                         (ii) in the absence of registration, the person owning the ship; or 

                         (iii) in the case of a ship owned by a foreign State, the person registered in that State as operator of the ship; 

          (d)  “pollution damage” means,- 

       (i) loss or damage caused outside the ship by contamination resulting from escape or discharge of oil from the ship, wherever such escape or discharge occurs, provided that compensation for impairment of the environment other than losses or profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; 

 (ii) the costs of preventive measures and further loss or damage caused by such measures; 

 (e) “preventive measures” means any reasonable measures taken by any person after the incident to prevent or minimize pollution damage; 

(f) “ship” means any seagoing vessel and sea borne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as  cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard;’; 

(g) “person” means any individual or partnership or any public or private body, whether corporate or not, including a state or any of its constituent sub-divisions; 

(h)  “State of the ship’s registry”, in relation to registered or unregistered ships, means the State of registration of the ship, or as the case may be, the State whose flag the ship is flying; 

(i) “Liability Convention” means the International Convention on Civil Liability for Oil Pollution Damage, 1992 as amended from time to time.’.

 

 
Substitution of new section for section 352H.

Definitions.

 

 

 

     24. In section 352I of the principal Act,- 

      (a) for sub-section (4),  the following sub-section shall be substituted, namely:-

      “(4) When any incident involving two or more ships occurs and pollution damage results there from, the owners of all the ships concerned, unless exonerated under sub-section (3), shall be jointly and severally liable for such damage which is not reasonably separable.”; 

       (b) for sub-section (6), the following sub-section shall be substituted, namely:- 

              “(6) Without prejudice to any right of recourse of the owner against third parties, no claim for compensation for pollution damage may be made against   

 (a) the servants or agents of the owner or the members of the crew;  

 (b) the pilot or any other person who, without being a member of the crew,     renders services for the ship;  

 (c) any charterer (howsoever described, including a bare-boat charterer), manager or operator of the ship; 

  (d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;   

 (e) any person taking preventive measures;   

 (f) all servants or agents of persons mentioned in clauses (c), (d) and (e), 

unless the incident causing such damage occurred as a result of their personal act or omission, committed  or omitted with the intent to cause such damage, or recklessly  and with knowledge that such damage would probably result.”.

Amendment of section 352 I.

Substitution of new section for section 352J.

Limitation of liability.

 

 

     25. For section 352J of the principal Act, the following section shall be substituted, namely:–

 

“352J.(1) The owner shall be entitled to limit his liability under this Part, in respect of any one or more incident, as may be prescribed.   

(2) The owner shall not be entitled to limit his liability if it is proved that the incident causing pollution damage occurred as a result of his personal act or omission, committed or omitted with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.”.
 

 

 Amendment of section 352R.

 

      26. In 352R of the principal Act, after clause (b), the following clause shall be inserted, namely:- 

       “(c) the  limits of liability of owner in respect of one or more incident of pollution damage or other requirements having regard to the provisions of the Liability Convention.”.
 

 

Insertion of new Part XC.

 

 

Definitions.

 

       27. After Part XB of the principal Act, the following Part shall be inserted, namely:- 

‘PART XC 

INTERNATIONAL OIL POLLUTION COMPENSATION FUND 

      352S. In this Part, unless the context otherwise requires,- 

(a) ”contributing oil” means crude oil and fuel oil. 

Explanation.-For the purposes of this clause,– 

(i) “crude oil” means any liquid hydro carbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation and includes crude oils from which certain distillate fractions have been removed or to which certain distillate fractions have been added, 

(ii) “fuel oil” means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the ‘American Society for Testing and Materials’ Specification for Number Four Fuel Oil (Designation D 396-69)’, or heavier; 

(b)“discharge or escape”, in relation to pollution damage, means the discharge or escape of oil carried by the ship; 

(c) “Fund” means the International Oil Pollution Compensation Fund established by the Fund Convention; 

        (d) “Fund Convention” means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 as amended form time to time ; 

(e) “Fund Convention country” means a country in which the Fund Convention is for the time being in force; 

(f) “guarantor” means any person providing insurance or other financial security to cover the owner’s liability; 

(g) “terminal installation” means any  site for the storage of oil in bulk which is capable of receiving oil from waterborne transportation, including any facility situated off-shore and linked to such site; 

(h) “ton”, in relation to oil, means a metric ton.
 

 

Contribution to the Fund.

 

 

                352T. (1) Contributions to the Fund in respect of contributing oil carried by sea to ports or terminal installations in India, shall be payable in accordance with Articles 10 and 12 of the Fund Convention.  

               (2) Sub-section (1) shall apply whether or not the contributing oil is imported, and notwithstanding that contributions are payable to the Fund in respect of carriage of the same contributing oil on a previous voyage. 

(3) Contributions shall also be payable to the Fund in respect of contributing oil when first received in any installation in India after having been carried by sea and discharged in a port or terminal installation in a country which is not a Fund Convention country. 

(4) The person liable to pay contributions to the Fund shall be,- 

           (a) in case of contributing oil which is being imported into India, the importer; or  

           (b) in any other case, the person by whom the oil is received in India. 

(5) A person shall not be liable to pay contributions to the Fund in respect of the contributing oil imported or received by him in any year if the quantity of contributing oil so imported or received in the year does not exceed one hundred and fifty thousand tones or as may be specified from time to time by the Fund Convention. 

 

Contributions payable by persons to the Fund.

352U. (1) The contributions payable to the Fund by a person for any year shall be,-  

                 (a) such amount as may be determined by the Assembly of the Fund under Articles 10 and 12 of the Fund Convention and notified to him by the Fund; 

                  (b) in such instalments, becoming due at such dates, as may be notified to him,   

and if any amount due from such person  remains unpaid after the date on which it became due, it shall from that due date bear interest at a rate determined by the said Assembly until it is paid. 

(2) The Central Government may require persons, who are or may be liable to pay contributions to the Fund under section 352T, to give financial security for payment of contributions to that Government or   the Fund.

 

Power to call for information.

 

 

         352V. (1) The Central Government may, for the purpose of transmitting to the Fund the names and addresses of the persons who under section 352T are liable to make contributions to the Fund every year and the quantity of contributing oil in respect of which they are so liable, by notice require any such person to furnish such information as may be specified therein. 

        (2) A notice under this section may require a person to give such information as may be required to ascertain whether he is liable to contribute to the Fund.  

(3) A notice under this section may specify the manner in which, and the time within which, it is to be complied with. 

 (4) In proceedings by the Fund against any person to recover any amount due under section 352T, particulars contained in any list transmitted by the Central Government to the Fund shall, so far as those particulars are based on information obtained under this section, be admissible as evidence of the facts stated in the list; and so far as particulars which are so admissible are based on information given by the person against whom the proceedings are brought, those particulars shall be presumed to be accurate until the contrary is proved. 

      (5) No person shall disclose any information which has been furnished to or obtained by him under this section unless the disclosure is made,- 

                            (a) with the consent of the person from whom the information was obtained; 

                         (b) in connection with the compliance of this section; 

                          (c) for the purpose of any legal proceedings arising out of this section or of any report of such proceedings. 

(6) A person who,-             

                   (a) refuses or wilfully neglects to comply with a notice under this section, or              

          (b) makes, while furnishing any information in compliance with a notice under this section, any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, 

shall be guilty of an offence punishable under this Act.

 

 

 

 

      352W.   The Fund shall be liable for pollution damage in accordance with the provisions of the Fund Convention if any person suffering pollution damage has been unable to obtain full and adequate compensation for the damage under the terms of the Liability Convention on any of the grounds specified in Article 4 of the Fund Convention. 
 

Liability of the Fund.

 

 

      352X. (1) Any action for a claim against the Fund for compensation under section 352W shall be brought before the High Court. 

(2) The Fund shall have the right to intervene as a party to any legal proceedings instituted in the High Court against the owner or his guarantor. 

         (3) Where an action for compensation for pollution damage has been brought against the owner or his guarantor before the High Court each party to the proceedings may notify the Fund of the proceedings. 

         (4) Where such notice of proceedings has been given to the Fund, any judgment given in the proceedings shall, after it has become final and enforceable, become binding upon the Fund in the sense that the facts and evidence in that judgment may not be disputed by the Fund on the ground that it has not intervened in the proceedings.

Jurisdiction of Courts.

Extinguishment of claims.

          352Y. Notwithstanding anything contained in any other law for the time being in force no action to enforce a claim against the Fund under this Part shall be entertained by a High Court in India unless-                   

       (a)  the action to enforce is commenced; or 

      (b) notice of action to enforce a claim against the owner or his guarantor in respect of the same pollution damage is given to the Fund, 

within three years from the date when the damage occurred: 

      Provided that in no case an action to enforce a claim shall be brought after six years from the date of the incident that caused such damage.
 

 

Subrogation and right of recourse.

      352Z. In respect of any sum paid by a public authority in India or the Fund, as the case may be, as compensation for pollution damage, that authority shall acquire by subrogation any rights which the person so compensated would have enjoyed under the Fund Convention.
 

 

Power to make rules.

     352ZA.  The Central Government may make such rules as may be required to carry out the purposes of the Fund Convention.’.
 

 

 

 


Amendment of section 116 of Act 38 of 1963. 


44 of 1958.

 

CHAPTER III

 AMENDMENT OF MAJOR PORT TRUSTS ACT, 1963

28.  In section 116 of the Major Port Trusts Act, 1963, for the portion beginning with the words “such recovery, by distress and sale,” and ending with the words “attributable to the order, act or improper omission of such employee”, the words, letters and figures “such recovery in accordance with the provisions of 

Part XA of the Merchant Shipping Act, 1958” shall be substituted.

 

 

STATEMENT OF OBJECTS AND REASONS 

            The Merchant Shipping Act, 1958 governs matters relating to shipping in India. The main objective of the Act is to ensure development and efficient maintenance of the Indian mercantile marine. The Act has been amended from time to time in the light of experience gained in its implementation and also to give effect to the provisions of various International Conventions to which India has acceded. 

2.         As an active member of the International Maritime Organisation (IMO), India has acceded to a number of International Conventions and Protocols adopted by the IMO. Suitable provisions are required to be made in the Merchant Shipping Act, 1958 to enable the Government of India or its agencies to give effect to those Conventions and Protocols. Besides, amendments of certain provisions of the Act are also required to enable the maritime administration to meet its operational requirements. 

3.         The Conventions and Protocols for implementation of which provisions  are required to be made in the Merchant Shipping Act, 1958 are outlined as under:-

       The International Maritime Organisation has adopted the International Convention on Limitation of Liability for Maritime Claims (LLMC), 1976 on 19th November, 1976 under which the limitation tonnage is the gross tonnage of the vessel as calculated under the universal measurement system in accordance with the Tonnage Measurement of  Ships Convention, 1969.  The limitation of liability has been extended to any person for whose neglect or default the shipowner or salvor is responsible. Limitation of liability will be barred if it is proved that the loss resulted from any personal act or omission committed by the shipowner or the salvor with the intent to cause such loss or committed recklessly and with the knowledge that such loss would probably result. The Safety of Life at Sea (SOLAS) Convention, 1974 was amended in 1988 to streamline and harmonise the survey of ships and their equipment to ensure safety of ships proceeding on sea voyages. The Convention on Load Lines, 1966 as amended in 1988 deals with harmonised system of survey of ships and their certification. The Civil Liability Convention (CLC), 1992 mainly deals with payment for oil pollution damages by any ship in the Indian waters up to limits of exclusive economic zone and by any Indian ship abroad. The Fund Convention, 1992 provides a second tier of compensation regime where a claimant can proceed against the Fund located in London that pays for damages. 

4.         The Bill seeks to amend various provisions of the Act, which, inter alia, include the following, namely:-

(i)  sections 76 and 87 are being amended to empower the Central Government to prescribe different manning scales for different types of ships  and section 95 is being amended to redefine the role of seamen’s employment offices to control and regulate the manning agents and recruitment and placement service instead of controlling and regulating the employment of seamen. Section 97 is being amended to bring the unions within its purview to enable curbing of malpractices by the seamen’s unions and a new section 97A is being inserted to prohibit any discrimination in recruitment of seafarers; 

(ii)        sections 299, 299A, 300, 301, 303 and 307 are being amended to include the changes made in the Convention on Safety of Life at Sea, 1974 as amended in 1988. Section 317 is being  amended to implement the provisions of the Load Line Convention, 1966 as amended in 1988 to harmonise the survey and certification procedures with those of SOLAS Convention, 1974 as amended  in 1988; 

(iii)       section 344 is being amended to empower the Central Government to prescribe the  record  of equipment  and the manner of surveys to be made in respect of ships;

(iv)       sections 352, 352A, 352B, 352C, 352D and 352E are being amended to enable the Central Government to implement the provisions of the LLMC, 1976. A new section 352 FA is  being added to empower the Central Government to frame rules; 

(v)   sections 352H, 352I, 352J, and 352R are being amended to implement the provisions of CLC, 1992 ; 

(vi)       new sections  352S to 352ZA are being inserted for implementation of the provisions of the Fund Convention, 1992 ; 

(vii)      consequent to amendment of section 352A, section 116 of the Major Port Trust Act, 1963 is being amended to provide for recovery of damage to the port properties in accordance with the provisions of  Part XA of the  Merchant Shipping Act, 1958; 

(viii)      the Indian ships which carry country’s commercial trade to the outside world are subjected to control of the Port State which has the right to inspect such ships. Hence, the Indian ships are required to carry internationally valid survey certificates issued in accordance with the procedures established by the International Maritime Organisation but for which they will be required to undergo surveys at foreign ports at the time they call at those ports. The proposed amendments of the Merchant Shipping Act, 1958 will enable the Government of India to take care of these aspects.  

5.         The Bill seeks to achieve the above objects.
 

NEW DELHI;                                                                         VEDPRAKASH P.GOYAL.
The th July, 2002.


Notes on clauses 

Clause 2 of the Bill seeks to amend section 76 of the Merchant Shipping Act, 1958 to empower the Central Government to prescribe different manning scales for different types of ships and the number of persons and qualifications with which different types of ships   shall  engage such persons for maintaining watches. 

Clause 3 seeks to amend section 87 to provide the number of persons and the qualifications they may possess for maintaining watches may be engaged by different types of ships at sea or in any port or place. 

Clause 4 seeks to amend section 95 to re-define the role of the seamen’s employment offices which will now issue licence, regulate and control the recruitment and placement service instead of controlling and regulating the employment of seamen. 

Clause 5 seeks to substitute section 97 to provide that a person, company or organisation including a union purporting to represent the interests of the seamen  shall not demand or receive either directly or indirectly, from any seamen or person seeking employment as seamen or any person on his behalf, any remuneration or donation or fees or compulsory subscription of any kind attributable from such seamen or persons’ employment as seamen, other than the fees authorised under the Act.   

Clause 6 seeks to insert a new section 97A to prohibit any discrimination between seamen for employment on the grounds of either membership of any particular union or the training institute from where they obtained training or the place of issue of their continuous discharge certificates.  

Clause 7 seeks to substitute the sub-heading above section 299 because certain expressions therein have become irrelevant due to installation of  radio communication equipment on board ships.  

Clause 8 seeks to amend section 299 by substituting certain expressions which have become irrelevant consequent upon the adoption of Global Maritime Distress and Safety System. Further, the amendment provides that the passenger ship safety certificate and qualified passenger ship safety certificate shall be supplemented by a record of equipment in the prescribed form as required by the Safety of Life at Sea Convention, 1974. 

Clause 9 seeks to amend section 299A to provide for the Central Government to authorise any person to issue cargo ship safety construction certificate, cargo ship safety certificate, qualified cargo ship safety construction certificate or qualified cargo ship construction certificate in the prescribed form and also to provide that the owner of every ship in respect of which a certificate is issued under  section 299A, section 300 or section 301 shall, so long as the certificate remains in force, cause the ship to be surveyed in the manner as specified in the Safety Convention or in cases where the manner specified is not applicable, in such manner as the rules made in this behalf prescribe, as the case may be.  

Clause 10 seeks to substitute section 300 to provide for the Central Government or any person authorised by it may issue cargo ship safety equipment certificate or cargo ship equipment certificate in the prescribed form  and also to provide that the  certificate   so issued shall be supplemented by record of equipment in the prescribed form .  

Clause 11 seeks to substitute section 301 to provide that the Central Government  or any person authorised by it may issue cargo ship safety radio certificate  and qualified cargo ship safety radio certificate in the prescribed form. 

Clause 12 seeks to substitute section 303 to provide for shorter period of validity  for various safety certificates issued to passenger and cargo ships. It also provides that the Central Government or any person authorised by it may grant an extension of any certificate issued  in respect of an Indian ship.  

Clause 13 seeks to amend section 307 to substitute certain irrelevant expressions with new expressions due to advancement in technology. 

Clause 14 seeks to amend section 317 by insertion of  a new proviso after the existing proviso in sub-section (1) to provide that when the renewal survey for the purpose of issue of certificate under  sub-section (1) of section 316 is completed within three months before the expiry date of the existing certificate, the new certificate may  be valid for a period of five years from the date of expiry of the existing certificate. It also provides grounds when a certificate shall cease to be valid. It also empowers the Central Government or any person authorised by it to extend the period of validity of the certificate for the purpose of completing the voyage to the port in which it is to be surveyed.  

Clause 15 seeks to substitute clause (a) of sub-section (2) of section 344 to provide that the Central Government may prescribe the form of any certificate, record of equipment and the manner of surveys in respect of those ships to which the manner of surveys specified in the Safety Convention is not applicable. 

Clause 16 seeks to amend section 352  to define various expressions on the lines of the  Convention on Limitation of Liability for Maritime Claims (LLMC), 1976.  

Clause 17 seeks to substitute section 352A to provide for limitation of liability for damages in respect of certain maritime claims in accordance with the provision of the Convention on Limitation of Liability for Maritime Claims (LLMC), 1976. 

Clause 18 seeks to substitute section 352B to provide for limitation of liability in accordance with the provisions of the Convention or the rules made therefor, as the case may be.  

Clause 19 seeks to amend section 352C of the Act to provide for setting of a limitation Fund and production of a bank guarantee to settle the liability in respect of maritime claims in accordance with the provision of the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976 as amended from time to time. 

Clause 20 seeks to amend section 352D to redefine the “Convention Country”  on lines of the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976 as amended from time to time and to insert  new sub-sections  (6) and (7) to define the condition when the vessel or property shall be ordered to be released in case of setting up of limitation Fund and  to specify when the provisions of sub-section (5) shall apply.  

Clause 21 seeks to substitute section 352E to redefine the scope of application of the provisions of part XA of the Act in accordance with the provisions of the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976.  

Clause 22 seeks to insert a new section 352FA  to empower the Central Government to make rules to carry out the purposes of Part XA of the Act having  regard to the provisions to the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976 as amended from time to time.  

Clause 23 seeks to amend section 352H  to define various expressions on  lines of the Convention on Civil Liability , 1992.  

Clause 24 seeks to amend section 352I to provide that in case of an incident involving two or more ships occurs resulting into pollution damage,  the owners of all ships, unless exonerated, shall be jointly and severally liable for such damage which is not reasonably separable. Sub-section (6)  is  substituted to specify the parties against whom no claim for compensation for pollution damage may be made.  

Clause 25 seeks to substitute section 352J to provide for limitation of liability in accordance with the provisions of Convention  on Civil Liability, 1992.  

Clause 26 seeks to amend section 352R to insert a new clause (c) to empower the Central Government to make rules to specify the limits of liability in respect of pollution damage having regard to the provisions  of  the Convention  on Civil Liability, 1992.  

Clause 27 seeks to insert a new Part XC to the Act comprising sections 352 S to 352 ZA to incorporating the provisions of the Fund Convention, 1992. This Part  provide as to who shall   or shall not be liable to pay contributions to the Fund and the manner in which contribution to the Fund shall be payable,  the quantum of amount payable  to be determined  by the Assembly of the Fund,  requirement for giving financial security  for payment of contribution to the Central Government or the Fund, the power of Central Government to call for information from persons  who are liable to make contribution to the Fund for the purpose of transmitting the same to the Fund,   action to enforce a claim against the Fund to be entertained  within three years from the date when the damage occurred provided  certain conditions are fulfilled and the Central Government to  make rules that may be required for carrying  out the purposes of Fund Convention.  

Clause 28 seeks to amend section 116 of the Major Port Trusts Act, 1963 to provide for recovery of damage to the port properties in accordance with the provisions of Part XA of the Merchant Shipping Act, 1958.

 

MEMORANDUM REGARDING DELEGATED LEGISLATION

 

            Clause 2 of the Bill empowers the Central Government to prescribe different manning scales for different types of ships and the number of persons and qualifications with which different ships shall engage such persons for maintaining watches. Clause 4 empowers the Central Government to specify the levy of fee and collection thereof by the semen's’ employment offices for issue of licences to recruitment and placement services or renewal of licences, and the services to be rendered by the seamens ’ employment offices. It also empowers the Central Government to issue directions to the seamens’ employment office or any recruitment and placement service  with reference to the conditions under which the seafarers are to be placed abroad by the recruitment and placement service, circumstances and conditions under which licence to be suspended or withdrawn and the conditions under which seafarers’ personal data to be processed by the recruitment and placement service including the collection, storage, combination and communication of such data to the third parties. Clause 8 requires that certificates issued under sub-sections (1) and (2) of section 299, sub-sections (1) and (2) of section 300 and section 301 shall be supplemented by a record of equipment in the prescribed form. Clause 9 empowers the Central Government  to provide the manner,  wherever necessary,  for survey of ships for  the purpose of issuing  certificate under sub-section (1) or sub-section (2) of section 299A, sub-section (1) or section (2) of section 300 or  section 301 in the prescribed form.  Clause 12 empowers the Central Government to frame rules, wherever necessary, to specify the manner of completing  surveys for renewal of certificates or otherwise.   Clause 22  empowers the Central Government to frame rules  with regard to the provisions of the Convention on Limitation of Liability of Maritime Claims(LLMC), 1976 to carry out the purposes of Part XA of the Act. Clause 26 empowers the Central Government to prescribe the  limits of  liability of the owner under Part XB of the Act, in respect of any one or more incident of pollution damage.  Clause 27 empowers the Central Government to frame rules to carry out the purposes of the International Convention on the Establishment  of an International Fund for Compensation for Oil Pollution Damage,  Convention, 1992.   

2.         The matters in respect of which rules may be made are matters of procedure and administrative detail and it is not practicable to provide for all the matters in the Bill. The delegation of legislative power is, therefore, of a normal character.

 

  MARPOL

 

Substitution of new sections for sections 356 A to 356 H.

Commencement and application.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 80 of 1976.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

28.  For sections 356 A to 356 H of the principal Act, the following sections shall be substituted, namely:-
 


‘356A. (1) The provisions of this Part shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Part. 

               (2) Save as otherwise provided, this Part shall apply to- 

(a) oil tankers of one hundred and fifty tons gross or more, other ships of four hundred tons gross or more and off-shore installations ; and  

(b) incidents of marine casualty or acts relating to such casualty occurring with grave  and imminent danger to Indian coast line or related interests from pollution  or threat of pollution in the sea either by deliberate, negligent or accidental release of oil, ballast water, noxious liquid and other harmful substances into sea including such incidents occurring on the high seas.  

            (3) This Part shall not apply to war ship or other ship owned or operated by Government and used for the time being only on Government non-commercial service.    

356 B. In this Part, unless the context otherwise requires,- 

(a) “ballast” means any solid or liquid placed in a ship to increase the draft to change the trim, to regulate the stability, or to maintain stress load within such limits as may be prescribed; 

(b) “cargo” includes ballast and ship’s stores and fuel; 

(c) “chemical tanker” means a ship constructed or adapted primarily to carry a cargo of noxious liquid substances in bulk and includes an oil tanker when it is carrying cargo or part cargo of noxious liquid substances in bulk; 

(d) “coasts” has the same meaning assigned to it in section 357; 

(e) “coastal waters” means any part of the territorial waters of India, or any marine areas adjacent thereto over which India has, or, may hereafter have, exclusive jurisdiction in regard to control of marine pollution under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, or any other law for the time being in force; 

(f) “combination carrier” means a ship designed to carry either oil or solid cargoes in bulk; 

(g) “Convention” means the International Convention for the Prevention of Pollution from Ships, 1973 and includes Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships,1973 as amended from time to time; 

(h) “discharge”, in relation to harmful substances or effluents containing such substances, means any release howsoever caused, from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying, but does not include dumping within the meaning of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter adopted at London on 13th November, 1972 as amended from time to time, or release of harmful substances directly arising from the exploration, exploitation and associated off-shore processing of sea-bed mineral resources, or release of harmful substances for purposes of legitimate scientific research into pollution abatement or control; 

(i) “from the nearest land” means from the baseline from which the territorial sea of the territory in question is established in accordance with the international law; 

(j) “garbage” means all kinds of victual, domestic and operational waste excluding fresh fish and parts thereof, generated during the normal operation of the ship and liable to be disposed of continuously or periodically except those substances as may be prescribed; 

(k) “harmful substance” means any substance which, if introduced into the sea, is liable to create hazards to human health,  to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any  substance,  subject to control by the Convention, as may be prescribed; 

(l) “instantaneous rate of discharge of oil content” means the rate of discharge of oil in litres per hour at any instant divided by the speed of the ship in  knots at the same instant; 

(m)  “International Pollution Preservation Certificate” means any certificate issued in accordance with the provisions of those Pollution Prevention Conventions and Protocols thereto which are acceded to by India; 

(n) “liquid substances” means substances having a vapour pressure not exceeding 2.8 kp/cm2 at a temperature of 37.8 C; 

(o) “mile” means a nautical mile of 1,852 metres; 

(p) “noxious liquid substance” means any substance which has been designated as such by rules made under this Part; 

(q) “oil” means petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products; 

(r) “oil fuel” means any oil used as fuel in connection with the propulsion and auxiliary machinery of the ship in which such oil is carried; 

(s) “oily mixture” means a mixture with any oil content; 

(t) “oil tanker” means a ship constructed or adapted primarily to carry oil in bulk in its cargo spaces and includes any combination carrier or, any chemical tanker  when it is carrying a cargo or part cargo of oil in bulk; 

(u) “reception facilities”, in relation to port, means facilities for enabling tankers or ships using the ports to discharge or deposit residue or mixture of any substance subject to control by the Convention;

(v) “sewage” means- 

       (i) drainage and other waste from any form of toilets, urinals and Water Closet scuppers; 

      (ii) drainage from medical premises (dispensary, sick bay, and other like places) via wash basins, wash tubs and scuppers located in such premises; 

(iii) drainage from spaces containing living animals; or 

     (iv) other waster water when mixed with the  drainages specified above; 

(w) “ship” means a vessel of any type whatsoever operating in the marine environment and includes  hydrofoil boats, air-cushion vehicles, submersibles, floating craft and fixed or floating platforms; 

(x) “special area” means a sea area where for recognised technical reasons in relation to its oceanographical and ecological condition and to the particular character of its traffic the adoption of special mandatory methods for the prevention of sea pollution  by oil or noxious substance is required. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 Definitions.

Issue of Pollution Prevention Certificate.

 

 

 

 

 

 

 

  356C. (1) No Indian oil tanker or no other Indian ship shall proceed to sea unless there is in force, in respect of that ship, a Certificate called International Oil Pollution Prevention Certificate. 

  (2) No Indian oil tanker and other ship carrying noxious liquid substances in bulk shall proceed to sea except with International Pollution Prevention Certificate for the carriage of noxious liquid substances in bulk. 

  (3) No Indian oil tanker and other ship to which the annex IV of the Convention apply shall proceed to sea except with International Sewage Pollution Prevention Certificate. 

  (4) A valid International Pollution Prevention Certificate issued in respect of a ship, other than an Indian ship, by the Government of the country to which the ship belongs shall, subject to such rules as the Central Government may make in this behalf, have the same effect in India as the corresponding certificate issued in respect of an Indian ship under this Part. 
 

 

Issue of Certificates for foreign ships in India  and Indian ships in foreign countries.

356D. (1) The Central Government may at the request of the Government of a country to which the Convention applies, cause any of the International Pollution Prevention Certificate to be issued in accordance with the Convention in respect of a ship in that country, if it is satisfied that such certificate can properly be issued, and where a certificate is so issued  it shall contain a statement that it has been issued on a request. 

(2) The Central Government may request the Government of a country to which the Convention applies, to issue any of the International Pollution Prevention Certificates in accordance with the Convention in respect of a ship and the certificate issued in pursuance of such a request containing a statement that it has been so issued shall have the same effect as if it had been issued by the Central Government under this Act.
 

 

Requirement for construction and equipment in ships to prevent pollution.

 

 

  356E. For the purpose of preventing or reducing discharges of harmful substances or mixtures containing such substances from the oil tankers and other ships, the Central Government may make rules requiring Indian oil tankers and other ships to be fitted with such equipment and to comply with such requirements for construction, survey of equipments and structure of such oil tankers or other ships and specifying conditions for making of surveys of all oil tankers or other ships prior to issue of International Pollution Prevention Certificates as may be prescribed. 

 

Record books.

  356F. (1) Every Indian oil tanker and every other ship which carry substances subject to control by the Convention shall maintain, as may be required, on board record books in the prescribed forms.

 (2) The manner in which record books shall be maintained, the nature of entries to be made, the custody and disposal thereof, and all other matters relating thereto shall be such as may be prescribed having regard to the provisions of the Convention.

 

 

Inspection and control of oil tankers and other ships  to which this Part  applies.

  356G. (1) A surveyor or any person authorised in this behalf  may, at any reasonable time, go on board an oil  tanker or other ship to which any of the provisions of this Part applies, for the purposes of- 

(a)      ensuring that the prohibitions, restrictions and obligations imposed by or under this Part are complied with;

(b)     satisfying himself about the adequacy of the measures taken to prevent pollution;

(c)      ascertaining the circumstances relating to an alleged discharge of substances which are subject to control by the Convention from the oil tanker and other ship in contravention of the provisions  of this Part;

(d)     inspecting any record required to be maintained on board; and

(e)      checking the validity of the International Oil Pollution Prevention Certificates.  

  (2) The surveyor or any such person may, if necessary, make, without unduly delaying the oil tanker or the other ship,  a true copy of any record of the oil tanker or the other ship and may require the master of such tankers or such ship to certify the copy to be a true copy and such copy shall be admissible as evidence of the facts stated therein.
 

 

Information regarding contravention of the provisions of the Convention.

356H.(1) If on report from a surveyor or other person authorised to inspect an oil tanker and other ship under section 356 G, the Director-General is satisfied that any provision of the Convention has been contravened by such oil tanker and other  ship within the coastal waters, the Indian Navy or the Coast Guard, as the case may be, upon ordered by the Director-General, shall- 

(a) detain the oil tanker and other ship until the causes of such contravention are removed to the satisfaction of the authority concerned; and 

              (b) proceed against such oil tanker and other ship  for recovery of cost of pollution damage, if any, and the cost of prevention of pollution damage and cleaning of such pollution. 

  (2) On receipt of information from the Government of any country to which the Convention applies that an Indian oil tanker and other ship  have contravened any provisions of the Convention, the Central Government may, if it deems it necessary so to do, request such Government to furnish further details of the alleged contravention and if satisfied that sufficient evidence is available to establish contravention of any of the provisions of this Part or rules made thereunder, take appropriate action against the owner or master and intimate the reporting Government of the action so taken.’.
 

 

 

  29. In section 356 I of the principal Act, for the words “oil reception facilities” wherever they occur, the words “reception facilities” shall  be substituted.
 

Amendment of section 356 I

 

  30. In section 356 J of the principal Act, for the word “oil” wherever it occurs, the words “oil or noxious liquid substance” shall be substituted.
 

Amendment of section 356 J

 

  31. In section 356 K of the  principal Act, for the word “oil” wherever it occurs, the words “oil or noxious liquid substance” shall be substituted.
 

Amendment of section 356 K

 

  32. In section 356 O of the principal Act, in sub-section (2),-

(i) for clauses (a) and (b), the following clauses shall be substituted, namely:- 

“(a) prescribe limits of ballast under clause (a),  specify substances which are not liable to be disposed of continuously or periodically under clause (j), specify substances subject to control by the Convention under clause (k) and designate noxious liquid substances under clause (p) of  section 356B; 

(b) prescribe the forms in which, the duration for which and conditions subject to which various International Pollution Prevention  certificates shall be issued under sub-sections (1), (2), (3) and (4) of section 356 C;

 (bb) prescribe the period within which, the manner in which and conditions for making surveys of oil tankers or other ships prior to issue of  International Pollution Prevention Certificates, the requirements as to equipment which are to be fitted for prevention of pollution by an oil  tanker and  other ship under section 356E;”; 

 (ii) in clause ( c), for the words “oil record books”, the words “record books” shall be substituted; 

 (iii) in clause (d), for the words “oil monitoring system, oily water separator, oil content metre, crude oil washing system, inert gas system or other equipments or contrivances carried out on board for preventing  pollution of sea by oil”, the words “various equipments carried out on board under the Convention” shall be substituted;   

(iv) after clause (e), the following clause shall be inserted, namely:- 

“(ee) any other matter which has to be or may be  prescribed.”.

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