The Ship and Port Facility (Security) Regulations 2004

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Interpretation
     2.  - (1) In these Regulations - 

"the EC Regulation" means Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 [3]on enhancing ship and port facility security;

"the SOLAS Convention" means the International Convention for the Safety of Life at Sea 1974 [4] as amended from time to time, in so far as those amendments are integrated in Community maritime legislation in accordance with Article 10 of the EC Regulation[5];

"ISPS Code" means the International Ship and Port Facility Security Code as amended from time to time, in so far as those amendments are integrated in Community maritime legislation in accordance with Article 10 of the EC Regulation[6];

"Class A passenger ships" are passenger ships within the meaning of Article 4 of Council Directive 98/18/EC of 17 March 1998 [7] on safety rules and standards for passenger ships, in which 'Class A' means a passenger ship engaged on domestic voyages other than voyages covered by Classes B, C and D in Article 4 of the Directive;

"constable" includes any person having the powers and privileges of a constable;

"domestic shipping" means any transport service by ship in sea areas from a port facility of the United Kingdom to the same port facility or another port facility within the United Kingdom;

"duly authorised officer" means either - 

(a) an inspector appointed under section 256 of the Merchant Shipping Act 1995[8], or

(b) a surveyor appointed under section 256 of the Merchant Shipping Act 1995, or

(c) an "authorised person" within the meaning of section 46(1)[9] of the Aviation and Maritime Security Act 1990;

"international shipping" means any maritime transport service by ship from a port facility of the United Kingdom to a port facility outside the United Kingdom, or conversely;

"international voyage" means a voyage from a country to which the SOLAS Convention applies to a port outside such country, or conversely;

"master" includes every person (except a pilot) having command or charge of a ship;

"non-United Kingdom ship" means a ship other than a United Kingdom ship;

"owner of the port facility security plan" means the person who submits the port facility security plan or the person on whose behalf that plan is submitted to the Secretary of State for approval under section 16.2 of Part A of the ISPS Code;

"restricted area" means an area in a ship or a port facility that is identified as such in a ship security plan or port facility security plan;

"United Kingdom registration provisions" means Part II of the Merchant Shipping Act 1995, or any Order in Council under section 1 of the Hovercraft Act 1968[10].

"United Kingdom ship" has the same meaning as in section 85(2) of the Merchant Shipping Act 1995, and

"United Kingdom waters" means the sea or other waters within the seaward limits of the territorial sea of the United Kingdom.

    (2) The expressions used in these Regulations which are given a meaning in the SOLAS Convention or the ISPS Code have the same meaning they bear in those instruments, and are listed in the Schedule to these Regulations.

    (3) Other expressions used in these Regulations which are also used in the EC Regulation, have the same meaning they bear in that Regulation.

Purpose
     3. The purpose of these Regulations is to provide for the implementation of the EC Regulation.

Application
     4.  - (1) These Regulations apply to - 

(a) the following types of United Kingdom ships and non-United Kingdom ships in United Kingdom waters when engaged on international voyages, and their companies:


(i) passenger ships including high speed craft which carry more than 12 passengers;

(ii) cargo ships, including high speed craft, of 500 gross tonnage and upwards;

(iii) mobile offshore drilling units;



(b) Class A passenger ships operating domestic services within United Kingdom waters and their companies;

(c) the following port facilities - 



(i) port facilities serving the ships specified in paragraph (1)(a); and

(ii) port facilities serving ships specified in paragraph (1)(b).

    (2) These Regulations do not apply to  - 

(a) ships of war and troop ships;

(b) cargo ships of less than 500 gross tonnage;

(c) ships not propelled by mechanical means;

(d) wooden ships of primitive build;

(e) pleasure yachts not engaged in trade;

(f) fishing vessels; and

(g) vessels not engaged in commercial activities.

Designations
     5. The Secretary of State for Transport is hereby designated - 

(a) the "focal point for maritime security" for the purposes of the EC Regulation;

(b) the "competent authority for maritime security" for the purposes of the EC Regulation;

(c) the "designated authority" for the purposes of Chapter XI-2 of the SOLAS Convention and the ISPS Code.

Inspection of companies and port facilities by the European Commission
     7.  - (1) The following persons are required to submit to such inspections of ships and port facilities that are conducted by the Commission pursuant to article 9 of the EC Regulation - 

(a) the company;

(b) the company security officer;

(c) the ship security officer;

(d) the master of a ship;

(e) the port facility security officer; and

(f) the owner of the port facility security plan.

    (2) The persons referred to in paragraph (1) shall take all necessary steps to remedy any shortcomings identified by the Commission following such an inspection as are notified to them in writing by the Secretary of State, and shall do so within such period as may be required in the notification.

Compensation for invalid detention of a ship
     9.  - (1) Where having considered an objection in respect of a detention notice relating to a ship under regulation 8 the Secretary of State finds that there was no valid basis for the detention, the owner of the ship shall be entitled, upon application, to receive compensation for such loss or damage suffered by him which is directly attributable to the detention of the ship.

    (2) A claim for compensation under this regulation shall be made in writing to the Secretary of State within three months beginning with the date the Secretary of State serves notice of his decision under regulation 8(5)(d).

    (3) Any person claiming compensation under this regulation shall provide all such information and supplementary information in respect of the loss or damage incurred as the Secretary of State may at any time reasonably require and shall verify the same in any such manner, including the production of original documents in his possession or control, as may be reasonably required.

    (4) Any disputed question as to the right to, or the amount of, any compensation payable under this regulation shall be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by him.

    (5) Any compensation granted under this section shall be payable by the Secretary of State.

    (6) In the application of this regulation to Scotland any reference to an arbitrator shall be construed as a reference to an arbiter and the reference in paragraph (4) to a single arbitrator appointed by agreement between the parties shall be construed as a reference to a single arbiter so appointed or, in default of agreement, appointed by the sheriff.

    (2) Paragraph (1)(a) shall not apply unless it proved that, at the material time, notices stating that the area concerned was a restricted area were posted so as to be readily seen and read by persons entering the restricted area.

    (3) A person who contravenes paragraph (1) without lawful authority or reasonable excuse is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (4) A constable, or the master or the ship security officer, or a person acting on behalf of the master or the ship security officer, may use such force as is reasonable in the circumstances to remove from a restricted area a person remaining in it in contravention of paragraph (1)(b).

Unauthorised presence in a restricted area of a port facility
     11.  - (1) A person shall not - 

(a) go, onto or into any part of a restricted area of a port facility except with the permission of the port facility security officer or a person acting on his behalf, and in accordance with any conditions subject to which that permission is for the time being granted, or

(b) remain in any part of such a restricted area after being requested to leave by the port facility security officer or a person acting on his behalf.

    (2) Paragraph (1)(a) shall not apply unless it proved that, at the material time, notices stating that the area concerned was a restricted area were posted so as to be readily seen and read by persons entering the restricted area.

    (3) A person who contravenes paragraph (1) without lawful authority or reasonable excuse is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (4) A constable, or the port facility security officer, or a person acting on behalf of the port facility security officer, may use such force as is reasonable in the circumstances to remove from a restricted area a person remaining in it in contravention of paragraph (1)(b).

Contents of enforcement notices
     14.  - (1) An enforcement notice shall state the matters which appear to the duly authorised officer to constitute a failure to comply with the requirements specified in regulation 13.

    (2) An enforcement notice may be framed so as to afford the person on whom it is served a choice between different ways of complying with the requirements set out in the notice.

    (3) An enforcement notice shall specify the steps which the duly authorised officer requires to be taken, or the activity or the activities which the duly authorised officer requires to cease in order to achieve compliance with the requirements specified in regulation 13.

    (4) An enforcement notice shall specify the date on which it is to take effect and shall take effect on that date.

    (5) An enforcement notice shall specify the period at the end of which any steps are required to have been taken or any activities are required to have ceased and may specify different periods for different steps or activities.

    (6) Where different periods apply to different steps or activities, references in these Regulations to the period for compliance with an enforcement notice, in relation to any step or activity, are to the period at the end of which the step is required to have been taken or the activity is required to have ceased.

    (7) An enforcement notice requiring a person not to cause or permit anything to be done shall be construed as requiring him to take all such steps as in any particular circumstances are practicable and necessary to prevent that thing from being done.

Offences relating to enforcement notices
     15.  - (1) Any person, who without reasonable excuse, fails to comply with an enforcement notice served on him is guilty of an offence and liable - 

(a) on summary conviction, to a fine not exceeding level 5 on the standard scale, or

(b) on conviction on indictment to a fine.

    (2) Where a person is convicted of an offence under paragraph (1) and if without reasonable excuse the failure in respect of which he was convicted is continued after the conviction, he is guilty of a further offence and liable on summary conviction to a fine not exceeding £100 for each day on which the failure continues.

Objections to enforcement notices
     16.  - (1) A person on whom an enforcement notice is served may serve on the Secretary of State a notice in writing of his objection to the enforcement notice.

    (2) The grounds of objection to an enforcement notice are - 

(a) that the steps required by the notice to be taken for the purposes of regulation 13 have been complied with;

(b) that the steps required by the notice to be taken do not constitute a failure to comply with the requirements specified in regulation 13;

(c) that any requirement of the notice  - 


(i) is unnecessary for complying with the requirements specified in regulation 13 and should be dispensed with or;

(ii) having regard to the terms of those requirements, is excessively onerous or inconvenient and should be modified in a manner specified in the notice of objection served under paragraph (1).

    (3) An objection to an enforcement notice under this regulation shall be served on the Secretary of State within seven days of the date on which the enforcement notice was served.

    (4) A person making an objection to an enforcement notice under this regulation shall submit to the Secretary of State, either when making the objection or within the seven days referred to in paragraph (3), a statement in writing - 

(a) specifying the grounds on which he is objecting to the enforcement notice, and

(b) providing such further information as may be appropriate.

    (5) Where the person on whom an enforcement notice is served serves a notice under paragraph (1), the Secretary of State shall consider the grounds of the objection and, if so required by the objector, shall afford to him an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose, and shall then serve on the objector a notice in writing either - 

(a) confirming the enforcement notice as originally served, or

(b) confirming it subject to one or more modifications specified in the notice, or

(c) cancelling the enforcement notice.

    (6) An enforcement notice to which an objection has been made under paragraph (1) shall not take effect until it has been confirmed, with or without modification, by a notice under paragraph (5).

    (7) An enforcement notice served on any person  - 

(a) may be revoked by a notice served on him by a duly authorised officer, and

(b) may be varied by a further enforcement notice served on him by a duly authorised officer.

    (2) In the case of ships, any completed declaration of security relating to one of its last ten calls at port facilities, shall be retained on board the ship by the master for as long as it relates to any of those last ten calls, even where the period over which those calls extend exceeds the minimum three year period referred to in paragraph (1).

Amendments to plans
     19.  - (1) In accordance with the ISPS Code [11], the Secretary of State shall decide, and thereafter notify companies and owners of port facility security plans in writing, of the changes or amendments to the relevant approved ship security plan or port facility security plan that must first be submitted to him for approval before they are implemented in respect of those ships and port facilities.

    (2) The changes or amendments referred to in paragraph (1) shall not be implemented by the companies or owners of port facility security plans without first obtaining the approval of the Secretary of State.

Service of documents
     20.  - (1) This regulation has effect in relation to any notice, any notification and any other document authorised or required by any provision in these Regulations to be served on or given to any person.

    (2) Any such document may be given or served on any person - 

(a) by delivering it to him, or

(b) by leaving it at his proper address, or

(c) by sending it by post to him at that address, or

(d) by sending it to him at that address, by fax or other similar means which produce a document containing the text of the communication, or

(e) where the person maintains an e-mail address, by sending an electronic copy of the document to that e-mail address.

    (3) Any such document may, in the case of a body corporate, be given to or served on the secretary, clerk or similar officer of that body.

    (4) For the purposes of this regulation and section 7 of the Interpretation Act 1978[12] (service of documents by post) in its application to this regulation, the proper address of any person to whom or on whom any document is to be given or served is his usual or last known address or place of business, whether in the United Kingdom or elsewhere except that in the case of a body corporate or its clerk or similar officer it shall be the address of the registered or principal office of that body in the United Kingdom, or if it has no office in the United Kingdom, of its principal office wherever that may be.

    (5) In the case of a person registered under any of the United Kingdom registration provisions as the owner of any ship so registered, the address for the time being recorded in relation to him in the register shall also be treated as his proper address for the purposes of this regulation and section 7 of the Interpretation Act 1978.

    (6) If the person to or on whom any document mentioned in paragraph (1) is to be given or served has notified the Secretary of State of an address within the United Kingdom, other than an address determined under paragraph (4) or (5), as the one at which he or someone else on his behalf will accept documents of the same description as that document, that address shall also be treated for the purposes of this regulation and section 7 of the Interpretation Act 1978 as his proper address.

    (7) Any document mentioned in paragraph (1) shall, where there are two or more owners of a ship who are registered under any of the United Kingdom registration provisions, be treated as duly served on the company where it is served upon one of those owners.

    (8) Where any document mentioned in paragraph (1) is to is to be served on the master of a ship, it shall be treated as duly served if it is left on board that ship with the person being or appearing to be in command or charge of the ship.



Signed by the authority of the Secretary of State for Transport


David Jamieson
Parliamentary Under Secretary of State Department for Transport

8th June 2004

Regulation 2(2)


EXPRESSIONS HAVING THE SAME MEANING AS IN THE SOLAS CONVENTION OR THE ISPS CODE

EXPRESSIONUSED	DEFINITION	REFERENCE
Cargo ship	Any ship which is not a passenger ship	Regulation I-2(g) of the SOLAS Convention.
Company	The owner of the ship or any other organisation or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who on assuming such responsibility has agreed to take over all the duties and responsibilities imposed by the International Safety Management Code.	Regulation IX-1 of the SOLAS Convention.
Company security officer	The person designated by the company for ensuring that a ship security assessment is carried out; that a ship security plan is developed, submitted for approval, and thereafter implemented and maintained, and for liaison with port facility security officers and the ship security officer.	Section 2.1.7 of Part A of the ISPS Code.
Declaration of security	An agreement reached between a ship and either a port facility or another ship with which it interfaces specifying the security measures each will implement.	Regulation XI-2/1.15 of the SOLAS Convention.
High speedcraft	A craft capable of a maximum speed in metres per second (m/s) equal to or exceeding 3.7 0.1667.	Regulation X/1.2 of the SOLAS Convention.
Mobile offshore drilling unit	A mechanically propelled mobile offshore drilling unit not on location.	Regulation IX/1 of the SOLAS Convention.
Passenger ship	A ship which carries more than twelve passengers.	Regulation I/2(f) of the SOLAS Convention.
Port facility	A location determined as such by the designated authority, where the ship/port interface takes place and includes areas such as anchorages, waiting berths and approaches from seaward as appropriate.	Regulation XI-2/1.9 of the SOLAS Convention.
Port facilitysecurityofficer	The person designated as responsible for the development, implementation, revision and maintenance of the port facility security plan and for liaison with the ship security officers and company security officers.	Section 2.1.8 of Part A of the ISPS Code.
Ship/port interface	The interactions that occur when a ship is directly and immediately affected by actions involving the movement of persons, goods or the provision of port services to or from the ship.	Regulation XI-2/1.8 of the SOLAS Convention.
Ship securityofficer	The person on board the ship, accountable to the master, designated by the Company as responsible for the security of the ship, including implementation and maintenance of the ship security plan and for liaison with the company security officer and port facility security officers.	Section 2.1.6 of Part A of the ISPS Code.

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[2] 1972 c. 68.back

[3] OJ L129/ 6, 29.4.2004back

[4] Cmnd 7874; amended in accordance with its Protocol of 1988, Cmnd 4420.back

[5] The relevant amendments will be published in the Official Journal of the European Union.back

[6] The relevant amendments will be published in the Official Journal of the European Union.back

[7] OJ L 144, 15.5.1998, p.1.back

[8] 1995 c. 21; section 256 was amended by the Merchant Shipping and Maritime Security Act 1997 (c. 28), Schedule 6, paragraph 15.back

[9] 1990 c. 31; there are amendments to section 46 which are not directly relevant to these Regulations.back

[10] 1968 c. 59.back

[11] The relevant provisions are in Part A of the ISPS Code; section 9.5 (for ship security plans) and section 16.6 (for port facility security plans).back

[12] 1978 c. 30.back