The Merchant Shipping (Anti-Fouling Systems) Regulations 2009

PART 2SURVEY AND CERTIFICATION

Surveyors and the issue of certificates

4.—(1) For the purposes of paragraph 1.3 of Annex I (which Annex sets out survey and certification requirements for anti-fouling systems on ships flying the flag of a Member State), in relation to a United Kingdom ship—

(a)an officer “duly authorised by the administration of the Member State” means a surveyor of ships; and

(b)“a surveyor nominated for the purpose by one of those administrations, or by a recognised organisation acting on behalf of the administration” means a surveyor appointed by a Certifying Authority.

(2) For the purposes of paragraph 2.1 of that Annex, in relation to the United Kingdom the function of issuing or endorsing an AFS-Certificate or other certificate referred to in that paragraph is to be carried out by a Certifying Authority.

AFS-Certificates: ships of 400 gross tonnage or above

5.—(1) This regulation applies in relation to a ship which—

(a)is referred to in regulation 3(1), and

(b)is of 400 gross tonnage or above,

but does not apply in relation to a fixed or floating platform, a floating storage unit or a floating production storage and off-loading unit.

(2) A ship must not be put into service for the first time unless the requirements set out in paragraph (4) are met.

(3) Where—

(a)a ship was put into service for the first time on or after 1st July 2003 but before the date on which these Regulations come into force, or

(b)a ship’s anti-fouling systems have been changed or replaced on or after 1st July 2003,

the ship must not proceed on any voyage, or (if it is already on a voyage) continue on a voyage, unless the requirements set out in paragraph (4) are met.

(4) The requirements referred to in paragraphs (2) and (3) are that—

(a)the ship has been surveyed in accordance with Annex I,

(b)there is in force in relation to the ship an AFS-Certificate or other certificate referred to in paragraph 2.1 of that Annex, and

(c)that AFS-Certificate or other certificate is carried on board the ship.

AFS-Declarations: ships of less than 400 gross tonnage

6.—(1) This regulation applies in relation to a ship which—

(a)is referred to in regulation 3(1), and

(b)is of less than 400 gross tonnage but of 24 metres or more in length,

but does not apply in relation to a fixed or floating platform, a floating storage unit or a floating production storage and off-loading unit.

(2) A ship must not proceed on any voyage, or (if it is already on a voyage) continue on a voyage, unless there is carried on board the ship an AFS-Declaration, and that AFS-Declaration—

(a)is accompanied by appropriate documentation (such as a paint receipt or a contractor’s invoice), or

(b)contains an appropriate endorsement.

Arbitration

7.—(1) If an applicant is dissatisfied for any reason with the outcome of a survey carried out for the purposes of paragraph 1 of Annex I, the applicant may serve a written notice on the responsible person within 21 days of receiving notification of that outcome—

(a)stating that there is a dispute between them, and

(b)requesting that the dispute be referred to a single arbitrator.

(2) Subject to paragraph (3), an arbitrator referred to in paragraph (1) must be appointed by agreement between the applicant and the responsible person.

(3) In default of agreement between the applicant and the responsible person, the arbitrator is such person as may be appointed by the President or Vice President of the Chartered Institute of Arbitrators following a request made by—

(a)a party, after giving written notice to the other party, or

(b)the parties jointly,

but this paragraph does not apply in relation to Scotland.

(4) No person is to be an arbitrator under this regulation unless that person is—

(a)a person who holds a certificate of competency as—

(i)a Class 1 Deck Officer, or

(ii)a Class 1 Marine Engineer Officer;

(b)a person who holds a certificate of competency equivalent to a certificate referred to in sub-paragraph (a);

(c)a naval architect;

(d)a qualified person;

(e)a person with special experience of shipping matters, or of the fishing industry, or of activities carried on in ports; or

(f)a member of the Chartered Institute of Arbitrators.

(5) An arbitrator appointed under this regulation has the powers of an inspector conferred by section 259 of the 1995 Act.

(6) In the application of this regulation to Scotland—

(a)any reference to an arbitrator is to be construed as a reference to an arbiter, and

(b)the reference in paragraph (2) to appointment by agreement between the parties is to be construed as a reference to appointment by such agreement or, in default of agreement, appointment by a sheriff.

(7) The rules for arbitration set out in Merchant Shipping Notice No. M. 1613 apply unless alternative procedures are agreed between the applicant and the responsible person before the commencement of arbitration proceedings.

(8) In this regulation—

(a)“applicant” means a person who makes an application for a survey required by the EC Regulation;

(b)“Merchant Shipping Notice No. M. 1613” means the notice described as such and issued by the Maritime and Coastguard Agency, an executive agency of the Department for Transport;

(c)“qualified person” means—

(i)a person who satisfies the judicial-appointment eligibility condition on a 7-year basis(1);

(ii)a person who is an advocate or solicitor in Scotland of at least 7 years’ standing; or

(iii)a person who is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland of at least 7 years’ standing;

(d)“responsible person” means the Certifying Authority responsible under paragraph 2.1 of Annex I for the issue or endorsement of the AFS-Certificate or other certificate in connection with which the survey is carried out.

Cancellation of a certificate

8.—(1) This regulation applies in relation to an AFS-Certificate or other certificate issued by, or at the request of, the Government of the United Kingdom pursuant to Annex I.

(2) The Secretary of State may cancel a certificate where the Secretary of State has reason to believe that—

(a)the certificate was issued on the basis of false or erroneous information; or

(b)since any survey required under the EC Regulation, any coating referred to in Article 5 of the EC Regulation (which refers to coatings forming a barrier to organotin compounds leaching from underlying non-compliant anti-fouling systems) and borne by the ship has sustained damage or is otherwise deficient.

(3) The Secretary of State may require that a certificate which has expired or has been cancelled is to be surrendered within such time and in such manner as the Secretary of State may in writing direct.

(4) No person may—

(a)intentionally alter a certificate;

(b)intentionally make a false certificate;

(c)knowingly or recklessly provide false information in connection with any survey required by the EC Regulation;

(d)with intent to deceive, use or lend a certificate or permit a certificate to be used by another person;

(e)fail to surrender a certificate when required to do so pursuant to paragraph (3); or

(f)in Scotland, forge a certificate.

Availability of certificates and other documents

9.—(1) An AFS-Certificate or other certificate referred to in paragraph 2.1 of Annex I must be readily available for examination at all times on board every ship to which regulation 5 applies.

(2) An AFS-Declaration and the appropriate documentation or endorsement referred to in regulation 6(2) must be readily available for examination at all times on board every ship to which regulation 6 applies.