Marine Legislation Bill - Ports and Harbour Safety

POSTED BY Karl Stolberger
Barbara Versfelt
04 December 2012

posted in Shipping | Transport | Legislation

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The Marine Legislation Bill (Bill) is presently before Parliament.  For the text of the Bill, see: http://www.legislation.govt.nz/bill/government/2012/0058/latest/DLM4698452.html.  The Bill seeks to make changes to the Maritime Transport Act 1994 (MTA) which are intended to come into force on 1 April 2013.  In this update, we discuss the changes relating to port and harbour safety.

In particular, the Bill seeks to: 

  • Provide authority to the Director of Maritime New Zealand (Director) to take action in situations where port management poses a significant risk to the safety of shipping;
  • Create new offences, including the offence of operating or servicing a port in a manner that causes unnecessary risk to ships, persons or property;
  • Repeal parts 39A and 43 of the Local Government Act 1974 and transfer the regulation of the (marine) functions and powers of the Regional Councils to the MTA;
  • Impose obligations on Regional Councils with respect to the appointment of Harbourmasters;
  • Impose duties and obligations on Harbourmasters;
  • Give Regional Councils and Harbourmasters power to enforce national navigation safety rules;
  • Extend the powers of the Minister of Transport to make rules relating to port safety and ship traffic separation and management schemes, in section of the 36 MTA;


Ports and Harbours

The Bill creates a new Part 3A of the MTA, entitled ‘Local regulation of Maritime Activity’.

Under the Bill a duty would be imposed on port operators to take all reasonable and practical measures to ensure that their operations do not endanger maritime safety.

Under the proposed section 33O, the Director is given the power to require that any port company, port operator, or other person who operates, maintains or services a port or port facility, or who does any other act in respect of a port or port facility, undergo or carry out inspections and audits that the Director considers necessary in the interests of ensuring maritime safety or preventing marine pollution.  "Port” is defined in section 33B as "an area of land and water intended or designed to be used either wholly or partly for the berthing, departure, movement and servicing of ships; and includes any place in or at which ships can or do load or unload goods or embark or disembark passengers.” Accordingly, the Director’s powers under section 33O appear to extend to a wider range of service providers than the port companies alone.

Under the proposed section 33P, the Director may prohibit or impose conditions on the use or operation of any port or port facility if he or she reasonably believes that operation of a port or its facilities or port maintenance or servicing is endangering or likely to endanger any person, property or ship at sea, is hazardous or harmful, poses an unreasonable threat to the environment or is likely to give rise to the discharge of a harmful substance or of ballast water contrary to statute.  These new provisions will allow the Director to intervene and to support the (still voluntary) New Zealand Port and Harbour Marine Safety Code, should that prove necessary.

Offences

The proposed section 33O(3) provides that every person commits an offence who, without reasonable excuse, fails to comply with directions and requests for information by the Director in the course of an audit or inspection of a port; or fails to comply with any prohibitions or conditions imposed by the Director.

If enacted, section 33Q (1) would provide that "every person commits an offence who operates, maintains or services a port or port facility, in a manner that causes unnecessary danger or risk to any ship, person, or property, irrespective of whether any injury or damage occurs”. The offence is worded in the same way as the offence of dangerously operating a ship in section 65 of the MTA. The Court of Appeal has held that section 65 creates a strict liability offence, i.e. the prosecution does not need to establish that the defendant consciously appreciated the risk being taken. All that needs to be established is that, objectively, the manner of operation caused unnecessary risk. Section 33Q would likely be interpreted in a similar way.

The penalties for the above offences include imprisonment up to 12 months and a fine up to $10,000 for an individual, and $100,000 for a body corporate. Penalties may be increased if the offence was committed in the course of producing a commercial gain.

The existing section 410(3) of the MTA provides that, where a body corporate is convicted of an offence against the Act, every director and every person concerned in the management of the body corporate shall be guilty of the like offence, if it is proved that the act that constituted the offence took place with his or her authority, permission or consent, and that he or she knew or could reasonably be expected to have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it. This will also apply to the proposed new provisions.

Regional Councils and Harbourmasters

The Bill seeks to repeal parts 39A and 43 of the Local Government Act 1974 and transfer the regulation of the (marine) functions and powers of the Regional Councils to the MTA. In doing so, the Bill links the powers and duties of the Council and the Harbourmasters to an explicit safety purpose.

The powers of the Regional Councils to make bylaws are continued and expanded for the purposes of regulating and ensuring maritime safety within their regions.

The Bill would require the Regional Councils to appoint Harbourmasters and be satisfied that the person they appoint as harbourmaster is capable of performing the functions of a harbourmaster and has the qualifications required under the Maritime Rules.

The Bill purports to allow Regional Councils to enforce national navigation safety Rules without the need to first incorporate these rules into its bylaws. It gives the Harbourmasters and enforcement officers authority to issue infringements notices for breaches of the Maritime Rules.

Under the proposed section 33S, the Regional Council is entitled to delegate its responsibilities (other than making bylaws) to another public authority or a port operator.

POSTED BY Karl Stolberger
Barbara Versfelt
04 December 2012

posted in ShippingTransportLegislation

VIEWED 4551 TIMES

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