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斐济海上运输法
Maritime Transport Act
【发布部门】斐济国会 【发文字号】
【发布日期】2015年01月01日 【实施日期】2013年07月15日
【时效性】现行有效 【效力级别】法律
【法规类别】斐济法规规划 【来源】联合国粮农组织网站
斐济海上运输法

【法律沿革】

本法于2013年由斐济总统颁布生效,于20141215日修改并在201511日实施。

【内容介绍】

本法目的是为执行IMO下斐济的义务,确保海上运输系统的参与者对其行为负责,合并有关的海事法律,包括海洋环境保护及有关事项。本法分为18部分,共计285条,包括有关海事活动的职责、有关海事活动的罪行、船东及其他人的责任、沉船和飞机残骸、有关航运的一般规定、打捞、海洋污染防治、保护海洋环境免受溢油损害的计划和响应、对海洋油污的响应及融资计划、有关海洋保护文件的义务和权力、制定海洋保护规则及采取其他措施保护海洋环境、一般罪行以及与罪行和上诉有关的规定等内容。

【内容出处】
http://www.fao.org/faolex/results/details/en/c/LEX-FAOC152463

海上运输法Maritime Transport Decree

PART 1—PRELIMINARY

Short title and commencement

1.—(1) This Decree may be cited as the MaritimeTransport Decree 2013, and shall come into force on a date or dates appointedby the Minister by notice in the Gazette.

(2) The Minister may appoint different dates forcoming into force of different sections or Parts of this Decree.

Interpretation

2. In this Decree, unless the context otherwiserequires—

“accident”means an occurrence that involves a ship and in which—

(a) a person is seriouslyharmed as a result of—

(i) being on the ship;

(ii) direct contact withany part of the ship, including any part that has become detached from theship;

(iii) direct exposure tothe wash of the ship or interaction (other than direct contact) between 2ships; or

(iv) being involved in thesalvage of any ship—

except where the injuries are self-inflicted orinflicted by other persons, or when injuries are to stowaways hiding outsidethe areas normally available to passengers and crew;

(b) the ship sustains damage orstructural failure that—

(i) adversely affects thestructural strength, performance, or seaworthiness of the ship;

(ii) would normally requiremajor repair or replacement of the affected component; or

(iii) poses a threat to the safety of people onboard the ship;

(c) there is a complete orpartial failure of machinery or equipment that affects the seaworthiness of theship;

(d) there is a loss of, ordamage to, or movement of, or change in the state of the cargo of the shipwhich poses a risk to the ship or other ships;

(e) there is a significant lossof, or significant damage to property, not being the cargo carried by the shipor the property of any person (whether or not on board the ship), whether ornot the loss or damage arises from an interaction between 2 ships;

(f) there is a loss or escape ofany substance or thing that may—

(i) result, or hasresulted, in serious harm to any person;

(ii) pose a risk, or hasresulted in damage, to the ship or other ships; or

(iii) pose a risk, or hasresulted in damage, to any property, whether or not on board the ship;

(g) a person is lost at sea,whether or not subsequently found; or

(h) the ship is foundering, capsizing, being abandoned,stranding, missing, or has foundered, capsized, been abandoned, stranded, beenin a collision, or has had a major fire on board;

“aids to navigation” includes—

(a) any lightship and anyfloating or other light exhibited for the guidance of ships;

(b) any description of a fogsignal not carried on a ship;

(c) all marks and signs in aidof marine navigation;

(d) any electronic or other aid to marine navigation notcarried on board any ship;

“archipelagic waters” means all areas of seacontained within the straight baselines bounded by the base points;

“Articles of Agreement” means an agreementincluding a contract or a collective agreement within the meaning of theEmployment Relations Promulgation 2007 between an employer and one or moreseafarers setting out the terms and conditions of the seafarers’ employment;

“authorised officer” means any person or personsauthorised for any purpose under this Decree by the Chief Executive Officer;

“Authority” means the Maritime Safety Authority ofFiji established under the Maritime Safety Authority of Fiji Decree 2009;

“base lines” has the same meaning as under section2 of the Marine Spaces Act (Cap. 158A);

“base points” means a position of the outermost ofland with an altitude of zero based on Lowest Astronomical Tide (LAT) which iseither determined by range and bearing from a concrete Base point ReferenceMonument (BRM) or based on topographic maps, chart and remotely sensed imagery;

“Chief Executive Officer” means the Chief ExecutiveOfficer of the Maritime Safety Authority of Fiji;

“commercial ship” means a ship that is used forhire or reward and including but not limited to—

(a) a ship that is provided fortransport or sport or recreation by or on behalf of any institution, hotel,motel, place of entertainment, or other establishment or business;

(b) a ship that is used on anyvoyage for pleasure if it is normally used or intended to be normally used as afishing ship or for the carriage of passengers or cargo for hire or reward;

(c) a ship that is operated orprovided by any club, incorporated society, trust, or business;

but does not include—

(i)a pleasure craft;

(ii)a ship solely powered manually; or

(iii)a ship solely powered by sail;

“continental shelf” or “continental shelf of Fiji”has the same meaning as in section 2 of the Continental Shelf Act (Cap. 149);

“Convention” or “Conventions” in relation to this Decreemeans such Conventions as listed under Schedule 1 and as may be declared forthe purposes of this Decree and includes the amendments to such Conventions,being amendments to which Fiji is a party that are declared in the same manner;

“crew” means the persons employed or engaged in anycapacity on board a ship, except a master, a pilot, or a person temporarilyemployed on the ship while it is in port;

“demise charter” has the same meaning as in theShip Registration Decree 2013;

“emergency directions” means emergency directionsissued by the Minister under this Decree;

“employer” means a person who employs or engagesany other person, other than a person temporarily employed on the ship while itis in port or a pilot to do any work for hire or reward on board a commercialship or pleasure craft;

“fail” includes refuse; and failure has acorresponding meaning;

“Fiji-based operator” means—

(a) a Fiji national who isordinarily resident or carries on business in Fiji; or

(b) a Fiji National and anyother person where the Fiji national is in a position to control the exerciseof the rights and powers of the charterers under the charter agreement;

“Fiji national” means—

(a) a Fiji citizen; or

(b) a body corporateestablished by or under the law of Fiji;

“Fiji ship” means a ship that is registered underthe Ship Registration Decree 2013;

“Fiji waters” means all the waters in Fijicomprising of—

(a) the territorial seas;

(b) the archipelagic waters;

(c) the inland waters; and

(d) the exclusive economiczone;

“fishing ship” means any ship or boat used fortaking fish by way of trade or business; and includes a ship that is recognisedby the Authority as being engaged in fisheries research;

“foreign ship” means any ship that is not a Fijiship;

“gross tonnage or gross tons” in relation to aship, means the gross tonnage of that ship determined or recognised inaccordance with the provisions of this Decree or any maritime Regulations, orwhere a ship has been assigned alternative gross tonnages, the higher of thosegross tonnages;

“harm” means illness, injury, or both; and to harmand harmed have corresponding meanings;

“hazard” means an activity, arrangement,circumstance, event, occurrence, phenomenon, process, situation, or substance,whether or not arising or caused on board a ship that is an actual or potentialcause or source of harm, including wrecks and derelict ships and “hazardous”has a corresponding meaning;

“incident” means any occurrence, other than anaccident or a mishap, that is associated with the operation of a ship andaffects or could affect the safety of operation;

“internal waters of Fiji” means the internal watersof Fiji as defined by section 3 of the Marine Spaces Act including inlandwaters open to, or used for, navigation on the landward side of internalwaters;

“Jetty Master” means a person appointed undersection 101 for the purpose of controlling movement of ships within jetties,wharves and marinas;

“load lines” means the marks indicating severalmaximum depths to which a ship is permitted to be loaded in variouscircumstances prescribed by maritime Regulations or Regulations made under thisDecree;

“marine protection Regulations” means marineprotection Regulations made by the Minister under Part 15;

“Maritime Appeal Authority” means the Authorityestablished under section 62 for the purposes of hearing appeals againstdecisions made under section 36;

“Maritime Appeals Committee” means the committeeappointed under section 29 (2) of the Maritime Safety Authority of Fiji Decree2009, for the purposes outlined under that Decree and section 264 of thisDecree;

“maritime document” means those documents thatcertify the seaworthiness of a ship and the suitability of a person to carryout the relevant maritime activity and such documents include—

(a) any license, permit,certificate or other document issued under Part 3 to, or in respect of anyperson, ship, cargo, maritime procedure, or maritime equipment; and

(b) any foreign license, permit, certificate, or otherdocument recognised by the Chief Executive Officer under section 25 or acceptedby the Chief Executive Officer under section 26;

“marine protection documents” means those documentsthat certify the suitability of—

(a) a ship to carryenvironmentally harmful substance including but not limited to noxious liquidsubstances and oil, onboard overseas bound cargo-carrying ships; and

(b) offshore sites to dischargeharmful substances associated with the operations;

“maritime equipment” means anything that comprisesor is intended to comprise of any part of a ship or that is intended to beinstalled in or fitted or supplied to a ship and includes—

(a) safety equipment;

(b) nautical instruments andpublications, whether or not computerised or electronic, used or intended to beused in the operation of a ship;

(c) electronic navigationalaids used or intended to be used in the operation of a ship;

(d) radio and othercommunication equipment;

(e) fuel and other similar consumable items necessary for theoperation of a ship;

“maritime Regulations” means maritime Regulationsmade by the Minister under this Decree;

“master” means any person except a pilot havingcommand or charge of any ship at a particular time;

“Minister” means the Minister responsible forTransport;

“Ministry” means the Ministry responsible forTransport;

“mishap” means an event that—

(a) causes any person to beharmed; or

(b) in different circumstances,might have caused any person to be harmed;

“municipality” of a city or town, includes portsand marinas that are located both within and outside the municipal boundary butwithin the province;

“nautical instruments and publications” means thoseinstruments and publications including computerised or electronic instrumentsand publications used or intended to be used in the navigation of a ship;

“navigational aid” means any aid to marinenavigation that is carried on board any ship;

“net tonnage” in relation to any ship means—

(a) the net tonnage of thatship determined or recognised in accordance with the provisions of this Decree;or

(b) where a ship has beenassigned alternative net tonnages, the higher of those net tonnages;

“offshore installation” or “device” means anyinstallation, or equipment or other property whatsoever that is constructive,erected or placed in Fiji waters for the purpose of the exploration of thesea-bed or subsoil or the exploitation of mineral resources or naturalresources thereof but does not include a pipeline;

“operate” in relation to a ship, means to sail oruse the ship, or cause or permit the ship to sail, be used, or be in any place,whether or not the person is present with the ship; and operating, operation,and operator shall have corresponding meanings;

“operating in Fiji waters” means any activityundertaken in Fiji waters that involves calling in to a Fiji port; but does notinclude the passage by a ship through Fiji waters that does not involve callingin to a Fiji port;

“owner” in relation to—

(a) a ship registered in Fijiunder the Ship Registration Decree 2013, means the registered owner of theship;

(b) in relation to a shipregistered in any place outside Fiji, means the registered owner of the ship;

(c) a fishing ship, other thanone to which paragraph (a) or paragraph (b) applies, means theperson registered as the owner under section 6 of the Fisheries Act (Cap. 158);

(d) a ship to which paragraphs (a),(b) or (c) applies, where, by virtue of any charter or demise or forany other reason, the registered owner is not responsible for the management ofthe ship, includes the charterer or other person who is for the time being soresponsible; and

(e) an unregistered ship or aregistered ship that does not have a registered owner, means the person who isresponsible for the management of the ship;

“participant” means any person who engages in orcarries out any maritime activity for which a maritime document is required;

“passenger” means any person on a ship, other than—

(a) the master and members ofthe crew, and any other person employed or engaged in any capacity on board theship on the business of the ship;

(b) a person on board the shipeither in pursuance of an obligation laid upon the master to carry shipwrecked,distressed, or other persons, or by reason of any circumstance that neither themaster nor the owner nor the charterer (if any) could have prevented orforestalled; and

(c) a child under the age ofone year;

“pilot” in relation to any ship, means any personnot being the master or a member of the crew of the ship who has the conduct ofthe ship;

“plant” includes—

(a) appliance, equipment,fitting, furniture, implement, machine, machinery, tool, and vehicle;

(b) part of any plant, thecontrols of any plant, and anything connected to any plant;

“pleasure craft” means a ship that is usedexclusively for the owner’s pleasure or as the owner’s residence, and is notoffered or used for hire or reward;

“port” means prescribed ports including marinas,wharves, harbour, including a port that is declared under the Sea PortsManagement Act 2005, the Customs Act 1986, and under section 117 of thisDecree;

“Port Master” means the Port Master appointed undersection 101 for the purpose of controlling the movement of ships withinprescribed ports;

“Port State Control Officer” means a personappointed under section 101 for the purpose of inspecting foreign registeredships;

“prescribed” means prescribed by this Decree or byRegulations made under this Decree or made under other written law;

“proper officer” in relation to any country otherthan Fiji, means—

(a) the person who is, by thelaw of that country, authorised or required—

(i)to do or perform the act or duty to which reference is made in the provisionsof this Decree in which the expression occurs; or

(ii)to do or perform, in relation to ships registered in or belonging to thatcountry, any act or duty of the same nature as the act or duty to whichreference is made in the provisions of this Decree in which the expressionoccurs;

(b) a consular officer of Fijiin any other country;

“reward”—

(a) in the definition of theterm employer and in the definition of the term seafarer, means anyremuneration, recompense, or other payment for service whether of money ormoney’s worth;

(b) in the definition of the term pleasure craft—

(i)includes the payment either of money or money’s worth and whether directly orindirectly, to or for the benefit of the owner or master of a ship, of acontribution towards the expenses of a voyage by or on behalf of persons, orthe owners of cargo, carried on board the ship during the voyage; but

(ii) does not include the payment of any suchcontributions exclusively by part owners of the ship or by persons engaged asbona fide crew members;

“Regulations” includes maritime Regulations andmarine protection Regulations;

“safety equipment” means any equipment carried on aship for the health or safety of any person during the normal operation andworking of the ship or for fire or the abandonment of the ship or otheremergency; and includes anchors and chain cables;

“seafarer”—

(a) means any person who—

(i)is employed or engaged on any ship in any capacity for hire or reward; or

(ii) works on any ship for gain or reward otherwisethan under a contract of employment; but

(b) does not include a pilot or any person temporarilyemployed on a ship while it is in port;

“serious harm” and “seriously harmed” means—

(a) harm that results in death;or

(b) accident as defined in section 5 of the Health and Safetyat Work Act of 1996;

“ship” means every description of boat or craftused in navigation, whether or not it has any means of propulsion and includes—

(a) a barge, lighter, or otherlike ship;

(b) a hovercraft or other thingderiving full or partial support in the atmosphere from the reaction of airagainst the surface of the water over which it operates;

(c) a submarine or other submersible;

“system” in relation to a ship, means any systemincorporated in the ship which contributes to the safe navigation and workingof the ship during normal operation or is required in the event of anyemergency;

“territorial sea of Fiji or territorial sea” meansthe territorial sea of Fiji as defined by section 5 of the Marine Spaces Act(Cap. 158A);

“tonnage measurement” means measurement of a shipin accordance with the requirements of maritime Regulations;

“unit of account” means 1 special drawing right asdefined by the International Monetary Fund, the calculation of which, in Fijicurrency, is in accordance with section 82;

“voyage” means a journey by water from one port—

(a) to another port; or

(b) back to the same port without calling at any other port;

“warship”—

(a) means a ship belonging to the armed forces of a State andbearing the external marks distinguishing the nationality of ships of thatState, being a ship—

(i)under the command of an officer duly commissioned by the Government of thatState whose name appears in the appropriate service list or its equivalent; and

(ii) crewed by crew subject to regular armed forcesdiscipline; and

(b) includes any shiprequisitioned by the Republic of Fiji Military Forces; but

(c) does not include any shipoperated by the Republic of Fiji Military that operates, for the time being,for a commercial purpose.

Decree to bind the State

3. This Decree shall bind the State.

Application of this Decree

4. Unless otherwise provided, this Decree shall notapply to—

(a) warships; or

(b) any ship owned or operatedby a State other than Fiji, if the ship is being used by that State for governmentalpurposes, and not commercial purposes.

 

PART 2—DUTIES IN RELATION TO MARITIME ACTIVITY

Duties of master

5.—(1) The master of a ship shall be responsiblefor the safe operation of the ship on a voyage, including the safety andwellbeing of all passengers, crew and cargo carried.

(2) For the avoidance of doubt, subject tosubsection (1), the Master shall have the final authority to control the shipwhile in command and for the discipline of all persons on board.

(3) The Master shall, in exercising his or herauthority in subsection (2), comply with the provisions of this Decree.

(4) It shall be a defence for the Master, in theevent of any breach of the provisions of this Decree or Regulations made underthis Decree if he or she acted in a manner pursuant to section 6.

(5) Any master who, without reasonable excuse,fails to comply with this section commits an infringement offence in accordancewith section 262 and is liable to a fine not exceeding $2,000.

Event of emergency

6.—(1) Notwithstanding section 5 (3), the Mastershall, during an emergency, perform any act, whether or not it is contrary toany provision of this Decree, in which in his or her discretion, is required tofulfil his or her responsibilities.

(2) For the purposes of subsection (1), a breach ofany prescribed requirement is permitted only if—

(a) the emergency involves adanger to life or property;

(b) the extent of the breach ofthe prescribed requirement goes only as far as is necessary to deal with the emergency;

(c) there is no otherreasonable means of alleviating, avoiding, or assisting with the emergency; and

(d) the degree of dangerinvolved in complying with the prescribed requirement is clearly greater thanthe degree of danger involved in deviating from it.

Notification of emergency

7.—(1) In the event of an emergency, the Mastershall, as soon as practicable, notify the Chief Executive Officer or anyauthorised person of the emergency.

(2) The Master shall, if requested by the ChiefExecutive Officer or the authorised person, provide a written report in respectof the action.

Duty to assist persons indanger and to respond to distress calls

8.—(1) The master of a Fiji ship or a foreign shipin Fiji waters shall provide assistance to any person found at sea or any shipin distress.

(2) If the Master of a ship receives a signal thata ship, aircraft, or survival craft is in distress, the master of a ship shall,subject to subsection (5)—

(a) proceed with all reasonablespeed to the assistance of the persons in distress and, if possible, informthem of that fact; and

(b) comply with any requisitionto the master’s ship by the master of the ship in distress by continuing toproceed with all speed to the assistance of persons in distress.

(3) In the event of a collision, the Master shallprovide the Master of the other ship the following information—

(a) his or her name;

(b) the name of his or hership;

(c) port of registry; and

(d) the nearest port at which it will call.

(4) If, as a result of a collision, a ship becomesun-seaworthiness, the Master shall accommodate the passengers and crew of theother ship.

(5) Notwithstanding the provisions of this sectionthe master may restrain from providing assistance if he or she—

(a) is unable due to reasonabledanger to his or her ship and crew, or, in the special circumstances of thecase, considers it unreasonable, impracticable or unnecessary to proceed to theassistance of the persons in distress;

(b) is informed that one ormore ships have been requisitioned and are complying with the requisition; or

(c)isinformed by the person in distress or by the master of another ship which hasreached the persons in distress that assistance is no longer necessary.

(6) The master of a Fiji ship that is required to carry alogbook shall enter in the logbook a record of every distress signal receivedand any reason for failing to attend to the assistance of persons in distressin accordance with subsection (2) (a).

(7) Any master who fails to comply with this sectioncommits an offence and is liable upon conviction to a fine not exceeding$10,000 or imprisonment of a term not exceeding 12 months or to both.

Duty to reportdismissals

9.—(1) The employer of any seafarer on a Fiji shipshall report in writing to the Chief Executive Officer any dismissal fromemployment of a seafarer that is related to violence or alcohol and such reportshall be provided within 14 days from the date of dismissal, stating thereasons for the dismissal.

(2) The Chief Executive Officer shall not release thename of any person reported under subsection (1) unless the person’s nameappears on a list maintained under section 36 (5); and any release of such aname shall be made only to the extent provided for in section 36 (5).

Pleasure craft departingfor overseas

10.—(1) The Chief Executive Officer shall not permit apleasure craft to depart from any port in Fiji for any place outside Fijiunless he or she—

(a) has been notified in writing of the proposed voyageand the full name of the person who is in command of the pleasure craft;

(b) is satisfied that the pleasure craft, its crew and itssafety equipment are adequate for the voyage;

(c) is satisfied that the pleasure craft and the mastercomply with any relevant maritime Regulations; and

(d) is satisfied that a certificate of clearance has beenissued pursuant to section 72 of the Customs Act 1986.

(2) Any person who operates a pleasure craft andcauses it to depart from any port in Fiji without the permission of the ChiefExecutive Officer, commits an offence.

Employer’s duties inrelation to seafarers on Fiji ships on overseas voyages

11.—(1) An employer of a seafarer on any Fiji ship,other than a pleasure craft, going on an overseas voyage shall,

(a) prior to the departure of the ship—

(i) enter into articles of agreement, in a formapproved by the Chief Executive Officer and in the manner prescribed in Part 5of the Employment Relations Promulgation 2007 with every seafarer, except themaster, in relation to the voyage; and

(ii) post the articles of agreement up in a place onthe ship easily accessible from the seafarer’s quarters; and

(b) ensure that any termination of a period of employmentof a seafarer is by notice in writing; and

(c)makeprovision on termination of the voyage to return each seafarer to his or herown country, the port where that seafarer was employed, the port where thevoyage commenced or such other place (if any),where the seafarer has been leftbehind by the ship by reason of—

(i) injury sustainedduring his or her employment on the ship;

(ii) shipwreck;

(iii) illness, which isnot due to the seafarer’s own wilful act or default; or

(iv) discharge for anycause for which the seafarer cannot be held responsible,

(d) meet all expenses thatis incurred by the seafarer under paragraph (c) or as may be agreed bythe seafarer and employer and

(e) provide to the seafarer,if requested by the seafarer, a certificate as to the quality of the seafarer’swork and whether the seafarer has fully discharged his or her obligations underany articles of agreement with the employer.

(2) The articles ofagreement shall include a statement that the agreement shall be terminated by—

(a) either party accordingto the principles of the Employment Relations Promulgation 2007;

(b) mutual consent of theemployer and the seafarer;

(c) death of the seafarer;or

(d) loss or totalunseaworthiness of the ship.

(3) Where the employerfails to comply with his or her obligations under subsection (1) (c),the seafarer on a Fiji ship may recover from his or her employer, or any agentof the employer, the reasonable expenses incurred by the seafarer in returningto his or her own country, or to the port where the seafarer was employed.

(4) Any employer whofails to comply with this section, commits an offence and shall be liable uponconviction to a fine not exceeding $4,000.

(5) For the purposes ofthis section—

“overseas voyage” meansa voyage to a port outside Fiji;

“reasonable expenses”means all reasonable transportation charges, accommodation, medical expensesand food expenses, in respect of the period commencing when the seafarer wasleft behind and ending with the end of the return journey; and includes maintenancein respect of the period commencing when the seafarer was left behind andending with the time fixed for the seafarer’s return journey departure.

Employer’s duties in relation to seafarers on Fijiships

12.—(1) Every employerof seafarers on a Fiji ship shall—

(a) provide food and watersupplies which, having regard to the size of the crew and the duration andnature of the voyage, are suitable in respect of quantity, nutritive value,quality, and variety taking into account each crew member’s different culturaland religious beliefs and background;

(b) ensure that any seafarerrequiring medical attention while overseas and whether onboard or offshorereceives all necessary medical attention at the employer’s expense;

(c) in the event of the lossor foundering of the ship, pay to every seafarer wages at the normal rate until—

(i) the seafarer isotherwise employed; or

(ii) the expiry of 2months from the date of the loss or foundering—

whichever first occurs;

(d) maintain a record (in aform prescribed or in a form approved by the Chief Executive Officer) of theemployment on board a Fiji ship of every seafarer employed on that ship by thatemployer and provide to a seafarer, if requested by that seafarer, a copy ofthe record applying to that seafarer; and

(e) maintain employmentgrievances and employment dispute procedures in accordance with Part 13 andPart 17 of the Employment Relations Promulgation 2007, and post such proceduresup in a place on the ship easily accessible from the crew quarters.

(2) Any wages payableunder subsection (1) shall be recoverable in the same manner as wages earned bythe seafarer during his or her normal employment.

(3) Any employer whofails to comply with this section commits an offence and shall be liable uponconviction to a fine not exceeding $5,000.

Inspection of provision of supplies

13.—(1) Without limitingsection 226, the Chief Executive Officer shall, upon receipt of a writtencomplaint from not less than half the crew of a Fiji ship, carry out suchinspections and audits under that section as he or she considers appropriate toascertain compliance with section 12 (1) (a).

(2) The Chief ExecutiveOfficer shall carry out such inspections and audits only after the proceduresin section 12 (1) (e) have been exhausted.

Body and effects of deceased seafarer

14.—(1) Subject tosubsection (2), every employer of seafarers on a Fiji ship shall make suitablearrangements for the body and effects of any seafarer who dies in the course ofa voyage, which may include the return of the body to the deceased’s next ofkin or the burial or cremation of that body.

(2) The employer shallmake reasonable attempts to return the body and personal effects of thedeceased seafarer to the next of kin and bear any such costs incidental to therepatriation of the body and return of personal effects where in thecircumstances it is practicable to do so.

(3) For the purpose ofthis section, a person’s next of kin shall be a person or persons nominated bythe deceased seafarer as per the ship’s seamen’s record book and the crewagreement.

Provisions relating to crewing of Fiji ships and youngpersons

15.—(1) Every employerof seafarers on a Fiji ship shall keep a register of all persons under the ageof 18 years who are employed on that ship and the register shall include thedate of birth of each such person.

(2) No person shallemploy on any Fiji ship—

(a) any person who isneither certified as competent nor otherwise qualified to perform their duties;or

(b) any person under the ageof 18 years as an engine room rating or deck watch rating.

(3) Notwithstandingsubsection (2), where an employer has not been able, after taking allreasonable steps, to obtain a person over 18 years of age as an engine roomrating or deck watch rating, the employer may employ on a Fiji ship a personover the age of 16 years as an engine room rating or deck watch rating in thatport, but in any such case 2 persons over the age of 16 years shall be employedto do the work which would otherwise have been performed by 1 person over theage of 18 years.

(4) Subject to theprovisions of the Employment Relations Promulgation 2007, nothing in subsection(2) applies to the employment of a person to carry out work on a training shipif the carrying out of such work by a person of that age is approved by theChief Executive Officer.

(5) Any person who actsin contravention of this section commits an offence and is liable uponconviction to a fine not exceeding $1,000.

Prohibition on receiving remuneration for placingseafarers in employment

16.—(1) Any person otherthan an authorized person under Regulation 11 of the Employment Relations(Employment Agencies) Regulation 2008, shall not carry on for pecuniary gain,charge, or fee directly or indirectly, any undertaking in relation to thefinding of employment for seafarers on any ship.

(2) Any person who actsin contravention of subsection (1) commits an offence and is liable uponconviction to a fine not exceeding $1,000.

Members of crew not to contract out of rights

17.—(1) Any member ofthe crew of a ship shall not by any agreement—

(a) forfeit his or her lienon the ship;

(b) be deprived of anyremedy for the recovery of his or her wages;

(c) abandon his or her rightto wages in case of the loss of the ship; or

(d) abandon any right thathe or she may have or obtain in the nature of salvage.

(2) Any stipulation inan agreement inconsistent with subsection (1) shall be void to the extent ofthat inconsistency.

Master to have same rights as members of crew

18.—(1) The master of aship shall, so far as the case permits, have the same rights, liens, andremedies for the recovery of his or her wages as a member of the crew of theship has under this Decree or by any other written law.

(2) The master of aship, and every person lawfully acting as master, shall have the same rights,liens and remedies for the recovery of disbursements and liabilities properlymade or incurred, by the master and every person lawfully acting as master, asa master has for the recovery of his or her wages.

Recording of accidents, incidents and mishaps

19. Every employer ofseafarers on a Fiji ship shall maintain, in a form approved by the ChiefExecutive Officer, a register of accidents, incidents, and mishaps and shallrecord in the register particulars relating to—

(a) every accident orincident; and

(b) every mishap.

Obligation to notify all accidents, incidents andmishaps

20.—(1) The master of aFiji ship or a foreign ship in Fiji waters which is involved in a mishap, anaccident, or an incident, shall notify the accident, incident or mishap to theAuthority as soon as practicable.

(2) If, due to injuriesor death or for other good reason, the master of a ship is unable to give thenotice under subsection (1), the operator of the ship shall provide the notice.

(3) Any person who—

(a) operates, maintains, orservices, or does any other act in respect of any Fiji ship, any foreign shipin Fiji waters, or any maritime equipment; and

(b) is involved in anaccident, incident or mishap, involving a Fiji ship, or a foreign ship in Fijiwaters—

shall, where required todo so under maritime Regulations, notify the accident, incident or mishap tothe Authority as soon as practicable.

(4) Any person who failsto comply with subsections (1) to (3) commits an offence and shall be liableupon conviction to a fine not exceeding $10,000.

(5) The coordinator ofany search and rescue operation for any ship or person missing at sea shallnotify the Authority of the operation as soon as practicable.

(6) The Authority may,on being notified under this section, request such additional information as itconsiders appropriate in each specific case, and the master or operator orperson to whom the request is made shall provide the additional informationrequested.

(7) Any person who failsto comply with subsections (5) and (6) commits an offence and shall be liableupon conviction to a fine not exceeding $5,000.

Reporting of dangers to navigation

21.—(1) The master of aFiji ship or a foreign ship in Fiji waters, shall report to ships in thevicinity, and the nearest radio communication station with which it is possiblefor the ship to communicate, any danger to navigation, including the failure ordisplacement of any navigational aid.

(2) Any person who failswithout reasonable excuse, to comply with this section, commits an infringementoffence in accordance with section 262 and shall be liable to a fine notexceeding $5,000.

 

PART3—FURTHER REGULATION OF MARITIME ACTIVITY

Maritime Regulations relating to maritime documents

22.—(1) MaritimeRegulations made pursuant to this Decree may require that a maritime documentbe held by or in respect of all or any of the following—

(a) Fiji ships;

(b) all ships, includingforeign ships operating in Fiji waters;

(c) the owners and operatorsof, and seafarers on, Fiji ships or foreign ships operating in Fiji waters;

(d) persons or organisationshaving a direct involvement in ship operations, ship or maritime equipmentsafety services;

(e) maritime equipment usedon, by, or in relation to Fiji ships or foreign ships operating in Fiji waters;

(f) persons from theAuthority or organisations that provide—

(i) maritime training;

(ii) the testing,inspecting or surveying, audit, or certification of ships or maritime products;or

(iii) the design,manufacture, or maintenance of ships or maritime equipment;

(g) shipping operations andmanagement;

(h) shipping containers;

(i) navigational aidinstallations;

(j) such other persons,ships, maritime equipment, maritime related services, facilities, and equipmentas may be operated or engaged or used in Fiji waters or in support of themaritime system.

(2) Subject to anymaritime Regulations, a maritime document may be issued or a document may berecognised as a maritime document, by the Chief Executive Officer for suchperiod and subject to such conditions as the Chief Executive Officer considersappropriate in each particular case.

Application for maritime document

23.—(1) Any applicationfor the grant or renewal of a maritime document or the recognition of adocument as a maritime document shall be made to the Chief Executive Officer inthe prescribed form.

(2) Any applicant for amaritime document shall include in his or her application, his or her addressfor service in Fiji including where applicable, telephone and facsimilenumbers.

(3) Any holder of amaritime document whose address for service, telephone number or facsimilenumber has changed must as soon as reasonably practicable, notify the ChiefExecutive Officer of the change in writing.

(4) Any person who actsin contravention of subsection (3) commits an offence and is liable uponconviction to a fine not exceeding $2,000.

(5) The Chief ExecutiveOfficer shall ensure that a record of all information provided under thissection is maintained by the person in-charge of the Maritime Register.

(6) Service of anynotification under this Decree on a holder of, or an applicant for, a maritimedocument shall be effective service if served at the address last provided bythat holder or applicant under this section.

Issue of maritime documents and recognition ofdocuments

24.—(1) Afterconsidering any application under section 23, the Chief Executive Officershall, as soon as practicable, grant the application if he or she is satisfiedthat—

(a) the document or anapplication for recognition of a document as a maritime document, meet anyrelevant prescribed requirements;

(b) the applicant and anyperson who is to have or is likely to have control over the exercise of theprivileges under the document—

(i) either holds therelevant prescribed qualifications and experience or hold such qualificationsas are acceptable to the Chief Executive Officer under subsection (2);

(ii) are fit and properpersons to have such control or hold such document; and

(iii) meet all otherrelevant prescribed requirements; and

(c) it is not contrary tothe interests of maritime safety for the document to be granted, renewed, orrecognised.

(2) For the purpose ofgranting or renewing a maritime document, or recognising a document as amaritime document, the Chief Executive Officer may, subject to any provisionsin the maritime Regulations, recognise such qualifications or certifications ashe or she considers appropriate in each case.

Foreign qualifications or foreign certificates

25.—(1) The ChiefExecutive Officer shall not recognise foreign qualifications or foreigncertificates where—

(a) the requirements to gainsuch qualifications or to obtain such certificates are less than therequirements to gain similar qualifications or to obtain similar certificatesin Fiji; and

(b) the Chief ExecutiveOfficer believes that to recognise such qualifications or certificates mightpose a risk or danger to the safety of any person, to property, or to themarine environment.

(2) Where a licence,permit, certificate, or other document is recognised by the Chief ExecutiveOfficer under this section, the Chief Executive Officer shall either—

(a) issue an equivalentmaritime document to the holder or applicant of the document under thissection; or

(b) notify the holder orapplicant of the document in writing of such recognition.

(3) It shall be acondition of every current maritime document issued or recognised by the ChiefExecutive Officer that the holder shall continue to satisfy the criteriaspecified in section 24 (1) (b) (ii).

(4) Where the ChiefExecutive Officer refuses to grant an application under section 23, theapplicant may appeal against that decision to Maritime Appeals Committee undersection 264.

(5) Nothing in thissection applies in respect of any ship, crew, or maritime equipment in respectof which section 26 applies.

Acceptance of Convention documents

26.—(1) Subject tosubsection (2), the Chief Executive Officer shall accept every valid licence,permit, certificate, or other document issued or approved by a State, otherthan Fiji, under a Convention to which that State and Fiji are both parties;and, for the purposes of this Decree, such documents shall be deemed to bemaritime documents.

(2) The Chief ExecutiveOfficer shall not accept, or shall suspend acceptance of, any documentsreferred to in subsection (1) where he or she has reasonable grounds forbelieving that—

(a) the condition of theship or maritime equipment does not correspond with the particulars of anydocument relating to the ship or maritime equipment;

(b) the condition of theship or maritime equipment has not been maintained in accordance with theprovisions of any requirements leading to the issue of that document;

(c) the ship is not in allrespects fit to proceed to sea without danger to the ship or the persons onboard or without presenting an unreasonable threat of harm to the marineenvironment;

(d) the ship or maritimeequipment has been materially altered without the sanction of the State thatissued or approved the document;

(e) the document has beenfraudulently obtained; or

(f) the holder of thedocument is not the person to whom the document was originally issued.

(3) This section shallapply to—

(a) every ship, other than aFiji ship, registered in a country that is a party to any Convention to whichFiji is also a party;

(b) the crew of every shipreferred to in paragraph (a);

(c) the maritime equipmentof every ship referred to in paragraph (a).

(4) Any person whowithout reasonable excuse contravenes this section commits an infringementoffence in accordance with section 262 and shall be liable—

(a) in the case of anindividual, to a fine not exceeding $5,000; and

(b) in the case of a bodycorporate, to a fine not exceeding $30,000.

Suspension of maritime documents or imposition ofconditions

27.—(1) The ChiefExecutive Officer may—

(a) suspend whole or part ofany maritime document under this Decree or under any maritime Regulations;

(b) impose conditions inrespect of any such maritime document;

(c) suspend the recognitionof the whole or part of a document as a maritime document issued by anotherperson or organisation; or

(d) impose conditions inrespect of such recognition—

if he or she considerssuch action necessary in the interests of maritime safety, and if he or she—

(i) is satisfied thatthe holder has failed to comply with any conditions of the relevant maritimedocument or with the requirements of this Decree;

(ii) is satisfied theholder has contravened or failed to comply with section 250;

(iii) is satisfied thatsuch action is necessary to ensure compliance with any provisions of thisDecree or any Regulations made under this Decree;

(iv) considers that theprivileges or duties for which the document has been granted, or the relevantdocument has been recognised as a maritime document, are being carried out bythe holder in a careless or incompetent manner; or

(v) considers that thereis reasonable doubt as to the seaworthiness of the ship or as to the quality orsafety of the maritime equipment to which the document relates.

(2) Unless thesuspension or the imposition of conditions is extended under subsection (3) orremains in force by virtue of subsection (5), the suspension of a maritimedocument, the suspension of recognition of a document as a maritime document,or the imposition of conditions under this section remains in force until—

(a) the close of the 14th dayafter the date of the imposition of the suspension or conditions; or

(b) the Chief ExecutiveOfficer decides what action under subsection (3) or section 39 is to be taken,—

whichever happens first.

(3) Before the expiry ofthe 14-day period referred to in subsection (2) (a), the Chief ExecutiveOfficer may, on the grounds set out in subsection (1) do one or more of thefollowing—

(a) extend the period of asuspension, or the period during which conditions apply, by a specified furtherperiod;

(b) impose, vary, or liftconditions; or

(c) suspend the maritimedocument, or recognition of the document as a maritime document, for aspecified period.

(4) When a maritimedocument or recognition of a document as a maritime document is suspended or amaritime document is made subject to conditions under this section, the holderof the document or recognition, must immediately produce the maritime documentor the document of recognition to the Chief Executive Officer, and—

(a) the Chief ExecutiveOfficer must endorse the document to indicate the action taken under thissection; and

(b) the Chief ExecutiveOfficer may retain a document while it is suspended.

(5) If notice of aproposed revocation of a maritime document or recognition of a document as amaritime document is given in accordance with section 35 either at the sametime as the suspension of the document or recognition under this section orwhile the suspension is in force, the document or recognition to which thenotice relates remains suspended until the Chief Executive Officer decideswhether to revoke the document or recognition under section 29.

(6) Any person whowithout reasonable excuse contravenes this section commits an infringementoffence in accordance with section 262 and shall be liable—

(a) in the case of anindividual, to a fine not exceeding $5,000;

(b) in the case of a bodycorporate, to a fine not exceeding $30,000.

(7) Any person inrespect of whom any decision is taken under this section may appeal againstthat decision to the Maritime Appeals Committee under section 264.

Suspension or revocation of maritime document whereprescribed fees or charges unpaid

28.—(1) Where any fee orcharge payable under this Decree or any Regulations made under this Decree, isnot paid by the date prescribed or fixed for payment of that fee or charge, theChief Executive Officer may suspend the maritime document, or suspendrecognition of the document as a maritime document, to which the unpaid fee orcharge relates.

(2) Where any fee orcharge payable under this Decree or under any Regulations made under thisDecree is not paid within 6 months after the date prescribed or fixed forpayment of that fee or charge, the Chief Executive Officer may revoke themaritime document, or revoke recognition of the document as a maritimedocument, to which the fee or charge relates.

(3) Before undertakingany action under subsections (1) or (2), the Chief Executive Officer shallnotify the holder of that document of—

(a) the Chief ExecutiveOfficer’s intention to act under subsections (1) or (2); and

(b) the right of appealavailable to the holder of that document in the event of the Chief ExecutiveOfficer taking such action.

(4) Where a maritimedocument or recognition of a document as a maritime document has been revokedunder this section, the holder shall forthwith handover that document ornotification of recognition of that document to the Chief Executive Officer.

(5) Wherea fee or charge is payable to the Authority in respect of an application or theprovision of a service, the Chief Executive Officer, may, unless the safety ofany person would be put at risk, decline to process that application or providethat service until the appropriate fee or charge has been paid, or arrangementsacceptable to the Authority or the Chief Executive Officer, for payment of thefee or charge have been made.

(6) Anyperson in respect of whom any decision is taken under this section may appealagainst that decision to the Maritime Appeals Committee under section 264.

Revocation of maritime documents

29.—(1)The Chief Executive Officer may after an investigation is carried out to decidewhether any action should be taken under section 27, revoke any document or therecognition of any such document where the Chief Executive officer believes onthe basis of the results of the investigation that such action is necessary.

(2) Wherethe Chief Executive Officer proposes to revoke a maritime document or therecognition of a document as a maritime document, the Chief Executive Officershall give notice in accordance with section 35, which shall apply as if theproposed revocation were a proposed adverse decision under this Decree.

(3) Wherea maritime document or recognition of a document as a maritime document hasbeen revoked under this section, the holder shall forthwith surrender thatdocument or notification of recognition of that document to the Chief ExecutiveOfficer.

(4) Anyperson in respect of whom any decision is taken under this section may appealagainst that decision to the Maritime Appeals Committee under section 264.

Amendment or revocation in other cases

30.—(1)The Chief Executive Officer may,—

(a) if so requested in writing by the holder of anymaritime document amend or revoke the document as requested;

(b) amend any maritime document to correct any clericalerror or obvious mistake on the face of the document.

(2)Subject to subsection (3), the Chief Executive Officer may do any of thefollowing—

(a) amend any maritime document where any privilege orduty for which the document has been granted is no longer being carried out, oris no longer able to be carried out, by the holder;

(b) revoke any maritime document, or revoke therecognition of any document as a maritime document, if none of the privilegesor duties for which the document has been granted are being carried out, or areable to be carried out, by the holder.

(3) Beforetaking any action under subsection (2), the Chief Executive Officer shallnotify the holder in writing of the proposed action and give the holder areasonable opportunity to comment or make submissions on the proposed action.

(4) Thepower to amend a maritime document under this section includes—

(a) power to revoke the document and issue a new documentin its place; and

(b) power to impose reasonable conditions.

(5) Whenthe holder of a maritime document is notified that the specified action isproposed under this section, the holder shall forthwith handover the documentto the Chief Executive Officer.

Criteria for action under sections 27 and 29

31.—(1)The provisions of this section shall apply for the purpose of determiningwhether a maritime under section 27 or revoked under section 29.

(2) Wherethis section applies, the Chief Executive Officer may have regard to, and givesuch weight as the Chief Executive Officer considers appropriate to, thefollowing matters—

(a) the person’s compliance history with transport safetyregulatory requirements;

(b) any conviction for anytransport safety offence, whether or not—

(i)the conviction was in a Fiji court; or

(ii)the offence was committed before the commencement of this Decree;

(c) any evidence that the person has committed a transportsafety offence or has contravened or failed to comply with any maritimeRegulation made under this Decree.

(3) TheChief Executive Officer may take into account such other matters and evidenceas may be relevant and as he or she thinks fit.

(4)Nothing in subsection (3) shall require the Chief Executive Officer to—

(a)discloseany information, the disclosure of which would be likely to endanger the safetyof any person; or

(b)discloseany information before—

(i)suspending a maritime document or suspending the recognition of a document as amaritime document; or

(ii)imposing conditions in respect of a maritime document under section 27.

Criteria for fit and proper person

32.—(1)For the purpose of determining whether or not a person is a fit and properperson for any purpose under this Decree, or under the maritime Regulations,the Chief Executive Officer shall, have regard to, and give such weight as heor she considers appropriate to the following matters—

(a)theperson’s compliance history with transport safety regulatory requirements;

(b)theperson’s related experience (if any) within the transport industry;

(c)thedegree and nature of the person’s proposed involvement in maritime activities,

(d)theperson’s knowledge of the applicable maritime regulatory requirements;

(e)anyhistory of physical or mental health problems or serious behavioural problems;

(f)anyconviction for any offence involving violence, or causing danger to any person,or criminal damage, whether or not—

(i)the conviction was in a Fiji court; or

(ii)the offence was committed before the commencement of this Decree;

(g)anyevidence that the person has committed a transport safety offence or hascontravened or failed to comply with any maritime Regulation;

(h)seekand receive such information, including medical reports as the Chief ExecutiveOfficer thinks fit;

(i)considerinformation obtained from other reliable sources;

(j)takeinto account such other matters and evidence as may be relevant and as theChief Executive Officer thinks fit.

(2)In the case of a conviction under subsection (1) (f), no person shall beunduly prejudiced if such offence does not, either in its trivial nature orfrom the circumstances under which it is committed, render such person unfit,in the public interest.

(3)Subsection (1) applies to a body corporate with the following modifications—

(a)paragraphs(a), (b), (c), (d), and (e) of that subsection shall be read asif they refer to the body corporate and its officers;

(b)paragraph(f) of that subsection shall be read as if it refers only to theofficers of the body corporate.

(4)If the Chief Executive Officer proposes to take into account any informationthat is or may be prejudicial to a person, he or she shall, subject tosubsection (5), disclose that information to that person and, in accordancewith section 35, give that person a reasonable opportunity to provide writtenreasons as to why that information should not be taken into account.

(5)Nothing in subsection (4) shall require the Chief Executive Officer to discloseany information, the disclosure of which would be likely to endanger the safetyof any person.

Exemption

33.—(1)Subject to subsection (2), the Chief Executive Officer may exempt any person,ship or maritime equipment from any specified requirement in this Decree or anymaritime Regulation where it is necessary in the circumstances of theparticular case.

(2)The Chief Executive Officer shall not grant an exemption under subsection (1)unless he or she is satisfied in the circumstances of each case that—

(a)thegranting of the exemption will not breach Fiji’s obligations under anyConvention; and

(b)either—

(i)the action taken or provision made in respect of the matter to which therequirement relates is as effective or more effective than actual compliancewith the requirement;

(ii)the prescribed requirements are clearly unreasonable or inappropriate in theparticular case; or

(iii)events have occurred that make the prescribed requirements unnecessary orinappropriate in the particular case; and

(c)therisk to safety will not be significantly increased by the granting of theexemption.

(3)The number and nature of any exemptions granted under subsection (1) shall benotified as soon as practicable by notice published in the Gazette.

(4)Nothing in this section shall apply in any case where any maritime Regulationspecifically provides that no exemptions are to be granted.

Examinations and tests for grant orrenewal of maritime documents

34.For the purposes of granting or renewing maritime documents in respect ofseafarers, master and crew under this Decree, the Chief Executive Officer orauthorised persons may set, conduct, and administer examinations and tests, andcarry out such other functions in relation to such examinations and tests asmay be necessary.

Notice to persons affected byproposed adverse decisions

35.—(1)In this section, unless the context otherwise requires,—

“adversedecision” means a decision of the Chief Executive Officer to the effect that aperson is not a fit and proper person for the purpose under this Decree orunder the maritime Regulations;

“affecteddocument holder” in relation to a person directly affected by an adversedecision, means the holder of or the applicant for the maritime document;

“persondirectly affected” in relation to any adverse decision, means the person whowould be entitled under section 264 to appeal against that adverse decision;

“personon the basis of whose character the adverse decision arises” in relation to anyadverse decision made or proposed to be made on the grounds referred to insection 30, means the person whom the Chief Executive Officer assesses as notbeing a fit and proper person.

(2)Where the Chief Executive Officer proposes to make an adverse decision underthis Decree in respect of any person, he or she by notice in writing, shall—

(a)notifythe person directly affected by the proposed decision;

(b)subjectto subsection (4), inform that person of the grounds for the proposed decision;

(c)specifya date not less than 21 days after the date on which the notice is given, bywhich submissions may be made to the Chief Executive Officer in respect of theproposed decision;

(d)whereappropriate, specify the date not less than 28 days after the date on which thenotice is given, on which the proposed decision will, unless the ChiefExecutive Officer otherwise determines, take effect;

(e)notifythe person of the person’s right of appeal under section 264, in the event ofthe Chief Executive Officer proceeding with the proposed decision; and

(f)specifysuch other matters as in any particular case may be required by any provisionof this or any other written law.

(3)Where the Chief Executive Officer gives a notice under subsection (2), he orshe—

(a)shallalso provide a copy of the notice to—

(i)any person on the basis of whose character the adverse decision arises, wherethat person is not the person directly affected by the proposed decision; and

(ii)any affected document holder, where the Chief Executive Officer considers thatthe proposed decision is likely to have a significant impact on the operationsof the document holder; and

(b)mayprovide a copy of the notice to any other affected document holder.

(4)No notice or copy of a notice given under this section shall include or beaccompanied by any information referred to in section 32 (1), except to theextent that—

(a)thenotice or copy is supplied to the person to whom the information relates; or

(b)thatperson consents to the supply of that information to any other person.

(5)Where any notice or copy of a notice is given to any person under this section,the following provisions shall apply—

(a)itshall be the responsibility of that person to ensure, that all information thatthat person needs the Chief Executive Officer to consider in relation to theproposed decision, is received by the Chief Executive Officer within the periodspecified in the notice under subsection (2) (c), or within such furtherperiod as the Chief Executive Officer may allow;

(b)theChief Executive Officer may consider any information supplied by that personafter the expiry of the period referred to in paragraph (a), other thaninformation requested by him or her and supplied by that person within suchreasonable time as the Chief Executive Officer may specify;

(c)theChief Executive Officer shall consider any submissions made in accordance withparagraph (a), other than information requested by him or her andsupplied pursuant to a request referred to in paragraph (b).

(6)After considering the matters referred to in subsection (5), the ChiefExecutive Officer shall—

(a)determinewhether or not to make the proposed adverse decision; and

(b)as soonas practicable thereafter, notify in writing the person directly affected, andany other person of a kind referred to in subsection (3) (a), of—

(i)the Chief Executive Officer’s decision and the grounds for the decision;

(ii)the date on which the decision will take effect; and

(iii)in the case of an adverse decision, the consequences of that decision and anyapplicable right of appeal under section 264.

Suspension of seafarers fromemployment

36.—(1)The Chief Executive Officer may direct any person who is required by thisDecree or Regulations made under this Decree to be in possession of a maritimedocument, who engages a seafarer, to suspend the employment of that seafarerif—

(a)theChief Executive Officer considers such action necessary in the interests ofmaritime safety; and

(b)either—

(i)the person is convicted of any offence relating to violence, or causing dangerto any person, or criminal damage, whether or not the conviction was in a Fijicourt or the offence was committed before the commencement of this Decree; or

(ii)the person has previously been dismissed from employment, which dismissal isrelated to violence or alcohol.

(2)Any person who does not comply with the directions given by the Chief ExecutiveOfficer in subsection (1) may have his or her maritime documents suspended orhave conditions imposed pursuant to section 27.

(3)Any person who suspends a seafarer in accordance with this section shallimmediately notify the Chief Executive Officer.

(4)The Chief Executive Officer shall maintain a list of persons suspended underthis section, and employers of seafarers or potential employers of seafarersmay request for such information to ascertain whether a particular person is asuspended person and the Chief Executive Officer shall advise accordingly.

Suspended persons not to beemployed

37.—(1)No person shall employ on board a Fiji ship, or any ship involved in coastalshipping under section 109 a person who has been suspended under section 36.

(2)Any person who has been suspended under section 36 shall not apply foremployment on board a Fiji ship, or any ship involved in coastal shipping undersection 109.

(3)Any person who acts in contravention of this section commits an infringementoffence in accordance with section 262 and is liable—

(a)in thecase of an individual, to a fine not exceeding $2,000; and

(b)in thecase of a body corporate, to a fine not exceeding $10,000.

Inspections, audits and shipclearance

38.—(1)The Chief Executive Officer may, in writing, require any person who—

(a)holds amaritime document; or

(b)operates,maintains, or services, or does any other act in respect of any ship ormaritime equipment,—

toundergo or carry out such inspections and such audits as the Authorityconsiders necessary in the interests of maritime safety or the health or safetyof seafarers and passengers or for any other related purposes under thisDecree.

(2)The Chief Executive Officer may, in respect of any person described insubsection (1), carry out such inspections and audits as the Chief ExecutiveOfficer considers necessary in the interests of maritime safety or the healthor safety of seafarers and passengers.

(3)For the purposes of any inspection or audit carried out in respect of anyperson under subsection (2), the Chief Executive Officer may, in writingrequire,—

(a)fromthat person, such information as the Chief Executive Officer considers relevantto the inspection or audit;

(b)thatperson to demonstrate the familiarity of the master or crew with essentialshipboard procedures for the safe operation of the ship;

(c)thatperson to demonstrate that any operational, maintenance, or servicing procedurein respect of a ship or a maritime equipment is capable of being carried out ina competent manner.

(4)Any person who fails to comply with any requirements under subsections (1) or(3) commits an infringement offence in accordance with section 262 and isliable,—

(a)in thecase of an individual, to a fine not exceeding $10,000 and, if the offence is acontinuing one, to a further fine not exceeding $2,000 for every day or part ofa day during which the offence is continued to be committed;

(b)in thecase of a body corporate, to a fine not exceeding $100,000 and, if the offenceis a continuing one, to a further fine not exceeding $20,000 for every day orpart of a day during which the offence is continued to be committed;

(c)in anycase, to an additional penalty under section 251.

Certificates to be produced beforeship goes to sea

39.—(1)The Chief Executive Officer or authorised officers may, before a ship heavesanchor, direct the master of the ship to produce to him or her—

(a)suchmaritime documents as are required under this Decree to be in force in respectof the ship; or

(b)theChief Executive Officer’s endorsement referred to in section 27 (4) (a).

(2)The master of the ship must comply with a direction given to him undersubsection (1).

(3)Any person who fails to comply with this section commits an infringementoffence in accordance with section 262 and is liable to a fine not exceeding$5,000.

Grounds for detention, seizure andimposition of conditions

40.—(1)The Chief Executive Officer may when necessary do all or any of the following—

(a)detainany ship or any ship of a particular class;

(b)seizeany maritime equipment of a particular class;

(c)prohibitor impose conditions on the use or operation of any ship of a particular class,or the use of any maritime equipment of a particular class; or

(d)imposeconditions on the release from detention or seizure of the ship or maritimeequipment.

(2)The powers under subsection (1) may be exercised where the Chief ExecutiveOfficer believes on clear grounds that—

(a)theoperation or use of any ship or maritime equipment or class of ship, as thecase may be, endangers or is likely to endanger any person or property, or ishazardous to the health or safety of any person;

(b)theappropriate prescribed maritime document is not for the time being in force inrespect of the ship, or the master or any member of the crew of that ship, orthe maritime equipment, as the case may be;

(c)anymaritime document required by maritime Regulations in respect of the ship ormaritime equipment, has expired;

(d)theconditions under which a maritime document in respect of a ship or maritimeequipment was issued or recognised, or the requirements of that document, arenot being met;

(e)thewatch keeping requirements specified for a ship by the State in which the shipis registered are not being met; or

(f)theconditions imposed under subsections (1) (c) or (d) are not beingmet.

(3)The powers under subsection (1) may also be exercised where the Chief ExecutiveOfficer is satisfied, on clear grounds, that the master is not, or crew arenot, familiar with essential shipboard procedures for the safe operation of theship.

(4)Subject to the provisions of this Decree, nothing in this section shall permitthe Chief Executive Officer to detain a ship where that detention wouldconstitute a breach of any Convention.

Detention to be maintained for suchtime as necessary

41.—(1)Any detention or seizure under section 40 shall be maintained subject tosubsection (2) for only such time as is necessary in the interests of maritimesafety or the health or safety of any person.

(2)Where ships, maritime equipment, or parts thereof are required for the purposeof evidence in any prosecution under this Decree, those ships, products, orparts thereof may be retained by the Chief Executive Officer for such period asthe Chief Executive Officer considers necessary for that purpose.

Reasons for detention to be inwriting

42.—(1)The Chief Executive Officer shall, if requested by the owner or the person forthe time being in charge of a ship detained or a maritime equipment seizedunder section 40, provide in writing to the owner or that person the reasonsfor the detention or seizure.

(2)Any person in respect of whom any decision is taken under section 40 may appealagainst that decision to the Maritime Appeals Committee under section 264.

Notification of any prohibition orconditions

43.—(1)For the purposes of section 40, the Chief Executive Officer shall notify inwriting any prohibitions or conditions to such persons as he or she considersnecessary or by such other means as the Chief Executive Officer considersappropriate in the circumstances.

(2)Any person who acts in contravention of or fails to comply with any prohibitionor condition notified under this section commits an offence and is liable uponconviction—

(a)in thecase of an individual, to imprisonment for a term not exceeding 12 months or afine not exceeding $5,000; and

(b)in thecase of a body corporate, to a fine not exceeding $20,000.

Costs of detention

44.—(1)Where the Chief Executive Officer acts under section 40 to detain a ship, theprovisions of section 277 shall apply to the costs of and incidental to thedetention.

(2)Where the Chief Executive Officer acts under section 40 to seize a maritimeequipment, the Authority may recover from the owner of such maritime equipmentall reasonable costs of and incidental to such seizure.

(3)The Authority shall be liable to pay to the owner of a ship or a maritimeequipment compensation for any loss resulting from the Chief Executive Officerunduly—

(a)detainingthe ship or maintaining the seizure of a maritime equipment; or

(b)delayingthe ship or the use of the maritime equipment.

(4)Where the Chief Executive Officer has taken action under section 40 on theinformation of a complainant and the information is subsequently found to befrivolous or vexatious, the complainant is liable to indemnify the Authorityfor all costs for which the Authority is liable under this section.

(5)Any person who acts in contravention of subsection (4) shall be guilty of aninfringement offence in accordance with section 262 and shall be liable to afine not exceeding $10,000.

Investigation and inquiry

45.—(1)Where an accident, incident, or mishap occurs that is required to be notifiedto the Authority under section 20, the Chief Executive Officer shall appointauthorised officers to undertaken—

(a)aninvestigation of the accident, incident, or mishap; and

(b)aninquiry where—

(i)a death or serious injury on board a ship has occurred;

(ii)a seaman belonging to a ship dies or suffers serious injury whilst away fromthe ship; or

(iii)any other matter which in the opinion of the Chief Executive Officer is in thepublic interest.

(2)For the purposes of subsection (1), the Chief Executive Officer shall appoint aperson or persons to undertake the investigation or inquiry and permit theparticipation or representation of foreign States in any investigation orinquiry in which they have an interest.

(3)Subject to subsection (5) where the Chief Executive Officer is in charge of aninvestigation, no person other than the Fiji Police, without the consent of theAuthority shall—

(a)participatein any investigation;

(b)undertakeany independent investigation at the site of any accident, incident, or mishap;or

(c)examineor cause to be examined any material removed from the site of any accident,incident, or mishap.

(4)Where the Chief Executive Officer refuses consent under subsection (3), he orshe shall give the applicant a statement in writing of the reasons for his orher refusal.

(5)Where an accident, incident, or mishap is being investigated by—

(a)aperson or persons appointed by the Chief Executive Officer; and

(b)any oneor more of the following, namely,—

(i)a visiting force; or

(ii)an inspector or other person under the Health and Safety At Work Act 1996;

theyshall take all reasonable measures to ensure that the investigations areco-ordinated.

(6)An investigation or an inquiry carried out under this Decree shall be in themanner prescribed by Regulations.

(7)An inquiry under subsection (6) must not be held in the case of the death of aperson if there is a requirement under the Inquests Act (Cap. 46) to hold aninquest into the manner and cause of the death of that person.

(8)The person conducting an inquiry under subsection (6) shall immediately upon completingthe inquiry forward a written report of his or her findings to the ChiefExecutive Officer, who may in turn make a copy of the report available uponrequest—

(a)if thereport relates to the death of a person—

(i)the next of kin of that person; and

(ii)any person who appears to the Chief Executive Officer to have sufficientinterest in the contents of the report; and

(b)if thereport relates to a serious injury to a person—

(i)that person or a person acting with a port management company of that person;and

(ii)any other person who appears to the Chief Executive Officer to have asufficient interest in the contents of the report.

Further investigation or inquiry bythe Authority

46.—(1)For the purposes of carrying out an investigation or inquiry under section 45,a person authorised for the purpose by the Chief Executive Officer, may—

(a)makeinquiries from any person who he or she has reason to believe is in possessionof information that may lead to discovery of the cause of the accident,incident, mishap, death or serious injury;

(b)issuein writing a summons requiring any person to attend at the time and placespecified in the summons and to give evidence, and to produce any documents orthings in that person’s possession or under that person’s control that arerelevant to the subject of the investigation or inquiry;

(c)takepossession of and remove any such document from the place where it is kept forsuch period of time as is reasonable in the circumstances; or

(d)requirea person to reproduce, or to allow the Chief Executive Officer, or authorisedperson, to reproduce in usable form any information recorded or stored on adocument electronically or by other means.

(2)A person who is required by the Chief Executive Officer or an authorisedperson, to do anything under subsection (1) for the purposes of an inquiryunder section 45, has the same privileges as a person giving evidence before acommission of inquiry under the Commissions of Inquiry Act (Cap. 47).

(3)A summons issued to witnesses under this section shall be in the formprescribed in Schedule 3.

(4)For the purposes of this section,

“document”means a document in any form; and includes—

(a)anywriting on or in any material;

(b)informationrecorded or stored by means of a tape recorder, computer, or other device; andmaterial subsequently derived from information so recorded or stored;

(c)arecord, book, graph, or drawing; and

(d)aphotograph, film, negative, tape, disk, or other device in which one or morevisual images are embodied or stored so as to be capable with or without theaid of equipment, of being reproduced.

(5)Any person who fails without reasonable cause to comply with any requirementsunder this section commits an infringement offence in accordance with section262 and is liable to a fine not exceeding $2,000.

Additional powers of investigation

47.Without limiting the powers conferred by section 45, for the purpose ofexercising any of the functions, duties, or powers of the Chief ExecutiveOfficer under this Decree, the Authority shall, in addition to any other powersconferred by this Decree, have power to do the following—

(a)whereit believes on reasonable grounds that it is necessary to preserve or recordevidence, or to prevent the tampering with or alteration, mutilation, ordestruction of any ship, place, maritime equipment, or any other thing involvedin any manner in an accident, incident, or mishap;

(b)toprohibit or restrict access of persons or classes of persons to the site of anyaccident, incident, or mishap; and

(c)toseize, detain, remove, preserve, protect, or test any ship, maritime equipment,or anything that the Authority believes on reasonable grounds will assist inestablishing the cause of an accident, incident, or mishap.

Master to ensure Regulationsrelating to pilotage are complied with

48.—(1)The master of a ship must ensure that a pilot is taken on board the ship inaccordance with and whenever required by maritime Regulations.

(2)Not withstanding anything in the maritime Regulations, the Chief ExecutiveOfficer may direct that a pilot be taken on board a ship in Fiji waters if theChief Executive Officer is satisfied that, in the circumstances the interestsof navigation safety or marine environmental protection require that a pilot betaken on board.

(3)The Chief Executive Officer while directing that a pilot be taken on board aship may have regard but not limited to the following factors—

(a)weatherconditions;

(b)damageto the ship; or

(c)incapacityof the master.

(4)A direction under subsection (2) must, whenever practicable, be in writing andmust be given to the owner or master of the ship to which it applies.

(5)Once a direction is given under subsection (2), the ship may not proceed fromor enter a port in Fiji without a pilot on board if to do so is contrary tothat direction or to a provision of the maritime Regulations.

(6)Where a ship proceeds without a pilot in contravention of this section, theowner and master of the ship, each commit an offence and are liable uponconviction—

(a)in thecase of an individual, to imprisonment for a term not exceeding 12 months or afine not exceeding $10,000;

(b)in thecase of a body corporate, to a fine not exceeding $100,000; and

(c)in anycase, to an additional penalty under section 251.

Limitation of liability where pilotengaged

49.—(1)Any port company, other body corporate or person, who provides a pilot shallnot be liable nor vicariously liable for any neglect or want of skill of thepilot.

(2)The owner or master of a ship navigating under circumstances in which pilotageis required is liable for any loss or damage caused by the ship or by any faultof the navigation of the ship in the same manner and to the same extent as thatperson would be if pilotage were not required.

(3)A pilot is not liable for neglect or want of skill while on board a ship andacting as a pilot.

 

PART 4—OFFENCES IN RELATION TOMARITIME ACTIVITY

Unnecessary danger caused by holderof maritime document

50.Where a holder of a maritime document in respect of any activity or service towhich the document relates, acts or omits to act, causes or permits any act oromission, where the act or omission poses unnecessary danger or risk to anyother person or property, whether such injury or damage does or does not occur,commits an offence and is liable upon conviction—

(a)in thecase of an individual, to a fine not exceeding $10,000 or imprisonment for aterm not exceeding 12 months;

(b)in thecase of a body corporate, to a fine not exceeding $50,000; and

(c)in anycase, to an additional penalty under section 251.

Dangerous activity involving shipsor maritime equipment

51.—(1)Any person who—

(a)operates,maintains, or services; or

(b)doesany other act in respect of—

anyship or maritime equipment in a manner which causes unnecessary danger or riskto any other person or to any property, irrespective of whether or not in factany injury or damage occurs, commits an offence.

(2)Any person who—

(a)causesor permits any ship or maritime equipment to be operated, maintained, orserviced; or

(b)causesor permits any other act to be done in respect of—

anyship or maritime equipment in a manner which causes unnecessary danger or riskto any other person or to any property, irrespective of whether or not in factany injury or damage occurs, commits an offence.

(3)Any person who commits an offence under subsections (1) or (2) is liable uponconviction—

(a)in thecase of an individual, to imprisonment for a term not exceeding 12 months or afine not exceeding $10,000;

(b)in thecase of a body corporate, to a fine not exceeding $100,000; and

(c)in anycase, to an additional penalty under section 251.

Effect of breach of maritimeRegulation

52.—(1)Where any person is charged with any offence against sections 50 or 51, and thecourt is satisfied that any act or omission of that person, or caused orpermitted by that person, constitutes a breach of a relevant maritimeRegulation, then, in the absence of proof to the contrary, it shall be presumedthat the act or omission caused unnecessary danger or risk to another person orto property, irrespective of whether or not in fact any injury or damage occurred.

(2)Nothing in this section shall be construed so as to require the proof of abreach of a maritime Regulation as an element of any offence described insections 50 or 51.

Communicating false informationaffecting safety

53.—(1)Any person who by any means provides to another person information relating tothe safety of a ship, maritime equipment, or any other facility or product usedin or connected with maritime activities, or any associated person knowing theinformation to be false or in a manner reckless as to whether it is false,commits an offence and is liable upon conviction—

(a)in thecase of an individual, to imprisonment for a term not exceeding 12 months or afine not exceeding $10,000; and

(b)in thecase of a body corporate, to a fine not exceeding $100,000.

(2)Where the commission of an offence against subsection (1) causes financial lossto any person and the court imposes a fine in respect of the offence againstsubsection (1), the court may also order that, such part of the fine as itthinks fit, be awarded to the person or persons who have suffered financialloss.

Acting without necessary maritimedocument

54.—(1)Any person who—

(a)operates,maintains, or services; or

(b)doesany other act in respect of—

anyship or maritime equipment, without holding the appropriate current maritimedocument commits an offence.

(2)Any person who—

(a)operates,maintains, or services; or

(b)doesany other act in respect of—

anyship or maritime equipment knowing that a current maritime document is requiredto be held in respect of that ship or product before that act may lawfully bedone and knowing that the appropriate document is not held, commits an offence.

(3)Any person who commits an offence against subsections (1) or (2) is liable uponconviction—

(a)in thecase of an individual, to imprisonment for a term not exceeding 12 months or afine not exceeding $10,000;

(b)in thecase of a body corporate, to a fine not exceeding $100,000; and

(c)in anycase, to an additional penalty under section 251.

(4)For the purposes of this section a maritime document is not a current maritimedocument—

(a)if itis for the time being suspended under this Decree; or

(b)inrelation to an act if the endorsement that is required to authorise that act isfor the time being suspended under this Decree.

Disqualification and imposition ofconditions by the Court

55.In addition to any penalty a court may impose under sections 50, 51 or 56, thecourt, on convicting any person of an offence against any of those sections,may by order do all or any of the following, namely,—

(a)disqualifythe person convicted from holding or obtaining a maritime document, or aparticular maritime document, issued by the Chief Executive Officer; or

(b)imposeon any maritime document held by or issued to the person convicted suchrestrictions or conditions or both as the court, having regard to thecircumstances of the offence, for such period not exceeding 12 months as thecourt thinks fit.

Effect of disqualification

56.—(1)Where the holder of a maritime document is disqualified by an order of a courtfrom holding or obtaining a maritime document, the document shall be deemed tobe suspended while the disqualification continues in force, and during theperiod of suspension shall be of no effect.

(2)Where the holder of a maritime document is disqualified by an order of a courtfrom holding or obtaining such a document, and the disqualification will expirebefore the expiration of the term of the document, the document shall, on theexpiration of the disqualification, continue to be of no effect until theholder of such document undergoes and passes such tests and fulfils suchrequirements as prescribed.

Commencement of period of disqualification

57.Where an order is made by a court disqualifying any person for a period fromholding or obtaining a maritime document, the period of disqualification shallcommence on the date of the making of the order unless the court making theorder directs otherwise.

Retention and custody of documents

58.—(1)Where, by an order of a court, the holder of a maritime document isdisqualified from holding or obtaining a document, the person in respect ofwhom the order is made shall immediately surrender the document to theAuthority.

(2)Where a maritime document is so surrendered, the Chief Executive Officer shallendorse the terms of the disqualification on the document and retain it untilthe disqualification has expired or been removed and the person entitled to thedocument has made a request in writing for its return.

(3)If the person entitled to the document is a person to whom section 56 (2)applies, the document shall not be returned to that person until that personhas passed the tests and fulfilled the requirements referred to in thatprovision.

Removal of disqualification

59.—(1)Subject to this section, any person who by order of a court is—

(a)disqualifiedfor a period exceeding 6 months from holding or obtaining a maritime document; or

(b)disqualifiedfrom being recognised as the holder of a maritime document—

may,after the expiration of 6 months after the date on which the order ofdisqualification became effective, make an application to the court to have theorder of disqualification removed.

(2)On an application under this section, the court may, having regard to—

(a)thecharacter of the applicant;

(b)theapplicant’s conduct subsequent to the order;

(c)thenature of the offence and;

(d)anyother circumstances of the case—

removethe disqualification from such date as may be specified in the order or refusethe application as the Court deems appropriate.

(3)Notice of every application under this section shall be served by the Applicanton the Chief Executive Officer who shall have a right to appear and be heard inrespect of the matter.

Applying for maritime documentwhile disqualified

60.—(1)Any person who applies for or obtains a maritime document while beingdisqualified by an order of a court from obtaining such a document commits anoffence and any such document so obtained shall be of no effect.

(2)Any person who commits an offence against subsection (1) is liable uponconviction—

(a)in thecase of an individual, to imprisonment for a term not exceeding 6 months or afine not exceeding $2,000; and

(b)in thecase of a body corporate, to a fine not exceeding $20,000.

Appeals

61.—(1)Where an order is made by the Court disqualifying any person from holding orobtaining a maritime document and a notice of appeal is filed against suchorder, the said order shall have immediate effect pending finalisation of theappeal unless a stay of execution of the order of the court has been filed.

Establishment of Maritime AppealAuthority

62.This section establishes the Maritime Appeal Authority.

Composition of the Maritime AppealAuthority

63.—(1)The Minister shall appoint three members to the Maritime Appeal Authority afterconsultation with the Minister for Justice.

(2)The chairperson of the Authority shall be a person with qualifications of abarrister and solicitor of not less than 7 years practice experience.

(3)The Minister may appoint any such person who, in the opinion of the Minister isqualified to be appointed as the deputy chairperson to act in the absence ofthe Chairperson of the Authority.

(4)The members shall be persons who, in the opinion of the Minister, haveextensive experience in employment matters and who do not have any potentialconflicts of interests.

Tenure of office

64. A person appointed as a memberof the Maritime Appeal Authority shall be appointed for a term not exceeding 3years and shall be eligible for re-appointment.   

Revocationand resignation

65.—(1)The Minister may, at any time, revoke the appointment of a member.

(2)A member may at any time resign, by giving 30 days’ notice in writing to theMinister.

Vacation of office

66.The office of the member shall become vacant if the member—

(a)hasbeen declared an undischarged bankrupt;

(b)has inFiji or elsewhere been convicted of an offence punishable by imprisonment orinvolving dishonesty; or

(c)has byany reason of disability become incapable of performing the functions of theoffice.

Remuneration of members

67.Members of the Authority are entitled to such remuneration as the Minister maydeem necessary.

Meetings

68.The Appeal Authority shall meet at such times and places as may be necessaryfor the performance of its functions.

Functions of the Maritime AppealAuthority

69.—(1)The functions of the Maritime Appeal Authority shall be to consider anddetermine applications made to the Authority pursuant to section 36.

(2)In making its determinations the Maritime Appeal Authority shall have regard tothe potential effect on the risk to maritime safety of the suspended personbeing employed as a seafarer.

Evidence that may be received bythe Maritime Appeal Authority

70.The Maritime Appeal Authority may receive as evidence any statement, document,information, or matter that may, in the opinion of the Authority, assist theAuthority to deal with the application being considered.

Maritime Appeal Authority deemed tobe a Commission of Inquiry

71.The Maritime Appeal Authority shall, within the scope of the Authority’sjurisdiction, be deemed to be a commission of inquiry under the Commissions ofInquiry Act (Cap. 47); and, subject to the provisions of this Decree, theprovisions of that Act shall apply accordingly.

Rights of applicants to theMaritime Appeal Authority

72.The applicant shall be entitled to appear before the Maritime Appeal Authorityin support of the application or be represented by counsel or a solicitor or anagent.

Procedure of Maritime AppealAuthority

73.Except as otherwise provided by this section and subject to the rules ofnatural justice, the Appeal Authority may determine its own process andprocedure.

Application to the Maritime AppealAuthority

74.Any application to the Maritime Appeal Authority shall be in writing specifyingthe grounds for the application and shall be lodged with such persons asappointed by the Chief Executive Officer, who shall forthwith refer theapplication to the Maritime Appeal Authority.

Decision of the Maritime AppealAuthority to be in writing

75.Any decision made by the Authority shall be in writing.

 

PART 5—LIABILITY OF SHIP OWNERS ANDOTHERS

Application of this Part

76.This Part applies to every ship, whether registered or unregistered and whethera Fiji ship or not, in any circumstances in which the High Court hasjurisdiction under section 18 (2) of the High Court Act (Cap. 13).

Interpretation

77.In this Part, unless the context otherwise requires,—

“limitationof liability” means limitation of the aggregate amount of liability of any oneor more persons in accordance with this Part;

“owner”,in relation to a ship—

(a)meansevery person who owns the ship or has any interest in the ownership of the ship;

(b)wherethe ship has been chartered, means the charterer; and

(c)wherethe owner or charterer is not responsible for the navigation and management ofthe ship, includes every person who is responsible for the navigation andmanagement of the ship;

“salvage”includes all expenses properly incurred by the salvor in the performance of thesalvage services; “salvage operations” or “salvage services” includes—

(a)operationsin respect of the raising, removal, destruction, or rendering harmless of aship which is sunk, wrecked, stranded, or abandoned, or of anything that is orhas been on board such a ship;

(b)operationsin respect of the removal, destruction, or rendering harmless of the cargo of aship; and

(c)measurestaken in order to avert or minimise any loss or injury or damage in respect ofwhich liability may be limited in accordance with this Part;

“salvor”,in relation to a ship, means every person rendering services directly connectedwith salvage operations carried out in relation to that ship;

Persons entitled to limitation ofliability under this Part

78.—(1)Subject to subsection (2), the following persons are not personally liable forany act done in good faith, in accordance with the provisions of this Decree—

(a)ownersof ships, and any master, seafarer, or other person for whose act, omission,neglect, or default the owner of the ship is responsible;

(b)salvors,and any employee of a salvor or other person for whose act, omission, neglect,or default the salvor is responsible; and

(c)insurersof liability for claims subject to limitation of liability, to the extent thatthe person assured is entitled to such limitation.

(2)No person shall be entitled to limitation of liability in respect of claims forloss or injury or damage resulting from that person’s personal act or omissionwhere the act or omission was committed, or omitted, with intent to cause suchloss or injury or damage, or recklessly and with knowledge that such loss orinjury or damage would probably result.

Claims subject to limitation ofliability

79.—(1)Any person who is entitled to limitation of liability shall not be liable foran amount greater than the limit calculated in accordance with section 82 inrespect of claims for loss or injury or damage arising on any occasion, being,in relation to any ship.

(2)The following claims shall be subjected to limitation of liability—

(a)claimsin respect of—

(i)loss of life or personal injury; or

(ii)loss of or damage to property, including damage to harbour works, basins,waterways, and aids to navigation,

wherethe loss or injury or damage occurs on board the ship or is directly connectedwith the operation of the ship or with salvage operations, or is consequentialupon any such loss or injury or damage; or

(b)claimsin respect of loss or damage resulting from delay in the carriage by sea ofcargo, passengers, or luggage;

(c)claimsin respect of loss or damage resulting from infringement of rights other thancontractual rights, where the loss or damage is directly connected with theoperation of the ship or salvage operations;

(d)claimsin respect of the raising, removal, destruction, or rendering harmless of aship which is sunk, wrecked, stranded, or abandoned, or of anything that is orhas been on board such a ship;

(e)claimsin respect of the removal, destruction, or rendering harmless of the cargo of aship; or

(f)claimsof a person (other than the person liable) in respect of measures taken inorder to avert or minimise any loss or injury or damage for which the personliable is entitled to limitation of liability, including claims for furtherloss or injury or damage caused by the taking of such measures.

Claims not subject to limitation ofliability

80.—(1)Notwithstanding anything in section 89 and subject to subsection (2), thefollowing claims shall not be subject to limitation of liability—

(a)claimsfor salvage or contribution in general average; and

(b)claimsin respect of nuclear damage.

(2)Claims in respect of the matters specified in sections 79 (2) (d), (e), and(f) shall not be subject to limitation of liability to the extent thatthey relate to remuneration under a contract with the person liable.

Application of limitation ofliability

81.—(1)The limitation of liability under this Part—

(a)appliesto the aggregate of relevant claims arising on any distinct occasion against—

(i)the owner of the ship, and any seafarer or other person for whose act,omission, neglect, or default the owner is responsible;

(ii)the owner of a ship rendering salvage services, and the salvor operating fromthat ship, and any employee of the salvor or other person for whose act,omission, neglect, or default that owner or salvor is responsible; or

(iii)a salvor who is not operating from a ship, or is operating solely on the shipto or in respect of which the salvage services are rendered, and any employeeof the salvor or other person for whose act, omission, neglect, or default thesalvor is responsible; and

(b)relatesto all relevant claims for loss or injury or damage arising on any distinctoccasion, whether or not the loss or injury or damage is sustained by more than1 person;

(c)appliesin respect of each distinct occasion, without regard to any liability arisingon any other distinct occasion; and

(d)applies,subject to subsection (4), whether the liability arises at common law or underany other written law, and notwithstanding anything in any other written law.

(2)This section shall not limit or affect section 96 of this Decree.

Units of account

82.—(1)For the purpose of determining the monetary value of the number of units ofaccount calculated in any case to be the relevant limit of liability under thisDecree,—

(a)theunits of account shall be converted to their monetary value according to thevalue of the Fiji currency at the date on which the limitation fund isconstituted, or payment is made on the claims, or satisfactory security for anysuch payment is given; and

(b)thevalue of the Fiji currency in terms of the special drawing right shall betreated as equal to such a sum in Fiji currency as is fixed by theInternational Monetary Fund as being the equivalent of one special drawingright for—

(i)the relevant date; or

(ii)if no sum has been fixed for that date, the last preceding date for which a sumhas been so fixed.

(2)For the purposes of subsection (1) (b), a certificate given by or on behalfof the Permanent Secretary of Finance stating—

(a)that aparticular sum in Fiji currency has been fixed as the equivalent of one specialdrawing right for a particular date; or

(b)that nosum has been fixed for that date, and that a particular sum has been so fixedfor the date most recently preceding a particular date,—

shall,in any proceedings, be received in evidence and, in the absence of proof to thecontrary, be sufficient evidence of the value of the Fiji currency for the purposesof subsection (1) (b).

(3)For the purposes of this Part—

“unitof account” means a unit of measurement of monetary value;

“limitationfund” means a guarantee or deposit made by a ship owner to meet any damageclaim, and calculated on the negligent ship’s tonnage; and

“specialdrawing right” means the official monetary unit of the International MonetaryFund which acts as a supplemental reserve for national banking systems.

Calculation of limits of liability

83.—(1)Subject to subsection (4), the limit of liability for the purposes of this Partin respect of claims for loss of life or personal injury (other than claimsspecified in subsection (2)) shall be as follows—

(a)in thecase of a ship of not more than 300 gross tons, 166,677 units of account;

(b)in thecase of a ship of more than 300 gross tons, but not more than 500 gross tons,333,000 units of account;

(c)in thecase of a ship of more than 500 gross tons, 333,000 units of account plus afurther number of units of account calculated as follows;

(i)for each gross ton of the ship from 501 to 3,000 tons, 500 units of account;

(ii)for each gross ton of the ship from 3,001 to 30,000 tons, 333 units of account;

(iii)for each gross ton of the ship from 30,001 to 70,000 tons, 250 units ofaccount; and

(iv)for each gross ton of the ship in excess of 70,000 tons, 167 units of account.

(2)The limit of liability of the owner of a ship (including any person for whomthat owner is responsible) in respect of claims for the loss of life of, orinjury to, passengers of that ship, shall be 46,666 units of account multipliedby the number of passengers which the ship is authorised to carry, up to amaximum limit of 25,000,000 units of account.

(3)The limit of liability in respect of any claim other than a claim for which alimit is set under subsection (1) or subsection (2) shall be—

(a)in thecase of a ship of not more than 300 gross tons, 83,333 units of account;

(b)in thecase of a ship of more than 300 gross tons, but not more than 500 gross tons,167,000 units of account;

(c) in the case of a ship of more than 500 gross tons, 167,000units of account plus a further number of units of account calculated asfollows—

(i)for each gross ton of the ship from 501 to 30,000 tons, 167 units of account;

(ii)for each gross ton of the ship from 30,001 to 70,000 tons, 125 units ofaccount; and

(iii)for each gross ton of the ship in excess of 70,000 tons, 83 units of account.

(4)Where the amount available under the limit of liability calculated inaccordance with subsection (1) is insufficient to pay all relevant claims underthat subsection in full,—

(a)theamount available under the limit calculated in accordance with subsection (3)shall also be available for payment of the unpaid balance of any such claims;and

(b)thatunpaid balance shall rank rateably with claims under subsection (3).

(5)For the purposes of this section,—

(a)thelimits of liability for any salvor not operating from any ship, or for any salvoroperating solely on the ship to or in respect of which the salvor is renderingsalvage services, shall be calculated as if the salvor were operating from aship of 1,500 gross tons;

(b)thetonnage of a ship shall be the gross tonnage calculated in accordance with thetonnage measurement Regulations contained in Annex I of the InternationalConvention on Tonnage Measurement of Ships 1969, and maritime Regulations madeunder this Decree;

(c)wherethe gross tonnage of a ship is unable to be ascertained,—

(i)the Chief Executive Officer, on receiving from or by the direction of thecourt, hearing the case in which the tonnage of the ship is in question, suchevidence of the dimensions of the ship as is available, shall estimate what thegross tonnage of the ship would have been if the ship had been duly measured inaccordance with the relevant tonnage measurement Regulations, and give acertificate of the tonnage as estimated by the Chief Executive Officer; and

(ii)the tonnage so estimated shall be taken to be the gross tonnage of the ship;and

(d)thereference in subsection (2) to claims for the loss of life of, or personalinjury to, passengers of a ship refers to claims brought by, through, or onbehalf of any person carried in that ship—

(i)under a contract of passenger carriage; or

(ii)who, with the consent of the carrier, was accompanying a vehicle or liveanimals carried

undera contract for the carriage of goods.

Court may consolidate claims

84.—(1)Where two or more claims are made or expected against any person who is allegedto have incurred liability in respect of any claim of a kind referred to insection 81 (2), that person may apply to the High Court to have the claimsconsolidated.

(2) On anysuch application, the court may—

(a) determine the amount of the applicant’s liability, anddistribute that amount rateably among the several claimants;

(b) stay any other proceedings pending in the same or anyother court in relation to the same matter; and

(c) proceed in such manner and give such directionsrelating to the joining or excluding of interested persons as parties, thegiving of security, the payments of costs, or otherwise, as the court thinksjust.

Part owners to account in respect of damages

85. Allsums paid for or on account of any loss or damage in respect of which theliability of owners is limited under this Part, and all costs incurred inrelation to that loss or damage, may be brought into account among those partowners of the same ship who are jointly and severally liable in the same manneras money disbursed for the use of that ship.

Release of ship where security given

86. Whereany ship or other property is arrested or seized in respect of a claim thatappears to be one for which liability is limited by this Part, or security hasbeen given to prevent or obtain release from any such arrest or seizure, theHigh Court may, on the application by the owner of the ship or other propertyor any other person having an interest in the ownership of the ship or other property,order the release of the ship, property, or security if the court is satisfiedthat—

(a) satisfactory security of such nature, in this sectionreferred to as the guarantee has been given, whether in Fiji or elsewhere, inrespect of the claim;

(b) that if the claim is established the amount of theguarantee will in fact be available to the claimant and

(c) that the amount, either by itself or together with anyfurther security that the court may require to be given, is at least equal tothe maximum amount that may be allowed to the claimant in accordance with theprovisions of sections 79 and 83.

 

PART6—LIABILITY WHERE TWO OR MORE SHIPS INVOLVED

Application of this Part

87. ThisPart applies to every registered and unregistered ship and, whether a Fiji shipor not, in any circumstances in which the High Court has jurisdiction undersection 18 (2) of the High Court Act (Cap. 13).

Interpretation

88.—(1) Inthis Part, unless the context otherwise requires, “owner”, in relation to aship—

(a) means every person who owns the ship or has anyinterest in the ownership of the ship;

(b) where the ship has been chartered, means thecharterer; and

(c) where the owner orcharterer is not responsible for the navigation and management of the ship,includes every person who is responsible for the navigation and management ofthe ship;

“salvageservices” includes—

(a) operations in respect ofthe raising, removal, destruction, or rendering harmless of a ship which issunk, wrecked, stranded, or abandoned, or of anything that is or has been onboard such a ship;

(b) operations in respect ofthe removal, destruction, or rendering harmless of the cargo of a ship; and

(c) measures taken in orderto avert or minimise any loss or injury or damage in respect of which liabilitymay be limited in accordance with this Part.

(2)In this Part, reference to damage or loss caused by the fault of a ship shallbe construed as including references to any salvage or other expensesconsequent upon that fault recoverable in law by way of damages.

Division of loss

89.—(1)Subject to subsections (2) and (3), where, by the fault of two or more ships,damage or loss is caused to one or more of the ships, or to their cargoes orfreight, or to any other property on board, the liability to compensate for thedamage or loss shall be in proportion to the degree to which each ship was atfault.

(2) If, inany case to which subsection (1) applies, it is not possible to establishdifferent degrees of fault, having regard to all the circumstances of the case,the liability shall be apportioned equally.

(3)Nothing in this section shall—

(a) render any ship liable for any loss or damage to whichthe fault of that ship has not contributed; affect the liability of any personunder a contract of carriage, or any other contract;

(b) impose any liability upon any person from which thatperson is exempted by any contract or by any provision of law; or

(c)affectthe right of any person to limit that person’s liability in the manner providedby law.

Damages for personal injury

90.—(1)Subject to subsection (2), where, by the fault of two or more ships, any personon board one of the ships is killed or injured, the liability of the owners ofthe ships shall be joint and several.

(2)Nothing in subsection (1) shall—

(a) deprive any person of any right of defence on which,had this section not been enacted, that person might have relied on, in anaction brought against that person by the injured person or by any personentitled to claim in respect of the death of any person on board; or

(b)affectthe right of any person to limit that person’s liability in the manner providedby law.

Right of contribution and limitation

91.—(1)Subject to subsection (2), where, by the fault of two or more ships, any personon board one of the ships is killed or injured, and a proportion of the damagesis recovered against the owners of one of the ships that exceeds the proportionin which that ship was at fault, those owners may recover the amount of theexcess by way of contribution from the owners of the other ship or ships to theextent to which those ships were respectively at fault.

(2) Noamount shall be recovered under subsection (1) that could not, by reason of anystatutory or contractual limitation of or exemption from liability, or for anyother reasons, have been recovered in the first instance as damages by thepersons entitled to sue for damages.

(3) Inaddition to any other remedy provided by law, the persons entitled to anycontribution under this section shall, for the purpose of recovering thecontribution, have, subject to the provisions of this Decree, the same rightsand powers as the persons entitled to claim for damages in the first instance.

(4)Subject to subsections (5) and (6), no action shall be maintainable undersection 91 to recover any contribution in respect of an overpaid proportion ofany damages for loss of life or personal injuries unless proceedings arecommenced within one year after the date of payment.

(5) If, inany case to which subsection (1) applies, the High Court is satisfied thatthere has not been a reasonable opportunity to arrest the defendant ship—

(a) at any port in Fiji;

(b) within Fiji waters; or

(c) locally within thejurisdiction of the country to which the plaintiff’s ship belongs or in whichthe plaintiff resides or has his or her principal place of business,—

within theperiod specified by subsection (1) the court shall, on the application of the plaintiff,extend that period to a period of time sufficient and with such conditionsnecessary to give such a reasonable opportunity.

(6) Thissection shall not apply to proceedings in respect of any alleged fault of aship used by or set aside for the Fiji Navy.

(7)Subsection (3) shall not apply to any ships of the State.

(8) Thissection shall not limit or affect section 96.

 

PART7—WRECK OF SHIPS AND AIRCRAFT

Interpretation

92. Inthis Part, unless the context otherwise requires—

“Fijiwaters” means Fiji waters as defined in section 2 but does not include a portor approaches to a port as declared or deemed to be declared under the SeaPorts Management Act 2005;

“Searchand Rescue Manual” means an official manual approved by the Ministry responsiblefor Defence for the purposes of providing assistance to persons in danger atsea;

“shipwreckedpersons” means passengers and crew on a shipwrecked ship;

“tidalwater” means—

(a) any part of the sea; or

(b) any part of a riverwithin the ebb and flow of the tide at mean spring tides; and

“wreck” includes—

(a) any ship or aircraftwhich is abandoned, stranded or wrecked at sea or in any river or other inlandwater, or any equipment or cargo or other articles belonging to or separatedfrom any such ship or aircraft or belonging to or separated from any ship oraircraft which is lost at sea or in any river or other inland water; and

(b) shipping containers andproperty lost overboard or separated from a ship, other than cargo lost in thecourse of its unloading or discharge from the ship while the ship is in a port.

Directions where ship or aircraft in distress

93.—(1) Ifany ship or aircraft is wrecked, stranded or in distress in Fiji waters, theChief Executive Officer may give such reasonable directions as he or she thinksfit for the preservation of all or any of the following—

(a) the ship or aircraft;

(b) the lives of the passengers and crew; and

(c) the equipment and cargo of the ship or aircraft.

(2) TheChief Executive Officer may use the Search and Rescue Manual for guidance whenissuing reasonable directions under this section.

(3) TheChief Executive Officer shall, with a view to the preservation of the lives ofthe shipwrecked persons or of the ship or aircraft or of its cargo or equipment—

(a) seek assistance from such persons as the ChiefExecutive Officer deems necessary to assist the Authority;

(b) require the master or other person having the chargeof any ship nearby to give such aid with his or her crew or ship as may bewithin the master’s power; and

(c) require the use of any vehicle that may be nearby.

(4) Anyperson who—

(a) wilfully disobeys the lawful direction under thissection; or

(b) refuses without reasonable cause to comply with anylawful requisition made by the Authority under this section,commits an offenceand shall be liable upon conviction—

(a) in the case of an individual, to imprisonment for aterm not exceeding 3 months or to a fine not exceeding $2,000; and

(b) in the case of a body corporate, to a fine not exceeding$10,000.

(5) Anypower conferred under this section which is in conflict with the exercise of apower or any lawful directions given by—

(a) a Port State Control Officer or a Port Master;

(b) an on-scene commander; or

(c) a Search and Rescue Co-ordinator, shall not beexercised.

(6) TheChief Executive Officer may recover as a debt due from the owner of the ship oraircraft, or of the cargo or equipment, the costs of his or her interventionunder this section in respect of that ship, aircraft, cargo, or equipment,other than costs in respect of the preservation of life.

Responsibility of owner of ship or aircraft indistress

94.—(1) Ifany ship or aircraft is wrecked, stranded or in distress in Fiji waters, andthe Authority notifies the owner of the ship or aircraft that it considers thatthe ship or aircraft, or its equipment or cargo, is a hazard to navigation, theowner shall make arrangements to secure and remove the hazard.

(2)Nothing in this section affects or limits any right, privilege, or powerexercisable in relation to a ship or aircraft, or its equipment or cargo, bythe Chief Executive Officer or any other person authorised under this Decree.

(3) Anyperson who acts in contravention of this section commits an offence and shallbe liable upon conviction—

(a) in the case of an individual, to imprisonment for aterm not exceeding 3 months or to a fine not exceeding $2,000; and

(b)in thecase of a body corporate, to a fine not exceeding $10,000.

Finding of wreck

95.—(1) Ifa person finds or takes possession of any wreck within the Fiji waters, ortakes possession of and brings within the Fiji waters any wreck found beyondthe Fiji waters, the following provisions shall apply—

(a) the person shall notify the Authority that he or shehas found or taken possession of the wreck; and

(b) if the person is not the owner of the wreck, he or sheshall inform the nearest police station of the finding as soon as practicable,and the police shall then take possession of the wreck.

(2) Anyperson who, without reasonable excuse, fails to comply with this sectioncommits an offence and shall be liable upon conviction—

(a) in the case of an individual, to imprisonment for aterm not exceeding 3 months or to a fine not exceeding $2,000; and

(b) in the case of a body corporate, to a fine notexceeding $10,000.

(3) Anyperson who is not the owner shall be liable to forfeit any claim to salvage andshall be liable to the owner of the wreck if it is claimed, or if the wreck isunclaimed, shall be liable to the person entitled to the same.

Removal of hazards to navigation

96.—(1)The Authority may cause to be removed, any ship or aircraft referred to undersection 94, which is a hazard, if the—

(a) owner of the hazard has not made arrangements underthat section to secure and remove the hazard;

(b) Chief Executive Officer considers the hazard is ahazard to navigation; and

(c) action taken to remove the hazard is consistent withthe Environment Management Act 2005.

(2) TheChief Executive Officer may, by notice in writing require the owner, master orperson in command of the hazard, or to any agent of the owner, to raise, removeor destroy the whole or any part of that hazard in a manner satisfactory to,and within such time as may be specified in the notice.

(3) If aperson fails to comply with the notice, or if a person to whom the notice canbe given cannot be found, the Chief Executive Officer or a person authorised bythe Chief Executive Officer may—

(a) take possession of and raise, remove or destroy thewhole or any part of the hazard;

(b) sell, in such manner as he or she thinks fit, thehazard or any part of it that is so removed, and any property recovered fromit, and in the exercise of his or her powers under this section, recover thewhole of the expenses of removal, from the proceeds of sale of such hazard orany part thereof; and

(c) if the proceeds of thesale are insufficient to pay the whole of the expenses of removal, recover thebalance from the owner or master or person in command of the hazard, or fromthe owner of any ship or aircraft or from any other person if the sinking,stranding, or abandonment occurred through the fault or negligence of thatship, aircraft, or person.

(4) Thissection applies to every article belonging to or forming part of a ship oraircraft, as it applies to a ship or aircraft, and the proceeds of the saleunder this section of any ship or aircraft or any part of it or other propertyrecovered from it shall be regarded as the fund of the Authority pursuant tosection 38 (d) of the Maritime Safety Authority of Fiji Decree 2009.

(5) Forthe purposes of this part,

“hazard”means any derelict ship or aircraft, any floating or submerged or strandedobject.

(6) Inthis section, “owner” in relation to any hazard, includes not only the owner orowners at the time of the sinking, stranding, abandonment, or other event, butalso any subsequent purchaser of the hazard or of any article belonging to itor forming part of it, as long as the hazard remains a hazard to navigation.

(7) Anyperson who acts in contravention of this section commits an infringementoffence in accordance with section 262 and shall be liable to a fine notexceeding $5,000 and, if the offence is a continuing one, to a further fine notexceeding $250 for every day or part thereof during which the offence iscontinued.

Foreign wreck subject to duties as an importation

97.—(1)Where a foreign wreck is sold under this Part, the proceeds of sale shall beapplied in the following order—

(a) the duties, if any;

(b) the expenses of sale reasonably incurred; and

(c) the rent and charges due to the Authority.

(2) If,after the proceeds of sale have been applied in accordance with subsection (1)and there is a balance, the balance shall be payable to the person claiming tobe the owner of the foreign wreck if he or she makes an application within 6months of the date of the sale or such further period as the Chief ExecutiveOfficer may allow.

(3) If aforeign wreck that is to be sold under this section is unlikely to raise a sumsufficient to cover the charges set out in subsection (1), then the foreignwreck may be destroyed or disposed of in such manner as the Chief ExecutiveOfficer may direct.

 

PART8—GENERAL PROVISIONS RELATING TO SHIPPING

Duty of assistance

98. Anyperson on whom any duty is imposed under this Decree—

(a) shall at all reasonable times furnish; and

(b) shall ensure that at all reasonable times the person’sagents and employees furnish,the means required by the Authority, itsemployees, the Chief Executive Officer, or their respective agents for anentry, inspection, examination, audit, inquiry, or the exercise of any other power,under this Decree in relation to their duty.

Maritime Register

99.—(1)This section establishes the Maritime Register to be kept and maintained by theAuthority.

(2) Copiesor appropriate evidence of the following shall be recorded and maintained inthe Register—

(a) every maritime document and marine protection documentissued by the Chief Executive Officer;

(b) every Regulation made under this Decree;

(c) every accident, incident, and mishap notificationgiven under section 20;

(d) every delegation, authorisation, notification ofrecognition of a document as a maritime document or marine protection document,and exemption granted in writing under this Decree;

(e) the address for serviceof—

(i) every currentapplicant for a maritime document or marine protection document;

(ii) every currentholder of a maritime document or marine protection document; and

(iii) every person whoholds a document recognised under this Decree as a maritime document or marineprotection document;

(f) a list of theConventions and the parties to each of those Conventions;

(g) the current performanceagreement; and

(h) the current servicecharter.

(3) Anyperson has the right to inspect the Register and may obtain a copy of any entryin the Register upon payment of the prescribed fee.

Maritime Safety Information service

100.—(1)The Authority shall ensure that information service is provided to the publicand that such service shall include the collection and dissemination ofinformation regarding maritime safety requirements, marine protectionrequirements, and the placement and operation of aids to navigation in respectof Fiji waters.

(2) TheAuthority may require the payment of a reasonable charge fixed by the Authorityfor any costs incurred by the Authority under this section.

Appointment of Port State Control Officers, PortMaster, Flag State Surveyor, and Jetty Masters

101. TheChief Executive Officer shall appoint—

(a) Port State Control Officers;

(b) Port Master;

(c) Flag State Surveyor; and

(d) Jetty Masters,

for thepurposes of carrying out all or any of the functions and duties vested in theChief Executive Officer by or under this Decree or any other written lawincluding the controlling of safe approaches to ports, inspections and surveyof ships.

Power of Port State Control Officers and Flag StateSurveyor

102.—(1)Port State Control officers shall have the power to—

(a) manage port state control responsibilities, and toimplement international obligations concerning the security of ships and ports;

(b) board any ship; and

(c) require any action and give any directions in relationto dangerous goods and hazardous cargoes in accordance with this Decree and anyother written law.

(2) A FlagState Surveyor may—

(a) at any reasonable time go on board a ship and inspector survey a ship and any part of the ship, including the hull, boilers,machinery and equipment of the ship; and

(b) require the certificates of the master or of anyofficer of the ship, or any certificate or other statutory documents relatingto the ship to be produced to him or her.

(3) Anyperson who—

(a) fails to comply with a direction given by a Port Statecontrol officer or a Flag State Surveyor;

(b) fails to take any action in accordance with adirection given by a Port State control officer or a Flag State Surveyor ;

(c) prevents a Port State control officer or a Flag StateSurveyor from boarding a ship; or

(d) prevents or interferes with a Port State controlofficer or a Flag State Surveyor in the exercise of any lawful power—

commits anoffence and is liable upon conviction to a fine not exceeding $25,000 or to aterm of imprisonment not exceeding 2 years, or both.

Power of Port Master and Jetty Masters

103.—(1) APort Master and Jetty Masters shall have the power to—

(a) determine safety and security issues relating to theberthing, mooring or anchoring of ships within ports, approaches to ports, andjetties;

(b) direct the removal of any ship from any berth, stationor anchorage, on the grounds of safety and security, to any other place, andthe time within which such removal is to be effected;

(c) regulate the movements of ships generally to ensurethe safety and security of ships, ports, and jetties;

(d) require any action and give any direction in relationto fires on board ships, including an order that a ship be scuttled or beremoved to any other place;

(e) board any ship;

(f) require any action and give any directions in relationto dangerous goods and hazardous cargoes in accordance with this Decree and anyother written law; and

(g) take any other action or give any direction that isnecessary to ensure the security of ports, port approaches, jetties, and thesafety of ships and persons in these areas.

(2) Anyperson who—

(a) fails to comply with a direction given by a PortMaster or Jetty Master;

(b) fails to take any action in accordance with adirection given by a Port Master or Jetty Master;

(c) prevents a Port Master or Jetty Master from boarding aship; or

(d) prevents or interferes with a Port Master or JettyMaster in the exercise of any lawful power,

commits anoffence and is liable upon conviction to a fine not exceeding $25,000 or to aterm of imprisonment not exceeding 2 years, or both.

Appointment of agents to collect marine safety charges

104.—(1)The Chief Executive Officer may appoint the Comptroller of Customs or theholder for the time being of any office, whether or not within the PublicService or any other person to be the agent of the Chief Executive Officer forthe purpose of collecting marine safety charges or any class of marine safetycharges.

(2) Anyappointment under subsection (1) may—

(a) provide for the payment of a fee by the ChiefExecutive Officer for the collection of marine safety charges; and/or

(b) permit the agent to retain a specified portion of themarine safety charges as a collection fee.

Power of agent of ship,to retain marine safety charges out of other money

105. Anyagent of ships who by any Regulations made under this Decree is liable for thepayment of marine safety charges to the Authority in respect of any ship may,out of the money received by the agent on account of that ship or belonging tothe owner thereof, retain the amount of all such charges, together with anyreasonable expenses incurred by reason of the payment of the charges.

Recovery in certain cases where marine safety chargesnot paid

106.—(1)This section shall apply only where a marine safety charge is payable to theChief Executive Officer or the Comptroller of Customs, and not where the chargeis payable to any other person or any agent of the Chief Executive Officer.

(2) If theperson liable to pay any marine safety charge in respect of any ship fails todo so on demand, and the charge is not paid by any other person, the ChiefExecutive Officer or the Comptroller of Customs may, in addition to any otherremedy, go on board the ship and detain the cargo and any other propertybelonging to or on board the ship, and may maintain such detained propertyuntil that charge is paid.

(3) Forthe purposes of subsection (1), the term “agent” does not include theComptroller of Customs.

Issue of receipt for marine safety charge

107. Anyperson who receives any marine safety charge shall, on demand, issue to theperson paying the charge a receipt showing clearly the ship in respect of whichthe charge is paid and the period to which the charge relates.

Detention of ship wheremarine safety charges not paid or receipt not produced

108.—(1)Where, on demand being made by any person for the payment of any marine safetycharge—

(a) the charge is not paid; or

(b) evidence for the earlier payment of the charge is notproduced,

the ChiefExecutive Officer or the Comptroller of Customs may detain the ship concerneduntil the charge is paid or the receipt is produced.

(2) Ifpayment of the charge is not made, or evidence of the earlier payment notproduced, within the period of 60 days following the detention, the Authoritymay at any time during the continuance of the non-payment, or non-production,sell the ship, and apply the proceeds in payment of that charge, together withall reasonable expenses incurred by the Authority under this subsection, payingthe surplus if any, on demand, to the owner or other person for the time beingresponsible for the management of the ship, or the master of the ship. (3)Where a ship is detained or sold under this section, the State, the ChiefExecutive Officer, and the Comptroller of Customs, or any person acting undertheir direction or authority under this section shall not be liable for anyloss or damage arising directly or indirectly from the detention or sale of theship unless it is proved to the satisfaction of a court that the person failedto act in good faith.

(4) TheComptroller of Customs shall advise the Chief Executive Officer of every shipdetained pursuant to subsection (1) by the Comptroller or by a person actingunder the Comptroller’s direction or authority.

Coasting-trade

109.—(1)For the purposes of this Part, a coastal ship is engaged in the coasting-tradewhen the coastal ship—

(a) takes on board coastal cargo or passengers forcommercial purposes; or

(b) leaves a port or place in Fiji to undertake acommercial shipping service within the territorial sea and archipelagic watersincluding Rotuma.

(2)Subject to this Decree, the Chief Executive Officer may, in respect of acoastal ship and subject to any conditions he or she thinks fit to impose,grant to a person a licence to engage that ship in the coasting-trade.

Coasting-trade licence

110.—(1) Alicence granted under section 109 (2) shall be either—

(a) a general coasting-trade licence; or

(b) a special coasting-trade licence.

(2) Ageneral coasting-trade licence entitles the holder of the licence to engage theship in respect of which the licence is granted in the coasting-trade.

(3) Aspecial coasting-trade licence entitles the holder of the licence to engage theship in respect of which the licence is granted in the particular shippingservice specified in the licence.

(4)Provided that a ship is a registered ship under the Ship Registration Decree2013, a coasting-trade licence can be granted in respect of that ship to—

(a) the owner of the ship; or

(b) a person who is, either by himself, herself or withother persons, the charterer of the ship and,

in thissection “owner” in relation to a ship, includes, where the ship is operated bya person other than the owner, that person.

(5) Where,in respect of a particular shipping service, the Chief Executive Officer issatisfied that the service that could be provided by a person referred to insubsection (1) (a) would be at least equal to or superior to the servicethat could be provided by a person referred to in subsection (1) (b) he orshe shall grant the coasting-trade licence in respect of that service to theperson referred to in subsection (1) (a).

Duration of coasting-trade licence

111. Acoasting-trade licence shall not be granted for a period exceeding 5 years.

Determination forgranting of a coasting-trade licence

112. Inmaking a determination under section 109 the Chief Executive Officer shall haveregard to—

(a) the age, size and condition of the ship;

(b) the adequacy of existing licensed services to providethe proposed service; and

(c) the suitability of the ship for the proposed trade orservice.

Coasting-trade permits

113.—(1)Where in the opinion of the Chief Executive Officer—

(a) no ship in respect of which a coasting-trade licencehas been granted is available to provide a particular shipping service; or

(b) a particular shipping service offered by a ship inrespect of which a coasting-trade licence has been granted is inadequate,inefficient or unreasonably costly, and where, in the opinion of the ChiefExecutive Officer, it is desirable in the interest of safety of the ship,passengers and cargoes to do so,

the ChiefExecutive Officer may, subject to any conditions he or she thinks fit toimpose, issue a coasting-trade permit to the owner or master of any other ship,to operate that service.

(2) Anypermit issued under subsection (1) shall only be in respect of a single voyageby a specified ship.

(3) A shipin respect of which a coasting-trade permit is issued shall not, for thepurposes of this section, be deemed to be engaged in the coasting-trade solelyby reason of the fact that the ship is engaged in the shipping servicespecified in the permit.

Failure to observe the conditions of a coasting-tradelicence or permit

114.—(1)The Chief Executive Officer may require—

(a) the holder of a coasting-trade licence or acoasting-trade permit; or

(b) an applicant for the grant of a coasting-trade licenceor the issue of a coasting-trade permit,

to furnishhim or her with such information as is prescribed about the shipping service inrespect of which the licence or permit is granted or issued or is sought to begranted or issued.

(2) Wherethe Chief Executive Officer has reasonable cause to believe that a person hasin respect of a ship failed to comply with a requirement of this section, he orshe or any other authorised person may, for the purpose of this section—

(a) go on board the ship;

(b) make a check on cargo or passengers carried on boardthe ship; and

(c) examine any accounts, shipping documents, manifestsand other documents relating to the ship.

(3) Anyperson who, without reasonable cause fails—

(a) to comply with a requirement made under subsection(1); or

(b) to permit a person authorised by the Chief ExecutiveOfficer to do any of the acts referred to in subsection (2),

commits aninfringement offence in accordance with section 262 and shall be liable to afine not exceeding $5,000.

(4) Aperson shall not, otherwise than in the performance of his or her officialduties—

(a) make available any record; or

(b) divulge or communicate to any person any information,

acquiredby him or her or furnished to the Chief Executive Officer under subsections (1)or (2).

(5) Anyperson who acts in contravention of subsection (2) commits an offence and shallbe liable upon conviction to imprisonment for 1 year or to a fine not exceeding$4,000.

(6) Anyholder of a coasting-trade licence or a coasting-trade permit that was grantedor issued subject to conditions, who fails to comply with such conditions,commits an offence and shall be liable upon conviction to a fine not exceeding$10,000.

Cancellation or suspension of coasting-trade licenceor permit

115.—(1)The Chief Executive Officer may cancel the coasting-trade licence orcoasting-trade permit in respect of a ship in relation to which an offence iscommitted under this section.

(2) Where,in the opinion of the Chief Executive Officer, it is necessary or desirable forthe safety of ships, passengers and cargo, the Chief Executive Officer may—

(a) cancel or suspend a coasting-trade licence; or

(b) vary any condition subject to which a coasting-tradelicence was granted.

Aids to navigation

116.—(1)The Authority shall be responsible for the management of all aids to navigationon or near the coasts of Fiji and the adjacent seas and islands, except thoseto which subsection (2) applies.

(2) Anyperson, authority or operator who operates a port, cargo terminal, marina,jetty, marine farm, or other maritime facility must provide aids to navigationfor that facility and is responsible for them.

(3) TheAuthority may—

(a) erect or place any navigational aid;

(b) add to, alter, remove, or maintain any aids tonavigation or

(c) inspect any aids to navigation or property related toany aids to navigation.

(4)Any person who is authorised by the Chief Executive Officer for that purposeeither generally or specifically may inspect and examine any aids to navigationthat is privately or publically owned and may for that purpose enter, with suchassistants as he or she may deem necessary, any such aids to navigation and anypremises and property that is appurtenant to the aids to navigation.

(5) Any person,authority or operator who operates a port, cargo terminal, marina, jetty,marine farm, or other maritime facility must, as and when required by the ChiefExecutive Officer, do the following in or for that port as the Chief ExecutiveOfficer may require—

(a) erect lights, lay down buoys and beacons, and replace,remove, or discontinue any harbour light, signal, buoy, beacon, or other seamark; or

(b) make any variation in the character of any harbourlight, signal, buoy, beacon, or other sea mark or in the mode of exhibiting it.

(6) If anyperson, Authority or operator fails or neglects to comply with a requisitionmade under subsection (5) within the period specified in the requisition—

(a) the Chief Executive Officer may take all such stepsand do all such acts as may be necessary to give effect to the requisition; and

(b) the cost and charges of doing so shall be debt duefrom the operator to the Authority and may be recovered accordingly.

(7) Anyperson who erects or places a navigational aid, alters the character of anavigational aid, or alters or removes the position of a navigational aid,without the approval of the Chief Executive Officer, commits an offence and isliable upon conviction—

(a) in the case of an individual, to imprisonment for a termnot exceeding 3 months or to a fine not exceeding $2,000; and

(b) in the case of a body corporate, to a fine notexceeding $10,000.

(8) Aidsto navigation shall be provided and maintained in accordance with, and complywith the requirements of the maritime Regulations.

Declaration of ports by the Minister

117.—(1)The Minister may, after consultation with the Minister for Finance and bynotification in the Gazette, declare certain places in Fiji as portareas, where it is in his or her view that such a declaration is in theinterest of the safe embarking and disembarking of passengers, cargoes and safeapproaching and berthing of ships.

(2) Everydeclaration under subsection (1) shall define the limits of the port areas.

Provisions relating to special maritime events

118.—(1)The Minister may, on application made by any person or organisation, declare bynotice published in the Gazette, a major maritime event or occasion tobe an event or occasion to which section 119 applies.

(2) Anotice under subsection (1)—

(a) shall describe the event or occasion to which itapplies;

(b) shall describe the waters “the designated area” towhich it applies;

(c) shall specify the period during which the noticeapplies;

(d) may set out requirements for the purposes ofnavigation safety and to enable the event or occasion to be properly managed,including requirements specifying the classes of ships that are authorised toenter the designated area, and the conditions and requirements to be compliedwith by persons in the designated area; and

(e) may contain such other information as may be necessaryto explain the effect of the notice.

(3) Anotice under subsection (1) may not be given unless the Minister—

(a) is satisfied that—

(i) the application isreasonable;

(ii) the applicant hasprovided the information referred to in subsection (2) (a), (b), and (c);and

(iii) the applicant hasprovided any information required for the purposes of subsection (2) (d) and(e);

(b)issatisfied that the application of section 119 is in the interests of navigationsafety or is an appropriate way to manage and control the event or occasion;

(c) is satisfied that the applicant has considered theneeds of commercial shipping;

(d) has published in the Gazette, and in such dailynewspapers as the Minister considers appropriate, a notice stating theMinister’s intention to give the notice under subsection (1) and specifying aperiod (which may not be less than 10 days) within which interested persons andorganisations may make written representations about the proposal; and

(e) has considered all representations received within thespecified time.

(4) TheMinister may from time to time, by notice published in the Gazette

(a) extend the period during which a notice undersubsection (1) applies; or

(b) amend any description or correct any obvious mistakein a notice under subsection (1).

(5) Anapplicant must pay the costs and expenses of the notices referred to insubsection (3) that are published for the purposes of that person’s applicationunder this section.

(6) Thissection applies only to special maritime events and occasions that are to beheld in Fiji waters.

Special enforcement powers may be exercised when thissection applies

119.—(1)This section applies to a special maritime event or occasion that is subject toa notice under section 118.

(2) Duringthe period specified for the purpose in the notice under section 118 thatapplies to the event or occasion, an enforcement officer who has reasonablecause to believe that the action is necessary to maintain public order, or topreserve the safety of any person or ship, craft, or seaplane, or to enforcethe provisions of the notice may do all or any of the following—

(a) stop and detain any ship, craft, or seaplane in thedesignated area;

(b) remove any ship, craft, or seaplane or person from thedesignated area;

(c) prevent any ship, craft, or seaplane or person fromentering the designated area;

(d) prohibit the use of a ship, craft, or seaplane in thedesignated area, if the enforcement officer considers its use in the designatedarea would pose an unreasonable risk to the safety of those on board or ofother persons; and

(e) board a ship, craft, or seaplane, give directions forthe purposes of this section to the person appearing to be in charge, andrequire that person to give his or her name and address.

(3) Theexercise of any power conferred by subsection (2) does not prevent anenforcement officer or any other person from taking any further action againsta person under any other provision of this Decree or under any other writtenlaw.

(4) Anenforcement officer exercising any power under this section must produceevidence of identity and evidence that he or she is an enforcement officer,whenever reasonably requested to do so.

(5) The personin charge of a ship, craft, or seaplane commits an infringement offence and isliable to the penalty prescribed by Regulations if—

(a) the ship, craft, or seaplane enters or remains in adesignated area in contravention of a notice given under section 118 orotherwise contravenes the notice;

(b) the person obstructs an enforcement officer while theofficer is lawfully exercising a power under subsection (2); or

(c) the person fails to comply with the lawful exercise byan enforcement officer of a power under subsection (2).

(6) Forthe purposes of this section, the following persons are enforcement officers—

(a) all Police Constables and all police employees who arenot constables authorised for the purpose by the Commissioner of Police;

(b) all members of the Fiji Navy authorised for thepurpose by the Commander of the Fiji Navy; and

(c) the Port State control officer and Port Master.

Opening and testing of packagescontaining dangerous goods

120.—(1)This section applies to—

(a) registered ships in Fiji; and

(b) other ships in a port in Fiji or in Fiji waters thatload or unload cargo or fuel or embark or disembark passengers.

(2) Aperson referred to in subsection (3) may require a package or container to beopened and subjected to such tests as may be necessary to identify the contentsif—

(a) the package or container is, or is intended to be,loaded or carried on a ship to which this section applies; and

(b) the person reasonably believes the package orcontainer contains dangerous goods, as defined in Regulations made under thisDecree, that are not marked or packed in accordance with the Regulations.

(3) Thepersons referred to in subsection (2) are—

(a) the owner, master, or charterer of a ship to whichthis section applies;

(b) the agent of the owner or charterer;

(c) the consolidator of any freight container or otherform of secondary containment intended for shipment on the ship; or

(d) a person authorised by the—

(i) Chief Executive Officer;

(ii) Director of the Department of Labour;

(iii) Fiji Revenue and Customs Authority; or

(iv) Minister for Agriculture, Fisheries and Forests,Rural and Maritime Development and National Disaster Management.

(4) Theshipper of the package or container is liable for the costs of inspections andtests carried out under subsection (2) and of any delay caused by theinspections and tests.

 

PART9—SALVAGE

Interpretation

121. Inthis Part, unless the context otherwise requires—

“coastalor inland waters” means—

(a)allwaters within the exclusive economic zone of Fiji;

(b)theterritorial sea of Fiji; and

(c)theinternal waters of Fiji;

“Convention”means the International Convention on Salvage, 1989, as set out in Schedule 2;

“Court”means the Magistrates’ Court or High Court of Fiji; and

“freightat risk” includes payments due to an owner or charterer for the carriage ofcargo.

Application of Convention

122. Theprovisions of the Convention shall have the force of law in Fiji.

Salvage claims against the State

123.Subject to the provisions of the State Proceedings Act (Cap. 24), theprovisions of this Part shall apply to salvage operations which assist anyState-owned ship or other property, in the same manner as if the ship orproperty belonged to a private person.

Salvage claims by the State

124. Wheresalvage operations are rendered by any Fiji Navy ship, or any other State-ownedship, the State shall be entitled to claim salvage in respect of thoseoperations to the same extent as any other salvor, and shall have the samerights as any other salvor.

Apportionment between salvors

125. Apayment in respect of a salvage operation that is due to more than one personshall, in the absence of agreement between those persons, be apportioned amongthose persons in such manner as the court thinks fit, having regard to theterms of the Convention.

Salvage for saving life

126.—(1)Where services are rendered—

(a) wholly or in part within Fiji waters in saving lifefrom any ship or aircraft, whether or not it is a registered ship in Fiji or anaircraft registered in or belonging to Fiji; or

(b) elsewhere in saving life from any registered ship inFiji or any aircraft which is registered in or belongs to Fiji,

thereshall be payable to the salvor, by the owner of the ship or aircraft or cargoor equipment, a reasonable amount of salvage, to be determined in case ofdispute in the manner set out in subsections (2) and (3).

(2)Salvage in respect of the preservation of life, when payable by the owner ofthe ship or aircraft, is payable in priority to all other claims for salvage.

(3) Wherethe ship or aircraft and its cargo and equipment are destroyed, or the value ofit is insufficient, after payment of the actual expenses incurred, to pay theamount of salvage payable in respect of the preservation of life, the Ministermay in consultation with the Minister for Finance award to the salvor, out ofany money appropriated by Government for the purpose, such sum as he or shethinks fit in whole or part satisfaction of any amount of salvage so leftunpaid.

Actions for indemnity

127. Anyperson who—

(a) is liable for payment in respect of a salvageoperation; and

(b) is indemnified against that liability,

shall takeaction to enforce that indemnity within 2 years of the liability arising and,in the event of failure to do so, that right of enforcement shall no longer beavailable to that person.

 

PART10—MARINE POLLUTION PREVENTION AND MANAGEMENT

Interpretation

128. In this Part, unless thecontext otherwise requires—

“carrying in bulk” meansthe carriage of a noxious liquid substance in the cargo spaces of a shipwithout any form of intermediate containment or packaging;

“clean ballast water”means ballast water and contaminants carried in a tank used to carry a noxiousliquid substance or oil—

(a) where the tank has beenthoroughly cleaned since last used to carry a noxious liquid substance, and theresidue from that cleaning discharged with the tank being emptied; or

(b) where the tank has beenthoroughly cleaned since last used to carry oil and the ballast water andcontaminants, when discharged, would not contain oil exceeding 15 parts permillion;

“coastal marine area”means the waters adjacent to the coastline;

“discharge” includes anyrelease, disposal, spilling, leaking, pumping, emitting, or emptying but doesnot include release of harmful substances for the purposes of legitimatescientific research into pollution abatement and control and “to discharge” and“discharged” have corresponding meanings;

“en route” means that aship is under way at sea on a course, or courses;

“Fiji waters” means Fijiwaters as defined in section 2 but does not include a port or approaches to aport as declared or deemed to be declared under the Sea Ports Management Act2005;

“garbage” means allkinds of victual, domestic, and operational waste generated during the normaloperation of the ship or offshore installation and liable to be dischargedcontinuously or periodically but does not include oil, noxious liquidsubstances, sewage, fresh fish or parts thereof;

“grade A treated sewage”means sewage discharged from a treatment system prescribed in the maritimeRegulations, specifically for grade A treated sewage, that is maintained andoperated in good working order and in accordance with any instructions of thesystem’s manufacturer;

“grade B treated sewage”means sewage discharged from a treatment system prescribed in the maritimeRegulations, specifically for grade B treated sewage, that is maintained andoperated in good working order and in accordance with any instructions of thesystem’s manufacturer;

“harmful substance”means—

(a) petroleum in any form,including crude oil, fuel oil, sludge, oil refuse and refined petroleum products(other than petrochemicals which are noxious liquid substances) and includesthe substances specified in the maritime Regulations;

(b) any substance specifiedin the maritime Regulations and any mixture of those substances if carried inbulk in a ship;

(c) drainage and otherwastes from any form of toilet, urinal, or toilet scupper on a ship or offshoreinstallation;

(d) drainage from washbasins, wash tubs, and scuppers located in the dispensary, sick bay, or othermedical premises of a ship or offshore installation;

(e) drainage from spaces ona ship or offshore installation containing living animals;

(f) waste water from a shipor offshore installation mixed with the drainage and waste specified inparagraphs (c), (d), or (e);

(g) harmful AntifoulingSystems on ships such as a coating, paint, surface treatment, surface or devicethat is used on a ship to control or prevent attachment of unwanted organisms;and

(h) all victual, domestic,and operational waste (other than fresh fish or parts of fresh fish) generatedduring the normal operations of a ship or offshore installation and liable tobe discharged continuously or periodically;

“hazardous ship” means aship that is in the internal waters of Fiji and as a result of a shippingcasualty or acts related to such a casualty, is discharging, or is likely todischarge, a harmful substance into the internal waters of Fiji or the seabedbelow them;

“hazardous structure”means a hazardous offshore installation or a hazardous pipeline;

“noxious liquid substance”means any substance specified in the maritime Regulations and includes anymixtures of those substances;

“oil” means petroleum inany form, including crude oil, fuel oil, sludge, oil refuse, and refinedpetroleum products (other than petrochemicals which are noxious liquidsubstances), and includes the substances specified in the maritime Regulations;

“marine spill” means anyactual or probable release, discharge, or escape of oil, harmful substance, andnoxious liquid substance;

“plastics” includessynthetic ropes, synthetic fishing nets, plastic garbage bags, and incineratorashes from plastic products that may contain toxic or heavy metal residues;

“platform drainage”means the drainage water from the machinery space on an offshore installation and—

(a) includes all water andcontaminants from generators, fuel tanks, and pumps; but

(b) does not include anywater or contaminant from processing, production, or displacement associatedwith exploration, drilling, or production activities which are undertaken bythe offshore installation;

“provincial council”means the council established under section 7 of the iTaukei Affairs Act (Cap.120);

“segregated ballastwater” means ballast water and contaminants in a ship’s tank where that tank iscompletely separated from cargo oil and fuel oil systems and is permanentlyallocated to the carriage of ballast water or cargoes other than oil or noxiousliquid substances;

“sewage” means, inrelation to a ship or offshore installation—

(a) drainage and otherwastes from any form of toilet, urinal, or toilet scupper;

(b) drainage from washbasins, wash tubs, and scuppers located in any dispensary, sick bay or othermedical premises;

(c) drainage from spacescontaining living animals; or

(d) waste waters mixed withthe drainage and wastes specified in paragraphs (a), (b), or (c);and

“territorial water” hasthe same meaning given in section 2 of the Marine Spaces Act (Cap. 158A).

Control of discharges

129.—(1)For the purpose of this Decree, no harmful substances shall be discharged orallowed to escape —

(a)fromany ship, offshore installation, or pipeline—

(i) into the sea withinthe exclusive economic zone of Fiji; or

(ii) onto or into theseabed below that sea;

(b)fromany ship or offshore installation involved with the exploration or exploitationof the sea or the seabed, or any pipeline—

(i) into the sea beyondthe outer limits of the exclusive economic zone of Fiji but over thecontinental shelf of Fiji ; or

(ii) onto or into theseabed below that sea;

(c)fromany registered ship in Fiji—

(i) into the sea beyondthe outer limits of the exclusive economic zone of Fiji; or

(ii) onto or into theseabed below that sea; and

(d)as aresult of any marine operations—

(i) into the sea withinthe exclusive economic zone of Fiji or beyond the outer limits of thatexclusive economic zone but over the continental shelf of Fiji; or

(ii) onto or into theseabed below that sea.

(2) If anyharmful substance is discharged or escapes into the sea or onto the seabed, thefollowing persons commit an offence—

(a) from a ship, the master and owner of the ship;

(b) from an offshore installation or device, the owner ofthe offshore installation or device;

(c) from a pipeline, the owner of the pipeline;

(d) as a result of any marine operations, the person incharge of and carrying out such operations; or

(e) of a kind referred to in paragraphs (a), (b), (c) or(d) and results from intentional damage caused by a person not referredto in that paragraph, the person who committed the damage.

(3)Subject to subsection (4), any person who commits an offence against thissection shall be liable upon conviction—

(a) to imprisonment for a term not exceeding 2 years or toa fine not exceeding $200,000 and, if the offence is a continuing one, to afurther fine not exceeding $10,000 for every day or part thereof during whichthe offence is continued; and

(b) to pay such amount as the Court may assess in respectof the costs incurred in respect of or associated with removing, containing,rendering harmless, or dispersing any harmful substance discharged as a resultof the offence.

(4) TheCourt shall not sentence to imprisonment any person who commits an offenceagainst this section unless the Court is satisfied that—

(a) where the person is the master or owner of a foreignship—

(i) that the offence was committed within the internalwaters, archipelagic waters and territorial sea;

(ii) that the person intended to commit the offence,or the offence occurred as a consequence of any reckless act or omission by theperson with the knowledge that that act or omission would or would be likely tocause serious damage to the marine environment within the internal waters,archipelagic waters and territorial sea; and

(iii) that the commission of the offence has caused oris likely to cause serious damage to the marine environment within the internalwaters, archipelagic waters and territorial sea;

(b)in anyother case—

(i) that the person intended to commit the offence, orthe offence occurred as a consequence of any reckless act or omission by theperson with the knowledge that that act or omission would or would be likely tocause serious damage to the marine environment; and

(ii) that the commission of the offence has caused oris likely to cause serious damage to the marine environment.

Defences to offences against section 129

130. Itshall be a defence to proceedings for an offence against section 129 if thedefendant proves that—

(a) the harmful substance was discharged for the purposeof securing the safety of a ship, installation or device or for the purpose ofsaving life, and the discharge was a reasonable step to take to effect thatpurpose; or

(b) the harmful substance escaped as a consequence ofdamage to a ship or its equipment, to an offshore installation or device or itsequipment, to a pipeline, or to any apparatus (other than a ship) used inconnection with any marine operations and—

(i) such damage occurred without the negligence ordeliberate act of the defendant; and

(ii) as soon as practicable after that damageoccurred, all reasonable steps were taken to prevent the escape of the harmfulsubstance or, if any such escape could not be prevented, to minimise theescape.

Duty to report discharge or escape of harmfulsubstances

131.—(1)Where there is any discharge or escape of a harmful substance into the sea, oronto or into the seabed in breach of section 129 of this Decree, notice of suchdischarge or escape shall immediately be given to the—

(a) Authority;

(b) Director of the Department of Environment; and

(c) provincial council within whose provincial boundarythe discharge or escape has occurred; or

(d) municipality within whose municipality boundary thedischarge or escape has occurred.

(2) Thefollowing persons shall be under a duty to give notice of a discharge or escapeof a harmful substance in accordance with subsection (1) and failure to do soshall be constituted as an offence—

(a) if the discharge or escape was from a ship, the ownerand the master of the ship;

(b) if the discharge or escape was from an offshoreinstallation, the owner of the offshore installation;

(c) if the discharge or escape was from a pipeline, theowner of the pipeline; or

(d) if the discharge or escape was a result of any marineoperations, the person in charge of and carrying out such operations.

(3) Thegiving of notice of a discharge or escape in accordance with subsection (2) byone person shall be sufficient to relieve every other person from a duty togive such notice in respect of that discharge or escape.

(4) Anyperson found guilty under subsection (2) shall be liable upon conviction—

(a) in the case of an individual, to a fine not exceeding$100,000 and, if the offence is a continuing one, to a further fine notexceeding $2,000 for every day or part thereof during which the offence iscontinued; or

(b) in the case of a body corporate, to a fine notexceeding $100,000,000 and, if the offence is a continuing one, to a furtherfine not exceeding $50,000 for every day or part thereof during which theoffence is continued.

Discharge of substances for the purpose of avoiding,remedying, or mitigating marine spill

132. Anyperson may, within the Fiji waters, discharge from a ship or offshoreinstallation any substance for the purpose of avoiding, remedying, ormitigating the adverse effects of a marine spill.

Discharge of oil

133.—(1)Any person may, within the Fiji waters, discharge oil, or mixtures containingoil, from any ship if—

(a) the oil is not derived from the cargo of the ship;

(b) the ship is proceeding en route; and

(c) the oil content of the discharge before dilution withany other substance does not exceed 15 parts per million.

(2) Anyperson may, in the coastal marine area, discharge oil, or mixtures containingoil, from an offshore installation, if—

(a) the oil content of the discharge before dilution withany other substance does not exceed 15 parts per million; and

(b) the discharge is platform drainage.

Discharge of noxious liquid substances

134. Anyperson may, within the Fiji waters, discharge from any ship carrying in bulk anoxious liquid substance, any noxious liquid substance if that noxious liquidsubstance is part of a discharge of clean ballast water or segregated ballastwater.

Discharge of sewage in Fiji waters

135.—(1)No ship of 15 meters or less in length shall discharge sewage within 3 milesfrom the nearest reef system.

(2) Noship more than 15 meters in length, offshore installations or devices shalldischarge sewage within 12 nautical miles from the nearest reef system.

(3) Anyperson who acts in contravention of this section commits an infringementoffence in accordance with section 262 and shall be liable—

(a) if the ship is of 15 meters or less in length, to afine not exceeding $2,000; and

(b) if the ship is more than 15 meters in length, offshoreinstallations or devices to a fine not exceeding $10,000.

Discharge of Grade A treated sewage and Grade Btreated sewage in Fiji waters

136. Anyship, offshore installation or device may discharge Grade A treated sewage orGrade B treated sewage beyond Fiji’s internal waters.

Discharge of garbage

137.—(1)The discharge of plastics, dunnage, lining, and packaging materials within Fijiwaters from any ship is prohibited.

(2) Anyperson who acts in contravention of subsection (1) commits an infringementoffence in accordance with section 262 and shall be liable—

(a) if the ship from which the discharge has been made isless than 15 meters in length, to a fine not exceeding $2,000; and

(b) if the ship from which the discharge has been made is15 meters or more in length, to a fine not exceeding $10,000.

(3) Anyship, offshore installation or device may, within Fiji waters, dischargegarbage other than those items specified in subsection (1), including foodwastes, paper, rags, glass, metal, bottles, and crockery if—

(a) the garbage has been ground to a particle size of 25millimetres or less; and

(b) the discharge occurs at least—

(i) 3 nautical miles from the nearest reef system; and

(ii) 0.5 nautical miles from any offshore installationor device.

(4) Thedischarge of garbage within Fiji waters from any offshore installation ordevice is prohibited.

(5) Anyperson who acts in contravention of subsections (3) and (4) commits aninfringement offence in accordance with section 262 and shall be liable—

(a) if the ship from which the discharge has been made isless than 10 meters in length, to a fine not exceeding $2,000; and

(b) if the ship from which the discharge has been made isabove 10 meters in length, to a fine not exceeding $10,000.

Discharge of ballast water

138.Ballast water exchange with marine water may be carried out by a ship oroffshore installation, at least 200 nautical miles from the nearest land and inwater at least 200 meters in depth or where this is not possible, then at least50 nautical miles from shore and in water at least 200 meters in depth.

Discharges made as part of normal operations of ship,offshore installation or device

139. Anyperson may discharge, within Fiji waters, a contaminant that is incidental to,or derived from, or generated during, the operations prescribed in the maritimeRegulations as the normal operations of a ship, offshore installation ordevice.

Notice of pollution incidents

140.—(1)Where a pollution incident occurs within the internal waters or the territorialsea of Fiji, the Chief Executive Officer, Director of the Department ofEnvironment, the provincial council within whose provincial boundary theincident occurs or municipality within whose municipal boundary the incidentoccurs, shall be given notice of any pollution incident involving—

(a) ships;

(b) offshore installations or devices; or

(c) pipelines within Fiji archipelagic waters.

(2) Thefollowing persons shall be under a duty to give notice of the occurrence of apollution incident in accordance with subsection (1) and failure to do so shallbe constituted as an offence—

(a) if a ship is involved, the owner and master of theship;

(b) if an offshore installation or device is involved, theowner of the offshore installation or device;

(c) if a pipeline is involved, the owner of the pipeline;

(d) if marine operations are involved, the person incharge of and carrying out such operations; or

(e) if a land based operations is involved, the owner orperson in charge of operating those offshore installations.

(3) Whereone person gives notice of a pollution incident in accordance with subsection(1) it shall be sufficient to discharge every other person from a duty to givesuch notice in respect of that pollution incident.

(4) Whereany pollution incident involving a registered ship in Fiji occurs beyond theouter limits of the exclusive economic zone of Fiji, the master of the shipshall, as soon as is practicable, report the incident to the appropriateauthority of the nearest State.

(5) Anyperson found guilty under subsection (2) shall be liable upon conviction—

(a) in the case of an individual, to a fine not exceeding$100,000 and, if the offence is a continuing one, to a further fine notexceeding $2,000 for every day or part thereof during which the offence iscontinued; and

(b) in the case of a body corporate, to a fine notexceeding $100,000,000 and, if the offence is a continuing one, to a furtherfine not exceeding $50,000 for every day or part thereof during which theoffence is continued.

Notice of prospective arrival of ship carrying oil ornoxious liquid substance

141.—(1)The master or owner of a ship which arrives at a port in Fiji carrying oil orany noxious liquid substance in bulk as cargo, shall give prior notice of itsarrival to the Chief Executive Officer or the provincial council within whoseprovincial boundary the port of prospective arrival is located.

(2) Anymaster or owner who acts in contravention of subsection (1) commits aninfringement offence in accordance with section 262 and shall be liable uponconviction to a fine not exceeding $20,000.

Notice of transfer of oil or noxious liquid substancesto or from ships

142.Unless the master or owner of the ship gives written notice to the ChiefExecutive Officer in accordance with the requirements of the marine protectionRegulations, no oil or noxious liquid substance—

(a) carried in bulk by a ship shall be transferred fromthat ship in the internal waters or territorial sea of Fiji; or

(b) carried in bulk shall be transferred to a ship in theinternal waters or the territorial sea of Fiji.

Requirement of provision of financial security

143.—(1)If the Chief Executive Officer has reasonable cause to believe that a harmfulsubstance has been discharged or has escaped from a ship in breach of this Part,the Chief Executive Officer may require the owner, operator, or agent of thatship to provide a contract of insurance or other financial security of a kindand for an amount that is sufficient security for the payment of any amountsthat may be payable by the owner, or the master of the ship, under this Decree,in respect of that discharge or escape.

(2) Anyperson who fails to comply with the requirements of the Chief Executive Officercommits an offence and shall be liable upon conviction—

(a) to imprisonment for a term not exceeding 4 years or toa fine not exceeding $100,000,000 and if the offence is a continuing one, to afurther fine not exceeding $50,000 for every day or part thereof during whichthe offence is continued to be committed;

(b) to pay such amount as the Court may assess in respectof the costs incurred in respect of or associated with removing, containing,rendering harmless, or dispersing any harmful substance discharged as a resultof the offence.

Investigation of any discharge or escape of anyharmful substance

144.—(1)The Chief Executive Officer shall appoint a person or persons to investigateany discharge or escape of a harmful substance in breach of this Part, or anypollution incident.

(2) Forthe purposes of carrying out an investigation under this Part, a person orpersons appointed for the purpose by the Chief Executive Officer may—

(a) make inquiries from any person who he or she hasreason to believe is in possession of information that may lead to thediscovery of the cause of the discharge or escape or pollution incident;

(b) issue in writing a summons requiring any person toattend at the time and place specified in the summons and to give evidence, andto produce any documents or things in that person’s possession or under thatperson’s control that are relevant to the subject of the investigation;

(c) seek orders from Court to take possession of andremove any such document from the place where it is kept for such period oftime as is reasonable in the circumstances; or

(d) require a person to reproduce, or to allow anauthorised person to reproduce, in usable form any information recorded orstored on a document electronically or by other means.

(3) Asummons served under this Part shall be served by—

(a) delivering it to the person summoned; or

(b) sending it by registered post addressed to the personsummoned at his or her usual or last known place of residence.

(4) Thesummons shall—

(a) where it is served under subsection (3) (a) beserved at least 48 hours before the attendance of the witness is required; or

(b) where it is served under subsection (3) (b) beserved at least 10 days before the date in which the attendance of the witnessis required.

(5) If thesummons is sent by registered post it shall be deemed for the purposes ofsubsection 4 (b) to have been served at the time when the letter wouldbe delivered in the ordinary course of post.

(6) Forthe purposes of this section—

“document” means a document in any form and includes—

(a) any writing on or in any material;

(b) information recorded or stored by means of atape-recorder, computer, or other devices and material subsequently derivedfrom information so recorded or stored;

(c) a record, book, graph, or drawing; and

(d) a photograph, film, negative, tape, disk, or otherdevice in which one or more visual images are embodied or stored so as to becapable with or without the aid of equipment of being reproduced.

(7) Anyperson who fails to comply with a requirement made under subsection (2) commitsan infringement offence in accordance with section 262 and is liable to a finenot exceeding $1,000.

Additional powers of Investigators

145. Theperson or persons appointed by the Chief Executive Officer, may for thepurposes of an investigation under section 144, but without limiting the powersconferred by that section—

(a) prohibit or restrict access of persons or classes ofpersons to the site of the discharge, escape, or pollution incident to whichthe investigation relates, if he or she believes on reasonable grounds that itis necessary to preserve or record evidence, or to prevent the tampering withor alteration, mutilation, or destruction of anything involved in thedischarge, escape, or pollution incident;

(b) collect oil samples; or

(c) seek orders from Court to seize, detain, remove,preserve, protect, or test anything that the Authority believes on reasonablegrounds will assist in establishing the cause of the discharge, escape, orpollution incident.

Requirement for reception facilities

146.—(1)The Chief Executive Officer may from time to time, by notice in writing,require any person who operates a port, marina or slipway in Fiji to provide atthat port, marina or slipway a reception facility for the reception of harmfulsubstances from ships.

(2) Anyperson who fails to comply with the requirements of the Chief Executive Officercommits an offence and shall be liable upon conviction—

(a) to imprisonment for a term not exceeding 4 years or toa fine not exceeding $100,000,000 and if the offence is a continuing one, to afurther fine not exceeding $50,000 for every day or part thereof during whichthe offence is continued to be committed; or

(b) to pay such amount as the Court may assess in respectof the costs incurred in respect of or associated with removing, containing,rendering harmless, or dispersing any harmful substance discharged as a resultof the offence.

Powers of Chief Executive Officer in relation tohazardous ships

147.—(1)Where the Chief Executive Officer is of the opinion that a ship is a hazardousship, the Chief Executive Officer may from time to time—

(a) issue any instructions to the master, owner, or agentof the ship, or to any person in charge of any salvage operation in respect ofthe ship and an employee or agent of that person, with respect to the ship, orits cargo, or both; or

(b) take any measures with respect to the ship, or itscargo, or both, including taking over the control of the ship.

(2)Without limiting subsection (1), the Chief Executive Officer may take, orrequire any person referred to in subsection (1) (a) to take, all or anyof the following measures—

(a) the removal of the ship to another place;

(b) the removal of cargo from the ship;

(c) the salvage of the ship, or its cargo, or both; or

(d) the sinking or destruction of the ship, or its cargo,or both.

(3) The Chief Executive Officer shall use reasonablemeans to notify the master, owner, or agent of the ship of any measures he orshe proposes to take under subsections (1) or (2) with respect to the ship, orits cargo, however, the Chief Executive Officer shall not be obliged to givesuch notification where, in his or her opinion, the urgency of the situation issuch that the measures shall be taken immediately.

(4) TheChief Executive Officer may from time to time, in order to carry out, or assistin carrying out, any measures taken under this section, after making reasonableendeavours to consult the owner, or the agent, of the ship to whose master theinstructions are to be given—

(a) instruct the master of any registered ship in Fiji, orof any other ship within Fiji waters to render assistance to a ship that, inthe opinion of the Chief Executive Officer, is a hazardous ship; and

(b)instructthe master of any registered ship in Fiji to do all or any of the following—

(i)take on board any item or equipment;

(ii)sail to any place;

(iii)render assistance to a ship assisting a ship that, in the opinion of the ChiefExecutive Officer, is a hazardous ship; or

(iv)assist in operations for the cleaning up and control of a harmful substance.

(5) Anyperson who fails to comply with the requirements of this section commits anoffence and shall be liable upon conviction—

(a) to imprisonment for a term not exceeding 4 years or toa fine not exceeding $50,000 and if the offence is a continuing one, to afurther fine not exceeding $20,000 for every day or part thereof during whichthe offence is continued to be committed; or

(b) to pay such amount as the Court may assess in respectof the costs incurred in respect of or associated with removing, containing,rendering harmless, or dispersing any harmful substance discharged as a resultof the offence.

Powers of ChiefExecutive Officer in relation to hazardous structures and operations

148.—(1)The Chief Executive Officer may from time to time—

(a) issue any instructions to the owner of the structure;or

(b) take any measures with respect to the structure,whichin the opinion of the Chief Executive Officer is a hazardous structure.

(2)Pursuant to subsection (1), the Chief Executive Officer also has the power to takeeither or both of the following measures—

(a) the removal to another place of the structure toanother place; or

(b) the sinking or destruction of the structure.

(3) In thecase of marine operations that, in the opinion of the Chief Executive Officer,are hazardous marine operations, the Chief Executive Officer may from time totime—

(a) issue any instructions to the owner or the person incharge of the marine operations; or

(b) take, or require that owner or person in charge totake any measures with respect to the marine operations.

(4) TheChief Executive Officer shall use reasonable means to notify the owner of astructure, or the owner or person in charge of marine operations, of anymeasures the Chief Executive Officer proposes to take under this section withrespect to the structure or marine operations, but the Chief Executive Officershall not be obliged to give such notification where in his or her opinion theurgency of the situation is such that the measures must be taken immediately.

(5) Anyperson who fails to comply with the requirements of the Chief Executive Officercommits an offence and shall be liable upon conviction—

(a) to imprisonment for a term not exceeding 4 years or afine not exceeding $50,000 and if the offence is a continuing one, to a furtherfine not exceeding $20,000 for every day or part thereof during which theoffence is continued to be committed; or

(b) to pay such amount as the Court may assess in respectof the costs incurred in respect of or associated with removing, containing,rendering harmless, or dispersing any harmful substance discharged as a resultof the offence.

Costs of detention under section 148

149.—(1)Where the Chief Executive Officer acts under section 148 to detain a ship, theprovisions of section 277 shall apply to the costs of and incidental to thedetention.

(2) Wherethe Chief Executive Officer acts under section 148 to seize a marine protectionproduct, the Authority may recover from the owner of such marine protectionproduct all reasonable costs of and incidental to such seizure.

(3) TheAuthority may become liable to pay to the owner of a ship or a marineprotection product compensation for any loss resulting from the Chief ExecutiveOfficer unduly —

(a) detaining the ship or maintaining the seizure of themarine protection product; or

(b) delaying the ship or the use of the marine protectionproduct.

(4) Wherethe Chief Executive Officer has taken action under section 148 on theinformation of a complainant and the information is subsequently found to befrivolous or vexatious, the complainant shall be liable to indemnify theAuthority for all costs incurred by the Authority.

Exercise of power by Chief Executive Officer

150.—(1)The Chief Executive Officer shall not issue any instructions, or take anymeasures, under sections 147 or 148 unless the issue of such instructions, orthe taking of such measures, appears necessary to the Chief Executive Officerto avoid, reduce, or remedy pollution, or a significant risk of pollution, by aharmful substance that is causing, will cause, or will likely cause seriousharmful consequences to the marine environment or marine interests.

(2) Anyperson who fails to comply with the requirements of the Chief Executive Officercommits an offence and shall be liable upon conviction—

(a) to imprisonment for a term not exceeding 4 years or toa fine not exceeding $50,000 and if the offence is a continuing one, to afurther fine not exceeding $20,000 for every day or part thereof during whichthe offence is continued to be committed; or

(b) to pay such amount as the Court may assess in respectof the costs incurred in respect of or associated with removing, containing,rendering harmless, or dispersing any harmful substance discharged as a resultof the offence.

Protection of Chief Executive Officer and otherpersons

151.Subject to section 152, neither the Chief Executive Officer who has taken measuresunder the provisions of sections 143, 146, 147, 148, or 150, nor any person whohas complied with any instructions under those sections, shall be liable forany action, suit, proceeding, dispute or challenge in any Court, Tribunal orany other adjudicating body for or in respect of any act or omission done ingood faith or intended to be done in the execution or purported execution ofthis Decree or any other written law.

Right to compensation

152. Anyperson who has incurred expense, or suffered loss or damage, as a result of anyaction duly taken under instructions issued by the Chief Executive Officerunder sections 147 or 148, or as a result of any measure taken by the ChiefExecutive Officer under either of those sections, may recover compensation fromthe Authority if the action or measure—

(a) was not reasonably necessary—

(i) to protect the marine environment or marineinterests from a harmful substance; or

(ii) to prevent or reduce the risk of a harmfulsubstance being discharged into the sea; or

(b) was such that the good done by the action or measure,or the good likely to be done, was disproportionately less than the expenseincurred, or the loss or damage suffered, as a result of that action or thatmeasure.

Factors the court shall take intoaccount

153. Wherea claim is brought against the Authority for compensation under this section,the Court, in determining whether section 152 applies, shall take into account—

(a) the probability of a harmful substance beingdischarged into the sea if the action or measure had not been taken;

(b) the likelihood of the action or measure taken beingeffective; and

(c) the extent of the loss or the damage which has beencaused by the action or measure taken.

 

PART11—PLANS AND RESPONSES TO PROTECT THE MARINE

ENVIRONMENTFROM MARINE SPILLS

Interpretation

154. Inthis Part, unless the context otherwise requires—

“NationalOil Pollution Pool” means the pool established under section 197;

“marinespill” means any actual or probable release, discharge or escape of oil,harmful substance, and noxious liquid substance into Fiji waters;

“marinespill contingency plan” or “plan” means a shipboard or site marine spillcontingency plan or the national marine spill contingency plan;

“marinespill response” or “response” means any action taken by or under the authority,or with the approval, of an on-scene commander in relation to a marine spill;

“municipalmarine spill contingency plan” means a marine spill contingency plan preparedby a municipal council and approved by the Chief Executive Officer or preparedby the Chief Executive Officer under section 177;

“municipalityon-scene commander” means a municipality on-scene commander appointed undersection 183;

“NationalOn-Scene Commander” means the National On-Scene Commander appointed undersection 182;

“NationalMarine Spill Response Strategy” or “national plan” means the strategy mostrecently prepared or reviewed under section 157;

“MarineSpill Pollution Advisory Committee” or “Committee” means the committeeappointed under section 155;

“oiltransfer site” or “site” means any port facility, land, site, building,structure, or facility whether on land or above the seabed that is used totransfer oil, or, at or from which oil is transferred to, or from, a ship, oroffshore installation;

“on-scenecommander” means either the National On-Scene Commander or the municipalityon-scene commander or the provincial on-scene commander as the case may be;

“provincialon-scene commander” means a provincial on-scene commander appointed undersection 183;

“requisitionedproperty” means any land, building, vehicle, registered ship in Fiji, or anyother real or personal property requisitioned under section 189 (1) (g);

“shipboardmarine spill contingency plan” means a plan prescribed in the maritimeRegulations in respect of a ship and providing for the measures to be taken inrespect of marine oil, harmful substance, and noxious liquid substance spillsfrom the ship;

“sitemarine spill contingency plan” means a plan prepared under the marineprotection Regulations in respect of an offshore installation or device, or oiltransfer site, and providing for the measures to be taken in respect of marineoil, harmful substance, and noxious liquid substance spills from the offshoreinstallation or device, or oil transfer site, as the case may be; and

“transfer site” meansany port facility, land, site, building, structure, or facility whether on landor above the seabed that is used to transfer harmful substances, or, at or fromwhich a harmful substance is transferred to, or from, a ship, or offshore installation. Marine Spill PollutionAdvisory Committee

155. Thissection establishes the Marine Spill Pollution Advisory Committee, to giveadvice to the Authority on the following matters—

(a) the National Marine Spill Response Strategy;

(b) the fixing of oil pollution levies imposed under thisDecree;

(c) the use of the National Oil Pollution Pool; and

(d) any other matters related to marine oil spills thatthe Minister may from time to time specify by notice in writing to theCommittee.

Composition of the Committee

156.—(1)The Committee shall consist of a Chairperson, the Chief Executive Officer, andsuch other persons, appointed by the Minister.

(2) Inappointing the other members of the Committee, the Minister shall ensure thatthey comprise of the following as and when necessary—

(a) the ship owner;

(b) the shipping agencies;

(b) the oil and gas exploration industry;

(c) the oil and gas production and distribution industry;

(d) the Petroleum Industry Emergency Action Committee;

(e) representatives from the municipalities;

(f) representatives from the provincial councils;

(g) the Authority;

(h) Ministry of Transport;

(i) Ministry of Environment;

(j) Ministry of Lands and Mineral Resources;

(k) the National Fire Authority; and

(l) Ministry of Defence.

(3)Members of the Committee shall be appointed on such terms and conditions,including travelling allowances and expenses, as the Minister may from time totime determine.

(4) Anytravelling allowances and expenses determined by the Minister under subsection(3) shall be paid out of the National Oil Pollution Pool.

(5)Subject to the provisions of this Decree, the Committee may regulate its ownproceedings.

Preparation and review of National Marine SpillResponse Strategy

157. TheChief Executive Officer shall prepare, by a date specified by the Minister bynotice in the Gazette, the National Marine Spill Response Strategy andshall review that response strategy at least once every 5 years.

Purpose and contents of response strategy

158.—(1)The purpose of the National Marine Spill Response Strategy is to—

(a) describe the action to be taken, and by whom theaction is to be undertaken, in response to a marine spill in Fiji’s marinewaters;

(b) promote a standard response to marine spills in Fiji;and

(c) promote the co-ordination of marine spill contingencyplans and the action taken in response to marine spills under such plans.

(2) TheNational Marine Spill Response Strategy shall include such matters as the ChiefExecutive Officer considers appropriate to achieve its purpose as specified insubsection (1) and any other matters that the marine protection Regulationsrequire to be included in the response strategy.

Consultation in respect of response strategy

159. Inpreparing and reviewing the National Marine Spill Response Strategy, the ChiefExecutive Officer shall consult with the Marine Spill Pollution AdvisoryCommittee and such other persons as the Chief Executive Officer considersappropriate.

Purpose of marine spill contingency plans

160. Thepurpose of the marine spill contingency plan is to—

(a) promote planned responses to marine spills atshipboard site, provincial, municipality, and national levels; and

(b) specify the functions and responsibilities of personswith respect to responses to marine spills at shipboard site, provincial,municipal, and national levels.

Preparation, review, and keeping of shipboard and sitemarine spill contingency plans

161.Shipboard and site marine spill contingency plans shall be prepared, reviewed,and kept in accordance with the provisions of the Decree.

Purpose of provincial marine spill contingency plan

162. Thepurpose of a provincial marine spill contingency plan is to promote a plannedand provincial co- ordinated response to any marine spill within a provincethat is beyond the resources of the persons who have caused the marine spill orthat has not been appropriately responded to by such persons.

Initial provincial marine spill contingency plans

163.—(1) Everyprovincial council whose boundary includes any coastline or riverbank shall,within the time specified by the Chief Executive Officer for the purpose,submit to the Chief Executive Officer for his or her approval a draft marinespill contingency plan for its municipality.

(2) Anydate or dates specified by the Chief Executive Officer for the purposes ofsubsection (1), shall not be earlier than 12 months after all of the followinghave been prepared or issued, as the case may be, under this Decree—

(a) the first provincial marine spill response strategy;

(b) the first provincial marine spill contingency plan;and

(c) Regulations prescribing requirements for provincialmarine spill contingency plans.

Regular review of provincial marine spill contingencyplans

164. Everyprovincial council shall review its marine spill contingency plan every 3 yearsand submit a draft marine spill contingency plan after such review to the ChiefExecutive Officer for his or her approval.

Preparation and consultation of, and matters to beincluded in, provincial marine spill contingency plans

165.—(1)In preparing its draft provincial marine spill contingency plan, a provincialcouncil shall ensure that—

(a) the draft plan is consistent with the National MarineSpill Response Strategy and the national marine spill contingency plan; and

(b) the draft plan complies with any relevant requirementsof the marine protection Regulations.

(2) Thefollowing matters shall be considered by a provincial council when preparingunder section 171 or reviewing under section 172, its draft marine spillcontingency plan—

(a) the marine spill contingency plans of adjacentprovinces;

(b) such other marine spill contingency plans as it considersappropriate;

(c) any provincial coastal plan applying to that province;

(d) any conservation management strategies andconservation management plans;

(e) the harmful effects that marine spills may have on themarine environment and measures that can be taken to limit these effects;

(f) the substances that are suitable to contain and cleanup marine spills; and

(g) such other matters as it considers appropriate.

(3) Aprovincial council shall consult the following when preparing under section 171or reviewing under section 172 its draft marine spill contingency plan—

(a) the Department of Environment;

(b) such persons who use the coastal resources within itsboundary as the provincial council considers appropriate; and

(c)anyother persons whom the provincial council considers appropriate. Approval of draft provincial marinespill contingency plan

166.—(1) Aprovincial council shall, upon being required by the Chief Executive Officer todo so, include in, or omit from, its draft marine spill contingency plansubmitted to the Chief Executive Officer under sections 171 or 172, suchprovisions as the Chief Executive Officer may specify.

(2) TheChief Executive Officer may, in his or her discretion, determine whatprovisions if any he or she requires under subsection (1) to be included in oromitted from a draft provincial marine spill contingency plan, except that theChief Executive Officer shall not require any inclusion or omission of aprovision that will result in the plan being inconsistent with any relevantrequirements of the marine protection Regulations.

(3) TheChief Executive Officer shall, once his or her requirements if any, undersubsection (1) have been complied with, approve the relevant provincial marinespill contingency plan.

Amendment of provincial marine spill contingency plans

167.—(1)The Chief Executive Officer may from time to time, by written notice to aprovincial council, require the inclusion or omission of any provision in aprovincial marine spill contingency plan if, in the opinion of the ChiefExecutive Officer, it is necessary to ensure an appropriate response by theprovincial council to a marine spill within its boundary.

(2) Aprovincial council may from time to time amend its marine spill contingencyplan and such amendment may be approved by the Chief Executive Officer.

Provincial marine spill contingency plan overridden incertain cases

168. Whereany provincial marine spill contingency plan is inconsistent with the NationalMarine Spill Response Strategy, the national marine spill contingency plan, orthe provisions of this Decree, the provincial marine spill contingency planshall be void to the extent of that inconsistency.

Preparation of provincial marine spill contingencyplan

169.—(1)The Chief Executive Officer may prepare the provincial marine spill contingencyplan for a province where a provincial council has not submitted a draft marinespill contingency plan in accordance with sections 171 or 172.

(2) Wherea provincial marine spill contingency plan is prepared by the Chief ExecutiveOfficer under subsection (1), the provincial council responsible for the planshall meet out of its own resources the costs of the Authority in preparing theprovincial marine spill contingency plan, and shall not be entitled under anyprovision of this Decree to reimbursement from the National Oil Pollution Poolfor those costs.

Purpose of municipality marine spill contingency plan

170. Thepurpose of a municipality marine spill contingency plan shall be to promote a plannedand municipality co-ordinated response to any marine spill within amunicipality that is beyond the resources of the persons who have caused themarine spill or that has not been appropriately responded to by such persons.

Initial municipality marine spill contingency plans

171.—(1)Every municipality whose boundary includes any coastline or riverbank shall, bya date specified by the Chief Executive Officer for the purpose, submit to theChief Executive Officer for his or her approval a draft municipal marine spillcontingency plan.

(2) Thedate specified under subsection (1) shall be stated after all of the followinghave been prepared or issued under this Decree—

(a) the first municipality marine spill response strategy;

(b) the first municipality marine spill contingency plan;and

(c) Regulations prescribing requirements for municipalitymarine spill contingency plans.

Regular review of municipality marine spillcontingency plans

172. Everymunicipality shall review its marine oil spill, harmful substance, and noxiousliquid substance contingency plan every 3 years and submit a draft marine spillcontingency plan after such review to the Chief Executive Officer for his orher approval.

Preparation and consultation of, and matters to beincluded in, municipality marine spill contingency plans

173.—(1)In preparing its draft municipality marine spill contingency plan, amunicipality shall ensure that—

(a) the draft plan is consistent with the National MarineSpill Response Strategy and the national marine spill contingency plan; and

(b) the draft plan complies with any other relevantrequirements of the marine protection Regulations.

(2) Themunicipality shall when preparing under section 171 or reviewing under section172 the draft marine spill contingency plan, consider the following matters—

(a) the municipality marine spill contingency plans ofadjacent municipalities;

(b) such other marine spill contingency plans as itconsiders appropriate;

(c) any municipality coastal plan applying to thatmunicipality;

(d) any conservation management strategies andconservation management plans;

(e) the harmful effects that marine spills may have on themarine environment and measures that can be taken to limit these effects;

(f) the substances that are suitable to contain and cleanup marine spills; and

(g) such other matters as it considers appropriate.

(3) Themunicipality shall when preparing under section 171 or reviewing under section172, its draft marine spill contingency plan, consult—

(a) the Department of Environment;

(b) such persons who use the coastal resources within itsboundary as the municipality considers appropriate; and

(c) any other persons whom the municipality considersappropriate.

Approval of draft municipality marine spillcontingency plan

174.—(1) Amunicipality shall, upon being required by the Chief Executive Officer to doso, include in, or omit from, its draft marine spill contingency plan submittedto the Chief Executive Officer under sections 171 or 172, such provisions as heor she may specify.

(2) TheChief Executive Officer may, in his or her discretion, determine whatprovisions if any, he or she requires under subsection (1) to be included in oromitted from a draft municipality marine spill contingency plan, except thatthe Chief Executive Officer shall not require any inclusion or omission of aprovision that will result in the plan being inconsistent with any relevantrequirements of the marine protection Regulations.

(3) TheChief Executive Officer shall, once the requirements, if any, under subsection(1) have been complied with, approve the relevant municipality marine spillcontingency plan.

Amendment of municipality marine spill contingencyplans

175.—(1)The Chief Executive Officer may from time to time, by written notice to amunicipality, require the inclusion or omission of any provision in amunicipality marine spill contingency plan if, in the opinion of the ChiefExecutive Officer, it is necessary to ensure an appropriate response by theprovincial council to a marine spill within its boundary.

(2) Amunicipality may from time to time amend its marine spill contingency plan ifsuch amendment is approved in writing by the Chief Executive Officer.

Municipality marine spill contingency plan overriddenin certain cases

176. Whereany municipality marine spill contingency plan is inconsistent with thenational marine spill response strategy, the national marine spill contingencyplan, or the provisions of this Decree, that municipality marine spill contingencyplan shall be void to the extent of that inconsistency.

Preparation of municipality marine spill contingencyplan

177.—(1)The Chief Executive Officer may prepare the municipality marine spillcontingency plan for a municipality where a municipality has not submitted adraft marine spill contingency plan in accordance with sections 171 or 172.

(2) Where a municipality marinespill contingency plan is prepared by the Chief Executive Officer undersubsection (1), the municipality responsible for the plan shall meet out of itsown resources the costs of the Chief Executive Officer in preparing themunicipality marine spill contingency plan, and shall not be entitled under anyprovision of this Decree to reimbursement from the National Oil Pollution Poolfor those costs.

Purpose of national marine spill contingency plan

178. Thepurpose of the national marine spill contingency plan is to promote a plannedand nationally co-ordinated response to any marine spill that—

(a) is beyond the resources of the municipality withinwhose boundary it is located; or

(b) is outside the municipality, but within the exclusiveeconomic zone of Fiji, and is a spill for which the Chief Executive Officerconsiders that a national response is required.

Preparation and review of national marine spillcontingency plan

179.—(1)The Chief Executive Officer shall prepare the national marine spill contingencyplan by a date specified by the Minister for the purpose by notice published inthe Gazette.

(2) TheChief Executive Officer shall review the plan made under subsection (1) atleast once every three years.

Consultation in respect of and matters to be includedin national plan

180.—(1)The Chief Executive Officer shall consult with such persons as he or she considersappropriate in preparing or reviewing the national marine spill contingencyplan.

(2) Thenational plan shall contain such matters as the Chief Executive Officerconsiders appropriate and shall be consistent with the National Marine SpillResponse Strategy.

(3) TheChief Executive officer shall consider the following matters when preparing orreviewing the national plan under section 179—

(a) Fiji’s obligations under international Conventions andagreements in relation to responses to marine spills in the internal waters ofFiji or Fiji’s marine spaces;

(b) the National Spill Response Strategy; and

(c) any other matters the Chief Executive Officerconsiders appropriate.

Duty to notify if unable to contain and clean upmarine spills

181.—(1)Where there is any spill in the internal waters of Fiji or Fiji’s marine spacesfrom a ship and the master of that ship considers that the spill cannot becontained and cleaned up using the resources available to that person for thatpurpose, then he or she must notify the Authority or, where the spill hasoccurred within the territorial sea, the Authority or the municipal councilwithin whose municipality the spill is located, of his or her inability tocontain and clean up the spill.

(2) Wherethere is a spill into the internal waters of Fiji or Fiji’s marine spaces froman offshore installation, device or an oil transfer site in respect of whichthere is required to be a site marine spill contingency plan under the marineprotection Regulations, and the person responsible for implementing the marinespill contingency plan in respect of that offshore installation or siteconsiders that the spill cannot be contained and cleaned up by the resourcesavailable to that person for that purpose, he or she shall notify—

(a) the municipal council within whose municipality thespill is located; or

(b) the Authority, if the spill is not located within themunicipality of a municipal council.

(3)Nothing in this section shall derogate from any other duty under this Decree, orany other written law, or any marine protection Regulations, to give notice tothe Chief Executive Officer or any other person of a spill into Fiji’s marinespaces.

(4) Anymaster of a ship or a person who is responsible for implementing a marine spillcontingency plan in respect of an offshore installation or an oil transfer siteand pipeline who acts in contravention of subsections (1) or (2) commits anoffence and shall be liable upon conviction to a fine not exceeding $10,000.

Appointment of National On-Scene Commander

182.—(1)The Minister shall from time to time appoint—

(a) a National On-Scene Commander; and

(b) a person or persons, who shall perform the functionsand duties and may exercise the powers of the National On-Scene Commander ifthe office of the National On-Scene Commander is vacant or the NationalOn-Scene Commander is absent, for as long as that vacancy or absence continues.

(2) Whenmaking the appointment, the Minister shall take the following into account—

(a) the person’s experience;

(b) the person’s knowledge of the Government systems thatare in place and which can be used during an emergency response situation;

(c) the person’s established network at the national andregional level; and

(d) any other factor that the Minister deems necessary.

(3) Anyperson appointed under subsection (1) (b) shall, during any vacancy orabsence, be deemed to be a National On-Scene Commander.

(4) TheNational On-Scene Commander shall manage and co-ordinate the response of, anddirect the use of resources available to the Authority in relation to anymarine oil, harmful substance, and noxious liquid substance spill in respect ofwhich the Authority is taking action.

Appointment of municipality and provincial on-scenecommanders

183.—(1)Every municipality and provincial council shall from time to time appoint—

(a) an on-scene commander for their respective boundaries;and

(b) a person or persons, who shall perform the functionsand duties and may exercise the powers of a municipality or provincial on-scenecommander, if the office of the municipality or provincial on- scene commanderis vacant or the municipality or provincial on-scene commander is absent, foras long as that vacancy or absence continues.

(2) Anyperson appointed under subsection (1) (b) shall, subject to the terms ofappointment, be deemed to be an on-scene commander during any vacancy orabsence.

(3) Theon-scene commander of a municipality or provincial council shall manage andco-ordinate the response of, and direct the use of the resources available tothat municipality or province, in relation to any marine spill in respect ofwhich the municipality or province is taking action.

(4) Inmaking the appointment, the municipality or provincial council may take thefollowing into account—

(a) the person’s experience in emergency response;

(b) the person’s knowledge of the municipality orprovincial systems that are in place and which can be used during an emergencyresponse situation; and

(c) the person’s established network at the municipal,provincial and Government level.

Appointments under sections 181 or 183

184. Anyappointment under sections 181 or 183 and any revocation of the appointmentshall be made on such terms and conditions as the Minister thinks appropriate.

Function of municipality and provincial on-scenecommanders after notification

185.—(1)Subject to section 183 where a municipality or provincial on-scene commander isnotified or otherwise becomes aware, of a marine spill within the municipalityor provincial boundary by whom that on-scene commander is appointed, he or sheshall—

(a) decide whether or not it is appropriate for any actionto be taken in response to that marine spill; or

(b) decide whether any measures should be taken under themunicipality or provincial marine spill contingency plan or under this Decree.

(2)Subject to section 183, if, in the opinion of any municipality or provincialon-scene commander, containing and cleaning up any marine spill within the municipalityor provincial boundary of that municipality or province is or may be beyond thecapacity of the resources available to that municipality or province, thatmunicipality or provincial on-scene commander shall notify the Chief ExecutiveOfficer that assistance is or may be sought from the Authority.

(3) Wherethe municipality or provincial on-scene commander notifies the Chief ExecutiveOfficer under subsection (2), such notification shall not relieve amunicipality or provincial council from its obligations under section 183 tocomply with its municipality or provincial marine oil, harmful substance, andnoxious liquid substance spill contingency plan.

Function of National On-Scene Commander afternotification

186.—(1)Where a National On-Scene Commander is notified by the Chief Executive Officeror otherwise becomes aware of a marine spill, he or she shall decide whether ornot it is appropriate for any action to be taken in response to that marinespill, including the taking of any measures under the national marine spillcontingency plan or the exercise of any powers under this Decree.

(2) If, inthe opinion of the Chief Executive Officer, containing and cleaning up anymarine spill is beyond the capacity of the Authority, the Chief Executive Officermay seek assistance from other States or persons in accordance with thenational marine oil spill contingency plan.

National On-Scene Commander to take precedence

187.Notwithstanding any other provisions of this Decree or any other written law, aNational On-Scene Commander may give directions to any municipality orprovincial council or its on-scene commander in relation to any marine spillwithin the municipality or province and the municipality or provincial council,and its on-scene commander shall comply with any such directions.

Objective of on-scene commander

188. If amunicipality on-scene commander, the provincial on-scene commander or theNational On-Scene Commander decides that it is appropriate for a municipalityor a province or the Authority, to take action in respect of marine spill, theprincipal objective of that on-scene commander shall be to—

(a) prevent further pollution from the marine spill; and

(b) contain and clean up the spill in accordance with therelevant municipal marine spill contingency plan or the national spillcontingency plan, as the case may be,

in such away that does not cause any unreasonable danger to human life or cause anunreasonable risk of injury to any person.

Powers of on-scene commander

189.—(1)Where a municipality on-scene commander, the provincial on-scene commander orthe National On-Scene Commander decides to take action in respect of a marinespill, he or she may do all or any of the following—

(a) direct the master or owner of any Fiji ship, or theowner of any offshore installation, device, or the owner of any oil transfersite that is the subject of a marine oil spill response to do anything, orrefrain from doing anything, that the on-scene commander considers necessary ordesirable to control or clean up the marine oil spill, or both;

(b) remove any person obstructing a marine spill responsefrom an area, or any part of an area, where a marine spill response is beingcarried out;

(c) require the evacuation or the exclusion of persons, ships,and vehicles from any area, or any part of an area, where a marine oil spillresponse is being carried out;

(d) totally or partially prohibit, or restrict, publicaccess on any road or to any public area or any part of the sea, that is withinan area where a marine spill response is being carried out;

(e) remove from any road, public place, or from the sea,in an area where a marine spill response is being carried out, any ship,vehicle, or other thing impeding that response, and where reasonably necessaryfor the purpose, may enter forcibly any such ship, vehicle, or other thing;

(f) carry out such inspections as he or she thinksappropriate in respect of any Fiji ship, any vehicle, or other thing in an areawhere a marine spill response is being carried out; or

(g) subject to the provisions of section 193, require theowner or person for the time being in control of any land, building, vehicle,registered ship, or any other real or personal property to place that propertyunder his or her control and direction.

(2) Thepowers under subsection (1) may be exercised by any on-scene commander, anyperson authorised by him or her, and any member of the Police.

(3)Nothing in subsection 1 (g) applies to any land, building, ship,vehicle, or other real or personal property under the control of the Republicof Fiji Military Forces.

(4) Anyperson who acts in contravention of this section commits an offence and shallbe liable upon conviction—

(a) in the case of an individual, to a fine not exceeding$10,000; or

(b) in the case of a body corporate, to a fine notexceeding $100,000.

Additional powers of on-scene commander

190. If amunicipal on-scene commander, a provincial on-scene commander or the NationalOn-Scene Commander decides that it is appropriate for a municipality, aprovincial council or the Authority, as the case may be, to take action inrespect of a marine spill, he or she may, without limiting anything else do allof the following—

(a) disseminate information and advice to the publicrelating to the marine spill;

(b) carry out such works as will control and clean up themarine spill; and

(c) provide any item, equipment, or facility to assistwith the control and clean-up of the marine spill.

Limits on powers of on-scene commander

191. Anypower conferred by sections 189 or 190 shall be exercised so as not to beinconsistent with any power exercised by the Chief Executive Officer or theMinister under this Decree.

Termination of marine spill response

192. TheNational On-Scene Commander may, with the consent of the Chief ExecutiveOfficer, terminate any marine spill response.

Matters to be complied with in requisitioning

193.—(1)Any person exercising any power conferred by section 189 (1) (g) shallgive to the owner or person in charge of the requisitioned property a writtenstatement specifying the property being requisitioned and the person underwhose control the property is to be placed.

(2) Wherethe owner or person for the time being in control of any property that may berequisitioned under section 189 (1) (g) cannot immediately be found, anon-scene commander, member of the Police, or person so authorised by anon-scene commander may assume the control and direction of the requisitionedproperty.

(3) Whereany person assumes the control and direction of requisitioned property undersubsection (2), that person shall ensure that, as soon as is reasonablypracticable in all the circumstances, a written statement specifying theproperty that has been requisitioned and the person under whose control it hasbeen placed is returned to the owner or person formerly in charge of therequisitioned property.

(4) Wheresuch person who assumes the control and direction of the requisitioned propertyunder subsection (2) is unable to return the requisitioned property for reasonof being unable to find the owner or person formerly in charge of therequisitioned property, the property shall continue to remain with the personwho assumed control and direction of it, until such time the owner or personformerly in charge of the requisitioned property is found.

Proof of identity

194. Anyperson exercising any power conferred by section 189 shall—

(a) carry, and produce if requested to do so, evidence ofhis or her identity; and

(b) if requested to do so, produce evidence of, or give ageneral explanation of, the authority under which he or she is acting and thepowers he or she is exercising.

Compliance with marine spill contingency plans

195.—(1)In the event of a marine spill from a ship, an offshore installation, or an oiltransfer site and pipeline in respect of which a shipboard or site marine spillcontingency plan has been prepared under this Decree, the provisions of therelevant shipboard or site marine spill contingency plan shall be complied withexcept to the extent that a person is directed otherwise by an on-scenecommander.

(2) In theevent of a marine spill within the province of a provincial council, theprovincial marine spill contingency plan shall be complied with except to theextent that a person is directed otherwise by the National On-Scene Commander.

Offences in respect of marine spill contingency plans

196. Anymaster and owner of a ship, owner of an offshore installation or device, orowner of an oil transfer site and pipeline, who acts in contravention ofsection 195, commits and offence and shall be liable upon conviction—

(a) in the case of an individual, to a fine not exceeding$10,000; or

(b) in the case of a body corporate, to a fine notexceeding $100,000.

 

PART12—FINANCING PLANS AND RESPONSES TO MARINE OIL POLLUTION

National Oil Pollution Pool

197.—(1)The Authority shall establish and administer a pool of levies to be known asthe National Oil Pollution Pool.

(2) Theoil pollution levies payable under section 198, and any other money that islawfully payable to the Pool, shall be paid into the Pool.

(3) Allmoney payable to the Pool shall be paid to the credit of a bank accountestablished under the Financial Management Act 2004 for that purpose.

(4)Subject to the provisions of this Decree, payments made out of the Pool shallbe for those purposes prescribed in section 201.

(5) Thefinancial statements of the Pool shall form part of the financial reports ofthe Authority.

Oil pollution levies

198.—(1)Subject to subsections (3) and (4), the Minister shall, by notice published inthe Gazette, impose on all of the persons referred to in subsection (2),oil pollution levies for the purposes of providing money for the National OilPollution Pool.

(2) Leviesunder subsection (1) shall be imposed on all of the following—

(a) the owners and masters of ships, except ships thatcarry less than 2 tonnes of oil that enter or operate within the Fiji waters;

(b) the oil companies; and

(c) the owners and operators of offshore installation,transfer sites and pipelines.

(3) Forthe purposes of this section, any order made under this Decree and published byway of a notice in the Gazette shall be made on the recommendation ofthe Chief Executive Officer.

(4) TheChief Executive Officer shall not make any recommendation under subsection (3)unless—

(a) he or she is satisfied that the planned expenditurefrom the Pool is reasonable and the levies recommended will enable thatexpenditure to be met without reducing the level of reserves referred to insection 199 (6); and

(b) he or she has consulted the Marine Spill PollutionAdvisory Committee as required by section 200.

(5) Anorder made by the Minister by a notice published in the Gazette underthis Decree shall—

(a) require returns to be made by persons by whom any levyis payable; and

(b) prescribe requirements and conditions relating to themaking of such returns.

Expenditure budgets required before certain money paidfrom Pool

199.—(1)For the purpose of this Decree, no payment shall be made under sections 201 (a),(b) or (d) from the National Oil Pollution Pool to the Authority inany financial year unless such payment is in accordance with an expenditurebudget submitted by the Authority from time to time and approved by theMinister in his or her discretion.

(2) For thepurpose of this Decree, no payment shall be made under section 201 (f) fromthe Pool to any municipality or provincial council in any financial year unlesssuch payment is in accordance with an expenditure budget submitted from time totime by the municipality or provincial council to the Authority and approved bythe Authority in its discretion.

(3) TheAuthority shall, before submitting a budget under subsection (1) to theMinister for approval, consult the Marine Spill Pollution Advisory Committeeabout that budget and shall consider the budgets received by the Authority fromthe municipality and provincial councils under subsection (2).

(4) Theobligations of the Authority in respect of its expenditure budget shall be inaddition to its obligations under the Financial Management Act 2004.

(5)Expenditure budgets are not required under this Decree in respect of theapplication of the Pool for the purposes provided in sections 201 (c), (e) or(g).

(6) TheMinister shall, after consultation with the Minister for Finance, determinewhat financial reserves is desirable for the Pool to hold.

Consultation on oil pollution levies

200. TheChief Executive Officer shall consult the Marine Spill Pollution AdvisoryCommittee before advising the Minister on the imposition of and the rate orrates of any oil pollution levies.

Application of money in the National Oil PollutionPool

201.—(1)Subject to the provisions of this Decree, the Authority shall apply theNational Oil Pollution Pool only for the following purposes—

(a) to meet the costs of the Marine Spill PollutionAdvisory Committee;

(b) to purchase plant, equipment, or any other thing tomake preparations for, or to implement, or assist in implementing, anyresponses to marine oil spills;

(c) to meet the reasonable costs of the Authority,including the costs incurred by the Chief Executive Officer and the NationalOn-Scene Commander, in controlling, dispersing, and cleaning up any marine oilspill;

(d) to meet the costs of services associated with planningand responses for marine oil spills including training and oil spill exercisesthat are services provided under a contract or arrangement with the Authority;

(e) to meet the costs of the Authority in—

(i) the performance of its functions and duties andthe exercise of powers of the Authority, the Chief Executive Officer, and theNational On-Scene Commander under Part 11 of this Decree; and

(ii) taking measures to avoid marine oil spills;

(f) to meet the reasonable costs of any municipality orprovincial council in—

(i) the performance of the functions and duties andthe exercise of the powers of the municipality or provincial council and itson-scene commander under Part 11 of this Decree; and

(ii) taking steps to avoid marine oil spills;

(g) to meet the reasonable costs incurred by any person,in assisting any animal or plant life affected by any marine oil spill, withthe consent or in accordance with the requirements of an on-scene commander;

(h) to meet any other expenditure for which this Decreecontemplates that reimbursement may be made from the Pool; and

(i) such other expenditure or classes of expenditure,related to marine oil spills, as may from time to time be approved by theMinister by order through notice published in the Gazette.

(2) Thefollowing provisions shall apply to payments made under subsections (1) (c) and(e) and to payments made under subsection (1) (g) for the purposeof assisting any wildlife—

(a) the payments may be made if, and to the extent that,the costs for which the payments may be made have not been recovered from theperson who caused the oil spill;

(b) the recipient must make all reasonable efforts torecover those costs from that person; or

(c) payments may be made on an interim or periodic basisand each time it recovers money from the person who caused the oil spill, therecipient must pay to the Pool a proportionate amount.

Compensation payable where property requisitioned

202.—(1)Where any requisitioned property has come under the control of any personacting under section 189 of this Decree, any person having an interest in therequisitioned property may recover from the National Oil Pollution Pool,reasonable compensation for—

(a) the use of that requisitioned property while underthat control; and

(b) any loss of or damage or injury to that requisitionedproperty suffered or incurred while under that control.

(2) Where the National Oil Pollution Pool does nothave sufficient resources to pay the whole or any part of any compensationpayable under subsection (1), the State may, but is not obliged to, pay thecompensation that the Pool is unable to pay.

(3) TheState, and the Authority on behalf of the National Oil Pollution Pool, mayrecover as pollution damages under sections 206 or 207 any compensation paidunder this Decree.

Compensation for loss or damage to personal property

203.—(1)Any person who carries out a marine oil spill response and who suffers loss ofor damage to his or her personal property in the course of carrying out thatmarine oil spill response shall be entitled to receive from the National OilPollution Pool compensation equal to—

(a) the value of any personal property that has been solost; or

(b) the reduction in value of any property that has beenso damaged.

(2) Wherethe National Oil Pollution Pool does not have sufficient resources to pay thewhole or any part of any compensation payable under subsection (1), theAuthority may, but is not obliged to, pay the amount of compensation that thePool is unable to pay.

(3) TheState, and the Authority on behalf of the National Oil Pollution Pool, mayrecover as damages for pollution damage under sections 206 or 207, anycompensation paid under this section.

(4)Subsection (1) shall not apply in respect of any loss or damage to property tothe extent to which a person is indemnified for that loss or damage by acontract of insurance.

(5) To theextent to which, in respect of any loss or damage to personal property, anyperson has recovered or, having regard to the circumstances of the case, mayreasonably be expected to recover any damages, compensation, or ex gratiapayment, he or she shall not be entitled to receive any compensation undersubsection (1).

 

PART13—MISCELLANEOUS PROVISIONS

Absence from duty not to affect employment rights

204.—(1)Any person who is absent from his or her usual employment as a result ofcarrying out any instructions or directions under section 189 shall not beliable to dismissal from his or her employment by reason only of such absence.

(2)Nothing in this section shall impose on the employer of any person, anyobligation to pay any remuneration in respect of any period of absence incarrying out any instructions or directions under section 189.

Minister’s power of direction

205. TheMinister may, if he or she considers it is expedient to do so having regard toall the circumstances, give directions to the Authority, a municipality, aprovincial council or an on-scene commander in respect of the performance ofany functions or duties, or the exercise of any powers under Parts 11 and 13,and the Authority, municipality, provincial council or on-scene commander shallcomply with those directions.

Purchases by Authority to prepare for and implementresponses to marine spills

206.—(1)The Authority may purchase anything it considers necessary to make preparationsfor, or to implement or assist in implementing, any response to a marine spillin Fiji waters, including internal waters, by the municipalities or any provincialcouncil, and as contemplated by the National Marine Spill Response Strategy.

(2) TheAuthority shall be entitled to be reimbursed for any expenditure undersubsection (1) out of the National Oil Pollution Pool if such expenditure isprovided for in the expenditure budget approved by the Minister under section199 of this Decree.

Distribution and responsibility for maintenance ofpurchases under section 206

207.—(1)Where it considers appropriate, the Authority may distribute anything purchasedunder section 206 to municipalities, provincial councils or other persons inaccordance with the National Marine Spill Response Strategy.

(2) Whereanything is distributed to a municipality, provincial council or person undersubsection (1), it shall remain the property of the Authority, and themunicipality, provincial council or person shall maintain it in good order inaccordance with any instructions issued by the Authority.

(3) TheAuthority shall meet the reasonable costs incurred by a municipality,provincial council or person in maintaining anything in accordance with theAuthority’s instructions under subsection (2).

Authority may inspect

208. TheAuthority may, at any time, inspect anything distributed to a municipality,provincial council or another person under section 207.

Chief Executive Officer responsible for training

209. TheChief Executive Officer shall be responsible for the development andco-ordination of training necessary to successfully implement a marine spillresponse under the National Marine Spill Response Strategy.

Chief Executive Officer may review responses

210. TheChief Executive Officer may, at any time within 2 years of a marine spillresponse being carried out, review such response with a view of improving suchresponses in the future.

Protection from liability

211.Except as provided in sections 202 and 203 of this Decree, neither—

(a) the State;

(b) any organisation;

(c) the Authority;

(d) any municipality;

(e) any provincial council;

(f) any officer or employee of any of the above;

(g) any member of a municipality or a provincial council;nor

(h) any on-scene commander,

shall beliable to recover damages for any loss of or damage to property that is duedirectly or indirectly to a marine spill response having been taken or for anyaction, suit, proceeding, dispute or challenge in any Court, Tribunal or anyother adjudicating body for or in respect of any act or omission done in goodfaith in the exercise or non-exercise of the powers conferred by or dutiesprescribed under the provisions of this Decree or any other written law.

Contracts

212.—(1)Notwithstanding the provisions of any other written law, the chairperson,deputy chairperson, Chief Executive Officer, treasurer, engineer, or any otheremployee of a municipality or provincial council specified in the municipalityor provincial marine spill contingency plan, or any municipality or provincialon-scene commander, may, from time to time, when a marine spill response isdetermined to be needed, with the consent of the Minister, enter into contractsfor the purposes of this Decree.

(2) Anyperson who exercises the power conferred by this section shall report the fullcircumstances of its exercise to the municipality or to the provincial councilat its next ordinary meeting, or where that is not practicable, at its nextsucceeding ordinary meeting.

 

PART14—OBLIGATIONS AND POWERS IN RELATION TO MARINE PROTECTION DOCUMENTS

Marine protection documents to be held and compliedwith

213.—(1)Any person who does anything, or uses or operates anything, for which a marineprotection document is required under the marine protection Regulations madeunder this Decree, shall ensure that the—

(a) appropriate document is held in accordance with themarine protection Regulations; and

(b) provisions of that document and all relevant marineprotection Regulations are complied with.

(2) Everyholder of a marine protection document shall—

(a) if so required by the marine protection Regulations,establish and follow a management system that shall ensure compliance with therelevant prescribed standards for protection of the marine environment and theconditions attached to the marine protection document;

(b) provide training and supervision to all employees ofthe holder who are engaged in doing anything to which the marine protectiondocument relates, so as to maintain compliance with the relevant prescribedstandards for protection of the marine environment and the conditions attachedto the marine protection document; and

(c) provide sufficient resources to ensure compliance withthe relevant prescribed standards and the conditions attached to the marineprotection document.

Application for marine protection document

214.—(1)Any application for the grant or renewal of a marine protection document, orfor the recognition of a document as a marine protection document, shall bemade to the Chief Executive Officer in the prescribed form or, if there is noprescribed form, in such form as the Chief Executive Officer may require.

(2) Everyapplicant under subsection (1) shall include in his or her application his orher address for service in Fiji including, where applicable, telephone andfacsimile numbers.

(3) Itshall be the duty of every holder of a marine protection document to maintainthe currency of the information provided under subsection (2) by promptlynotifying the Chief Executive Officer of any change in address, telephonenumber or facsimile number.

(4) The ChiefExecutive Officer shall ensure that a record of all information provided underthis section is maintained at the Maritime Register.

(5) Theservice of any notice, notification, or other document under this Decree on aholder of a marine protection document, or on an applicant under subsection(1), shall be effective service if served at the address last provided by thatholder or applicant.

Issue of marine protection documents and recognitionof documents

215.—(1)After considering any application under section 214, the Chief ExecutiveOfficer shall, as soon as practicable, grant the application if he or she issatisfied that—

(a) all things in respect of which the document is soughtor, in the case of an application for recognition of a document as a marineprotection document, the document meets any relevant prescribed requirements;and

(b) the applicant and any person who is to have or islikely to have control over the exercise of the privileges under the document,meet any prescribed requirements.

(2) TheChief Executive Officer may, subject to any provisions in the marine protectionRegulations, recognise such qualifications or certifications as he or sheconsiders appropriate for the purpose of granting or renewing a marineprotection document, or recognising a document as a marine protection document.

(3) TheChief Executive Officer shall not recognise foreign qualifications or foreigncertificates where the—

(a) requirements to gain such qualifications or to obtainsuch certificates are less than the requirements to gain similar qualificationsor to obtain similar certificates in Fiji; and

(b) Chief Executive Officer believes that to recognisesuch qualifications or certificates might pose a risk or danger to the marineenvironment.

(4) Wherea licence, permit, certificate, or other document is recognised by the ChiefExecutive Officer under this section, the Chief Executive Officer shall either—

(a) issue an equivalent marine protection document underthis section; or

(b) notify the applicant in writing of such recognition.

(5) Wherethe Chief Executive Officer declines to grant an application under section 214,the applicant may appeal against that decision to the Maritime AppealsCommittee under section 264.

(6)Nothing in this section applies in respect of any ship, crew or marineprotection product in respect of which section 214 applies.

Acceptance of documents

216.—(1)Subject to subsection (2), the Chief Executive Officer shall accept every validlicence, permit, certificate, or other document issued by or approved by aState, other than Fiji, under a marine protection Convention to which thatState and Fiji are both parties, and for the purposes of this Decree, suchdocuments shall be deemed to be marine protection documents.

(2) TheChief Executive Officer shall not accept, or may suspend acceptance of, anydocument referred to in subsection (1) where he or she has reasonable groundsto believe that—

(a) the condition of the ship or marine protection productdoes not correspond substantially with the particulars of any document relatingto the ship or marine protection product;

(b) the ship or marine protection product has beenmaterially altered without the sanction of the State that issued or approvedthe document;

(c) the ship is not fit to proceed to sea withoutpresenting an unreasonable threat of harm to the marine environment; or

(d) any provision or condition of the document is notbeing met.

(3)Sections 214, 215, 217, 219, 220, 222, 240, 223, 225 and 250 (b) shallnot apply to any document to which this section relates.

(4) Thissection applies in respect of—

(a) every ship, other than a Fiji ship, registered in acountry that is a party to any marine protection Convention to which Fiji isalso a party;

(b) the crew of every ship referred to in paragraph (a);and

(c) the marine protection products of every ship referredto in paragraph (a).

Suspension of marine protection documents orimposition of conditions

217.—(1)The Chief Executive Officer may, from time to time suspend—

(a) any marine protection document issued under thisDecree, or under any marine protection Regulations, or impose such conditionsin respect of any marine protection document; or

(b) the recognition of a document as a marine protectiondocument, where such document was issued by another person or organisation, orimpose conditions in respect of such recognition.

(2) TheChief Executive Officer may carry out his or her powers under subsection (1)where he or she considers that such action necessary in the interests ofprotecting the marine environment and if he or she is satisfied that—

(a) the holder fails or hasfailed to comply with any conditions of the relevant marine protectiondocument;

(b) the holder has failed tocomply with section 250;

(c) such action is necessaryto ensure compliance with any—

(i)provision of this Decree; or

(ii)Regulations or marine protection Regulations made under this Decree; or

(d) considers that theprivileges or duties for which the marine protection document has been granted,or the relevant document has been recognised as a marine protection document,are being or have been carried out by the holder in a careless or incompetent manner.

(3) Any—

(a) suspension of marine protection document;

(b) suspension of recognition of any document as a marineprotection document; or

(c) imposition of conditions in respect of any suchdocument,

by theChief Executive Officer, shall remain in force until the Chief ExecutiveOfficer has within 28 days determined, after due investigation, the action tobe taken in respect of the cause of the suspension or imposition of conditions.

(4) Forthe purposes of subsection (2), the Chief Executive Officer may direct by wayof a written notice that a further specified period is necessary for thepurposes of such investigation.

Further suspension

218.—(1)If, after investigation, the Chief Executive Officer considers such action tobe warranted, he or she may suspend for a further period the marine protectiondocument, or the recognition of a document as a marine protection document, orimpose further conditions, and he or she shall cause the appropriateendorsement to be made on the marine protection document or on the notificationof recognition, as the case may require.

(2) TheChief Executive Officer may, suspend for a further period of time the marineprotection document, or the recognition of a document as a marine protectiondocument, or impose further conditions, if after the investigation the ChiefExecutive Officer considers such action necessary.

(3) Forthe purposes of subsection (4), the Chief Executive Officer may cause theappropriate endorsement to be made on the marine protection document, if thedocument is issued under this Decree or the marine protection Regulations, oron the notification of recognition, as the case may require.

(4) Wherea marine protection document or recognition of a document as a marineprotection document has been suspended or a marine protection document has beenmade subject to conditions under this section, the holder shall forthwithproduce that document or notification of recognition of that document to theChief Executive Officer for appropriate endorsement.

(5) Thewhole or any part of a marine protection document, or the recognition of thewhole or any part of a document recognised as a marine protection document, maybe suspended under this section.

(6) Anyperson in respect of whom any decision is taken under this section may appealagainst that decision to the Maritime Appeals Committee under section 264.

Revocation of marine protection documents

219.—(1)The Chief Executive Officer may revoke a marine protection document or therecognition of a document as a marine protection document if, after aninvestigation under section 217 the Chief Executive Officer believes that suchaction is necessary.

(2) Wherethe Chief executive Officer proposes to revoke any marine protection document,or the recognition of a document as a marine protection document, the ChiefExecutive Officer shall give written notice to the persons specified by, and inaccordance with the provisions of, the marine protection Regulations.

(3) Wherea marine protection document or recognition of a marine protection document hasbeen revoked under this section, the holder shall immediately surrender thatdocument or notification of recognition of that document to the Chief ExecutiveOfficer.

(4) Anyperson in respect of whom any decision is taken under this section may appealagainst that decision to the Maritime Appeals Committee under section 264.

Criteria for action under sections 217 or 219

220.—(1)The Chief Executive Officer may have regard to, and give such weight as he orshe considers appropriate, the following matters when making a determinationunder sections 217 and 219—

(a) the person’s compliance history with any regulatoryrequirements relating to the protection of the sea from harmful substances andthe person’s compliance history with the Environment Management Act 2005 inrespect of discharge of harmful substances;

(b) any conviction for any offence related to thedischarge of harmful substances into the sea, whether or not the—

(i)conviction was in a Fiji court; or

(ii)offence was committed before the commencement of this Decree; and

(c)anyconviction for any offence under the Environment Management Act 2005 in respectof the discharge of harmful substances.

(2) TheChief Executive Officer shall not be confined to consideration of the mattersspecified in subsection (1) and may take into account such other matters andevidence as may be relevant.

(3) TheChief Executive Officer may—

(a) seek and receive such information as he or she deemsappropriate; and

(b) consider information obtained from other reliablesources.

(4) Wherethe Chief Executive Officer proposes to take into account any information thatis or may be prejudicial to a person, the Chief Executive Officer shall,subject to subsection (5), as soon as is practicable, disclose that informationto that person and give that person a reasonable opportunity to show in writinghis or her reasons for or against the proposed action.

(5)Nothing in subsection (4) shall require the Chief Executive Officer to—

(a) disclose any information, the disclosure of whichwould be likely to endanger the safety of any person; or

(b)discloseany information before—

(i)suspending a marine protection document or suspending the recognition of adocument as a marine protection document; or

(ii)imposing conditions in respect of a marine protection document under section215.

Suspension or revocation of marine protection documentwhere prescribed fees or charges unpaid

221.—(1)The Chief Executive Officer may suspend the marine protection document, or therecognition of the document as a marine protection document, where any fee orcharge that is payable under this Decree, or any Regulations made under thisDecree, is not paid by the date prescribed or fixed for payment of that fee orcharge.

(2) TheChief Executive Officer may revoke a marine protection document, or revoke therecognition of the document as a marine protection document, where any fee orcharge payable under this Decree, or any Regulations made under this Decree, isnot paid within 6 months after the date prescribed or fixed for payment of thatfee or charge.

(3) TheChief Executive Officer shall, before undertaking any action under subsections(1) or (2), notify the holder of such document of—

(a) the Chief Executive Officer’s intention to act undersubsections (1) or (2); and

(b) the right of appeal available to the holder of thatdocument if the Chief Executive Officer takes such action.

(4) Wherea marine protection document or recognition of a document as a marine protectiondocument has been revoked under this section, the holder shall forthwithsurrender that document or notification of that document to the Chief ExecutiveOfficer.

(5) Wherea fee or charge is payable to the Authority in respect of an application or theprovision of a service, the Authority, may, unless the marine environment wouldas a result be put at risk, decline to process that application or provide thatservice until the appropriate fee or charge has been paid, or arrangementsacceptable to the Authority, for payment of the fee or charge have been made.

(6) Anyperson in respect of whom any decision is taken under this section may appealagainst that decision to the Maritime Appeals Authority under section 264.

Amendment or revocation in other cases

222.—(1)The Chief Executive Officer may—

(a) if so requested in writing by the holder of any marineprotection document issued by the Chief Executive Officer, amend or revoke thedocument as requested; or

(b) amend any marine protection document issued by theChief Executive Officer to correct any clerical error or obvious mistake on theface of the document.

(2)Subject to subsection (3), the Chief Executive Officer may amend or revoke anymarine protection document issued by the Chief Executive Officer where any orall of the privileges or duty for which the document has been granted is nolonger being carried out, or is no longer able to be carried out, by theholder.

(3) Beforetaking any action under subsection (2), the Chief Executive Officer shallnotify the holder in writing of the proposed action and give the holder areasonable opportunity to show cause the reasons for or against the proposedaction by the Chief Executive Officer.

(4) Forthe purposes of this section, the power to amend a marine protection documentincludes the power to—

(a) revoke the document and issue a new document in itsplace; and

(b)imposereasonable conditions.

(5) Wherethe holder of a marine protection document is notified that a specified actionis proposed to be undertaken under this section, the holder of such documentshall produce the document to the Chief Executive Officer.

Acting without necessary marine protection document

223.—(1)Any person who—

(a) operates, maintains or services; or

(b) does any other act in respect of,

any shipor marine protection product, without holding the appropriate current marineprotection document, commits an offence and shall be liable upon conviction—

(i) in the case of an individual, to imprisonment fora term not exceeding 12 months or to a fine not exceeding $10,000; or

(ii) in the case of a body corporate, to a fine notexceeding $100,000.

(2) Anyperson who operates, maintains or services, or does any other act in respect ofany ship or marine protection product knowing that a current marine protectiondocument is required to be held in respect of that ship or product before thatact may lawfully be done and knowing that the appropriate document is not held,commits an offence and shall be liable upon conviction—

(a) in the case of an individual, to imprisonment for aterm not exceeding 12 months or to a fine not exceeding $10,000 and anadditional penalty under section 251; or

(b) in the case of a body corporate, to a fine notexceeding $100,000 and to an additional penalty under section 251.

(3) Forthe purposes of this section, a marine protection document is not a currentmarine protection document—

(a) if it is for the time being suspended under thisDecree; or

(b) in relation to an act, if the endorsement that isrequired to authorise that act is for the time being suspended under thisDecree.

Acting in breach of marine protection document

224. Any personwho—

(a) operates, maintains or services; or

(b) does any other act in respect of,

a ship ormarine protection product where the provisions and conditions of theappropriate marine protection document are not complied with commits an offenceand shall be liable upon conviction—

(i) in the case of an individual, to imprisonment fora term not exceeding 12 months or to a fine not exceeding $10,000 and anadditional penalty under section 251; or

(ii) in the case of a body corporate, to a fine notexceeding $100,000 and to an additional penalty under section 251.

General powers of Chief Executive Officer in relationto protection of marine environment

225.—(1)The Chief Executive Officer may, if he or she considers it appropriate, andupon such conditions as he or she considers necessary, exempt any person, ship,marine protection product, offshore installation, pipeline, reception facilityor any real or personal property, from any specified requirement in this Decreeor any marine protection Regulations.

(2) TheChief Executive Officer shall not grant an exemption under subsection (1)unless he or she is satisfied in the circumstances of each case that—

(a) the granting of the exemption shall not breach Fiji’sobligations under any marine protection Convention;

(b) either—

(i) the requirement has been substantially compliedwith and that further compliance is unnecessary;

(ii) the action taken or provision made in respect ofthe matter to which the requirement relates is as effective or more effectivethan actual compliance with the requirement;

(iii) the prescribed requirements are clearlyunreasonable or inappropriate in the particular case; or

(iv) events have occurred that make the prescribedrequirements unnecessary or inappropriate in the particular case; and

(c) the risk of harm to the marine environment shall notbe significantly increased by the granting of the exemption.

(3) Thenumber and nature of exemptions granted under subsection (1) shall be notifiedby the Chief Executive Officer as soon as practicable by notice published inthe Gazette.

(4)Nothing in this section shall apply in any case where any marine protectionRegulations specifically provide that no exemptions are to be granted.

Inspections and audits

226.—(1)The Chief Executive Officer may, from time to time, in writing require anyperson who—

(a) holds any marine protection document;

(b) is required to hold any marine protection document bythis Decree or any Regulations or marine protection Regulations made under thisDecree; or

(c) operates, maintains, or services, or does any otheract in respect of any ship, marine protection product, offshore installation,pipeline, transfer or reception facility,

toundergo, or carry out, such inspections or audits, or both, as the ChiefExecutive Officer considers necessary in the interests of protecting the marineenvironment from harm.

(2) TheChief Executive Officer may, in respect of any person referred to in subsection(1), carry out such inspections or audits, or both, as the Chief ExecutiveOfficer considers necessary in the interests of protecting the marineenvironment from harm.

(3) Forthe purposes of any inspection or audit carried out in respect of any personunder subsection (2), the Chief Executive Officer may, in writing, require thatperson to—

(a) provide such information as the Chief ExecutiveOfficer considers relevant to the inspection or audit;

(b) demonstrate to the Chief Executive Officer thefamiliarity of the master or crew with essential shipboard procedures for theprevention of marine pollution; or

(c) demonstrate to the Chief Executive Officer that anyoperational, maintenance or servicing procedure in respect of a ship or marineprotection product is capable of being carried out in a competent manner.

(4) Anyperson who fails to comply with any requirement of the Chief Executive officerunder this section commits an offence and shall be liable upon conviction—

(a) in the case of an individual, to a fine not exceeding$10,000 and, if the offence is a continuing one, to a further fine notexceeding $2,000 for every day or part of a day during which the offence iscontinued; and

(b) in the case of a body corporate, to a fine notexceeding $100,000 and, if the offence is a continuing one, to a further finenot exceeding $20,000 for every day or part of a day during which the offenceis continued.

Detention of ships and seizure of marine protectionproducts

227.—(1)The Chief Executive Officer may, from time to time, do any or all of thefollowing—

(a) detain any ship;

(b) prohibit or impose conditions on the use or operationof any ship or the use of a marine protection product;

(c) seize any marine protection product;

(d) impose conditions on the release from detention of theship or the release from seizure of a marine protection product; or

(e) prohibit a ship from entering a port or calling at anoffshore terminal.

(2) Forthe purpose of subsection (1), the Chief Executive Officer shall notify anyprohibitions or conditions to such persons as he or she considers necessary bysuch means of communication, whether or not of a permanent nature, as the ChiefExecutive Officer considers appropriate in the circumstances.

(3) Anyperson who acts in contravention of or fails to comply with any prohibition orcondition under this section commits an offence and shall be liable uponconviction—

(a) in the case of an individual, to imprisonment for aterm not exceeding 12 months or to a fine not exceeding $10,000;

(b) in the case of a body corporate, to a fine notexceeding $100,000; or

(c) in any case, to an additional penalty under section251.

Grounds for detention of ships and seizure of marineprotection products

228.—(1)The powers under section 227 (1) may be exercised where the Chief ExecutiveOfficer believes on reasonable grounds that—

(a) the master or crew are not familiar with essentialshipboard procedures for the prevention of marine pollution;

(b) there is an existing discharge from the ship of aharmful substance in breach of this Decree or the Environment Management Act2005;

(c) there is likely to be a discharge from the ship of aharmful substance in breach of this Decree or the Environment Management Act2005;

(d) ships of a particular class are likely to give rise toa discharge of a harmful substance in breach of this Decree or of theEnvironment Management Act 2005;

(e) there has not been issued in respect of the ship orthe marine protection product, as the case may be, a marine protection documentas required by this Decree or any Regulations or marine protection Regulationsmade under this Decree;

(f) a marine protection document in respect of the ship ormarine protection product, as the case may be, has expired;

(g) any provision or condition of a marine protectiondocument in respect of the ship, or marine protection product, as the case maybe, is not being met;

(h) the ship or the marine protection product presents anunreasonable threat of harm to the marine environment; or

(i) any condition imposed under subsections (1) (b) and(d) have not been complied with.

(2)Without limiting the generality of subsection (1), the Chief Executive Officermay detain any ship to which section 143 applies if the owner of that ship hasnot provided a contract of insurance or other financial security in accordancewith the provisions of that section.

(3) Anydetention under subsection (2) shall be maintained until the Chief ExecutiveOfficer is satisfied that either—

(a) the owner of the ship has complied with the obligationunder section 143 to provide a contract of insurance or financial security; or

(b) such obligation to provide a contract of insurance orfinancial security is no longer necessary where it has been determined thatthere is no liability to pay the amounts in respect of which the security wassought or all such amounts have been paid.

(4)Subject to subsections (3), any detention or seizure under subsection (1) shallbe maintained for only such time as the grounds under subsection (1) which gaverise to the detention or seizure continue.

(5) Anyperson in respect of whom any decision is made under this section may appealagainst that decision to the Maritime Appeals Committee under section 264.

Reasons for detention or seizure if requested

229. TheChief Executive Officer shall, if requested by the owner of a ship detained ora marine protection product seized under section 227 (1), provide in writing tothe owner the reasons for the detention or seizure.

Retention for evidence purposes

230. Ifany ship, marine protection product, or parts thereof are required for thepurpose of evidence in any prosecution under a provision in this Decree or theEnvironment Management Act 2005, those ships, products, or parts thereof may beretained by the Chief Executive Officer for such period as the Chief ExecutiveOfficer considers necessary for that purpose

 

PART15—MAKING OF MARINE PROTECTION REGULATIONS AND TAKING OF OTHER

MEASURESTO PROTECT THE MARINE ENVIRONMENT

Marine protection Regulations to implementinternational standards

231.—(1)The Minister may, from time to time, make marine protection Regulations for anyor all of the following purposes—

(a) to implement Fiji’s obligations under any marine protectionConvention;

(b) to make such Regulations as may be necessary to enableFiji to become a party to any international Convention, protocol, or agreementrelating to the protection of the marine environment;

(c) to implement such international practices or standardsrelating to the protection of the marine environment as may, from time to time,be recommended by the International Maritime Organisation.

(2)Nothing in subsection (1) limits any other provision of this Decree thatempowers the making of marine protection Regulations.

Marine protection Regulations relating to marineprotection documents

232.—(1)The Minister may, from time to time, make marine protection Regulationsrequiring that a marine protection document be held by or in respect of any orall of the following—

(a) Fiji ships;

(b) foreign ships;

(c) offshore installations;

(d) pipelines;

(e) marine incineration facilities;

(f) transfer sites;

(g) cargo loading and unloading terminals;

(h) marine protection products;

(i) reception facilities;

(j)personsor organisations that provide—

(i) maritime training;

(ii) the testing,inspection, audit or certification of ships or marine protection products; or

(iii) the design,manufacture or maintenance of ships or marine protection products; and

(k) any other ship, equipment, person or organisationengaged or used in maritime activities or activities that, in the opinion ofthe Minister, relate to maritime activities.

(2) Marineprotection Regulations may provide for the recognition in writing by the ChiefExecutive Officer of licences, permits, certificates or other documents.

(3) Therequirements, standards and application procedure for each marine protectiondocument and the maximum period for which each document may be issued orrecognised, as the case may be, shall be prescribed by the marine protectionRegulations.

(4)Subject to any marine protection Regulations, a marine protection document maybe issued or a document may be recognised as a marine protection document, bythe Chief Executive Officer for such specified period and subject to suchconditions as the Chief Executive Officer considers appropriate in eachparticular case.

(5) Anyperson in respect of whom any decision is made under this section may appealagainst that decision to the Maritime Appeals Committee under section 264.

Marine protection Regulations in relation to harmfuland other substances

233. TheMinister may, from time to time, make marine protection Regulations for any orall of the following purposes—

(a)for thepurposes of section 128, specifying the substances that are—

(i)harmful substances;

(ii)noxious liquid substances; or

(iii)not to be noxious liquid substances for the purposes of section 128;

(b)specifyingthings and substances that are to be included as marine protection products forthe purposes of section 128;

(c) prescribing requirements for the design andconstruction of ships and other real or personal property for which a marineprotection document is required;

(d) prescribing areas of ships where harmful substances,or any specified harmful substance, or ballast water, may not be held;

(e) prescribing the maximum quantities of harmfulsubstances, or any specified harmful substance, that may be held on ships orany class of ship;

(f) prescribing standards and requirements in respect ofmarine protection products and reception facilities;

(g) regulating or prohibiting, in relation to ships andoffshore installations, any or all of the following—

(i) the discharge of harmful substances or anyspecified harmful substance, whether generally or in any specified area;

(ii) the removal or retention on board of harmfulsubstances;

(iii) the stowage, packaging, containment, marking,labelling, documentation, and notification of harmful substances carried inpackaged form;

(iv) plans for emergencies involving harmfulsubstances or any specified harmful substance;

(h) prescribing the requirements, andin particular, in the case of any notice, the time periods to be complied withand the form and manner in which the notice is to be given, in respect ofships, offshore installations, pipelines, transfer facilities, receptionfacilities and marine operations for the following—

(i)giving notice under section 131 of the discharge or escape of any harmfulsubstance;

(ii)giving notice under section 140 of any pollution incident;

(iii)giving notice under sections 141 or 142 of the prospective arrival of any shipcarrying oil or a noxious liquid substance or the transfer of oil or any such substanceto or from a ship;

(iv)surveys and inspections; and

(v)records to be kept in respect of activities involving harmful substances or anyspecified harmful substance;

(i) prescribing shipping exclusion zones and navigationand shipping lanes within the territorial seas of Fiji;

(j) prescribing the requirements and procedures for thedischarge or escape of water produced from geologic formations by marineoperations in Fiji waters; and

(k) prescribing the requirements and procedures for thetransfer of oil or noxious liquid substances to or from transfer facilities orships.

Power of Minister to make emergency marine protectiondirections

234.—(1)The Minister may, from time to time, issue directions to be called emergencydirections for any of the purposes if the Minister considers that suchdirections are necessary to alleviate or minimise any damage to the marineenvironment or threat of imminent damage to the marine environment.

(2) TheMinister may revoke any emergency direction in subsection (1).

(3) Anyperson who acts in contravention of any emergency direction under this sectioncommits an offence and shall be liable upon conviction—

(a) in the case of an individual, to a fine not exceeding$5,000; or

(b) in the case of a body corporate, to a fine notexceeding $30,000.

Notification of emergency directions

235.—(1)For reasons of safety, or because of the imminence of the threat to the marineenvironment, the Minister may by written notice direct the Chief ExecutiveOfficer to notify such persons, as he or she considers appropriate, of themaking of a direction by the Minister and such direction shall immediately,upon such notification, come into force in respect of any person or personsnotified.

(2)Notification may be given by the Chief Executive Officer under subsection (1)by telephone, facsimile, or such other manner as the Chief Executive Officerconsiders appropriate in the circumstances.

Other provisions in respect of emergency directions

236. Anyemergency direction made under this Decree shall be in force for such period asis specified in the direction which shall not exceed 90 days, and may berenewed once only for a further period not exceeding 30 days.

Matters to be taken into account in making marineprotection Regulations

237. Inmaking any marine protection Regulations, the Minister shall have regard to andshall give such weight as he or she considers appropriate in each case to thefollowing—

(a)theneed to

(i)protect the marine environment; and

(ii)maintain and improve maritime safety;

(b)whetherthe proposed Regulations—

(i)assist economic development;

(ii)improve access and mobility;

(iii)promote and protect public health; and

(iv)ensure environmental sustainability;

(c) the recommended international practices of theInternational Maritime Organisation relating to protection of the marineenvironment;

(d) the costs of implementing measures for which theRegulations are being made;

(e) the risk to the marine environment if the proposed Regulationsare not made; and

(f) such other matters as the Minister considersappropriate in the circumstances.

Further provisions relating to marine protectionRegulations

238.Sections 236 and 237 apply in relation to marine protection Regulations.

Regulations

239.—(1)Without limiting any other provision of this Decree, the Minister may, fromtime to time, make Regulations for any or all of the following purposes—

(a) prescribing purposes for which expenditure budgets arenot required under section 199;

(b) requiring insurance and other financial guarantees,and certification thereof, in respect of offshore installations and classes ofoffshore installations;

(c) requiring insurance and other financial guarantees,and certification thereof in respect of ships, or classes of ships, other thanregulated oil tankers;

(d) prescribing those breaches of marine protectionRegulations that constitute offences against this Decree;

(e) prescribing those breaches of marine protectionRegulations that constitute infringement offences against this Decree;

(f) prescribing the penalty for each offence prescribedunder paragraph (d) and where the offence is a continuing one, imposefurther fines for each day or part of a day on which the offence is committed;

(g) prescribing the infringement fee for each offenceprescribed under paragraph (e) and where the offence is a continuingone, impose further fines for each day or part of a day on which the offence iscommitted;

(h) prescribing offences for breaches of any Regulationsmade under this section and, except where some other penalty is prescribed bythis Decree, prescribing the penalty for each such offence and where theoffence is a continuing one, impose further fines for each day or part of a dayon which the offence is committed; and

(i)suchother matters as are considered necessary for giving full effect to theprovisions of Parts 10 to 15 and for their due administration.

Maritime Regulations relating to other matters

240.—(1)The Minister may, from time to time, make maritime Regulations for any or allof the following purposes—

(a) classifying ships as to type, nature of service,operating limits, or otherwise;

(b) the implementation of technical standards, codes ofpractice, performance standards and other requirements of the Conventions;

(c) prescribing standards and requirements for the designand construction of, or major alteration to, any ship;

(d) prescribing standards and requirements for theaccommodation and recreational facilities of seafarers or passengers on anycommercial ship;

(e) prescribing the provision of medical supplies andfacilities on any ship, their stowage, maintenance and periodic inspection, andrequiring medical officers on ships;

(f) prescribing the requirements for the maintenance andperiodic survey and inspection or testing of the hull, machinery and systems ofany ship, safety equipment or any maritime equipment of any ship;

(g) prescribing safe navigational and maritime operationaland emergency procedures, including such procedures for any seaplane, and anytraining requirements in respect of such procedures;

(h) prescribing operational and emergency procedures forthe assistance of persons in distress at sea and in respect of collisions;

(i) defining operating limits and pilotage limits, and thetraining of pilots and the manner of application for the issue of a pilotagelicence, including the required qualifications for such licence, and specifyingrequirements concerning pilotage, including when and where pilotage is requiredor is not required, and the classes of ships that shall carry a pilot incircumstances described in the Regulations;

(j) prescribing standards and requirements for the safemanagement of commercial shipping operations;

(k) requiring the recording and retention of operationalinformation and prescribing the details of any reporting that is required bythis Decree;

(l) prescribing criteria for determining the maximum numberof passengers or persons that may be carried on any ship and for assigning andmarking load lines on any ship;

(m) prescribing standards and requirements for thecarriage on a ship of any cargo, container, or personal property, including anyitem brought on to the ship by a passenger or other person, or carried in or ona vehicle on the ship, and prescribing standards and requirements concerningcontainers carried on a ship;

(n) prescribing the minimum number of seafarers to beemployed on any commercial ship, their qualifications and experience;

(o) prescribing standards, specifications, qualifications,restrictions and licensing requirements for persons engaged in maritimeactivities, including any medical requirements and requirements relating to thekeeping of records of qualifications, restrictions and licences;

(p) prescribing technical standards or requirementsrelating to the health and safety of seafarers;

(q) prescribing the format of maritime documents, formsand applications;

(r) prescribing the requirements and criteria fordetermining the tonnage measurement, length and size of any ship;

(s) prescribing the criteria and conditions under whichforeign licences, permits, certificates, or other documents shall be recognisedby the Chief Executive Officer;

(t) prescribing standards and requirements for maritimeequipment, including safety equipment, and prescribing the maritime equipmentto be carried on any ship;

(u) prescribing standards and requirements fornavigational aid;

(v) regulating the conduct of ships in Fiji waters or theconduct of ships in any defined part of Fiji waters, for the purpose ofsecuring safe navigation in those waters;

(w) prescribing or providing for such matters as may benecessary to—

(i) enable Fiji to become a party to any internationalConvention, protocol or agreement relating to maritime transport;

(ii) implement such international practices orstandards relating to maritime transport as may, from time to time, berecommended by the International Maritime Organisation;

(x) assisting maritime safety and security, including butnot limited to personal security;

(y) assisting economic development;

(z) improving access and mobility;

(aa) protecting and promoting public health;

(ab) ensuring environmental sustainability;

(cc) investigation and inquiry into accidents, incidents,mishaps, deaths and serious injury on board a ship; and

(dd) any other matter contemplated by a provision of thisDecree.

(2)Without limiting anything in subsection (1), Regulations under this section mayapply to river rafts and other manually-powered water craft and to theiroperators, crew and passengers.

Marine protection Regulations in relation to marinespills and other matters

241.—(1)The Minister may, from time to time, make marine protection Regulations for anyor all of the following purposes—

(a) specifying the matters that shall be contained in—

(i) shipboard or site marine spill contingency plans;and

(ii) regional marine spill contingency plans;

(b) specifying the qualifications to be held by on-scenecommanders or any class of on–scene commander;

(c) specifying the manner in which any notice,notification or instruction under this Decree, or any Regulations or marineprotection Regulations made under this Decree, may be given by the ChiefExecutive Officer;

(d) requiring the Chief Executive Officer to notify anyperson or persons in respect of any action taken by the Chief Executive Officerunder this Decree or any Regulations or marine protection Regulations madeunder this Decree and, in particular, requiring the Chief Executive Officer tocomply with any obligations to notify any persons under any internationalConventions binding on Fiji; and

(e) prescribing or providing for such matters as may be necessaryto enable Fiji to become a party to any international Convention, protocol oragreement relating to protection of the marine environment.

(2) TheMinister may, from time to time, make marine protection Regulations to providefor such other matters as are contemplated by or necessary for giving fulleffect to the provisions of Parts 10 to 15.

Regulations relating to fees and charges

242.—(1)The Minister may, from time to time, make Regulations providing for the paymentof marine safety charges in respect of ships entering any port in Fiji oroperating in Fiji waters.

(2) Thepurpose of marine safety charges shall be to provide funding to enable theprovision of—

(a) aids to navigation;

(b) distress and safety radio services;

(c) marine safety information; and

(d) other services related to the safety of shipping.

(3) Anysuch Regulations may—

(a) specify the persons by whom the marine safety chargesare payable including, without limitation, any master, owner, charterer, personresponsible for the management of the ship, or any agent of any of thosepersons who by law or by contract are liable to pay any other charge on accountof the ship;

(b) prescribe different marine safety charges fordifferent classes of ship based on length, tonnage, equipment available for useon board the ship, or such other criteria as may be specified in theRegulations;

(c) provide for the refund or waiver of any marine safetycharge in whole or in part, in any specified case or cases;

(d) provide that the marine safety charges are payable onan annual or other equal basis in advance or otherwise, or on a per voyagebasis at the option of either the Chief Executive Officer or the person liableto pay the marine safety charges, and provide for the changing of those options,and for the making of adjustments where an option is changed,

whether ornot persons levied use, or the ship in respect of which the levy arises uses,any such services.

(4)Nothing in this section limits the provisions of section 246.

(5)Without limiting the power to make Regulations conferred by any other sectionof this Decree, but subject to the provisions of this Decree, the Minister may,from time to time, make Regulations prescribing or providing for the fixing offees or charges, or both, for the following purposes—

(a) to provide funds for the establishment, maintenanceand operation of facilities, works, goods and services under this Decree;

(b) to meet or assist in meeting, the costs and expensesincurred by the Authority, the Chief Executive Officer, the Maritime AppealAuthority or the State in the exercise of functions or powers, or in theperformance of duties, or the provision of services under this Decree;

(c) to meet or assist in meeting, the costs and expensesincurred by the Authority, the Chief executive Officer or the State inproviding goods, services, facilities or works for maritime purposes or for thepurposes of protecting the marine environment.

(6)Different rates of fees or charges, or both, may be so prescribed or fixed inrespect of different classes of persons, ships, offshore installations,pipelines, maritime equipment, marine protection products, or any otherproperty or item, or on the basis of different times of use, or on any otherdifferential basis.

(7) AnyRegulations made under subsection (5) may—

(a) specify the persons by whom, and to whom, any fees orcharges, or both, are payable;

(b) prescribe, or provide for the fixing of, additionalfees or charges, or both, for services or work carried out outside normalworking hours, at weekends, or on statutory holidays;

(c) prescribe, or provide for the fixing of, charges forreimbursement of travelling time, accommodation and other expenses;

(d) providing for the refund, waiver, or rebate orenabling the refund, waiver, or rebate, of any fee or charge, or both;

(e) fixing, or enabling the fixing, of a date by which anyfee or charge is to be paid;

(f) providing, or enabling the fixing of, a discount forearly payment of any fee or charge as a penalty for late payment, or both; or

(g) prescribe any returns, and the conditions relating tosuch returns, to be made by persons by whom any fee or charges are payable.

Regulations in relation to coasting-trade licences

243. TheMinister may make Regulations providing for or in relation to—

(a) applications for the grant of coasting-trade licences;

(b) application for the issue of coasting-trade permits;

(c) the submission and verification of information relatedto the operation of ships in respect of which coasting-trade licences orcoasting-trade permits have been granted or issued;

(d) coasting-trade licence and permit fees; or

(e) licensing of trade routes.

Regulations for ports declared under this Decree

244.—(1)The Minister may make Regulations in relation to the following—

(a) the port boundaries;

(b) the dues to be levied for the use of aids tonavigation erected by the Authority;

(c) for such other matters that are relevant to the safetyof ships, passengers and cargoes within the Port boundaries; and

(d) for international ship and port facility security.

(2) Anyperson who, without reasonable excuse, acts in contravention of or fails tocomply with any Regulations made under subsection (1) commits an offence and isliable on conviction—

(a) in the case of an individual, to a fine not exceeding$5,000; or

(b) in the case of a body corporate, to a fine notexceeding $20,000.

Matters to be taken into account inmaking maritime Regulations

245.—(1)The maritime Regulations made by the Minister shall not be inconsistent withinternational standards relating to maritime safety, and the health and welfareof seafarers, to the extent adopted by Fiji.

(2) TheMinister shall have regard to, and shall give such weight as he or sheconsiders appropriate in each case, to the following when making any maritimeRegulations—

(a) the recommended international practices relating tomaritime safety and to the health and welfare of seafarers;

(b) the level of risk existing to maritime safety in eachproposed activity or service;

(c) the nature of the particular activity or service forwhich the Regulations are being made;

(d) the level of risk existing to maritime safety in Fijiin general;

(e) the need to maintain and improve maritime safety andsecurity, including but not limited to personal security;

(f)whetherthe proposed Regulations—

(i)assist economic development;

(ii)improve access and mobility;

(iii)promote and protect public health;

(iv)ensure environmental sustainability;

(g) the costs of implementing measures for which theRegulations are being made;

(h) the international circumstances in respect of maritimesafety;

(i) such other matters as the Minister considersappropriate in the circumstances.

(3) Theprovisions of section 247 apply in relation to Regulations made under thissection.

(4) Beforemaking any Regulations under this Decree, the Minister shall—

(a) publish a notice of his or her intention to make theRegulations in each of the daily newspapers published in Fiji, announce hisintention through the local radio station in the three main languages, andpublish the notice in the Gazette;

(b) give interested persons a reasonable time, which shallbe specified in the notice published under paragraph (a), to makesubmissions on the proposal; and

(c) consult with such persons, representative groupswithin the maritime industry or elsewhere, government departments, Stateentities, or with such regional councils or other local authorities, as theMinister in each case considers appropriate.

Regulations in relation to offences and penalties

246. TheMinister may, from time to time, make Regulations for any or all of thefollowing purposes—

(a) prescribing those breaches of maritime Regulationsthat constitute offences against this Decree;

(b) prescribing those breaches of maritime Regulationsthat constitute infringement offences against this Decree;

(c) prescribing the penalty for each offence prescribedunder paragraph (a) which—

(i) in the case of an individual, shall be a fine notexceeding $5,000; or

(ii) in the case of a body corporate, shall be a finenot exceeding $30,000;

(d) prescribing the infringement fee for each offenceprescribed under paragraph (b) and for infringement offences which—

(i) in the case of an individual, shall be a fine notexceeding $2,000; or

(ii) in the case of a body corporate, shall be a finenot exceeding $12,000;

(e) such other matters as are necessary for giving fulleffect to the provisions of this Decree.

Incorporation in Regulations ofmaterial by reference

247.—(1)The following may be incorporated into Regulations made under this Decree—

(a) standards, requirements or recommended practices ofinternational or national organisations;

(b) standards, requirements or Regulations in force in anyother jurisdiction;

(c) standards, requirements or Regulations of anyclassification society or similar organisation; or

(d) standards, requirements or Regulations of any maritimesporting or maritime recreational organisation;

(2) TheChief Executive Officer shall make available for inspection free of charge orpurchase at a reasonable price, at such place or places as he or she shall,from time to time, appoint copies of all material incorporated in Regulationsby reference under subsection (1) and copies of all amendments deemed to bepart of any Regulations.

 

PART16—GENERAL OFFENCES AND PROVISIONS RELATING TO OFFENCES AND APPEALS

Obstruction of persons duly authorised by ChiefExecutive Officer

248.—(1)Any person who, obstructs, impedes, delays, hinders or deceives or causes to beobstructed, impeded, delayed, hindered or deceived—

(a) the Authority;

(b) its employees;

(c) the Chief Executive Officer; or

(d) any other person who is duly authorised by theAuthority or the Chief Executive Officer,

while theAuthority, employee, Chief Executive Officer, or any other person is acting inthe performance or exercise of any functions, duties or powers conferred on itor him or her under this Decree or any Regulations made under this Decree,commits an offence and shall be liable upon conviction—

(i) in the case of an individual, to imprisonment fora term not exceeding 3 months or to a fine not exceeding $2,000; or

(ii) in the case of a body corporate, to a fine notexceeding $10,000.

(2)Subsection (1) shall apply only where the obstructed or impeded person producesevidence of his or her authority.

Failure to maintain accurate records

249. Anyperson who contravenes any provision of this Decree or any Regulations madeunder this Decree that requires that person to—

(a) make accurate entries in a record;

(b) maintain an accurate record; or

(c) produce to the Authority or the Chief ExecutiveOfficer an accurate record,

commits anoffence and shall be liable upon conviction—

(i) in the case of an individual, to a fine notexceeding $5,000; and

(ii) in the case of a body corporate, to a fine notexceeding $30,000.

Communicating false or insufficient information

250. Anyperson who—

(a) by any means, provides to the Authority or to theChief Executive Officer information relevant to the Authority or the ChiefExecutive Officer’s exercise of powers under this Decree, or under Regulationsmade under this Decree, knowing the information to be false;

(b) being an applicant for a maritime document, or amarine protection document, or an applicant for recognition of a document as amaritime document or a marine protection document, fails, without reasonableexcuse, to provide to the Authority or the Chief Executive Officer informationknown to that person which is relevant to the Authority or the Chief ExecutiveOfficer’s exercise of powers under this Decree, or under Regulations made underthis Decree; or

(c) being the holder of a maritime document, or the holderof a document recognised as a maritime document, fails, without reasonableexcuse, to provide to the Authority or the Chief Executive Officer informationknown to that person which is relevant to the condition specified in section 25(3),

commits anoffence and shall be liable upon conviction—

(i) in the case of an individual, to imprisonment fora term not exceeding 12 months or to a fine not exceeding $5,000; or

(ii) in the case of a body corporate, to a fine notexceeding $30,000.

Additional penalty for offence involving commercialgain

251. Forthe purposes of the sections, to which this section applies, in addition to anyother penalty the court may impose, the Court may, on convicting any person ofan offence against those sections, order that person to pay an amount notexceeding 3 times the value of any commercial gain resulting from thecommission of that offence if the Court is satisfied that the offence wascommitted in the course of producing a commercial gain.

Liability of principal for acts of agent

252.—(1)Where an offence is committed against this Decree by any person acting as theagent or employee of another person, that other person shall, without prejudiceto the liability of the agent or employee, be liable under this Decree in thesame manner and to the same extent as if he or she had personally committed theoffence.

(2)Notwithstanding anything in subsection (1), where any proceedings are broughtby virtue of that subsection, it shall be a defence if the defendant proves—

(a) in the case of a natural person, including a partnerin a firm, that—

(i) he or she did not know nor could reasonably beexpected to have known that the offence was to be or was being committed; or

(ii) he or she took all reasonable steps to preventthe commission of the offence;

(b) in the case of a body corporate, that—

(i) neither the directors nor any person involved inthe management of the body corporate knew or could reasonably be expected tohave known that the offence was to be or was being committed; or

(ii) the body corporate took all reasonable steps toprevent the commission of the offence;

(c) in all cases, that the defendant took all reasonablesteps to remedy any effects of the act or omission giving rise to the offence.

(3) Everydirector and every person concerned in the management of any body corporate,convicted of an offence against this Decree, shall be guilty of the offence ifit is proved—

(a) that the act that constituted the offence took placewith his or her authority, permission or consent; and

(b) that he or she knew or could reasonably be expected tohave known that the offence was to be or was being committed and failed to takeall reasonable steps to prevent or stop it.

Limitation of proceedings

253.—(1)Subject to subsection (2) and to any special provisions of this Decree, noperson shall be charged with an offence against this Decree unless informationcharging that person with that offence is laid within 6 months after the matterarose.

(2) Theperiod of 6 months shall not run while the person charged is beyond the limitsand territorial seas of Fiji.

Place where offences deemed to be committed

254. Forthe purpose of giving jurisdiction under this Decree, every offence shall bedeemed to have been committed either in the place in which the offence actuallywas committed.

Presumption as to master of ship

255.—(1)Where, in any proceedings for an offence against this Decree or any Regulationsmade under this Decree, the informant alleges in any information that anyperson was or was not, the master of any ship at any specified time, theallegation shall be presumed to be true in the absence of proof to thecontrary.

(2) The presumption in subsection(1) shall apply whether or not separate or further evidence is adduced by or onbehalf of the informant in support of the relevant allegation or presumption.

Offences committed in foreign ports or on high seas byseafarers of Fiji ships

256.—(1)Where any complaint is made to any proper officer in a foreign country that—

(a) any person who is employed as a seafarer on any Fijiship has committed an offence against property or persons at any place outsideFiji, whether on shore or afloat; or

(b) any seafarer belonging to a Fiji ship has committed anoffence on the high seas,

thatproper officer may inquire into the case upon oath or affirmation, and may, ifrequired, take any measures in his or her power for the purpose of placing theperson alleged to have committed the offence, under the necessary restraint andof sending that person as soon as practicable in safe custody to Fiji or anysuch country where Courts in such country are capable of taking cognisance ofthat offence.

(2) Anymaster of a Fiji ship or pilot in command of a Fiji aircraft in whose chargeany person alleged to have committed an offence has been placed shall, on thearrival of the ship or aircraft in Fiji or, in the country to which the ship oraircraft is bound, give the alleged offender into the custody of the Police.

(3) Anyexpense of placing any person referred to in subsection (1) under restraint,and of conveying him or her and any witnesses to Fiji or any other country inany manner other than on board the ships to which they respectively belong,shall, where not paid as part of the costs of the prosecution, be paid by theAuthority out of money appropriated by Government.

Evidence and proof

257. Inany proceedings for an offence against this Decree, the following provisionsshall apply—

(a) a copy of any maritime document or marine protectiondocument or permit which is endorsed by the Chief Executive Officer or anyother authorised officer of the Authority shall be sufficient, in the absenceof proof to the contrary, to prove that document;

(b) the production of a certificate signed by the ChiefExecutive Officer or any other authorised officer of the Authority to theeffect that on a specified date a person or organisation was or was not theholder of any maritime document or marine protection document or any permit orany specified type of maritime document or marine protection document shall beprima facie evidence of the matter certified until the contrary is proved;

(c) until the contrary is proved, it shall be presumedthat every certificate purporting to have been certified or given under thissection has been certified or given by the Chief Executive Officer or any otheremployee of the Authority authorised in that behalf by the Chief ExecutiveOfficer to certify documents or give certificates under this section.

Mode of service of summons on master or owner

258.—(1)Where the defendant is a master or owner of a ship in any prosecution for anoffence against any provision of this Decree, and notwithstanding any otherwritten law, service on the defendant of any summons or other document shall bedeemed to be effected by—

(a) being delivered personally to the agent of the ship onbehalf of the defendant or being brought to the notice of that agent if thatagent refuses to accept it on behalf of the defendant; or

(b) being sent to the agent of the ship, by registered mailaddressed to that agent on behalf of the defendant at that agent’s last knownor usual place of residence or to the registered office of the agent’sbusiness.

(2) Unlessthe contrary is shown, the time at which service shall be deemed to have beeneffected on the defendant shall be where service is effected in accordancewith—

(a) subsection (1) (a), the time when the summonsor other document is personally delivered to the agent of the ship or broughtto that agent’s attention; or

(b) subsection (1) (b), the seventh day after thedate on which the document was sent to, or inserted through the mail box forthe address in question in the ordinary course of post.

(3)Nothing in this section limits anything in section 273.

Proceedings for offences

259.—(1)Any proceedings for an offence against this Decree or any Regulations madeunder this Decree may be brought by the Chief Executive Officer.

(2) Whereany fine imposed by the court in proceedings under this Decree or Regulationsmade under this Decree is not paid on time, the court may direct the amountunpaid to be levied by distress and sale of any real or personal propertyinvolved in the committing of the offence.

Offence under more than one written law

260.—(1)Where an act or omission constitutes an offence under this Decree and under anyother written law, the offender may be prosecuted and punished either underthis Decree or under that other written law.

(2) Wherean act or omission constitutes an offence under two or more provisions of thisDecree, the offender may be prosecuted and punished under any one of thoseprovisions.

Application of fines

261.Notwithstanding any other written law, where a person is convicted of anoffence against section 129, the court before which that person is convictedmay order that the whole or part of the fine, or other monetary penalty,imposed under this Decree in respect of that offence be paid to such person orpersons as the court deems appropriate, to meet the costs of the—

(a) removal, containment, rendering harmless, or dispersalof the harmful substance or other matter; or

(b) damage resulting from the discharge of the harmfulsubstance or dumping of waste or matter.

Infringement offences

262.—(1)In this Decree, “infringement offence” means an offence specified as such inthis Decree or Regulations made under this Decree.

(2) Whereany person is alleged to have committed an infringement offence, that personmay either be—

(a) proceeded against summarily for the alleged offence;or

(b) served with an infringement notice as provided insection 263.

Infringement notices

263.—(1)Where the Chief Executive Officer, or any person duly authorised by the ChiefExecutive Officer, observes a person committing an infringement offence or hasreasonable grounds to believe such an offence is being or has been committed bythat person, an infringement notice in respect of that offence may be issued tothat person by the Chief Executive Officer or the authorised person.

(2) Aninfringement notice for an infringement offence may be issued by—

(a) the Chief Executive Officer;

(b) a person duly authorised by the Chief ExecutiveOfficer;

(c) a constable; or

(d) a person duly authorised by the regional council orother local authority in whose region or district the offence was committed.

(3) Aninfringement notice may be served—

(a) by delivering it personally to the person who appearsto have committed the infringement offence;

(b) by sending it by post addressed to him or her at hisor her last known place of residence or business; or

(c) where the person is a holder of a maritime document ormarine protection document, by serving it by post on that person at his or herlast address for service.

(4) Aninfringement notice sent to a person by post under subsections (3) (b) or(c) shall be deemed to have been served on the person after the seventhday after the date on which the notice was sent to or inserted through the mailbox for the address in question in the ordinary course of post.

(5) Everyinfringement notice shall be in the prescribed form and shall contain thefollowing particulars—

(a) such details of the alleged infringement offence asare sufficient fairly to inform a person of the time, place and nature of thealleged offence;

(b) the amount of the infringement fee for that offence;

(c) the address at which the infringement fee may be paid;

(d) the time within which the infringement fee shall bepaid;

(e) a statement of the right of the person served with thenotice to request a hearing;

(f) a statement of the consequences if the person servedwith the notice does not pay the infringement fee and does not make a requestfor a hearing; and

(g) such other particulars as are prescribed inRegulations made under this Decree.

(6) Differentforms of infringement notices may be prescribed by Regulations made under thisDecree in respect of different kinds of infringement offences.

(7) Wherean infringement notice has been issued under this section, proceedings inrespect of the offence to which the notice relates may be commenced.

Rights of appeal

264. Anappeal lies to the Maritime Appeals Committee against any decision made underthis Decree, except for those made under section 36.

Procedure

265.Except as otherwise provided by this section and subject to the rules ofnatural justice, the Maritime Appeals Committee may determine its own processand procedure.

Further appeals

266.—(1)Where any person is dissatisfied with the decision of the Maritime AppealsCommittee, that person may appeal to the High Court against that decision.

(2) On anyappeal under subsection (1), the High Court may make such order ordetermination as it deems appropriate.

(3) Whereeither party wishes to appeal the decision of the High Court, that party may,with leave of the High Court, appeal to the Court of Appeal on that question oflaw.

(4)Subject to this section, the procedure in respect of any appeal under thissection shall be in accordance with the relevant Rules of the court.

Decision of Chief Executive Officer to continue inforce pending appeal

267.—(1)Every decision of the Chief Executive Officer that is appealed against undersection 36 or section 264 shall continue in force pending the determination ofthe appeal, except where the Court has granted a Stay on the decision of theChief Executive Officer.

(2)Notwithstanding that any appeal under sections 36 or 264 may have beendetermined in favour of the appellant, the Chief Executive Officer may, subjectto the same right of appeal, apply for a stay of execution of the Court’sdecision where the Chief Executive Officer has, since the hearing of theappeal, discovered facts or evidence warranting a stay of the court’s decisionand that such facts or evidence concerns—

(a) the seaworthiness of the ship;

(b) compliance with the marine protection Regulations; and

(c) the qualification of the maritime person.

 

PART17—MISCELLANEOUS PROVISIONS APPLYING TO THIS DECREE GENERALLY

General power of entry

268.—(1)Subject to subsections (3) and (4), every person duly authorised by the ChiefExecutive Officer may, at any reasonable time or times, go on board any ship orenter any building or place for the purpose of carrying out his or herfunctions, duties or powers under this Decree or any Regulations made underthis Decree.

(2)Subject to subsections (3) and (4), but without limiting the power conferred bysubsection (1), every person duly authorised by the Chief Executive Officer whohas reasonable grounds to believe that—

(a) any breach of this Decree or of any Regulations madeunder this Decree is being or about to be committed;

(b) a condition imposed under any maritime document ormarine protection document is not being complied with; or

(c) a situation exists within the maritime system or isabout to exist that constitutes a danger to persons or property or a threat tothe marine environment,

may at anyreasonable time go on board any ship, or enter any building or place, and carryout an inspection to determine whether or not a matter referred to inparagraphs (a) to (c) exists.

(3) Nosuch duly authorised person shall enter a ship, building, dwelling house orplace under subsection (1), except with—

(a) the consent of an occupier; or

(b) a warrant issued under section 269.

(4) Wherea warrant under section 269 has been issued to a duly authorised person subjectto conditions, the duly authorised person shall—

(a) not enter the dwelling house specified in the warrantotherwise than in accordance with the conditions; and

(b) in all other respects comply with the conditions.

(5)Subject to subsection (4), a duly authorised person exercising the powers ofinspection conferred by subsections (1) or (2) may use such force in going on,into, or under, the place concerned as is reasonable in the circumstances.

Warrant to enter and inspect any ship, building,dwelling house or place

269. AMagistrate who, on a written application made on oath by a person dulyauthorised by the Chief Executive Officer, is satisfied that the entry isessential to enable the inspection to be carried out, may issue to the dulyauthorised person, unconditionally or subject to conditions, a warrant in theprescribed form authorising that person to enter the place on one occasionwithin 14 days of the issue of the warrant.

Entry in respect of offences

270.—(1)Subject to subsection (2), a Magistrate who, on a written application made onoath by a person duly authorised by the Chief Executive Officer, is satisfiedthat there are reasonable grounds for believing that there is on or in anyplace specified in the application anything—

(a) in respect of which an offence against this Decree hasbeen or may have been committed;

(b) that is or may be evidence of the commission of anoffence against this Decree; or

(c) that is intended to be used for the commission of anoffence against this Decree,

may issue,unconditionally or subject to conditions, a warrant in the prescribed form,authorising the entry and search of the place, at any reasonable time on oneoccasion within 14 days of the issue of the warrant.

(2) Theduly authorised person applying for a warrant under subsection (1) shall—

(a) first make reasonableinquiries as to whether any other applications for such a warrant or a similarwarrant under a provision of any written law repealed by this Decree have beenmade in respect of the place concerned, and if so, the following matters—

(i) the offence oroffences alleged in respect of each application; and

(ii) the result of eachapplication; and

(b) disclose on the application for the warrant theresults of the inquiries.

(3) Everywarrant under subsection (1) shall be directed to and exercisable only by—

(a) a constable specified in the warrant;

(b) a duly authorised person specified in the warrant, ifaccompanied by a constable;

(c) any constable; or

(d) any duly authorised person, if accompanied by aconstable.

(4) Wherea warrant under subsection (1) has been issued subject to conditions, theperson exercising it shall—

(a) not enter or search the place specified in itotherwise than in accordance with the conditions; and

(b) in all other respects comply with the conditions.

(5) Subject to subsection (4), a person exercising awarrant under subsection (1) may use such force in entering the place specifiedin it as is reasonable in the circumstances.

Duties on exercising power of entry

271. Anyperson duly authorised by the Chief Executive Officer, or constable, exercisinga power of entry conferred by sections 269 or 270—

(a) shall have with him or her evidence of his or heridentity and appointment as a duly authorised person or constable;

(b) shall produce such evidence in paragraph (a) toany person appearing to be in charge of the place entered—

(i) on entering the place, if such a person is thenpresent; and

(ii) at any reasonable time thereafter, if asked to doso by the person; and

(c) if there is no person appearing to be in charge of theplace at any time between the time of entry and the time the inspection orsearch concerned has been completed, shall, as soon as is practicable aftercompleting the inspection or search, give an occupier or person in charge ofthe place written notice stating that the place has been entered, andspecifying the following matters—

(i) the time and date of entry;

(ii) the circumstances and purpose of entry;

(iii) the name, office or position, and employer ofevery person entering;

(iv) if entry was under warrant, the principalcontents of the warrant; and

(v) list of items seized or statement that nothing hasbeen seized.

Additional powers

272.—(1) Aperson lawfully exercising the powers conferred by sections 269 or 270 may makeor take copies of any document or any information recorded or stored in acomputer or other device, and for that purpose may take possession of andremove any document, tape, or disk from the place where it is kept for suchperiod of time as is reasonable in the circumstances, or may require a personto reproduce, or assist the person duly authorised by the Chief ExecutiveOfficer to reproduce, in usable form, information recorded or stored in acomputer or other device.

(2) A dulyauthorised person who has lawfully entered premises under sections 269 or 270may do on or in respect of any such premises all such acts and thingsreasonably necessary or expedient in the particular circumstances of the case.

Service of documents

273. Wherefor the purposes of this Decree, any document is to be served on, or anynotice, notification or instruction is to be given to, any person, thatdocument may be served and any notice, notification or instruction may begiven—

(a) in any case, by delivering a copy personally to theperson concerned or by leaving a copy at his or her last known place of abode;

(b) if the person concerned is a master of a ship, wherethere is a master, or a person belonging to a ship, by leaving a copy for himor her on board the ship with the person appearing to be in command or chargeof the ship and explaining to that person the nature of the document, notice,notification or instruction;

(c) if the person concerned is a master of a ship, wherethere is no master and the ship is within the limits or territorial seas ofFiji, on the owner of the ship resident in Fiji, or the agent of the ship inFiji, or, where no such agent is known or can be found, by fixing a copy to themast of the ship or if there is no mast, to some other conspicuous part of theship; or

(d) in any other manner provided for service of thatdocument, notice, notification or instruction by this Decree or by Regulationsmade under this Decree.

Recovery of fines by distress

274.—(1)Where any court—

(a) orders any person convicted of an offence against thisDecree to pay any fine or other money;

(b) orders any person to pay wages owing to any seafareror master; or

(c) makes any order for payment of costs or expenses of orincidental to any such proceeding,

and theperson ordered to pay the same is the owner or master of a ship, and the sameare not paid within the time and in the manner specified in the order of thecourt, or, if in the case of a proceeding or the recovery of wages, no time forpayment is specified, within 7 days after judgment is given or the order made,the court may exercise the powers specified in subsection (2).

(2) In anysuch case the court may—

(a) in addition to any other power it may have to compelpayment, direct the amount remaining unpaid to be levied by distress or by thesale of the ship and the ship’s equipment; and

(b) if, at any time thereafter while that fine or thosewages or other money remains unpaid, that ship is found within the internalwaters or the territorial seas of Fiji, issue an order for the detention of theship.

(3) Anorder for the detention of a ship under this section shall be directed to theChief Executive Officer, the Comptroller of Customs and Excise, or otherofficer named in the order, requiring him or her to detain the ship until thejudgment or order of the court has been satisfied.

Enforcing detention of ships

275.—(1)Where under this Decree a ship is to be or may be detained, the Chief ExecutiveOfficer, the Comptroller of Customs and Excise, or any person to whom an orderfor detention made by any court under powers conferred by this Decree isdirected, may detain the ship, and if, after detention or after service on themaster of any notice of or order for detention, the ship proceeds to sea beforeit is released by competent authority, the master and the owner, and also anyperson who sends the ship to sea if he or she is a party or privy to theoffence, each commits an offence and shall be liable upon conviction—

(a) in the case of an individual, to imprisonment for aterm not exceeding 12 months or a fine not exceeding $10,000; or and

(b) in the case of a body corporate, to a fine notexceeding $100,000.

(2) If aship proceeds to sea while there is on board any person who is detaining theship under this Decree, the owner and the master of the ship each commits anoffence against this Decree and shall, in addition to the liability he or sheincurs under subsection (1), be liable in respect of each offence—

(a) in the case of an individual, to imprisonment for aterm not exceeding 12 months or to a fine not exceeding $10,000; and

(b) in the case of a body corporate, to a fine notexceeding $100,000.

(3) Whereunder this Decree a ship is to be or may be detained, a Customs officer mayrefuse to grant a clearance to that ship.

Consular officer to benotified of detention of foreign ship

276.—(1) Where pursuantto any provision of this Decree any foreign ship is detained at a port in Fiji,or any proceeding is taken against the owner of a foreign ship or any otherperson for the time being responsible for the navigation and management of theship or against the master of the ship, the following provisions shall apply—

(a) in any case where the person ordering or giving noticeof that detention, or, as the case may be, instituting that proceeding, is notthe Chief Executive Officer, that person shall forthwith inform the ChiefExecutive Officer thereof and of the reason therefore;

(b) in every case the Chief Executive Officer shallforthwith cause notice thereof to be served on a consular officer of thecountry in which the ship is registered or to which the ship belongs, and thenotice shall specify the grounds on which the ship has been detained or, as thecase may be, the grounds on which the proceeding has been taken.

(2) Nothingin this section shall affect the provisions of section 45.

Cost of detention and inspection to be paid by owner

277.—(1)Where any ship is detained at a port in Fiji under or pursuant to this Decree,the owner of the ship, or other person for the time being responsible for thenavigation and management of the ship, shall be liable to pay to the—

(a) Authority where the ship is detained by the Chiefexecutive Officer; or

(b) State in any other case,

the costsof and incidental to the detention and to any inspection and audit under thisDecree, and those costs shall, without prejudice to any other remedy, berecoverable as a debt due to the Authority or the State, as the case may be, inany court of competent jurisdiction.

(2)Nothing in this section shall affect the provisions of sections 44 or 274.

Detention in lieu of security for civil claims

278.—(1)For the purposes of this section, where the owner of a ship is a corporation,it shall be deemed to reside in Fiji if it has an office in Fiji at which servicecan be effected.

(2)Subject to subsection (3), where a person has been convicted of an offenceunder this Decree in respect of the discharge of a harmful substance from aship or convicted of an offence of contravening or permitting a contraventionof the Environment Management Act 2005 in respect of the discharge of a harmfulmarine substance and—

(a) property has been or is likely to be damaged by thatdischarge; and

(b) none of the owners of that ship reside in Fiji,

the HighCourt may, on being satisfied as to the matters in paragraphs (a) and (b),order any Customs officer or other officer named by the High Court to detainthat ship until such time as security for costs, damages, or other money thatmay be payable as a result of any civil proceedings has been given.

(3) On anyorder being made under subsection (2), the officer to whom the order isdirected shall detain the ship.

(4) Anyperson affected by an order made under subsection (2) may appeal against thatorder to the Court of Appeal.

Agents’ contracts of indemnity

279.—(1)Where any person enters into an agreement to act as the agent in Fiji of theowner, charterer, manager or operator of a ship, he or she shall be entitled toenter into a contract of indemnity whereby the owner, charterer, manager oroperator agrees to indemnify the agent for any sum for which the agent maybecome liable as a result of any proceedings, whether civil or criminal,against the agent, in the capacity of such agency, in any court under anyprovision of this Decree or the Environment Management Act 2005, or both.

(2) Whereany proceedings are brought in a Fiji court by an agent seeking to enforce acontract of indemnity entered into with the owner, charterer, manager oroperator of a ship, the court may enforce the contract of indemnity exceptwhere the proceedings have resulted from the wilful act or neglect or defaultof the agent.

Designation of parties to Conventions

280.—(1)The Minister shall keep a list of and may give a certificate stating thecontracting parties to any Convention declared by notice published in the Gazette.

(2) Anylist or certificate under subsection (1) shall specify the date on which anysuch Government or State became or ceased to be a Contracting Government, aState Party, a Contracting Party, or a Contracting State, as the case may be.

(3) In theabsence of proof to the contrary, a certificate issued under subsection (1)shall be conclusive evidence of the matters stated in the certificate.

Other written laws not affected

281.Subject to section 283, and except where this Decree or any other enactmentotherwise provides, the provisions of Parts 10 to 18 are in addition to and notin substitution for the provisions of any other enactment, and, except asexpressly provided by this Decree, nothing in this Decree shall derogate fromthe provisions of any other written law.

Provisions of the EnvironmentManagement Act 2005 not to apply

282. The provisionsof the Environment Management Act 2005 shall not apply to—

(a) anything done by or on behalf of the Chief ExecutiveOfficer under section 147 or section 148 or by or on behalf of any person inaccordance with any instructions under either of those sections;

(b)anythingdone by or on behalf of an on-scene commander—

(i)under sections 189 or 190; or

(ii)in accordance with a direction given under section 205;

(c)anythingdone by or on behalf of the master or owner of any ship, or the owner or operatorof any oil storage or transfer site or offshore installation or any otherperson in accordance with a direction given under sections 189 or 190; or

(d)anythingdone by—

(i)or on behalf of the Chief Executive Officer; or

(ii)any person in accordance with any instructions issued by the Chief ExecutiveOfficer, under sections 189 or 190.

 

PART18—CONSEQUENTIAL AMENDMENTS, TRANSITIONAL PROVISIONS AND REPEALS

Repeal, savings and transitional provisions

283.—(1)Subject to subsection (2), the following laws referred to as repealed Acts arehereby repealed—

(a) Marine Act 1986; and

(b) Wreck and Salvage Act and all its subsidiary laws.

(2) Thesubsidiary laws made under the Marine Act 1986 continue in force as if madeunder this Decree until amended, replaced or repealed under this Decree, unlessand to the extent that the—

(a) matter is provided for in this Decree; and

(b) subsidiary laws are inconsistent with the provisionsof this Decree or the Maritime Safety Authority of Fiji Decree 2009 or otherwritten laws.

(3) Acertificate, licence, instrument or document having a like or a similar effectto a—

(a) certificate of competency;

(b) certificate of satisfactory service;

(c) safety certificate;

(d) survey certificate;

(e) coasting-trade licence or permit; or

(f) pilot licence,

in forceimmediately prior to the commencement date remains in force—

(i) for a period of 2 years and 4 months from theappointed day; or

(ii) until the date of the expiration of thatcertificate, licence, instrument or document,whichever is the earlier.

(4) TheRegulations made under the Marine Act 1986 dealing with the—

(a) issuance of certificates or licences issued by theMarine Board are deemed to have been issued by the Chief Executive Officer;

(b) issuance of any other certificates or licences issuedby the Director are deemed to have been issued by the Chief Executive Officer;and

(c) information kept or roles undertaken by the Registrarare deemed to have been kept and undertaken by the Chief Executive Officer.

(5) TheDelegations, directions, notices, agreements and other administrative actionsor decisions of the Minister, the Director of Fiji Maritime SafetyAdministration and officers appointed under the repealed Acts which could beissued or made by equivalent officers under this Decree or the Maritime SafetyAuthority of Fiji Decree 2009 shall continue to have effect as if issued ormade under this Decree or Maritime Safety Authority of Fiji Decree 2009 untilvaried or revoked under this Decree or Maritime Safety Authority of Fiji Decree2009.

Amendment to Maritime Safety Authority of Fiji Decree2009

284. TheMaritime Safety Authority of Fiji Decree 2009 is amended—

(a) in section 26 (a) by deleting “Marine Act” andsubstituting “Schedule”;

(b) by deleting section 29 (2) and substituting thefollowing—

“(2)The Authority shall appoint a Maritime Appeals Committee which shall hear anddetermine appeals pursuant to section 264 of the Maritime Transport Decree2013.”; and

(c) by inserting the following new Schedule—

“SCHEDULE

Laws to be administeredby the Authority

1. Maritime Transport Decree 2013; and

2. Ship Registration Decree 2013.”

Amendment to PublicHealth Act (Cap. 111)

285.The Public Health Act (Cap. 111) is amended by repealing sections 113 and 114.

 

 

《海上运输法》(2014年修改)(MaritimeTransport (Amendment) Act 2014

Short title andcommencement

1.—(1) This Act may be cited as the MaritimeTransport (Amendment) Act 2014 andshall come into force on 1st January, 2015.

(2) The Maritime Transport Decree 2013 shallbe referred to as the “Decree”.

Section 2 amended

2. Section 2 of the Decree is amended—

(a) by deleting the definition of “Articles ofAgreement”;

(b) in the definition of “aids to navigation”—

(i) in paragraph (c) by—

A. inserting “, beacons” after “marks”; and

B. deleting “in aid of marine navigation” andsubstituting “to aidsafety of navigation”;

(ii) in paragraph (d) by deleting “marine”.

(c) in the definition of “commercial ship” in paragraph(c) by inserting “butdoes not include a pleasure craft;” after “business”.

(d) by inserting the following new definitions—

(i) after the definition of “demise charter”—““Enforcementand Compliance Officer” means an Enforcement andCompliance Officer appointed undersection 101 for the purposeprescribed under section 103(2) and section 119;”;

(ii) after the definition of “employer” –““ExclusiveEconomic Zone” has the same meaning as under section2 of the Marine Spaces Act(Cap. 158A);”;

(iii) after the definition of “fishing ship”—““FlagState Surveyor” means a person appointed under section 101for the purpose ofsurveying Fiji registered ships;”;

(iv) after the definition of “mishap”—““mooringbuoys” means a buoy secured to the bottom of the seabedby permanent mooringswith means of mooring a ship by useof its anchor chains or mooring lines;”;

(e) by deleting the definition of “Fiji-basedoperator”;

(f) in the definition of “Fiji waters” bydeleting paragraph (c) and substitutingthe following—

(c) the internal waters; and”;

(g) in the definition of “internal waters of Fiji”by inserting “(Cap.158A)”after “Marine Spaces Act”;

(h) by deleting the definition of “MaritimeAppeals Committee”;

(i) by deleting the definition of “Maritime AppealAuthority” and substitutingthe following—““Maritime Appeal Tribunal” means theTribunal established undersection 62;”;

(j) by deleting the definition of “master” andsubstituting the following—

““master” means any person who holds acurrent Certificate of Competency issued by the Chief Executive Officer inaccordance with section 24 and who has command of a ship;”;

(k) in the definition of “offshore installation”by deleting “constructive” and substituting “constructed”;

(l) in the definition of “owner”—

(i) by deleting paragraph (d) and substituting thefollowing—

(d) a ship to which paragraphs (a), (b) or (c) applies, where, by virtue of any charter ordemise or for any other reason, the registered owner is not responsible for thenavigation and management of the ship, includes any charterer, company or everyperson who is in the time being so responsible; and”; and

(ii) in paragraph (e) by deleting “or a registered ship that doesnot have a registered owner,” after “unregistered ship”;

(m) by deleting the definition of “pilot” and substitutingthe following— “pilot” in relation to any ship, means any person who holds acurrent Pilot Licence issued by the Chief Executive Officer in accordance withsection 24, not being the master or a member of the crew of the ship, who hascommand of the ship;”;

(n) in the definition of “port” by inserting“jetties,” after “harbour,”;

(o) in the definition of “Port Master” byinserting “and section 119” after “prescribed ports”;

(p) in the definition of “Port State ControlOfficer” by inserting “and section 119” after “registered ships”;

(q) by inserting the following new definitionafter the definition of “seafarer”— “Seafarers Employment Agreement” means acontract of employment or a collective agreement within the meaning of theEmployment Relations Promulgation 2007 between an employer and one or moreseafarers setting out the terms and conditions of the seafarers’ employment andthe articles of agreement;”; and

(r) by deleting the definition of “serious harm”and substituting the following—“serious harm” or “seriously harmed” means—

(a) harm that results in death; or

(b) any of the following conditions that amountsto or results in permanent loss of bodily function or temporary severe loss of bodilyfunction—

(i) respiratory disease;

(ii) noise-induced hearing loss;

(iii) neurological disease;

(iv) cancer;

(v) dermatological disease;

(vi) communicable disease;

(vii) musculoskeletal disease;

(viii) illness caused by exposure to infectedmaterial;

(ix) decompression sickness;

(x) poisoning;

(xi) vision impairment;

(xii) chemical or hot-metal burn of eye;

(xiii) penetrating wound of eye;

(xiv) bone fracture;

(xv) laceration; or

(xvi) crushing;

(c) requiring referral to a specialist registeredmedical practitioner or specialist outpatient clinic;

(d) burns requiring referral to a specialistregistered medical practitioner or specialist outpatient clinic;

(e) loss of consciousness from lack of oxygen;

(f) loss of consciousness, or acute illnessrequiring treatment by a registered medical practitioner, from absorption,inhalation,

or ingestion, of any substance;

(g) any harm that causes the person harmed to behospitalised for a period of 48 hours or more commencing within seven days ofthe harm’s occurrence; and

(h) accident as defined in section 5 of theHealth and Safety at Work Act 1996;”.

Section 4 amended

3. Section 4 of the Decree is amended byinserting—

(a) “ (1) ” before “Unless otherwise”; and

(b) the following new subsection—

“(2) The Authority shall be the designatedAuthority for all Conventions, Protocols and mandatory Codes specified in theSchedule.”

Section 9 amended

4. Section 9 of the Decree is amended insubsection (2) by deleting “36(5)” and substituting “36(4)” wherever itappears.

Section 11 amended

5. Section 11 of the Decree is amended insubsection (1)(d) by inserting “;”after “employer”.

Section 12 amended

6. Section 12 of the Decree is amended insubsection (1)(d) by deleting “in aformprescribed or”.

Section 14 amended

7. Section 14 of the Decree is amended in subsection(3) by—

(a) deleting “and” and substituting “or”; and

(b) inserting “, whichever is the most recent”after “crew agreement”.

Section 21 amended

8. Section 21 of the Decree is amended insubsection (1) by inserting “and aids to navigation” after “navigational aid”.

Section 23 amended

9. Section 23 of the Decree is amended insubsection (1) by deleting “prescribed form” and substituting “approved form.”

Section 24 amended

10. Section 24 of the Decree is amended—

(a) in subsection (1)(c) by inserting “revalidated,” after “,granted”; and

(b) in subsection (2) by inserting “,revalidating” after “granting”.

Section 27 amended

11. Section 27 of the Decree is amended—

(a) in subsection(1)(a) by inserting “or marine environmentprotection Regulations” after “Regulations”; and

(b) by deleting subsection (4) and substitutingwith the following—

“(4) When a maritime document or recognitionof a document as a maritime document is suspended [or a maritime document] theholder of the document or the document of recognition, must immediately producethe maritime document or the document of recognition to the Chief ExecutiveOfficer, and the Chief Executive Officer shall withhold that maritime documentor document of recognition while it is suspended.”

Section 31 amended

12. Section 31 of the Decree is amended insubsection (1) by inserting “document suspended” after “whether a maritime”.

Section 32 amended

13. Section 32 of the Decree is amended insubsection (1)(c) by deleting “,” and substituting“;”.

Section 33 amended

14. Section 33 of the Decree is amended in—

(a) subsection (1) by inserting “the Minister inconsultation with” after “subsection (2),”;

(b) subsection (2) by deleting “Chief ExecutiveOfficer” and substituting with “Minister”; and

(c) subsection (3) by deleting “Gazette” andsubstituting “daily newspaper and any other publication the Chief ExecutiveOfficer in consultation with the Minister deems fit”.

Section 34 amended

15. Section 34 of the Decree is amended—

(a) in the heading by inserting “, revalidation”after “grant”; and

(b) by inserting “, revalidating” after“granting”.

Section 37 amended

16. Section 37 of the Decree is amended—

(a) in the heading by deleting “Suspended”;

(b) by deleting subsections (1) and (2) andsubstituting the following—

“(1) A person shall not employ on board aship any person whose maritime document has been suspended or revoked.

(2) Any person whose maritime document hasbeen suspended or revoked shall not apply for employment on board a ship.”

Section 38 amended

17. Section 38 of the Decree is amended—

(a) in subsection (1) by—

(i) deleting “or carry out such” after “toundergo”;

(ii) inserting “,” after “inspection”;

(iii) deleting “and such” after “inspection,”;and

(iv) inserting “or ship clearance” after“audits”;

(b) in subsection (2) by—

(i) deleting “respect of any person describedin subsection (1),” and

substituting “writing appoint an authorisedofficer to”;

(ii) inserting “,” after “inspections”;

(iii) deleting “and” after “inspections,”;and

(iv) inserting “and ship clearance” after“audits”;

(c) in subsection (3)—

(i) by deleting “(2)” and substituting “(1)”;

(ii) paragraph (a) by—

A. inserting “,” after “inspection”;

B. deleting “or” after “inspection,”; and

C. inserting “or ship clearance” after“audit”.

Section 39 amended

18. Section 39 of the Decree is amended—

(a) in the heading by inserting “or on arrival”after “to sea”; and

(b) in subsection (1) by deleting “heaves anchor”and substituting with “goes to sea or during arrival”.

Section 40 amended

19. Section 40 of the Decree is amended—

(a) in the heading by inserting “, expulsion”after “seizure”;

(b) by inserting the following new paragraphafter paragraph (d)(e) expel any foreignflag ship;”; and

(c) in subsection (2) by inserting after (f)—“(g)” any breach underthis Decree or the Ship Registration Decree 2013.”

Section 45 amended

20. Section 45 of the Decree is amended bydeleting subsection (8) and substituting the following new subsections—

(8) The person conducting the investigationor inquiry under subsection (6) shall immediately upon completing theinvestigation or inquiry forward a written report of his or her findings to theChief Executive Officer.

(9) Upon receipt of a report under subsection(8), the Chief Executive Officer may—

(a) request the Minister to cause a marineinquiry to be held in accordance with sections 75, 75A, 75B, and 75C; and

(b) if the Chief Executive Officer considers itis necessary or desirable to do so, suspend any maritime document pending theoutcome of that marine

inquiry; or

(c) suspend or revoke a maritime document inaccordance with section 27 or 29.”

Sections 62 to 75deleted

21. Sections 62 to 75 of the Decree are deletedand substituted with the following—

Establishment ofMaritime Appeal Tribunal

62. This section establishes the MaritimeAppeal Tribunal.

Composition of theMaritime Appeal Tribunal

63.—(1) The Minister shall, appoint fourmembers to the Maritime Appeal Tribunal

(2) The Minister shall appoint a member ofthe Maritime Appeal Tribunal as Chairperson.

(3) In the absence of the Chairperson of theTribunal, the Minister may appoint any such person who, in the opinion of theMinister is qualified to act as the Chairperson of the Tribunal for theduration of the Chairperson’s absence.

(4) The members shall be persons who, in theopinion of the Minister, have either extensive experience as a legalpractitioner, chief engineer or a master or pilot and is knowledgeable ofemployment matters, without any potential conflicts of interests.

Tenure of office

64. A person appointed as a member of theMaritime Appeal Tribunal shall be appointed for a term not exceeding 3 yearsand shall be eligible for re-appointment.

Revocation andresignation

65.—(1) The Minister may, at any time, revokethe appointment of any person appointed under section 63.

(2) A person appointed under section 63 may,at any time resign, by giving 30 days’ notice in writing to the Minister.

Vacation of office

66. The office of a member of the MaritimeAppeal Tribunal shall become vacant if the member—

(a) has been declared an undischarged bankrupt;

(b) has in Fiji or elsewhere been convicted of anoffence punishable by

imprisonment or involving dishonesty; or

(c) is unable to perform the functions of his orher office (whether arising from

infirmity of body or mind or any other cause)or for misbehavior; or

(d) resigns or the Minister revokes his or herappointment under section 65.

Remuneration ofmembers

67. The members of the Tribunal are entitledto such remuneration as the Minister deems necessary.

Meetings

68. The Maritime Appeal Tribunal shall meetat such times and places as may be necessary for the performance of itsfunctions.

Functions of theMaritime Appeal Tribunal

69.—(1) An appeal lies to the Maritime AppealTribunal against the decisions of the Chief Executive Officer in mattersconcerning the following—

(a) the registration of ships;

(b) survey certification of ships;

(c) certification of seafarers whose certificatesare suspended for a period exceeding 6 months or cancelled; and

(d) those matters specifically stated under thisDecree or the Ship Registration Decree 2013.

(2) In making its determinations, theMaritime Appeal Tribunal shall have regard to the potential effect to maritimesafety.

Evidence that may bereceived by the Maritime Appeal Tribunal

70. The Maritime Appeal Tribunal may receiveas evidence any statement, document, information, or matter that may, in theopinion of the Tribunal, assist the Tribunal to deal with the application beingconsidered.

Rights of applicantsto the Maritime Appeal Tribunal

71. The applicant shall be entitled to appearbefore the Maritime Appeal Tribunal in support of the application or berepresented by counsel or a solicitor or an agent.

Procedure ofMaritime Appeal Tribunal

72. Except as otherwise provided by thissection and subject to the rules of natural justice, the Maritime AppealTribunal may determine its own process and procedure.

Application to theMaritime Appeal Tribunal

73.—(1) Any application to the MaritimeAppeal Tribunal shall be—

(a) made within 30 days of the date on whichnotice of the Chief Executive Officer’s decision is given to him or her; or

(b) such extended period as the Tribunal, onapplication made either before or

after the period of 30 days referred inparagraph (a), orders; and

(c) in writing specifying the grounds for theapplication.

(2) The appeal shall be lodged with suchpersons as appointed by the Chief Executive Officer, who shall forthwith referthe application to the Maritime Appeal Tribunal.

Decision of theMaritime Appeal Tribunal

74.—(1) On appeal under section 69, theMaritime Appeal Tribunal may—

(a) confirm the decision of the Chief ExecutiveOfficer;

(b) revoke the suspension or cancellation, as thecase may be; or

(c) vary the decision of the Chief ExecutiveOfficer in such manner as it considers appropriate.

(2) A decision of the Tribunal undersubsection (1) shall be deemed to a decision of the Chief Executive Officer andshall have effect accordingly.

(3) Any decision made by the Tribunal shallbe in writing.

Further appeals

74A.—(1) Where any person is dissatisfiedwith the decision of the Maritime Appeal Tribunal, that person may appeal tothe High Court against that decision.

(2) On any appeal under subsection (1), theHigh Court may make such order or determination as it deems appropriate.

(3) Where either party wishes to appeal thedecision of the High Court, that party may, with leave of the High Court,appeal to the Court of Appeal on that question of law.

(4) Subject to this section, the procedure inrespect of any appeal under this section shall be in accordance with therelevant Rules of the court.

Decision of ChiefExecutive Officer to continue in force pending appeal

74B.—(1) Every decision of the ChiefExecutive Officer that is appealed against under section 69 shall continue inforce pending the determination of the appeal, except where the Court hasgranted a Stay on the decision of the Chief Executive Officer.

(2) Notwithstanding any appeal under section69 being determined in favour of the appellant, the Chief Executive Officermay, subject to the same right of appeal, apply for a stay of execution of theCourt’s decision where the Chief Executive Officer has, since the hearing ofthe appeal, discovered facts or evidence warranting a stay of the court’s decisionand that such facts or evidence concerns—

(a) the seaworthiness of the ship;

(b) compliance with the marine environmentprotection Regulations; and

(c) the qualification of the seafarers.

Marine Inquiry

75.—(1) Where the Minister believes that aninquiry should be held into any marine accident, incident or mishap or agreesto a request made to him or her by the Chief Executive Officer, the ChiefJustice shall, on the request of the Minister, appoint a person appearing tothe Chief Justice to be suitably qualified by—

(a) the holding of or by having held judicialoffice; or

(b) experience as a barrister and solicitor, tohold an inquiry into an accident, incident or mishap.

(2) A person appointed under subsection (1)shall conduct the inquiry with the assistance of at least 2 assessors appointedby the Chief Justice after consultation with the person appointed undersubsection (1).

(3) Subject to subsections (4) and (5), amarine inquiry, is to be conducted in the prescribed manner.

(4) Where it is likely that during the courseof a marine inquiry the conduct of a person will be called into question or itis likely that a person will be affected by a decision of the inquiry, theperson appointed under subsection (1) to hold the inquiry shall—

(a) give to that first mentioned person at least72 hours’ notice of the place, day and hour for the holding of the inquiry; and

(b) furnish to that person—

(i) where an investigation has been held, acopy of the report and any other documents sent to the Chief Executive Officer;or

(ii) in any other case, a statement of thecase on which the inquiry was ordered.

(5) A person—

(a) whose conduct is likely to be questionedduring the course of a marine

inquiry; or

(b) who is likely to be affected by a decision ofthe inquiry, is entitled—

(i) to attend the inquiry personally and alsoto be represented at the inquiry by a barrister and solicitor;

(ii) to be sworn and given evidence beforethe inquiry;

(iii) to subpoena and call witnesses;

(iv) to examine, cross-examine and re-examinein accordance with the customary rules of courts of law all witnesses givingevidence before the inquiry;

(v) to take all proper exception to theadmissibility of evidence; and

(vi) at the conclusion of the inquiry orother proper time, to address the inquiry.

(6) For the purpose of a marine inquiry, theperson appointed under subsection (1) and the assessors assisting him or hermay—

(a) go on board any ship where it is relevant tothe inquiry to do so;

(b) require any person to answer questionsrelating to the subject matter of the

inquiry; and

(c) require the production of any document orcertificate relevant to the inquiry.

(7) A person shall not—

(a) hinder or obstruct a person appointed undersubsection (2);

(b) fail to answer fully and truthfully aquestion put to him or her by a person acting in accordance with subsection (6)(b); or

(c) fail to produce a document or certificate heor she has in his or her possession or under his or her control when requestedto do so by a person acting in accordance with subsection (6)(c).

(8) Any person who acts in contravention ofsubsection (7) commits an offence and is liable upon conviction to a fine notexceeding $4,000 or imprisonment for a term not exceeding 12 months.

(9) The person conducting a marine inquiry,shall, after the conclusion of inquiry −

(a) give his or her decision within 21 days; and

(b) make a full report to the Minister togetherwith such report or extracts from the evidence and such observations as he orshe thinks fit, and each assessor shall either sign the report referred to inparagraph (b) or state in writing tothe Minister his or her dissent from the report and the reasons for dissent.

(10) A person conducting a marine inquiry maymake such order as he or she thinks just to regain the costs of the inquiry orany part of those costs, and any such costs which a person may be ordered topay may be recovered from that person by the Government as a debt due to theGovernment.”

New sectionsinserted

22. The Decree is amended by inserting thefollowing new sections after section 75—

“Powers of marineinquiry as to maritime document

75A.—(1) Where as a result of a marineinquiry the person conducting the inquiry is satisfied that a holder of amaritime document—

(a) is unfit to discharge his or her dutiesbecause of incompetence or misconduct or for any other reason;

(b) has been seriously negligent in the dischargeof his or her duty; or

(c) has failed to give any assistance orinformation required by section 98, and, in a case coming under paragraph (a) or (b), is furthersatisfied that the unfitness or negligence caused or contributed to theaccident, incident or mishap, he or she may—

(i) order the Chief Executive Officer torevoke or suspend for such period as shall be specified on any maritimedocument issued; or

(ii) censure the seaman or operator or ownerconcerned.

(2) The Chief Executive Officer shall complywith an order given to it under subsection(1).

(3) Where a revocation or suspension of amaritime document is ordered under

subsection (1) theperson concerned shall forthwith deliver that certificate to the ChiefExecutiveOfficer.

(4) Any person who acts in contravention ofsubsection (3) commits an offence andis liable upon conviction to a fine notexceeding $1,000 or imprisonment for a term notexceeding 12 months.

(5) A person conducting a marine inquiryshall not order the revocation or suspensionof a maritime document undersubsection (1) unless—

(a) at least half of the number of assessorsappointed to assist at the inquiry concur with the revocation or suspension;and

(b) the provisions of section 75(5) have beencomplied with in respect of the maritime document holder.

Re-hearings and thepower of the Minister to restore maritime document

75B.—(1) Where a marine inquiry has been heldunder this Part, the Minister may order the whole or a part of the inquiry tobe re-heard, and shall do so, if—

(a) in his or her opinion new and importantevidence which could not be produced at the inquiry has been discovered; or

(b) there appears to the Minister to be othergrounds for suspecting that a miscarriage of justice may have occurred.

(2) Where a maritime document has beenrevoked or suspended under section 75A

(1), the Minister may, on the recommendationof the person who conducted the marineinquiry, order the issue by the ChiefExecutive Officer of a new maritime document of alower grade in place of therevoked or suspended maritime document.

(3) The Chief Executive Officer shall complywith an order given to it by the Ministerunder subsection (2).

Appeals

75C.—(1) Subject to subsections (2) and (3),where—

(a) the maritime document is revoked or suspendedunder section 75A(1);

(b) a maritime document holder is censured undersection 75A(1);

(c) the costs or a part of the costs of anyinquiry are awarded against any person under section 75(10); or

(d) the person conducting a marine inquiry findsthat the accident, incident or mishap has been caused or contributed to by thewrongful act of any person, any person who appeared at the hearing and isaffected by the decision, may appeal to the Court and the Court may make suchorder as the justice of the case requires.

(2) Subject to subsection (3), an appealunder subsection (1) shall be made within—

(a) 30 days from—

(i) the date the person conducting the marineinquiry gives his or her decision under section 75 (9)(a); or

(ii) where a re-hearing has been orderedunder section 75B(1) on the date the decision in respect of that re-hearing isgiven; or

(b) such extended period as the Court, onapplication made either before or after the relevant period of 30 days referredto in paragraph (a) orders.

(3) Where a re-hearing has been ordered undersection 75B(1), no appeal may be made under subsection (1) until the decisionin respect of the re-hearing under section 75B (1) has been given.”

Section 92 amended

23. Section 92 of the Decree is amended—

(a) in the definition of “shipwrecked persons” byinserting “and” after “shipwrecked ships;”; and

(b) by deleting the definition of “tidal water”.

Section 99 amended

24. Section 99 of the Decree is amended insubsection (2) by deleting paragraph (g).

Section 100 amended

25. Section 100 of the Decree is amended byinserting the following new subsection after subsection (2)—

“(3) The Authority shall be the World-WideNavigational Warning Service National Coordinator for Fiji and be responsiblefor collecting information, assessing, drafting and disseminating maritimesafety information to the public, operators and seafarers.”

Section 101 amended

26. Section 101 of the Decree is amended—

(a) in paragraph (c) by deleting “and” after “;”;

(b) in paragraph (d) by—

(i) deleting “,” and substituting “;”; and

(ii) inserting “and” after “;”; and

(c) by inserting the following new paragraphafter paragraph (d)

(e) Enforcement and Compliance Officers.”

Section 102 amended

27. Section 102 of the Decree is amended—

(a) in subsection (1)—

(i) paragraph (b) by deleting “and” after “;”;

(ii) paragraph (c) by deleting “.” and substituting “;” after“law”;

(iii) by inserting the following newparagraphs after paragraph (c)

(d) go onboard the ship with such assistance andequipment as the Port State Control Officer considers necessary to verify compliancewith any IMO Conventions;

(e) require the Master of the ship to take suchsteps as the Port State Control Officer directs to facilitate the boarding;

(f) examine and take samples of any substanceonboard the ship or any designated external surface of the ship;

(g) inspect any part of the ship or eachmachinery or equipment as may be necessary;

(h) require the Master of the ship to take suchstep as the Port State Control Officer directs to facilitate the inspection ofany part of the ship or each machinery or equipment;

(i) open or require the Master of the ship tocause to be opened any hold, compartment, tank, or receptacle in or onboard theship and inspect the contents thereof;

(j) require the Master of the ship to produce—

(i) any certificate, declaration, endorsementor record that is required by any maritime and marine environment protectionRegulations to be carried on the ship; or

(ii) any other document, records, or booksrelating to the ship or its cargo that are carried on the ship;

(k) make copies of, or take extracts from, anysuch documents, records or books;

(l) require the Master to certify that a truecopy or extract made by the Port State Control Officer under paragraph (i) is atrue copy of the original;

(m) take photographs including video recordingsof the ship or of equipment, or anything else, in or onboard the ship;

(n) require persons on board a ship to answerquestions; and

(o) detain a ship.”;

(b) in subsection (2)—

(i) paragraph (a) by deleting “and” after “;”;

(ii) paragraph (b) by deleting “.” and substituting “; and”after “her”;

(iii) by inserting the following newparagraphs after paragraph (b)

(c) go onboard the ship with such assistance and equipment asthe Flag State Surveyor considers necessary to verify compliance to anymaritime or marine environment protection Regulations;

(d) require the Master of the ship to take suchsteps as the Flag State Surveyor directs to facilitate the boarding;

(e) examine and take samples of any substance onboardthe ship or any designated external surface of the ship;

(f) survey any part of the ship or each machineryor equipment;

(g) require the Master of the ship to take suchsteps as the Flag State Surveyor directs to facilitate the inspection of any partof the ship or each machinery or equipment;

(h) open or require the Master of the ship tocause to be opened any hold, compartment, tank, or receptacle in or onboard theship and inspect the contents thereof;

(i) require the Master of the ship to produceany—

(i) certificate, declaration, endorsement orrecord that is required by any maritime and marine environment protectionRegulations to be carried on the ship; or

(ii) other documents, records, or booksrelating to the ship or its cargo that are carried on the ship;

(j) make copies of, or take extracts from, anysuch documents, records or books;

(k) require the Master to certify that a truecopy or extracts of certificates or documents produced under paragraph (i) aretrue copy of the original;

(l) take photographs including video recordingsof the ship or of equipment, or anything else, in or onboard the ship;

(m) require persons to answer questions;

(n) give any direction to dangerous goods andhazardous cargoes in accordance with this Decree and any other written law; and

(o) detain a ship;”; and

(c) in subsection (3)(b) by deleting “control officer” andsubstituting “Control Officer”.

Section 103 amended

28. Section 103 of the Decree is amended—

(a) by deleting the heading and substituting“Power of Port Master, Jetty Masters and Enforcement and Compliance Officers”;

(b) by inserting the following new subsection(1A) after subsection (1)—“(1A) An Enforcement and Compliance Officer shallhave the power to—

(a) at any reasonable time, go on board a shipand inspect or verify the certificates of the Master or of any crew of theship, or any certificate or any other statutory documents relating to the shipto be produced to him or her;

(b) inspect or verify any other documents, records,or books relating to the ship or its cargo carried onboard the ship;

(c) make copies of or take extracts fromstatutory documents, records or books relating to the ship or its cargo;

(d) require the Master to certify that a truecopy or extract made by Flag State Surveyors is a true copy of the original;

(e) take photographs including video recordingsof the ship or of any equipment or anything else in or onboard the ship;

(f) require any person to answer questions; and

(g) give any direction to dangerous goods andhazardous cargoes in accordance with this Decree and any other written law.”;and

(c) in subsection (2) by inserting “orEnforcement and Compliance Officer” after “or Jetty Master” wherever itappears.

New section inserted

29. The Decree is amended by inserting thefollowing new section after section 103—

“Clearance of ships by Enforcement andCompliance Officer

103A.—(1) This section applies to a ship inrespect of which a licence is held for coasting-trade or for fishing shipsberthed at a prescribed port or place in Fiji.

(2) Subject to subsection (5), a ship towhich this section applies shall not go to seaunless an Enforcement andCompliance Officer at the prescribed port or place has issued a MarineClearance to that ship in the prescribed form.

(3) Neither the owner or operator nor theMaster of a ship to which this section applies shall allow the ship to leave aprescribed port or place without the clearance required under subsection (2).

(4) Any owner, operator or master who, withoutreasonable excuse, fails to comply with this section commits an infringementoffence in accordance with section 262 and is liable to a fine not exceeding$2,000.

(5) The Chief Executive Officer may by way ofan exemption notice, exempt a ship from obtaining a Marine Clearance inaccordance with this section.

(6) An exemption notice issued in accordancewith subsection (5) may be subject to such terms and conditions prescribed bythe Chief Executive Officer.”

Section 109 amended

30. Section 109 of the Decree is amended in—

(a) subsection (1)(b) by deleting “territorial sea and archipelagicwaters including Rotuma” and substituting “Fiji waters”; and

(b) subsection (2) by inserting “the Minister inconsultation with” after “Subject to this Decree,”.

Section 110 amended

31. Section 110 of the Decree is amended insubsection (5) by inserting “the Minister in consultation with” after “shippingservice,”

Section 111 amended

32. Section 111 of the Decree is amended bydeleting “5 years” and substituting “1 year”.

Section 112 amended