Merchant Shipping Act 1988

An Act to amend the law relating to the registration of ships; to make provision for the giving of financial assistance in connection with the training of seamen and crew relief costs; to make provision for the es tablishment of a Merchant Navy Reserve; to make further provision with respect to the safety of shipping, with respect to liability and compensa tion for oil pollution and with respect to the financing and administration of the lighthouse service; to make other amendments of the law relating to shipping, seamen and pollution; and for connected purposes [3rd May 1988]

Effect of Part I and interpretation

1 (1) In this Part —

(a) sections 2 and 3 have effect in place of section 1 of the Merchant Shipping Act 1894 (qualification for owning British ship); and

(b) sections 4 to 8 have effect in place of sections 2 and 3 of that Act (obligation to register British ships and exemp-
tions from registry) and for otherwise regulating the reg istration of ships under Part I of that Act in Bermuda.

(2) In this Part, unless the context otherwise requires —

"length", in relation to a ship, has the same meaning as in the tonnage regulations of the 1894 Act;

"owner", in relation to a registered ship, means registered owner;

"registered" and "registration" mean respectively registered and registration under Part I of the 1894 Act in Bermuda;

"representative person" means a person appointed (or treated as appointed) as such under section 5.

(3) References in this Part to a ship being entitled to be regis tered shall be construed in accordance with section 4.

British ships

2 (1) A ship shall be a British ship for the purposes of the Mer chant Shipping Acts if —

(a) the ship is registered in the United Kingdom under any of the following enactments, namely—

(i) Part I of the 1894 Act or section 5 of the Mer chant Shipping Act 1983 (registration of small ships), or

(ii) Part II of this Act (registration of British fishing vessels); or

(b) the ship is registered in the United Kingdom in pursu ance of an Order in Council under section 80 of the Merchant Shipping Act 1906 (Government ships); or

(c) the ship is a fishing vessel within the meaning of Part II of this Act which is eligible to be registered under that Part of this Act by virtue of section 14 below, but —

(i) is excluded from registration under that Part of this Act by regulations made under section 13 below, and

(ii) is not registered under the law of any country outside the United Kingdom; or

(d) the ship is registered under the law of Bermuda or a relevant overseas territory; or

(e) the ship is less than 24 metres in length and —

(i) is not a fishing vessel within the meaning of Part II of this Act, and

(ii) is not registered in the United Kingdom under an enactment falling within paragraph (a)(i) above or under the law of any country outside the United Kingdom, but

(iii) is wholly owned by one or more persons quali fied to be owners of British ships by virtue of section 3(1) below.

(2) This section shall have effect in relation to any time before the end of the period referred to in section 13(3)(b) below as if the en actments falling within subsection (1)(a)(i) included Part IV of the 1894 Act (registration of British fishing boats).

Persons qualified to be owners of British ships

3 (1) For the purposes of Part I of the 1894 Act the following persons are persons qualified to be owners of British ships, namely —

(a) British citizens;

(b) British Dependent Territories citizens;

(d) persons who under the British Nationality Act 1981 are British subjects;

(e) persons who under the Hong Kong (British Nationality) Order 1986 are British Nationals (Overseas);

(f) bodies corporate incorporated in the United Kingdom or in Bermuda or in any relevant overseas territory and having their principal place of business in the United Kingdom or in Bermuda or in any such territory; and

(g) citizens of the Republic of Ireland.

(2) References (however phrased) in any statutory provisions to persons who are, for the purposes of Part I of the 1894 Act, qualified to be owners of British ships shall be construed in accordance with sub section (1) above.

(4) It is hereby declared that a person who is not qualified un der subsection (1) above to be an owner of a British ship may be one of the owners of such a ship if —

(a) a majority interest in the ship (within the meaning of section 4 below) is owned by persons who are qualified to be owners of British ships; and

(b) the ship is registered, in accordance with the provisions of that section, under Part I of the 1894 Act.

Registration under Part I of 1894 Act

Entitlement to registration under Part I of 1894 Act

4 (1) Subject to sections 6 and 7 below, this section has effect for the purpose of determining whether a ship is entitled to be registered under Part I of the 1894 Act .

(2) Subject to subsection (3), a ship shall be entitled to be reg istered if a majority interest in the ship is owned by one or more persons qualified to be owners of British ships by virtue of section 3(1)(a), (b), (e) or (f) above.

(3) Where —

(a) a ship falling within subsection (2) is 24 metres or more in length, and

(b) the person, or (as the case may be) each of the persons, by whom the majority interest in the ship is owned is not resident in Bermuda,

the ship shall only be entitled to be registered if a representative person is appointed in relation to the ship.

(4) Where a majority interest in a ship is owned by one or more persons qualified to be owners of British ships by virtue of section 3(1)(c), (d) or (g) above, the ship shall be entitled to be registered —

(a) if that person, or (as the case may be) any of those per sons, is resident in Bermuda, or

(b) (where that condition is not satisfied) if the Minister charged with responsibility for shipping furnishes him or them with a declaration that he consents to the ship being registered, and, in addition, a representative per son is appointed in relation to the ship.

(5) Where a majority interest in a ship is owned by the follow ing persons, namely —

(a) one or more persons qualified to be owners of British ships by virtue of section 3(1)(a), (b), (e) or (f), and

(b) one or more persons so qualified by virtue of section 3(1)(c), (d) or (g),

the ship shall be entitled to be registered —

(i) if any of those persons is resident in Bermuda, or

(ii) (where that condition is not satisfied) if a repre sentative person is appointed in relation to the ship.

(7) For the purposes of this section —

(a) one or more persons shall be treated as owning a major ity interest in a ship if there is vested in that person or in those persons, taken together, the legal title to 33 or more of the 64 shares into which the property of the ship is divided, for the purposes of registration, in ac cordance with section 5 of the 1894 Act (there being left out of account for this purpose any share in which any beneficial interest is owned by a person who is not qualified to be an owner of a British ship); and

(b) a body corporate shall be treated as resident in Ber muda if it is incorporated in Bermuda and has its prin cipal place of business there.

Representative persons

5 (1) Where the entitlement of any ship to be registered is, by virtue of any provision of section 4, conditional on the appointment of a representative person in relation to the ship, the owner of the ship shall—

(a) before applying for the ship to be registered, appoint an individual or body corporate satisfying the prescribed requirements to be the representative person in relation to the ship, and

(b) secure that, so long as the ship remains registered, an individual or body corporate satisfying those require ments is so appointed.

(2) For the purposes of subsection (1) the prescribed require ments are —

(a) that the representative person is either —

(i) an individual resident in Bermuda, or

(ii) a body corporate incorporated in Bermuda and having its principal place of business there; and

(b) such other requirements as the Minister charged with responsibility for shipping may by regulations prescribe.

(4) The owner of any ship in relation to which any representa tive person is for the time being appointed shall —

(a) on applying for the ship to be registered, notify the Reg istrar of Shipping of the name and address of the repre sentative person; and

(b) in the event of any change in the identity, or in the ad dress, of the representative person so appointed, notify the Registrar of Shipping of the name and address of the new representative person, or (as the case may be) of the new address, as soon as practicable after the change occurs;

and the Registrar of Shipping shall record any particulars notified to him in pursuance of this section in the register kept by him under Part I of the 1894 Act.

(5) Any document required or authorised, by virtue of any statutory provision, to be served for the purpose of the institution of, or otherwise in connection with, proceedings for an offence under the Mer chant Shipping Acts, or under any instrument in force under those Acts, shall, where the person to be served is the owner of a registered ship, be treated as duly served on him if —

(a) delivered to any representative person for the time being appointed in relation to the ship, or

(b) sent to any such person by post at the address notified (or, as the case may be, last notified) to the registrar under subsection (4) in relation to that person, or

(6) Any person who contravenes subsection (1)(b) or (4)(b) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding seven hundred and fifty dollars.

Refusal of registration

6 (1) If for any reason it appears to the Minister charged with responsibility for shipping that a ship in respect of which an application for registration has been made may not be entitled to be registered, he may by notice served on —

(a) the applicant, or

(b) any representative person for the time being appointed in relation to the ship,

require that person to furnish him with such information as he thinks necessary for the purpose of determining whether the ship is entitled to be registered.

(2) Where the Minister charged with responsibility for shipping has served a notice under subsection (1) with respect to any ship, then, unless he has become satisfied that the ship is entitled to be registered, he shall, as soon as practicable after the end of the period of 30 days beginning with the date of service of that notice, give to the Registrar of Shipping a direction requiring him not to register the ship.

(3) Notwithstanding that any ship in respect of which an appli cation for registration has been made is entitled to be registered, the Minister charged with responsibility for shipping may give to the Regis trar of Shipping a direction requiring him not to register the ship if he is satisfied that, having regard —

(a) to the condition of the ship so far as relevant to its safety or to any risk of pollution, or

(b) to the safety, health and welfare of persons employed or engaged in any capacity on board the ship,

it would be inappropriate for the ship to be registered.

Power of Minister charged with responsibility for shipping to direct removal from the register

7 (1) If for any reason it appears to the Minister charged with responsibility for shipping that a registered ship may no longer be enti tled to be registered, he may by notice served on —

(a) the owner of the ship, or

(b) any representative person for the time being appointed in relation to the ship,

require that person to furnish him with such information as he thinks necessary for the purpose of determining whether the ship is entitled to be registered.

(2) Where the Minister charged with responsibility for shipping has served a notice under subsection (1) with respect to any ship, then, unless he has become satisfied that the ship is entitled to be registered, he shall, as soon as practicable after the end of the period of 30 days beginning with the date of service of that notice, serve a notice under
subsection (4) on the owner or on any representative person for the time being appointed in relation to the ship.

(3) Where the Minister charged with responsibility for shipping is satisfied —

(a) that, having regard to the matters mentioned in para graph (a) or (b) of section 6(3), it would be inappropriate for a registered ship to continue to be registered, or

(b) that any penalty imposed on the owner of a registered ship in respect of a contravention of the Merchant Ship ping Acts, or of any instrument in force under those Acts, has remained unpaid for a period of more than three months (and no appeal against the penalty is pending), or

(c) that any summons for any such contravention has been duly served on the owner of a registered ship but the owner failed to appear at the time and place appointed for the trial of the information or complaint in question and a period of not less than three months has elapsed since that time,

the Minister charged with responsibility for shipping shall serve a notice under subsection (4) either on the owner or on any representative per son for the time being appointed in relation to the ship.

(4) A notice under this subsection is a notice stating —

(a) that the Minister charged with responsibility for ship ping is not satisfied that the ship in question is entitled to be registered or (as the case may be) that he is satis fied as mentioned in paragraph (a), (b) or (c) of subsec tion (3); and

(b) that he intends, after the end of the period of 30 days beginning with the date of service of the notice, to direct that the ship in question should cease to be registered unless he is satisfied that it would be inappropriate to do so by any representations made to him by or on be half of the owner within that period.

(5) As soon as practicable after the end of that period the Min ister charged with responsibility for shipping shall accordingly direct the Registrar of Shipping to terminate the ship's registration unless he is satisfied that it would be inappropriate to do so by any such representa tions.

(6) Where the registration of any ship has terminated by virtue of this section, the Minister charged with responsibility for shipping may subsequently, if he is satisfied that it would be appropriate to do so, direct the Registrar of Shipping to restore the ship's registration.

Offences relating to furnishing of information, and duty to comply with directions

8 (1) Any person who —

(a) in purported compliance with the requirements of a no tice under section 6(1) or 7(1), or

(b) in connection with the making of any representations in pursuance of section 7(4)(b),

knowingly or recklessly furnishes information which is false in a mate rial particular shall be guilty of an offence and liable —

(i) on summary conviction, to a fine not exceeding the statutory maximum;

(ii) on conviction on indictment, to a fine.

(2) It shall be the duty of any person to whom the Minister charged with responsibility for shipping gives a direction under this Part to give effect to that direction.

Duty of owner of registered ship to secure termination of any over seas registration

9 (1) Where a ship becomes registered at a time when it is al ready registered under the law of any country outside Bermuda, the owner of the ship shall take all reasonable steps to secure the termina tion of the ship's registration under the law of that country.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding seven hundred and fifty dollars.

(3) Subsection (1) does not apply to a ship which becomes reg istered in pursuance of section 53B of the 1894 Act (transfer of registra tion under that Act from the United Kingdom or a relevant overseas ter ritory).

Amendments of Part I of 1894 Act

10 (1) For the provisions of Part I of the Merchant Shipping Act 1894 and of Part II of Schedule I thereto, there shall be substituted the provisions set out in Schedule I to this Act.

(2) In Part I of the Merchant Shipping Act 1894 —

(a) references to registration or to registered ships or regis tered owners shall accordingly (unless the context oth erwise requires) be construed as references to registra tion, or to ships or owners registered, under that Part of that Act in Bermuda;

(c) references to a ship being entitled to be registered shall be construed in accordance with section 4 of this Act; and

(d) references to the ownership of a majority interest in a ship shall be construed in accordance with subsection (7)(a) of that section.

Safety of navigation, oil pollution etc

Owner and master liable in respect of dangerously unsafe ship

30 (1) If, having regard to the nature of the service for which it is intended —

(a) a ship in a port in Bermuda, or

(b) a ship registered in Bermuda which is in any other port,

is, by reason of any of the matters mentioned in subsection (3), not fit to go to sea without serious danger to human life, then, subject to subsec tions (5) and (6), the master and the owner of the ship shall each be guilty of an offence.

(2) Where, at the time when a ship is not fit to go to sea as mentioned in subsection (1), any responsibilities of the owner with re spect to the particular matters by reason of which the ship is not fit to go to sea have been assumed (whether wholly or in part) by any person or persons other than the owner, and have been so assumed by that person or (as the case may be) by each of those persons either —

(a) directly, under the terms of a charter-party or manage ment agreement made with the owner, or

(b) indirectly, under the terms of a series of charter‑ parties or management agreements,

the reference to the owner in subsection (1) shall be construed as in cluding a reference to that other person or (as the case may be) to each of those other persons.

(3) The matters referred to in subsection (1) are —

(a) the condition, or the unsuitability for its purpose, of —

(i) the ship or its machinery or equipment, or

(ii) any part of the ship or its machinery or equip ment;

(b) undermanning;

(d) any other matter relevant to the safety of the ship.

(4) A person guilty of an offence under this section shall be li able —

(a) on summary conviction, to a fine not exceeding eighty-five thousand dollars;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(5) It shall be a defence in proceedings for an offence under this section to prove that at the time of the alleged offence —

(a) arrangements had been made which were appropriate to ensure that before the ship went to sea it was made fit to do so without serious danger to human life by rea son of the matters falling within subsection (3) which are specified in the charge; or

(b) it was reasonable for such arrangements not to have been made.

(6) It shall also be a defence in proceedings for an offence un der this section to prove —

(a) that, under the terms of one or more charter-parties or management agreements entered into by the defendant, the relevant responsibilities, namely —

(i) where the defendant is the owner, his responsi bilities with respect to the matters referred to in subsection (5)(a), or

(ii) where the defendant is liable to proceedings under this section by virtue of subsection (2), so much of those responsibilities as had been as sumed by him as mentioned in that subsection,

had at the time of the alleged offence been wholly assumed by some other person or persons party thereto; and

(b) that in all the circumstances of the case the defendant had taken such steps as it was reasonable for him to take, and exercised such diligence as it was reasonable
for him to exercise, to secure the proper discharge of the relevant responsibilities during the period during which they had been assumed by some other person or per sons as mentioned in paragraph (a);

and, in determining whether the defendant had done so, regard shall be had in particular to the matters mentioned in subsection (7).

(7) Those matters are —

(a) whether prior to the time of the alleged offence the de fendant was, or in all the circumstances ought reason ably to have been, aware of any deficiency in the dis charge of the relevant responsibilities; and

(b) the extent to which the defendant was or was not able, under the terms of any such charter-party or manage ment agreement as is mentioned in subsection (6)(a) —

(i) to terminate it, or

(ii) to intervene in the management of the ship,

in the event of any such deficiency, and whether it was reasonable for the defendant to place himself in that position.

(8) No proceedings for an offence under this section shall be instituted except by or with the consent of the Attorney-General.

(9) In this section —

"management agreement", in relation to a ship, means any agreement (other than a charter-party or a contract of em ployment) under which the ship is managed, either wholly or in part, by a person other than the owner (whether on behalf of the owner or on behalf of some other person);

"relevant responsibilities" shall be construed in accordance with subsection (6);

and any reference in this section to going to sea shall, in a case where the service for which a ship is intended consists of going on voyages or excursions that do not involve going to sea, be construed as a reference to going on such a voyage or excursion.

(10) References in this section to responsibilities being assumed by a person under the terms of a charter-party or management agree ment are references to their being so assumed by him whether or not he has entered into a further charter-party or management agreement pro viding for them to be assumed by some other person.

Owner liable for unsafe operation of ship

31 (1) It shall be the duty of the owner of a ship to which this section applies to take all reasonable steps to secure that the ship is operated in a safe manner.

(2) This section applies to —

(a) any ship registered in Bermuda; and

(b) any ship which —

(i) is registered under the law of any country out side Bermuda, and

(ii) is within the seaward limits of the territorial sea of Bermuda while proceeding to or from a port in Bermuda,

unless the ship would not be so proceeding but for weather conditions or any other unavoidable circumstances.

(3) If the owner of a ship to which this section applies fails to discharge the duty imposed on him by subsection (1), he shall be guilty of an offence and liable —

(a) on summary conviction, to a fine not exceeding eighty-five thousand dollars;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.

(4) Where any such ship —

(a) is chartered by demise, or

(b) is managed, either wholly or in part, by a person other than the owner under the terms of a management agreement within the meaning of section 30,

any reference to the owner of the ship in subsection (1) or (3) above shall be construed as including a reference —

(i) to the charterer under the charter by demise, or

(ii) to any such manager as is referred to in para graph (b), or

(iii) (if the ship is both chartered and managed as mentioned above) to both the charterer and any such manager,

and accordingly the reference in subsection (1) to the taking of all rea sonable steps shall, in relation to the owner, the charterer or any such
manager, be construed as a reference to the taking of all such steps as it is reasonable for him to take in the circumstances of the case.

(5) No proceedings for an offence under this section shall be instituted except by or with the consent of the Attorney-General.

Liability and compensation for oil pollution damage

34 (1) The Merchant Shipping (Oil Pollution) Act 1971 ("the 1971 Act) and the Merchant Shipping Act 1974 ("the 1974 Act") shall be amended in accordance with Parts I and II of Schedule 4 to this Act (which contain amendments designed to implement provisions of the following Conventions, namely —

(a) the International Convention on Civil Liability for Oil Pol lution Damage 1984; and

(b) the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1984).

(2) The Governor may by order make such provision as ap pears to the Governor to be appropriate in connection with the imple mentation of any transitional provisions contained in those Conventions; and any such order may in particular provide, in relation to occurrences of any description specified in the order —

(a) for provisions of the 1971 Act or the 1974 Act to have effect —

(i) to such extent as is so specified, as if Schedule 4 to this Act were not in force, and

(ii) to such extent as is so specified, as if that Schedule were in force;

(b) for any such provisions to have effect (whether as amended by that Schedule or not) subject to such modi fications as are so specified.

Regulation of transfers between ships in territorial waters

35 (1) The Minister charged with responsibility for shipping may by regulations make, in relation to the transfer of cargo, stores, bunker fuel or ballast between ships while within the seaward limits of the terri torial sea of Bermuda, such provision as he considers appropriate for preventing pollution, danger to health or to navigation, or hazards to the environment or to natural resources.

(2) Regulations under this section may, in particular, do any of the following things, namely —

(a) prohibit transfers of any specified description or pro hibit transfers if, or unless, carried out in specific areas, circumstances or ways;

(b) make provision about —

(i) the design of, and standards to be met by, ships and equipment,

(ii) the manning of ships, including the qualifica tions and experience to be possessed by per sons of any specified description employed on board, and

(iii) the qualifications and experience to be pos sessed by persons (whether masters or not) con trolling the carrying out of transfers or op erations ancillary thereto;

(c) provide for proposed transfers to be notified to and ap proved by persons appointed by the Minister charged with responsibility for shipping or another person, and for the supervision of transfers, and the inspection of ships and equipment, by persons so appointed;

(d) provide —

(i) for the procedure to be followed in relation to the approval of transfers to be such as may be prescribed by any document specified in the regulations, and

(ii) for references in the regulations to any docu ment so specified to operate as references to that document as revised or re-issued from time to time;

(e) provide for the making and keeping of records about ships and equipment, the issuing of certificates, and the furnishing of information;

(f) require the payment of fees;

(g) provide for the granting by the Minister charged with responsibility for shipping or another person of exemp tions from specified provisions of the regulations, on such terms (if any) as the Minister charged with respon sibility for shipping or that other person may specify, and for altering or cancelling exemptions;

(h) limit any provision of the regulations to specified cases or kinds of case.

(3) Regulations under this section may provide —

(a) that a contravention of the regulations shall be an of fence punishable on summary conviction by a fine not exceeding 25,000 and on conviction on indictment by imprisonment for a term not exceeding two years or a fine or both;

(b) that any such contravention shall be an offence punish able only on summary conviction by a fine not exceed ing forty-five thousand dollars or such lower amount as is prescribed by the regulations;

(c) that, in such cases as are prescribed by the regulations, such persons as are so prescribed shall each be guilty of an offence created by virtue of paragraph (a) or (b) above.

Miscellaneous

Miscellaneous amendments of Merchant Shipping Acts

48 Schedule 5 to this Act in so far as it relates to the Merchant Shipping Act 1894 and the Merchant Shipping (Oil Pollution) Act 1971 shall have effect.

PART IV
GENERAL

Application to unregistered ships

50 (1) The Minister charged with responsibility for shipping may make regulations specifying any description of unregistered ships and directing that such of the provisions of sections 30 and 31 as may be specified in the regulations —

(a) shall extend to unregistered ships of that description, or

(b) shall so extend in such circumstances as may be so specified,

with such modifications (if any) as may be so specified.

(2) Subsection (1) shall not be construed as prejudicing the application to unregistered ships of section 30(1)(a).

(3) In this section "unregistered ship" means a ship which is not registered in Bermuda or elsewhere.

Offences by officers of bodies corporate

51 (1) Where a body corporate is guilty of an offence under this Act or any regulations made under it, and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Regulations

53 (1) Any power to make regulations under this Act shall be ex ercisable by the Minister charged with responsibility for shipping acting with the concurrence of the Secretary of State.

(2) Regulations under this Act may —

(a) make different provision for different classes or descrip tion of ships and for different circumstances; and

(b) make such transitional, incidental or supplementary provision as appears to the Minister charged with re sponsibility for shipping to be necessary or expedient.

Notices under Part I

54 (1) Any notice required or authorised to be served by the Min ister charged with responsibility for shipping under Part I may be served by post.

(2) Any notice required or authorised to be served by the Min ister charged with responsibility for shipping under Part I on the regis tered owner of any registered ship shall, where there are two or more registered owners, be treated as duly served on any one of the registered owners.

(3) A letter containing —

(a) a notice to be served on any person in pursuance of subsection (2) above, or

(b) a notice required or authorised to be served under Part I on a representative person within the meaning of that Part,

shall be deemed to be properly addressed if it is addressed to that per son at the address for the time being recorded in relation to him in the appropriate register; and a letter containing any other notice to which subsection (1) above applies shall be deemed to be properly addressed if it is addressed to the last-known address of the person to be served (whether of his residence or of a place where he carries on business).

(4) In this section —

"registered ship" means a ship registered under Part I of the 1894 Act;

"registered owner" means an owner registered under Part I of the 1894 Act , as the case may be (sic).

Interpretation, minor and consequential amendments and repeals

57 (1) This Act shall be construed as one with the Merchant Shipping Acts 1894 to 1986.

(2) In this Act —

"the 1894 Act" means the Merchant Shipping Act 1894;

"country" includes any territory;

"relevant overseas territory" means —

(a) the Isle of Man,

(b) any of the Channel Islands, or

"statutory provision" means any provision contained in or hav ing effect under any enactment.

(4) The Merchant Shipping Act 1894 shall have effect subject to the minor and consequential amendments specified in Schedule 6.

(5) The Merchant Shipping Acts 1894 to 1974 and the Mer chant Shipping (Oil Pollution) Act 1971 are hereby repealed to the extent specified in the third column of Schedule 7.

Citation, commencement, transitional provisions and extent

58 (1) This Act may be cited as the Merchant Shipping Act 1988; and this Act and the Merchant Shipping Acts 1894 to 1986 may be cited together as the Merchant Shipping Acts 1894 to 1988.

(4) Minister charged with responsibility for shipping may by order make such transitional, incidental, supplemental, consequential or saving provision as appears to him to be necessary or expedient in connection with the coming into force of any provision of this Act or the operation of any enactment which is repealed or amended by a provision of this Act during any period when the repeal or amendment is not wholly in force.

SCHEDULES

SCHEDULE 1 Section 10

PART I OF MERCHANT SHIPPING ACT 1894 AND
PART II OF SCHEDULE 1 THERETO

PART I

REGISTRY

Procedure for Registration

Liability of Registrar

4.—

(3) The Registrar of Shipping shall not be liable to damages or otherwise for any loss accruing to any person by reason of any act done or default made by him in his character of Registrar, unless the same has happened through his neglect or wilful act.

5. The Registrar of Shipping shall keep a register of ships (referred to in this Part of this Act as "the register"), and entries in the register shall be made in accordance with the following provisions:—

(i) The property in a ship shall be divided into sixty-four shares:

(ii) Subject to the provisions of this Act with respect to joint owners or owners by transmission, not more than sixty-four individuals shall be enti tled to be registered at the same time as owners of any one ship; but this rule shall not affect the beneficial title of any number of persons or of any company represented by or claiming under or through any registered owner or joint owner:

(iii) A person shall not be entitled to be registered as owner of a fractional part of a share in a ship; but any number of persons not exceeding five may be registered as joint owners of a ship or of any share or shares therein:

(iv) Joint owners shall be considered as constituting one person only as regards the persons entitled to be registered, and shall not be entitled to dis pose in severalty of any interest in a ship, or in any share therein in respect of which they are registered:

(v) A corporation may be registered as owner by its corporate name.

Survey and measurement of ship

6. Every ship shall before registry be surveyed by a surveyor of ships and her tonnage ascertained in accordance with the tonnage regu lations of this Act, and the surveyor shall grant his certificate specifying the ship's tonnage and build, and such other particulars descriptive of the identity of the ship as may for the time being be required by the Governor and such certificate shall be delivered to the Registrar of Shipping before registry.

Marking of ship

7.— (1) Every ship shall before registry be marked permanently and conspicuously to the satisfaction of the Governor as follows:—

(a) Her name shall be marked on each of her bows, and her name and the name of her port of registry must be marked on her stern, on a dark ground in white or yel low letters, or on a light ground in black letters, such letters to be of a length not less than one decimetre, and of proportionate breadth:

(b) Her official number and the number denoting her regis tered tonnage shall be cut in on her main beam:

(c) In the case of every such ship registered before the 1st day of January 1981 a scale of feet denoting her draught of water shall be marked on each side of her stem and of her stern post in Roman capital letters or in figures, not less than six inches in length, the lower line of such letters or figures to coincide with the draught line denoted thereby, and those letters and figures must be marked by being cut in and painted white or yellow on a dark ground, or in such other way as the Governor approves.

(d) In the case of every such ship registered on or after that date, a scale of decimetres, or of metres and decimetres, denoting a draught of water shall be marked on each side of her stem and of her stern post —

(i) in figures at two-decimetre intervals, if the scale is in decimetres; and

(ii) in figures at each metre interval and at interven ing two-decimetre intervals, if the scale is in metres and decimetres,

the capital letter "M" being placed after each metric fig ure; the top figure of the scale showing both the metre and (except where it marks a full metre interval) the decimetre figure; the lower line of the figures, or figures and letters (as the case may be), coinciding with the draught line denoted thereby; the figures and letters be ing not less than one decimetre in length and being marked by being cut in and painted white or yellow on a dark ground, or in such other way as the Governor ap proves.

(e) In the case of every ship registered after that date but before 31st day of December 1981 a scale shall be marked either in accordance with paragraph (c) of this sub-section, or in accordance with paragraph (d) of this sub-section.

(2) The Governor may exempt any class of ships from all or any of the requirements of this section.

(3) If the scale showing the ship's draught or water is in any respect inaccurate, so as to be likely to mislead, the owner of the ship shall be liable to a fine not exceeding seven hundred and fifty dollars.

(4) The marks required by this section shall be permanently continued, and no alteration shall be made therein, except in the event of any of the particulars thereby denoted being altered in the manner provided by this Act.

(5) If an owner or master of a registered ship neglects to keep his ship marked as required by this section, or if any person conceals, removes, alters, defaces, or obliterates or suffers any person under his control to conceal, remove, alter, deface, or obliterate any of the said marks, except in the event aforesaid, or except for the purpose of escap ing capture by an enemy, that owner, master, or person shall for each offence be liable to a fine not exceeding seven hundred and fifty dollars, and on a certificate from a surveyor of ships that a ship is insufficiently or inaccurately marked the ship may be detained until the insufficiency or inaccuracy has been remedied.

Application for registry

8. An application for registry of a ship shall be made in the case of individuals by the person requiring to be registered as owner, or by some one or more of the persons so requiring if more than one, or by his or their agent, and in the case of corporations by their agent, and the authority of the agent shall be testified by writing, if appointed by indi viduals, under the hands of the appointers, and, if appointed by a cor poration, under the common seal of that corporation.

Declaration of ownership on registry

9. A person shall not be entitled to be registered as owner of a ship or of a share therein until he, or in the case of a corporation the person authorised by this Act to make declarations on behalf of the corporation, has made and signed a declaration of ownership, referring to the ship as described in the certificate of the surveyor, and containing the following particulars:—

(i) A statement of his qualification to own a British ship, or in the case of a corporation, of such cir cumstances of the constitution and business thereof as prove it to be qualified to own a Brit ish ship:

(ii) A statement of the time when and the place where the ship was built, or, if the ship is for eign built, and the time and place of building unknown, a statement that she is foreign built, and that the declarant does not know the time or place of her building; and, in addition, thereto, in the case of a foreign ship, a state ment other foreign name, or, in the case of a ship condemned, a statement of the time place and court at and by which she was condemned:

(iv) A statement of the number of shares in the ship the legal title to which is vested in him or (as the case may be) the corporation, whether alone or jointly with any other person or persons:

(v) A declaration that, to the best of his knowledge and belief, a majority interest in the ship is owned by persons qualified to be owners of Brit ish ships, and the ship is otherwise entitled to be registered:

In the application of this section to a ship which is not wholly owned by persons qualified to be owners of British ships, paragraph (i) above shall have effect only in relation to persons who are so qualified.

Evidence on first registry

10.— (1) On the first registry of a ship the following evidence shall be produced in addition to the declaration of ownership:—

(a) In the case of a British-built ship a builder's certificate, that is to say, a certificate signed by the builder of the ship, and containing a true account of the proper de nomination and of the tonnage of the ship, as estimated by him, and of the time when and the place where she was built, and of the name of the person (if any) on whose account the ship was built, and if there has been any sale, the bill of sale under which the ship, or a share therein, has become vested in the applicant for registry:

(b) In the case of a foreign-built ship, the same evidence as in the case of a British-built ship, unless the declarant who makes the declaration of ownership declares that the time and place of her building are unknown to him, or that the builder's certificate cannot be procured, in which case there shall be required only the bill of sale under which the ship, or a share therein, became vested in the applicant for registry:

(2) The builder shall grant the certificate required by this sec tion, and such person as the Governor recognises as carrying on the business of the builder of a ship, shall be included, for the purposes of this section, in the expression "builder of the ship".

(3) If the person granting a builder's certificate under this sec tion wilfully makes a false statement in that certificate he shall for each offence be liable to a fine not exceeding one thousand, seven hundred and fifty dollars.

Entry of particulars in register

11. As soon as the requirements of this Act preliminary to registry have been complied with the Registrar of Shipping shall enter in the register the following particulars respecting the ship:—

(a) The name or the ship and the name of the port to which she belongs:

(b) The details comprised in the surveyor's certificate:

(d) The name and description of her registered owner or owners, and if there are more owners than one, the pro portions in which they are interested in her.

Documents to be retained by Registrar of Shipping

12. On the registry of a ship the Registrar of Shipping shall retain in his possession the following documents; namely, the surveyor's certifi cate, the builder's certificate, any bill of sale of the ship previously made, the copy of the condemnation (if any), and all declarations of ownership.

Port of registry

13. The port of Hamilton shall be deemed the port of registry of a ship registered and the port to which she belongs.

Certificate of registry

Certificate of registry

14. On completion of the registry of a ship, the Registrar of Shipping shall grant a certificate of registry comprising the particulars respecting her entered in the register in pursuance of section 11 of this Act.

Custody of certificate

15.— (1) The certificate of registry shall be used only for the lawful navigation of the ship, and shall not be subject to detention by reason of any title, lien, charge, or interest whatever had or claimed by any mort gagee, or other person to, on, or in the ship.

(2) If any person, whether interested in the ship or not, refuses on request to deliver up the certificate of registry when in his possession or under his control to the person entitled to the custody thereof for the purposes or the lawful navigation of the ship, or to the Registrar of Shipping, any officer of customs, or other person entitled by law to re quire such delivery, any justice by warrant under his hand and seal, or any court capable of taking cognizance of the matter, may summon the person so refusing to appear before such justice or court, and to be ex amined touching such refusal, and unless it is proved to the satisfaction of such justice or court that there was reasonable cause for such re fusal, the offender shall be liable to a fine not exceeding seven hundred and fifty dollars, but if it is shown to such justice or court that the cer tificate is lost, the person summoned shall be discharged, and the jus tice or court shall certify that the certificate of registry is lost.

(3) If the person so refusing is proved to have absconded so that the warrant of a justice or process of a court cannot be served on him, or if he persists in not delivering up the certificate, the justice or court shall certify the fact, and the same proceedings may then be taken as in the case of a certificate mislaid, lost, or destroyed, or as near thereto as circumstances permit.

Penalty for use of improper certificate

16. If the master or owner of a ship uses or attempts to use for her navigation a certificate or registry not legally granted in respect of the ship, he shall, in respect of each offence, be guilty of a misdemeanour, and the ship shall be subject to forfeiture under this Act.

Power to grant new certificate

17. The Registrar of Shipping may, with the approval of the Minister charged with responsibility for shipping, and on the delivery up to him of the certificate of registry of a ship, grant a new certificate in lieu thereof.

Provision for loss of certificate

18.— (1) In the event of the certificate of registry of a ship being mislaid, lost, or destroyed, the Registrar of Shipping shall grant a new certificate of registry in lieu of her original certificate.

(2) If —

(a) the port where the ship is at the time of the event (or, as the case may be, where it first arrives thereafter) is a port in a country outside Bermuda, and

(b) the master of the ship, or some other person having knowledge of the facts of the case, makes a declaration before the appropriate person stating —

(i) the facts of the case, and

(ii) the names and descriptions of the registered owners of the ship to the best of the declarant's knowledge and belief.

the appropriate person may thereupon grant a provisional certificate containing a statement of the circumstances under which it is granted.

(3) The provisional certificate shall within ten days after the first subsequent arrival of the ship at Hamilton be delivered up to the Registrar of Shipping, and the Registrar of Shipping shall thereupon grant the new certificate of registry; and if the master without reason able cause fails to deliver up the provisional certificate within the ten
days aforesaid, he shall be liable to a fine not exceeding seven hundred and fifty dollars.

(4) In this section "the appropriate person", in relation to a port in a country outside Bermuda means —

(a) any British consular officer within whose consular dis trict the port lies, or

(b) where Her Majesty's Government in the United Kingdom is represented in that country by a High Commissioner, any member of the High Commissioner's official staff nominated by him for the purposes of this Part of this Act, or

(d) where that country is the United Kingdom, the Registrar General of Shipping and Seamen,

and in this subsection "High Commissioner" includes an acting High Commissioner and "Governor" includes an acting Governor.

Endorsement of change of ownership on certificate

20.— (1) Whenever a change occurs in the registered ownership of a ship, the change of ownership shall be endorsed on her certificate of registry by the Registrar of Shipping.

(2) The master shall, for the purpose of such endorsement by the Registrar of Shipping, deliver the certificate of registry to the Regis trar forthwith after the change.

(4) If the master fails to deliver to the Registrar of Shipping the certificate of registry as required by this section he shall, for each of fence, be liable to a fine not exceeding seven hundred and fifty dollars.

Delivery up of certificate of ship lost or ceasing to be registered in Bermuda

21.— (1) In the event of a registered ship being either actually or constructively lost, taken by the enemy, burnt, broken up or ceasing to be entitled to be registered (whether because a majority interest in the ship is no longer owned by persons qualified to be owners of ships or for any other reason), every registered owner of the ship or any share in the ship shall, immediately on obtaining knowledge of the event, if no notice thereof has already been given to the Registrar of Shipping, give notice thereof to the Registrar of Shipping, and he shall make an entry thereof in the register and the registry of the ship shall terminate forthwith.

(2) Except where the ship's certificate of registry is lost or de stroyed, the master of the ship shall, as soon as practicable after the event, deliver up the certificate —

(a) to the Registrar of Shipping, or

(b) if the port where the ship is at the time of the event (or, as the case may be, where it first arrives thereafter) a port in a country outside Bermuda, to the appropriate person (as defined by section 18(4) of this Act);

and any person receiving a certificate in pursuance of paragraph (b) above shall forthwith forward it to the Registrar of Shipping.

(4) The registry of a registered ship shall also terminate if —

(a) the owner of the ship gives notice to the Registrar of Shipping that he desires to terminate the ship's registry, and

(b) the Registrar records the giving of that notice in the reg ister.

(5) Where the registry of a ship terminates by reason of —

(a) any notice given in pursuance of subsection (4) of this section, or

(b) any direction given by the Minister charged with re sponsibility for shipping under section 7(5) of the Mer chant Shipping Act 1988 (power to direct removal from register in certain cases),

subsections (2) and (3) of this section shall have effect in relation to the delivering up and forwarding of the ship's certificate of registry as if the giving of that notice or direction were the event referred to in subsection (2).

(6) Where the registry of a ship terminates —

(a) under subsection (1) or (4) of this section, or

(b) as mentioned in subsection (5)(b) of this section,

the termination of its registry shall not affect any entry made in the register so far as relating to any undischarged registered mortgage, or any existing certificate of mortgage, of that ship or of any share in it.

(7) Subsection (6) of this section shall not apply to an entry in the register in a case where the Registrar of Shipping is satisfied that
every person appearing on the register to be interested as a mortgagee under the mortgage in question has consented to the entry ceasing to have effect.

Provisional certificate for ship becoming entitled to be registered while abroad

22.— (1) If a ship becomes entitled to be registered while at a port in a country outside Bermuda, then (subject to the following provisions of this section) the appropriate person (as defined by section 18(4) of this Act) may, on the application of the master of the ship, grant to him a provisional certificate stating the matters specified in subsection (2) of this section, and shall forward a copy of the certificate at the first con venient opportunity to the Registrar of Shipping.

(2) Those matters are —

(a) the name of the ship;

(b) the time and place of the purchase of the ship and the names of the purchasers; and

(c) the best particulars respecting the tonnage, build and description of the ship which the person granting the certificate is able to obtain.

(3) No provisional certificate shall be granted by any person under this section unless he is satisfied that an application under sec tion 8 of this Act for registry of the ship has been made or is intended.

(4) A provisional certificate shall have the effect of a certificate of registry until —

(a) the expiration of three months from its date, or

(b) the ship's arrival at Hamilton,

whichever happens first, and shall then cease to be of any effect.

(5) Where a provisional certificate has been granted for a ship under this section, no further provisional certificate shall be so granted for the ship within one year from the date of that certificate except with the consent of the Governor.

Transfers and Transmissions

Transfer of ships or shares

24.— (1) Any transfer of —

(a) a registered ship, or

(b) a share in any such ship,

shall be effected by a bill of sale, unless the transfer will result in a majority interest in the ship no longer being owned by persons qualified to be owners of British ships.

(2) The bill of sale shall contain such description of the ship as is contained in the surveyor's certificate, or some other description suf ficient to identify the ship to the satisfaction of the Registrar of Shipping, and shall be executed by the transferor in the presence of, and be at tested by, a witness or witnesses.

Declaration of transfer

25. Where a registered ship or a share therein is transferred in accordance with section 24(1) of this Act, the transferee shall not be entitled to be registered as owner thereof until he, or, in the case of a corporation, the person authorised by this Act to make declarations on behalf of the corporation, has made and signed a declaration (in this Act called a declaration or transfer) referring to the ship, and containing —

(a) a statement of the qualification of the transferee to own a British ship, or if the transferee is a corporation, of such circumstances of the constitution and business thereof as prove it to be qualified to own a British ship; and

(b) a declaration that, to the best of his knowledge and be lief, a majority interest in the ship is owned by persons qualified to be owners of British ships, and the ship is otherwise entitled to be registered.

In the application of this section to a ship which is not wholly owned by persons qualified to be owners of British ships, paragraph (a) above shall have effect only in relation to persons who are so qualified.

Registry of transfer

26.— (1) Every bill of sale for the transfer of a registered ship or of a share therein, when duly executed, shall be produced to the Registrar of Shipping, with the declaration of transfer, and the Registrar shall there upon enter in the register the name of the transferee as owner of the ship or share, and shall endorse on the bill of sale the fact of that entry having been made, with the day and hour thereof.

(2) Bills of sale or of a share therein shall be entered in the reg ister in the order of their production to the Registrar of Shipping.

Transmission of property in ship on death, bankruptcy, marriage etc.

27.— (1) Where the property in a registered ship or share therein is transmitted to any person by any lawful means other than a transfer under section 24 of this Act and a majority interest in the ship remains in the ownership of persons qualified to be owners of British ships —

(a) That person shall authenticate the transmission by making and signing a declaration (in this Act called a declaration of transmission) identifying the ship and containing the several statements herein-before re quired to be contained in a declaration of transfer, or as near thereto as circumstances admit, and also a state ment of the manner in which and the person to whom the property has been transmitted.

(c) If the transmission is consequent on bankruptcy, the declaration of transmission shall be accompanied by such evidence as is for the time being receivable in courts of justice as proof of the title of persons claiming under a bankruptcy.

(d) If the transmission is consequent on death, the declara tion of transmission shall be accompanied by the in strument of representation, or an official extract there from.

(2) The Registrar of Shipping, on receipt of the declaration of transmission so accompanied, shall enter in the register the name of the person entitled under the transmission as owner of the ship or share the property in which has been transmitted, and where there is more than one such person, shall enter the names of all those persons, but those persons, however numerous, shall, for the purpose of the provi sion of this Act with respect to the number of persons entitled to be reg istered as owners, be considered as one person.

Order for sale on transmission to unqualified person

28.— (1) Where the property in a registered ship or share therein is transmitted to any person by any lawful means other than a transfer under section 24 of this Act, but as a result a majority interest in the ship no longer remains in the ownership of persons qualified to be own ers of British ships, then the Supreme Court may, on an application by or on behalf of that person, order a sale of the property so transmitted and direct that the proceeds of sale, after deducting the expenses of the sale, shall be paid to that person or otherwise as the court direct.

(2) The court may require any evidence in support of the ap plication they think requisite, and may make the order on any terms and conditions they think just, or may refuse to make the order, and generally may act in the case as the justice of the case requires.

(3) Every such application for sale must be made within four weeks after the occurrence of the event on which the transmission has taken place, or within such further time (not exceeding in the whole one year from the date of the occurrence) as the court allow.

(4) If such an application is not made within the time afore said, or if the court refuse an order for sale, the ship or share transmit ted shall thereupon be subject to forfeiture under this Act.

Transfer of ship or sale by order of court

29. Where any court, whether under the preceding sections of this Act or otherwise, order the sale of any ship or share therein, the order of the court shall contain a declaration vesting in some person named by the court the right to transfer that ship or share, and that person shall thereupon be entitled to transfer the ship or share in the same manner and to the same extent as if he were the registered owner thereof; and the Registrar of Shipping shall obey the requisition of the person so named in respect of any transfer to the same extent as if such person were the registered owner.

Power of court to prohibit transfer

30. The Supreme Court may, if the Court think fit (without preju dice to the exercise of any other power of the court), on the application of any interested person make an order prohibiting for a time specified any dealing with a ship or any share therein, and the Court may make the order on any terms or conditions they think just, or may refuse to make the order, or may discharge the order when made, with or without costs, and generally may act in the case as the justice of the case re quires; and the Registrar of Shipping without being made a party to the proceeding, shall on being served with the order or an official copy thereof obey the same.

Mortgage of ship or share

31.— (1) A registered ship, or a share in any such ship, may be made a security for the repayment of a loan or the discharge of any other obligation; and on production of the instrument creating any such security (referred to in this Act as a mortgage) the Registrar of Shipping shall record it in the register.

(2) Mortgages shall be recorded by the Registrar of Shipping in the order in time in which they are produced to him for that purpose,
and the Registrar shall by memorandum under his hand notify on each mortgage that it has been recorded by him, stating the day and hour of that record.

Entry of discharge of mortgage

32. Where a registered mortgage is discharged, the Registrar of Shipping shall, on the production of the mortgage deed, with a receipt for the mortgage money endorsed thereon, duly signed and attested, make an entry in the register to the effect that the mortgage has been discharged, and on that entry being made the estate (if any) which passed to the mortgagee shall vest in the person in whom (having regard to intervening acts and circumstances, if any,) it would have vested if the mortgage had not been made.

Priority of mortgages

33. If there are more mortgages than one registered in respect of the same ship or share, the mortgagees shall, notwithstanding any express, implied, or constructive notice, be entitled in priority one over the other, according to the date at which each mortgage is recorded in the register and not according to the date or each mortgage itself.

Mortgagee to have power of sale

34. Except as far as may be necessary for making a mortgaged ship or share available as a security for the mortgage debt, the mortgagee shall not by reason of the mortgage be deemed the owner of the ship or share, nor shall the mortgagor be deemed to have ceased to be owner thereof.

Mortgagee to have power of sale

35. Every registered mortgagee shall have power absolutely to dis pose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchase money; but where there are more persons than one registered as mortgagees of the same ship or share, a subsequent mortgagee shall not, except under the order of a court of competent jurisdiction, sell the ship or share without the concurrence of every prior mortgagee.

Mortgage not affected by bankruptcy

36. A registered mortgage of a ship or share shall not be affected by any act of bankruptcy committed by the mortgagor after the date of the record of the mortgage, notwithstanding that the mortgagor at the com mencement of his bankruptcy had the ship or share in his possession, order, or disposition, or was reputed owner thereof, and the mortgage shall be preferred to any right, claim, or interest therein of the other creditors of the bankrupt or any trustee or assignee on their behalf.

Transfer of mortgages

37. A registered mortgage of a ship or share may be transferred to any person and on production of the instrument effecting the transfer the Registrar of Shipping shall record it by entering in the register the name of the transferee as mortgagee of the ship or share, and shall by memorandum under his hand notify on the instrument of transfer that it has been recorded by him, stating the day and hour of the record.

Transmission of interest in mortgage by death, bankruptcy, etc.

38.— (1) Where the interest of a mortgagee in a ship or share is transmitted on death, or bankruptcy, or by any lawful means, other than by a transfer under this Act, the transmission shall be authenti cated by a declaration of the person to whom the interest is transmitted, containing a statement of the manner in which and the person to whom the property has been transmitted, and shall be accompanied by the like evidence as is by this Act required in case of a corresponding transmission of the ownership of a ship or share.

(2) The Registrar of Shipping on the receipt of the declaration and the production of the evidence aforesaid, shall enter the name of the person entitled under the transmission in the register as mortgagee of the ship or share.

Name of Ship

Rules as to name of ship

47.— (1) A ship shall not be described by any name other than that by which she is for the time being registered.

(2) A change shall not be made in the name of a ship without the previous written permission of the Registrar General of Shipping and Seamen of the United Kingdom.

(3) Application for that permission shall be in writing, and if the Registrar General of Shipping and Seamen of the United Kingdom is of opinion that the application is reasonable he may entertain it, and thereupon require notice thereof to be published in such form and manner as he thinks fit.

(4) On permission being granted to change the name, the ship's name shall forthwith be altered in the register, in the ship's cer tificate of registry, and on her bows and stern.

(5) If it is shown to the satisfaction of the Registrar General of Shipping and Seamen of the United Kingdom that the name of any ship has been changed without his permission he shall direct that her name be altered into that which she bore before the change, and the name shall be altered in the register, in the ship's certificate of registry, and on her bows and stern accordingly.

(6) Where a ship having once been registered has ceased to be so registered no person unless ignorant of the previous registry (proof whereof shall lie on him) shall apply to register, and the Registrar of Shipping shall not knowingly register, the ship, except by the name by which she was previously registered, unless with the previous written permission of the Registrar General of Shipping and Seamen of the United Kingdom.

(7) Where a foreign ship not having at any previous time been registered as a British ship, becomes a British ship, no person shall apply to register, and the Registrar of Shipping shall not knowingly reg ister, the ship, except by the name which she bore as a foreign ship immediately before becoming a British ship, unless with the previous written permission of the Registrar General of Shipping and Seamen of the United Kingdom.

(8) If any person acts, or suffers any person under his control to act, in contravention of this section, or omits to do, or suffers any person under his control to omit to do, anything required by this sec tion, he shall for each offence be liable to a fine not exceeding seven hundred and fifty dollars, and (except in the case of an application being made under the section with respect to a foreign ship which not having at any previous time been registered as a British ship has become a British ship) the ship may be detained until this section is complied with.

Registry of Alterations, Registry Anew, and Transfer of Registry

Registry of alterations

48.— (1) When a registered ship is so altered as not to correspond with the particulars relating to her tonnage or description contained in the register, then the Registrar of Shipping shall, on application being made to him, and on receipt of a certificate from the proper surveyor stating the particulars of the alteration, either cause the alteration to be registered, or direct that the ship be registered anew.

(2) If default is made in registering anew a ship, or in register ing an alteration of a ship so altered as aforesaid, the owner of the ship shall be liable on summary conviction to a fine not exceeding seven hundred and fifty dollars and, in addition, to a fine not exceeding sev enty five dollars for every day during which the offence continues after conviction.

Regulations for registry of alteration

49.— (1) For the purpose of the registry of an alteration in a ship, the ship's certificate of registry shall be produced to the Registrar of Shipping, and the Registrar shall, in his discretion, either retain the certificate of registry and grant a new certificate of registry containing a description of the ship as altered, or endorse and sign on the existing certificate a memorandum of the alteration.

(2) The particulars of the alteration so made, and the fact of the new certificate having been granted, or endorsement having been made, shall be entered by the Registrar of Shipping in the register.

Registry anew on change of ownership

51. Where the ownership of any ship is changed, the Registrar of Shipping may, on the application of the owners of the ship register the ship anew, although registration anew is not required under this Act.

Procedure for registry anew

52. (1) Where a ship is to be registered anew, the Registrar of Shipping shall proceed as in the case of first registry, and on the deliv ery up to him of the existing certificate of registry, and on the other requisites to registry, or in the case of a change of ownership such of them as he thinks material, being duly complied with, shall make such registry anew, and grant a certificate thereof.

(2) When a ship is registered anew, her former register shall be considered as closed, except so far as relates to any unsatisfied mort gage of existing certificates of sale or mortgage entered thereon, but the names of all persons appearing on the former register to be interested in the ship, as owners or mortgagees shall be entered on the new register, and the registry anew shall not in any way affect the rights of any of those persons.

Transfer of registry from Bermuda

53A.— (1) Subject to subsection (2) of this section, the registration of a ship under this Part of this Act may be transferred from Hamilton to a port in the United Kingdom or in a relevant overseas territory on the application to the Registrar of Shipping made by declaration in writing of all persons appearing on the register to be interested in the ship as owners or mortgagees, but that transfer shall not in any way affect the rights of those persons or any of them, and those rights shall in all re-
spects continue in the same manner as if no such transfer had been effected.

(1A) On any such application the Registrar of Shipping shall transmit notice thereof to the registrar of the intended port of registry with a copy of all particulars relating to the ship, and the names of all persons appearing on the register to be interested in the ship as owners or mortgagees.

(1B) The ship's certificate of registry shall be delivered up to either the Registrar of Shipping or the registrar of the ship's intended port of registry, and, if delivered up to the former, shall be transmitted to the registrar of the intended port of registry.

(2) Where an application is made under this section for the transfer of a ship's registration to a port in the United Kingdom or in a relevant overseas territory, the Registrar of Shipping shall not proceed to deal with the application unless he is satisfied that registration of the ship under this Part of this Act at the intended port of registry is not precluded by —

(a) any Order in Council in force under section 11 of the Merchant Shipping Act 1988, or

(b) any provision of the law in force in the United Kingdom or in the territory in question as the case may be;

and any certificate purporting to be signed by the registrar of the in tended port of registry and stating that any such registration of the ship is not precluded by any such provision shall be conclusive evidence for the purposes of this subsection of the matters stated in it.

(3) Where the registrar of the intended port of registry grants a fresh certificate of registry in pursuance of any such application as is mentioned in subsection (2) of this section, the ship in question shall thenceforth be considered as registered at the new port of registry, and the name of Hamilton shall be removed from the ship's stern.

(4) The Registrar of Shipping shall, on being notified by the registrar of the new port of registry of the grant of the new certificate of registry, terminate the registration of the ship in the register.

(5) In this section " relevant overseas territory " means —

(a) the Isle of Man;

(b) any of the Channel Islands; or

Transfer of registry to Bermuda

53B.— (1) Where a ship is registered under this Part of this Act in the United Kingdom or in a relevant overseas territory (as defined by section 53A(5) of this Act), the registration of that ship may (subject to subsec tion (5) of this section) be transferred to Hamilton if —

(a) an application to the registrar of the existing port of reg istry has been made for the purpose by a declaration in writing by all the persons appearing on his register to be interested in the ship as owners or mortgagees, and

(b) the documents mentioned in subsection (2) of this sec tion have been transmitted to the Registrar of Shipping.

(2) Those documents are —

(a) a notice of the application transmitted by the registrar of the existing port of registry;

(b) a copy transmitted by him of all the registered particu lars of the ship and the names of all the persons appear ing on his register to be interested in the ship as owners or mortgagees; and

(3) On receipt of those documents the Registrar of Shipping shall (subject to subsection (5) of this section) —

(a) enter in the register all the particulars and names so transmitted, and

(b) grant a fresh certificate of registry;

and thenceforth the ship in question shall be considered as registered at Hamilton, and the name of that port shall be substituted for the name of the former port of registry on the ship's stern.

(4) The Registrar of Shipping shall notify the registrar of the former port of registry of the grant of the new certificate of registry.

(5) Where the entitlement of a ship to be registered is by virtue of any provision of section 4 of the Merchant Shipping Act 1988 subject to any condition specified in that provision being satisfied, the registry of the ship shall not be transferred to Hamilton under this section unless it appears to the Registrar of Shipping that that condition is satisfied.

(6) A transfer of registration under this section shall not affect the rights of any of the persons mentioned in subsection (1)(a) of this section.

Trusts and Equitable Rights

Notice of trusts not received

56. No notice of any trust, express, implied, or constructive, shall be entered in the register or be receivable by the Registrar of Shipping, and subject to any rights and powers appearing by the register to be vested in any other person, the registered owner of a ship or of a share therein shall have power absolutely to dispose in manner in this Act provided of the ship or share, and to give effectual receipts for any money paid or advanced by way of consideration.

Equities not excluded by Act

57. The expression "beneficial interest," where used in this Part of this Act, includes interests arising under contract and other equitable interests; and the intention of this Act is, that without prejudice to the provisions of this Act for preventing notice of trusts from being entered in the register or received by the Registrar of Shipping, and without prejudice to the powers of disposition and of giving receipts conferred by this Act on registered owners and mortgagees, and without prejudice to the provisions of this Act relating to the exclusion of unqualified persons from the ownership of British ships, interests arising under contract or other equitable interests may be enforced by or against owners and mortgagees of ships in respect of their interest therein in the same manner as in respect of any other personal property.

Liability of Beneficial Owner

Liability of owner

58. Where any person is beneficially interested, otherwise than by way of mortgage, in any ship or share in a ship registered in the name of some other person as owner, the person so interested shall, as well as the registered owner, be subject to all pecuniary penalties imposed by this or any other Act on the owners of ships or shares therein, so never theless that proceedings may be taken for the enforcement of any such penalties against both or either of the aforesaid parties, with or without joining the other of them.

Declarations, Inspection of Register, and Fees

Power of Registrar of Shipping to dispense with declarations and other evidence

60. When, under this Part of this Act, any person is required to make a declaration on behalf of himself or of any corporation, or any evidence is required to be produced to the Registrar of Shipping and it is shown to the satisfaction of the Registrar of Shipping that from any rea sonable cause that person is unable to make the declaration, or that the evidence cannot be produced, the Registrar may, with the approval of the Minister charged with responsibility for shipping, and on the pro duction of such other evidence, and subject to such terms as he may think fit, dispense with the declaration or evidence.

Mode of making declarations

61. Declarations required by this Part of this Act may be made on behalf of a corporation by the secretary or any other officer of the corpo ration authorised by them for the purpose.

Application of fees

62. All fees authorised to be taken under this Part of this Act, shall, except where otherwise in this Act provided, be disposed of in such way as the Minister charged with responsibility for shipping directs.

Returns, Evidence, and Forms

Evidence of register, certificate of registry, and other documents

64.— (1) A person, on payment of a fee to be fixed by the Minister charged with responsibility for shipping may on application to the Regis trar of Shipping at a reasonable time during the hours of his official attendance, inspect the register.

(2) The following documents shall be admissible in evidence in manner provided by this Act; namely,—

(b) A certificate of registry under this Act purporting to be signed by the Registrar of Shipping or other proper offi cer;

(c) An endorsement on a certificate of registry purporting to be signed by the Registrar of Shipping or other proper officer;

(d) Every declaration made in pursuance of this Part of this Act.

(3) A person shall be entitled, on payment of the prescribed fee, to obtain a copy, certified as a true copy by the Registrar of Ship ping, of any information contained in an entry in the register, and any document purporting to be such a certified copy shall be evidence of the matters stated in the document.

(4) A person shall be entitled, on payment of the prescribed fee, to obtain such a certified copy of the information entered in the register on the registry of a ship, together with a statement certified by the Registrar of Shipping showing who is for the time being the owner of the ship.

(5) The provisions of subsection (3) of section 695 of this Act shall apply to any document supplied in pursuance of subsection (3) or (4) of this section as they apply to any document to which that section applies.

(6) In subsection (3) or (4) of this section "the prescribed fee" means such fee as the Minister charged with responsibility for shipping may prescribe for the purposes of that subsection by regulations.

Forms of documents and instructions as to registry

65.— (1) The several instruments and documents specified in the second part of Schedule 1 to this Act shall be in the form prescribed by the Minister charged with responsibility for shipping or as near thereto as circumstances permit; the Minister charged with responsibility for shipping may make such alterations in the form so prescribed as he may deem requisite.

(2) The Registrar of Shipping shall not be required without the special direction of the Minister charged with responsibility for shipping to receive and enter in the register any bill of sale, mortgage, or other instrument of the disposal or transfer of any ship or share, or any inter est therein, which is made in any form other than that for the time being required under this Part of this Act, or which contains any particulars other than those contained in such form; but the Minister charged with responsibility for shipping shall, before altering the forms, give such public notice thereof as may be necessary in order to prevent inconven ience.

(4) The Minister charged with responsibility for shipping may also, for carrying into effect this Part of this Act, give such instructions to his officers as to the manner of making entries in the register, as to the execution and attestation of powers of attorney, as to any evidence required for identifying any person, as to the referring to himself of any question involving doubt or difficulty, and generally as to any act or thing to be done in pursuance of this Part of this Act, as he thinks fit.

Forgery and False Declarations

Forgery of documents

66. If any person forges, or fraudulently alters or assists in forging or fraudulently altering, or procures to be forged or fraudulently altered, any of the following documents, namely, any register, builder's certifi cate, surveyor's certificate, certificate of registry, declaration, bill of sale, instrument of mortgage, or certificate of mortgage or sale under this Part of this Act, or any entry or endorsement required by this Part of this Act to be made in or on any of those documents, that person shall be guilty of an offence and for each offence be liable on summary convic tion to a fine not exceeding three thousand, five hundred dollars.

False declarations

67.— (1) If any person in the case of any declaration made in the presence of or produced to the Registrar of Shipping under this Part of this Act, or in any document or other evidence produced to that Regis trar —

(i) wilfully makes, or assists in making, or pro cures to be made any false statement concern ing the title to or ownership of, or the interest existing in any ship, or any share in a ship; or

(ii) utters, produces or makes use of any declara tion or document containing any such false statement knowing the same to be false,

he shall be guilty of an offence and for each offence be liable on sum mary conviction to a fine not exceeding three thousand, five hundred dollars.

(2) If any person wilfully makes a false declaration touching the qualification of himself or of any other person or of any corporation to own a British ship or any share therein, or the entitlement of a ship to be registered, he shall be guilty of an offence and for each offence be liable on summary conviction to a fine not exceeding three thousand, five hundred dollars and that ship or share shall be subject to forfeiture under this Act, to the extent of the interest therein of the declarant, and also, unless it is proved that the declaration was made without author ity, of any person or corporation on behalf of whom the declaration is made.

National Character and Flag

National character of ship to be declared before clearance

68.— (1) An officer of customs shall not grant clearance or transire for any ship until the master of such ship has declared to that officer the name of the nation to which he claims that she belongs, and that officer shall thereupon inscribe that name on the clearance or transire.

(2) If a ship attempts to proceed to sea without such clearance or transire, she may be detained until the declaration is made.

Penalty for unduly assuming British character

69.— (1) If a person uses the British flag and assumes the British national character on board a ship in which a majority interest is not
owned by persons qualified to be owners of British ships for the purpose of making the ship appear to be a British ship, the ship shall be subject to forfeiture under this Act, unless the assumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right.

(2) In any proceeding for enforcing any such forfeiture the burden of proving a title to use the British flag and assume the British national character shall lie upon the person using and assuming the same.

Penalty for concealing British character of a ship

70. If the master or owner of a British ship does anything, or per mits anything to be done, for the purpose of —

(a) concealing the nationality of the ship from any person entitled under the law of Bermuda to inquire into the nationality of the ship, or

(b) deceiving such a person, or

the ship shall be subject to forfeiture under this Act; and the master and the owner or the ship shall each be guilty of an offence and liable on summary conviction to a fine not exceeding three thousand, five hun dred dollars.

Liabilities of unregistered ships

72.— (1) Where a ship —

(a) is 24 metres or more in length, and

(b) is wholly owned by one or more persons qualified to be owners of British ships, but

then (notwithstanding that the ship is not entitled to any benefits, privi leges, advantages or protection usually enjoyed by a British ship) the ship shall, for the purposes mentioned in subsection (2) of this section, be dealt with in the same manner in all respects as if the ship were a British ship.

(2) Those purposes are —

(a) the payment of dues, fees or other charges;

(b) liability to fines and forfeiture; and

(3) In this section "length", in relation to a ship, has the same meaning as in the tonnage regulations of this Act.

National colours for ships, and penalty on carrying improper col ours

73.— (1) The red ensign usually worn by merchant ships, without any defacement or modification whatsoever, is hereby declared to be the proper national colours for all British ships except in the case of Her Majesty's ships, or in the case of any other ship for the time being al lowed to wear any other national colours in pursuance of a warrant from Her Majesty or from the Admiralty.

(2) If any distinctive national colours, except such red ensign or except the Union Jack with a white border or if any colours usually worn by Her Majesty's ships or resembling those of Her Majesty, or if the pendant usually carried by Her Majesty's ships or any pendant resem bling that pendant, are or is hoisted on board any British ship without warrant from Her Majesty or from the Admiralty, the master of the ship, or the owner thereof, if on board the same and every other person hoist ing the colours or pendant, shall for each offence be liable on conviction on indictment to a fine or on summary conviction to a fine not exceeding three thousand, five hundred dollars.

(3) Any commissioned officer on full pay in the military or na val service of Her Majesty, or any officer of customs in Her Majesty's dominions, or any British consular officer, may board any British ship on which any colours or pendants are hoisted contrary to this Act, and seize and take away the colours or pendant, and the colours or pendant shall be forfeited to Her Majesty.

Penalty on ship not showing colours

74.— (1) A British ship shall hoist the proper national colours —

(a) on a signal being made to her by one of Her Majesty's ships (including any vessel under the command of an officer of Her Majesty's navy on full pay), and

(b) on entering or leaving any foreign port, and

(2) If default is made on board any such ship in complying with this section, the master of the ship shall for each offence be liable to a fine not exceeding seven hundred and fifty dollars.

Saving for Admiralty

75. The provisions of this Act with respect to colours worn by mer chant ships shall not affect any other power of the Admiralty in relation thereto.

Forfeiture of Ship

Proceedings on forfeiture of ship

76.— (1) Where any ship has either wholly or as to any share therein become subject to forfeiture under this Part of this Act,

(a) any commissioned officer on full pay in the military or naval service of Her Majesty; or

(b) any person appointed by the Governor for the purposes of this section;

may seize and detain the ship and bring her for adjudication before the Supreme Court, and the Court may thereupon adjudge the ship with her tackle, apparel, and furniture to be forfeited to Her Majesty, and make such order in the case as to the Court seems just, and may award to the officer or other person bringing in the ship for adjudication such portion of the proceeds of the sale of the ship, or any share therein, as the Court think fit.

(2) Any such officer or other person as is mentioned in subsec tion (1) of this section shall not be responsible either civilly or criminally to any person whomsoever in respect of any such seizure or detention as aforesaid, notwithstanding that the ship has not been brought in for adjudication, or if so brought in is declared not liable to forfeiture, if it is shown to the satisfaction or the Court that there were reasonable grounds for such seizure or detention; but if no such grounds are shown the Court may award costs and damages to any party aggrieved, and make such other order in the premises as the Court thinks just.

Tonnage once ascertained to be the tonnage of ship

82. Whenever the tonnage of any ship has been ascertained and registered in accordance with the tonnage regulations of this Act, the same shall thenceforth be deemed to be the tonnage of the ship, and shall be repeated in every subsequent registry thereof, unless any al teration is made in the form of capacity of the ship, or unless it is dis covered that the tonnage of the ship has been erroneously computed; and in either of those cases the ship shall be re-measured, and her ton nage determined and registered according to the tonnage regulations of this Act.

Fees for measurement

83. Such fees as the Minister charged with responsibility for ship ping determines shall be paid in respect of the measurement of a ship's tonnage.

Surveyors and Regulations for measurement of ships

86. All duties in relation to the survey and measurement of ships shall be performed by surveyors of ships under this Act in accordance with regulations made by the Minister charged with responsibility for shipping.

SCHEDULE 4

AMENDMENTS RELATING TO LIABILITY AND COMPENSATION FOR OIL POLLUTION DAMAGE

PART I
AMENDMENTS OF MERCHANT SHIPPING (OIL POLLUTION) ACT 1971

1 For section 1 substitute —

"Liability for oil pollution

1.— (1) Where, as a result of any occurrence, any oil is dis charged or escapes from a ship to which this section applies, then (except as otherwise provided by this Act) the owner of the ship shall be liable —

(a) for any damage caused outside the ship in the area of Bermuda by contamination resulting from the discharge or escape; and

(b) for the cost of any measures reasonably taken after the discharge or escape for the purpose of preventing or minimising any damage so caused in the area of Bermuda by contamination result ing from the discharge or escape; and

(2) Where, as a result of any occurrence, there arises a grave and imminent threat of damage being caused outside a ship to which this section applies by contamination resulting from a discharge or escape of oil from the ship, then (except as otherwise provided by this Act) the owner of any ship shall be liable —

(a) for the cost of any measures reasonably taken for the purpose of preventing or minimising any such damage in the area of Bermuda; and

(b) for any damage caused outside the ship in the area of Bermuda by any measures so taken;

and in this any such threat is referred to as a relevant threat of contamination.

(3) Subject to subsection (4) of this section, this section applies to any ship constructed or adapted for carrying oil in bulk as cargo.

(4) Where any ship so constructed or adapted is capable of carrying other cargoes besides oil, this section shall apply to any such ship —

(a) while it is carrying oil in bulk as cargo; and

(b) unless it is proved that no residues from the carriage of any such oil remain in the ship, while it is on any voyage following the carriage of any such oil,

but not otherwise.

(5) Where a person incurs a liability under subsec tion (1) or (2) of this section he shall also be liable for any dam age or cost for which he would be liable under that subsection if the references in it to the area of Bermuda included the area of any other Convention country.

(6) Where —

(a) as a result of any occurrence, a liability is in curred under this section by the owner of each of two or more ships, but

(b) the damage or cost for which each of the owners would be liable cannot reasonably be separated from that for which the other or others would be liable,

each of the owners shall be liable, jointly with the other or oth ers, for the whole of the damage or cost for which the owners to gether would be liable under this section.

(7) For the purposes of this Act —

(a) references to a discharge or escape of oil from a ship are references to such a discharge or es cape wherever it may occur, and whether it is of oil carried in a cargo tank or of oil carried in a bunker fuel tank;

(b) where more than one discharge or escape re sults from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one, but any measures taken after the first of them shall be deemed to have been taken after the discharge or escape; and

(c) where a relevant threat of contamination results from a series of occurrences having the same origin, they shall be treated as a single occur rence.

(8) Section 3 of the Law Reform (Liability in Tort) Act 1951 [title 8 item 67] shall apply in relation to any damage or cost for which a person is liable under this section, but which is not due to his fault, as if it were due to his fault."

2 For section 2 substitute —

"Exceptions from liability under s.1

2. No liability shall be incurred by the owner of a ship under section 1 of this Act by reason of any discharge or escape of oil from the ship, or by reason of any relevant threat of contamina tion, if he proves that the discharge or escape, or (as the case may be) the threat of contamination —

(a) resulted from an act of war, hostilities, civil war, insurrection or an exceptional, inevitable and ir resistible natural phenomenon; or

(b) was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner, with intent to do damage; or

(c) was due wholly to the negligence or wrongful act of a government or other authority in exer cising its function of maintaining lights or other navigational aids for the maintenance of which it was responsible."

3 For section 3 substitute —

"Restriction of liability for oil pollution

3.— (1) Where, as a result of any occurrence —

(a) any oil is discharged or escapes from a ship to which section 1 of this Act applies, or

(b) there arises a relevant threat of contamination,

then, whether or not the owner of the ship in question incurs a liability under section 1 of this Act —

(i) he shall not be liable otherwise than under that section for any such damage or cost as is men tioned in it, and

(ii) no person to whom this paragraph applies shall be liable for any such damage or cost unless it resulted from anything done or omitted to be done by him either with intent to cause any such damage or cost or reck lessly and in the knowledge that any such damage or cost would probably result.

(2) Subsection (1)(ii) of this section applies to —

(a) any servant or agent of the owner of the ship;

(b) any person not falling within paragraph (a) above but employed or engaged in any capacity on board the ship or to perform any service for the ship;

(c) any charterer of the ship (however described and including a bareboat charterer), and any manager or operator of the ship;

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

(e) any person taking any such measures as are mentioned in subsection (1)(b) or (2)(a) of sec tion 1 of this Act;

(f) any servant or agent of a person falling within paragraph (c), (d) or (e) above.

(3) The liability of the owner of the ship under sec tion 1 of this Act for any impairment of the environment shall be taken to be a liability only in respect of —

(a) any resulting loss of profits, and

(b) the cost of any reasonable measures of rein statement actually taken or to be taken."

4 For section 4 substitute —

"Limitation of liability under s.1

4.— (1) Where, as a result of any occurrence, the owner of a ship incurs a liability under section 1 of this Act by reason of a discharge or escape or by reason of any relevant threat of con tamination, then (subject to subsection (3) of this section) —

(a) he may limit that liability in accordance with the provisions of this Act, and

(b) if he does so, his liability (that is to say, the ag gregate of his liabilities under section 1 resulti ng from the occurrence) shall not exceed the relevant amount.

(2) In subsection (1) of this section "the relevant amount" means —

(a) in relation to a ship not exceeding 5,000 tons, 3 million special drawing rights;

(b) in relation to a ship exceeding 5,000 tons, 3 mil lion special drawing rights together with an additional 420 special drawing rights for each ton of its tonnage in excess of 5,000 tons up to a maximum amount of 59.7 million special drawing rights;

but the Minister charged with responsibility for shipping may by order make such amendments of paragraphs (a) and (b) above as appear to him to be appropriate for the purpose of giv ing effect to the entry into force of any amendment of the limits of liability laid down in paragraph 1 of Article V of the Conven tion.

(3) Subsection (1) of this section shall not apply in a case where it is proved that the discharge or escape, or (as the case may be) the relevant threat of contamination, resulted from anything done or omitted to be done by the owner either with in tent to cause any such damage or cost as is mentioned in sec tion 1 of this Act or recklessly and in the knowledge that any such damage or cost would probably result.

(4) For the purposes of this section a ship's ton nage shall be its gross tonnage calculated in such manner as
may be prescribed by an order made by Minister charged with responsibility for shipping.

(5) Any such order shall, so far as it appears to Minister charged with responsibility for shipping to be practica ble, give effect to the regulations in Annex 1 of the International Convention on Tonnage Measurement of Ships 1969."

5 In section 5 (limitation actions), after subsection (6) add —

"(7) No lien or other right in respect of any ship or other property shall affect the proportions in which any amount is distributed in accordance with subsection (2)(b) of this sec tion."

6 In section 7 (concurrent liabilities of owners and others), for the words from the beginning to "of that section," substitute "Where, as a result of any discharge or escape of oil from a ship or as a result of any relevant threat of contamination, the owner of the ship incurs a liability under section 1 of this Act and any other person incurs a liability, oth erwise than under that section, for any such damage or cost as is men tioned in subsection (1) or (2) of that section,".

7 In section 9 (extinguishment of claims) after "escape" insert ", or (as the case may be) in the relevant threat of contamination,".

8 In section 10 (compulsory insurance against liability for pollu tion)

(a) in subsection (1), omit "persistent";

(b) in subsection (3)(c), for the words from "a certificate rec ognised" onwards substitute "by or under the authority of the government of any Convention country other than Bermuda"; and

9 In section 12 (rights of third parties against insurers) —

(a) in subsection (1), after "occurring" insert ", or as a result of any relevant threat of contamination arising,"; and

(b) in subsection (2), after "escape" insert ", or (as the case may be) the threat of contamination,"; and

(c) in subsection (3), for "occurred without the owner's ac tual fault or privity" substitute ", or (as the case may be) the threat of contamination, resulted from anything done or omitted to be done by the owner as mentioned in section 4(3) of this Act."

10 In section 13 (jurisdiction of Bermuda courts, etc) for subsection (2) substitute —

"(2) Where,

(a) any oil is discharged or escapes from a ship but does not result in any damage caused by contamination in the area of Bermuda and no measures are reasonably taken to prevent or minimise such damage in that area, or

(b) any relevant threat of contamination arises but no measures are reasonably taken to prevent or minimise damage caused by contamination in the area of Bermuda res ulting from a discharge or escape of oil from the ship,

no court in Bermuda shall entertain any action (whether in rem or in personam) to enforce a claim arising from any relevant damage or cost—

(i) against the owner of the ship, or

(ii) against any person to whom sec tion 3(1)(ii) of this Act applies, un less any such damage or cost re sulted from anything done or omit ted to be done as mentioned in that provision.

(2A) In subsection (2) of this section "relevant damage or cost" means—

(a) in relation to any such discharge or escape as is mentioned in paragraph (a) of that subsection, any damage caused in the area of another Convention country by contami nation resulting from the discharge or es cape, or any cost incurred in taking meas ures to prevent or minimise such damage in the area of another Convention country;

(b) in relation to any such threat of contamina tion as is mentioned in para graph (b) of that subsection, any cost in curred in taking measures to prevent or minimise damage caused by contamination
in the area of another Convention country resulting from a discharge or escape of oil from the ship; or

and section 3(2)(e) of this Act shall have effect for the pur poses of subsection (2)(ii) of this section as if it referred to any person taking any such measures as are mentioned in paragraph (a) or (b) above."

11 In section 14(2) (Government ships), for the words from "Article V" onwards substitute "Article V of the Convention".

12 In section 15 (liability for cost of preventative measures where section 1 does not apply) —

(a) for subsection (1)(a) substitute —

"(a) after a discharge or escape of oil from a ship, measures are reasonably taken for the purpose of preventing or minimising the damage in the area of Bermuda which may be caused outside the ship by contamination resulting from the discharge or escape; and"; and

(b) after subsection (1) insert —

"(1A) Where —

(a) after there has arisen a grave and im minent threat of damage being caused outside a ship by contamination resul ting from a discharge or escape of oil from the ship, measures are reasonably taken for the purpose of preventing or minimising any such damage in the area of Bermuda, but

(b) section 1(2) of this Act does not apply,

the owner of the ship shall be liable for the cost of the measures, whether or not the person taking them does so for the protection of his interests or in the perform ance of a duty.

(1B) Where a person is, by virtue of subsec tion (1) or (1A) of this section, liable for the cost of any measures, he shall also be liable for any damage caused in the area of Bermuda by those measures."

13 In section 19(1) (meaning of "the Convention" etc), for the defini tion of "the Convention" substitute —

""the Convention" means the International Convention on Civil Liability for Oil Pollution Damage 1984;".

14 For section 20 substitute —

"General interpretation

20 (1) In this Act—

"the court" means the Supreme Court;

"damage" includes loss;

"oil" means persistent hydrocarbon mineral oil;

"owner" means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owing the ship, except that, in relation to a ship owned by a State which is operated by a person registered as the ship's operator, it means the person registered as the ship's operator;

"relevant threat of contamination" shall be construed in accordance with section 1(2) of this Act;

"ship" means any sea-going vessel or sea-borne craft of any type whatsoever.

(2) In relation to any damage or cost resulting from the discharge or escape of any oil from a ship, or from a relevant threat of contamination, references in this Act to the owner of the ship are references to the owner at the time of the occur rence or first of the occurrences resulting in the discharge or escape or (as the case may be) in the threat of contamination.

(3) References in this Act to the area of any country include the territorial sea of that country; and —

(aa) in the case of Bermuda, any area within the fishery limits set by the Proclamation extending the Limits of the Fishery Zone of Bermuda 1977 [title 2 item 5].

(a) in the case of the United Kingdom, any area within the British fishery limits set by or under the Fishery Limits Act 1976; and

(b) in the case of any other Convention country, the exclusive economic zone of that country estab lished in accordance with international law, or, if such a zone has not been established, such area adjacent to the territorial sea of that coun try and extending not more than 200 nautical miles from the baselines from which the breadth of that sea is measured as may have been determined by the Convention State in question in accordance with international law."

PART II
AMENDMENTS OF THE MERCHANT SHIPPING ACT 1974

15 For section 1 substitute —

"Interpretation of Part I

1.— (1) In this Part of this Act —

(a) "the Liability Convention" means the Interna tional Convention on Civil Liability for Oil Pollu tion Damage 1984;

(b) "the Fund Convention" means the International Convention on the Establishment of an Interna tional Fund for Compensation for Oil Pollution Damage 1984;

(d) "Fund Convention country" means a country in respect of which the Fund Convention is in force.

(2) If Her Majesty by Order in Council declares that any State specified in the Order is a party to the Fund Conven tion in respect of any country so specified, the Order shall, while in force, be conclusive evidence that that State is a party to the Convention in respect of that country.

(3) In this Part of this Act, unless the context oth erwise requires —

"the Act of 1971" means the Merchant Shipping (Oil Pol lution) Act 1971;

"damage" includes loss;

"discharge or escape", in relation to pollution damage, means the discharge or escape of oil from the ship;

"guarantor" means any person providing insurance or other financial security to cover the owner's liability of the kind described in section 10 of the Act of 1971;

"incident" means any occurrence, or series of occur rences having the same origin, resulting in a dis charge or escape of oil from a ship or in a relevant threat of contamination;

"oil", except in sections 2 and 3, means persistent hy drocarbon mineral oil;

"owner" means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship, except that, in relation to a ship owned by a State which is oper ated by a person registered as the ship's operator, it means the person registered as its operator;

"pollution damage" means (subject to subsection (4) be low) —

(a) damage caused outside a ship by contamination resulting from a discharge or escape of oil from the ship,

(b) the cost of preventative measures, and

"preventative measures" means any reasonable meas ures taken by any person to prevent or minimise pol lution damage, being measures taken--

(a) after an incident has occurred, or

(b) in the case of an incident consisting of a series of occurrences, after the first of those occur rences;

"relevant threat of contamination" means a grave and imminent threat of damage being caused outside a ship by contamination resulting from a discharge or escape of oil from the ship;

"ship" means any ship (within the meaning of the Act of 1971) to which section 1 of that Act applies.

(4) In this Part of this Act "pollution damage" does not include any damage attributable to any impairment of the environment except to the extent that any such damage consists of —

(a) any loss of profits, or

(b) the cost of any reasonable measures of rein statement actually taken or to be taken.

(5) For the purposes of this Part of this Act —

(b) where more than one discharge or escape re sults from the same occurrence or from a series of occurrences having the same origin, they shall be treated as one.

(6) References in this Part of this Act to the area of any country include (in addition to its territorial sea) —

(a) in the case of the United Kingdom, any area within the British fishery limits set by or under the Fishery Limits Act 1976; and

(b) in the case of any other Fund Convention coun try, the exclusive economic zone of that country established in accordance with international law, or, if such a zone has not been established, such area adjacent to the territorial sea of that country and extending not more than 200 nau tical miles from the baselines from which the breadth of that sea is measured as may have been determined by the State in question in ac cordance with international law

and references to pollution damage in the United Kingdom shall be construed accordingly."

16 In section 2 (contributions by importers of oil and others), in subsection (7), for paragraph (a) substitute —

"(a) be of such amount as may be determined by the Director of the Fund under Article 12 of the Fund Convention and notified to that person by the Fund;".

17 (1) Section 4 (liability of the Fund) shall be amended as fol lows.

(2) In subsection (1) —

(a) for "causing the damage" substitute ", or the relevant threat of contamination, by reason of which the damage was caused"; and

(b) for "left undone" substitute "omitted to be done".

(3) For subsections (8) and (9) substitute —

"(8) If the Fund proves that the pollution damage resulted wholly or partly —

(a) from anything done or omitted to be done with intent to cause damage by the person who suffered the damage, or

(b) from the negligence of that person,

the Fund may (subject to subsection (9A) below) be exoner ated wholly or partly from its obligation to pay compensa tion to that person.

(9) Where the liability under section 1 of the Act of 1971 in respect of the pollution damage is limited to any extent by subsection (8) of that section (contributory negli gence), the Fund shall (subject to subsection (9A) below) be exonerated to the same extent.

(9A) Subsections (8) and (9) above shall not apply where the pollution damage consists of the cost of preventative measures or any damage caused by such measures."

(4) Omit subsections (10) to (13).

(5) After section 4 insert —

"Limitation of Fund's liability under s 4

4A.— (1) The Fund's liability under section 4 of this Act shall be subject to the limits imposed by paragraphs 4 and 5 of Article 4 of the Fund Convention (which impose an overall limit on the li abilities of the Fund and the text of which is set out in
Schedule 1 to this Act); and in those provisions references to the 1984 Li ability Convention are references to the Liability Convention within the meaning of this Part of this Act.

(2) A certificate given by the Director of the Fund stating that sub-paragraph (c) of paragraph 4 of Article 4 of the Fund Convention is applicable to any claim under section 4 of this Act shall be conclusive evidence for the purposes of this Part of this Act that it is so applicable.

(3) For the purpose of giving effect to paragraphs 4 and 5 of Article 4 of the Fund Convention a court giving judg ment against the Fund in proceedings under section 4 of this Act shall notify the Fund, and —

(a) no steps shall be taken to enforce the judgment unless and until the court gives leave to enforce it,

(b) that leave shall not be given unless and until the Fund notifies the court either that the amount of the claim is not to be reduced under those paragraphs, or that it is to be reduced to a specified amount, and

(4) Any steps taken to obtain payment of an amount or a reduced amount in pursuance of such a judgment as is mentioned in subsection (3) above shall be steps to obtain payment in sterling; and —

(a) for the purpose of converting such an amount from special drawing rights into sterling one special drawing right shall be treated as equal to such a sum in sterling as the International Monetary Fund have fixed as being the equiva lent of one special drawing right for —

(i) the relevant day, namely the day on which the Assembly of the Fund decide the date for the first payment of com pensation in respect of the incident, or

(ii) if no sum has been so fixed for the rele vant day, the last day before that day for which a sum has been so fixed; and

(b) a certificate given by or on behalf of the Minister charged with responsibility for shipping stating—

(i) that a particular sum in sterling has been so fixed for the relevant day, or

(ii) that no sum has been fixed for the rele vant day and that a particular sum in sterling has been so fixed for a day which is the last day for which a sum has been so fixed before the relevant day,

shall be conclusive evidence of those matters for the purposes of this Part of this Act.

(5) The Minister charged with responsibility for shipping may by order made by statutory instrument make such amendments of this section and of Schedule 1 to this Act as appear to him to be appropriate for the purpose of giving ef fect to the entry into force of any amendment of the provisions set out in that Schedule.

(6) Any document purporting to be such a certifi cate as is mentioned in subsection (2) or (4)(b) above shall, in any legal proceedings, be received in evidence and, unless the contrary is proved, be deemed to be such a certificate."

18 Omit section 5 (indemnification of shipowners).

19 In section 6 (jurisdiction and effect of judgments)—

(a) in subsection (4), omit " or 5"; and

(b) in subsection (5)(a), omit "as amended".

20 In section 7 (extinguishment of claims)—

(a) in subsection (2), after "escape" insert ", or (as the case may be) in the relevant threat of contamination,"; and

(b) omit subsection (3).

21 In section 8 (subrogation and rights of recourse) —

(a) omit subsection (2); and

(b) for subsection (3) substitute —

"(3) In respect of any sum paid under sec tion 4(1)(a) or (c) of this Act (exclusion or limitation of li ability for pollution damage) the Fund shall acquire by
subrogation any rights of recourse in respect of the damage in question which the recipient has against any person other than the owner or guarantor."

22 After section 8 insert —

"Supplementary provisions as to proceedings involving the Fund

8A.— (1) Any proceedings by or against the Fund may either be instituted by or against the Fund in its own name or be insti tuted by or against the Director of the Fund as the Fund's rep resentative.

(2) Evidence of any instrument issued by any organ of the Fund or of any document in the custody of the Fund, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of the Fund; and any document purporting to be such a copy shall, in any such proceedings, be received in evidence without proof of the official position or handwriting of the person signing the certificate."

23 In section 23(2) (construction, etc) omit the words from ", and references" onwards.

24 For Schedule 1 substitute —

"SCHEDULE 1
OVERALL LIMIT ON LIABILITY OF THE FUND

Article 4 -- paragraphs 4 and 5

4 (a) Except as otherwise provided in sub-para graphs (b) and (c) of this paragraph, the aggregate amount of compensation payable by the Fund under this Article shall in res pect of any one incident be limited, so that the total sum of that amount and the amount of compensation actually paid un der the 1984 Liability Convention for pollu tion damage within the scope of application of this Convention as defined in Article 3 shall not exceed 135 million units of ac count.

(b) Except as otherwise provided in sub-para graph (c), the aggregate amount of com pensation payable by the Fund under this Article for pollution damage resulting from a natural phenomenon of an exceptional, inevitable and irresistible character shall not exceed 135 million units of account.

(c) The maximum amount of compensation re ferred to in sub-paragraphs (a) and (b) shall be 200 million units of account with respect to any incident occurring during any period when there are three Parties to this Convention in respect of which the combined relevant quantity of contributing oil received by persons in the territories of such Parties, during the preceding calen dar year, equalled or exceeded 600 million tons.

(d) Interest accrued on a fund constituted in accordance with Article V, paragraph 3, of the 1984 Liability Convention, if any, shall not be taken into account for the computa tion of the maximum compensation pay able by the Fund under this Article.

(e) The amounts mentioned in this Article shall be converted in national currency on the basis of the value of that currency by reference to the Special Drawing Right on the date of decision of the Assembly of the Fund as to the first date of payment of compensation.

5 Where the amount of the established claims against the Fund exceeds the aggregate amount of compensation pay able under paragraph 4, the amount available shall be dis tributed in such a manner that the proportion between any established claim and the amount of compensation actually recovered by the claimant under this Convention shall be the same for all claimants."

SCHEDULE 5 Section 48

MISCELLANEOUS AMENDMENTS OF MERCHANT SHIPPING ACTS

MERCHANT SHIPPING ACT 1894 (c 60)

1 Omit section 463 (survey of ship alleged to be unseaworthy in proceedings for desertion of seaman).

MERCHANT SHIPPING (OIL POLLUTION) ACT 1971 (c 59)

In section 10(6) (compulsory insurance against liability for pol lution), for " 35,000" substitute "ninety-five thousand dollars".

SCHEDULE 6 Section 57(4)

MINOR AND CONSEQUENTIAL AMENDMENTS

MERCHANT SHIPPING ACT 1894 (c 60)

1 In section 459 (power to detain unsafe ships, and procedure for detention) —

(a) in subsection (1), for the words from "the defective con dition" to "improper loading" substitute "any of the mat ters mentioned in subsection (1A) of this section";

(b) after that subsection insert —

"(1A) The matters referred to in subsection (1) of this section are—

(a) the condition, or the unsuitability for its purpose, of —

(i) the ship or its machinery or equipment, or

(ii) any part of the ship or its ma chinery or equipment;

(b) undermanning;

(d) any other matter relevant to the safety of the ship;

and the reference in that subsection to proceeding to sea shall, in a case where the service for which the ship is intended consists of going on voyages or excursions that do not involve going to sea, be construed as a refer ence to going on such a voyage or excursion."; and

(c) in subsection (5), for "British register being subse quently closed" substitute "subsequently ceasing to be a British ship".

2 In section 462 (application to foreign ships of provisions as to detention), for the words from "by reason of (where first occurring) to "the provisions" substitute "by reason of any of the matters mentioned in section 459(1A) of this Act, the provisions".

3 In section 692 (enforcing detention of ship) at the end add —

"(5) Any reference in this section to proceeding to sea includes a reference to going on a voyage or excursion that does not involve going to sea, and references to sending or tak ing to sea shall be construed accordingly."

SCHEDULE 7

Chapter	Short Title	Extent of Repeal
1894 c 60	Merchant Shipping Act 1894	Section 457 Section 695(2)(a).
1971 c 59	Merchant Shipping (Oil Pollution) Act 1971	In section 10, in subsection (1) the word "persistent", and sub section (4). In section 15(1), the word "persistent".
1974 c443	Merchant Shipping Act 1974	Section 4(10) to (13). Section 5. In section 6, in subsection (4), the words "or 5", and in subsec tion (5)(a) the words "as amended". Section 7(3). Section 8(2).

Bermuda Consolidated Legislation

Merchant Shipping Act 1988