S.I. No. 81/2004 - European Communities (Vessel Traffic Monitoring and Information System) Regulations 2004

I, DERMOT AHERN, Minister for Communications, Marine and Natural Resources in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive No. 2002/59/EC of the European Parliament and of the Council of 27 June 2002¹ hereby make the following regulations:

Citation.

1. These Regulations may be cited as the European Communities (Vessel Traffic Monitoring and Information System) Regulations 2004.

Application of Regulations.

2. (1) These Regulations apply to ships of 300 gross tonnage and upwards, unless stated otherwise.

(2) These Regulations shall not apply to:

(a) warships, naval auxiliaries and other ships owned or operated by the State and used for non-commercial public service;

(b) fishing vessels, traditional ships and recreational craft with a length of less than 45 metres;

(c) bunkers below 5,000 tons, ships’ stores and equipment for use on board ships.

Interpretation.

3. (1) In these Regulations, unless the context otherwise requires—

“authorised officer” means a person duly appointed under Regulation 5;

“Directive” means Directive No. 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC;

“harbour master” means—

(a) a person appointed by a harbour authority to be a harbour master, and

(b) any officer or servant of a harbour authority duly authorised to discharge the functions of harbour master;

“Irish Coast Guard” means that division of the Department of Communications, Marine and Natural Resources performing the functions of the Irish Coast Guard;

“master”, in relation to a ship, means the person (excluding, where appropriate, a pilot) having, for the time being, the command or charge of the ship;

“Member State” means a Member State of the European Communities;

“Minister” means the Minister for Communications, Marine and Natural Resources;

“territoral waters” means—

(a) the territorial seas for the purposes of the Maritime Jurisdiction Acts 1959 to 1988, and

(b) the internal waters within the meaning of section 5 of the Maritime Jurisdiction Act 1959 (No. 22 of 1959);

and

“VTS” means a “vessel traffic service (VTS)” within the meaning of Article 3 of the Directive.

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive.

(3) In these Regulations-

(a) a reference to a Regulation or a Schedule is a reference to a Regulation of, or a Schedule to, these Regulations, unless it is indicated that reference to some other Regulations is intended, and

(b) a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended.

Competent authorities.

4. (1) For the purposes of these Regulations and the Directive—

(a) the Minister is designated as the national competent authority in the Stae;

(b) each of the harbour masters, for the time being of the harbour authority, specified in column (3) of the Schedule is, as respects the port specified in column (2) of the Schedule, at that reference number designated as a local competent authority;

(c) each coastal station in the State, or its territorial waters, operated by the Irish Coast Guard, is designated as a coastal station.

Authorised officers.

5. (1) A function conferred on a competent authority by these Regulations may be performed by an authorised officer.

(2) The national competent authority may appoint in writing such and so many persons as it thinks fit to be authorised officers for the performance of their functions under these Regulations.

(3) A local competent authority may appoint in writing such and so many persons as it thinks fit to be authorised officers for the performance of their functions under these Regulations.

(4) An authorised officer appointed under this Regulation shall be furnished with a warrant of his or her appointment and shall, on request by any person affected during the exercise of any function under these Regulations, produce the warrant to that person for inspection.

(5) An authorised officer may, at any time for the purpose of verifying compliance, with these Regulations and the Directive, by any ship to which these Regulations and the directive apply, do one or more of the following:

(a) inspect any ship in port, or otherwise within territorial waters, for the purpose of ascertaining whether provisions of these Regulations or the Directive are being complied with;

(b) stop and board any ship in port, or otherwise within territorial waters, and carry out such examination and inspection of the entire ship as he or she thinks fit;

(c) inspect and take copies, of, or take extracts from, any such books, documents or records (including in the case of information in non-legible form a copy of or extract from such information in permanent legible form);

(d) cause to be recorded by any means any part of, or thing on, the ship;

(e) require a person on the ship to provide information regarding the ship's systems or data (that are required to be maintained pursuant to these Regulations and the Directive);

(f) there, or at any other place, carry out or have carried out such examinations, inspections or tests of the equipment or other device (that are required to be maintained pursuant to these Regulations and the Directive) found on the ship and, if the officer thinks so fit, remove or have removed any such equipment or other device and retain it for a reasonable period to facilitate such examinations, testing or inspection;

(g) secure for later inspection the ship or part of it.

(6) A person who—

(a) without reasonable excuse fails to comply with any request or requirement made by an authorised officer under this Regulation,

(b) obstructs or interferes with an authorised officer in the performance of his or her functions under this Regulation, or

(c) gives an authorised officer false or misleading information,

is guilty of an offence.

Notification prior to entry into ports in the State.

6. (1) The operator, agent or master of a ship bound for a port in the State shall notify the information in paragraph 1 of Annex I to the Directive to the local competent authority concerned:

(a) at least 24 hours in advance, or

(b) at the latest, at the time the ship leaves the previous port, if the voyage time is less than 24 hours, or

(c) if the port of call is not known or it is changed during the voyage, as soon as this information is available.

(2) Ships coming from a port outside the Community and bound for a port in the State carrying dangerous or polluting goods, shall comply with the notification obligations specified in Regulation 12.

(3) The operator, agent or master of a ship who fails to comply with paragraph (1) is guilty of an offence.

Use of automatic identification systems.

7. (1) The operator, agent or master of a ship to which these Regulations and the Directive apply calling at a port in the State shall, in accordance with the timetable set out in Annex II - I to the Directive, ensure that the ship is fitted with an automatic identification system which meets the performance standards drawn up by the IMO.

(2) The operator, agent or master of a ship fitted with an automatic identification system, shall maintain it in operation at all times except where international agreements, rules or standards provide for the protection of navigational information.

(3) The operator, agent or master of a ship who fails to comply with paragraph (1) or (2) is guilty of an offence.

Use of ship's routing systems.

8. (1) The operator, agent or master of a ship entering the area of a mandatory ships’ routing system adopted by the IMO according to Regulation 10 Chapter V of the SOLAS Convention and operated by one or more States, of which at least one is a Member State, shall use the system in accordance with the relevant guidelines and criteria developed by the IMO.

(2) The national competent authority shall monitor compliance with the obligations specified in paragraph (1).

(3) The operator, agent or master of a ship who fails to comply with paragraph (1) is guilty of an offence.

Monitoring of compliance of ships with vessel traffic services.

9. (1) All ships entering the area of applicability of a VTS operated within the territorial waters shall participate in, and comply with, the rules of that VTS.

(2) All ships flying the flag of the State or ships bound for a port in the State and entering the area of applicability of such a VTS outside the territorial waters and based on the guidelines developed by the IMO, shall comply with the rules of that VTS.

(3) All ships flying the flag of a third State and not bound for a port in the State entering a VTS area outside the territorial waters shall follow the rules of that VTS wherever possible and the national competent authority shall report to the flag State concerned any apparent serious breach of those rules in such a VTS area.

(4) The national competent authority or, where appropriate, the appropriate local competent authority, shall monitor compliance with the obligations specified in paragraphs (1) to (3).

(5) The operator, agent or master of a ship which fails to comply with paragraph (1) or (2) is guilty of an offence.

Voyage data recorder systems.

10. (1) The operator, agent or master of a ship calling at a port in the State shall ensure that the ship is fitted with a voyage data recorder (VDR) system in accordance with the rules laid down in Annex II - II to the Directive.

(2) The operator, agent or master of a ship shall make available data which have been collected from a VDR system to the national competent authority in the event of an investigation following a casualty occurring in waters under the jurisdiction of the State.

(3) The national competent authority shall monitor compliance with the obligations specified in paragraphs (1) and (2).

(4) The operator, agent or master of a ship who fails to comply with paragraph (1) or (2) is guilty of an offence.

Obligations on the shipper.

11. (1) A person shall not offer for carriage or take on board any ship, irrespective of its size, in a port in the State any dangerous or polluting goods unless a declaration has been delivered to the master or operator of the ship containing the information listed in paragraph 2 of Annex I to the Directive.

(2) The shipper of the goods referred to in paragraph (1) shall deliver to the master or operator of the ship concerned the declaration referred to in paragraph (1) and shall ensure that the shipment offered for carriage is the one declared in compliance with paragraph (1).

(3) A person who fails to comply with paragraph (1) or (2) is guilty of an offence.

Notification of dangerous or polluting goods carried on board.

12. (1) The operator, agent or master of a ship, irrespective of its size, carrying dangerous or polluting goods and leaving a port of the State shall, at the latest at the moment of departure, notify the information indicated in paragraph 3 of Annex I to the Directive to the appropriate local competent authority which shall ensure that the national competent authority is also notified.

(2) The operator, agent or master of a ship, irrespective of its size, carrying dangerous or polluting goods coming from a port located outside the Community and bound for a port in the State or an anchorage located in the territorial waters shall, at the latest upon departure from the loading port or as soon as the port of destination or the location of the anchorage is known (if this information is unavailable on departure from the loading port) notify the information indicated in paragraph 3 of Annex I to the Directive to the national competent authority of the State in which the first port of destination or anchorage is located.

(3) The information referred to in paragraphs (1) and (2) shall be transferred electronically whenever practicable. The electronic message exchange shall use the syntax and procedures set out in Annex III to the Directive.

(4) The operator, agent or master of a ship to whom paragraph (1) applies, who fails to notify the appropriate local competent authority in the State, in accordance with paragraph (1), is guilty of an offence.

(5) The operator, agent or master of a ship to whom paragraph (2) applies, who fails to notify the appropriate national competent authority, in accordance with paragraph (2), is guilty of an offence.

Exchange of data between Member States.

13. The national competent authority shall co-operate with the national competent authorities of other Member States to ensure the interconnection and interoperability of the national system used to manage the information indicated in Annex 1 to the Directive.

Exemptions.

14. (1) The national competent authority may exempt scheduled services performed between ports located in the State from the requirements laid down in Regulation 12, where they comply with the following conditions:

(a) the company operating the scheduled services referred to above keeps and updates a list of the ships concerned and sends it to the national competent authority,

(b) for each voyage performed, the information listed in paragraph 3 of Annex I to the Directive is kept available for the national competent authority upon request. The company must establish an internal system to ensure that, upon request 24 hours a day and without delay, the said information can be sent to the national competent authority electronically, in accordance with Regulation 12(3).

(2) When an international scheduled service is operated involving the State, and at least one other Member State, the national competent authority may, at the request of the national competent authority of the other Member State, grant an exemption to that service, where such service complies with the conditions specified in paragraph (1).

(3) The national competent authority shall periodically check that the conditions laid down in paragraph (1) are being met. Where at least one of these conditions is no longer being met, the national competent authority shall immediately withdraw the privilege of the exemption from the company concerned.

(4) The national competent authority shall communicate to the Commission a list of companies and ships granted exemption under this Regulation, as well as any updating of that list.

Transmission of information concerning certain ships.

15. (1) The national competent authority shall compile and maintain a list of ships meeting the criteria set out in subparagraphs (a), (b) and (c) and these ships shall be considered to the ships posing a potential hazard to shipping or a threat to maritime safety, the safety of individuals or the environment:

(a) ships which, in the course of their voyage:

(i) have been involved in incidents or accidents at sea as referred to in Regulation 16; or

(ii) have failed to comply with the notification and reporting requirements imposed by these Regulations and the Directive;

or

(iii) have failed to comply with the applicable rules in ships’ routing systems and VTS placed under the responsibility of a Member State;

(b) Ships in respect of which there is proof or presumptive evidence of deliberate discharges of oil or other infringements of the MARPOL Convention in waters under the jurisdiction of a Member State;

(c) Ships which have been refused access to ports of the Member States or which have been the subject of a report or notification by a Member State in accordance with Annex I - 1 to Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ships safety, pollution prevention and shipboard living and working conditions (port State control)² .

(2) The national competent authority holding relevant information on the ships referred to in paragraph (1) shall communicate it to the national competent authorities in the other Member States located along the planned route of the ship.

(3) The national competent authority shall ensure that the information received pursuant to paragraph (2) is transmitted to the relevant local competent authorities or any other authority designated by it. The national competent authority shall carry out any appropriate inspection or verification in ports within the State either on its own initiative or at the request of another Member State, without prejudice to any port state control obligation.

The national competent authority shall inform all Member States concerned of the results of the action it takes.

Reporting of incidents and accidents at sea.

16. (1) The operator, agent or master of a ship sailing within the search and rescue region or exclusive economic zone or equivalent of the State shall immediately report to the coastal station responsible for that geographical area:

(a) any incident or accident affecting the safety of the ship, such as collision, running around, damage, malfunction or breakdown, flooding or shifting of cargo, any defects in the hull or structural failure;

(b) any incident or accident which compromises shipping safety, such as failures likely to affect the ship's manoeuvarability or seaworthiness, or any defects affecting the propulsion system or steering gear, the electrical generating system, navigation equipment or communications equipment;

(c) any situation liable to lead to pollution of the waters or shore of the State or another Member State, such as the discharge or threat of discharge of polluting products into the sea;

(d) any slick of polluting materials and containers or packages seen drifting at sea.

which report shall include the information specified in paragraph (2).

(2) The report message sent pursuant to paragraph (1) shall include the following information:

(a) the ship's identity,

(b) the ship's position,

(c) the ship's port of departure,

(d) the ship's port of destination,

(e) the address from which information may be obtained on the dangerous and polluting goods carried on board,

(f) the number of persons aboard the ship,

(g) details of the incident, and

(h) any relevant information referred to in IMO Resolution A.851(20).

(3) The duties and obligations imposed by paragraph (1) are without prejudice to international law.

(4) The national competent authority shall monitor compliance with paragraph (1).

(5) The operator, agent or master of a ship who fails to comply with paragraph (1) is guilty of an offence.

Measures in the event of exceptionally bad weather.

17. (1) Where the national competent authority or the local competent authorities consider, in the event of exceptionally bad weather or sea conditions, that there is a serious threat of pollution of the shipping areas or coastal zones of the State, or of the shipping areas or coastal zones of other States, or that the safety of human life is in danger:

(a) they should, where possible, fully inform the master of a ship which is in the port area concerned, and intends to enter or leave that port, of the sea state and weather conditions and, when relevant and possible, of the danger they may present to his or her ship, the cargo, the crew and the passengers;

(b) they may take, without prejudice to the duty of assistance to ships in distress and in accordance with Article 20 of the Directive, any other appropriate measures, which may include a recommendation or a prohibition either for a particular ship or for ships in general to enter or leave the port in the areas affected, until it has been established that there is no longer a risk to human life or to the environment;

(c) they shall take appropriate measures to limit as much as possible or, if necessary, prohibit the bunkering of ships in their jurisdiction.

(2) The master shall inform the company of the appropriate measures or recommendations referred to in paragraph (1). These do not however prejudice the decision of the master on the basis of his or her professional judgement corresponding to the SOLAS Convention. Where the decision taken by the master of the ship is not in accordance with the measures referred to in paragraph (1), he or she shall inform the appropriate competent authorities of the reasons for his or her decision.

(3) The appropriate measures or recommendations, referred to in paragraph (1), shall be based upon a sea state and weather forecast provided by a qualified meteorological information service recognised by the State.

Measures relating to incidents or accidents at sea.

18. (1) The operator, the master of the ship and the owner of the dangerous or polluting goods carried on board shall, in accordance with national and international law, cooperate fully with the national competent authority, at the request of that authority with a view to minimising the consequences of an incident or accident at sea.

(2) The master of a ship to which the provisions of the ISM Code are applicable shall, in accordance with that Code, inform the company of any incident or accident, as referred to in Regulation 16(1), which occurs at sea and as soon as it has been informed of such a situation, the company shall contact the appropriate coastal station and place itself at its disposal as necessary.

Information of the parties concerned.

19. The national competent authority holding information notified in accordance with Regulations 12 and 16 shall provide such information at any time upon request for safety reasons by the national competent authority of another Member State.

Monitoring implementation of these Regulations and the Directive.

20. (1) The national competent authority shall carry out regular inspections and any other action required to check the functioning of the shore-based telematic systems set up to meet the requirements of these Regulations and the Directive, and in particular their capacity to meet the requirements of receiving or sending without delay, 24 hours a day, information notified pursuant to Regulations 12 and 14.

(2) The national competent authority shall, without delay, inform the flag State and any other State concerned of measures taken in respect of ships not flying their flag pursuant to Regulations 15 and 18.

(3) Where the national competent authority finds, on the occasion of an incident or accident at sea referred to in Regulation 18, that the company has not been able to establish and maintain a link with the ship or with the coastal stations concerned, it shall so inform the State which issued the ISM document of compliance and associated safety management certificate, or on whose behalf it was issued.

(4) Where the seriousness of the failure shows the existence of a major incidence of non-compliance in the functioning of the safety management system of a company established in a Member State, the Member State which issued the document of compliance or safety management certificate to the ship shall immediately take the necessary measures against the company concerned with a view to having the document of compliance and the associated safety management certificate withdrawn.

Offences.

21. (1) A person who is guilty of an offence under these Regulations, is liable on summary conviction to a fine not exceeding €3,000, or to a term of imprisonment not exceeding 6 months, or both.

(2) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate, or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(3) An offence under these Regulations may be prosecuted by the Minister.

Revocation.

22. The European Communities (Minimum Requirements for Vessels Carrying Dangerous or Polluting Goods) Regulations 1995 ( S.I. No. 229 of 1995 ) are revoked.

SCHEDULE

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to establish a vessel traffic monitoring and information system with a view to enhancing the safety and efficiency of maritime traffic, improving the response of the authorities to incidents, accidents or potentially dangerous situations at sea, including search and rescue operations, and contributing to a better prevention and detection of pollution by ships.

¹ OJ No. L208, 5.8.2002, p.10.

² OJ L157, 7.7.1995, p.1 Directive as last amended by Commission Directive 1999/97/EC (OJ L331, 23.12.1999, p. 67).