The Malta Maritime Law Association recently met the Minister of Justice, Jonathan Attard in order to discuss a number of proposed changes to the provisions of the Malta Code of Organisation and Civil Procedure regulating shipping matters in Malta.
Original Certificates Onboard Malta flagged Vessels: Some Practical Issues
When ship owners and managers register vessels under the Malta flag, one of the questions which frequently arises is: how will the original flag certificates reach the vessel in time for it to sail immediately upon her delivery and registration with originals onboard? Of course, this issue arises due to the physical impossibility of having original flag certificates, which are issued in Malta by the flag administration, reach the vessel at her delivery port on the very same day she is registered under the flag. This has been resolved by the Malta Ship Registry (the “Registry”) in a very practical manner.
An operational certificate may only be released to a vessel once change of flag surveys and audit verifications are successfully completed and all statutory certificates including the Safety Management Certificate (SMC), International Ship Security Certificate (ISSC) and Maritime Labour Certificate (MLC) are made available by the appointed Classification Society (“Class”). Consequently, in the case of new buildings, the Registry couriers out undated flag certificates, in advance of delivery date, to the attending Class auditor responsible for the release of the Vessel’s SMC, ISSC and MLC. The latter will hold the certificates in escrow until the day of delivery. Once delivery of the vessel takes place and the vessel is registered under the Malta flag, the attending Class surveyor/auditor receives instructions directly from the Registry to date the vessel certificates, upon confirmation that the SMC, iSSC and MLC have been released. The dated vessel certificates are then released by the attending surveyor/auditor to the owner’s representatives or the master of the vessel who can safely sail out and commence the vessel’s operations.
While several ports allow vessels to sail with copies of certificates until originals arrive on board, experience has shown us that a few port authorities around the world still insist on sighting original certificates onboard. This becomes an issue in the cases of a transfer of ownership, a change in management, a change of class or a change in name in relation to which class surveys must be carried out and statutory certificates including SMC, ISSC and MLC released before new vessel certificates may be issued to the vessel. In such cases, the Registry may make arrangements, as in the case of new builds, for undated vessel certificates to be sent in advance of the transaction date, to the attending surveyor who will then date and release the certificates upon receipt of instructions from the Registry.
In other cases, also where no changes as mentioned above are involved however vessel certificates do not arrive in time for a vessel to sail out of a port which requires original certificates, it is also possible for the Registry to scan copies of certificates directly to the Harbour Master of the port where the vessel is lying or alternatively to a nearby Maltese embassy or consulate, following which the copies may be certified as true copies – these are delivered by agents to the vessel which will enable the vessel to sail out of port.
A similar problem may arise at the time of deletion of vessels from the Malta flag. As is the case with most registries, the deletion certificate usually takes a few weeks to be released since original trading vessel certificates must first be returned to the Registry prior to release of the deletion certificate. While this is generally not an issue, in some cases, a confirmation of deletion is required by the incoming registry on the same day to allow re-registration. In such case, the Registry may send a confirmation of deletion directly to the incoming registry confirming that the Malta Registry of the vessel has been closed free from encumbrances. This confirmation however is not to be regarded as an equivalent to a deletion certificate.
Occasionally, a deletion certificate is nonetheless required on the same day as the deletion. As vessels usually continue to operate until the last day and consequently retain original certificates on board until deletion, this creates a practical problem since original certificates must be returned and submitted to the Registry prior to the release of the deletion certificate. In such case, it is possible for the original vessel certificates to be delivered to a Maltese Embassy or Consulate which will then confirm receipt to the Registry. The filing of such original documents is regarded by the Registry as being tantamount to delivery of the original certificates at its own Registry. In fact on such occasions the Registry proceeds with the release of the deletion certificate. The Embassy or Consulate retains the certificates and sends the originals directly to the Registry.
The Registry has always proved to be flexible and responsive to practical issues which arise and the above are just a few examples which demonstrate the sensitivity of the flag administration to the day to day needs of the shipowner all of which have contributed to the popularity of the Malta flag.
by Lara Saguna, Fenech & Fenech Advocates
Source: Lexology
Final Draft Convention on the International Effects of Judicial Sale of Ships agreed at UNCITRAL
Dr Ann Fenech, President of the MMLA, and CMI co-ordinator for the project at UNCITRAL, just returned from New York where she attended the 40th session of UNCITRAL Working Group V1. The meeting was held in a hybrid fashion between 7 – 11 February. Dr Fenech is pleased to report that the Working Group has completed its work by agreeing a final Draft of the Convention on the International Effects of Judicial Sale of Ships.
Working Group V1 has been considering and deliberating this draft convention presented to UNICTRAL in the form of the Beijing Draft since May 2018, starting off with the Malta Colloquium organised jointly by the MMLA and CMI. The Draft will now be presented to the Commission for its deliberation and approval in June and if approved the Convention will be presented to the General Assembly of the UN which will be followed by a signing ceremony of the Convention which could be held in Beijing in the first quarter of 2023.
Malta introduces new Passenger Yacht Code
In response to the needs and realities of the yachting industry and heeding the advice of numerous stakeholders in the business, the Merchant Shipping Directorate has introduced the Passenger Yacht Code (PYC). This code, which entered into force on 25 May 2021, lays out a pragmatic approach to an increased demand for larger yacht operators that wish to carry more than 12 passengers, while simultaneously ensuring that the highest safety standards, which are more suited to these kinds of vessels, are applied and maintained.
Applicability
The scope of the PYC’s applicability is passenger yachts that:
• carry more than 12 and up to 36 passengers, and no more than 200 persons overall (the master, crew or other persons employed on board are excluded from the definition of “passenger”);
• do not carry cargo; and
• are engaged on international voyages.
The PYC exclusively caters for the yachting sector and clearly lists the scenarios that fall outside scope. Pleasure yachts not employed for commercial use are excluded from its scope; however, private and pleasure yachts that carry at least 13 guests are encouraged to voluntarily comply, as far as is practicable, with the standards laid out therein.
Purpose
The PYC was developed with an awareness of the challenges involved in applying certain international convention standards that were originally intended for merchant vessels, to modern passenger yachts or superyachts. Prior to its introduction, yachts carrying more than 12 passengers, and that fell outside of the Malta Commercial Yacht Code’s scope (which caters for yachts engaged in commercial operations that do not carry more than 12 passengers), had to satisfy similar requirements to those applicable to passenger ships. These requirements were often regarded as being too disproportionate and onerous when considering a passenger yacht’s design and general operations. The PYC also aims to better safeguard the protection of life and property at sea, and it strives to continue to promote the prevention of marine pollution from yachts.
Key provisions and acceptable equivalences
The PYC is divided into a number of sections, each containing provisions that address aspects of a passenger yacht’s technical specifics and overall operations, including parts on:
• construction and stability;
• machinery and equipment;
• safety of navigation;
• fire protection, detection and extinction; and
• manning and crew certification.
The PYC outlines several dedicated equivalences to international convention requirements, including those emanating from provisions in the International Load Line Convention, as amended in relation to plimsol markings, sill or coaming heights and glazing. There are also numerous equivalences to requirements in the International Convention for the Safety of Life at Sea (SOLAS), as amended – requirements which, in view of the passenger yachts’ technical specifics, design, size, and operational pattern, may be considered impracticable.
In parallel, and without compromising overall safety or weakening standards, the PYC provides for requirements enhanced beyond several of the SOLAS provisions, as well as additional equipment and requirements that are deemed appropriate and more suitable for these kinds of vessels. For instance, the PYC provides for enhanced safety and survivability requirements in lieu of the carriage of lifeboats, subject to conditions laid out in therein.
As far as the Merchant Shipping (Maritime Labour Convention) Rules 2013 (MLC) are concerned, the PYC dedicates a section to certain acceptable equivalences relating to crew accommodation, stores and recreational facilities that passenger yachts of less than 1,250 gross tonnes may opt to comply with in lieu of the provisions laid out in part IV of the MLC, “Accommodation and Stores”. The PYC also lays down additional requirements in a separate section for personnel protection.
The PYC includes a section on marine pollution prevention and it reiterates the requirements that all PYC compliant vessels are to meet under:
• the International Convention for the Prevention of Pollution from Ships (MARPOL), as amended;
• the International Antifouling System Convention; and
• the Ballast Water Management Convention.
In this regard, passenger yachts will be surveyed and certified in line with the relevant international conventions, and they must carry the relative MARPOL manuals, plans and records (as applicable) on board.
The applicable requirements for surveys, audits and certifications are also covered. Passenger yachts will be classed by a recognised organisation and surveyed, certified, audited and issued with the class and statutory certificates applicable to passenger vessels. Additionally, the recognised organisation will issue a certificate confirming compliance with the PYC.
Another notable addition in the PYC is the set of guidelines for the static chartering of passenger yachts, whereby a passenger yacht that is berthed or anchored at sea is allowed to carry more than 36 passengers. An application must be filed with the Merchant Shipping Directorate – Yachting Section and, if successful, the passenger yacht is issued with a statement from Transport Malta that allows static charters to be held on board. Local port authorities must be kept informed when such a static charter is planned, and the conditions laid out in the guidelines must be upheld. As a growing market trend, this is a welcome addition for passenger yachts flying the Malta flag.
Comment
With the PYC, the Merchant Shipping Directorate has taken a significant step in attracting more yachting tonnage to its fleet and to maintain its status as a quality flag of confidence that is respectful of the demands of this fast-evolving industry. The Merchant Shipping Directorate is committed to the growth of this sector, as has also been seen more recently with the introduction of the Commercial Yacht – Pleasure Yacht Changeover Guidelines on 2 September 2021. These guidelines aim to assist all stakeholders by clarifying the salient features and procedural aspects of the changeover in yacht status from pleasure to commercial and vice-versa under the Malta flag – an option often availed by Malta-flagged yacht owners.
by Stephanie Farrugia, Fenech & Fenech
Source: Lexology
Marine environment: pollution, preparedness, response and cooperation
The ‘International Convention on Oil Pollution Preparedness, Response and Co-Operation 1990 (OPRC 1990)’ and the ‘Protocol on Preparedness, Response and Co-Operation to Pollution Incidents by Hazardous and Noxious Substances (OPRC-HNS 2000), are two international legal instruments drawn by the International Maritime Organisation (IMO). Malta acceded to both in 2003.
Together, these two legal instruments create a regulatory framework on pollution incidents caused by oil (meaning petroleum in any form) or by hazardous and noxious substances other than oil (such as chemicals), likely to cause detrimental affects to human health and marine life once released into the marine environment and which require an immediate response.
The OPRC Convention and the OPRC-HNS Protocol address the handling of marine pollution incidents on a national and international level.
At an international level, State parties may request assistance from any other State party when encountering a major pollution incident. Additionally, State parties are encouraged to establish multilateral or bilateral agreements for pollution preparedness and response and to cooperate in research and development programmes including on combatting pollution incidents.
On a national scale, both the OPRC Convention and the OPRC-HNS Protocol oblige State parties to set up a national system for responding to oil and HNS pollution incidents, including through the appointment of a designated national authority and the drawing up of a national contingency plan, supported by response equipment, communication channels, regular training and exercises.
In this respect, the ‘Oil and Hazardous and Noxious Substances Pollution Preparedness, Response and Co-Operation Regulations’ were recently enacted in Malta through Legal Notice 450 of 2020 (the “Regulations”). The Regulations came into force on 1st January 2021. Transport Malta (“TM”) issued Port Notice No.16 of 2020, which previously notified relevant persons of the eventual application of the Regulations and invited all marine terminals and facilities to evaluate their level of preparedness and carry out a risk assessment to update or draw up new plans as needed.
The Regulations apply, in varying degrees, to the Authority for Transport in Malta, to operators of marine terminals (briefly, places where dangerous cargoes, bunkers and substances are loaded, discharged or handled on board ships) and operators of marine facilities (briefly, places other than a marine terminal where ships obtain services such as tank cleaning and slop/residue removal) based in Malta, to yacht marinas based in Malta, and to ships, including offshore units, whilst in the territorial waters of Malta.
Often, a marine pollution incident extends beyond an operator’s terminal or facility, necessitating a coordinated effort
TM is the ‘National Competent Authority’ responsible to create, implement, maintain, update, and enforce the ‘National Marine Pollution Contingency Plan’ (NMPCP).
The NMPCP is awarded the force of law by the Regulations and is therefore to be considered as part of and enforceable as the laws of Malta.
In its role as ‘National Competent Authority’, TM enjoys several powers and functions. These include approving pollution emergency plans of marine terminals and facilities, assisting such operators in the development of the said plans, monitoring their implementation as well as ordering any changes thereto.
Additionally, TM shall have the power to organise periodical national training and drills in pollution emergency and response with the participation of personnel from local operators.
Operators of marine terminals, facilities and yacht marinas must have a separate marine pollution response emergency plan, subject to approval by TM. Existing operators are to submit theirs by December 31, 2021. Pollution emergency plans must comply with the NMPCP and should be constantly updated to address any changes in the activities or the risks of the operator.
In any event, a pollution emergency plan is to be revised every five years while operators are obliged to inform TM and submit a new plan or amendments to the existing plan within three months from the occurrence of any major changes that affect or could affect the material validity or effectiveness of the emergency pollution plan in question.
Operators are obliged to identify an individual within their organization who shall be responsible for the operator’s pollution emergency plan and who shall be the point of contact between the operator and TM.
Furthermore, the keeping of minimum level first-aid pollution response equipment, training of personnel and the carrying out of drills is expected of all operators.
Often, a marine pollution incident extends beyond an operator’s terminal or facility, necessitating a coordinated effort between operator/s and TM. On this note, the Regulations allow joint pollution emergency plans within the same port area.
Where ports or areas are under the administration and management of TM, pollution emergency plans are to be prepared by TM by 31st December 2021.
Operators of marine terminals, facilities, and yacht marinas as well as masters of vessels navigating within Maltese waters are saddled with the obligation of reporting any marine pollution incident to TM. The duty to report also extends to masters of vessels located within Malta’s contiguous zone – briefly, this is an area extending to 24 nautical miles from Malta’s coasts over which Malta may exercise certain powers, as permitted under international law, including as provided under the United Nations Law of the Sea Convention (1982). This includes the power to exercise the control necessary to prevent any contravention of any law relating to pollution. Extending the right to report marine pollution incidents to vessels within Malta’s contiguous zone acts as an additional safeguard against pollution incidents by creating an added ‘buffer zone’ before any pollution hits Malta’s coasts. The Regulations do not exclude the applicability of any other obligations concerning pollution or on any related matters to the persons concerned. Therefore, for instance, operators of marine terminals and marine facilities are still obliged to adhere to the relevant provisions contained in the Dangerous Cargo Ships, Marine Terminals and Facilities and Bunkering Regulations (Legal Notice 1 of 1996, as amended). In fact, the Regulations specify that the pollution emergency plans of marine terminals and marine facilities are to include the applicable obligations under the ‘Dangerous Cargo Ships, Marine Terminals and Facilities and Bunkering Regulations’. With respect to ships, the ‘Safety Management System’ adopted onboard ships in accordance with the ISM Code remains relevant in so far as pollution prevention in ship operations are concerned.
Failure to comply with the Regulations is an offence and non-compliant operators are subject to a fine upon conviction. Additionally, TM may impose administrative fines.
Earlier this year, TM organised a webinar together with the Malta Maritime Forum to introduce the Regulations. It is understood that TM is presently updating the NMPCP and its port plans. Guidance on the implementation of the Regulations is expected to be published.
by Jan Rossi and Ilias Theocharis of Ganado Advocates
Source: Times of Malta, photo: Shutterstock