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Final Draft Convention on the International Effects of Judicial Sale of Ships agreed at UNCITRAL

February 28, 2022 Leave a Comment

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 40^th 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

November 15, 2021 Leave a Comment

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

Commercial Yacht – Pleasure Yacht Changeover Guidelines – 2 September 2021

September 6, 2021 Leave a Comment

On the 2nd of September 2021 the Merchant Shipping Directorate of Transport Malta issued the “Commercial Yacht – Pleasure Yacht Changeover Guidelines” (the Guidelines). The Guidelines serve both to lay down certain important considerations with respect to the change of registration of a Malta flag yacht from pleasure to a commercial (and vice versa) and to set out the procedural steps to be followed when yacht owners intend to carry out this change.

While the change in status of Malta flagged yachts has to date been readily accepted and processed by the Malta Ship Registry, the Guidelines now provide clear guidance on the steps to be followed in achieving the changes, in line with the Malta Commercial Yacht Code. The Guidelines clarify that the Merchant Shipping Directorate at Transport Malta imposes no limits on the number of changes made to the registration status of a Malta flagged yacht. The Guidelines further confirm that there is no limit on the duration of the change of registration, thereby offering yacht owners a considerable degree of flexibility with respect to changing their yacht’s registration.

Whilst this degree of flexibility is offered to the yacht owners, the Guidelines recommend that the same survey and certification regime as required for commercial yachts is retained when changing from a commercial to a pleasure registration. This is intended to facilitate a change back to commercial status. Additionally, the Guidelines specify that an undertaking to be signed by the owner or the manager of the yacht attesting that they will return the current certificate of registry of the yacht is to be filed immediately together with the request to change registration of the yacht.

The Guidelines set out that in the event of multiple changeovers during a single year the fees due to Transport Malta for a change from a pleasure to a commercial registration of the yacht shall be paid only once during the said year and not with each changeover.

The Guidelines are a welcome development since they provide yacht owners, managers and representatives clarity on the salient considerations for yacht registration changeovers and the procedural aspects linked to changeovers under the Maltese flag.

The Guidelines including the procedural steps for the changeover process may be found here.

by Matthew Cassar, Fenech & Fenech Advocates

Source: Lexology

The new Malta Passenger Yacht Code

May 31, 2021 Leave a Comment

On the 24^th May 2021 the Merchant Shipping Directorate of Transport Malta published Merchant Shipping Notice 171 notifying the industry that the Malta Passenger Yacht Code (PYC) will enter into force on the 25^th May 2021. The code was drawn up following consultation with industry stakeholders.

Prior to the entry into force of the PYC, commercial yachts registered under the Malta flag and carrying more than 12 passengers were required to satisfy requirements similar to those for passenger ships since they fall outside the scope of the Malta Commercial Yacht Code. Due to the increasing size of commercial yachts and the onerous requirements applicable to passengers ships, the Merchant Shipping Directorate recognised the need to develop a code which specifically caters for larger commercial yachts carrying more than 12 passengers. The PYC caters for a number of equivalencies specifically designed for passenger yachts which carry more than 12 passengers and up to 36 passengers, do not carry more than 200 persons, do not carry cargo and are engaged on international voyages.

This is a welcome development since it addresses technical issues and concerns faced by whoever wishes to register larger commercial yachts under the Malta flag.

The PYC may be found here: https://www.transport.gov.mt/Passenger-Yacht-Code-PYC.pdf-f6340

By Lara Saguna Axiaq, Fenech & Fenech Advocates

Source: Lexology

Marine environment: pollution, preparedness, response and cooperation

April 25, 2021 Leave a Comment

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

Member of the Comité Maritime International

Final Draft Convention on the International Effects of Judicial Sale of Ships agreed at UNCITRAL

Malta introduces new Passenger Yacht Code

Commercial Yacht – Pleasure Yacht Changeover Guidelines – 2 September 2021

The new Malta Passenger Yacht Code

Marine environment: pollution, preparedness, response and cooperation

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