Joint Committee on Statutory Instruments Twenty-Third Report


Memorandum by the Department of the Environment, Transport and the Regions

REGULATIONS 2000 (S.I. 2000/1334)

  1. The Committee has requested the Department to submit a Memorandum on the following points—

    (1)New regulation 2A(1) (inserted by regulation 3) provides that, except in "special circumstances" as determined by the Agency, the certificate in question is to remain valid until its expiry. Explain the sort of circumstances envisaged by this exception, and what means the holder of the certificate has of knowing in advance the sort of circumstances that are likely to attract the exception. Corresponding questions in relation to new regulations 13(3) (inserted by regulation 6) and 15(5) (inserted by regulation 7).

    (2)New regulation 13(3) (inserted by regulation 6) provides that, "except in special circumstances" as determined by the Agency, the new certificate shall be issued for a period of validity not exceeding the specified period from the date of expiry of the existing certificate. Explain whether the phrase quoted above qualifies - (a) the issue of the new certificate, so that it need not be issued in those special circumstances, or (b) the period of validity of the new certificate, so that it may be issued for a longer period than that specified.

Point (1)

  2. In relation to new regulation 2A(1), an illustration of what is intended to be covered by the expression "special circumstances" is a case where a ship issued with a certificate before 8th June 2000 undergoes a major refit or reconstruction after that date (for instance as a result of an accident which occurred close to the date of expiry of the old certificate). In such a case, it may be appropriate for the old certificate to be treated as having expired, and for the new survey and certification regime to be applied, from an earlier date than would otherwise be the case. An illustration of where it may be appropriate to use the discretion given in regulation 2A(1) to extend the validity of an existing certificate is the case where the power to issue a new certificate under regulation 13(1A) of the regulations as previously in force might otherwise have applied.

  3. In relation to new regulation 13(3), an illustration of the potential use of the expression "special circumstances" is where it takes several months to carry out repairs and do the renewal survey, during which time the ship is laid up, and the delay is unavoidable and beyond the owner's control. In such a case the new certificate could be dated from the date of completion of the renewal survey rather than the date of expiry of the previous certificate. Other circumstances are where a ship undergoes a major refit or reconstruction which could last several months, or where a ship is laid up out of commission for a number of months or years and requires a renewal survey on re-commissioning.

  4. The special circumstances mentioned in new regulation 15(5) may for instance apply where a ship's certificate has expired but has been extended in order to allow the ship to voyage to a port where it can be surveyed. There may be circumstances in which it would not be appropriate for the new certificate to expire at the date at which it would normally have done so: if a ship needs to be refitted over a considerable period, the application of regulation 13(2) or (3) without discretion could penalise the shipowner by not enabling account to be taken, when issuing the new certificate, of the time taken in carrying out the refit.

  5. The expression "special circumstances" derives from the Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974, which the Merchant Shipping (Survey and Certification) (Amendment) Regulations 2000 ("the 2000 Regulations") are designed to implement. The expression is not defined in that Protocol, and the Department was concerned that any attempt at definition would risk being an inaccurate implementation of the Protocol's provisions. The Department also considers that in practice there is not likely to be any practical difficulty caused by the lack of a definition in the 2000 Regulations. It therefore concluded that it would be preferable not to include a definition. The Maritime and Coastguard Agency would discuss with shipowners any case to which special circumstances may apply.

Point (2)

  6. It is intended that the discretion given to the Maritime and Coastguard Agency by new regulation 13(3) may be used to enable the period of validity of the new certificate to start from the date of the renewal survey rather than from the date of expiry of the previous certificate. It is considered that the obligations placed on the United Kingdom by its accession to the Protocol of 1988 would prevent it from exercising discretion under regulation 13(3) as to the issue of a certificate or the period of validity of a certificate.

20th June 2000

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