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The Sea Pollution Act 1991

The release of a detained ship

 Section 24(3) of the Sea Pollution Act provides that any ship detained pursuant to s 22(2) or s 24(1) must be released if:

(a) The inspector or the harbour-master is reasonably satisfied that the ship no longer presents a serious threat to living marine resources or has ceased to be a cause of pollution; or

(b) The inspector is of the opinion that the ship can put to sea or leave the harbour for the purpose of proceeding to the nearest repair yard without presenting an undue threat of damage to flora or fauna or to living marine resources, and

• The master of the ship has undertaken to have the defect in the ship, or its equipment, whereby the ship is a cause of pollution, remedied, and

• The owner of the ship has put forward security which is satisfactory for the payment of the cost of remedying any pollution damage which may be caused by the ship once it is on its voyage to the nearest repair yard 8.4.35 Offences relating to a ship detained under s 24 of the Sea

Pollution Act

According to s 24(4) of the Sea Pollution Act, if a ship which has been detained under s 24 leaves or attempts to leave any harbour or other places otherwise than in accordance with s 24, the owner and the master of the ship shall each be guilty of an offence and the ship, wherever it may be, may be detained, or further detained, by an inspector or by a harbour master in his harbour.

The ship must not be unduly detained

Section 24(5) of the Sea Pollution Act provides that an inspector or a harbourmaster who detains a ship must not unduly detain or delay it.

Powers of the Minister to prevent, mitigate or eliminate pollution

Section 26 of the Sea Pollution Act deals with the powers of the Minister to prevent, mitigate or eliminate pollution. Section 26(1) provides that the Minister or any person authorised by him may for the purpose of preventing, mitigating or eliminating danger from pollution or threat of pollution by oil, or any substance other than oil (as defined in s 26(10) of the Sea Pollution Act) following on a maritime casualty or acts related to such a casualty, give directions to the owner or master of the ship or any person who is, or who in the reasonable opinion of the Minister or any person authorised by him, is in charge of the ship, or any salvor who is in possession of the vessel and is in charge of a salvage operation. Directions may also be given to such other person to whom it may appear reasonable and necessary to the Minister or authorised person to give directions. In giving such directions the Minister or authorised person must not unduly detain or delay the ship from proceeding on its voyage.

Section 26(3) of the Sea Pollution Act provides that if, in the opinion of the Minister, the powers conferred by s 26(1) are, or have proved to be, inadequate for the purpose, the Minister or authorised person may take such action and do such things in relation to the ship concerned or its stores, equipment or cargo as appear to be necessary and reasonable for the purpose of preventing, mitigating or eliminating the effects of pollution arising from a maritime casualty.

Definitions of ‘oil’ and ‘substances other than oil’

Section 26(10) of the Sea Pollution Act defines ‘oil’ as meaning:

Crude oil, fuel oil, diesel oil and lubricating oil. ‘Substance other than oil’ is defined as meaning: any substance in a list annexed to the Intervention Protocol and any other substance which is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.

Recovery of compensation from the Minister

Section 27(1) of the Sea Pollution Act gives a right to recover compensation from the Minister to any person who establishes that any measures taken outside the territorial waters of the state under s 26 of the Sea Pollution Act in relation to a ship registered in the state, or in a country which is a party to the Intervention Convention, went beyond what was reasonably necessary to achieve their purpose.

Such compensation shall be recoverable either by an arbitration award under the Intervention Convention or in any court of competent jurisdiction for any loss or damage caused to that person by reason of the fact that such measures went beyond those reasonably necessary to achieve that purpose.

Matters to be considered when deciding on entitlement to compensation

Section 27(2) of the Sea Pollution Act provides that in considering whether a person is entitled to recover compensation from the Minister under s 27(1) of the Sea Pollution Act, account shall be taken of:

(a) The extent and probability of imminent danger if those measures had not been taken;

(b) The likelihood of those measures being effective; and

(c) The extent of the damage caused by such measures.

Declarations of acceptance or renunciation of Conventions or Protocols

Under s 28 of the Sea Pollution Act if the Minister is satisfied that any country (other than the state) has accepted or denounced the Intervention Convention, the Intervention Protocol or the MARPOL Convention or any Convention or Protocol which has been ratified by the state and which amends or extends any such Convention or Protocol he may by order so declare. He may also declare by order that any such Convention or Protocol extends, or ceases to extend, to any territory.

Prosecution of offences

Section 30(1) of the Sea Pollution Act provides that summary proceedings for any offence under the Sea Pollution Act may be brought and prosecuted by the Minister. Where an offence is committed in relation to a particular harbour or particular harbour-master, s 30(2) provides that summary proceedings for such an offence may be brought and prosecuted by the harbour authority. Section 30(3) provides that summary proceedings in relation to an offence under the Sea Pollution Act may be brought, in every case, within two years from the date of the offence, or if, at the expiry of that period, the person to be charged is outside the state, within six months of the date on which the next enters the state.

According to s 30(4), proceedings in relation to an offence under the Sea Pollution Act may be taken at any place in the state and the offence may be treated as having been committed in that place. By virtue of s 30(5), such proceedings may be brought against a person wherever he may be.

Payment of fines

Section 33(1) of the Sea Pollution Act provides that, subject to s 33(3), all fines in respect of offences under the Sea Pollution Act shall be paid into the Exchequer in accordance with such directions as may be given by the Minister for Finance.

Where a fine imposed on the owner or master a ship is not duly paid, s 33(2) of the Sea Pollution Act provides that the court may, without prejudice to any other powers for enforcing payment, direct that any amount of the fine remaining unpaid be levied by the distress and sale of such property, comprising the ship, its equipment and stores as the court thinks necessary. Section 33(3) of the Sea Pollution Act provides that, where it appears to the court imposing the fines that any person has incurred, or will incur, expense in removing any pollution, or making good any damage attributable to the offence, the court may order that the whole or part of the fine be paid to that person for or towards defraying the expense.

Offences by bodies corporate

Sections 31 and 32 of the Sea Pollution Act deal with the prosecution of offences committed by bodies corporate. Section 33 concerns payment of fines and s 34 deals with proof of certain documents.

Discharges in the vicinity of a ship

Section 35 of the Sea Pollution Act provides that where a discharge of any substance to which the Sea Pollution Act applies is sighted, and a ship registered in the state, or a ship wherever registered while in the state, is sighted in close proximity to the discharge, it shall be presumed, until the contrary is proved,that it was discharged from the ship.

Court order requiring detention of master on board ship

Section 39 of the Sea Pollution Act provides that whenever an inspector or harbour-master detain a ship in the exercise of the powers conferred on him under s 22(2) or s 24, he must as soon as possible bring the master of the ship against whom proceedings for an offence under the Sea Pollution Act have been, or are about to be, instituted before a District Court judge. If the District Court judge is satisfied that such proceedings have been or are about to be issued against the master of the ship, he may by order directed to an inspector, or, as the case may be, harbour-master, require the inspector or harbour-master to detain the master on board the ship or such other person as he may direct at a specified place in the state until such proceedings have been adjudicated upon by a court in the exercise of its criminal jurisdiction, or until a further order has been made.

Detention of ship pending determination of an appeal

Section 40(1) of the Sea Pollution Act states that where a person is convicted of an offence under the Sea Pollution Act or proceedings in relation to an offence are dismissed, and the ship in relation to which the offence has been committed has been detained under the Sea Pollution Act, the judge concerned shall order the inspector or harbour-master in the event of an appeal from, or other proceedings in relation to, the order of the court hearing the matter, to detain the master on board the ship pending the determination of the appeal or other proceedings at a specified place in the state or until a further order has been made.

The release of the master if satisfactory security is given

Section 40(2) of the Sea Pollution Act provides that where an order for the detention of the master of the ship is made under s 40 or s 39, a District Court judge may order an inspector or harbour-master, as the case may be, to release the master unless the ship has been detained under ss 22, 24 or 26, if security is given which, in the opinion of the District Court judge, is sufficient to cover payment of:

(a) The maximum fine or fines which may be imposed, or such lesser sum as the District Court judge may decide; and

(b) The estimated amount of the costs (if any) of any trials, appeals or other proceedings which may be awarded, in the event of conviction of the defendant in respect of the offence or offences with which he was charged, or in the event of his failure to attend before any court when such attendance is required for the purposes of any preliminary examination under the Criminal Procedure Act 1967.

Fine and costs to be paid out of security

Section 41 of the Sea Pollution Act provides that whenever security is given by a defendant under s 40, the court may, when the trial, appeal or other proceedings, as the case may be, has or have been finally determined, direct that the amount of the fine imposed in respect of the offence, together with the amount of any costs awarded, be paid to the Minister out of the security.

Liability for costs and expenses of the Minister or harbour authority

Section 42 of the Sea Pollution Act states that where a person is convicted of an offence under the Sea Pollution Act, the court shall, unless it is satisfied that there are special and substantial reasons for not doing so, order the person to pay to the Minister, or to the harbour authority concerned, the costs and expenses reasonably incurred by the Minister or authority in relation to the investigation, detection and prosecution of the offence. Such costs may also include costs incurred in the taking of samples, the carrying out of tests, examinations and analyses and the remuneration and other expenses of employees, consultants and advisers.

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