Legislation and regulations
Recent legislative changes
The Maritime Transport Act (MTA) was amended by two pieces of recent information:
- Maritime Transport Amendment Act 2013
- Exclusive Economic Zone and Continental Shelf (Environmental Effects) Amendment Act 2013
These Acts both received Royal Assent on Tuesday, October 22. The Maritime Transport Amendment Act came into force on Wednesday, 23 October, except for Sections 91 to 100 relating to the Bunker Oil Convention - these will come into force on a date still to be set to allow time for administrative measures to be put in place.
The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Amendment Act 2013 (the EEZ Amendment Act) will come into force by Order in Council on a date to be set – which is expected to be early next year. This is to allow regulations to be made under that Act, and the Marine Pollution Rules Parts 180 and 200 to be amended, to reflect the transfer of functions from MNZ to the EPA.
Together, these Acts:
- implement into domestic law provisions of four International Conventions relating to limitation of liability, alcohol limits for seafarer’s, Directors powers of intervention a shipping casualty and requirement relating to oil pollution from Bunker spills
- make some amendments to the MTA
- transfer some environmental functions – notably management of discharges from offshore installations and dumping of waste in the EEZ – from MNZ to the EPA.
Summary of changes
The Act increases liability for pollution damage and changes some requirements for ships to have certificates of insurance for their pollution liabilities.
The changes to the Act update the law relating to limitation of liability for ships, increasing the amount for which ship owners are liable. This brings into effect the 1996 Protocol to the LLMC.
As owners of regulated ships are required to have insurance to their maximum potential liability, this increase impacts on the level of insurance required for certificates of insurance under the MTA.
All regulated ships over 400gt and 999gt will need to have insurance that meets the new, higher limits of liability.
In addition, once the Bunker Convention comes into force, Ships of more than 1000 gross tonnes (gt) will have to hold a specific Bunker Oil Certificate of Insurance. This confirms they have insurance specifically for pollution damage from bunker oil and this must be to the new limits of liability.
As New Zealand domestic law already requires all regulated ships (NZ and foreign) over 400 GT to have certificates of insurance for pollution damage, the main practical change will be that:
- All regulated ships required to have insurance will need to meet higher limits of liability, as provided for in the Act.
- Foreign vessels of greater than 1000gt in a Bunker Convention States will now have their Bunker Oil Certificates issued by the Flag State accepted in New Zealand as Convention documents; and
- New Zealand-flagged vessels of over 1000 GT will be issued Bunker certificates, which can be accepted overseas.
NOTE: The Civil Liability Convention applies to tankers and is not affected by MLB.
The Director has widened intervention powers through the implementation of the Protocol to the Intervention Convention. Where there’s a shipping casualty, and an imminent threat of pollution damage in New Zealand, EEZ, the Director has certain powers in respect of the ‘hazardous ship’, from giving direction to taking control of the ship to take steps to prevent polluting damage. These powers have previously been limited to ships at risk of discharging oil and certain other substances. Under the Bill, the range of substances is extended to include “hazardous substances other that oil” which means things such as LPG, LNG and radioactive material.
Alcohol Limit - STCW
The Bill imposes a maximum alcohol level for crew performing certain safety security and environmental functions on ships that operate beyond restricted limits. It brings into New Zealand law the requirements of the Manila amendments of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (or STCW); with a blood alcohol limit of 0.05 % (lower than New Zealand’s limit for drivers).
Powers under MTA
New Powers of inspection and audit of ports
The Bill gives the Director powers of inspection and audit of commercial ports. The Director can prohibit or impose conditions on the operation of a commercial port. The grounds on which these powers are able to be exercised include maritime safety, protecting health and safety of a person on a ship or at sea, and preventing marine pollution.
New Power to investigate (relevant to fit and proper person assessments)
The Bill gives the director power to investigate the conduct of a holder of a maritime document. This is likely to primarily affect fit and proper person assessments.
The Bill introduces a number of new offences to the MTA, previously covered by S65 and 68 of the MTA. It will be a specific offence to:
- allow a ship’s load line to become submerged… including allowing a ship to leave port in such a state
- operate outside limits of a maritime document
- not to have prescribed number of seafarers or qualified personnel
- knowingly employ seafarers without maritime documents
- act in breach of a maritime document
- breach dangerous goods requirements.
Increase in limitation period for laying charges
The limitation period for laying charges (i.e. starting a prosecution) under the MTA is increased from 6 months to 12 months. This will apply to all incidents that occur after the date the amendment is passed into law.
Note: this applies only for matters under the Maritime Transport Act. For HSE Act matters the limitation period remains 6 months.
Oil and noxious liquid substances
The Bill extends the current requirement to notify the Director of proposed transfers of noxious substances within territorial waters (12nm) to the EEZ. The Director also has the power to prohibit transfer of oil or noxious liquid substance in the EEZ.
Transfer from LGA to MTA
The Bill transfers the empowering provisions of local authorities regarding navigational safety from the MTA to the LGA.
Local authorities will also be required to appoint a harbour master if directed by the Minister of Transport in writing. They currently have a degree of discretion in this.
MNZ activities to be transferred to the Environmental Protection Agency (EPA):
- Discharge Management Plans: MNZ will no longer regulate discharges from installations or structures. But MNZ will remain responsible for marine oil spill contingency planning and response, including exploration drilling rigs well control contingency plans.
- Dumping permits: MNZ will no longer be responsible for issuing dumping permits for the EEZ (beyond the 12nm limit). It will continue to be responsible for issuing permits involving New Zealand ships beyond NZ continental waters.
Note: This will not take place until the required regulations are made under the EEZ Act – target date March 2014.