1 General
Section 1 Introduction
This Decree serves to replace the Ships Decree 1965
and aims to provide a new and modern framework for the rules to be
adopted for the implementation of the Ships Act, with particular
reference to the implementation of international and European
legislation. The Decree also serves to implement a number of amendments
to the Convention for the Safety of Life at Sea (Treaties Journal 1976,
157) that have not yet been implemented or not been fully implemented,
including the measures taken during the diplomatic conference on
Maritime Security in December 2002 for the security of ships. Section 5
will refer to these amendments in greater detail.
With the establishment of the Decree, account has been
taken of the policy of the Dutch cabinet to reduce bureaucracy and to
increase the freedom of choice of individuals and companies (cabinet
vision and action programme to modernise the government ”Andere
Overheid” (”A different form of government”); (Parliamentary
Papers II 2003/04, 29 362, No 1). This is reflected, inter alia, by the
fact that this Decree is considerably less detailed than the Ships
Decree 1965 and ” with due regard to the relevant international
frameworks ” provides more room for the own initiative of shipping
companies. In that respect the Decree can also be seen as a first step
in the context of the Ministry project ”Beter Geregeld!”
(”Regulated Better!”) in which consideration is given per area of
legislation (in this case the Merchant Navy) to the possibilities of
simplifying and reviewing the legislation in the field of the Ministry
for Transport, Public Works and Water Management. Of particular interest
here is the increased social need for less detailed legislation and more
targeted legislation. Furthermore, the establishment of a new Decree
naturally provides a good opportunity to examine administrative burdens
for industry arising from the shipping safety legislation, and where
possible to reduce these burdens. Section 6 of this explanatory
memorandum goes in further detail into the reductions achieved by this
Decree.
Section 2 Occasion for modernisation
The technical and operational safety of ocean-going
ships under the Royal Netherlands flag has been governed for almost four
decades by the Ships Decree 1965. However, in all these years, the
context in which requirements have been laid down regarding the safety
of ocean-going ships has radically changed. The Ships Decree 1965 dates
from a time when ship safety legislation was still largely based on
national policy. There was relatively little international influence and
the present International Maritime Organisation (IMO), which was then
called the Intergovernmental Maritime Consultative Organisation (IMCO),
was not yet fully developed. There was not yet any European influence in
terms of maritime directives and regulations as we know them nowadays.
Since the establishment of the Ships Decree 1965 the international
influence on ship safety legislation has, however, greatly increased.
Under the auspices initially of the IMCO and later of the IMO, ever more
increasingly detailed regulations for ocean-going vessels were
developed, that to an increasing extent were established in obligations
under international law. Also important in that connection is the
establishment of the Convention on Load Lines (Treaties Journal 1966,
275), the "Load Line Convention", in 1966 and the revision of the
Convention on the Safety of Life at Sea (Treaties Journal 1976, 157),
the ”SOLAS Convention”, in 1974. Furthermore, since the beginning of the
1990s, European legislators have concerned themselves with the
importance of ship safety, as is clear in particular from the still
growing number of directives and regulations regarding the safety of
ocean-going ships. This has all led in 2004 to the purely national
contribution to the ship safety legislation being considerably less than
in 1965. The majority of the safety regulations for ocean-going ships is
currently determined in an international context.
The Ships Decree 1965 has been amended many times
since it was established, among other ways, in order to implement the
increasing number of international and European requirements. The many
amendments were, however, not able to prevent - and possibly even
contributed to - the Decree increasingly showing the shortcomings of its
age. It was once intended as a decree from which it was possible easily
to glean all the relevant safety regulations for ocean-going ships and
in the meantime it had changed into a rather complex whole with a
structure that could really only be described as historic. Furthermore,
owing to the considerable rise in the number of international
regulations, the scope of the Decree had considerably increased, which
also did not make the Decree any more accessible. The situation was not
much better with the implementing legislation based on the Ships Decree
1965. Over time a real jumble of minor rules and regulations came about,
in which there was ever decreasing consistency. The implementing
legislation also contained a relatively large amount of ”dead wood” in
the form of rules that were no longer up to date or no longer
applicable.
The 'age-old
shortcomings' of the Decree naturally did not go unnoticed when
implementing its provisions. There was a call for a thorough revision
from industry and from the Netherlands Shipping Inspectorate. A
frequently expressed plea was for a clear distinction to be made between
the national and international elements. In the Ships Decree 1965, the
national elements were often substantially interwoven with the
international regulations contained in the Decree. Because of this, it
was not possible simply to ascertain what were the national
characteristics vis-à-vis the international standard. In a branch of
industry that is largely internationally orientated, this was found to
be unnecessarily tiresome. The international regulations are generally
already known from international sources; it is therefore not necessary
to consult the national legislation. The national legislation is
particularly important to establish whether a particular international
standard is applicable and, if so, what any national (or European)
characteristics are. With a view to this essential international
approach of the ship safety legislation it is understandable that
importance is attached to a clear distinction between international and
national elements. For the record, it is also noted that the European
legislation in the light of the Conventions must in fact also be seen as
'national' legislation, because the European legislation usually relates
to subjects that on the basis of the Conventions belong to the national
authority of the flag State.
The
implementation was not the only area in which the age of the Ships
Decree 1965 gave rise to concern. It also became increasingly difficult
to make the necessary amendments to the Decree. For example, the
implementation of European directives was made more difficult through
the fact that the Decree has a thematic structure, in which, in
principle, no distinction is made between the so-called ”convention
ships” (ships to which the international Conventions apply) and the
”non-convention ships”. This is awkward because directives often link up
with that distinction. Good examples here are Directive No 96/98/EC on
marine equipment (OJ 1997, L 46) and Directive No 98/18/EC on safety
rules and standards for passenger ships (OJ L 144). Directive No
96/98/EC applies only with regard to convention ships, while Directive
No 98/18/EC applies to a category of non-convention ships. For the
implementation of such directives it is necessary for the distinction
between convention and non-convention ships to be introduced. The
interweaving of national and international regulations already mentioned
often formed an extra complicating factor here. As far as non-convention
ships in the Ships Decree 1965 were concerned, there was often actual
corresponding application to international Convention regulations.
However, this generally occurred not by expressly declaring the
international regulations to be applicable, but by tacitly extending the
sphere of applicability of these regulations when adopting the
international regulations. The result was that many provisions of the
Ships Decree 1965 regarding convention ships had to be considered as
international regulations, while the same provisions regarding
non-convention ships applied as national regulations.
The implementation of the (amendments to the)
international ship safety Conventions continued to be difficult. In the
Ships Decree 1965, in principle, the technique of ”implementation by
transfer” was still used (see, for example the annexes to that Decree,
that are often an almost literal account of the Convention on Load Lines
or the SOLAS Convention), where the necessary amendments to the Decree
were often very labour-intensive. Initially this was able to be absorbed
by using a relatively large part of the legislative capacity for the
amendments to the Ships Decree 1965 associated with the international
Conventions. However, in recent years a considerable amount of
legislative work has had to be carried out for the implementation of
European directives, as a result of which the available legislative
capacity for the Ships Decree 1965 greatly decreased and a backlog
gradually occurred in the implementation of recent SOLAS amendments. The
sector, and also the Shipping Inspectorate in the three countries of the
Kingdom (of the Netherlands), have insisted that this backlog be made up
as quickly as possible.
The
shortcomings of the Ships Decree 1965 outlined above formed the occasion
to decide to undertake a thorough revision and modernisation of the
safety legislation for merchant shipping. This Decree is the
result.
Section 3 Structure and method of the Decree
In this Decree, the thematic structure of the Ships
Decree 1965, in which regulations were classified on the basis of their
intrinsic similarities, is largely abandoned. A structure has been
chosen that above all reflects the existing international frameworks.
The main thread running through it is formed by the certificates
required for a ship to operate. In principle, these certificates are
still issued on the basis of the surveys to which a ship is subject in
order to obtain a certificate, the requirements demanded of a ship in
that context and the regulations to be observed when making a voyage
(cf. articles 4, 13, 39 and 60).
Having regard to the international nature of the ocean-going ship
sector, as much reference as possible to international Conventions is
sought from the content point of view. Where possible, reference is made
directly to these Conventions. This approach also falls in well with the
relevant European legislation, in which reference is also frequently
made to the international Conventions. Moreover, an international
approach is currently almost essential, in view of the great extent to
which outside the Netherlands as well established institutions are
involved in implementing ship safety legislation. A good example of this
is of course the international classification societies, but also within
the European Union it occurs increasingly often that institutions from
other Member States offer their services, thereby making use of the
possibilities offered them by Community law.
In drawing up the Decree ” also with regard to the
efforts of the Dutch Cabinet to reduce bureaucracy, as already mentioned
in the introduction to this explanatory memorandum ” it has been
endeavoured to limit the scope of the Decree as far as possible and to
place the essential focus where it belongs: in the Conventions
themselves. This means that the Decree does not contain any unnecessary
repetitions of regulations already in the Conventions and that in
principle reference is also only made in outline to these Conventions.
In these referrals to the Conventions the particular features are
naturally introduced that are necessary for a specific category of ship
with sufficient clarity to be able to denote the international
regulations applicable to these ships.
With a view to the durability of the Decree, it has
also been decided on dynamic referral to the Conventions, so that the
Decree does not have to be adapted with every amendment to these
Conventions. In the Conventions themselves, the technique of dynamic
referral has been used for many years ("as amended or as may be
amended") and the European legislator ” compelled by the fact that the
European shipping legislation often lagged behind international
developments ” in 2002 changed to a system of dynamic referral to the
international Conventions: see Regulation (EC) No 2099/2002 of the
European Parliament and of the Council of 5 November 2002 establishing a
Committee on Safe Seas and the Prevention of Pollution from Ships (COSS)
and amending the Regulations on maritime safety and the prevention of
pollution from ships (OJ L 324) and Directive No 2002/84/EC of the
European Parliament and of the Council of 5 November 2002 amending the
Directives on maritime safety and the prevention of pollution from ships
(OJ L 324). It is of course also important that by introducing a system
of dynamic referral it is largely possible to prevent the occurrence of
new backlogs in the implementation of IMO legislation.
The requirements of a clear distinction between
the national and international elements are dealt with as follows. To
start with, it will in principle always be indicated specifically, where
with regard to non-convention ships corresponding application is given
to certain international regulations. A departure from this principle is
only made in respect of one point and that is with regard to the
regulations for the carriage of cargo (chapter 4). The reasons for this
are set out in more detail in the article-by-article explanation at
article 52 et seq. Furthermore, the additional establishment of details
that the Conventions leave to the flag state, always take place in a
clearly identifiable way. The same applies to any additional
requirements that must be laid down on the basis of European
legislation.
The implementing
legislation for the Decree will also be revised as part of the
modernisation operation. Efforts are being made to adopt a limited
number of consolidated rules with a clear structure that as far as
possible link up with the structure of the Decree. Furthermore, efforts
will also be made in the implementing legislation to achieve
succinctness and where possible dynamic referrals will also be applied.
Use will also be made of the opportunity to abolish the ”notices to
shipping” instrument (general binding rules of the Head of the Shipping
Inspectorate with which further interpretation can be given to certain
regulations of the Ships Decree 1965). The assignment of legislative
powers to officials is outdated.
Section 4 National safety certificate
The Ships Decree 1965 required all ships to have a
(national) certificate of fitness, even if an international safety
certificate was already required for such ships. In this Decree the
certificate of fitness, that was once the most important certificate of
the Ships Act, but in the meantime has largely been superseded and
pushed into the background by the international certificates, no longer
recurs. For ships for which international safety certificates are
already required under the SOLAS Convention, these international
certificates will suffice. The SOLAS Convention offers sufficient room
when certifying ships also to take account of any "national"
requirements, so that, for example, the requirements laid down in
respect of the implementation of Community requirements can also
underlie the issue of the international safety certificates. There is no
further need for an umbrella certificate in the form of a certificate of
fitness for these ships. Paragraph 6 deals with the reduction of the
administrative burdens for industry achieved in this way.
For ships for which under the SOLAS
Convention no international safety certificate for passenger ships or
cargo ships is required, the certificate of fitness will be replaced by
the new "national safety certificate", that – in name also – is
complementary to the international safety certificates. This new
certificate will also replace the national load line certificate which
is required for ships of a length of less than 24 metres. The
information now contained in the national load line certificate
regarding the load line of the ship will in future be contained in an
annex to the national safety certificate.
It is not possible to completely streamline the safety
certification of ships for which a national safety certificate will be
required. Owing to the diverse scope of the different convention
requirements in certain cases the accumulation of certificates is
unavoidable. Thus, for cargo ships of 300 to 500 GT with which
international voyages are made, in addition to the national safety
certificate the (international) cargo ship radio safety certificate
required under the SOLAS Convention also remains necessary, while for
cargo ships of a length from 24 metres with which international voyages
are made, the international load line certificate remains necessary
under the Convention on Load Lines.
The survey system for ships for which under this Decree a national
safety certificate is required, has been relaxed. To begin with, the
national safety certificate for all ships for which that certificate is
necessary – consequently for passenger ships as well, insofar as these
ships do not come under the European system of Directive No 98/18/EC
referred to in section 2 for passenger ships engaged on domestic voyages
– will have a validity period of five years. Previously, following the
international Conventions, the national certificates for passenger ships
were also only valid for one year. Now, passenger ships are included in
the five-year survey cycle that applies to cargo ships. Another
relaxation concerns the abolition of the annual surveys for both cargo
ships and passenger ships for which a national safety certificate is
required. The purpose of the annual surveys stipulated on the basis of
the Conventions for cargo ships engaged on domestic voyages is to
establish whether the ship is properly maintained and is still fit for
its stated purpose. These surveys are, however, already provided for by
the classification society where the ship is classified. Furthermore,
the technical quality of ships has greatly improved over the years. The
method of construction and the durability of the materials used and the
on-board equipment have in the meantime become such that it is safe to
have greater intervals between surveys. It is adequate to carry out an
initial survey on the issue of the certificate, an interim survey in the
third year and a renewal survey after five years in connection with the
renewal of the certificate. It is noted that the new survey system
naturally does not bring in any change in the non-routine surveys to
which a ship should be subject should the occasion arise, for example,
because it has suffered damage or has undergone alterations.
The requirements made of a ship in
connection with the national safety certificate will in principle not
differ from the requirements under the Ships Decree 1965 of
non-convention ships. Under the Ships Decree 1965 corresponding
application is usually given to the requirements of the SOLAS Convention
and the Convention on Load Lines, whereby for cargo ships of a length of
less than 24 metres (known as –small craft–), a relaxed scheme applies.
That system is maintained in this Decree. However, for cargo ships a
lower limit has been introduced: for cargo ships of a length of less
than 12 metres in principle a safety certificate is no longer needed. In
general, with this category of ship there is not such a great degree of
safety involved that a general certificate requirement for cargo ships
under 12 metres is in order. It is more correct only to let those small
cargo ships be subject to a certificate that belong to a specific risk
group or with which – for example, because they are structurally used
for the carriage of (no more than 12) passengers – a special safety
requirement is involved. Naturally, however, a special certificate must
be obtained for these ships, whereby account must be taken of the
specific risk profile of these ships or the particular safety aspect
involved. In addition, it should be noted that the new lower limit of 12
metres only applies to cargo ships. For passenger ships (i.e. ships that
are designed or used for the carriage of more than 12 passengers; see
the definition of –passenger ship– in article 1, paragraph 1 of the
Ships Act) for which a national safety certificate is required - in the
same way as for passenger ships that come under the SOLAS Convention –
they will always require a certificate, irrespective of their length or
tonnage.
Section 5 Recent amendments to the SOLAS Convention
It has already been stated in the introduction that
the Decree also serves to implement a number of amendments to the SOLAS
Convention that have not yet been implemented. This concerns the
amendments to that Convention adopted under resolutions MSC.47(66),
MSC.57(67), MSC.65(68), MSC.69(69), MSC.87(71), MSC.91(72), MSC.99(73),
MSC.117(74), MSC.123(75) and MSC.134(76) of the Maritime Safety
Committee of the IMO and the amendments adopted during the diplomatic
conferences in 1997 and 2002.
a.
maritime security
The most important amendment to the SOLAS Convention
which this Decree implements is the extension of the SOLAS Convention by
a new chapter XI-2 on Special Measures to enhance Maritime Security that
were adopted during the diplomatic conference on Maritime Security in
December 2002. The reasons for this conference were the terrorist
attacks in the United States on 11 September 2001 that gave rise to
awareness that other transport sectors could also be affected by
terrorist attacks. In view of the global nature of the shipping sector
and its vital function for the world economy (over 90 percent of world
trade goes by sea), it was considered necessary to improve the security
of ships and ports. This has led ” particularly on the initiative of the
United States ” to the introduction of a security system for shipping
and ports that largely has the same weight as the security system for
aviation. The new chapter XI-2 comes into effect internationally from 1
July 2004.
The focal point of the
new security measures for shipping is to be found in the International
Ship and Port Facility (ISPS) Code on the basis of the new chapter XI-2
that contains regulations for the security of shipping and for the
security of ports. The Code stems from an analysis of the risks and
their management by taking adequate precautions. In the Code a
standardised set of instruments is drawn up with which the risks of a
terrorist attack can be evaluated. All states that are parties to the
SOLAS Convention must study the security risks of their port facilities.
This involves identifying the most important port facilities that in the
event of a terrorist attack would result in the most damage to the
economy or the environment, or could lead to a considerable loss of
human life. The actual threats must be assessed, so that priority can be
given to security measures. The weak spots in the field of equipment,
security, organisation, procedures, communication and other areas are
mapped out. With this knowledge, it is possible to make a good
evaluation of the risks.
The ISPS
Code also deals with the security of ships. Following the attacks on 11
September, it appears that means of transport that are safe in
themselves can become deadly weapons in the hands of terrorists. For
these reasons, from 1 July 2004 all passenger ships making international
voyages and all cargo ships of 500 GT or more making international
voyages must comply with the security requirements of the ISPS Code.
This Code requires the owner of the ship to appoint a company security
officer (CSO) within his professional association. Among other things,
the CSO is responsible for ensuring that for each ship that comes under
the Code a security assessment is carried out. On the basis of this
assessment a ship security plan is then drawn up for each individual
ship. On board each ship to which the Code applies, a ship security
officer (SSO) must also be appointed who is responsible for the security
of the ship and for the implementation of the ship security plan. The
SSO also maintains contact with the CSO. A security alert system must
also be present on board the ship, with which the authorities and the
professional association of the owner can be alerted if the security of
the ship is compromised or when the ship is confronted by a terrorist
threat.
The ISPS Code distinguishes
” both for ships and for ports ” three security levels, depending on the
extent of the threat. Security level 1 is the normal situation, where
account must indeed be taken of the possibility of terrorist attacks,
but in which no specific threat exists. Level 2 concerns situations in
which there is a heightened risk of terrorist attacks. Finally, level 3
concerns situations in which there is a high probability of a terrorist
attack, even when the target of the attack cannot be identified.
The ship security plan states for
each of the security levels distinguished in the ISPS Code which
operational and physical security measures must be taken on board the
ship. The standard applies on board a ship of security level 1, but the
flag state can stipulate that on board ships under its flag a higher
security level must be in force. The security level on board a ship must
also be increased if the ship is in a sea area or port where at that
time the local authorities have established a higher security level on
the spot than the one that applies on board the ship. A ship that fails
to bring its security level into line with the (higher) security level
applicable in a particular port, under chapter XI-2 of the SOLAS
Convention may have access to that port denied.
The new security system for ships is a system of
surveys, checks and certification that corresponds with the system to
which ships are already subject regarding their safety. Ships that come
under the ISPS Code must have an International Ship Security
Certificate, that is only issued if the ship meets the requirements of
chapter XI-2 of the SOLAS Convention and the ISPS Code applicable on the
basis of that chapter. Chapter XI-2 also provides for a form of port
state control that relates specifically to the security of ships. Just
as with the `regular” port state control, a ship that does not possess
the required security certificate or does not appear to comply with the
security requirements of the SOLAS Convention may be detained by the
port state authorities.
The security
of ships is not a national matter within the terms of article 3,
paragraph 1, section e, of the Charter for the Kingdom of the
Netherlands and therefore does not have to be regulated in national
legislation. Nevertheless, the countries of the Kingdom (of the
Netherlands) have chosen to implement the security measures for ships
temporarily by means of order in council, in which the safety
requirements of ships arising from the SOLAS Convention are also
implemented. An important consideration here was the fact that the short
implementation period up to 1 July 2004 leaves little room for
establishing new national legislation for the security of ships.
However, it is stressed that the Community scheme of security measures
for ships contained in this Decree is based on Article 38 of the Charter
and if desired can be ended by any of the countries in the Kingdom (of
the Netherlands) automatically for the ships registered in that country,
as soon as a suitable legal framework for the security of ships has come
about in the form of national legislation.
b. revision of chapters II-2 and V of the SOLAS
Convention
Among the SOLAS amendments that are implemented by
means of this Decree mention should also be made of the revision of
chapters II-2 and V of the SOLAS Convention adopted under resolution
MSC.99(73) which came into force on 1 July 2002. The revised chapters
II-2 and V are a good illustration of two developments that can be
observed in the recent amendments made to the SOLAS Convention. The
first development concerns the use of Codes to provide further
interpretation of the general requirements of chapters II-1 to V of the
SOLAS Convention. Whereas in the past the technical details for the
elaboration of a particular regulation were often contained in the
Convention, these details are now increasingly often housed in a
separate Code. The new chapter II-2 (fire protection) even has two such
"implementing" Codes: the Fire Fighting Systems (FFS) Code, which
contain the further requirements of fire-fighting systems, and the Fire
Test Procedures (FTP) Code, that contains detailed regulations for
testing materials, parts and systems. Earlier, also on the revision of
chapter III (life-saving appliances), the detailed technical
requirements of life-saving appliances were set out in a separate Code:
the Life Saving Appliances (LSA) Code (see MSC.47(66).
The second development in the SOLAS Convention
concerns the increased use of target regulations. The most apparent one
can be seen in the new chapter II-2, that begins with ”fire safety
objectives” and ”functional requirements” and throughout the whole
chapter leaves open the choice of a particular appliance as far as
possible. Compared to the old chapter II-2, that above all contained
means regulations, the new chapter II-2 contains a clear change in
thinking about safety legislation. This change can also be seen in
chapter V (safety of navigation). In the chapter V that was previously
applicable a wide range of mandatory equipment was stipulated. In the
new chapter V, however, it has been decided to take a functional
approach: it is stipulated which navigation functions must be able to be
carried out on board. The owner of the ship can then choose for himself
for each of these functions the appropriate equipment to be used. In
view of the fact that nowadays an increasing amount of navigation
equipment is suitable for several functions simultaneously, this means
that in practice on board the ship it is possible to function with less
equipment.
The international trend
of more target regulations is, of course supported by the countries of
the Kingdom of the Netherlands and, where possible, encouraged. This
international trend links up with the existing need within the
Netherlands for more targeted legislation (see also section 1 of this
memorandum). It is, moreover, important that in a sector of the economy
like the shipping sector, which is very greatly regulated on an
international basis, the room for national legislative policy with
regard to targeted legislation is largely determined by the room that
the international frameworks provide for it.
Section 6 Administrative burdens for industry
In line with the Dutch Cabinet’s objective to reduce
the pressure of administrative burdens for industry arising from
legislation and regulation, in establishing this Decree particular
attention has been paid to the importance of safety in the regulations
contained in this Decree in relation to the burdens that compliance with
these regulations entails. As the basis here, in 2001 Cap Gemini Ernst
& Young undertook an examination of the administrative burdens
arising from the existing legislation and regulations in the field of
Transport, Public Works and Water Management. From this so-called ’zero
measurement’ it appears that ’ after correction for 2003 ’ the burdens
resulting directly from the Ships Decree 1965, having regard to the size
of the current fleet of 1294 ships (reference date 1 January 2004)
should now amount to € 38,788,807. In addition there is the requirement
that is set out partly in the Ships Act and partly in the Ships Decree
1965 to keep ship logbooks and submit them periodically, which with the
current size of the fleet involves payment of an amount in
administrative burdens of € 21,432,493. Consideration is given to the
extent to which all these burdens could be reduced without the ship’s
safety being affected. Account is of course taken of the recommendations
in the report published in 2003 by the Sorgdrager Committee ’Overheid,
bedrijfsleven en wetgeving ’ Mogelijkheden tot reductie van
administratieve lasten en een breeder perspectief’ (Government, industry
and legislation ’ Possibilities of reducing administrative burdens and a
broader perspective), in which the possibilities of reducing
administrative burdens are outlined for the Ministry of Transport,
Public Works and Water Management.
First and foremost, ship safety legislation is largely determined by
international requirements. For the time being, the administrative
burdens arising from these requirements are on balance increasing rather
than decreasing. That applies particularly to European legislation. The
efforts of the IMO over the last few years have also been directed
towards consolidating safety regulation and streamlining certification
procedures (an example of this is the Harmonised System of Survey and
Certification described in articles 13 and 14); the European ship safety
legislation is still in such a state of flux that any consolidation or
streamlining does not seem likely at the moment.
Because of the international context the room for
national policy with regard to reducing administrative burdens is
limited. Apart from the efforts to reduce the administrative burdens
also in an international and European context, with the establishment of
this Decree therefore only the administrative burdens that originated in
national provisions could be considered for reduction. That in fact
appeared to be more the case than was expected. It is true that with the
so-called ’Maritiem Keerpunt’ (Maritime Turning Point) in the context of
the new shipping policy (see Parliamentary Papers II 1994/95, 24 165, No
2) a great many provisions with a purely national background were
deleted, but the remaining national provisions sometimes appeared to
have considerable financial implications. The most striking provision
was in that regard article 135a of the Ships Decree 1965, in which the
master was required during the voyage regularly to have soundings taken
of cofferdams and tanks. The administrative burdens arising from this
requirement should amount to € 21,433,428 with the current size of the
fleet. To the assumption behind this amount that on board each ship
soundings are taken daily for 365 days a year, the necessary footnotes
can be added, not least because the taking of soundings on board many
ships nowadays is done automatically. Also after adjusting this
assumption, the intended safety objective is not in proportion to the
costs. Article 135a articulated an aspect of ’good seamanship’ that,
certainly at the current state of technology, in itself no (longer)
needs to be set down in a statutory provision. In this Decree the
requirement to have soundings taken, however, does not recur.
Another large cost item was formed
by the requirement to keep ship logbooks and the mandatory periodic
submission of these logbooks. The associated administrative burdens
should now amount to € 21,432,493 for the Dutch fleet. In this Decree it
has been endeavoured in two ways to reduce the administrative burdens
associated with the ship logbooks. Firstly, the requirement to keep ship
logbooks is limited to the international requirements to keep a logbook
(see article 64). This does not remove the fact that on board ships
under international requirements a great deal of information must still
be kept, but for an increasing amount of information the requirement to
keep this information in a ship logbook is replaced by the requirement
’to keep a record’. This means that the necessary information that is
often compiled electronically can be kept in automated systems (such as
the voyage data recorder), whereby the administrative burdens associated
with the data management are greatly reduced. On the basis of a careful
estimate, with the abolition of the national requirement to keep all
information in a logbook, a reduction in the administrative burden of 40
percent (€ 8,572,997) is achieved. There will be a further reduction as
in the international context the requirement to keep all kinds of
information in a ship logbook is further pushed back. At national level
it will also be considered whether ’ as recommended by the Sorgdrager
Committee ’ the requirement in the 1970 Decree on logbooks for ships to
keep a paper logbook, cannot also be replaced by the requirement ’ as
desired ’ of keeping a paper or an electronic logbook.
The second way in which it has been endeavoured
to reduce the administrative burdens associated with the ship logbook
concerns the abolition ’ both in the Ships Act and in the implementing
legislation ’ of the requirement periodically to submit the ship
logbooks. It will be adequate to have a requirement to allow the
Shipping Inspectorate, at its request, to inspect the ship logbooks. For
the merchant fleet this means a further saving of 10 percent (€
2,143,249) in administrative burdens.
The abolition of the national certificates of fitness and load line
certificates already described in section 4 and the relaxing of the
survey system for non-convention ships lead to a reduction in the
administrative burdens. With the abolition of the certificate of fitness
for all ships, in view of the fact that for non-convention ships of a
length from 12 metres the new national safety certificate is required,
this involves a reduction of € 1,859,786; the abolition of the national
load line certificate leads to a reduction of € 289,622. The relaxation
of the survey system to which non-convention ships are subject in
connection with the new national safety certificate, whereby the annual
surveys in the second and fourth year after the certificate has been
issued will lapse, leads to a saving of € 326,859.
These calculations take a basis of 1294 ships for which a certificate
of fitness was required under the Ships Decree 1965, 140 ships for which
under that Decree there was a requirement to possess a national load
line certificate, and 395 ships for which under this Decree the new
national safety certificate is required. The average amount in
administrative burdens that is involved annually with a particular
certificate and the associated surveys is calculated at € 2,069 per
ship. The total saving in administrative burdens associated with the
above amendments to the certification scheme amounts to € 2,476,267.
Other activity that has led to a
reduction in the administrative burdens includes the abolition of the
(nationally required) certificate for animal transport (1 ship at €
2,069), the abolition of the (national) requirement to introduce load
lines (60 newly built ships per annum at € 1,126; total reduction €
67,560) and the abolition of the national requirement to have certain
books on board (1294 ships at € 109; total reduction € 141,046). The
abolition of the requirement to introduce load lines or of the
requirement to have certain books on board does not, however, mean that
the use of load lines or having certain books on board should no longer
be endorsed. For the load lines, however, it is the case that they are
so obvious for safe travel with a ship that a statutory requirement to
have them would not have any added value. A similar consideration
applies to the information present on board a ship in the form of books
or otherwise. The ship owner and the master are in a very good position
to determine independently which information must be present on board a
ship in order to be able to sail safely with that ship or to be able to
familiarise themselves with the statutory requirements to be observed on
board a ship. Here, the implicit rule that certain information had to be
on board in the form of books stood in the way of more modern forms of
knowledge management, including the possibility of consulting certain
information by means of electronic data carriers or even by means of
Internet applications.
Furthermore ’
making use of the possibility offered by regulation V/26 of the SOLAS
Convention ’ ships that make many short voyages are exempt from the
requirement to test the steering mechanism before each voyage. For those
ships the steering mechanism must be tested weekly. This involves a
reduction of € 726,080 (800 ships at € 908 per annum).
This Decree also brings in new administrative
burdens, particularly in connection with the new security measures for
ships (see section 6). Under the new chapter XI-2 of the SOLAS
Convention, passenger ships and cargo ships with a gross tonnage from
500 GT which make international voyages, from 1 July 2004 must possess
an international ship security certificate. With the certification of
these ships ’ that complies with the existing safety and safety
management certification of ships ’ every year an amount of
administrative burdens of € 1,824,618 will be involved (882 ships at €
2,069).
The content of the new
security requirements also involves administrative burdens. Under the
ISPS Code, a ship security plan must be drawn up for the ship, on the
basis of a previously established ’security risk assessment’. The
ensuing administrative burdens are estimated at € 740 per ship. Account
is also taken of the fact that the Royal Netherlands Shipowners
Association, in consultation with the Ministry of Transport, Public
Works and Water Management, has drawn up a comprehensive manual that
makes it relatively easy for the ship owner to carry out a risk
assessment and to draw up a security plan. The above-mentioned amount
also already takes into account ’ as can be seen, for example from the
experiences with the safety management system ’ that larger shipping
companies have the advantage that for (virtually) identical ships only
one risk assessment needs to be carried out, while the ship security
plans for these ships can also be almost identical.
The drawing up of a ship security plan is in
principle a one-off requirement. In calculating the annual
administrative burdens associated with the ship security plan, it is,
however, assumed that as a result of changes in the composition of the
fleet annually, for 10 % of the total number of ships to which the
security measures apply, a new security plan will be drawn up. On an
annual basis this represents an administrative burden of € 65,670 (882
ships at € 740 with a frequency of once every 10 years). To that amount
must also be added the recurring charges associated with occasionally
updating the ship security plans. These burdens are calculated at €
110,038 per annum (882 ships at € 125). This brings the total amount in
administrative burdens associated with the ship security plans to €
175,708 per annum.
In conclusion,
the introduction of the Continuous Synopsis Record (CSR) that contains a
summary of the most important ships’ data, leads to new administrative
burdens. In principle, the request for the CSR is a one-off event, but,
just as with the ship security plan, it is assumed that every year a new
CSR will be requested for about 10 percent of the merchant fleet. On an
annual basis that leads to an amount of € 76,120 in administrative
burdens (882 ships at € 860 with a frequency of once every 10 years).
The burdens associated with amendments to the CSR as a result of changes
in ships’ data are estimated at € 80,050 per annum (882 ships at € 91).
In total the administrative burdens associated with the CSR amount to €
156,170 per annum.
To sum up, it can
be stated that with this Decree, as regards the situation that applied
at 1 January 2004, a (gross) administrative burden reduction of €
35,562,696 per annum has been achieved. With regard to the new
administrative burdens associated with the international security
measures for ships (€ 2,156,496), the net reduction achieved on an
annual basis by means of this Decree amounts to € 33,406,200. In view of
the fact that the administrative burdens arising for the merchant
shipping sector from the Ships Act (including the implementing
legislation) at 1 January 2004 amounted to € 62,913,352, this amounts to
a net reduction of 53 percent.
The
draft decree was referred to the Dutch Advisory Board on Administrative
Burdens (Actal), that approved it (opinion dated 5 February 2004,
RL/PL/2004/25).
Section 7 Implementation and enforcement
The implementation and enforcement of the
regulations contained in this Decree are regulated by the Ships Act. The
issuing of the certificates required by a ship is assigned to the Head
of the Shipping Inspectorate (article 6, paragraph1of the Ships Act);
the officials of the Shipping Inspectorate and the natural persons or
corporate bodies designated by the Minister of Transport, Public Works
and Water Management are responsible for the surveys on which the issue
of these certificates is based (article 6, paragraph 2 of the Ships
Act). The officials of the Shipping Inspectorate are also responsible
for ensuring compliance with the law (article 10 of the Ships Act). The
enforcement of the safety regulations takes place both via
administrative and criminal law channels. The officials of the Shipping
Inspectorate are authorised to withdraw certificates issued for a ship
(article 7, paragraph 3 of the Ships Act) and to detain ships that do
not possess the necessary certificates or do not comply with the
requirements of the Ships Act (article 16 of the Ships Act). In chapter
VI of the Ships Act, moreover, a number of types of conduct, including
sailing without the required certificates, are threatened with a
penalty. In practice, it rarely comes to criminal proceedings, mainly
because the administrative instrument of detention (or even the threat
of possible detention) owing to the considerable financial consequences
that detention would have for the operator of the ship, is a much more
effective means of enforcement than criminal law. The Ships Act also
provides the possibility of disciplinary punishment of the master and
certain members of the crew (see chapter V of the Ships Act). This
Decree does not introduce any changes in the implementation and
enforcement of the Ships Act outlined above. Insofar as the Decree
concerns the certification of ships, it only serves to implement the
certification system laid down in the Ships Act. Otherwise the Decree
contains details of the safety regulations for ships.
Section 8 Notification
The draft decree was notified on [date] to the
Commission of the European Communities (notification number .../.../NL),
in accordance with article 8, paragraph 1 of Directive No 98/34/EC of
the European Parliament and of the Council of 22 June 1998 laying down a
procedure for the provision of information in the field of technical
standards and regulations and rules on information society services (OJ
L 204), as amended by Directive No 98/48/EC of 20 July 1998 (OJ L 217).
The notification particularly concerns the introduction of the national
safety certificate and the requirements and surveys associated with the
certificate. For the rest, the Decree is a (re)codification of technical
regulations notified previously that mostly serve to implement
international Conventions to which all Member States of the European
Union are parties. [For the record discussion on results of notification
procedure].
The Secretariat of the
World Trade Organisation has also been notified in accordance with
article 2, paragraph 9 and article 5, paragraph 6 of the Agreement on
Technical Barriers to Trade adopted on 15 April 1994 in Marrakesh
(Treaties Journal 1994, 235).
2 Article-by-article explanation
Article 01
This article contains the definitions. The
definitions given in the first paragraph can be divided into two types:
subparagraphs a to h contain a number of substantive terms, while
subparagraphs i to w provide abbreviated designations for the
international instruments cited in this decree. The substantive terms
largely correspond to the terms from the Ships Decree 1965. In terms of
content the terms in subparagraphs a, b and f have been taken over
unchanged from the Ships Decree 1965, while the terms in subparagraphs d
and e, apart from the fact that they have been updated, largely
correspond in content to the terms from the Ships Decree 1965.
Subparagraphs d and e give
definitions of the terms –GT– and –length–. Both definitions refer to
the International Convention on the Tonnage Measurement of Ships
(Treaties Journal 1970, 122), which for the Netherlands has been
implemented in the Certificates of Tonnage Act 1981 and for the
Netherlands Antilles and Aruba in the Netherlands Antilles Certificates
of Tonnage Act 1986 (PB 1986, 103) and the Netherlands Antilles
International Certificates of Tonnage Act (AB 1991, no 2) respectively.
In terms of content neither term differs substantially from the terms
–ton– and –length– in the Ships Decree 1965. The term –GT– has been
updated however. In the Ships Decree 1965 reference was also made in the
definition of the term –ton– to the Certificates of Tonnage Act 1948
(now withdrawn), which implemented the Oslo Convention on a Uniform
System of Tonnage Measurements of Ships that came into existence on 10
June 1947 (Bulletin of Acts and Decrees 1949, J 370; Treaties Journal
1955, 52). This Convention is no longer relevant today. Since 1994 all
ships have been measured according to the International Convention on
the Tonnage Measurement of Ships adopted in 1969. There is therefore no
longer any need to refer to the Oslo Convention in the definition. With
regard to the term –GT–, it should be noted that this is the commonly
used abbreviation of the English term –gross tonnage–.
Subparagraph c contains a different definition
of the term –sailing ship– from the Ships Decree 1965. No substantially
different content of the term sailing ship is intended by the new
definition however. It is simply an attempt to replace the somewhat
subjective criterion –carrying sufficient sails to sail safely, to be
judged by standards that (–) are laid down by the Head of the Shipping
Inspectorate– with a more objective criterion that also does not contain
a normative element. There is no change in the situation that a sailing
ship, for safety reasons for example, can also be equipped with means of
mechanical propulsion. The new definition provides for this by means of
the word –primarily–.
What is new
compared with the Ships Decree 1965 is the addition of the phrase
–acting in agreement with Our Ministers for the Netherlands Antilles and
for Aruba whom it also concerns– to the definition of the term –Our
Minister– in subparagraph h. Agreements have in the past been made
between the countries of the Kingdom about the joint involvement of the
Netherlands Antilles and Aruba in the development of regulations
delegated to Our Minister for Transport, Public Works & Water
Management under the Ships Act. The addition is intended to enshrine
these agreements in the present decree.
Subparagraphs i to w provide for the abbreviated
designation of the Conventions and Codes to which (dynamic) reference is
made in the decree. Although the Codes – with the exception of the Codes
referred to in subparagraphs n and o – are those required under the
SOLAS Convention, the first paragraph does not contain a full list of
all the Codes required under that Convention. Codes to which – other
than the Codes referred to in article 8 for example – no independent
significance is due in the decree, such as the International Life-Saving
Appliance (LSA) Code with detailed regulations for the implementation of
Chapter III of the SOLAS Convention, have not been defined. This does
not of course mean that these Codes, if reference is made to them in the
SOLAS Convention, would not be applicable. References to the SOLAS
Convention include the Codes required under that Convention. It should
also be noted that in references to the SOLAS Convention regulations the
customary international reference method has been retained, in which the
article number is preceded by the Chapter number and as the occasion
arises is followed by the relevant subparagraph. "VII/12.3" for example
refers to regulation 12, section 3 ("third paragraph") of Chapter VII of
the SOLAS Convention.
The second
paragraph of article 1 specifies which administrative body is to be
regarded as competent authority, –Administration–, for the application
of the international instruments. At detail level the Conventions and
Codes often provide for discretionary powers for the government of the
flag state of the ship, usually recognisable by the stipulation that a
provision required by Convention or Code must be –to the satisfaction of
the Administration–. This discretion allows the government to customise
application of the international instruments as far as possible, taking
account of the specific properties and risk profiles of individual
ships. The discretionary powers are particularly appropriate where the
certification of ships is concerned. In view of the fact that article
6(1) of the Ships Act assigns certification to the Head of the Shipping
Inspectorate, it is obvious that this person should also be granted the
discretionary powers under the Conventions and Codes. The second
paragraph consequently stipulates that the term Administration must be
taken to mean the Head of the Shipping Inspectorate, on the
understanding that in special cases a different department can be
designated by or pursuant to this decree. One such example is
regulations relating to the carriage of cargo, in which as far as the
Netherlands is concerned certain tasks are also assigned to the
Transport Division of the Transport, Public Works & Water Management
Inspectorate (formerly the Government Transport Inspectorate).
Finally, it should be noted that the
reference in the second paragraph to –the Codes applicable under this
decree– does not refer simply to the Codes referred to in the first
paragraph, subparagraphs n to w, but also to the Codes otherwise
applicable under the Conventions, which – cf. the LSA Code mentioned
above – are not expressly referred to in the decree.
Article 02
The requirements that a ship must meet are usually
in part dependent on the date of construction of the ship. This applies
in particular to the requirements relating to the construction of ships.
The reason for this link between the date of construction of a ship and
the requirements applicable to that ship of course lies in the fact that
the construction of a ship is largely determined by the requirements in
force at the time of the design and the construction of the ship.
The first paragraph of the present
article lays down the point in time that counts as the date of
construction of a ship. Following the Conventions and Codes, the date of
construction is regarded as the day on which the keel is laid or on
which a similar stage of construction is reached. As a rule a similar
stage of construction is regarded as the stage at which a start is made
on the construction, identifiable as forming part of a specific ship,
and at which a start is also made on its assembly, consisting of at
least 50,000 kg or, if the estimated mass of all structural material
amounts to less than 5,000,000 kg, one per cent of that estimated mass
(cf. regulation II-1/1.1.2 of the SOLAS Convention).
The second paragraph provides for a different
regime for ships that have undergone any conversions giving rise to a
change in the ship type. For these ships it is no longer their original
date of construction but the date on which the conversions begin that is
decisive for the requirements applicable to the ship. Where a cargo ship
is converted into a passenger ship this follows from the SOLAS
Convention (see for example regulation II-1/1.1.3.3); for conversions
into special ship types this also follows, apart from the SOLAS
Convention, from the Codes applicable as the occasion arises (for gas
tankers for example see regulation VII/12.3 of the SOLAS Convention and
regulation 1.1.3 of the IGC Code).
The third paragraph provides for the power, for the implementation of
an IMO decision or recommendation for example, to lay down detailed
rules regarding the date to be regarded as date of construction of a
ship. These rules can also, as is apparent from the second sentence of
that paragraph, mean that a date of construction does not remain ”valid
without limit”. In practice it can happen for example that the keel of a
ship is all that is laid, after which construction is suspended prior to
resumption some considerable time later, in accordance with what have
then become obsolete requirements. To prevent such abuse of the date of
construction principle, the third paragraph provides for the option of
binding the completion of a ship to deadlines which, if they are
overrun, will mean that a different date of construction will apply for
the ship.
Article 03
This article excludes fishing vessels from the
effect of the decree. Since 1989 provision for the safety of fishing
vessels has been made in a separate order in council, which has recently
undergone total revision in connection with community obligations: the
Fishing Vessels Decree 2002. Internationally too fishing vessels have a
special position in many respects. They are not for example covered by
the Load Lines Convention (see article 5(1) of that Convention), nor –
at least in principle – by the SOLAS Convention (see regulation I/3(a)
of that Convention).
In view of the
possibility of fishing vessels being used (in part) for purposes that
are by their nature covered by this decree (for example for commercial
recreational use with amateur fishermen), the present article does
include the limitation that the exception for fishing vessels only
applies in so far as these ships are not used for purposes other than
the catching of fish and other living resources of the sea. This
prevents the non-application of the decree to fishing vessels that are
used for purposes which are by their nature covered by the present
decree.
Article 04
Section 3(1) of the Ships Act stipulates that a ship
”may not be used for any voyage unless the necessary certificates have
been issued for the ship”. The second paragraph of the same section
stipulates that the certificates required are laid down by or pursuant
to an order in council. This provision is implemented in articles 4 to
12 of this decree.
The present
article provides for the International Load Line Certificate required
under the Load Lines Convention for ships engaged on international
voyages. Under this Convention all ships built on or after 21 July 1968,
with a length of 24 metres and above, and also all ships built before
that date with a gross capacity of 150 gross register tons and above
must be provided with an international load line certificate. The number
of ships built before 21 July 1968 however is now so small that they are
no longer distinguished as a separate category in the present article.
All we need is what now applies as a general rule: the length limit of
24 metres. A transitional provision has been included in article 72(1)
for the handful of ships dating from before 21 July 1968.
Article 05
Article 5(1) relates to the general safety
certificates under the SOLAS Convention. Passenger ships are under the
obligation to have a safety certificate without any restriction: all
passenger ships engaged on international voyages, whatever their length
or gross tonnage, must be provided with a Passenger Ship Safety
Certificate, which in principle relates to all the safety aspects of a
passenger ship, from construction to equipment. Cargo ships, on the
other hand, are only under the obligation to have a certificate relating
to all the safety aspects of the ship – the Cargo Ship Safety
Certificate – from 500 GT. Below this tonnage limit there is still a
certificate obligation relating to the radiocommunication equipment
required on board: for cargo ships from 300 to 500 GT a Cargo Ship
Safety Radio Certificate is required. It should be noted in this regard
that modern cargo ships intended for the commercial carriage of cargo
are rarely less than 2,500 to 3,000 GT. Cargo ships with a gross tonnage
of less than 500 GT are for the most part special categories of ships,
such as harbour tugboats and lightweight dredging equipment.
For the sake of completeness it
should also be noted that no use has been made of the option contained
in regulation I/12 of the SOLAS Convention to certify cargo ships from
500 GT by means of three modular certificates. The said regulation, as
an alternative to the Cargo Ship Safety Certificate, provides for the
issue of three separate safety certificates relating to the
construction, the equipment and the radiocommunication equipment on
board cargo ships. However, on the implementation of the SOLAS amendment
in which the Cargo Ship Safety Certificate was introduced (Decree of 18
December 1997, Bulletin of Acts and Decrees 745, amending the Ships
Decree 1965 in connection with the introduction of a harmonised survey
and certification system) the all-embracing Cargo Ship Safety
Certificate was chosen. The present decree endorses this choice.
Regulation I/3(a) of the SOLAS Convention stipulates
that the Convention is not (in principle) applicable to ships that are
not equipped with means of mechanical propulsion, which means towed
navigation, such as pontoons, cranes, barges and dredging and
contractor–s equipment. The second paragraph of the present article
therefore stipulates that the general SOLAS certificate requirements in
the first paragraph do not apply to non-mechanically propelled ships.
Nor do non-mechanically propelled ships therefore need to meet the
requirements referred to in article 40(1) and (2), while the surveys in
article 14 are equally inapplicable of course. It should be noted that
the Load Lines Convention does apply to non-mechanically propelled
ships. For this reason no exception for this category of ships has been
included in article 4.
The second
paragraph also contains an exception for sailing ships. Sailing ships
which for safety reasons are also equipped with (auxiliary) means of
mechanical propulsion – which is usually the case – must, strictly
speaking, be regarded as convention ships for the application of the
SOLAS Convention. Often however, because of the special construction and
properties of sailing ships, the requirements of the SOLAS Convention
have not been applicable to these ships or less well so. For this reason
sailing ships up to approx. 500 GT have in practice often been equated
with non-mechanically propelled ships and a special regime has applied
to these ships (cf. the Sailing Ships with Passengers Regulation). Now
however there are sufficient appropriate regulations available, in
combination with the exemption options that the SOLAS Convention
provides, to bring sailing ships up to 500 GT into line with the SOLAS
Convention. With effect from 1 January 2005 all sailing ships built
after that date that are also equipped with means of mechanical
propulsion will have to have SOLAS certificates if international voyages
are made with these ships. For existing sailing ships up to 500 GT
however the special position currently applicable will be maintained.
The third paragraph of the
present article refers to an additional certificate that is required for
ships used to transport dangerous goods. Under regulation II-2/19 of the
SOLAS Convention these ships must comply with special fire safety
requirements, which is evident from a document of compliance issued in
accordance with that regulation. This document is not an isolated
certificate however. The obligation arises from the requirements
underlying the safety certificates referred to in subparagraphs a and b
of the first paragraph. For this reason the document of compliance is
not included in article 8, but in the present article.
Article 06
This article refers to the national safety
certificate (Ship Safety Certificate) that will be required for ships
for which no SOLAS passenger ship or cargo ship safety certificate is
required. The ships in question are those used for domestic voyages,
ships that have no means of mechanical propulsion and cargo ships up to
500 GT used for international voyages. It has previously been noted in
section 4 of the general part of this explanation that the national
safety certificate for these ships is replacing the certificate of
seaworthiness required under the Ships Decree 1965, which is being
abolished for all ships.
The second
paragraph stipulates that the obligation to have a national safety
certificate does not apply to cargo ships with a length of less than 12
metres. As previously explained in section 4, there is no need to
require a certificate as standard for this category of ship. However, if
specific safety reasons exist, a special certificate can be required for
certain cargo ships up to 12 metres pursuant to article 12. By way of
comparison with the other certificate obligations contained in this
decree and the tonnage limits employed with them, it should be noted
that a ship with a length of 12 metres has a gross capacity of approx.
10 GT.
Article 07
Under Chapter X of the SOLAS Convention a different
regime applies to high-speed craft, which takes the form of special
safety certificates for this category of ship. High-speed craft differ
from normal ships in their lightweight construction and low water
displacement, which enable them to reach high speeds. Because of their
special construction the general construction requirements of the SOLAS
Convention are less readily applicable to these ships, while in certain
respects the higher speeds at which they travel also make different
safety requirements necessary. There have therefore been special
regulations for high-speed craft since 1977. Initially these regulations
only had the status of a recommendation at international level (see the
Dynamically Supported Craft (DSC) Code adopted by resolution A.373(X) of
the General Meeting of the IMCO). But in 1996 the regulations for
high-speed craft laid down in the High-Speed Craft (HSC) Code 1994 also
acquired a place in the SOLAS Convention (Chapter X, Safety Measures for
High-Speed Craft). A second Code has recently been added to it, the HSC
Code 2000, which applies to high-speed craft built on or after 1 July
2002.
Application of the HSC Code
1994 or 2000 is not in itself mandatory. The owner of a high-speed craft
can opt for it. This option is in part connected with the operational
restrictions that apply to ships certified in accordance with the HSC
Code. The main restriction is that under no circumstances may a
high-speed craft be located more than a limited number of hours” sailing
time from a port (see regulation X/2 of the SOLAS Convention). The
decree provides for the option of having a high-speed craft surveyed and
certified according to the HSC Code 1994 or 2000 in article 16. If the
owner opts for application of the HSC Code, then under article 7 this
leads to the certificate obligations forming part of the respective Code
also applying to the ship.
The
second paragraph then stipulates that the High-Speed Craft Safety
Certificate that forms part of the HSC Code and the permit to operate
prescribed in the Code replace the general safety certificate required
under article 5(1). This implements regulation X/3.2 of the SOLAS
Convention, which stipulates that ”certificates and permits issued under
the High-Speed Craft Code shall have the same force and the same
recognition as the certificates issued under chapter I”.
The option to elect for application
of the HSC Code 1994 or 2000 is not only reserved to the owner of a
convention ship: the owner of a ship for which in principle a national
safety certificate is required can also opt for application of the HSC
Code. As for convention ships a general safety certificate (in this case
the national safety certificate) is no longer required for the
ship.
Article 08
In Chapters VI and VII the SOLAS Convention contains
regulations for the carriage of cargo in general (Chapter VI) and
dangerous goods in particular (Chapter VII). In a number of cases the
said regulations in part concern the suitability of ships for the
carriage of certain cargo. A chemical tanker for example must comply
with the special requirements of the International Bulk Chemical (IBC)
Code, one of whose aims of course is to minimise the environmental
hazard associated with the carriage of (dangerous) chemicals. In four
cases the SOLAS Convention stipulates that compliance with the special
suitability requirements for the carriage of certain cargo must be
evident from a document or certificate issued for the ship.
Subparagraphs a, b, d and f of the first paragraph of article 8 refer to
these (in the terminology of Section 3(1) of the Ships Act) ”required
certificates”. In the first paragraph, subparagraphs c and e also
include two certificates that are not mandatory under the SOLAS
Convention. They are certificates under the BCH Code and the GC Code.
These are the (internationally merely recommended) predecessors of the
IBC and IGC Codes referred to in subparagraphs b and d. Application of
the BCH Code and the GC Code was already mandatory under the Ships
Decree 1965 and, in view of the importance of security involved with the
carriage of chemicals and liquefied gases, continues to be mandatory
under the present decree too.
It
should be noted that the certificate obligations referred to in this
article are not tied to a gross tonnage limit. Notwithstanding the
general scope of the SOLAS Convention, Chapters VI and VII are also
applicable to cargo ships with a gross tonnage of less than 500 GT (see
for example regulations VI/1.1, VII/9.1, VII/12.1 and VII/15.1). The
same applies to the BCH Code and GC Code referred to in the first
paragraph, subparagraphs c and e.
The second paragraph stipulates that the first paragraph is applicable
mutatis mutandis to ships engaged on domestic voyages. Where in general
the (more) sheltered nature of domestic voyages can be used as a basis
for arguments to allow reductions compared with the requirements
applicable for international voyages, it has to be said that the
importance of safety in domestic transport tends to increase rather than
decrease where the transport of dangerous goods is concerned. This is
because ships on domestic voyages remain closer to the coast than ships
on international voyages. For this reason it has been decided to declare
the certificate obligations in the first paragraph, subparagraphs b to
f, applicable mutatis mutandis to ships on domestic voyages.
The application mutatis mutandis of
subparagraph a of the first paragraph to ships on domestic voyages has a
different background. The special regulations for the carriage of grain
in bulk (and cargo equated with it under regulation VI/8 of the SOLAS
Convention) contained in the Grain Code are principally connected with
the safety of the ship itself. Because of the properties of grain in
bulk special arrangements are needed on board a ship being used to
transport grain to prevent the ship becoming unstable and starting to
list because of the ”shifting” of the cargo. Since, if a ship is not
equipped for the carriage of grain, the shifting of cargo usually
happens as soon as a ship leaves the calm waters of a port and is
confronted by waves, it has been decided to make the Grain Code
applicable mutatis mutandis to ships on domestic voyages as well.
Article 09
Since 1 July 1998 the SOLAS Convention has also
contained regulations relating to the management of ships, contained in
Chapter IX of the Convention (’safety management’) and set out in detail
in the International Safety Management (ISM) Code. Initially, the
obligation to have a so-called ’safety management system’ only applied
to passenger ships and to certain types of cargo ship, such as gas and
chemical tankers from 500 GT. Since 1 July 2002 it has also applied to
all other cargo ships of 500 GT and above.
The safety management system is a new means for the
shipping sector to increase the safety of ships. It is no longer a
matter of paying attention primarily to the technical and operational
safety of ships; now the management of ships is also being seen as an
important safety factor. Safety management contributes ’ in part through
learning and improvement processes and through prompt identification of
safety risks and the taking of precautions ’ to a higher safety standard
within the business organisation and the prevention of human error in
critical processes.
The ISM Code
mandatory under Chapter IX provides for two certificates: the safety
management certificate, which relates to the management of a specific
ship, and the document of compliance, which is issued for the
shipowner’s business organisation and refers to the management of a
certain type of ship. Just a copy of this latter document must be
present on board the ship (see the second paragraph); there must be an
original of the safety management certificate issued for a ship on
board, like the other certificates required for the ship (see Section
9(1)(i) of the Ships Act).
The
requirements that are made of the management of ships will, with effect
from 1 July 2004, also refer to the security of ships. On that date the
new SOLAS Convention Chapter XI-2 (on Special Measures to Enhance
Maritime Security) previously discussed in section 5 of this explanation
will enter into international force and convention ships will be under
the obligation to have an international security certificate. Without
this certificate a ship can be refused access to a port.
In conclusion, it should be noted
that the obligation to have a safety management certificate and a ship
security certificate only applies to ships used for international
voyages. For this reason high-speed craft used for domestic voyages are
excepted in the first paragraph.
Article 10
A certificate often comes with certain appendices or
annexes. A good example is the Record of Equipment prescribed by
regulation I/12(a)(vi) of the SOLAS Convention, which must for example
be included with the safety certificates referred to in article 5(1).
The said record contains a detailed specification of the (prescribed)
equipment on board a ship. Other examples are the details relating to
the stability of the ship to be added to the document of authorisation
for the carriage of grain (see article 8(a)) under the Grain Code and
the ”tank plan” (a schematic overview of the cargo sections of a gas
tanker) that must be included with the certificate referred to in
article 8(d) under the IGC Code.
Article 11
The Load Lines Convention and the SOLAS Convention
both provide for powers to grant exemption of individual ships or
exemption of a class of ship from the regulations contained in these
Conventions. Such an exemption shall then be evident from an Exemption
Certificate issued for the ship: see article 16 of the Load Lines
Convention and regulation I/12 of the SOLAS Convention. These provisions
are implemented by means of the present article.
For the record it should also be noted that the decree
– unlike the Ships Decree 1965 – no longer contains any provisions in
which the Head of the Shipping Inspectorate is given the power to grant
exemption from certain regulations. Since the amendment of the Ships Act
of 12 April 1995, Bulletin of Acts and Decrees 301, provision for this
power has after all generally been made by means of Section 5(2) of the
Ships Act.
Article 12
This article provides for the option of requiring a
special certificate for particular categories of ship that relates
specifically to the special properties, purposes or areas of navigation
of these ships. Firstly this refers to ships for which special
regulations have been developed by the IMO. An example are the so-called
mobile offshore drilling units, for which regulations have been
specifically laid down by resolutions A.414 (XI) of the General Meeting
of the IMCO and A.649 (16) of the General Meeting of the IMO, as set out
in the Mobile Offshore Drilling Units (MODU) Code of 1979 and a Code of
the same name of 1989. Other examples are high-speed craft within the
meaning of the DSC Code previously referred to in the explanation to
article 7 and ”Special Purpose Ships” within the meaning of the Special
Purpose Ships (SPS) Code adopted by resolution A.534(13) of the General
Meeting of the IMO. This latter Code is relevant for example to large
sailing ships that are used as training ships.
The said Codes, in common with the HSC Code (see
article 7), contain alternative regulations in respect of the SOLAS
Convention. In contrast to the HSC Code there is no requirement for
these Codes however that the certificates forming part of these Codes be
considered equivalent to the safety certificates referred to in article
5(1) for the application of the SOLAS Convention. The Codes must be
applied in combination with the facility offered in the SOLAS Convention
to grant exemption from the general SOLAS requirements of ships. In the
systematics of the Ships Act this means that the Codes will in the main
have to be implemented by means of an exemption arrangement under
Section 5(1) of the Ships Act. That Section however does not provide any
basis for making the certificate pertaining to the respective Code
mandatory. Provision for this can however be made under the present
article.
For the sake of
completeness it should be noted that a SOLAS convention ship in respect
of which application has been given to a special Code will have to have
three certificates: the SOLAS safety certificate (which continues to be
required unimpaired) issued subject to the exemption, the Exemption
Certificate required in connection with the exemption (see article
11(2)) and the certificate pertaining to the respective Code. To prevent
a similar accumulation of certificate obligations for non-convention
ships, the first paragraph provides for the option to stipulate for
non-convention ships that any special certificates take the place of the
national safety certificate. No certificate of exemption will of course
therefore be required for these ships.
The first paragraph also provides a basis for the
implementation of special regional obligations. For the Netherlands this
article implements Council Directive 98/18/EC of 17 March 1998 on safety
rules and standards for passenger ships (OJ L 144), which is applicable
to passenger ships used for domestic voyages in European waters. For the
Netherlands Antilles and Aruba the article provides a basis for
implementing the Code of Safety for Caribbean Cargo Ships (CCSS Code)
adopted by the Caribbean Port State Control Committee in 1997, which
contains regulations for cargo ships of less than 500 GT engaged on
regional voyages in the Caribbean. With regard to Directive 98/18/EC it
must however be noted that in the Dutch situation in particular the
distinction between passenger ships engaged on domestic and
international voyages, which the Directive requires, is a theoretical
distinction. In the Netherlands a mere handful of voyages qualify
incidentally for the designation ”domestic voyage”. The distinction
between domestic and international voyages is relevant mainly for
archipelago states or countries such as Greece, where a not
insubstantial share of ”domestic transport” takes place by sea. In the
Dutch situation there is little or no such domestic sea transport.
Partly in view of the fact that under the decree of 17 November 1981,
Bulletin of Acts and Decrees 718, the Wadden Sea counts as an inland
waterway for the determination of the offshore line, it is almost
exclusively international voyages that are made from Dutch ports.
The second paragraph provides for
the power to lay down additional rules with regard to the certificates
required for the carriage of cargo or the management of ships. The power
to require additional certificates for the carriage of cargo makes it
possible to implement IMO resolutions that are not (yet) mandatory.
Before a Code becomes mandatory at international level, it often
initially has the status of a recommendation. For reasons of safety this
does not however take anything away from the desirability of the
regulations in question. An example is the INF Code for the carriage of
certain types of radioactive cargo now mandatory under Chapter VII of
the SOLAS Convention (see article 8(1)(f)), which initially also simply
had the status of a recommendation. The need to be able to implement any
European obligations regarding the carriage of cargo also had a part to
play of course.
The need to be able to implement
European obligations was also an important consideration where the power
to lay down additional rules relating to the certificates required for
the management of ships is concerned. In the light of the growth in
attention for safety management as an important factor in the safety of
ships, account must also be taken of the community legislature deciding
in the future on the mandatory introduction of a safety management
system for certain categories of non-convention ships. It is also
important that a European Regulation is currently in preparation, which
provides (in part) for the application mutatis mutandis of the security
obligations in the SOLAS Convention to certain categories of
non-convention ships. The second paragraph also provides a basis for the
implementation of this Regulation.
Article 13 and 14
Section 3a(3) of the Ships Act stipulates that the
surveys to which ships are subject in connection with the required
certificates are laid down by or pursuant to an order in council. For
the certificates prescribed in articles 4 to 9 this provision is
implemented in articles 13 to 21. Article 22 then refers to the surveys
that are connected with certificates prescribed pursuant to article 12.
Articles 13 and 14 ” like
articles 16 to 19 ” require little explanation in themselves. These
articles refer to the surveys provided for in detail in the respective
Conventions and Codes to which ships are subject to obtain a certificate
or during the validity of a certificate. Since the introduction of the
so-called Harmonised System of Survey and Certification (`HSSC”) the
said surveys have been harmonised (see the 1988 Protocol to the Load
Lines Convention adopted in London on 11 November 1988 (Treaties Journal
1989, 134) and the SOLAS Convention (Treaties Journal 1989, 135); see
also the amendment of the Ships Decree 1965 of 18 December 1997,
Bulletin of Acts and Decrees 745, in which the HSSC was implemented
early for the Kingdom with due regard for resolution A.718(17) of the
General Meeting of the IMO). One of the important merits of HSSC is that
the periodicity of the surveys has been standardised. In combination
with the fact that the HSSC also provides for a system in which the
certificates required for a ship all have the same issue date, this
leads to the surveys to which ships are subject now being concentrated
within certain periods. This is a substantial improvement on the
situation that existed prior to the introduction of the HSSC, in which
the surveys took place throughout the year.
The HSSC has two survey cycles, depending on (the
validity of) the certificate. Most certificates are subject to a cycle
of more than one year, with the ship being subject to a renewal survey
in connection with the renewal of the certificates at least once every
five years. During this period the ship is also subject to annual
surveys and, roughly halfway through the validity of the certificate, to
an intermediate survey. A record of these surveys must be placed on the
certificate (see article 21). On the other hand safety certificates for
passenger ships are subject to a shorter survey cycle. The said
certificates have a validity of just one year (cf. article 29(1)), with
the consequence that the renewal survey for passenger ships for which
international certificates are required is an annually recurring
phenomenon.
For bulk carriers and
oil tankers there is also an (additional) extended inspection programme,
the ”enhanced survey” under Chapter XI of the SOLAS Convention (Special
Measures to Enhance Maritime Safety) (see article 14(4)), which is
carried out in connection with the surveys referred to in article 14(2).
As a result of their specific use bulk carriers and oil tankers have
proven to be subject to extra wear, with adverse consequences for the
strength of the construction and watertightness. The aim of the enhanced
survey is to spot wear at an early stage, so that appropriate repair
measures can be taken in good time.
Otherwise the Conventions and Codes also contain obligations with
regard to incidental surveys of ships. Regulation I/7 (b)(iii) of the
SOLAS Convention for example stipulates that a passenger ship that has
undergone modifications or, if it has suffered damage, repairs must be
subject to an additional survey, in order to establish whether the
modifications or repairs are in conformity with the requirements that
are made of the ship under the Convention. It should be stressed that
the surveys referred to in articles 13 and 14 also encompass these
incidental surveys. The same applies to the surveys referred to in
articles 15 to 19.
Article 15
In article 15 the ships for which a national safety
certificate is required are also brought into line with the systematics
of the HSSC, on the understanding that, with the exception of the annual
surveys, the SOLAS survey regime is followed for cargo ships (see
regulations I/8 to I/10). The background to this choice has previously
been considered in section 4 of this explanation.
The first paragraph stipulates that the application
mutatis mutandis of regulations I/8 to I/10 of the SOLAS Convention does
not apply to cargo ships with a length of less than 24 metres. Specific
rules will be laid down for the surveys of these ships pursuant to the
fourth paragraph of the present article. Article 41(1) and (4) contain
similar provisions with regard to the requirements with which cargo
ships up to 24 metres must comply in connection with the national safety
certificate. The special position of cargo ships up to 24 metres – which
in many respects corresponds to the special position of the so-called
"small vessels" in the Ships Decree 1965 – is connected with the fact
that customisation is needed for these ships. The requirements of the
Load Lines Convention and the SOLAS Convention are only applicable to
the said ships with the necessary exceptions and reductions. Application
of the Conventions in full would, given the small sizes of the said
ships, lead to unreasonably severe or even practically unenforceable
requirements for these ships. For this reason all the requirements of
the Load Lines Convention and the SOLAS Convention will in principle
have to be considered to see to what extent these requirements are also
applicable to cargo ships up to 24 metres. Because this will lead to
detailed technical rules having to be laid down for the said ships with
regard to the requirements to be made of these ships, it has been
decided in article 41 to lay down these rules by ministerial regulation.
Because of the connection between requirements and surveys this choice
also filters through into the present article. For the sake of
completeness it should be noted that the 24 metre limit, which also
previously applied for the "small vessels" in the Ships Decree 1965,
coincides with the lowest international lower limit for which the
Conventions provide: that of 24 metres under the Load Lines Convention.
The second paragraph stipulates
that a cargo ship requiring a radio safety certificate under the SOLAS
Convention (see article 5) is not subject to surveys of its radio
equipment in connection with the national safety certificate. Provision
for these surveys is after all already made in connection with the radio
safety certificate (see article 14(3)).
The third paragraph is connected with article 41(3),
which declares that the requirements of the Load Lines Convention are
also applicable mutatis mutandis to a ship of 24 metres and more that is
used for domestic voyages. As previously set out in section 4 of this
explanation, the national safety certificate will also – to prevent
unnecessary accumulation of certificates – pertain to the application
mutatis mutandis of the requirements of the Load Lines Convention.
Articles 41(3) and 15(3) do not apply to ships from 24 metres that are
used for international voyages. This is because an international load
line certificate is already required for these ships under the Load
Lines Convention (see article 4).
Article 16
For the sake of brevity see the remarks previously
made with regard to article 7 for the background to article 16. It
should be added that the surveys connected with the application of the
HSC Code 1994 or the HSC Code 2000 replace the general surveys in the
SOLAS Convention or the surveys prescribed under article 15 in
connection with the national safety certificate (see article
16(2)).
Article 20
Provision for the points in time at which (or
periods within which) all the surveys are to take place is in principle
made in the Conventions and Codes. In principle therefore a reference to
these Conventions and Codes will suffice (see the first paragraph).
There are just two points that require further regulation. The first
point concerns the total duration of the cycle of more than one year.
The SOLAS Convention merely stipulates that it may not exceed five
years, but leaves it to the Administration to decide the exact duration
of the cycle and the time at which the renewal survey must take place.
In the aforementioned amendment of the Ships Decree 1965 in connection
with the introduction of the HSSC it was decided to adhere to the
maximum period referred to in the SOLAS Convention and to stipulate that
the renewal survey must take place in the last three months of the
validity of the certificate. The first paragraph is in line with this
choice. The second point that requires further regulation concerns the
management surveys in connection with the safety management system (see
the second paragraph). It follows from the Amended Guidelines for the
implementation of the ISM Code by Administrations (resolution A.913(22)
of the General Meeting of IMO) that the survey for the issue of a safety
management certificate or an ISM document of compliance must for example
show that the safety management system has been in practical use for at
least three months. There is however no express provision in the ISM
Code that the management surveys must likewise therefore not take place
until after the end of that period. The second paragraph therefore
provides for this. Where it would not yet have been possible for the
safety management system to have been in use for three months, article
27 provides for the option of provisional certification.
Article 22
The first paragraph of this article refers to the
surveys that are connected with certificates prescribed pursuant to
article 12. Together with article 46(1) its effect is to give substance
to these certificates.
The second
paragraph provides for the power to lay down detailed rules with regard
to the surveys to which ships are subjected. The said rules can be a
detailed elaboration of the survey obligations to which reference is
made in articles 13 to 19 or provide for additional surveys in respect
of these articles. The power to prescribe additional surveys is
important for example with a view to implementing Council Directive
1999/35/EC of 29 April 1999 on a system of mandatory surveys for the
safe operation of regular ro-ro ferry and high-speed passenger craft
services (OJ L 138). The first paragraph is not sufficient for this
because the Directive does not prescribe an additional
certificate.
Article 23
In practice the majority of the surveys associated
with the certification of ships are carried out by third parties,
usually by the so-called ”classification societies”. For convention
ships this survey task of the classification societies, which can trace
their involvement with ship safety historically back to the
international maritime insurance world, is enshrined both in
international Conventions and in Community law: see for example
regulation I/6 of the SOLAS Convention and Council Directive 94/57/EC of
22 December 1994 on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime
administrations (OJ L 319). The SOLAS Convention and Directive 94/57/EC
also provide for the requirements with which classification societies
must comply. These requirements, which must be taken into account in the
designation of classification societies provided for in this article,
are laid down in the Ships Act Regulation of Classification Societies
based directly on the Ships Act.
Section 6(2) of the Ships Act provides the scope for stipulating by or
pursuant to an order in council that surveys be carried out as a whole
or in part by natural persons or legal persons designated for this
purpose by Our Minister. This is given substance for all the surveys
prescribed by or pursuant to this decree in the first paragraph of the
present article. A deliberate choice has been made to keep open the
option of designating natural persons. For certain categories of ship or
certain survey tasks there may after all be a need for special expertise
that may well be available to natural persons, but not or to a lesser
degree to organisations with legal personality. It should be noted that
the SOLAS Convention does not stand in the way of the designation of
natural persons: regulation I/6 of that Convention expressly provides
for the option of designating (natural persons as) surveyors.
The second paragraph comes directly
from the SOLAS Convention. The aforementioned regulation I/6 stipulates
that the ”Administration (”) shall as a minimum empower any nominated
surveyor or recognised organisation to require repairs to a ship (”).”
If a repair required by a classification society
or surveyor is not carried out or is not carried out properly, then this
can lead to the certificates issued for the ship being withdrawn by the
Shipping Inspectorate (see Section 7(3) of the Ships Act).
The third paragraph provides for the
power to lay down rules with regard to the performance of duties of the
natural persons and legal persons designated pursuant to the first
paragraph. Without such a basis the performance of duties could only be
regulated case by case, by means of regulations to be attached to the
designation order (see Section 6(3) of the Ships Act).
It should be noted that the present article also
provides a basis for the "Recognised Security Organisations" (RSOs)
referred to in regulation XI-2/1 of the SOLAS Convention to be given
responsibility for the security surveys of ships. The surveys of the
security of ships require different expertise from the classic safety
surveys of ships. Different requirements must therefore be made of RSOs
from those of "recognised organisations" responsible for the safety
certification of ships. Regulation B/4 of the ISPS Code contains
guidelines for the requirements to be made of RSOs.
Article 24
To conclude the section on certification article
24(1) contains the almost self-evident rule that following the
completion of a survey the condition of a ship or its equipment must be
maintained and that no changes may be made to them without prior
consent. This implements regulation I/11(a) and (b) of the SOLAS
Convention for example.
The second
paragraph declares that the first paragraph applies mutatis mutandis to
the measures taken for the security of a ship. This paragraph, except as
regards the "Ship Security Alert System" (SAS) (cf. article 44)
prescribed in regulation XI-2/6 of the SOLAS Convention, implements
regulation 19.1.4 of the ISPS Code. As regards the SAS, which forms part
of the equipment of the ship, regulation 19.1.4 of the ISPS Code is
implemented by means of the first paragraph of the present
article.
Article 25
The effect of this article is to implement Section
3a(4) of the Ships Act, which requires that rules be laid down by or
pursuant to an order in council with regard to the application for
certificates. In view of this obligation, the provisions of Part 4.1.1
of the General Administrative Law Act are not sufficient for the
Netherlands.
Article 26
Since the implementation of the ISM Code in the
Ships Decree 1965 (see the amendment of the Ships Decree 1965 of 31
January 1997, Bulletin of Acts and Decrees 62) the issue of the safety
management certificate counts as a condition for the issue of the
certificates otherwise required for passenger ships and for cargo ships
from 500 GT (see article 3(1) of the Ships Decree 1965). A similar link
is made in the first paragraph of article 26, albeit that only the issue
of the safety certificates referred to in the preamble of article 9(1)
is made dependent on the issue of the safety management certificate.
Because these certificates cover precisely the scope of the ISM
obligation (cf. regulation IX/2 of the SOLAS Convention), there is no
need to link other certificates to the safety management certificate. It
should be noted that the sequence in the issue of certificates has no
consequences for the order in which the surveys may be carried out. The
link also only applies to the certificates required at international
level. There is no ISM obligation for a high-speed craft used for
domestic voyages alone (see article 9). For this reason the issue of the
safety certificate for high-speed craft engaged on domestic voyages is
also not linked to the issue of a safety management certificate.
The link provided for in the second
paragraph between the issue of the safety management certificate and the
document of compliance arises from the systematics of the ISM Code.
Before a safety management certificate can be issued for a specific
ship, verification is required of whether the shipping company and the
managerial staff on board act in accordance with the safety management
system developed and implemented within the business organisation.
Compliance of that system with the requirements of the ISM Code, which
is evident from the document of compliance issued to the shipping
company, must however then have previously been established.
Article 27
It is in principle true for both the safety
management certificate and the document of compliance that forms part of
the ISM Code that the safety management system must have been in
practical use for some time before a ship or shipping company can be
certified (cf. article 20(2)). It should however be clear that this
requirement leads to a vicious circle in situations in which it has not
yet been possible to use the safety management system. Application of
the safety management system requires a ship to be taken into service
and that is only allowed if the necessary certificates (including the
safety management certificate) have been issued for that ship. To break
this vicious circle the ISM Code provides for provisional certificates,
for bridging the periods referred to in article 20(2).
Article 28
Like the ISM Code the ISPS Code provides for the
possibility of provisional certification of ships. The background to
this certification is not however that the ship security plan prescribed
in the ISPS Code should have first been used for a certain time; here it
is simply a matter of temporary certification where final certification
could not yet be concluded. The provisional certification differs in
another respect from the provisional certification under the ISM Code:
it is also possible on the flagging in of a ship (see the second
paragraph). This is connected with the fact that the required security
of a ship – other than the safety management system – depends in part on
the flag that the ship flies.
Article 29 to 32
Section 3(3) of the Ships Act stipulates that the
validity of the certificates is regulated by or pursuant to an order in
council. This provision is implemented in the present articles.
Article 29(1) contains the basic
rule derived from article 19 of the Load Lines Convention and regulation
I/14 of the SOLAS Convention that certificates for passenger ships
engaged on international voyages in each case have a validity not
exceeding one year, while the other international certificates have a
maximum validity of five years. The validity of the certificates was
also harmonised on the introduction of the Harmonised System of Survey
and Certification (HSSC) previously described in the explanation to
articles 13 and 14, in which the validity of the certificates is of
course geared to the HSSC survey cycles: when a certificate has to be
renewed because of the expiry of its validity, the ship is subjected to
a renewal survey. Article 29(1) also provides for the validity of the
national safety certificate. As previously noted in section 4 of the
general explanation, the national safety certificate for both cargo
ships and passenger ships has a validity of five years.
Articles 29(2), 30 and 31 contain a number of
special rules with regard to validity that likewise have been derived
from the Load Lines Convention and the SOLAS Convention. Article 29(2)
for example provides for the power of the Head of the Shipping
Inspectorate to issue certificates with a shorter validity in special
cases. The Head of the Shipping Inspectorate shall of course only make
use of this power if the issue of a certificate is justified. If he
considers the issue of a certificate, even if it is for just a short
duration, to be unjustified, then the issue shall be refused until the
surveys have been properly completed or the required details have been
obtained.
Article 30 is connected
with the flexibility of the HSSC where the point in time at which a
renewal survey must take place is concerned. The owner of a ship can,
within a certain period of time (see article 20(1)), itself decide the
point in time at which a ship must undergo the renewal survey. This can
lead to the renewal survey being completed before the validity of the
original certificate has elapsed. To be able to issue a renewal
certificate at this point that is valid with immediate effect without
this leading to a disturbance of the periodicity of the HSSC, article 30
stipulates that the validity of the renewal certificate is in fact
extended by the remaining validity of the original certificate.
Section 7(1)(b) of the Ships Act
makes it possible in special cases to depart from the rule that a
certificate lapses if the prescribed surveys have not taken place on
time. Article 31(1) refers to one such special case: if a ship cannot be
subjected to a renewal survey on time because for example it has had to
depart from its planned route owing to unforeseen circumstances, the
Head of the Shipping Inspectorate can extend the validity of the
certificates. This provision implements article 19(6) of the Load Lines
Convention and regulation I/14 (d) of the SOLAS Convention. The fourth
paragraph of article 31 also refers to such a special case.
The effect of the second paragraph
of article 31 is to implement regulation I/14 (f) of the SOLAS
Convention. The purpose of the third paragraph is, like article 30, to
prevent disturbance of the periodicity of the HSSC, albeit in this case
by reducing the validity of the renewed certificate.
The effect of article 32, in conclusion, is to
implement the instruction contained in Section 3a(3) of the Ships Act
also to provide for the validity of certificates in respect of
certificates required pursuant to article 12. Article 32 also makes it
possible to lay down detailed rules with regard to the validity of the
certificates referred to in articles 4 to 9 and 11. In principle the
validity of these certificates is already provided for in articles 29 to
31, but it is conceivable that these rules – for the implementation of a
European obligation or a decision of the IMO for example – require
further refinement.
Article 33
For the Netherlands the obligation to provide
grounds, the written requirement and the publication of decrees arise
directly from the General Administrative Law Act. The present article
consequently relates exclusively to refusals to issue a certificate in
the Netherlands Antilles and Aruba.
Article 34
Section 7(1)(d) of the Ships Act provides for the
certificates issued for a ship ceasing to have effect if the ship is
converted or undergoes radical modification. In by far the majority of
cases the certificates issued for a ship lose their validity for this
reason alone if the ship undergoes a change of use. But situations can
also arise in which a ship undergoes a change of use without being
converted or radically modified for this purpose. It is to these
situations, in implementation of Section 7(2) of the Ships Act, that the
present article refers.
The first
paragraph refers to situations in which a ship is withdrawn from its
general use as a passenger ship or cargo ship by the owner. This can
happen for example when the operation of a ship in accordance with its
original use is no longer profitable. In no way however does this always
mean that the ship is then taken out of service. It can happen that
ships are no longer used for their original commercial purpose, but are
kept in service as an ”historic ship” or a different purpose is found
for them. It should be clear that it is desirable in such a case to see
which certificates are required for that ship on the basis of the new
use of the ship.
The second
paragraph refers to the withdrawal of a ship from the special use that
it can have, such as use as a chemical or gas tanker. If the general use
of the ship is retained, there is of course no reason to cause all of
the certificates issued for the ship to become ineffective. The present
paragraph therefore provides only for the lapsing of the certificates
connected with the special use that is being terminated. For a chemical
or gas tanker these are the certificates referred to in article 8(b) and
(c) for example.
Article 35
In situations other than those referred to in
article 31 as well it can be unfair simply to cause the certificates to
lapse when a particular survey has not taken place or has not taken
place on time. Not every inattention of the owner need lead immediately
to the lapsing of all the certificates, not least because having a ship
recertified is an expensive business. The present article therefore
gives the Head of the Shipping Inspectorate the power to reinstate
lapsed certificates. The ship does however have to be surveyed to this
end to establish whether it complies with the requirements.
Article 36 and 37
Section 3a(1) of the Ships Act stipulates that the
requirements with which a ship must comply to obtain the certificates
required for that ship shall be laid down by or pursuant to an order in
council. The second paragraph adds that the rules of private bodies can
also be declared applicable in this context. This power is in line with
the practice that has existed for years in the sea shipping industry
that ships are designed and built according to the rules of a (private)
classification society chosen by the owner of the ship. These so-called
"classification rules", which relate for example to the hull and the
strength of the ship, to a certain extent form the basis of the entirety
of safety regulations with which a ship must comply; the public law
safety requirements largely build on these private rules. What we in
fact have here is concurrence with the self-regulating capability of the
(global) sea shipping sector.
The
requirement that a ship be built "under classification" is elaborated in
article 37. This article also implements regulation II-1/3-1 of the
SOLAS Convention and article 14 of Council Directive 94/57/EC of 22
November 1994 on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime
administrations (OJ L 319), in which the existing practice that a ship
is designed and built according to classification rules is now enshrined
at both international and European level.
It should be noted that the SOLAS Convention and
Directive 94/57/EC only require application of the marine engineering,
mechanical engineering and electrical engineering rules of
classification societies (cf. article 37(2)). Since 1997 however the
equipment rules of classification societies have also been declared
applicable in the Ships Decree 1965. As a consequence of this certain
legal requirements, which have no basis in international obligations,
could be scrapped. See for example Annex X of the Ships Decree 1965,
which contained detailed regulations for anchors and chains and ceased
to have effect by decree of 18 December 1997 (Bulletin of Acts and
Decrees 745). In article 37(3) this adherence to the equipment rules of
the classification societies is maintained. No further statutory
equipment regulations will in principle be given by and pursuant to the
present decree – subject to international obligations – if adherence to
existing private rules within the sea shipping sector is also possible
for this.
Article 38
The first paragraph of this article stipulates that
from a certain tonnage ships must be provided with a unique
identification number, the so-called "IMO number", which is allocated by
Lloyd's Register of Shipping in London. The obligation to this effect
arises from regulation XI-1/3 of the SOLAS Convention. The purpose of
the allocation of unique identification numbers to ships is to combat
maritime fraud. In the past it was relatively easy to alter the identity
of a ship, for example to conceal the origin of a stolen ship or, when
the ship had a bad record, in an attempt to throw the authorities off
the scent. In principle, by allocating each ship a unique number, which
is shown on the certificate of registry and the certificates and which
remains unchanged in the event of name changes or transfer to a
different register, at the time of the keel laying, it becomes very much
more difficult to falsify the identity and registration details of a
ship. With effect from 1 July 2004 the IMO number must also be indelibly
applied to the hull.
Under the SOLAS
Convention the IMO number is only mandatory for ships that have been
equipped with means of mechanical propulsion and that are used for
international voyages. This is the reason why non-mechanically propelled
ships and ships that are only used for domestic voyages have been
excepted in the second paragraph of the present article.
In addition to the obligation to
have an IMO number, the obligation contained in regulation XI-1/5 of the
SOLAS Convention to have a "Continuous Synopsis Record (CSR)" on board
will also apply with effect from 1 July 2004 (see article 38(3)). The
ownership and registration history of the ship are among the records to
be kept in the CSR. Details relating to the classification of the ship
and the certification under the ISM and the ISPS Codes will also be
recorded in the CSR. The purpose of the CSR is to provide the competent
authorities, but also the classification societies and successive
owners, with an up-to-date overview of the ship’s main particulars and
their modification history. In view of this the CSR must remain on board
the ship permanently, even when the ship changes owner or flags out to a
foreign register. In the case of the flagging out of a ship, a copy of
the CSR issued and maintained by them will also be sent by the
authorities of the state where the ship was registered to the
authorities of the new flag state, together with copies of the CSRs
issued by any previous flag states. The obligation to have a CSR on
board applies only to SOLAS convention ships. This is why high-speed
craft that are not used for international voyages are excepted in the
third paragraph.
Article 39 and 40
In addition to the private rules of the
classification societies (see article 37), section 2 of Chapter 3
contains the public law requirements with which ships must comply to
obtain a certificate. Articles 39, 40 and 42 to 45 relate to the
requirements arising from international Conventions; article 41 refers
to the requirements that are laid down for ships in connection with the
national safety certificate. In articles 39 to 45, following what is
customary in the Conventions and Codes, an integral reference to the
whole package of requirements with which a ship must comply in
connection with a particular certificate has been chosen. These
requirements can, depending on the certificate required, relate to both
the construction and equipment of the ship and to certain safety
measures for which provision must be made on board a ship. Examples of
such safety measures (in principle permanently required) are the damage
and fire control plans prescribed in regulations II-1/23 and II-2/13 of
the SOLAS Convention and also the obligation provided for in regulation
III/8 to affix clear instructions for emergency situations in various
places on the ship.
Article 39
refers to the requirements that are laid down for ships under the Load
Lines Convention. Apart from requirements concerning the watertightness
and stability of the ship, the Convention contains regulations under
which the maximum load line under diverse sailing conditions is fixed
for each ship. This maximum load line, which is evident from the load
line marks made on the ship and from the international load line
certificate issued for the ship, is decisive for the minimum freeboard
that a ship must adhere to on a given voyage. The greater the freeboard
to be adhered to for a given voyage, the less deep the ship can be
loaded.
Article 40 contains the
general requirements under the SOLAS Convention. Ships for which a
passenger ship or cargo ship safety certificate is required must comply
with all the requirements of the SOLAS Convention: the construction
requirements of Chapter II-1, the fire safety requirements of Chapter
II-2 and the requirements of Chapters III (life-saving appliances), IV
(radiocommunication) and V (navigation). Bulk ships must also comply
with the additional requirements of Chapter XII. Cargo ships of 300 to
500 GT, for which a radio safety certificate is all that is required
under the Convention, must comply with the radiocommunication
requirements contained in the SOLAS Convention in connection with that
certificate. These requirements for the most part appear in Chapter IV
of the Convention, but partly also in Chapter III, that is as regards
the means of radiocommunication required on board certain group
life-saving appliances.
Article
40(3) contains a special provision regarding the requirements of Chapter
V of the SOLAS Convention. Notwithstanding the general scope of the
Convention (which in principle only applies to ships that are used for
international voyages and to cargo ships also only from a certain
tonnage), Chapter V of the Convention applies to all ships on all
voyages (see regulation V/1). Broadly speaking Chapter V therefore also
applies to cargo ships of less than 500 GT that are used for
international voyages and to all ships on domestic voyages. The flag
state does have the power to except certain categories of ship from a
number of subparagraphs of Chapter V (see regulation V/1.4), but the
history of the creation of Chapter V and the formulation chosen show
that this is clearly intended as an exception and not as a rule. In view
of this and also to remain as close as possible to the text of the
Convention, Article 40(3) has been formulated so that the basic
assumption that Chapter V in principle applies to all ships on all
voyages is the main thing.
Article 41
The present Article relates to the requirements made
of a ship in connection with the national safety certificate. As regards
content it is in line, following the Ships Decree 1965, with the
requirements of the SOLAS Convention and – where that Convention is not
applicable on its own account – the requirements of the Load Lines
Convention (see the first and third paragraphs). In the first paragraph
the requirements of the SOLAS Convention are also declared applicable
mutatis mutandis to ships with a gross tonnage that is less than the
lower limits of 500 or 300 GT employed in principle in Chapters II-1 to
IV of that Convention. To avoid any misunderstanding about the
requirements applicable to these ships, the second paragraph stipulates
that ships that have a lower gross tonnage than the tonnage applying in
principle as lower limit for the application of a particular Chapter are
equated with ships of 500 or 300 GT respectively.
As in article 15(1) cargo ships with a length of less
than 24 metres are excepted from the application mutatis mutandis of the
SOLAS Convention in the present article. For this category of ships
provision will be made for requirements by ministerial regulation (see
the fourth paragraph). The background to the special position of cargo
ships up to 24 metres has previously been considered in the explanation
to article 15.
The fifth paragraph
is connected with the fact that it already follows from article 40(3)
that a ship for which a national safety certificate is required must
comply with the requirements of Chapter V of the SOLAS Convention. That
Chapter after all applies to all ships on all voyages. This is the
reason why Chapter V is also declared not applicable mutatis mutandis in
the first paragraph of this article. It is sufficient to make the
provision contained in the fifth paragraph that the requirements of
Chapter V of the SOLAS Convention form part of the certification
framework that applies to ships for which a national safety certificate
is required.
Article 42
Article 16 provides for the owner of a high-speed
craft electing to have that ship certified in accordance with the
applicable HSC Code. The ship does not then need to comply with the
requirements of Chapters II-1 to IV of the SOLAS Convention: regulation
X/3 of the Convention provides for the requirements of the HSC Codes
being equivalent to the requirements of Chapters II-1 to IV. The same
applies to a number of requirements of Chapter V of the Convention. But
otherwise a high-speed craft simply has to comply with the requirements
of Chapter V (see article 42(2)).
Article 44
The requirements that are made of a ship in
connection with the international security certificate relate mainly to
the management of the ship (see article 50). Regulation XI-2/6 of the
SOLAS Convention however also lays down the equipment requirement in
connection with this certificate that a ship must be equipped with an
alarm system ("Security Alert System") with which it can alert the
authorities and the owner’s shore organisation if the safety
("security") of the ship is at issue.
Article 45
Regulations I/7 and I/8 of the SOLAS Convention
stipulate that the surveys to which passenger ships and cargo ships from
500 GT are subjected in connection with the safety certificates required
in part concern the equipment requirements of the London Convention on
the International Regulations for Preventing Collisions at Sea adopted
on 20 October 1972 (Treaties Journal 1974, 51). In view of this the
present article provides for the requirements of this Convention also
forming part of the certification framework for ships for which an
international or national safety certificate is required and for this
certificate only being issued if the requirements of the so-called
"Collision Convention" have been met.
Otherwise the Collision Convention also applies to ships not requiring
a certificate. In view of the obligation resting on the master of a ship
under Section 4(1)(d) of the Ships Act to ensure that "all the equipment
necessary for compliance with the provisions for preventing collisions"
is on board, the first paragraph therefore stipulates that the
requirements of the Collision Convention apply to all ships.
Article 46
The first paragraph of this article provides for the
instruction also to lay down safety requirements for ships in connection
with a certificate required pursuant to article 12 (cf. article 22(1)).
Article 51 contains a similar provision with regard to the management of
ships.
The second paragraph makes it
possible to set detailed rules regarding the requirements of ships for
which a certificate as referred to in articles 4 to 9 is required. IMO
resolutions that provide the details of the international requirements
and also European Directives that provide for additional requirements in
respect of the Conventions can be implemented under the second
paragraph. Restraint will otherwise be exercised with the power to
provide details of the international requirements. In the light of the
increased social need for less detailed regulatory measures and more
target regulations, the discretionary freedom that is provided in the
Conventions and Codes for the concrete details of certain requirements
will be fleshed out less than in the past by means of statutory rules
and more will be left to the discretion of the Head of the Shipping
Inspectorate, in order that better customisation can be delivered in
consultation with the owner of a ship. This approach is also in line
with the international trend to work more with target regulations and
less with means regulations previously outlined in section 5 of the
general explanation.
Article 47
The Conventions and Codes referred to in articles 39
to 45 contain various provisions under which the Administration may
permit departure from the requirements laid down in those Conventions
and Codes if a similar level of safety can be achieved by means of an
equivalent arrangement. One of the purposes of these ”equivalent
arrangement” provisions is to make the application of new, innovative
techniques and arrangements possible, but they can of course also be
used for the application of alternatives that have already been in
existence for a long time. The condition is that in the opinion of the
Head of the Shipping Inspectorate an equivalent arrangement must be
equivalent to the arrangement prescribed by the relevant Convention or
the relevant Code. A further condition of course is that the Convention
or the Code provides scope for equivalent arrangements: in making use of
the power assigned to him in this article the Head of the Shipping
Inspectorate is bound by the stipulations in this regard in the
Convention or the Code.
Article 48
The Conventions stipulate that a great number of the
appliances forming part of the equipment of a ship must be of a type
approved by the Administration. The requirement of prior (type) approval
by the Administration also applies to certain parts and materials. For
convention ships registered in the Netherlands these approval
requirements have now largely been put into effect by Council Directive
96/98/EC of 20 December 1996 on marine equipment (OJ 1997 L 46). Under
this Directive all the equipment referred to in Annex A.1 of the
Directive intended for placement on board community convention ships
must have been inspected in accordance with the Directive and have been
provided with a mark of conformity. This mark, which is symbolised by
the illustration of a ship’s wheel, counts as the required type approval
for the application of the Conventions.
The first paragraph provides a basis for the approval
requirements to be laid down for marine equipment and other parts and
materials. Equipment covered by Directive 96/98/EC and intended for
placement on board Dutch convention ships will of course be subject to
the approval requirement that it must be inspected and marked in
accordance with the Directive. For equipment intended for Netherlands
Antilles and Aruban ships and equipment that is not (yet) covered by
Annex A.1 of the Directive substantive approval requirements will be
laid down, which will implement the type approval provisions of the
Conventions.
The second paragraph
makes it possible to involve private inspection agencies in the
implementation of the first paragraph. This is especially important for
the inspection of equipment that is not covered by Directive 96/98/EC.
After all the Directive does have its own regime for the designation of
inspection agencies responsible for activities under the Directive,
which has been implemented for the Netherlands by means of the Marine
Equipment Act. Private individuals can also be designated under the
second paragraph to be responsible for surveys or calibration of
equipment present on board ships. This is not a matter of the (type)
approval of equipment, but of periodic surveys whose purpose is to
verify that the equipment is still functioning properly. An example in
this regard is the activities of compass setters, who in principle
undertake annual verifications that the compasses needed on board are
not deviating excessively.
Article 49 to 51
The present articles refer to the requirements that
are made of the management of ships. Articles 49 and 50 relate to the
international requirements that are laid down for the management with a
view to safety management and the security of ships. Consideration of
the background to these requirements has previously been given in the
article-by-article explanation to article 9 and in section 5 of the
general explanation. Article 51, finally, also provides for the power –
whether or not in connection with a certificate required pursuant to
article 12 – to lay down detailed rules in respect of the management of
ships.
Article 52 to 54
Chapter 4 contains regulations relating to the
carriage of cargo. Under Sections 4(1)(n) and 9(1)(l) of the Ships Act
the obligation to ensure that these regulations are observed rests with
the master. The regulations relating to the carriage of cargo also cover
the loading of the ship and the stowage and also the unloading of the
cargo.
Chapter 4, following Chapters
VI (Carriage of Cargoes) and VII (Carriage of Dangerous Goods) of the
SOLAS Convention, makes a distinction between the carriage of cargo to
which, apart from risks for the ship or the persons on board,
environmental risk is attached (’dangerous cargo’) and other cargo. The
present articles relate to the carriage of cargo to which no direct
environmental risk is attached. The effect of the SOLAS regulations to
which reference is made in these articles is primarily to guarantee the
safety of the ship and the persons on board.
The effect of article 52 is to implement Part A of
Chapter VI of the SOLAS Convention, which contains general regulations
for the carriage of cargo. One of the provisions in Part A is that the
master must obtain adequate information regarding the cargo to be taken
on board in good time, before the ship is loaded, in order that he can
ensure the correct loading of the ship and take the precautionary
measures for the safe carriage of that cargo (regulation VI/2). Part A
also contains regulations for the loading and the stowage (see
regulation VI/5).
The effect of
article 53(1) and (2) is to implement Parts B and C of Chapter VI. These
Parts contain special regulations for the carriage of grain and other
cargo in bulk. Consideration of the carriage of grain, for which a
special certificate is also required (see article 8(1)(a)), has
previously been given in the article-by-article explanation to article
8. The special properties of grain (and similar cargo) mean that in
certain respects grain in bulk can start to behave (’shift’) like a
liquid, with adverse consequences for the stability of the ship. For
this reason ships that are used for the carriage of grain must be
compartmentalised by alongship partitions. In a ship without any side
tanks this can be done through the installation of so-called ’grain
bulkheads’. The carriage of grain is provided for in Part C of Chapter
VI and the Grain Code required under that Part.
Part B of Chapter VI refers to the carriage of other
cargoes in bulk. Different regulations apply to these cargoes from those
for bulk grain. An important regulation to be taken into account in the
carriage of cargoes in bulk is regulation VI/7, which relates to the
loading and unloading of cargo in bulk. It is of course important for
the stability of the ship that the cargo is evenly distributed over the
ship. It is also very important however that both the loading and the
unloading of the ship proceed with some caution. If a ship is loaded or
unloaded incorrectly, the structure of the ship can be overloaded, as a
consequence of which the ship ’ under the effect of the dynamic forces
of the beating of the waves for example ’ can break at sea. Regulation
VI/7 therefore requires the master to lay down a loading and unloading
plan in consultation with the loading and unloading terminal, in which
account is taken of the maximum load-bearing capacity of the structure
of the ship.
Article 53(3) contains
a supplementary provision for bulk ships. In practice bulk ships have
proven to run a higher safety risk on average than other ships. For this
reason additional safety regulations, which can be found in Chapter XII
of the SOLAS Convention, have applied to bulk ships from 1 July 1999. If
the carriage of cargo in bulk is taking place on a bulk ship, the
regulations of Chapter XII must also be observed. In articles 52 and 53,
as in articles 55 to 57, no distinction is made between domestic voyages
and international voyages. For the regulations concerning the carriage
of dangerous goods contained in articles 55 to 57 this is connected with
the fact that ’ as previously set out in the explanation to article 8 ’
the often more sheltered nature of domestic voyages is no reason to
permit a relaxation of the international requirements of the carriage of
dangerous goods. Because ships engaged on domestic voyages stay closer
to the coast, the importance of safety tends to increase rather than
decrease. A consideration for declaring the general regulations for the
carriage of cargo applicable as well is that the specific risks against
which these regulations seek to protect do not essentially differ for
ships engaged on domestic voyages from the risks for ships engaged on
international voyages. The risk of overloading of the ship’s structure
due to incorrect loading and unloading is no less for ships engaged on
domestic voyages than for ships engaged on international voyages, while
as far as the carriage of grain is concerned the shifting of cargo
usually occurs shortly after leaving port. The nature of the proposed
voyage is not relevant here. It has therefore been decided to make
Chapter 4 applicable both to ships engaged on international voyages and
to ships engaged on domestic voyages. Since it would have little added
value in the context of Chapter 4, expressly stipulating that the
regulations of Chapters VI and VII of the SOLAS Convention are
applicable mutatis mutandis to ships engaged on domestic voyages in each
case has been avoided.
Article 54
contains a basis for detailed rules regarding the carriage of cargo.
Under this article IMO resolutions or European obligations can be
implemented or detailed rules can be laid down to implement the
regulations referred to in articles 52 and 53.
Finally, it should also be noted that the regulations
of Chapter VI of the SOLAS Convention are not bound to a gross tonnage
limit and therefore also apply to cargo ships with a gross tonnage of
less than 500 GT (cf. the explanation to article 8).
Article 55 to 57
The present articles implement Chapter VII of the
SOLAS Convention, which contains specific regulations for the carriage
of dangerous goods. Since 1 January 58 2004 Chapter VII has consisted of
five parts. Parts A and A-1 refer to the carriage of packaged dangerous
goods and the carriage of dangerous goods in solid form or in bulk.
Parts B and C refer to the carriage of dangerous chemicals in bulk and
the carriage of liquefied gases in bulk. Part D, finally, relates to the
carriage of irradiated nuclear fuels, plutonium and high-level
radioactive waste. As with Chapter VI the applicability of Chapter VII
of the SOLAS Convention is not bound to a gross tonnage limit. Chapter
VII is therefore also applicable to cargo ships with a gross tonnage of
less than 500 GT. The regulations of Chapter VII are largely elaborated
in specific Codes. Part A refers to the International Maritime Dangerous
Goods (IMDG) Code adopted by resolution MSC.122(75) of the Maritime
Safety Committee of the IMO, the application of which has been mandatory
at international level since 1 January 2004. Apart from a classification
of dangerous goods, the said Code contains regulations for the carriage
of packaged dangerous goods. Parts B to D also declare the IBC, IGC and
INF Codes applicable. These last three Codes also contain suitability
requirements for ships, evidence of which must be apparent from a
certificate issued under the Code (cf. article 8(1)(b), (d) and (f)).
Apart from the IBC and IGC Codes
applicable under the SOLAS Convention, article 57 declares the
internationally recommended predecessors of these Codes, the BCH and GC
Codes, applicable. The IBC and IGC Codes are only applicable to ships
built on or after 1 July 1986. In view of the importance of safety
involved with the carriage of dangerous chemicals and liquefied gases,
it is however desirable to regulate the carriage of dangerous chemicals
and liquefied gases on older ships as well. For this reason – as in
article 8(1)(c) and (e) – the application of the BCH and GC Codes is
also declared mandatory.
Article 59
This article makes it possible to involve natural
persons or corporate bodies with the implementation of the rules laid
down by or pursuant to articles 52 to 58 as well. In a number of cases
the ship or the cargo must first have been surveyed before the ship is
allowed to make a voyage with that cargo. An example is the survey
prescribed by the IMDG Code with regard to (the ban on) the combined
cargo of different dangerous goods. Goods that would bring about a
hazardous reaction on mixing or contact may not be carried in one
another’s proximity. In practice the surveys of whether the regulations
regarding combined cargo have been observed are usually carried out by
the port authority or other (private) companies. The present article
provides a basis for this.
Article 60 to 62
Chapter 5 refers to the obligations of the master.
On him rests the responsibility for the operational safety of the ship
and the personal safety of the persons on board. In view of this the
master must satisfy himself prior to a voyage that the ship is seaworthy
and properly equipped and during a voyage must ensure that any defects
in ship or equipment are rectified as far as possible. He must also take
appropriate measures to protect the ship and the persons on board
against the perils of the sea and against other perils that can occur on
board a ship, such as the risk of fire. The master must for example
ensure that crew and passengers are familiar with the use of the
life-saving appliances and that disembarkation and fire safety drills
are held. The master is of course also responsible for the safety of
navigation, both with a view to the safety of his own ship and to the
safety of other shipping.
The
responsibilities of the master are largely defined in detail in the
Conventions and Codes. The Load Lines Convention (see article 60)
contains the regulations that the master has to take into account in
connection with the ship”s load line. On each voyage the master has to
ensure that the ship does not have less freeboard than is permitted for
the ship on that voyage. The freeboard to be observed can vary from one
voyage to another. The season and the area of navigation are among the
decisive factors. In the Load Lines Convention the world is divided into
zones for which, depending on the climatological conditions and the
season, the minimum freeboard to be observed in that zone is stipulated.
This can also mean that on departure from a certain port it is not the
minimum freeboard applying locally that can be observed, because account
must be taken of the passage through an area in which a greater
freeboard is required. Even on its departure the ship will in
consequence have to be loaded less deep in this case.
Article 61 refers to the obligations arising
from the SOLAS Convention, starting with the obligations under Chapter V
of that Convention. In the explanation to article 40(3) it has
previously been indicated that Chapter V ” notwithstanding the general
scope of the SOLAS Convention ” is applicable to all ships on all
voyages. This also applies to the ”operational” regulations of Chapter
V. Examples of the regulations that the master has to take into account
under Chapter V (”safety of navigation”) are the obligation to prepare a
voyage and to plan the proposed route (regulation V/34), the obligation
to test the steering gear 12 hours before departure (regulation V/26)
and the obligation to make appropriate use of routing systems
(regulation V/10). The master is also obliged to transmit danger
messages to alert other shipping of any hazards that he has observed
(regulation V/31).
Apart from the
regulations of Chapter V, the operational regulations of Chapters II-1
to IV of the SOLAS Convention (article 61(2)) also apply to ships for
which an international passenger ship or cargo ship safety certificate
is required under the SOLAS Convention. Where Chapter V of the SOLAS
Convention refers to the safety of navigation, Chapters II-1 to IV refer
to a number of other important safety aspects. The operational
regulations of Chapter II-1 relate mainly to the ”watertightness” of the
ship. On embarking on a voyage the master must ensure that, as Section
4(1)(a) of the Ships Act puts it, ”all the relevant openings inboard and
outboard” are closed. This applies for example to the watertight doors
and the cargo doors, which must be closed prior to the voyage and must
remain closed during the voyage (cf. regulations II-1/15.10 and
II-1/20-1). Chapter II-2 contains regulations with regard to fire safety
on board ship, while Chapter III refers to the life-saving appliances
and the personal safety of the persons on board. Both Chapters require
that the fire safety and life-saving appliances on board be tested (cf.
regulations II2/14 and III/20) and that fire safety and disembarkation
drills be held (cf. regulations II-2/15 and III/19) with some
regularity. Chapter IV, finally, relates to radiocommunication and for
example stipulates that a continuous radio watch must be maintained on
board a ship at sea (see regulation IV/12). This latter Chapter is also
applicable to cargo ships for which a radio safety certificate is
required (article 61(3)).
Articles
60(2) and 61(4) stipulate that the operational regulations of the Load
Lines Convention and the SOLAS Convention, Chapters II-1 to IV, also
apply to ships for which a national safety certificate is required. This
is in line with article 41, in which the requirements arising from these
Conventions were also declared applicable mutatis mutandis. As in
article 41 cargo ships with a length up to 24 metres are excepted in
articles 60(2) and 61(4). In article 60 this exception is connected with
the scope of the Load Lines Convention, which after all only applies
from 24 metres. The background to the exception in article 61 is that
the operational regulations to be observed on board a ship are often
related to the technical requirements that apply to that ship. Since
these requirements for cargo ships up to 24 metres are laid down by
ministerial regulation (see article 41(4)), the obvious thing to do is
lay down the operational regulations for these ships by ministerial
regulation as well. Article 65 provides for the basis required for this.
Article 62 contains a special
provision with regard to the operational regulations that have to be
observed on board high-speed craft. These regulations are connected in
part with the special requirements that apply to high-speed craft under
the HSC Code 1994 or 2000. For this reason the HSC Codes contain
specific operational regulations for high-speed craft.
Article 63
This article refers to the regulations that are
connected with the management of ships. The obligation to develop a
safety management system and a ship security plan for the ship rests
with the owner (see articles 49 and 50). Also resting with him initially
is the obligation to ensure its implementation, but the master of the
ship is responsible for the safety management system and the ship
security plan actually being used. This has no effect on the possibility
of assigning the actual care for the application of the safety
management system or the ship security plan to a member of the crew. For
the security of a ship this will be the "ship security officer" (SSO),
who under the ISPS Code must be appointed on board any ship for which an
international ship security certificate is required. Final
responsibility however always rests with the master. Under regulation
XI-2/8.2 of the SOLAS Convention the latter also has the power, if in
his opinion the safety of the ship so requires, to suspend temporarily
the security measures arising from the ship security plan (known as
"Master's discretion").
The present
article also refers to the regulations and obligations applying under
Chapter XI-2 of the SOLAS Convention. In the first place there is the
general obligation to ensure that the security of the ship complies with
the requirements that are made in this regard under Chapter XI-2 and
that the security level on board the ship is increased if there is
reason to do so (regulation XI-2/4). Chapter XI-2 however also contains
regulations that the master has to take into account when putting into a
port (see regulation XI-2/9.2).
Article 64
As previously indicated in section 6 of the general
explanation, the obligation to keep the ship’s logs involves a
substantial amount of administrative burden for the industry. The
obligation to keep a ship’s log largely arises however from
international regulations. The Conventions and Codes contain a large
number of provisions relating to the details to be recorded in ship’s
logs. The subjects concerned are fairly diverse, ranging from the
closing of the watertight doors (see regulation II-1/15.9.4 of the SOLAS
Convention) to the holding of the fire safety and disembarkation drills
(see regulation III/19.5 of the SOLAS Convention). The decree however
will no longer contain any "domestic" obligations to keep the logs. All
that need be stated is that which has been prescribed internationally
(see the present article). Nor, following article I(B) of the proposed
amendment of the Ships Act in connection with the passing of the
Research Council for Safety Act and the introduction of a new regulation
of disciplinary proceedings for the sea shipping industry (Parliamentary
Documents II 2003/2004, ’.), is any obligation to submit the logs
regularly included in the decree any more. It should also be noted that
the present article does not refer to international regulations that
require a record to be kept of a particular activity or a particular
regulation if it is not thereby stipulated that this must be done in a
ship’s log. If only the obligation to keep particular details exists, it
is for the master and the owner to specify a suitable medium for it.
This can be the log, but this is not mandatory.
Article 65
The effect of the present article in the first place
is to enable operational regulations to be laid down for cargo ships
with a length of less than 24 metres for which a national safety
certificate is required or ships for which a certificate as referred to
in article 12 is required. The present article also provides for the
possibility, for the implementation of European obligations for example,
of laying down detailed rules regarding the regulations to be taken into
account on board ships as referred to in articles 60 to 62.
Article 66
This article refers to a special obligation in
Chapter V of the SOLAS Convention: the obligation to come to the
assistance of persons who are in distress at sea (see also Section
9(1)(f) of the Ships Act). This obligation is defined in detail in
regulation V/33 of the SOLAS Convention. The origin of the second
paragraph too can be found in regulation V/33: section 2 of this
regulation stipulates that the master of a ship in distress has the
right to request the assistance of other ships. The master of a ship so
requested is, with due regard for the provisions of regulation V/33 in
this regard, obliged to respond to this request.
Article 67
It has previously been noted in the explanation to
articles 13 and 14 that the surveys to which a ship is subject during
the validity of a certificate can also be of an incidental nature.
Incidental surveys are required for example when a ship has suffered
damage. In view of this the present article (which for example
implements regulation I/11.c of the SOLAS Convention) stipulates that
the master must report damage and defects that may affect the safety of
the ship, in order that the ship – if the Shipping Inspectorate or the
classification society deems this necessary – can be surveyed. The
master also has to notify the authorities in whichever foreign port he
happens to be. Under the Conventions the port state has the obligation
not to allow ships suspected of not (no longer) complying with the
international requirements to leave port (cf. regulation I/19 of the
SOLAS Convention).
Article 68
Chapter XII of the Ships Decree 1965 contains a
number of special regulations with regard to war and risk of war. These
regulations date from shortly after the Second World War (see the
amending decree of 7 June 1947, Bulletin of Acts and Decrees H 173, in
which a new Chapter XI about war and risk of war was added to the Ships
Decree of the time). The Ships Decree 1952 also contained a Chapter
about war and risk of war, which was taken over almost unamended when
the Ships Decree 1965 was passed. Nowadays there is no longer any need
for the majority of these special regulations. For this reason most of
the regulations with regard to war and risk of war do not appear in the
present decree. Only the obligation with regard to the marine documents
is maintained in the decree: see the first paragraph. The second
paragraph provides for the possibility in the future of the marine
documents being supplied on CD-ROM or for example being available for
downloading from the internet.
Article 69
The present article implements article IV of the
SOLAS Convention and article 7 of the Load Lines Convention for
example.
Article 70
Provision for the publication of the Conventions
applicable under this decree has already been made by the Act on the
Approval and Publication of Treaties: they are published in the Treaties
Journal. The Codes laid down by the IMO are not usually published in the
Treaties Journal however. For this reason the present article stipulates
that provision for the publication of the Codes applicable under this
decree shall be made by the Minister for Transport, Public Works &
Water Management.
In addition to the
formal publication for which this article provides, it is the intention
to publish the Conventions and Codes applicable under this decree
electronically as well. In line with government policy to make
legislation and regulations accessible by way of the internet as well,
the Transport, Public Works & Water Management Inspectorate is
currently working on an internet site on which Conventions, Codes and
other relevant IMO documents can easily be consulted.
Article 71
There is dynamic reference in the decree to the
Conventions and Codes applicable under the decree. In connection with
this the present article provides for the point in time at which changes
in those Conventions and Codes filter through for the application of the
decree. In view of the international nature of the shipping sector and
the fact that the relevant European regulations also in principle follow
the international dates of entry into force, harmonisation has been
sought with the point in time at which amendments take effect
internationally. The first paragraph does however provide for the
possibility of breaking the automatic filtering through of amendments by
ministerial decree. This is for example important in view of community
regulations that can require accelerated implementation of Convention
amendments or amendments of Codes, but also in view of the power of the
(European) Committee on Safe Seas and Prevention of Pollution from Ships
(COSS) recently introduced in the European maritime regulations to
exclude amendments of the Conventions for the application of community
shipping regulations. In this connection see Regulation (EC) No
2099/2002 and Directive 2002/84/EC previously quoted in section 3 of the
general part of this explanation, by which a system of dynamic
references to the international Conventions has been introduced in the
community shipping regulations.
The
second paragraph refers to the so-called "grandfather clauses"
(provisions in respect of deferring effect) that are usual with
amendments of the Conventions and Codes. To prevent existing ships
having to undergo radical conversions or adaptations or having to
replace their equipment (prematurely), on amendment of the construction
and equipment requirements it is usually stipulated that the
requirements previously in force remain applicable to existing ships.
The deferring effect of the grandfather clauses is not absolute however.
In the event of repairs, conversions and other changes in the condition
or equipment of the ship, the new requirements must – –as far as
practically possible– – often be applied nonetheless. The Conventions
and Codes contain detailed rules for this, which must be taken into
account on the application of the grandfather clauses.
The effect of the third paragraph is to allow
the amendments of the Conventions and Codes and the associated
transitional provisions that have come into force before the entry into
force of this decree to filter through into the decree. By declaring the
Conventions and Codes in fact applicable from their original
international entry into force, the Ships Decree 1965 can also be
replaced by the present decree in respect of existing ships and no
complicated transitional law needs to be effected for those ships to
harmonise the Ships Decree 1965 with the present decree.
Article 72
In the article-by-article explanation to article 4
it has previously been noted that before 21 July 1968 a different lower
limit applied for the application of the Load Lines Convention than the
limit of 24 metres now contained in article 4. At the time there was an
obligation for an international load line certificate to be provided for
ships from 150 register tons. In view of this the first paragraph of the
present article provides for the obligation referred to in article 4 not
being applicable to ships built before 21 July 1968, in so far as these
ships are more than 24 metres, but less than 150 register tons.
Since 1994 all ships have been
measured in accordance with the International Convention on the Tonnage
Measurement of Ships of 1969. A limited number of ships however still
have certificates of tonnage that were issued in accordance with the
provisions of the Convention on a Uniform System of Tonnage Measurements
of Ships of 1947. The gross capacity of these so-called "green stamp"
ships (on account of the stamp on their certificate of tonnage) was not
recorded in GT, but in the unit gross register ton (GRT). Since the unit
GRT is larger than the unit GT, ships that were built just below the
tonnage limits at the time (for example 499.9 GRT), now come out over
the tonnage limits. In accordance with resolution A.791(19) of the
General Meeting of the IMO, where the application of SOLAS Convention
regulations tied to tonnage limits is concerned, the gross capacity in
GRT may therefore continue to be used for these ships. In view of this
the second paragraph provides for an equalisation of the unit GRT with
the unit GT.
The purpose of the
third paragraph is to make possible a flexible transition for
non-convention ships from the certificate of seaworthiness to the new
national safety certificate. It would be unreasonable (and practically
impossible) to make the national safety certificate mandatory with
immediate effect. For this reason it has been stipulated that the
obligation to have a national safety certificate for an individual ship
does not take effect until the certificate of seaworthiness issued for
that ship loses its validity. Leaving special circumstances aside, this
means that the ship does not need to be provided with a national safety
certificate until the next survey in connection with the renewal of its
certificates.
In practice nearly all
Dutch ships comply with the SOLAS Convention requirements currently in
force. A ship failing to comply with these requirements would risk
arrest in a foreign port by the port state inspection authorities. For
this reason the Shipping Inspectorate has already been certifying on the
basis of the SOLAS requirements in force, to prevent the implementation
backlog that existed with regard to certain SOLAS amendments causing
problems for Dutch ships abroad. This certification in accordance with
SOLAS was also formalised in 2002 by means of the Ships Decree
(Temporary Exemption Regulation) 1965 (Official Gazette 2002, 201). A
provision has been included in the fourth paragraph of the present
article for the special case that a ship does not yet comply with the
SOLAS Convention requirements currently in force.
Article 73 and 74
In view of the existing SOLAS implementation backlog
and the forthcoming international entry into force of the Maritime
Security measures, it is very important that for convention ships the
decree can enter into force as soon as possible. For this reason
provision has been made for the possibility of phased entry into force
of the present decree and, related to this, the phased withdrawal of the
Ships Decree 1965. In this way we can prevent the entry into force of
the decree in respect of convention ships being delayed where certain
implementing regulations for non-convention ships – for example because
of an extension of the standstill period in the context of the European
notification of technical regulations – were not yet ready.