Merchant Shipping Act 1995: An Annotated Guide

Nevil Phillips, Nicholas Craig

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9781000289930
• Edition: 2
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

The long-awaited consolidation of the UK merchant shipping legislation finally arrived with the passing of the Merchant Shipping Act 1995 which replaced the thirty or so Acts dating from the Merchant Shipping Act 1894. This new edition of Merchant Shipping Act 1995 - An Annotated Guide provides an authoritative and practical guide to the implications of this important legislation.Written in a clear and accessible style, the authors guide you chronologically through each of the Act's 313 sections. They include expert commentary and analysis to assist your understanding and interpretation of the Act.Merchant Shipping Act 1995 - An Annotated Guide is an essential first-stop reference guide, providing guidance on the appropriate authorities and more detailed texts to which further reference can be made. It is also annotated throughout with comprehensive tables and indexes, making it a truly practical working tool.

Thoroughly revised and up-dated, the second edition includes details of

Amendments to the Merchant Shipping Act 1995

The Merchant Shipping and Maritime Security Act 1997

Statutory instruments and regulations introduced to supplement the Merchant Shipping Act

The most recent case law

Updated references to other texts, which have themselves been updated in the last 4 years

Merchant Shipping Act 1995

1995 Chapter 21

An Act to consolidate the Merchant Shipping Acts 1894 to 1994 and other enactments relating to merchant shipping.

[19th July 1995]

PART I BRITISH SHIPS

British ships and United Kingdom ships

1.— (1) A ship is a British ship if—

(a) the ship is registered¹ in the United Kingdom under Part II; or

(b) the ship is, as a Government ship,² registered in the United Kingdom in pursuance of an Order in Council under section 308; or

(c) the ship is registered under the law of a relevant British possession; or

(d) the ship is a small ship³ other than a fishing vessel and—

(i) is not registered under Part II, but

(ii) is wholly owned by qualified owners,⁴ and

(iii) is not registered under the law of a country outside the United Kingdom.

(2) For the purposes of subsection (1)(d) above—

“qualified owners” means persons of such description qualified to own British ships as is prescribed by regulations made by the Secretary of State for the purposes of that paragraph; and

“small ship” means a ship less than 24 metres in length (”length” having the same meaning as in the tonnage regulations⁵).⁶

(3) A ship is a “United Kingdom ship” for the purposes of this Act (except section 85 and 144(3)) if the ship is registered in the United Kingdom under Part II (and in Part V “United Kingdom fishing vessel” has a corresponding meaning).⁷

NOTES

1. See sections 8 to 23.

2. See section 308 for the application of the Act to Government ships.

3. See section 1(2) of the Act for the meaning to be given to “small ship”.

4. See section 1(2) of the Act for the meaning to be given to “qualified owner”.

5. See section 19 of the Act for consideration of the Tonnage Regulations.

6. Section 1(1) and (2) of the 1995 Act derive from the Merchant Shipping (Registration, etc.) Act 1993. Schedule 3 to the 1993 Act addressed the position of the British ship under merchant shipping legislation in England and Wales. Paragraphs 1(1) and (2) of the Schedule, which substantially reenacted the Merchant Shipping Act 1988 section 2, were identical in their terms to section 1(1) and (2) of the 1995 Act. The purpose of section 1(1) and (2) is to determine which vessels are to be considered under the Act as being British. section 1(1) (a) to (c) have the effect of ensuring that all British ships, save for those which fall within section 1(1)(d), are registered in the United Kingdom or a colony. In order for a vessel not to be registered in the United Kingdom it must fall within section 1(1) (d) and must meet the three criteria set out in section 1(1) (d) (i) to (iii). In meeting the criteria, owners of small ships other than fishing vessels are permitted under the Act to avoid registration, while the vessel will still qualify as a British ship.
The classification of a vessel as a British ship will give rise to a number of consequences. Significantly, the British Government is able to exercise a large number of powers in relation to British vessels and the application of the 1995 Act, in consolidating the central provisions of merchant shipping legislation, will subject such vessels to British safety and supervisory requirements. The exercise of these powers by the Government is accepted within international law as being not restricted to British waters, but exerciseable in respect of any vessel flying the British flag, although there is increasing recognition of an element of “port state” control through which the legislation of the state which governs the port in which a vessel is operating may retain some regulatory or supervisory powers regardless of the flag of the vessel: see section 32 of the 1988 Act and sections 94, 95, 98 and 100 of the present Act.

7. section 1(3) of the 1995 Act derives from Schedule 4 to the 1993 Act which in paragraph 1(1) defined what was to be understood by “United Kingdom ship”. A vessel will be a United Kingdom ship, quite simply, if it is registered in the United Kingdom under Part II of the Act. The exceptions to the definition provided by section 1(3) are contained in section 85 and section 144 of the Act. section 85(2) extends the definition of a United Kingdom ship to include a vessel which is not registered under the law of any country but is wholly owned by persons each of whom is (i) a British citizen, a British Dependent Territories citizen or a British Overseas citizen, or (ii) a body corporate which is established under the law of a part of the United Kingdom and has its principal place of business in the United Kingdom. This extension applies only for the purposes of section 85(1), which provides for the making of regulations by the Secretary of State in respect of health and safety on board United Kingdom ships, and for the purposes of section 144(1) which permits a harbour master to detain a vessel suspected of committing an offence in respect of oil pollution under section 131 (see section 144(3)).

British flag

2.— (1) The flag which every British ship¹ is entitled to fly is the red ensign (without any defacement or modification) and, subject to subsections (2) and (3) below, no other colours.

(2) Subsection (1) above does not apply to Government ships.²

(3) The following are also proper national colours,³ that is to say—

(a) any colours allowed to be worn in pursuance of a warrant from Her Majesty or from the Secretary of State;

(b) in the case of British ships registered in a relevant British possession, any colours consisting of the red ensign defaced or modified whose adoption for ships registered in that possession is authorised or confirmed by Her Majesty by Order in Council.⁴

(4) Any Order under subsection (3) (b) above shall be laid before Parliament after being made.⁵

NOTES

1. See section 1(1) of the Act for the meaning to be given to “British ship”.

2. For the general application of the Act to “Government ships” see section 308.

3. Section 2(1) to (3) effectively reenacts paragraph 2 of Schedule 3 to the 1993 Act and section 73(1) of the Merchant Shipping Act 1894. It seeks to identify the red ensign which British vessels may wear. The red ensign consists of a red jack with a Union Jack incorporated in a canton in the upper corner. Her Majesty’s ships will wear the white ensign. Under section 2(3) a vessel may wear colours other than the red ensign. The ensigns which a British vessel may wear other than...