The Ship and Port Facility (Security) Regulations 2004

Made: 8th June 2004

Laid before Parliament: 10th June 2004

Coming into force: 1st July 2004

The Secretary of State for Transport, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to port security, measures relating to the safety of ships and the health and safety of persons on them, and maritime transport, in exercise of the powers conferred by that section hereby makes the following Regulations:

PART 1 — PRELIMINARY

Citation and commencement

1

These Regulations may be cited as the Ship and Port Facility (Security) Regulations 2004 and shall come into force —

• (a) from 1st July 2004 for international shipping; and

• (b) on 1st July 2005 for all other purposes.

Interpretation

2

• (1) In these Regulations—

• “the EC Regulation” means Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security , as amended by the Ship and Port Security (Amendment etc.) (EU Exit) Regulations 2019;

• “the SOLAS Convention” means the International Convention for the Safety of Life at Sea 1974 as amended from time to time (disregarding for this purpose any amendment so far as it is excluded by Article 10(1) or (2) of the EC Regulation);

• “ISPS Code” means the International Ship and Port Facility Security Code as amended from time to time (disregarding for this purpose any amendment so far as it is excluded by Article 10(1) or (2) of the EC Regulation);

• “address”, in relation to electronic communications, means any number or address used for the purposes of such communications;

• “Class A passenger ship” and “Class B passenger ship” have the same meaning as in Article 3 of the EC Regulation;

• “constable” includes any person having the powers and privileges of a constable;

• “domestic shipping” means any transport service by ship in sea areas from a port facility of the United Kingdom to the same port facility or another port facility within the United Kingdom;

• “duly authorised officer” means either—an inspector appointed under section 256 of the Merchant Shipping Act 1995 , ora surveyor appointed under section 256 of the Merchant Shipping Act 1995, oran “authorised person” within the meaning of section 46(1) of the Aviation and Maritime Security Act 1990;

• “electronic communication” has the same meaning as in the Electronic Communications Act 2000 (c. 7);

• “international shipping” means any maritime transport service by ship from a port facility of the United Kingdom to a port facility outside the United Kingdom, or conversely;

• “international voyage” means a voyage from a country to which the SOLAS Convention applies to a port outside such country, or conversely;

• “master” includes every person (except a pilot) having command or charge of a ship;

• “non-United Kingdom ship” means a ship other than a United Kingdom ship;

• “owner of the port facility security plan” means the person who submits the port facility security plan or the person on whose behalf that plan is submitted to the Secretary of State for approval under section 16.2 of Part A of the ISPS Code;

• “restricted area” means an area in a ship or a port facility that is identified as such in a ship security plan or port facility security plan;

• “tanker” has the same meaning as in Article 3(3) of the EC Regulation;

• “United Kingdom registration provisions” means Part II of the Merchant Shipping Act 1995, or any Order in Council under section 1 of the Hovercraft Act 1968 .

• “United Kingdom ship” has the same meaning as in section 85(2) of the Merchant Shipping Act 1995, and

• “United Kingdom waters” means the sea or other waters within the seaward limits of the territorial sea of the United Kingdom.

• (2) The expressions used in these Regulations which are given a meaning in the SOLAS Convention or the ISPS Code have the same meaning they bear in those instruments, and are listed in the Schedule to these Regulations.

• (3) Other expressions used in these Regulations which are also used in the EC Regulation, have the same meaning they bear in that Regulation.

Purpose

3

The purpose of these Regulations is to provide for the implementation of the EC Regulation.

Application

4

• (1) These Regulations apply to—

• (a) the following types of United Kingdom ships and non-United Kingdom ships in United Kingdom waters when engaged on international voyages, and their companies:

• (i) passenger ships including high speed craft which carry more than 12 passengers;

• (ii) cargo ships, including high speed craft, of 500 gross tonnage and upwards;

• (iii) mobile offshore drilling units;

• (b) Class A passenger ships operating domestic services within United Kingdom waters and their companies;

• (ba) Class B passenger ships operating domestic services within United Kingdom waters which are certified to carry more than 250 passengers, and their companies;

• (bb) tankers operating domestic services within United Kingdom waters and their companies;

• (c) the following port facilities—

• (i) port facilities serving the ships specified in paragraph (1)(a); and

• (ii) port facilities serving ships specified in paragraph (1)(b).

• (2) These Regulations do not apply to —

• (a) ships of war and troop ships;

• (b) cargo ships of less than 500 gross tonnage;

• (c) ships not propelled by mechanical means;

• (d) wooden ships of primitive build;

• (e) pleasure yachts not engaged in trade;

• (f) fishing vessels; and

• (g) vessels not engaged in commercial activities.

Designations

5

The Secretary of State for Transport is hereby designated—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) the “designated authority” for the purposes of Chapter XI-2 of the SOLAS Convention and the ISPS Code.

PART 2 — INSPECTIONS

Inspection of ships and port facilities by a duly authorised officer

6

• (1) For the purpose of enabling a duly authorised officer to verify that ships and port facilities are in compliance with the requirements of the EC Regulation or of ascertaining whether any enforcement notice is being or has been complied with, a duly authorised officer shall have the power, on production (if required) of his credentials, to inspect—

• (a) any United Kingdom ship;

• (b) any non-United Kingdom ship while in a port facility;

• (c) any non-United Kingdom ship in United Kingdom waters which has communicated its intention to enter a port in the United Kingdom;

• (d) any United Kingdom port facility.

• (2) A duly authorised officer inspecting a ship or a port facility shall have power —

• (a) to subject any property found by him on the ship, or any apparatus or equipment installed on the ship which is required by or approved in the relevant ship security plan to such tests,

• (b) to subject any part of the port facility or any property found by him in the port facility, or any apparatus or equipment installed in the port facility which is required by or approved in the relevant port facility security plan to such tests,

• (c) to take such steps —

• (i) to ascertain what practices or procedures are being followed in relation to security, or

• (ii) to test the effectiveness of any practice or procedure relating to security, or

• (d) to require the company, or the company security officer, or the ship security officer, or the master of the ship, or the port facility security officer, or the owner of the port facility security plan, or person acting on behalf of any of the aforementioned persons to furnish to him such information,

as the duly authorised officer may consider necessary for the purpose for which the inspection is carried out.

• (3) Subject to paragraph (4), a duly authorised officer, for the purpose of exercising any power conferred on him by paragraphs (1) or (2) in relation to a ship or in relation to a port facility, may—

• (a) for the purpose of inspecting a ship, go on board and take all such steps as are necessary to ensure that it is not moved, or

• (b) for the purpose of inspecting a port facility, to enter any building or works in the port facility or enter upon any land in the port facility.

• (4) The powers conferred by paragraph (3) shall not include power for a duly authorised officer to use force for the purpose of going on board any ship, entering any building or works or entering upon any land.

• (5) Any person who —

• (a) without reasonable excuse, fails to comply with a requirement imposed on him under paragraph (2)(d), or

• (b) in furnishing any information so required makes a statement which he knows to be false in a material particular, or recklessly makes a statement which is false in a material particular,

commits an offence.

• (6) A person guilty of an offence under paragraph (5) is liable —

• (a) on summary conviction, to a fine not exceeding the statutory maximum, or

• (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years.

Inspection of companies and port facilities by the European Commission

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 — DETENTION OF SHIPS

Detention notices

8

• (1) Where a duly authorised officer proposes to detain a ship pursuant to the control and compliance measures specified in Regulation 9 of Chapter XI-2 of the SOLAS Convention, he shall serve on the master of the ship a notice (in this part referred to as a detention notice) which states that the duly authorised officer is detaining the ship because he has grounds for believing that—

• (a) the ship is not in compliance with Chapter XI-2 of the SOLAS Convention, or

• (b) the ship is not in compliance with Part A of the ISPS Code, or

• (c) there has been a failure to make available for inspection a valid International Ship Security Certificate or a valid Interim International Ship Security Certificate issued under Part A of the ISPS Code.

• (2) A detention notice shall specify the steps that the duly authorised officer requires to be taken in respect of the ship in order to secure its release from detention.

• (3) A detention notice shall require the master to take steps to ensure that the ship does not proceed to sea while the detention notice is in force.

• (4) The master of a ship in respect of which a detention notice is served may object to the notice in writing to the Secretary of State.

• (5) On receipt of an objection to a detention notice served under paragraph (1) the Secretary of State shall—

• (a) consider the objection;

• (b) allow the person making the objection and the duly authorised officer who gave the notice an opportunity to make written or oral representations to the Secretary of State or a person appointed by him;

• (c) confirm, modify or cancel the notice, and

• (d) give notice of his decision in writing to the person who made the objection and to the duly authorised officer who served the notice.

• (6) The Secretary of State shall include in his decision a finding as to whether in relation to any of the matters specified in respect of a ship in a detention notice in pursuance of paragraph (1), there was or was not a valid basis for the detention of the ship.

• (7) A detention notice in respect of a ship shall continue in force until—

• (a) a duly authorised officer cancels it by notice in writing.

• (b) the Secretary of State cancels it under paragraph (5)(c).

• (8) A person commits an offence if without reasonable excuse he fails to comply with a requirement of a detention notice.

• (9) A person who is guilty of an offence under paragraph (8) shall be liable —

• (a) on summary conviction, to a fine not exceeding the statutory maximum, or

• (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years.

Compensation for invalid detention of a ship

9

• (1) Where having considered an objection in respect of a detention notice relating to a ship under regulation 8 the Secretary of State finds that there was no valid basis for the detention, the owner of the ship shall be entitled, upon application, to receive compensation for such loss or damage suffered by him which is directly attributable to the detention of the ship.

• (2) A claim for compensation under this regulation shall be made in writing to the Secretary of State within three months beginning with the date the Secretary of State serves notice of his decision under regulation 8(5)(d).

• (3) Any person claiming compensation under this regulation shall provide all such information and supplementary information in respect of the loss or damage incurred as the Secretary of State may at any time reasonably require and shall verify the same in any such manner, including the production of original documents in his possession or control, as may be reasonably required.

• (4) Any disputed question as to the right to, or the amount of, any compensation payable under this regulation shall be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by him.

• (5) Any compensation granted under this section shall be payable by the Secretary of State.

• (6) In the application of this regulation to Scotland any reference to an arbitrator shall be construed as a reference to an arbiter and the reference in paragraph (4) to a single arbitrator appointed by agreement between the parties shall be construed as a reference to a single arbiter so appointed or, in default of agreement, appointed by the sheriff.

PART 4 — RESTRICTED AREAS

Unauthorised presence in a restricted area of a ship

10

• (1) A person shall not —

• (a) go, onto or into any part of a restricted area of a ship except with the permission of the master or the ship security officer or a person acting on their behalf, and in accordance with any conditions subject to which that permission is for the time being granted, or

• (b) remain in any part of such a restricted area after being requested to leave by the master or the ship security officer or a person acting on their behalf.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Subject to paragraph 3A, a person who contravenes paragraph (1) without lawful authority or reasonable excuse is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

• (3A) A person who contravenes paragraph (1)(a) is not guilty of an offence unless it is proved that, at the material time, notices stating that the area concerned was a restricted area were posted so as to be readily seen and read by persons entering the area.

• (4) A constable, or the master or the ship security officer, or a person acting on behalf of the master or the ship security officer, may use such force as is reasonable in the circumstances to remove from a restricted area a person remaining in it in contravention of paragraph (1)(b).

Unauthorised presence in a restricted area of a port facility

11

• (1) A person shall not—

• (a) go, onto or into any part of a restricted area of a port facility except with the permission of the port facility security officer or a person acting on his behalf, and in accordance with any conditions subject to which that permission is for the time being granted, or

• (b) remain in any part of such a restricted area after being requested to leave by the port facility security officer or a person acting on his behalf.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Subject to paragraph 3A, a person who contravenes paragraph (1) without lawful authority or reasonable excuse is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

• (3A) A person who contravenes paragraph (1)(a) is not guilty of an offence unless it is proved that, at the material time, notices stating that the area concerned was a restricted area were posted so as to be readily seen and read by persons entering the area.

• (4) A constable, or the port facility security officer, or a person acting on behalf of the port facility security officer, may use such force as is reasonable in the circumstances to remove from a restricted area a person remaining in it in contravention of paragraph (1)(b).

PART 5 — OFFENCES RELATING TO DULY AUTHORISED OFFICERS

Offences and penalties

12

• (1) A person who—

• (a) intentionally obstructs a duly authorised officer acting in the exercise of a power conferred upon him by the EC Regulation or these Regulations, or

• (b) falsely pretends to be a duly authorised officer,

commits an offence.

• (2) A person guilty of an offence under paragraph (1)(a) is liable —

• (a) on summary conviction to a fine not exceeding the statutory maximum, or