An overview of Norwegian maritime legislation

Transcription

1 An overview of Norwegian maritime legislation Terje Hernes Pettersen Stig André Kolstad Oslo, 22nd September Norwegian Ministry of Trade and Industry Introduction Maritime law the substantive law related to shipping Sole responsebility of Ministry of Transportation (and perhaps Ministry of Justice)? Not in Norway! Joint responsebility between Ministry of Trade and Industry Ministry of Justice and Police Ministry of Fisheries and Coastal Affairs Ministry of Environment, and (Ministry of Foreign Affairs) 2 1

2 Introduction, cont. Ministry of Trade and Industry The Ship Safety and Security Act 2007 The Norwegian Maritime Code 1994, Ch. 1 I-II, II Ch. 2, Ch. 5, Ch. 10, Ch. 18 The Seaman s Act 1975 Ministry of Justice and the Police The Norwegian Maritime Code 1994 Ministry of Fisheries and Coastal Affairs The Harbour and Fairways Act 2009 Ministry of the Environment The Pollution Control Act The Maritime Code 1994 The Maritime Code Covers substantial aspects of shipping-related business. Public, inter alia: Ownership, port of call and registration of vessel (NIS or NOR) Mortgages, maritime liens and arrest of vessel Limitation of liability / oil pollution / Collision Marine accident investigations Private, inter alia: Salvage General average TC / VC / BB Charter 4 2

3 The Maritime Code 1994, cont. The Maritime Code is administrated by Ministry of Justice. Certain parts delegated to the Ministry of Trade and Industry by Regulation 20th December 1996 No Delegated to Ministry of Trade and Industry: Registration, name, port of call etc. MC Chapter 1 and 2 Ownership of Norwegian Ordinary (NOR) and International (NIS) Ship Registry Stringent requirements to register ship? Wide scope for exemptions from conditions for nationality? Amendment necessary to realign our practice with the wording in MC1994 1? Registration of mortages on ships. Registration of mortgages in Shipbuilding Register of hull etc. built outside of Norway. Amendment came in effect in 2009 and provided adequate protection for financing institutions during time periode hull is towed from e.g. Poland to Norway. Shipping partnership, definition and liabilities - MC Chapter 5 Relevant when LLC can be owner? 5 The Maritime Code 1994, cont. Limitation of liability and oil pollution liability MC Chapter 9, 10 and 12 Ministry of Justice Ministry of Trade and Industry head of Norwegian delegation for IOPC (and future HNS) meetings. Joint head of delegation with Ministry of Justice on IMO Legal. Provides Ministry of Trade and Industry with valuable experience IOPC experience in detail Examination of accidents at sea MC Chapter 18 Ownership of Accident Investigation Board Norway, departement for investigation of marine accidents. Delegated to Ministry of Trade, Regulation 11 January 2008 No. 29 Guidelines on legal representation Norwegian Bar Association Double representation OK if informed consent Purpose of investigation of marine accidents is to find cause and learn from it Fear crew would hold back information if ship owner s legal councel present during interview Carved out Norwegian legislation through guidelines? 6 3

4 Ship Safety and Security Act Ship Safety and Security Act Purpose to safeguard life, health, environment and tangible assets. Regulatory framework. Details are in the Regulations Regulatory Agency that contributes to the promotion higher ship safety level Scope of application: Norwegian and foreign flagged (only within Norwegian jurisdiction) vessels over 24 meters in lenght or used in trade Vessel any floating device built to move on or through water. No motor requirement. Norwegian Maritime Directorate and Classification Societies, e.g. DNV, appointed as regulatory agencies. Ministry of Trade and Industry instance of appeal. Secured right to impose administrative sanctions on persons (negligently on behalf of) and ship owning company (no culpa requirement) for violations of provisions as mentioned in section 55. Secured right to impose coercive fine on companies that fail to comply with orders to bring vessel in compliance with Ship Safety and Security Act requirement Withdraw certificate / Take the vessel in «arrest» 7 Ship Safety and Security Act, cont. A quick look at the framework: Chapter 2: Ship owner s obligations Shift in focus from Master to Ship owner Safety Management requirement on all ships develop «correct» attitude Chapter 3: Technical and operational security Ship and crew certificate requirements Manning and watchkeeping Navigation Chapter 4: Crew safety Safety devices and equipment Working hours and hours of rest Living and recreational environment Chapter 5: Environmental safety Operation of ship shall be so arranged that pollution does not occur Chapter 6: Security and Terrorism Piracy- and terrorist attack use of force 8 4

5 Ship Safety and Security Act, cont. Chapter 7: Supervisory body Appointment of Norwegian Maritime Directorate and Classificatin societies to supervise Ship Management Systems and Norwegian and foreign vessels Company s duty to notify and duty to assist Chapter 8 Administrative measures Order to bring ship in compliance, withdrawal of certificates, coercive fines, prohibit depart port Chapter 9: Administrative sanctions Violation fine Chapter 10: Criminal liability Wilfully or (gross) negligence substantially violates duties imposed under Ship Safety and Security Act Supplemented Penal Act Seaman s Act To get the «full» maritime law-picture Seeaman s Act and Act Relating to the Norwegian International Ship Register Ship Security and Safety Act has provision on working hours, rest hours, living and eating requirements. Supplemented by Seaman s Act which contains central provisions on seafarer s terms of employment. Applies to everyone employed on board a Norwegian ship and who does not only work on board while ship is in port (e.g. load and unload excempted) NOR and NIS ships To a certain degree harmonised with provisions for land based workers Seafarer s union claim lack of harmonisation, e.g. on short term employment Seaman s Act to be supplemented by collective wage agreement. Seaman s Act is mandatory on NOR unless otherwise indicated by collective wage agreement or other legislation states. No need for major amendments to Seaman s Act when MLC enters into force 10 5

6 Seaman s Act and Act Relating to the Norwegian International Ship Register For seafarers hired onboard NIS flagged vessels, excemption non-derogatory nature of Seaman s Act, cf. Act Relating to the Norwegian International Ship Register 6 cf. 8 Salary and terms of employment follows collective wage agreement Reason: Important that collective wage agreement on NIS-ships are adapted to internationally recognised practice Ensures that norwegian companies are competetive with other EU and international based companies Trading area restrictions apply to NIS flagged vessels, cf. 4. Cargo or passengers between Norwegian ports or to engage in regular scheduled passenger transport between Norwegian and foreign ports/oil and gas installations on the Norwegian continental shelf. 11 The Harbour and Fairways Act 2009 Purpose to facilitate and operate harbours and to safeguard waterway traffic Ministry of Fisheries and Coastal Affairs duties to be carried out by National Coastal Administration Distinction between municipality (harbour + 1nm) area of responsebility and state area of responsebility (fairways + beacon etc.) Safeguard traffic Traffic regulation and separation along Norwegian coast line Supervision, construction and operation of beacons, navigational marks and other aids for navigation Facilitate and operate harbours State harbour service Through efficient harbour service promote transportation of goods by sea and not by land Safe working place - ISPS State lighthouse service State pilotage service Wreck removal see also Pollution Control Act 12 6

7 The Pollution Control Act 1981 Purpose of the Pollution Control Act is to safeguard the environment against pollution, and reduce existing pollution. Some companies choose to abandon old vessels in port. May result in leakage and pollution. Occupies space in otherwise crowded harbour. If owner fails to make necessary arrangement to clean up or remove vessel, the authorities may impose right to remove wreck at owner s expense No requirement under Pollution Control Act that vessel is submerged. Abandoned ship may constitute danger to waterway traffic which may give authorities right to remove abandoned vessel at owner s expense in accordance with Harbour and Waterways Act. Dumping of waste Authorisation required 13 Thank you for your attention! Stig Andre Kolstad Terje Hernes Pettersen Oslo, 22 September Norwegian Ministry of Trade and Industry 7