The following Bill was introduced in the Rajya Sabha on the 30tlh July, 2002. (BILL No. LXVI OF 2002) A Bill further to amend the Merchant Shipping Act, 1958, and the Major Port Trusts Act, 1963.

REGISTERED NO. DL-33004/2002

The Gazette of India

EXTRAORDINARY

PART II —Section 2

PUBLISHED BY AUTHORITY

No. 34] NEW DELHI, TUESDAY, JULY 20, 2002/SRAVANA 8,1924

Separate paging is given to this Part in order that it may be filed as a separate compilation.

RAJYA SABHA

The following Bill was introduced in the Rajya Sabha on the 30tlh July, 2002.—

BILL No. LXVI OF 2002

A Bill further to amend the Merchant Shipping Act, 1958, and the Major Port Trusts

Act, 1963.

BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:—

CHAPTER I

PRELIMINARY

1.(1) This Act may be called the Merchant Shipping (Amendment) Act, 2002. Short title and commencement.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.

CHAPTER II

AMENDMENT OFTHE MERCHANT SHIPPINOACT, 1958

2. For section 76 of the Merchant Shipping Act, 1958 (hereinafter referred to as the 44 of 1958 principal Act), the following section shall be substituted, namely.—

Substitution of new section for section 76

"76 (7) Every Indian ship, when going to sea from any port or place, bhall be provided with officers duly certifi cated under this Act in accordance with such manning scales as may be prescribed.

Certificates of rnmjirtency to be held by officers of

ships Provided that the Central Government may prescribe different manning scales for

different types of ships

(2) Every ship, whether at sea or in any port or place, shall engage such number of persons and with such qualifications as may be prescribed for maintaining watches."

3. In section 87 of the principal Act, in sub-section (2), in clause (h), for the words "by

Amendment oF section 87 a ship", the words "by different types of ships" shall be substituted

4. In section 95 of the principal Act,—Amendment of section 95

(I) in suo-aecnon ^J;, iur umu^eu {u.) unu \u), uic luuuwmg nauisc aiiau uc

!>ubbiumcu, ikuiicly —

"(a) to issue licence, to regulate and control the recruitment and placement

service, and to—

(i) ensure that no fees or other charges for recruitment or placement of seafarers are borne directly or indirectly or in whole or in part, by the seafarers,

(u) ensure that adequate machinery and procedures exist for the investigation, if necessary, of complaints concerning the activities of recruitment and placement services; and

(m) to maintain registers of seamen in jespect of the categories of

seamen,";

(u) sub-section (2) shall be omitted,

(ill) in sub section (J), for flames (b) and (c) the following clauses shall be

substituted, namely —

"CM the lew and collection of such fees as may be specified for the issue of licences to recruitment and placement servicos, renewal of suUi licences and services to be rendered by the seamen's employment office,

(c) the '.ssi'e nf directions by the Central Government io any seamen'.-, employment office or any recruitment and placement service with reference to the exercise of any of its powers;

(ca) the conditions under which the recruitment and placement service to

recruit and place seafarers abroad,

(cb) the circumstances and conditions under which licence to be suspended

or withdrawn,

(cc) the conditions under which seafarers' personal data to be processed by the recruitment and placement services including the collection, storage, combination and communication of such data to third parties,',SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 3 (iv) after sub-section (3), the following Explanation shall be inserted, namely:—

'Explanation.—For the purposes of this section,—

(a) "recruitment and placement service" means any person,

company, institution, agency or other organisation, in the public or private sector which is engaged in recruiting seafarers on behalf of employers or placing seafarers with employers;

(b) "seafarer" means any person who fulfills the conditions to be employed or engaged in any capacity on board a sea-going ship other than a government ship used for military or non-commercial purposes.'.

5. For section 97 of the principal Act, the following section shall be substituted, namely:—

"97. (1) A person or company or organisation including a union purporting to represent the interests of seamen shall not demand or receive, either directly or indirectly, from any seaman or person seeking employment as seaman or any person on his behalf, any remuneration or donation or fees or compulsory subscription ofany kind attributable from such seaman or person's employment as seaman, other than the fees authorised by this Act.

Substitution of new section for section 97 Receipt of remuneration, donation, fees, etc., from seamen tor shipping them prohibited (2) It shall be the duty of the company employing or proposing to employ person as seaman to ensure that no money has been demanded or received by any person or company ui ui^aniiaLiun in^iuuiiig tuc ufiiufi purporting to represent ili* interests of seamen by way of any remuneration or donation or fees or compulsory subscription ofany kind attributable to employment of such person as seaman.".

6. After section 97 of the principal Act, the following section shall be inserted, namely:—

"97A. There shall be no discrimination between seamen,—

Insertion of new section 97A. Prohibition against discrimination.

(a) on the ground of their membership or lack of membership in any particular union purporting to represent the interests of seamen and membership in such union shall not be pre-requisite condition;

(b) on the basis of training institute from where they obtained training or place of issue of their continuous discharge certificates,

for their reciuilinent and engagement on board any ship.".

7. For the sub-heading "Safety certificates, safety equipment certificates, safety radio telegraphy certificates, safety radio telephony certificates, exemption certificates, etc." above section 299 of the principal Act, the following sub-heading shall be substituted, namely:—

Substitution uf new sub- heading for sub-heading above section 299 "Safety certificates, safety equipment certificates, safety radio certificates, exemption certificates, etc ".

8. In section 299 of the principal Act,— Amendment

of section 299 (a) in sub-section (i), foi the words "radio telegraphy or radio telephony installation and radio diiection finder'', the woids "tadio installation" shall be substituted;

(b) in sub-section (3), the words "or a pilgrim ship" shall be omitted;

(c) after sub-section (3), the following sub-section shall be inserted, namely:—

"(4) The Certificates issued under sub-sections (1) and (2), sub-sections (/) and (2) of section 300 and section 301 shall be supplemented by a record of equipment in the prescribed form.".

9. In section 299A of the principal Act,-

Amendmenl of section 299A.

(a) in sub-section (/),—

(/) for the words "the Central Government", the words "the Central Government or any person authorised by it in this behalf" shall be substituted;

(/i) for the words "the Central Government", the words "that Government

or the authorised person" shall be substituted;

(b) in sub-section (2),—

(/) for the words "of the Act and the Central Government", the words "and the Central Government or any person authorised by it in this behalf shall be substituted;

(//) for the words "the Central Government", the words "that Government

or the authorised person" shall be substituted;

(c) after sub-section (2), the following sub-section shall be inserted, namely:—

"(J) The owner of every ship in respect of which a certificate is issued under sub-section (J) or sub-section (2), sub-section (]) or sub-section (2) of section 300 or section 301 shall, so long as the certificate remains in torcc, cause the ship to be surveyed in the manner as specified in the Safety Convention or in cases where such specified manner is not applicable, in such manner ",s tV rules made in this behalf prescribe, as the case may be.".

iu. ror secrhtn ~M>0 of the principal Act, the lullowmg section shall be substituted, namely:—

cubiinminn of new section for lection 300.

'300. (7) Where in respect of an Indian cargo ship the Central Government or any person authorised by it in this behalf is satisfied that the ship complies with the provisions of this Act and the rules made thereunder relating to life saving and fire appliances applicable to such ship and is provided with lights and shapes and the means of making fog and distress signals required by the collision regulations, that Government or the authorised person may issue in respect of the ship—

Cargo ship safety equipment and cargo •ship oquipment certificates for ships other than pussenger (.hips

(a) if Ihe hhip is of five hundred tons gross or moie and performs international voyages, a certificate in the prescribed form to be called a cargo ship safety equipment certificate;

(b) in other cases, a certificate in the prescribed form to be called a cargo ship equipment certificate, (2) Where, in respect of a ship referred to in suh-irotinn ( /), the"¹ '<; in force an exemption certificate granted under section 302 and ihe Central Government or-any person pvthnrised by it in this hehalf is satisfied that the whip complies with <\\\ the requirements referred to in that sub-section, other than those from which the ship is exempt under that certificate, that Government or the authorised person may issue a certificate in the prescribed form to be called a qualified uii&u ship safety equipment certificate or a qualified cargo ship equipment certificate, as the case may be.".

11. hor section 301 of the principal Act, the following section shall be substituted, namely.—-

Substitution nf pp\v section for section 101

"301. The owner or master of any Tndian cargo ship, which is required by the provisions of section 291 to be provided with a radio installation shall, if the Central Government or any person authorised by it in this behalf is satisfied that the ship complies with all the provisions of this Act and the rules made thereunder relating to radio installation applicable to such ship, receive—

(a) in the case of a ship of three hundred tons gross or more, a certificate Cargo ship safety radio certificate and qualified carfro ship infery radio certificate, etc

in the prescribed form to be called a cargo ship safety radio certificate;

(b) in the case of a ship of three hundred tons gross or more but less than three thousand tons gross performing voyages only betweeh ports or places in India, a certificate in the prescribed form to be called a qualified cargo ship safety radio certificate; and

(c) in other cases, a certificate in the prescribed form to be called a cargo

ship radio certificate.".

12. For section 303 of the principal Act, the following section shall be substituted,

namely:—

Substitution of new section for section 303

Duration of certificates "303. (7) A passenger ship safety certificate, a qualified passenger ship safety certificate, a special trade passenger ship safety certificate and a special trade passenger ship space certificate issued under this Part shall be in force for a period of twelve months from the date of its issue or for such shorter period as may be specified in the certificate.

(2) A cargo ship safety equipment certificate, a qualified cargo ship safety equipment certificate, a curgo ship equipment certificate, a qualified cargo ship equipment certificate, a cargo ship safety construction certificate, a qualified cargo ship safety construction certificate, a cargo ship construction certificate, a qualified cargo ship construction certificate, a cargo ship safety radio certificate, a qualified cargo ship safety radio certificate and a cargo ship radio certificate issued under ihis Part shall be in force for a period of five years from the date of its issue or for such shorter period as may be specified in the certificate.

(3) An exemption certificate issued under section 302 shall be in force for the period for which the certificate to which it relates remains in force or for such shorter period as may be specified in the exemption certificate.

(4) Notwithstanding the requirements of sub-sections (/), (2) and (3) when the survey is completed within three months before the expiry date of the existing certificate, the new certificate may be valid from the date of completion of the survey,—

(a) for a passenger ship, a dale not exceeding twelve months; and

(b) for a cargo ship, a date not exceeding five years,

from the date of expiry cf the existing certificate.

(5) The Central Government or any person authorised by it in this behalf may grant an extension of any certificate issued under this Ptirt in respect of an Indian ship—

(n) where t he ship is n<">f in a port in which it is to be surveyed on the date when the certificate would, but for the extension, have expired, for such period not exceeding three months from the said date as may be sufficient to enable the ship to complete its voyage to the port in which it is to be surveyed;

(b) where the ship is engaged on a short voyage and whose certificate has not been extended under clause (a), for a period up to one month from the date when the certificate would have expired:

Provided that any extension granted under clause (a) shall cease to be

operative upon the ship's arrival at the port referred to in that clause:

Piovidcd further that no extension shall be granted under clause (i>) in

respect of a certificate extended undei clause (a).

(6) Where an existing certificate of a ship has been extended under sub-section (5) and when survey is completed, the new certificate shall be valid up to,—-

(a) for a passenger ship, a date not exceeding twelve months; or

(b) for a cargo ship, a date not exceeding five years,

from the date of expiry of the existing certificate.

(7) In special circumstances where the Central Government so determines, a new certificate, need not be dated from the date of expiry of the existing certificate, shall be valid up to,—

(a) for a passenger ship, a date not exceeding twelve months;

(b) for a cargo ship, a date not exceeding five years,

from the date of completion of the survey.

(8) Where a certificate referred to in sub-section (2) is issued for a period of less than five years, the Central Government or any person authorised by it in this behalf may extend llie validity of Ihc L"I Lificate beyond the txpiry date to the maximum period specified in nub-section (2) if appropriate surveys, applicable when a certificate is issued for a period of five years, are carried out.

(9) If a survey has been completed and a new certificate cannot be issued or placed on board me ship before the expiry date ot the existing certilicate, me Central Government or any person authorised by it in this behalf may endorse the existing certificate and such certificate shall be in force for a further period which shall not exceed five months from the expiry date of the existing certificate.

(10)\f annual, intermediate or periodical surveys in the manner as specified in the Safety Convention or in cases where such specified manner is not applicable, in such manner as the rules made in this behalf prescribe, as the case may be, arc completed before the period stipulated therefor, then—

(a) the anniversary date mentioned on the relevant certificate shall be amended by endorsement to a date which shall not be more than three months later than the date on which the survey was completed;

(b) the subsequent surveys shall be completed at the stipulated intervals using the new anniversary date so endorsed;

(c) the expiry date may remain unchanged pmvided one or more annual, intermediate or periodical surveys, as the case may be, are carried out so that the maximum stipulated intervals between the surveys are not exceeded.

{11) A certificate issued under section 299A, section 300 or section 301 shall cease to be valid,—

(a) if the relevant Miiveys specified in the Safety Convention or in cases where such specified manner is not applicable, in such manner as the rules made in this behalf prescribe, as the case mav be, are not completed within the stipulated period;

(b) if the certificate is not endorsed; or

(c) if the ship ceases to be an Indian ship.".

13. In section 307 of the principal Act,—Amendment of section 307 (a) in sub-section (2), in clause (fa), for the words " radio telegraphy certificate or a cargo ship safety radio telephony certificate", the words " radio certificate" shall be substituted;

(b) for sub-section (2A), the following sub-section shall be substituted,

namely:—

"(2A) No sea-going Indian cargo ship, loss than five hundred tons gross, shall proceed on a voyage from any port or place in India to any port or place in India or to any port or place outside India unless there is in force in respect of the Khip a cargo ship construction certificate issued under section 299A and a cargo ship equipment certificate issued under section 300 and,—

(/) a cargo ship safety radio certificate if the ship is three hundred

tons gross or more;

(li) a qualified cargo ship safely radio certificate if the ship is operating within ports or places in India and is of three hundred to five hundred tons gross; or

(in) a cargo ship radio certificate if the ship is less than three hundred

tons gross,

issued under section 301.",

(c) in sub-section (3),—

(i) in clause (a), for the words and figures "equipment certificate issued under section 300", the words, figures and letter "safety construction certificate or cargo ship construction certificate issued UIIJCJ acttiou 299A" shall be substituted;

(iff in clause (b), in the opening portion, after the word "a", the words

"cargo ship equipment certificate or a" shall be inserted;

(Hi) in clause (c), for the words "radio telegraphy certificate or a cargo ship radio telephony certificate", the words "safety radio certificate or a qualified cargo ship safety radio certificate, if the ship operates between ports or places in Tndia and is between five hundred to three thousand tons gross," shall be substituted.

14. In section 317 of the principal Act,— Amendment

of section 317 (i) in sub-section (I), after the existing proviso, the following proviso shall be

inserted, namely:—

"Provided further that when the survey for the purpose of issue of certificate under sub-section (/) of section 316 is completed wilhin lliiee months before the expiry date of the existing certificate, the new certificate may be valid from the date of ocmpletion cf such survey to " date noL exceeding five years from the date of expiry of the existing certificate.";

(IT) in sub-section (3), for the portion beginning with the words "shall cease" and ending willi Ihe words "Indian ship", the following shall be svbstituted, namely:—

"shall cease to be valid when—

(a) the ship ceases to be an Indian ship;

(b) material alterations such as would necessitate die assignment of an increased free board have taken place in the hull or superstructure of the ship;

(c) the fittings and appliances for the protection of openings, the guard rails, freeing ports, or the means of access to the crew's quarters are not maintained in an effective condition;

(d) the structural strength ot the ship is lowered to such an extent as to

render the ship unsafe;

(e) the certificate is not endorsed to prove that the ship has been surveyed as required under sub-section (5); or

(0 the marking of the deck line and load lines on the ship have not been properly maintained";

(Hi) sub-section (4) shall be omitted;

(jV) in sub-section (5), for the portion beginning with the words "once at least in each year" and ending with the words "caused to be so surveyed", the following shall be substituted, namely:—

"and the certificate endorsed once at least in each year during the period commencing three months before and ending three months after the anniversary date of expiry of the certificate for the purpose of ensuring that—

(a) alterations have not been made to the hull or superstructure which would affect the calculations determining the position of the load lines;

(b) the fittings and the appliances for the pioteetion of openings, the guard rails, freeing ports, or the means of access to tlr- rrfw's quartf r* are maintained in an effective condition;

(c) the free board marks are correctly and permanently marked; and

(d) the stability information required under section 298 is readily

available on board";

(v) for sub-sections (6) and (7), the following sub-sections shall bo substituted, namely.-—

"(6) If an annual survey is completed before the period specified in sub- section (5) then,—

(a) the anniversary date mentioned on the certificate shall be amended by endorsement to a date which shall not be more man three months later than the date on which the survey was completed;

(b) the subsequent annual survey required by sub-section (5) shall

be completed using the new anniversary date;

(c) the expiry date of the certificate may remain unchanged provided one or more annual survey is carried out so that the maximum interval between the surveys specified under sub-section (5) is not exceeded.

(7) If a certificate under ttub-seulion (/) of section 116 is issued for a period of less than five years, the Central Government or any person authorised by it in this behalf, may extend die validity of the certified beyond the expiry date to a maximum period specified in sub-section (1):

p r o v ed th:it annual surveys referred to in sub-section (5) are carried out as may be appropriate.

(7A) If a ship at the time when a certiticatt; expires is not in a port at which it is to be surveyed, the Central Government oi any person authorised by it in this behalf may extend the period of validity of the certificate, but this extension shall be granted only for the purpose of allowing the ship to complete the voyage to the port in which it is to be surveyed and also only in cases where it appears proper and reasonable to do so;

Provided that no certificate shall be extended for a period longer than three months and the ship to which an extension is granted shall not on its arrival at the port in which it is to be surveyed leave that port without having a new certificate:

Provided further that when the survey is completed, the new certificate shall be valid to a date not exceeding five years from the date of expiry of the existing certificate.

(7B) A certificate, issued to a ship engaged in short voyage which has not

been extended under sub-section (7A), may be extended by the Central Government or any person authorised by it in this behalf for a period up to one month from the date of expiry and when the survey is completed, the new certificate shall be valid up to a date not exceeding five years from the date of expiry of the existing certificate,

(7C) In special circumstances where the Central Government so determines a new certificate, need not be cnted from the date of expiry of the existing certificate, shall be valid up to a date not exceeding five years from the date of completion of the survey.".

15. In section 344 of the principal Act, in sub-section (2), for clause (a), the following

clauses shall be substituted, namely:—

Amendment of section .144 "(a) the form of any certificate and record of equipment issued under this Part;

(aa) the manner of surveys required to bt, made in respect of ships to which the

manner of surveys specified in the Safety Convention is not applicable;".

16. In section 352 of the principal Act,— Amendment (j) for clause (6), the following cia.'se shall be substituted, namely:--

of section 352 'ib) ''Convention" means r'- Convention on Limitation of Liability fo<

Maritime Claims, 197b as amene' J from time to time;';

(if) after clause (#), the followu;? clauses shall be inserted, namely:--

'(77) "salvor" means any person rendering services in direct connection

with salvage operations.

Explanation.—For the purpose of (his clause, "salvage operations"

includes—

(/) the raising, removal, destruction or the rendering a ship harmless which is sunk, wrecked, stranded or abandoned including anything that is or has been on board such ship;

(if) the removal, destruction or rendering the cargo of a ship

harmless; and

(/;;) the measures taken to avert or minimise loss to a ship or its

cargo or both;

(i) "ship owner" means owner, charterer, manager and operator of a sea-

going ship;

(J) "Special Drawing Rights" means Special Drawing Rights as determined

bv the International Monetary Fund.'.

17. For section 352A of the principal Act, the following section shall be substituted,

namely:—

Substitution of new section tor section 352A "352A. (/) The ship owner, salvor, any person for whose act, neglect or default the ship owner or salvor, as the case may be, is responsible, and an insurer of liability for claims to the same extent as the assured himself, may limit his liability as provided under section 352B in respect of,—

Limitation of liability for damages in respect of certain claims (a) claims arising from loss of life of or personal injury to, or loss of or damage to, property (including damage to harbour works, basins and waterways10 THE GAZETTE OF INDIA EXTRAORDINARY [PART II— and aids to navigation), occurring on board or in direct connection with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;

(b) claims arising out of loss resulting from delay in the carriage by sea of

cargo and passengers or their luggage;

(c) claims arising >ut of other loss resulting from infringement of rights other than contractual rights, occurring in direct connection with the operation of the ship or salvage operations;

(d) claims of a person other than the person liable in respect of measures taken in order to avert or minimise loss for which the person liable may limit his liability in accordance with the provisions of the Convention or the rules made in this behalf prescribe, as the case may be, and such further loss caused by such measures;

(c) claims for the loss of life or personal injury to passengers of a ship

brought by or on behalf of any person,—

(/) under the contract of passenger carriage; or

(ii) who, with the consent of the carrier, is accompanying a vehicle for live animals which are covered by a contract for the carriage of goods,

carried in that ship:

Provided that the limits for passengers claim specified in the rules made under this Part shall not be applicable to the passengers carried in and around the coast of Jndia in respect of whom separate limit "hall be presenb-d.

(2) Claims set out in sub-section (1) shall be subject to limitation of liability

even if brought by way of recourse or for indemnity under z :oprract or otherwise:

Provided that claims set out in clause (d) of sub-section (/) shall not be subject to limitation of liability to the extent that thev relate to remuneration under a contract wiih the person liable.

(3) Nothing in this section shall apply to—

(a) claims for salvage or contribution in general average;

(b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, 1992 as amended from time to time;

(c) claims by servants of the ship owner or salvor whose duties arc connected with the ship or the salvage operations, including claims of their heirs, dependents or other persons entitled to make such claims, if under the law governing the contract of service between the ship owner or salvor and such servants of the ship owner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in the provision of the Convention or the rules made under this Part prescribe;

(d) claims subject to any International Convention or any law for the time being in force in India governing or prohibiting limitation of liability for nuclear damage;

(e) claims against the ship owner of a nuclear ship for nuclear damage.

Explanation 1.—For the purpose of this section, the act of involving limitation of liability shall ncl constitute an admission of liability.

Explanation 2.—For the purpose of this Part, the liability of a ship owner shall include liability in an action brought against the ship herself.".

18. For section 352B of the principal Act, the following section shall be substituted,

namely:—

Substitution ot new icction for section 352B. Limitation ot liability "352B. The amount to which any person referred to in sub-section (1) of section 352A may limit his liability in accordance with the provisions of the Convention and in cases where the provisions of the Convention are not applicable, the limit shall be in accordance with the rules made in this behalf prescribe.".

19. In section 352C of the principal Act,— Amendment

of section 352C (a) in the marginal heading, the words "against owner shall be omitted;

(b) for sub-section (/), the following sub-section shall be substituted, namely:—

"(/) Where any liability is alleged to have been incurred by a person referred to in sub-section (7) of section 352A in respect of claims arising out of an occurrence, and legal proceedings are instituted in respect of claims subject to limitation, then such person may apply to the High Court for the setting up of a limitation Fund for the total sum representing the amounts set out in the Convention or the rules made in this behalf under this Part applicable to claims for which that person may be liable together with interest thereon from the date of occurrence giving rise to the liability until the date of the constitution of the Fund.";

(c) in sub-section (2), for the words beginning with the words "or furnish" and ending with the words ''or secured", the words "or produce a guarantee acceptable or produce a bank guarantee in respect of the amount us in the opinion of the High Court is satisfactory and the amount so deposited or guarantee so given" shall be substituted;

(d) for sub-sections (5) and (6), the following sub-sections shall be substituted,

namely:—

"(5) Where the person referred to in sub-section (/) or his insurer

establishes that he has paid in whole or in part any claims in respect of which he can limit his liability under this Part, the High Court shall place him in the same position and to the same extent in relation to the Fund as the claimant whose claim has been paid and allow to acquire by subrogation the rights which the person so compensated would have enjoyed under this Part:

Provided that the right of subrogation provided for in tins sub-section may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they might have paid to that extent if prescribed by the rules made in this behalf under this Part.

(6) Where the person liable or any other person has established that he may at a later date be required to pay in whole or in part, any of the claims under this Part, which could be settled from the Hind, the High Court may notwithstanding the foregoing provisions of this section order that a sufficient sum may be provisionally set aside for the purpose to enable the person to enforce his claim against the Fund at a later date in accordance with the provisions of sub-section (5).".

20. In section 352D of the principal Act,— Amendment

of NecLion 352D (i) in sub-section (5), for clause (a), the following clause shall be substituted,

namely:—

'(a) "Convention country" means a country in which the Convention on

Limitation of Liability fui Maritime Claims, 1976 as amended from time to time is for the time being in force;';

(/i) after sub-section (5), the following sub-sections shall be '•• .serted, namely:—

"(6) Notwithstanding anythi'g contained in sub-section;, (7) to (4), the vessels or other property referred to in sub-section (7) sliall be ordered to be released if the limitation Fund has been constituted,—

(a) in the port where the occurrence took place, or, if it took place

out of port, in the first port of call thereafter;

(b) in the port of disembarkation in respect of claims for loss of life

or personal injury; or

(c) in the port of discharge in respect of damagc.to cargo.

(7) The provision of sub-section (<5) shall apply only if the claimant brings a claim against the limitation Fund before the High Court administering the Fund and the Fund is actually available and freely transferable in respect of that claim

21. For section 352E of the principal Act, the following section shall he substituted,

namely:—

Substitution of new section for section 352E.

Scope of application.

"352E. (7) The provisions of this Part shall apply whenever any person referred to in sub-section (7) of section 352A seeks to limit his liability before the Court or seeks to procure the release of a ship or other property or the discharge of any guarantee given within the Indian jurisdiction but any person referred to in sub-section (7) of section 352A who at the time when the provisions under this Part are invoked before any Court in India does not have his habitual residence in India or does not have his principal place of business in India or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of the State, which is a party to the Convention, is wholly excluded from the provisions of this Part.

(2) The provisions of this Part shall not be applicable to the following vessels

unless the Central Government, by notification, specify otherwise,—

(a) ships intended for navigation on or around coast of India and registered as coastal vessels under the provisions of this Act;

(b) ships less than three hundred tons;

(c) air-cushion vehicles;

(d) floating platforms constructed for the purpose of exploring or

exploiting the natural resources of the sea-bed or the subsoil thereof.".

22. After section 352F of the principal Act, the following section shall be inserted, namely:—

Insertion of new section 352FA.

"352FA. The Central Government may make rules to carry out the purposes of Power to make rules

this Part:

Provided that the rules under this Part shall be made having regard to the provisions of the Convention.".

23. For section 352H of the principal Act, the following section shall be substituted, namely:-—

Substitution of new section for section 352H

'352H, In this Part, unless the context otherwise requires,—

Definitions.

(a) "incident" means any occurrence, or series of occurrences having the same origin, which causes pollution damage or creates a grave and imminent threat of causing such damage;

(b) "Liability Convention means the International Convention on Civil

Liability for Oil Pollution Damage, 1992 as amended from time to time.'.

(e) "oil" means any persistent hydro carbon mineral oil such as crude oil, fuel oil, heavy diesel oil, lubricating oil whether carried on board a ship as cargo or in the bunker of such ship:

(d) "owner" means—

(i) the person registered as owner of the ship;

(if) in the absence of registration, the person owning the ship; or

(Hi) in the case of a ship owned by a foreign State, the person

registered in that State as operator of the ship;

(e) "person" means any individual or partnership or any public or private body, whether corporate or not, including a state or any of its constituent sub- divisions;

(/) "pollution damage" means—

(i) loss or damage caused outside the ship by contamination resulting from escape or discharge of oil from the ship, wherever such escape or discharge occurs, provided that compensation for impairment of the environment other than losses or profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken;

(ii) the costs of preventive measures and further loss or damage

caused by such measures;

(g) "preventive measures" means any reasonable measures taken by any

person after the incident to prevent or minimise pollution damage;

(ti) "ship" means any sea-going vessel and sea borne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard;

(i) "State of the ship's registry", in relation to registered or unregistered ships, means the State of registration of the ship, or as the case may be, the State whose flag the ship is flying;

24. In section 352-1 of the principal Act,— Amendment (a) for sub-section (4), the following sub-section shall be substituted,

of section 352-1 namely.—

"(4) When any incident involving two or more ships occurs and pollution damage results therefrom, the owners of all the ships concerned, unless exonerated under sub-section (3), shall be jointly and severally liable for such damage which is not reasonably separable.";

(b) for sub-section (6), the following sub-section shall be substituted, namely:—

"(6) Without prejudice to any right of recourse of the owner against third parties, no claim for compensation for pollution damage may be made against—

(a) the servants or agents of the owner or the members of the crew;

(b) the pilot or any other person who, without being a member of the

crew, renders services for the ship;

fe) any charterer (howsoever described, including a bare-boat charterer), manager or operator of the ship;

(cf) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

(e) any person taking preventive measures;

(f) ali servants or agents of pcR>un;. mentioned iii clauses (c), (d) and(e),

unless the incident causing such damage occurred as a result of their personal act or omission committed or made with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.".

25. For section 352J of the principal Act, the following section shall be substituted, namely:—

Substitution of new section for section 352J

"352J. (/) The owner shall be entitled to limit his liability under this Part, in Limitation of liability

respect of any one or more incident, as may be prescribed.

(2) The owner shall not be entitled to limit his liability if it is proved that the incident causing pollution damage occurred as a result of his personal act or omission committed or made with the intent to cause such damage, or recklessly and with knowledge that such damage wpuld probably result.".

26. In section 352R of the principal Act, after clause (b), the following clause shall be inserted, namely:—

Amendment of section 352R.

"(c) the limits of liability of owner in respect of one or more incident of pollution damage or other requirements having regard to the provisions of the Liability Convention.".

27. After Part XB of the principal Act, the following Part shall be inserted, namely:—

Insertion of new Part XC

'PART XC

INTERNATIONAL OIL POLLUTION COMPENSATION FUND

Definitions.

352S. In this Part, unless the context otherwise requires,—

(a) "contributing oil" means crude oil and fuel oil.

Explanation.—For the purposes of this clause,—

(i) "crude oil" means any liquid hydro carbon mixture occurring naturally in the earth whether or not treated to render it suitable for transportation and includes crude oils from which certain distillate fractions VIHVC been removed or to which certnin distillate fractions have been added;

(if) "fuel oil" means heavy distillates or residues from crude oil or blends of such materials intended for use as a fuel for the production of heat or power of a quality equivalent to the 'American Society for Testing and Materials' Specification for Number Four Fuel Oil (Designation D 396- 69)', or heavier;

(b) "discharge or escape", in relation to pollution damage, means the discharge or escape of oil earned by the ship;

(c) "Fund" means the International Oil Pollution Compensation Fund established by the Fund Cnnvention;

(d) "Fund Convention" means the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 as amended from time to time;

(e) "Fund Convention country" means a country in which the Fund

Convention is for the time being in force;

(/) "guarantor" means any person providing insurance or other financial

security to cover the owner's liability;

(g) "terminal installation" means any site for the storage of oil in bulk which is capable of receiving oil from waterbome transportation, including any facility situated off-shore and linked to such site;

(7i) "ton", in relation to oil, means a metric ton.

Contribution to the Fund 352T (7) Contributions to the Fund, in respect of contributing oil carried by sea to ports or terminal installations in India, shall be payable in accordance with Articles 10 and 12 of the Fund Convention.

(2) Sub-section (/) shall apply whether or not the contributing oil is imported, and notwithstanding that contributions are payable to the Fund m respect of carriage of the same contributing oil on a previous voyage.

(3) Contributions shall also be payable to the Fund in respect of contributing oil when first received in any installation in India after having been carried by sea and discharged in aport or terminal installation in a country which is not a Fund Convention

__ country.

(4) The person liable to pay contributions to the Fund shall be—

(a) in case of contributii'/,¹ <<',\ which is being imported into India, the

importer; or

(b) in any other case, the person by whom the oil is received in India.

(5) A person shall nut be liable to pay con*. ibutions to the Fund in respect of the contributing oil imported or received by him .n aiiy year if the quantity of contributing oil so imported or received in the year docs not evceed one hundred and fifty thousand tones or as may be specified from time to time in the Fund Convention.

352U. (/) The contributions payable to the Fund by a person for any year shall

bo,—

Contribution payable by persons to the Fund (a) such amount as may be determined by the Assembly of the Fund

under Articles 10 and 12 of the Fund Convention;

(b) in such instalments, becoming due at such dates,

as may be notified and if any amount due from such person remains unpaid after the date on which it became due, it shall from that due date bear interest at a rate determined by the said Assembly until it is paid.

(2) The Central Government may require persons, who are or may be liable to pay contributions to the Fund under section 352T, to give financial security for payment of contributions to that Government or the Fund.

Power to call for information.

352V. (i) The Central Government may, for the purpose of transmitting to the Fund the names and addresses of the persons who under section 352T are liable to make contributions to the Fund every year and the quantity of contributing oil in respect of which they are so liable, by notice require any such person to furnish such information as may be specified therein.

(2) A notice under this section may require a person to give such information as

may be required to ascertain whether he is liable to contribute to the Fund.

(3) A notice under this section may specify the manner in which, and the time within which, such notice is to be complied with.

(4) In proceedings by the Fund against any person to recover any amount due under section 352T, particulars contained in any list transmitted by the Central Government to the Fund shall, so far as those particulars are based on information obtained under this section, be admissible as evidence of the facts stated in the list; and so far as particulars which i"e so admissible are based on information given by the person against whom the proceedings are brought, those particulars shall be presumed to be accurate until the contrary is proved.

(5) No person shall disclose any information which has been furnished to or obtained by him under this section unless the disclosure is made,—

(a) with the consent of the person from whom the information was obtained;

(b) in connection with the compliance of this section;

(c) for the purpose of any legal proceedings arising out of this section or of any report of such proceedings.

(<5) A person who,—

(a)refuses or wilfully neglects to comply with a notice under this section;

or

(b) makes, while furnishing any information in compliance with a notice ^nder this section, any statement which he knows to be false in a material particular, or recklessly makes any slxUement which is false in a material particular, shall be cuilty of an offence punishable under this Act.

Liability of the Fund.

352W. Where any person suffering pollution damage has been unable to obtain full and adequate compensation for the damage under the term:, of the Liability Convention on any of the grounds specified in Article 4 of the Fund Convention, the Fund shall be liable for pollution damage in accordance with the provisions of the Fund Convention.

352X. (I) Any action for a claim against the Fund for compensation under Jurisdiction of Courts.

section 352 W shall be brought before the High Court.

(2) The Fund shall have the right to intervene as a party to any legal proceedings instituted in the High Court against the owner or his guarantor.

(3) Where an action for compensation for pollution damage has been brought against the owner or his guarantor before the High Court each party to the proceedings may notify the Fund of the proceedings.

(4) Where such notice of proceedings has been given to the Fund, any judgment given in the proceedings shall, after it has become final and enforceable, become binding upon the Fund in the sense that the facts and evidence in that judgment may not be disputed bv the Fund on the ground that it has not intervened in the proceedings.

Extinguish- ment ot claims.

352 Y. Notwithstanding anything contained in any other law for the time being in force, no action to enforce a claim against the Fund under this Part shall be entertained by a High Court unless—

(a) tho action to enforce is commenced; or

(b) notice of action to enforce a claim against the owner or his guarantor in respect of the same pollution damage is given to the Fund,

within three years from the date when the damage occurred:

Provided that in no case an action to enforce a claim shall be brought after six

years from the date of the incident that caused such damage.

Subrogation and right of recourse.

352Z. In respect of any sum paid by a public authority in India or the Fund, as the case may be, as compensation for pollution damage, that authority shall acquire by subrogation any rights which the person so compensated would have enjoyed under the Fund Convention.

352ZA. The Central Government may make such rules as may be required tc Power to nuke ml*;.-.

carry out the purposes cf the Fund Convention.'.

CHAPTER ffl

AMENDMENT OF THE MAJOR PORT TRUSTS ACT, 196:

Amendment of section 116 of Act 38 of 1963.

44 of 1958.

28. In section 116 or the Major Port I rusts Act, 1 ybs, tor the portion beginning with the words "such recovery, by distress and sale," and ending with the words "attributable to the order, act or improper omission of such employee", the words, letters and figures "such recovery in accordance with the provisions of Part XA of the Merchant Shipping Act, 1958" shall be substituted.

STATEMENT OF OBJECTS AND REASONS

The Merchant Shipping Act, 1958 governs matters relating to shipping in India. The main objective of the Act is to ensure devciu[jiuo>it and efficient maintenance of the Indian mercantile marine. The Act has been amended from time to time in the light of experience gained in its implementation and also to give effect to the provisions of various International Conventions to which India has acceded.

2. As an active member of the International Maritime Organisation (IMO), India has acceded to a number of International Conventions and Protocols adopted by the IMO, Suitable provisions are required to be made in the Merchant Shipping Act, 195 8 to enable the Government of India or its agencies to give effect to those Conventions and Protocols, Besides, amendments of certain provisions of the Act are also required to enable the maritime administration to meet its operational requirements.

3. The Conventions and protocols for implementation of which provisions are required to be made in the Merchant Shipping Act, 1958 are outlined as under:—•

The International Maritime Organisation has adopted the International Convention on Limitation ofLiabilityfor Maritime Claims (LLMQ, 1976 on 19* November, 1976 under which the limitation tonnage is the gross tonnage of the vessel as calcul ated under the universal measurement system in accordance with the Tonnage Measurement . of Ships Convention, 1969, The limitation of liability has been extended to any person for whose neglect or default the shipowner or salvor is responsible. Limitation of liability will be barred if it is proved that the loss resulted from any personal act or omission committed by the shipowner or the salvor with the intent to cause such loss or committed recklessly and with the knowledge that such loss would probably result. The Safety of Life at Sea (SOLAS) Convention, 1974 was amended in 1988 to streamline and harmonise the survey of ships and their equipment to ensure safety of ships proceeding on sea voyages. The Convention on Load Lines, 1966 as amended in 1988 deals with harmonised system of survey of ships and their certification. The Civil Liability Convention (CLC), 1992 mainly deals with payment for oil pollution damages by any ship in the Indian waters up to limits of exclusive economic zone and by any Indian ship abroad. The Fund Convention, 1992 provides a second tier of compensation regime where a claimant can proceed against the Fund located in London that pays for damages.

4. The Bill seeks to amend various provisions of the Act, which, inter alia, include the following, namely—

(1) sections 76 and 87 are being amended 10 empuwci the Central Government to prescribe different manning scales for different types of ships and section 95 is being amended to redefine the role of seamen's employment offices to control and regulate the manning agents and recruitment and placement service instead of controlling and regulating the employment of seamen. Section 97 is being amended to bring the unions within its purview to enable curbing of malpractices by the seamen's unions and a new section 97 A is being inserted to prohibit any discrimination in recruitment of seafarers;

(ii) sections 299, 299A, 300, 301, 303 and 307 are being amended to include the changes made in SOLAS Convention, 1974 as amended in 1988. Section 317 is being amended to implement the provisions ot the Load Lines Convention, 1966 a.s amended in 1988 to harmonise the survey and certification procedures with those of SOLAS Convention, 1974 as amended in 1988;

(iii) section 344 is being amended to empower the Central Government to prescribe the record of equipment and the manner of surveys to be made in respect of ships;

(iv) sections 352, 352A, 352B, 352C, 352D and 352E are being amended to enable the Central Government to implement the provisions of the LLMC, 1976. A new section 352 FA is being added to empower the Central Government to frame rules;

(v) sections 352H, 352-1, 352J and 352R are being amended to implement the

provisions of CLC, 1992;

(vi) new sections 352S,to 352ZA are being inserted for implementation of the

provisions of the Fund Convention, 1992 ;

(vii) consequent to amendment to section 352A, section 116 of the Major Port Trusts Act, 1963 is being amended to provide for recovery of damage to the port properties in accordance with the provisions of Part XA of the Merchant Shipping Act, 1958;

(viii) the Indian ships which carry country's commercial trade to the outside world arc subjected to control of the Port State which has the right to inspect such ships. Hence, the Indian ships are required to carry internationally valid survey certificates issued in accordance with the procedures established by the International Maritime Organisation but for which they will be required to undergo surveys at foreign ports at the time they call at those ports. The proposed amendments of the Merchant Shipping Act, 1958 will enable the Government of India to take care of these aspects.

5. The Bill seeks to achieve the above objects.

VEDPRAKASH P. GOYAL.

Notes on clauses

Clause! of the Bill seeks to amend section 76 of the Merchant Shipping Act, 1958 to empower the Central Government to prescribe different manning scales for different types of ships and the number of persons and qualifications with which different types of ships shall engage such persons for maintaining watches.

Clause 3 seeks to amend section 87 to provide the number of persons and the qualifications they may possess for maintaining watches may be engaged by different types of ships at sea or in any port or place.

Claused seeks to amend section 95 to re-define the role of the seamen's employmept offices which will now issue licence, regulate and control the recruitment and placement service instead of controlling and regulating the employment of seamen.

Clause 5 seeks to substitute section 97 to provide that a person, company or organisation including a union purporting to represent the interests of the seamen shall not demand or receive either directly or indirectly, from any seaman or person seeking employment as a seaman or person' on his behalf, any remuneration or donation or fees or compulsory subscription of any kind attributable from such seaman or person's employment as seamen, other than the fees authorised under the Act.

Clause 6 seeks to insert a new section 97A to prohibit any discrimination between seamen for employment on the grounds of either membership of any particular union or the training institute from where they obtained training or the place of issue of their continuous discharge certificates.

Clause 7 seeks to substitute the sub-heading above section 299 because certain expressions therein have become irrelevant due to installation of radio communication equipment on board¹ ships.

Clause 8 seeks to amend section 299 by substituting certain expressions which have become irrelevant consequent upon the adoption of Global Maritime Distress and Safety System. Further, the amendment provides that the certificates issued under sections 299, 300 and 301 shall be supplemented by a record of equipment in the prescribed form as required by the Safety of Life at Sea Convention, 1974.

Clause 9 seeks to amend section 299A to provide for the Central Government to authorise any person to issue cargo ship safety construction certificate, cargo ship safety certificate, qualified cargo ship safety construction certificate or qualified cargo ship construction certificate in the prescribed form and also to provide that the owner of every ship in respect of which a certificate is issued under section 299A, section 300 or section 301 shall, so long as the certificate remains in force, cause the ship to be surveyed in the manner as specified in the Safety Convention or in cases where the manner specified is not applicable, in such manner as the rules made in this behalf prescribe, as the case may be.

. ,

Clause 10 seeks to substitute section 300 to provide for the Central Government or any person authorised by it may issue a qualified cargo ship safety equipment certificate or a qualified cargo ship equipment certificate in the prescribed form.

Clause 11 seeks to substitute section 301 to provide that the Central Government or any person authorised by it may issue cargo ship safety radio certificate and qualified cargo ship safety radio certificate in the prescribed form.

Clause 12 seeks to substitute section 303 to provide for shorter period of validity for various safety certificates issued to passenger and cargo ships. It also provides that the Central Government or any person authorised by it may grant an extension of any certificate issued in respect of an Indian ship.

Clause 13 seeks to amend section 307 to substitute certain irrelevant expressions

with new expressions due to advancement in technology,

Clause 14 seeks to amend section 317 by insertion of a new proviso after the existing proviso in sub-section (1) to provide that when the survey for the purpose of issue of certificate under sub-section (1) of section 316 is completed within three months before the expiry date of the existing certificate, the new certificate may be valid for a period of five years from the date of expiry of the existing certificates. It also provides grounds where a certificate shall Cease tu ue valid. Fuiliici, ii empowers the Central Government or any person authorised by it to extend the period of validity of the certificate for the purpose of completing the voyage to the port in which it is to be surveyed.

Clause 15 seeks to substitute clause (a) of sub-section (2) of section 344 to provide that the Central Government may prescribe the form of any certificate, record of equipment and the manner of surveys in respect of those ships to which the manner of surveys specified in the Safety Convention is not applicable,

Clause 16 seeks to amend section 352 to define various expressions on the lines of

the Convention on Limitation of Liability for Maritime Claims (LLMC), 1976.

Clause 17 seeks to substitute section 352A to provide for limitation of liability for damages in respect of certain maritime claims in accordance with the provisions of the Convention on Limitation of Liability for Maritime Claims (LLMC), 1976.

Clause 18 seeks to substitute section 352B to provide for limitation of liability in accordance with the provisions of the Convention or the rules made therefor, as the case may be.

Clause ] 9 seeks to amend section 352C of thcAct to provide for setting of a limitation Fund and production of a bank guarantee to settle the liability in respect of maritime claims in accordance with the provision of the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976 as amended from time to time.

Clause 20 seeks to amend section 352D to redefine the "Convention Country" on lines of the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976 as amended from time to time and to insert a new sub-sections (6) and (7) to define the condition when the vessel or property shall be ordered to be released in case of setting up of limitation Fund and to specify when the provisions of sub-section (6) shall apply.

Clau$e2\ soeks to substitute section 352E to redefine the scope of application of the provisions of Part XA of the Act in accordance with the provisions of the convention on Limitation of Liability of Maritime Claims (LLMC), 1976.

Clause!! seeks to insert a new section 352FA to empower the Central Government to make rules to carry out the purposes of Part XA of the Act having regard to the provisions of the Convention on Limitation of Liability of Maritime Claims (LLMC), 1976 as amended from time to time.

Clause 23 seeks to amend section 352H to define various t;xpie:"&ioii> OJI the lines uf

the Convention on Civil Liability, 1992.

Clause!^ seeks to amend section 352-1 to provide that in case of an incident involving two or more ships occur resulting'into pollution damage the owners of all ships, unless exonerated, shall be jointly and severally liable for such damage which is not reasonably separable. Sub-section (6) is substituted to specify the parties against whom no claim for compensation for pollution damage may be made.

Clause 25 seeks to substitute section 352J to provide for limitation of liability in

accordance with the provisions of the Convention on Civil Liability, 1992.

Clause 26 seeks to amend section 352R to insert a new clause (c) to empower the Central Government to make rules to specify the limits of liability in respect of pollution damage on the lines of the Convention on Civil Liability, 1992.

Clause 27 seeks to insert a new Part XC to the Act comprising sections 352S to 352ZA incorporating the provisions of the Fund Convention, 1992. This Pnrt provides as to who shall or shall not be liable to pay contributions to the Fund and the manner in which contribution to the Fund shall be payable, the quantum of amount payable to be determined by the Assembly of the Fund, requirement for giving financial security for payment of contribution to the Central Government or the Fund, the power of Central Government to call for information from persons who are liable to make contribution to the Fund for the purpose of transmitting the same to the Fund, action to enforce a claim against the Fund to be entertained within three years from the date when the damage occurred provided certain conditions are fulfilled and the Central Government to make rules that may be required for carrying out the purposes of the Fund Convention.

Clause 28 seeks to amend section 116 of the Major Port Trusts Act, 1963 to provide for the recovery of damage to the port properties in accordance with the provisions of Part XA of the Merchant Shipping Act, 1958.

MEMORANDUM REGARDING DELEGATED LEGISLATION

PUBLISHED BY THE SECRET/\RY-GENERAL, RAJYA SABHA UNDFR RUIPS 68 OF THE RULES OF PROCEDURE AND CONDUCT OF BUSINESS IN THE RAJYA SAUIIA, 2002.

MQIP(PLU)MRND—2770QI—31-8-2002.