Chapter 20: Miscellaneous Provisions

306 – [(1) Subject to subsection (1A) below, any power of the Secretary of State to make regulations, orders or rules under this Act shall be exercisable by statutory instrument.

(1A) Subsection (1) above does not apply to –

1. rules made under section 91; or

2. any instrument made under section 128(4)(f) other than an instrument containing regulations.]

[(2) Subject to subsection (2A) below –

1. any statutory instrument containing regulations under this Act (including such an instrument made by virtue of section 128(4)(f) or 182B(4)(e)), and

2. any statutory instrument containing an order or rules made under this Act,

(2A) Subsection (2) above does not apply to –

1. regulations made under section 130A, 259(8) or 260(3) or Schedule 11A;

2. commencement orders;

3. any order made under section 216(2), 223(3), paragraph 8 of Part II of Schedule 7, or any provision of Schedule 14.]

(3) Any statutory instrument containing an Order in Council under this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament but this subsection does not apply to Orders under section 2(4), 128, 129, 152(2), 172(2), [182B(1)] 183, 184, [185(2A) or (2B)] 224, 308 or 315(2) or … paragraph 10 of Part II of Schedule 6 or paragraph 13 of Part II of Schedule 7.

(4) Before making the following regulations, rules or orders, namely –

1. regulations under Part III or under [section 108 or 130A];

2. rules under Chapter II of Part V;

3. an order under section 311;

(5) Any direction, notice, order or authorisation under this Act given or made by the Secretary of State shall be in writing.

(6) Any power to give a direction includes power to vary or revoke the direction by a subsequent direction.

20.2 Notes

Subsections (1) and (2), and the words in square brackets in subsections (3) and (4)(a), were substituted by the Merchant Shipping and Maritime Security Act 1997, section 27(1), Schedule 6, paragraph 18(1)–(5). The changes in subsections (2) and (2A) and in subsection (4)(a) were made effective as from 23 March 1997 by virtue of the Merchant Shipping and Maritime Security Act (Commencement No 1) Order 1997, SI 1997/1082. The changes in subsections (1) and (3) were made effective as from 17 July 1997 by virtue of the Merchant Shipping Maritime Security Act 1997 (Commencement No 2) Order 1997, SI 1997/1539. Words missing from subsection (3) were repealed by the Merchant Shipping (Load Line) Regulations 1998, SI 1998/2241, regulation 3(1)(c).

20.3 Cross-references

Section 9 contains provisions relating to the registration of ships. The current Regulations as to the registration of ships are the Merchant Shipping (Registration of Ships) Regulations 1993, SI 1993/3138, as amended by the Merchant Shipping (Registration of Ships) (Amendment) Regulations 1994, SI 1994/541.

Subsection (2) exempts commencement orders, transitory provision orders or orders under specific provisions of the 1995 Act from an annulment by resolution of either House of Parliament. These provisions are generally temporary or administrative in nature. Section 216(2) concerns orders by the Secretary of State to increase the limit of borrowings available to a general lighthouse authority under section 215.

Section 223(3) enables the Secretary of State by order to provide that references to a buoy or beacon in Part VIII of the 1995 Act shall be construed as including equipment of a kind intended in the aid of navigation of ships.

Paragraph 8 of Part II of Schedule 7 allows the Secretary of State to prescribe the rate of interest to be applied for the purposes of calculating the limitation fund constituted under article II of Part I of that Schedule.

Paragraph 5 of Schedule 9 allows the Secretary of State to appoint as the transfer date the lighthouses, buoys and beacons and any other property of a general lighthouse authority to be specified in any proposal for transfer to a competent harbour authority (acting as a local lighthouse authority).

Section 85 concerns safety Regulations. Section 259(8) concerns Regulations as to the procedure to be followed in taking samples from a ship pursuant to section 259(2)(f), (11) and 260(4) of the 1995 Act.

Schedule 14 consists of a number of transitory, saving and transitional provisions continuing in force for certain purposes in specified provisions of the Merchant Shipping Acts 1894–1994 and instruments made thereunder.

Subsection (3) exempts Orders in Council made under specific provisions of the 1995 Act from an annulment by resolution of either House of Parliament. For the most part, these provisions concern the power of the Secretary of State to give effect to or to implement the provisions of an international convention.

Section 2(4) concerns Orders in Council setting out colours to be used by ships registered in a relevant British possession. Section 128 gives the Secretary of State power to make provisions for the purpose of implementing international conventions relating to the prevention of marine pollution. Section 129 gives a similar power for implementing the provisions of the United Nations Convention on the Law of the Sea, 1982 relating to marine pollution. Section 152(2) gives the Secretary of State power to implement the International Convention on Civil Liability for Oil Pollution, 1992 and section 172(2) gives similar power to implement the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992. Section 183 allows for implementation of the Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 and section 184 allows for the application of that Convention to carriage within the British Islands. Section 224 allows for the implementation of the International Convention on Salvage, 1989. Section 308 concerns the registration of, and application of the Merchant Shipping Act 1995 to, Government ships. Section 315(2) allows the Secretary of State to extend provisions of the 1995 Act, and the provisions of instrument made thereunder, subject to such exceptions, adaptations and modifications as may be specified in the Order, to any relevant British possession. Paragraph 29 of Schedule 3 allows Her Majesty to declare that a country has accepted or denounced the International Convention on Load Lines, 1966. Paragraph 10 of Schedule 6 makes similar provision as respects the Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, and paragraph 13 of Part II of Schedule 7 makes similar provision as respects the Convention on Limitation of Liability for Maritime Claims, 1976.

Subsection (4) requires consultation with organisations appearing to him representative of persons affected who in his opinion will be affected by Regulations, Rules or Orders made under certain enactments.

Part III deals with masters and seamen. Section 108 deals with the registration of births and deaths on ships. Chapter II of Part V concerns safety on United Kingdom fishing vessels. Section 311 concerns the application of the 1995 Act to certain structures not normally described as ships.

Article 2 of, and Schedule 15 to, the Civil Partnership Act 2004 ((Amendments to Subordinate Legislation) Order 2005, SI 2005/2114 amend various merchant shipping Regulations so that civil partners and relatives of civil partners are treated in the same way as spouses and relatives of spouses for the purposes of the definition of “immediate family”.

20.4 MSA 1995, section 307

307 – (1) The Secretary of State may make regulations specifying any description of non-United Kingdom ships and directing that such of the provisions of this Act and of instruments under this Act as may be specified in the regulations –

1. shall extend to non-United Kingdom ships of that description and to masters and seamen employed in them;

2. shall so extend in such circumstances as may be so specified, with such modifications (if any) as may be so specified.

(2) Regulations under this section may contain such transitional, supplementary and consequential provisions as appear to the Secretary of State to be expedient.

(3) In this section “non-United Kingdom ships” means ships which are not registered in the United Kingdom.

20.5 Commentary

The Merchant Shipping Act 1970 (s 99) and the Merchant Shipping Act 1988 (s 50) also contained provisions for the application of provisions of those Acts to unregistered ships. The Acts were applied to unregistered ships and fishing vessels by the Merchant Shipping Act 1970 (Unregistered Ships) Regulations 1991, SI 1991/1365, the Merchant Shipping Act 1970 (Unregistered Fishing Vessels) Regulations 1991, SI 1991/1366, and the Merchant Shipping Act 1988 (Unregistered Ships) Regulations 1991, SI 1991/1367. No corresponding Regulations have yet been made under section 307 of the Merchant Shipping Act 1995.

20.6 MSA 1995, section 308

308 – (1) Subject to any other provision of it, this Act shall not apply to ships belonging to Her Majesty.

(2) Her Majesty may by Order in Council make regulations with respect to the manner in which Government ships may be registered as British ships under Part II; and this Act, subject to any exceptions and modifications as may be made by Order in Council, either generally or as respects any special class of Government ships, shall apply to government ships registered in accordance with the Order as...