New South Wales: Marine Pollution Act 2012 (NSW)

Marine Pollution Act 2012 No 5 An Act to protect the State's marine and coastal environment from pollution by oil and certain other marine pollutants discharged from ships; to repeal the Marine Pollution Act 1987; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Marine Pollution Act 2012. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Object of Act (1) The object of this Act is to enhance the protection of New South Wales State waters from marine pollution from vessels. (2) This object is to be achieved primarily by giving effect to the relevant provisions of the following Annexes of MARPOL— • Annex I, which deals with prevention of pollution by oil, • Annex II, which deals with control of pollution by noxious liquid substances in bulk, • Annex III, which deals with prevention of pollution by harmful substances in packaged form, • Annex IV, which deals with prevention of pollution by sewage, • Annex V, which deals with prevention of pollution by garbage. (3) The object is also to be achieved by providing— (a) an approach to protecting New South Wales State waters from ship-sourced pollutants that is complementary to the approach of the Commonwealth, and (b) an effective framework for the protection of New South Wales State waters from pollution from vessels, and (c) for the investigation of marine pollution incidents and for appropriate action following a marine pollution incident, and (d) for the imposition of penalties on persons who pollute New South Wales State waters in contravention of this Act. 3 Definitions In this Act— Australian ship means— (a) a ship registered in Australia, or (b) an unregistered ship having Australian nationality. cargo record book, in relation to a ship, means a book required to be carried on board the ship by section 124. certified— (a) in relation to a ship with a home port in this State—means certified by Transport for NSW or the Australian Maritime Safety Authority, or (b) in relation to an Australian ship with a home port outside this State—means certified by the Australian Maritime Safety Authority or by the interstate maritime authority that regulates its home port, or (c) in relation to a ship having nationality outside Australia—means certified by the relevant national maritime authority of the country whose flag the ship is entitled to fly. discharging includes jettisoning. foreign ship means a ship that is not an Australian ship. function includes a power, authority or duty, and exercise a function includes perform a duty. garbage discharge requirements placard, in relation to a ship, means a placard required to be displayed on the ship by section 110. garbage management plan, in relation to a ship, means a plan required to be carried on board the ship by section 107. garbage record book— (a) in relation to a ship—means a book required to be carried on board the ship by section 135, or (b) in relation to a platform—means a book required to be carried on the platform by section 136. Government ship has the same meaning as in section 13 (1) of the Protection of the Sea (Civil Liability) Act 1981 of the Commonwealth. harmful substance means a substance that is identified as a marine pollutant in the International Maritime Dangerous Goods Code and includes a substance that meets the criteria in the Appendix of Annex III of MARPOL. inspector means a person who is appointed under section 226 to be an inspector for the purposes of this Act. International Maritime Dangerous Goods Code means the Code adopted by the International Maritime Organization by resolution A.716(17), as amended from time to time. jettisoning includes leakage and accidental discharge or loss overboard. large ship means a ship— (a) that has a gross tonnage of 400 or more, or (b) that has a gross tonnage of less than 400 and that is certified to carry more than 15 persons, or (c) that does not have a measured tonnage and is certified to carry more than 15 persons. marine pollutant means any one, or any combination, of the following substances (whether in bulk, packaged or another form)— (a) oil, (b) a noxious liquid substance, (c) a harmful substance, whether or not in packaged form, (d) sewage, (e) garbage. MARPOL means the International Convention for the Prevention of Pollution from Ships, 1973— (a) as corrected by the Proces-Verbal of Rectification dated 13 June 1978, and (b) as affected by any amendment made under Article 16 of MARPOL, other than an amendment not accepted by Australia or that has not entered into force in Australia, and (c) as modified and added to by the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, as affected by any amendment to that Protocol made under Article VI of that Protocol other than an amendment not accepted by Australia or that has not entered into force in Australia. Note. The full text of the 1973 Convention and the 1978 Protocol referred to in this definition (including all amendments) can be found by searching for "MARPOL" on the website of the Australian Maritime Safety Authority (www.amsa.gov.au). The amendments accepted by Australia are the amendments reproduced on that website. master, in relation to a ship, means a person, other than a pilot, having command or charge of the ship. mixture includes ballast water, tank washings and other residues. NSW sewage pollution prevention certificate means a certificate issued under section 155 (3). occupier— (a) in relation to a place on land (other than a pipeline) means— (i) the person exercising personally or by employees or agents the right of occupation of the land, or (ii) if there is no occupier—the owner of the land, and, in the case of a vehicle, includes the person in charge and the owner of the vehicle, but does not include the occupier or owner of the land on or over which the vehicle stands or moves, and (b) in relation to a pipeline means— (i) the owner of the pipeline, and (ii) the lessee, licensee or user of any lease, licence or right of user for the use of the pipeline for the carriage of oil or a noxious liquid substance or any combination of those substances (whether in bulk, packaged or another form). oil record book, in relation to a ship, means a book required to be carried on board the ship by section 113. overseas voyage has the same meaning as in the Navigation Act 2012 of the Commonwealth. packaged form means a form of containment specified for harmful substances in the International Maritime Dangerous Goods Code. place on land includes the following— (a) any structure or apparatus on or above or below the surface of any land, (b) any thing or vehicle resting on or moving over land, (c) any thing resting on or lying under the bed, bank or shore of any State waters, (d) a pipeline, (e) any thing afloat (other than a ship) if it is anchored or attached to the bed, bank or shore of any State waters or is used in any operation for the exploration of the sea-bed or subsoil beneath any State waters or for the exploitation of the natural resources of that sea-bed or subsoil. port has the same meaning as in the Ports and Maritime Administration Act 1995. Port Authority of New South Wales means the Newcastle Port Corporation established under the Ports and Maritime Administration Act 1995. procedures and arrangements manual, in relation to a ship, means a manual for the ship required to be carried on board the ship by section 104. recreational vessel means a vessel used wholly for the purpose of recreational or sporting activities and not for hire or reward. responsible—see section 5. ship means a vessel of any type capable of being used on or in water and includes— (a) a hydrofoil boat, or (b) an air-cushion vehicle, or (c) a submersible or submarine, or (d) a floating craft, or (e) a fixed or floating platform, or (f) a barge (whether self-propelled or not), or (g) a sea-plane, or (h) a floating dock (whether self-propelled or not). shipboard marine pollution emergency plan for noxious liquid substances, in relation to a ship, means a plan required to be carried on board the ship by section 100. shipboard oil pollution emergency plan, in relation to a ship, means a plan required to be carried on board the ship by section 95. State waters means— (a) coastal waters of the State, within the meaning of Part 10 of the Interpretation Act 1987, and (b) waters within the limits of the State. strictly prohibited oily mixture means a mixture that contains oil and that also contains— (a) chemicals or other substances in quantities or concentrations that are hazardous to the marine environment, or (b) chemicals or other substances that have been introduced for the purpose of attempting to prevent the application of section 15, 16 or 17 to the discharge of a mixture containing oil from a ship. transfer operation—see section 5A. unavoidable damage, in relation to a ship, means any damage other than the following— (a) damage deliberately caused by the master or owner of, or a member of the crew of, the ship, (b) damage recklessly caused by the master or owner of, or a member of the crew of, the ship, with the knowledge that damage would probably result, (c) damage arising as a result of the negligence of the master or owner of, or a member of the crew of, the ship, (d) deterioration resulting from failure to maintain the ship or equipment, (e) defects that develop during the normal operation of the ship or equipment. uncategorised noxious liquid substance means a liquid substance— (a) that has not been categorised in accordance with Regulation 6.1 of Annex II of MARPOL, and (b) that has not been provisionally assessed in accordance with Regulation 6.3 of Annex II of MARPOL. 4 Expressions used in this Act and MARPOL (1) An expression used in this Act that is also used in MARPOL (whether or not a particular meaning is assigned to it by MARPOL), has in this Act the same meaning as in MARPOL. (2) Except as far as the context or subject matter otherwise indicates or requires, if a word or expression is defined in MARPOL (including Protocol I or an Annex of MARPOL) and this Act— (a) this Act's definition does not limit or exclude, but may extend, the meaning of the word or expression given under MARPOL, and (b) the definitions are to be read in the context of each other and the other provisions of this Act, but, if the definitions so read are inconsistent, the MARPOL definition is displaced. 5 Meaning of "responsible" For the purposes of this Act, a person is responsible for a discharge if that person, or another person acting under the direction of that person, committed an act that caused the discharge and the person committed the act— (a) with intent to cause the discharge, or (b) recklessly and with the knowledge that the discharge would probably result, or (c) negligently. 5A Meaning of "transfer operation" For the purposes of this Act, transfer operation— (a) means an operation that is involved in the preparation for, or in the commencement of, carrying on or termination of, a transfer of oil or a noxious liquid substance or a combination of those substances, whether in bulk, packaged or another form, to or from a ship or a place on land, but (b) does not include a transfer of oil cargo at sea between oil tankers with a gross tonnage of 150 or more, to which Chapter 8 of Annex I of MARPOL applies. 5B References to "certified to carry" (1) A reference in this Act to a ship that is certified to carry a number of persons is taken to include a ship displaying, on an Australian Builders Plate, information about the maximum number of persons the ship may carry if the ship is fitted with an Australian Builders Plate containing the information. (2) In this section— Australian Builders Plate means a plate issued in accordance with the National Standard for the Australian Builders Plate for Recreational Boats developed by the National Marine Safety Committee, as in force from time to time. 6 Time when ship taken to be proceeding on voyage For the purposes of the Act, a ship is taken to be proceeding on a voyage from the time when it is got under way for the purpose of proceeding on the voyage until the time when it is got under way for the purpose of proceeding on another voyage. 7 References to tonnage (1) A reference in this Act to the gross tonnage of a ship not expressed in tons is, in the application of this Act to a non-TMC ship, taken to be a reference to the gross tonnage of the ship expressed in tons. (2) In this section— non-TMC ship means a ship the gross tonnage of which has been determined otherwise than in accordance with the Tonnage Convention. Tonnage Convention has the same meaning as in the Navigation Act 2012 of the Commonwealth. 8 Notes Notes and examples included in this Act do not form part of this Act. Note. To assist the reader, many provisions of this Act contain editor's notes drawing attention to the provision of MARPOL that the provision of the Act gives effect to. Part 2 Application of Act 9 Saving of other laws This Act is to be read and construed as being in addition to, and not in derogation of, any other law of the State. Note. It is noted that section 7 (3) of the Protection of the Environment Operations Act 1997 provides that this Act prevails over that Act. 10 Act subject to Ports and Maritime Administration Act 1995 This Act is subject to the Ports and Maritime Administration Act 1995. 11 Detention of ships and holding of security over them: exclusion of matters from operation of Commonwealth Act (1) The exercise, while a ship is compulsorily detained under this Act, of a right of seizure created by the Commonwealth Act is declared to be an excluded matter for the purposes of section 259 of the Commonwealth Act in relation to section 123 of that Act. (2) The priority given to interests (within the meaning of the Commonwealth Act) by Division 2 of Part 2.6 of the Commonwealth Act, to the extent that it would give priority to such an interest over a statutory State interest in a ship, is declared to be an excluded matter for the purposes of section 259 of the Commonwealth Act in relation to Division 2 of Part 2.6 of that Act. (3) In this section— Commonwealth Act means the Personal Property Securities Act 2009 of the Commonwealth. compulsorily detained under this Act, in relation to a ship, means the detention of the ship under section 176, 186, 208, 221 or 237 of this Act. right of seizure created by the Commonwealth Act means a right under section 123 of the Commonwealth Act of a secured party (within the meaning of that Act) to seize collateral in the form of a ship. statutory State interest means an interest of the Minister under a security provided in compliance with section 186, 208, 223 or 237 of this Act. Note. New South Wales has referred certain matters relating to security interests in personal property to the Commonwealth, which means that the Commonwealth Parliament has power under section 51(xxxvii) of the Commonwealth Constitution to make laws in respect of those matters. The Commonwealth Parliament passed the Personal Property Securities Act 2009. Normally a law of the Commonwealth prevails over a State law to the extent of any inconsistency between them (see section 109 of the Commonwealth Constitution). However, section 259 of the Personal Property Securities Act 2009 of the Commonwealth provides that a law of a referring State can declare a matter to be an excluded matter for the purposes of that section. If that is done, the Personal Property Securities Act 2009 does not apply in relation to the excluded matter. This section excludes certain matters in relation to certain provisions of the Commonwealth Act. 12 Application of Act to mixtures of marine pollutants (1) In this Act, a reference to a discharge of a marine pollutant or a residue includes a reference to a discharge of a mixture that contains that marine pollutant or residue. (2) If a mixture that contains more than one marine pollutant is discharged into State waters— (a) if one of the pollutants discharged is garbage—see section 66A, or (b) otherwise—each of the applicable Parts in relation to each of the marine pollutants in the mixture applies in relation to the mixture. (3) However, a person is not liable to be convicted of an offence under more than one applicable Part in respect of the same discharge of a mixture. (4) In this section— applicable Part means— (a) in relation to oil—Part 3, or (b) in relation to a noxious liquid substance—Part 4, or (c) in relation to a harmful substance—Part 5, or (d) in relation to sewage—Part 6. 13 Discharge outside State waters that enters State waters (1) The discharge of a marine pollutant onto or into any land or waters, or any structure or thing, that occurs outside State waters is, for the purposes of this Act, taken to be a discharge into State waters of the marine pollutant if the whole or any part of the marine pollutant enters any State waters. (2) The discharge is taken to happen when the discharged marine pollutant enters State waters. (3) Despite subsections (1) and (2), a person is not liable to prosecution for an offence under this Act if— (a) the discharge of a marine pollutant occurs and is taken to be a discharge of the marine pollutant into State waters by operation of this section, and (b) a provision of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 of the Commonwealth applies to the discharge giving effect to the following regulations of MARPOL— (i) for the discharge of oil or oily mixtures from the cargo area of an oil tanker—Regulation 34 of Annex I of MARPOL, (ii) for the discharge of Category X substances—Regulations 13.2.1 and 13.6.1 of Annex II of MARPOL, (iii) for the discharge of Category Y substances and Category Z substances from ships constructed on or after 1 January 2007—Regulations 13.2.1 and 13.7.1 of Annex II of MARPOL, (iv) for the discharge of Category Z substances from ships constructed before 1 January 2007—Regulations 13.2.1 and 13.2.2 of Annex II of MARPOL, (v) for the discharge of comminuted and disinfected sewage—Regulation 11.1.1 of Annex IV of MARPOL, (vi) for the discharge of sewage that is not comminuted or disinfected—Regulation 11.1.1 of Annex IV of MARPOL, (vii) for the discharge of comminuted or ground food waste—Regulation 4.1.1 of Annex V of MARPOL, (viii) for the discharge of food waste that is not comminuted or ground—Regulation 4.1.2 of Annex V of MARPOL, (ix) for the discharge of cargo residues that cannot be recovered using commonly available methods for unloading—Regulation 4.1.3 of Annex V of MARPOL, (x) for the discharge of animal carcasses—Regulation 4.1.4 of Annex V of MARPOL, (xi) for the discharge of cleaning agents or additives contained in cargo hold, deck and external surfaces wash water—Regulation 4.2 of Annex V of MARPOL, (xii) for the discharge of garbage from fixed or floating platforms or other ships when alongside or within 500 metres of a fixed or floating platform—Regulation 5 of Annex V of MARPOL. 14 Discharges to which Act does not apply (1) This Act does not apply to the following discharges— (a) the release of relevant harmful substances directly arising from the exploration, exploitation and associated off-shore processing of sea-bed mineral resources, (b) the release of relevant harmful substances for purposes of legitimate scientific research into pollution abatement or control, (c) dumping within the meaning of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972, done at London on 7 July 1996, as amended and in force for Australia from time to time. Note. The 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 defines dumping as— (a) any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea, (b) any deliberate disposal into the sea of vessels, aircraft, platforms or other man-made structures at sea, (c) any storage of wastes or other matter in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea, (d) any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal. Under that Convention, dumping does not include— (a) the disposal into the sea of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or other man-made structures, (b) placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of the Protocol, and (c) abandonment in the sea of matter (e.g. cables, pipelines and marine research devices) placed for a purpose other than the mere disposal thereof. (2) In this section— relevant harmful substances— (a) means a substance which, if introduced into the sea, is liable to— (i) create hazards to human health, or (ii) harm living resources and marine life, or (iii) damage amenities, or (iv) interfere with other legitimate uses of the sea, and (b) includes a substance subject to control by MARPOL. Editor's note. See Article 2 of the International Convention for the Prevention of Pollution from Ships, 1973. Part 3 Prevention of pollution by oil Division 1 Offences relating to discharge of oil Editor's note. See Reg 15.1 of Annex I of MARPOL. 15 Discharging oil into State waters from a ship prohibited (1) The master and the owner of a ship are each guilty of an offence if any oil is discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that oil was discharged from the ship into State waters, but (b) it is a defence if it is proved that, by virtue of Division 2, this section does not apply in relation to the discharge. 16 Causing discharge of oil into State waters from a ship prohibited (1) A crew member of a ship is guilty of an offence if the crew member's act causes any oil to be discharged from the ship into State waters. Maximum penalty—$500,000. (2) A person involved in the operation or maintenance of a ship is guilty of an offence if the person's act causes any oil to be discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (3) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that— (i) oil was discharged from the ship into State waters, and (ii) the crew member or person involved in the operation or maintenance of the ship committed an act that caused the discharge, but (b) it is a defence if it is proved that, by virtue of Division 2, this section does not apply in relation to the discharge. 17 Offence of being responsible for discharge of oil into State waters from a ship A person responsible for the discharge of any oil from a ship into State waters is guilty of an offence. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. Division 2 Defences 18 Defence if discharge was caused by damage to ship or equipment Division 1 does not apply to the discharge of oil from a ship if— (a) the oil escaped from the ship in consequence of unavoidable damage to the ship or its equipment, and (b) all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of the oil. Editor's note. See Reg 4.2 of Annex I of MARPOL. 19 Defence if discharge was to secure safety or save life Division 1 does not apply to the discharge of oil from a ship for the purpose of securing the safety of a ship or saving life at sea. Editor's note. See Reg 4.1 of Annex I of MARPOL. 20 Defence if discharge was for purpose of combating pollution Division 1 does not apply to the discharge of a mixture containing oil from a ship if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by an officer prescribed by the regulations for the purposes of this section. Editor's note. See Reg 4.3 of Annex I of MARPOL. 21 Defence if discharge was authorised for training Division 1 does not apply to the discharge of oil from a ship if the discharge was authorised by the Minister for training purposes. 22 Defence for certain ships 400 tons or more and oil tankers Division 1 does not apply to the discharge of oil from a ship if— (a) (Repealed) (b) the ship has a gross tonnage of equal to or greater than 400, and (c) the ship is proceeding en route, and (d) in the case of a mixture containing oil, the mixture is processed using oil filtering equipment meeting the requirements set out by the regulations referred to in section 9 (4) (a) (iii) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 of the Commonwealth, and (e) the oil content of the effluent without dilution does not exceed 15 parts in 1,000,000 parts, and (f) the mixture is not a strictly prohibited oily mixture, and (g) in the case of a mixture containing oil that is discharged from an oil tanker— (i) the mixture does not originate from the cargo pump room bilges of the ship, and (ii) the mixture is not mixed with oil cargo residue. Editor's note. See Regs 15.2 and 15.8 of Annex I of MARPOL. 23 (Repealed) 24 Defence for smaller ships and oil tankers Division 1 does not apply to the discharge of oil from a ship if— (a) the ship has a gross tonnage of less than 400, and (b) the ship is proceeding en route, and (c) the ship has in operation equipment, of a kind that meets the requirements set out by the regulations referred to in section 9 (4) (c) (iii) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 of the Commonwealth, that ensures that the oil content of the effluent without dilution does not exceed 15 parts in 1,000,000 parts, and (d) the mixture is not a strictly prohibited oily mixture, and (e) in the case of a mixture containing oil discharged from an oil tanker— (i) the mixture does not originate from the cargo pump room bilges of the ship, and (ii) the mixture is not mixed with oil cargo residue. Editor's note. See Regs 15.6 and 15.8 of Annex I of MARPOL. 25 Defence for discharge of clean or segregated ballast from oil tankers Division 1 does not apply to the discharge from the cargo area of an oil tanker of clean or segregated ballast. Editor's note. See Reg 34.2 of Annex I of MARPOL. Division 3 Offence relating to oil residues 26 Failing to retain oil residues (1) The master and the owner of a ship are each guilty of an offence if any oil residues that cannot be discharged from the ship into State waters without the commission of an offence against section 15 are not retained on board the ship while the ship is in State waters. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. Example. A ship leaves Port A with a quantity of oil residue held in a tank or space and, without leaving State waters, arrives at Port B with a lesser quantity in the tank or space. This subsection places an onus on the ship's master to explain why there is a discrepancy in the quantity. (2) Despite subsection (1), oil residues may be discharged from a ship to a reception facility provided in accordance with Regulation 38 of Annex I of MARPOL. Part 4 Prevention of pollution by noxious liquid substances Division 1 Offences relating to carrying uncategorised noxious liquid substances Editor's note. See Reg 13.1.3 of Annex II of MARPOL. 27 Carrying uncategorised noxious liquid substances prohibited (1) The master and the owner of an Australian ship are each guilty of an offence if an uncategorised noxious liquid substance, or a mixture that contains an uncategorised noxious liquid substance, is carried as cargo or part cargo in bulk on the ship in State waters. Maximum penalty— (a) in the case of an individual—$6,600, or (b) in the case of a corporation—$33,000. (2) In proceedings for an offence against this section in relation to a ship it is sufficient for the prosecution to allege and prove that an uncategorised noxious liquid substance, or a mixture that contains an uncategorised noxious liquid substance, was carried as cargo or part cargo in bulk on the ship in State waters. 28 Causing carriage of uncategorised noxious liquid substances prohibited A person is guilty of an offence if the person causes an uncategorised noxious liquid substance, or a mixture that contains an uncategorised noxious liquid substance, to be carried as cargo or part cargo in bulk on an Australian ship in State waters. Maximum penalty— (a) in the case of an individual—$22,000, or (b) in the case of a corporation—$110,000. Division 2 Offences relating to discharge of noxious liquid substances Editor's note. See Reg 13 of Annex II of MARPOL. 29 Discharging noxious liquid substances into State waters from ship prohibited (1) The master and the owner of a ship that is subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk are each guilty of an offence if any noxious liquid substance is discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that— (i) the ship was a ship subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk, and (ii) a noxious liquid substance was discharged from the ship into State waters, but (b) it is a defence if it is proved that, by virtue of Division 3, this section does not apply in relation to the discharge. 30 Causing discharge of noxious liquid substances into State waters from ship prohibited (1) A crew member of a ship that is subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk is guilty of an offence if the crew member's act causes any noxious liquid substance to be discharged from the ship into State waters. Maximum penalty—$500,000. (2) A person involved in the operation or maintenance of a ship that is subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk is guilty of an offence if the person's act causes any noxious liquid substance to be discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (3) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that— (i) the ship was a ship subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk, and (ii) a noxious liquid substance was discharged from the ship into State waters, and (iii) the crew member or person involved in the operation or maintenance of the ship committed an act that caused the discharge, but (b) it is a defence if it is proved that, by virtue of Division 3, this section does not apply in relation to the discharge. 31 Offence of being responsible for discharge of noxious liquid substances into State waters from a ship A person responsible for the discharge of any noxious liquid substance into State waters from a ship that is subject to a chemical tanker construction certificate certifying the ship to carry noxious liquid substances in bulk is guilty of an offence. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. Division 3 Defences 32 Defence if discharge was caused by damage to ship or equipment Division 2 does not apply to the discharge of a noxious liquid substance from a ship if— (a) the noxious liquid substance escaped from the ship in consequence of unavoidable damage to the ship or its equipment, and (b) all reasonable precautions were taken after the occurrence of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of the noxious liquid substance. Editor's note. See Reg 3.1.2 of Annex II of MARPOL. 33 Defence if discharge was to secure safety or save life Division 2 does not apply to the discharge of a noxious liquid substance from a ship for the purpose of securing the safety of a ship or saving life at sea. Editor's note. See Reg 3.1.1 of Annex II of MARPOL. 34 Defence if discharge was for purpose of combating pollution Division 2 does not apply to the discharge of a noxious liquid substance from a ship if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by an officer prescribed by the regulations for the purposes of this section. Editor's note. See Reg 3.1.3 of Annex II of MARPOL. 35–39 (Repealed) 40 Defence for discharge of bilge water Division 2 does not apply to the discharge from a ship of bilge water, or of a mixture resulting from tank cleaning or de-ballasting operations, that contains one or more noxious liquid substances referred to in Regulation 6.1.4 of Annex II of MARPOL but does not contain any other noxious liquid substance. Editor's note. See Reg 6.1.4 of Annex II of MARPOL. 41 Defence for discharge of clean ballast or segregated ballast (1) Division 2 does not apply to the discharge from a ship of clean ballast or segregated ballast. (2) In this section, clean ballast and segregated ballast have the same meaning as in Annex II of MARPOL. Editor's note. See Reg 13.7.2.3 of Annex II of MARPOL. Division 4 Cleaning of tanks of ships 42 Regulations may make provision for cleaning of tanks of ships The regulations may make provision for and in relation to giving effect to Regulations 13 and 16 of Annex II of MARPOL. Editor's note. See Regs 13 and 16 of Annex II of MARPOL. Part 5 Prevention of pollution by harmful substances in packaged form Division 1 Offences relating to carriage Editor's note. See Reg 2.1 of Annex III of MARPOL. 43 Certain carriage of harmful substances in packaged form prohibited (1) The master and the owner of a ship are each guilty of an offence if a harmful substance in packaged form is carried on the ship in State waters otherwise than in accordance with the regulations. Maximum penalty— (a) in the case of an individual—$2,200, or (b) in the case of a corporation—$5,500. (2) In proceedings for an offence against this section in relation to a ship, it is sufficient for the prosecution to allege and prove that a harmful substance in packaged form was carried on the ship in State waters otherwise than in accordance with the regulations. 44 Causing certain carriage of harmful substances in packaged form prohibited A person is guilty of an offence if the person causes a harmful substance in packaged form to be carried on a ship in State waters otherwise than in accordance with the regulations. Maximum penalty— (a) in the case of an individual—$2,200, or (b) in the case of a corporation—$5,500. Division 2 Offences relating to jettisoning Editor's note. See Reg 8.1 of Annex III of MARPOL. 45 Jettisoning of harmful substances in packaged form into State waters from ship prohibited (1) The master and the owner of a ship are each guilty of an offence if a harmful substance in packaged form carried on the ship is jettisoned from the ship into State waters. Maximum penalty— (a) in the case of an individual—$55,000, or (b) in the case of a corporation—$275,000. (2) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that a harmful substance in packaged form was jettisoned from the ship into State waters, but (b) it is a defence if it is proved that, by virtue of Division 3, this section does not apply in relation to the jettisoning. 46 Causing jettisoning of harmful substances in packaged form into State waters from ship prohibited (1) A crew member of a ship is guilty of an offence if the crew member's act causes any harmful substance in packaged form to be jettisoned from the ship into State waters. Maximum penalty—$55,000. (2) A person involved in the operation or maintenance of a ship is guilty of an offence if the person's act causes any harmful substance in packaged form to be jettisoned from the ship into State waters. Maximum penalty— (a) in the case of an individual—$55,000, or (b) in the case of a corporation—$275,000. (3) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that— (i) a jettisoning of a harmful substance in packaged form occurred from a ship into State waters, and (ii) the crew member or person involved in the operation or maintenance of the ship committed an act that caused the jettisoning, but (b) it is a defence if it is proved that, by virtue of Division 3, this section does not apply in relation to the jettisoning. 47 Offence of being responsible for jettisoning of harmful substances in packaged form into State waters from a ship A person responsible for any harmful substance in packaged form being jettisoned from a ship into State waters is guilty of an offence. Maximum penalty— (a) in the case of an individual—$220,000, or (b) in the case of a corporation—$1,100,000. Division 3 Defences 48 Defence for jettisoning to secure safety or save life Division 2 does not apply to the jettisoning of a harmful substance in packaged form from a ship for the purpose of securing the safety of a ship or saving life at sea. Editor's note. See Reg 8.1 of Annex III of MARPOL. 49 Defence for certain leakages causing substances to be washed overboard Division 2 does not apply to the jettisoning of a harmful substance in packaged form from a ship because of a leakage of the substance if— (a) the substance was washed overboard from the ship in accordance with the regulations or any orders made pursuant to the regulations, or (b) the substance was washed overboard from the ship otherwise than in accordance with such regulations or orders in circumstances where compliance with such regulations or orders would have impaired the safety of the ship or of persons on board the ship. Editor's note. See Reg 8.2 of Annex III of MARPOL. Division 4 Miscellaneous 50 Part does not apply to stores or equipment This Part does not apply to a ship's stores or equipment. Editor's note. See Reg 2.4 of Annex III of MARPOL. 51 Leakages taken to be jettisoned A harmful substance in packaged form is, for the purposes of this Act, taken to have been jettisoned from a ship into State waters if there was a leakage of the substance. Editor's note. See Reg 8.1 of Annex III of MARPOL. 52 Empty packaging For the purposes of this Part, empty packaging that has been used previously for the carriage of harmful substances is itself taken to be a harmful substance unless the precautions required by the regulations have been taken to ensure that the packaging contains no residue that is harmful to the marine environment. Editor's note. See Reg 2.3 of Annex III of MARPOL. Part 6 Prevention of pollution by sewage Division 1 Offences relating to discharge of sewage Editor's note. See Reg 11 of Annex IV of MARPOL. 53 Discharge of sewage into State waters from ship prohibited (1) The master and the owner of a large ship are each guilty of an offence if any sewage is discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$55,000, or (b) in the case of a corporation—$275,000. (2) In proceedings for an offence against subsection (1) in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that sewage was discharged from the ship into State waters, but (b) it is a defence if it is proved that, by virtue of Division 2, this section does not apply in relation to the discharge. (3) The regulations may make provision for an offence in relation to the discharge or deposit of untreated sewage from a vessel, other than a large ship. 54 Causing discharge of sewage into State waters from ship prohibited (1) A crew member of a large ship is guilty of an offence if the crew member's act causes any sewage to be discharged from the ship into State waters. Maximum penalty—$55,000. (2) A person involved in the operation or maintenance of a large ship is guilty of an offence if the person's act causes any sewage to be discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$55,000, or (b) in the case of a corporation—$275,000. (3) In proceedings for an offence against this section, it is sufficient for the prosecution to allege and prove that— (a) a discharge of sewage occurred from a ship into State waters, and (b) the crew member or person involved in the operation or maintenance of the ship committed an act that caused the discharge. 55 Offence of being responsible for discharge of sewage into State waters from a ship A person responsible for the discharge of any sewage from a large ship into State waters is guilty of an offence. Maximum penalty— (a) in the case of an individual—$220,000, or (b) in the case of a corporation—$1,100,000. 55A Offence to have defective, altered or modified sewage systems (1) The master and the owner of a prescribed vessel in State waters are each guilty of an offence if a sewage system, or part of the sewage system, on the prescribed vessel is defective or has been altered or modified in a way that enables the discharge of sewage in contravention of this Part. Maximum penalty for a large ship— (a) for an individual—$55,000, or (b) for a corporation—$275,000, Maximum penalty for a ship prescribed by the regulations for the purposes of this section—an amount prescribed by the regulations. (2) In this section— prescribed vessel means— (a) a large ship, or (b) a ship prescribed by the regulations for the purposes of this section. sewage system, for a prescribed vessel, includes the following— (a) a holding tank to collect and store sewage, (b) a sewage treatment plant certified to meet the requirements— (i) of the regulations giving effect to Regulation 9.1.1 of Annex IV of MARPOL, or (ii) prescribed by the regulations, (c) portable tanks, including toilet cassettes, for discharge into a reception facility, (d) a comminuting and disinfecting system— (i) approved by orders made under the regulations, giving effect to Regulation 9.1.2 of Annex IV of MARPOL, or (ii) approved under the regulations. 55B Offence to discharge treated sewage in no discharge zones for certain vessels (1) The regulations may create an offence for the discharge of treated sewage by a relevant vessel in a zone, prescribed by the regulations, for the purposes of this section (a no discharge zone). (2) In this section— relevant vessel means a vessel prescribed by regulations for the purposes of this section. Division 2 Defences 56 Defence for discharge caused by damage to ship or equipment Division 1 does not apply to the discharge of sewage from a large ship if— (a) the sewage escaped from the ship in consequence of unavoidable damage to the ship or its equipment, and (b) all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the escape of the sewage. Editor's note. See Reg 3.1.2 of Annex IV of MARPOL. 57 Defence for discharge to secure safety or save life Division 1 does not apply to the discharge of sewage from a large ship for the purpose of securing the safety of a ship or saving life at sea. Editor's note. See Reg 3.1.1 of Annex IV of MARPOL. 58 (Repealed) 59 Defence of discharge of treated sewage (1) Division 1 does not apply to the discharge of sewage from a large ship engaged in overseas voyages if both of the following apply— (a) the sewage has been treated in a sewage treatment plant on the ship, being a plant that is certified to meet the requirements of the regulations giving effect to Regulation 9.1.1 of Annex IV of MARPOL, (b) the effluent does not produce visible floating solids in State waters and does not cause discolouration of State waters or other surrounding waters. (2) To remove any doubt, the defence under subsection (1) applies to the discharge of treated sewage in a no discharge zone. (3) In this section— no discharge zone has the same meaning as in section 55B(1). Editor's note. See Reg 11.1.2 of Annex IV of MARPOL. Part 7 Prevention of pollution by garbage Note 1. See section 4 of this Act in relation to the words and expressions used in MARPOL. Note 2. See also Annex V of MARPOL for the meaning of particular words and expressions used in this Part, including garbage. Division 1 Offences relating to discharge of garbage Editor's note. See Reg 3.1 of Annex V of MARPOL. 60 Discharging of garbage into State waters from ship prohibited (1) The master and the owner of a ship are each guilty of an offence if any garbage is discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$55,000, or (b) in the case of a corporation—$275,000. (2) In proceedings for an offence against this section in relation to a ship— (a) it is sufficient for the prosecution to allege and prove that garbage was discharged from the ship into State waters, but (b) it is a defence if it is proved that, by virtue of Division 2, this section does not apply in relation to the discharge. 61 Causing discharge of garbage into State waters from ship prohibited (1) A crew member of a ship is guilty of an offence if the crew member's act causes any garbage to be discharged from the ship into State waters. Maximum penalty—$55,000. (2) A person involved in the operation or maintenance of a ship is guilty of an offence if the person's act causes any garbage to be discharged from the ship into State waters. Maximum penalty— (a) in the case of an individual—$55,000, or (b) in the case of a corporation—$275,000. (3) In proceedings for an offence against this section, it is sufficient for the prosecution to allege and prove that— (a) a discharge of garbage occurred from a ship into State waters, and (b) the crew member or person involved in the operation or maintenance of the ship committed an act that caused the discharge. 62 Offence of being responsible for discharge of garbage into State waters from a ship A person responsible for the discharge of any garbage from a ship into State waters is guilty of an offence. Maximum penalty— (a) in the case of an individual—$220,000, or (b) in the case of a corporation—$1,100,000. Division 2 Defences Note. Annex V of MARPOL provides that fishing gear means any physical device or part thereof or combination of items that may be placed on or in the water or on the sea-bed with the intended purpose of capturing, or controlling for subsequent capture or harvesting, marine or fresh water organisms. 63 Defence if discharge was caused by damage to ship or equipment Division 1 does not apply to the discharge of garbage from a ship if— (a) the garbage escaped from the ship in consequence of unavoidable damage to the ship or its equipment, and (b) all reasonable precautions were taken before and after the occurrence of the damage for the purpose of preventing or minimising the escape of the garbage. Editor's note. See Reg 7.1.2 of Annex V of MARPOL. 64 Defence if discharge was to secure safety or save life Division 1 does not apply to the discharge of garbage from a ship for the purpose of securing the safety of a ship and the persons on board the ship or saving life at sea. Editor's note. See Reg 7.1.1 of Annex V of MARPOL. 65 Defence if accidental loss of fishing gear Division 1 does not apply to the accidental loss of fishing gear from a ship if all reasonable precautions were taken to prevent the loss. Editor's note. See Reg 7.1.3 of Annex V of MARPOL. 66 Defence if discharge of fishing gear in particular circumstances Division 1 does not apply to the discharge of fishing gear from a ship for— (a) the protection of the marine environment, or (b) the safety of the ship or the ship's crew. Editor's note. See Reg 7.1.4 of Annex V of MARPOL. 66A Defence if discharge is of more stringent requirement (1) Sections 63–66 do not apply to garbage that is mixed with, or contaminated by, other substances prohibited from discharge or having different discharge requirements (a garbage mixture). (2) Division 1 does not apply to the discharge of a garbage mixture if the discharge is made in accordance with the more stringent requirements for the substances in the garbage mixture. Editor's note. See Reg 4.4 of Annex V of MARPOL. Part 8 Prevention of pollution from transfer operations Division 1 Application of Part 67 Meaning of "prescribed marine pollutant" In this Part— prescribed marine pollutant means any one, or any combination, of the following substances (whether in bulk, packaged or another form)— (a) oil, (b) a noxious liquid substance. Division 2 Offences relating to transfer operations 68 Discharge of prescribed marine pollutant from ship in transfer operation prohibited (1) A person must not deliberately, recklessly or negligently cause a prescribed marine pollutant to be discharged from a ship in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) Each prescribed person in relation to a ship is guilty of an offence if a prescribed marine pollutant is discharged from a ship in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (3) In this section— prescribed person means any of the following— (a) the owner of the ship, (b) the master of the ship, (c) the person in charge of the transfer operation of the ship. 69 Discharge of prescribed marine pollutant from place on land in transfer operation prohibited (1) A person must not deliberately, recklessly or negligently cause a prescribed marine pollutant to be discharged from a place on land in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) The occupier of land is guilty of an offence if a prescribed marine pollutant is discharged from a place on the land in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. 70 Discharge of prescribed marine pollutant from apparatus on a ship used in transfer operation prohibited (1) A person must not deliberately, recklessly or negligently cause a prescribed marine pollutant to be discharged from an apparatus on a ship in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) Each of the prescribed persons in relation to a ship is guilty of an offence if any prescribed marine pollutant is discharged from any apparatus on the ship used in, or in connection with, a transfer operation, whether or not it is being so used. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (3) In this section— prescribed person means any of the following— (a) the owner of the ship, (b) the master of the ship, (c) the owner of the apparatus, (d) the person in charge of the apparatus. 71 Discharge of prescribed marine pollutant from apparatus on a place on land used in transfer operation prohibited (1) A person must not deliberately, recklessly or negligently cause a prescribed marine pollutant to be discharged from an apparatus on a place on land in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) Each of the prescribed persons in relation to a transfer operation is guilty of an offence if any prescribed marine pollutant is discharged from any apparatus on a place on land used in, or in connection with, a transfer operation, whether or not it is being so used. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (3) In this section— prescribed person means any of the following— (a) the occupier of the land, (b) the owner of the apparatus, (c) the person in charge of the apparatus. 72 Offence of causing discharge of prescribed marine pollutant from pipeline in connection with transfer operation (1) A person must not deliberately, recklessly or negligently cause a prescribed marine pollutant to be discharged from a purpose-built pipeline in, or in connection with, a transfer operation. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (2) Each of the prescribed persons in relation to a purpose-built pipeline is guilty of an offence if any prescribed marine pollutant is discharged from the pipeline in, or in connection with, a transfer operation, whether or not it is being so used. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. (3) In this section— prescribed person means any of the following— (a) the occupier of the land, (b) the owner of the pipeline, (c) the person in charge of the pipeline. 73 Discharge of prescribed marine pollutant from pipeline in connection with transfer operation prohibited Each of the following persons is guilty of an offence if any prescribed marine pollutant is discharged from a purpose-built pipeline used in, or in connection with, a transfer operation, whether or not it is being so used— (a) the occupier of the land on which the pipeline is situated, (b) any lessee, licensee or user of any lease, licence or right of user for the use of the pipeline for the carriage of oil, (c) the person in charge of the pipeline, (d) each other person responsible for the discharge. Maximum penalty— (a) in the case of an individual—$500,000, or (b) in the case of a corporation—$10,000,000. 74 (Repealed) Division 3 Discharges to which Division 2 does not apply 75 Division 2 does not apply to certain discharges Division 2 does not apply to a discharge that occurs on the landward side of the first isolating valve on land of any apparatus or purpose-built pipeline used in, or in connection with, a transfer operation, whether or not it is being so used, or at any other place prescribed by the regulations for the purposes of this section. 76 Division 2 does not apply to discharge for purposes of combating pollution incidents Division 2 does not apply to a discharge if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by an officer prescribed by the regulations. 77 Division 2 does not apply to certain licensed discharges Division 2 does not apply to a discharge if the discharge was carried out by the holder of a licence under the Protection of the Environment Operations Act 1997 in accordance with that licence. Division 4 Record keeping relating to transfer operations 78 Keeping of records relating to transfer (1) The responsible person in relation to a transfer operation must keep the records that the person is required to keep by the regulations, in the form in which the records are required to be kept. Maximum penalty—$22,000. (2) In this section— responsible person, in relation to a transfer operation, means— (a) the owner or the master of a ship or the occupier of a place on land to or from which a prescribed marine pollutant is transferred, and (b) the person in charge of an apparatus or a purpose-built pipeline used in, or in connection with, a transfer operation, and (c) the occupier of a purpose-built pipeline used in, or in connection with, a transfer operation. 79 Entries required to be made A person must, without delay, make the appropriate entry in the record prescribed by the regulations if the regulations require a specified occurrence relating to a transfer operation to be recorded by the person. Maximum penalty—$22,000. 80 Transmission of records relating to transfer operation A person must not fail to transmit the records relating to a transfer operation that are required to be kept by this Division to the place or person, or in the manner, prescribed by the regulations. Maximum penalty— (a) in the case of an individual—$22,000, or (b) in the case of a corporation—$110,000. 81 Disposal of records relating to transfer operation A person must not dispose of records relating to a transfer operation that are required to be kept by this Division except in the manner and after the period required by the regulations. Maximum penalty— (a) in the case of an individual—$22,000, or (b) in the case of a corporation—$110,000. 82 False or misleading entries prohibited A person must not make an entry that is false or misleading in a material particular in a record required to be kept by this Division. Maximum penalty—$22,000. Division 5 Miscellaneous 83 Several liability If a prescribed marine pollutant is discharged into State waters from 2 or more ships in, or in connection with, a transfer operation, and it is not reasonably practicable to identify the pollutant that has discharged from a particular ship, all of the pollutant discharged is taken, for the purposes of this Part, to have been discharged from each of those ships. 84 Multiple offenders For the avoidance of doubt, more than one person may be found guilty of an offence under this Part in relation to a single discharge. 85 Prohibitions on discharges from ships still apply (1) To avoid doubt, this Part applies to a discharge whether or not it is a discharge prohibited by Part 3 or 4 (and whether or not a defence is available under those Parts for a discharge of the substance in those circumstances). (2) However, a person is not liable to be convicted in respect of the same discharge of both an offence under Part 3 or 4 and this Part. Part 9 Reporting of pollution incidents Division 1 Meaning of "reportable incident" 86 Meaning of "reportable incident" In this Part— reportable incident, in relation to a ship, means any of the following— (a) a discharge or probable discharge into State waters from the ship of oil other than a discharge of the kind or in the circumstances specified in sections 22–25, (b) a discharge or probable discharge into State waters from the ship of a noxious liquid substance (other than a substance referred to in Regulation 6.1.4 of Annex II of MARPOL) other than of the kind or in the circumstances specified in sections 40 and 41, (c) a jettisoning or probable jettisoning from the ship into State waters of a harmful substance in packaged form including a substance in a freight container, portable tank, road and rail vehicle or shipborne barge, (d) in relation to a ship of 15 metres in length or more— (i) any damage, failure or breakdown of the ship that affects the safety of the ship, including but not limited to any collision, grounding, fire, explosion, structural failure, flooding or cargo shifting, or