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The Merchant Shipping (Recognised Organisations) Regulations

Legal Notice 95 of 2024

The Merchant Shipping (Recognised Organisations) Regulations
Citation
Legal Notice 95 of 2024
Primary work
Merchant Shipping Act
Date
7 June 2024
Language
English
Type
Legal Notice
Original enactment
Download original enactment (PDF) (175.7 KB)
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LAWS OF KENYA

MERCHANT SHIPPING ACT

THE MERCHANT SHIPPING (RECOGNISED ORGANISATIONS) REGULATIONS

LEGAL NOTICE 95 OF 2024

  • Published in Kenya Gazette Vol. CXXVI—No. 81 on 7 June 2024
  • Commenced on 24 May 2024

1. Citation

These Regulations may be cited as the Merchant Shipping (Recognised Organisations) Regulations, 2024.

2. Interpretation

In these Regulations, unless the context otherwise requires─“Act” means the Merchant Shipping Act (Cap. 389);“Authority” means the Kenya Maritime Authority established under the Kenya Maritime Authority Act (Cap. 370);“authorization” means the delegation of authority to a recognized organization to perform statutory certification and services on behalf of Kenya as detailed in an agreement or an equivalent legal arrangement taking into account the elements to be included in an agreement as set out in appendix 3 of the Code;“Code” means the Code for Recognized Organizations as adopted by the International Maritime Organization by Resolution MSC. 349 (92);“nominated surveyor” means a person assessed and authorized by the Authority in accordance with these Regulations to perform statutory certification and services on its behalf;“recognized organization” means a company, institution or an organization that has been assessed and authorized by the Authority in accordance with these Regulations to perform statutory certification and services on its behalf;“statutory certification and services” mean certificates issued and services provided in accordance with the Act and includes —(a)a plan review, survey or audit leading to the issuance of, or in support of the issuance of, a certificate by or on behalf of the Authority as evidence of compliance with requirements contained in any other written law in force and relevant provisions of any instrument ratified by, and in force in, Kenya; and(b)certificates issued by an organization recognized by, or a surveyor nominated by, the Authority in accordance with these Regulations, and which may incorporate demonstrated compliance with the structural, mechanical and electrical requirements of the recognized organization under the terms of its agreement of recognition with the Authority.

3. Object of Regulations

The object of these Regulations is to provide the criteria for assessing, authorizing and regulating recognised organisations and nominated surveyors.

4. Application of Regulations

These Regulations shall apply to the regulation of recognised organisations and nominated surveyors for purposes of the Act.

5. Authorisation of recognised organisation and nominated surveyor

(1)Pursuant to section 10 of the Act, the Director General may authorise a recognised organisation or a nominated surveyor to perform, any statutory certification and services on behalf of the Authority.
(2)The authorization granted shall be based on the following criteria, the applicant—
(a)has the technical administrative, managerial competence and capacity to perform statutory certification and survey services;
(b)has a recognized quality management system;
(c)has legal capacity to enter into a contract an agreement as a recognized organization or nominated surveyor;
(d)is not insolvent, in receivership, bankrupt or in the process of being wound up;
(e)possesses the requisite qualification to perform statutory certification and survey services;
(f)if, a member of a regulated profession, has satisfied all the professional requirements;
(g)and staff, if any, is not debarred from providing recognized organization or nominated surveyor’s services;
(h)has not been convicted of corrupt or fraudulent practices; and
(i)and staff shall not engage in any activities that may conflict with their independence of judgment and integrity.
(3)An authorization issue under this regulation shall contain the following information—
(a)the types and sizes of ship in respect of the authorisation is issued;
(b)the conventions and other instruments in force including relevant written law;
(c)the approval of drawings;
(d)the approval of materials and equipment;
(e)the surveys, audits, inspections;
(f)the issuance, endorsement or renewal of certificates;
(g)the corrective actions;
(h)withdrawal or cancellation of certificates; and
(i)the reporting requirements.

6. Application for authorisation

(1)An application for authorization to undertake statutory certification and services shall be made, in writing, to the Director General by a recognised organisation or nominated surveyor.
(2)Upon receipt of an application under subregulation (1), the Director General shall assess whether the applicant meets the requirements for authorization provided in these Regulations.
(3)Upon consideration of the application under subregulation (2), the Director General may, within thirty days —
(a)grant the authorization in the form of an agreement containing the information set out in the Schedule; or
(b)reject the application and notify the applicant of the decision indicating the reasons thereof.

7. Revocation of authorisation

(1)The Director General may revoke the authorization granted under these Regulations where the recognised organisation or nominated surveyor —
(a)fails to comply with the requirements specified in these Regulations and the failure is such that it constitutes an unacceptable threat to safety or the environment;
(b)fails in its safety and pollution prevention performance and the failure is such that it constitutes an unacceptable threat to safety or the environment;
(c)prevents or obstructs an officer of the Authority in the exercise of their oversight function;
(d)fails to pay the fines imposed under these Regulations;
(e)fails to remedy the contravention;
(f)seeks to obtain financial cover or reimbursement of any fines imposed on it; or
(g)provides false or misleading information required under these Regulations.
(2)When making a determination for the purpose of subregulation (1)(a) and (b), the Director General shall consider—
(a)the activities of the concerned recognized organization or nominated surveyor;
(b)reports received from other maritime administrations;
(c)analysis of casualties involving ships classed by the concerned recognized organization; and
(d)any recurrence of the shortcomings referred to in subregulation (1).
(3)Before revocation of an authorisation under this regulation, the Director General shall—
(a)notify the recognized organization or nominated surveyor of the intention to revoke the authorisation, specifying the offending acts or omissions;
(b)give the concerned recognized organization or nominated opportunity to show cause why the authorisation should not be revoked.

8. Obligations upon authorisation

A recognised organisation or nominated surveyor authorised under these Regulations shall comply with the obligations outlined in the Part 1 and 2 of the Code.

9. Indemnity and liability

A recognized organization or a nominated surveyor authorised under these Regulations shall obtain professional indemnity cover or professional liability insurance.

10. Monitoring

The Director General shall monitor the activities of recognized organization or nominated surveyor to ensure compliance with these Regulations.

11. Appeal

A person aggrieved by the decision of the Director General under these Regulation may appeal in accordance with the respective procedure set out under the Act.

12. Offences and penalty

A recognised organisation or nominated surveyor—
(a)that provides false or misleading information that endangers safety or harms the environment; or
(b)whose repeated and serious failure to comply with the requirements specified in these Regulations,
commits an offence and shall be liable on conviction to the penalty stipulated under section 412A of the Act.

13. Savings provision

(1)An authorization issued by the Authority, prior to commencement of these Regulations shall remain in force, until its expiry and shall have effect as if issued under these Regulations.
(2)Any ongoing application for authorization shall be finalized in accordance with these regulations.

SCHEDULE [r.6(3)(a)]

ELEMENTS TO BE INCLUDED IN AN AGREEMENT

A formal written agreement or equivalent between the Authority and the RO shall, as a minimum, cover the following items:
1.Application
2.Purpose
3.General conditions
4.The execution of functions under authorization:
(a)Functions in accordance with the general authorization.
(b)Functions in accordance with special (additional) authorization.
(c)Relationship between the organization's statutory and other related activities.
(d)Functions to cooperate with port States to facilitate the rectification of reported port State control deficiencies or the discrepancies within the organization's purview.
5.Legal basis of the functions under authorization:
(a)Acts, regulations and supplementary provisions
(b)Interpretations
(c)Deviations and equivalent solutions
6.Reporting to the Authority:
(a)Procedures for reporting in the case of general authorization
(b)Procedures for reporting in the case of special authorization
(c)Reporting on classification of ships (assignment of class, alterations and cancellations), as applicable
(d)Reporting of cases where a ship did not in all respects remain fit to proceed to sea without danger to the ship or persons on board or presenting unreasonable threat of harm to the environment
(e)Other reporting
7.Development of rules and/or regulations – Information:
(a)Cooperation in connection with development of rules and/or regulations – liaison meetings
(b)Exchange of rules and/or regulations and information
(c)Language and form
8.Other conditions:
(a)Remuneration
(b)Rules for administrative proceedings
(c)Confidentiality
(d)Liability
(e)Financial responsibility
(f)Entry into force
(g)Termination
(h)Breach of agreement
(i)Settlement of disputes
(j)Use of subcontractors
(k)Issue of the agreement
(l)Amendments
9.Specification of the authorization from the Authority to the organization:
(a)Ship types and sizes
(b)Conventions and other instruments, including relevant written law in force
(c)Approval of drawings
(d)Approval of material and equipment
(e)Surveys
(f)Issuance of certificates
(g)Corrective actions
(h)Withdrawal of certificates
(i)Reporting
10.The Authority's supervision of duties delegated to the organization:
(a)Documentation of quality assurance system;
(b)Access to internal instructions, circulars and guidelines;
(c)Access by the Authority to the organization's documentation relevant to the Kenyan ships;
(d)Cooperation with the Authority’s inspection and verification work; and
(e)Provision of information and statistics on, e.g. damage and casualties relevant to the Kenyan ships.
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History of this document

07 June 2024 this version
24 May 2024
Commenced

Cited documents 2

Act 2
1. Merchant Shipping Act 39 citations
2. Kenya Maritime Authority Act 35 citations

Documents citing this one 0