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Maritime (Amendment) Act 1989

Commencement: 26 June 1989

REPUBLIC OF VANUATU

THE MARITIME (AMENDMENT) ACT
NO.8 OF 1989

Assent: 19/6/89
Commencement: 26/6/89

An Act to amend the Maritime Act No. 8 of 1981.

BE IT ENACTED by the President and Parliament as follows:-

AMENDMENT OF SECTION 1 OF ACT No. 8 OF 1981

1. Section 1 of the Maritime Act No. 8 of 1981 (principal Act) is amended as follows:

(a) in the definition of "Foreign Trace" by the substitution for the words "foreign country and another", of the words "foreign country and another and includes the transportation of goods between the ports of Vanuatu and ports of foreign countries and between the ports of one foreign country and another";

(b) in the definition of "Ship's Document", by the substitution for the words "or provisional" of the words "or provisional;" and

(c) by the insertion after the definition of Ship’s Document” of the following definition:-

“"Special Agent" means a Special Agent appointed under section 3A."

INSERTION OF NEW SECTION 3A IN THE PRINCIPAL ACT

2. The following section is inserted after section 3 of the principal Act:-

"SPECIAL AGENTS

3A (1)_. The Commissioner may from time to time appoint such persons as he may think fit, as special agents.

(2) The Commissioner may delegate to the special agents appointed under subsection (1) any of his powers and duties under the Act to be exercised in foreign ports.

(3) A Deputy Commissioner may from time to time with the prior written approval of the Commissioner appoint any person as his special agent.

(4) A Deputy Commissioner may with the prior written approval of the Commissioner delegate to the special agents appointed under subsection (3) any of his powers and duties under the Act, to be exercised in foreign ports.”

REPLACEMENT OF SECTION 6 OF THE PRINCIPAL ACT

3. Section 6 of the principal Act is repealed and the following section is substituted -

"AUTHORITY TO TAKE DECLARATIONS AND ACKNOWLEDGMENTS

6 (1) Any declaration or acknowledgment required to be made under this Act shall be made before-

(a) the Commissioner or a Deputy Commissioner; or

(b) a consul or consular agent of Vanuatu; or

(c) a Diplomatic officer of Vanuatu; or

(d) a Barrister or Solicitor; or

(e) a notary public, a justice of the peace, a Commissioner of oaths or any other officer, authorized in that behalf by the laws of the place where the declaration is made; or

(f) any other fit and proper person authorised by the Minister, Commissioner or Deputy Commissioner for such purposes.

(2) Any document purporting to have a fixed, impressed or subscribed thereon or thereto the seal or signature of any person authorised under this Act, to take a declaration shall be admissible in evidence with out proof of the seal or signature being the seal or signature of that person or of the official or other status of that person.”

REPEAL OF SECTION 7 OF THE PRINCIPAL ACT

4. Section 7 of the principal Act is repealed.

AMENDMENT OF SECTION 9 OF THE PRINCIPAL ACT

5. Section 9 of the principal Act is amended in subsection (1) of that section by the substitution for the words "The' Commissioner shall" of the words “The Commissioner or any Deputy Commissioner shall.”

AMENDMENT OF SECTION 10 OF THE PRINCIPAL ACT

6. Section 10 of the principal Act, as amended, is further amended as follows:-

(a) by the substitution for the marginal note of that section, of the following marginal note-

"Fees and Penalties";

(b) by the repeal of subsection (1) and the substitution of the following subsections-

"(1) The Minister may, on the recommendation of the Commissioner, prescribe all fees and penalties except in cases where the fees and penalty are already provided for in this Act”;

(c) by the repeal of subsection (2) and the substitution of the following subsection-

“(2)Where any tonnage tax or any fee payable under this Act or under any regulation made thereunder is not paid on or before the due date such tax or fee shall be deemed to be default and the person who is liable to pay such tax or fee shall in addition to that tax or fee pay as penalty a further sum in such amount and in such manner as may be prescribed under subsection (1) of this section.”

AMENDMENT OF SECTION 15 OF THE PRINCIPAL ACT

7. Section 15 of the principal Act is repealed and the following section is substituted therefore -

"APPEALS

15. (1) Appeal from any decision of a Deputy Commissioner or Special Agent, pursuant to any provision of this Act or any rule and regulation made thereunder, may be made to the Commissioner.

(2)Any person aggrieved by the decision of the Commissioner, upon any appeal made to him under subsection (1), or by any decision of the Commissioner pursuant to any other provisions of this Act or rules and regulations made thereunder, may appeal from that decision to the Minister.”

AMENDMENT OF SECTION 17 OF THE PRINCIPAL ACT

8. Section 17 of the of the principal Act, as amended, is further amended as follows:-

(a) in subsection (1) of that section,

(i) in paragraph (a) of that subsection, by the substitution for the words “vessels of more than 500 net tons engaged in Foreign Trade,” of the words “vessels engaged in Foreign Trade”;

(ii) by the repeal of paragraphs (c) and (d) of that subsection, and the substitution of the following paragraph and proviso:-

“(c) vessels on bareboat charter to a citizen or national of Vanuatu:

Provided such vessels shall not be eligible for documentation if, on 1 January in the year in which documentation is sought, such vessels are over 20 years of age, computed from completion of first construction,”

(b) by the repeal of subsection (2) of that section;

(c) in subsection (2a) of that section, by the substitution for the words "subsection 1(d)," of the words “subsection (1)".

AMENDMENT OF SECTION 18 OF THE PRINCIPAL ACT

9. Section 18 of the principal Act, as amended is further amended as follows:-

(a) in the marginal note of that section (English version) by the insertion after the word "fee'' of the word "and";

(b) in subsection (3), by the deletion, of the last sentence;

(c) in subsection (4) by the substitution for the words “once only every three years", of the word “annually”.

AMENDMENT OF SECTION 19 OF THE PRINCIPAL ACT

10. Section 19 of the principal Act as amended is further amended as follows:-

(a) by the repeal of subsection (6) and the substitution of the following subsection:-

"(6) Unless otherwise provided, all fees payable under this Act or any regulation made thereunder shall be paid in advance on or before 1 January of the year in respect of which such fees are due. If payment is not made before 31 March of such year the Certificate of Registry of the vessel in question may be suspended until all outstanding fees and penalties for late payment thereof are paid.”

(b) in subsection (7), by the substitution for the words “and other charges owing under this Act” of the words “and other charges including penalties owing under this Act”;

(c) in subsection (8), by the substitution for the words “annual fees for then current year have been paid” of the words “annual fees for the then current year and any penalties owing under this Act have been paid;

(d) by the insertion after subsection (8) of the following subsection:-

"(9) (a) Any vessel which is withdrawn from service and laid up for one year or more shall, subject to any condition prescribed under paragraph (b), be exempted from payment of annul tonnage tax under section 18 in respect of each succeeding year during the period of such withdrawal.

Upon the re-entry of service by such vessel the tonnage tax due and payable by such vessel shall be computed pro-rata from the date of such re-entry for the remainder of that calendar year.

(b) The Minister may prescribe the conditions subject to which any vessel may be exempted under paragraph (a)."

AMENDMENT OF SECTION 20 OF THE PRINCIPAL ACT

11. Section 20 of the principal Act is amended –

(a) by the substitution for the words "by the oath or oaths required by section 21" of the words “by the declaration required by section 21";

(b) in paragraph (d), by the substitution for the words “paid to the administrator the registration fees” of the words “paid the registration fees.”

AMENDMENT OF SECTION 21 OF THE PRINCIPAL ACT

12. Section 21 of the principal Act is amended as following:-

(a) by the substitution for the marginal note of that section, of the following marginal note -

"Declaration";

(b) in subsection (1) of that section by the substitution for the words "shall take an oath" of the words "shall make a declaration”;

(c) by the repeal of subsection (2);

(d) in subsection (3), by the subsection-

(i) for the word “oath” of the word “declaration” and

(ii) for the words “take oath” of the words “make a declaration”;

(e) in subsection (4)-

(i) by the repeal of the first paragraph and the substitution of the following paragraph:-

“Notwithstanding section 6, whenever the document of any vessel is lost or destroyed the master or other person in command may take the following declaration before any consular or diplomatic officer or any officer appointed by the Minister, or by the Commissioner or a Deputy Commissioner at or nearest to the port where the vessel is first located after such loss or destruction.”;

(ii) in the second paragraph by the substitution for the words "do swear (or affirm)” of the words “do declare";

(f) in subsection (5) by the substitution-

(i) for the words “oath is taken” of the words “declaration is made”;

(ii) for the words "administering such oath” of the words “taking such declaration”;

(iii) for the word "oath" of the word “declaration”;

(iv) for the words "oath has been taken" of the words “declaration has been taken".

AMENDMENT OF SECTION 30 OF THE PRINCIPAL ACT

13. Section 30 of the principal Act is amended in subsection (1)-

(a) by the substitution for the words "oath or oaths” of the words "declaration or declarations";

(b) in paragraph (d) of that subsection by the substituting for the words "paid to the administrator the registration fees" of the, words "paid the registration fees”.

AMENDMENT OF SECTION 30A OF THE PRINCIPAL ACT

14. Section 30A of the principal Act is amended as follows:-

(a) in subsection (1) of that section-

(i) by the repeal of the first paragraph and the substitution of the following paragraph-

"Anything in this Act to the contrary notwithstanding a bareboat chatterer of a vessel registered in a foreign registry, obtained a bareboat charter certificate of a registry for a period of not exceeding five years, on payment of a prescribed fee and upon presentation to the Commissioner or Deputy Commissioner of the following-";

(ii) by the repeal of paragraph (e) of that subsection;

(b) by the insertion after subsection (2) of that section of the following subsection:-

"(2A) Any mortgage, hypothecation or similar charge related to any vessel in respect of which a bareboat charter certificate of registry is issued, and may be created only by the owner of that vessel in accordance with the laws of the Nation where the vessel is registered.";

(c) in subsection (3) of that section, by the substitution for the words "Deputy Commissioner and the information contained in the statement affixed to the document shall be endorsed upon the vessel’s bareboat charter certificate of registry” of the words “Deputy Commissioner”;

(d) by the insertion after subsection (3), of the following subsections:-

"(3A ) The Commissioner or the Deputy Commissioner may waive the requirement of recordation of any mortgage, hypothecation or similar charge under subsection (2) or (3), upon obtaining the written of consent of the registered owner and the bareboat charterer of the vessel and of the holders of all the mortgages, hypothecation or similar charges against such vessel."

“(3B) Where a waiver is provided in accordance with subsection (3A) of this section presented under paragraph (g) of subsection (1) shows any lien or encumbrance on the vessel, the following endorsement shall be made on the provisional and permanent bareboat certificates of registry:-

This bareboat charter certificate of registry has been issued in accordance with section 30A of the Vanuatu Maritime Act, No. 8 of 1981. Pursuant to subsection (3A) of that section, the requirement of recordation of any mortgage, hypothecation or similar charge, recorded in the foreign registry in which the vessel is registered, has been waived. Notwithstanding such waiver such mortgage, hypothecation or similar charge shall have preferred status under and subject to section 62 of the said Act. The primary jurisdiction of the registry in which vessel is registered is................................................................................................................”;

(e) by the repeal of subsection (4) and the substitution of the following subsection:-

“(4) Where permitted by the foreign registry, a bareboat charter certificate of registry may be extended for a period of five years upon filing, prior to the expiration o£ the current certificate, and application, together with a copy of the charter party, a certificate of ownership and encumbrance or transcript of registry, and the written consents of all mortgagees with the Commissioner or Deputy Commissioner and upon payment of the prescribed fees and tax";

(f) in subsection (6)-

(i) by the deletion of paragraph (c) of that subsection;

(ii) in paragraph (d), by the substitution form the words “be submitted be submitted within 30 days" of the words "be submitted by the bareboat charterer within 30 days".

AMENDMENT OF SECTION 31A OF THE PRINCIPAL ACT

15. Section 31A of the principal Act, is amended by the substitution for the expression "sections 20(b), 29(1) and 30(1)(b)" of the expression "se sections 20(b), 29(1), 30(1)(b) and 30A".

AMENDMENT OF SECTION 37 OF THE PRINCIPAL ACT

16. Section 37 of the principal Act is amended by the substitution for the words "issuing a Permanent Certificate in which case the mortgage endorsement on the Provisional Certificate shall be transferred to the Permanent Certificate of Registry" of the words “issuing a Permanent Certificate”.

AMENDMENT OF SECTION 38 OF THE PRINCIPAL ACT

17. Section 38 of the principal Act is amended in subsection (4) of that section by the substitution for the words “and the oath thereto has been taken” of the words “and the declaration in respect thereof has been made.”

AMENDMENT OF SECTION 45 OF THE PRINCIPAL ACT

18. Section 45 of the principal Act is repealed and the following section is substituted:-

"FORGERY OF DOCUMENTS AND FALSE DECLARATIONS

45. (1) If any owner, agent, or attorney commits the offence of forgery under the Penal Code Act, No. 17 of 1981, to obtain documentation of a vessel or commits an offence under subsection (3) of this section, in relation to any vessel, such vessel, her tackle, apparel and furniture stall be forfeited, or the value thereof recovered from such person.

(2) Any person who is guilty of an offence under subsection (1) or (3) shall be liable to a fine of not exceeding 100,000 Dollars or to imprisonment for a term not exceeding 10 years or to both:

Provided the provisions of this subsection shall not apply in relation to the owner, agent or attorney, if forfeiture is made under subsection (1) of this section.

(3) Any person who in the case of any declaration made under this Act -

(a) wilfully makes, or assists in making, or procures to be made any false statement; or

(b) utters, produces or makes use of any declaration or document containing any such false statement knowing such declaration or document to contain a false statement, shall be guilty of an offence.”

AMENDMENT OF SECTION 48 OF THE PRINCIPAL ACT

19. Section 48 of the principal Act is amended in subsections (1) and (2), by the substitution for the words "Commissioner or Deputy Commissioner" of the words "Commissioner and Deputy Commissioner".

AMENDMENT OF SECTION 49 OF THE PRINCIPAL ACT

20. Section 49 of the principal Act as amended is further amended –

(a) by the repeal of paragraphs (a) and (c); and

(b) in paragraph (b) by the substitution for the words "provided herein;" of the words "provided herein; and".

AMENDMENT OF SECTION 51 OF THE PRINCIPAL ACT

21. Section 51 of the principal Act is amended by the substitution for the words "mortgage, notice of claim of lien, or certificate of discharge" of the words "mortgage or certificate of discharge".

AMENDMENT OF SECTION 53 OF THE PRINCIPAL ACT

22. Section 53 of the principal Act as amended is further amended by the substitution for the words "two hundred and fifty dollars" of the words "four hundred and twenty five dollars".

AMENDMENT OF SECTION 54 OF THE PRINCIPAL ACT

23. Section 54 of the Principal Act is amended-

(a) in subsection (5) of that section, by deleting the last sentence of that subsection;

(b) by the repeal of subsections (2), (3), (4), (4A) and (6) of that section.

REPLACEMENT OF SECTION 55 OF THE PRINCIPAL ACT

24. Section 55 of the Principal Act is repealed and the following section is substituted:-

"LIEN OF PREFERRED MORTGAGE

55. (1) A preferred mortgage shall constitute a maritime lien upon the mortgaged vessel in the amount of the outstanding mortgage indebtedness secured by such vessel.

(2) The lien of a preferred mortgage referred to in subsection (1) shall not in any way be impaired or affected because the vessel's document following recording of the mortgage has expired, or has been restrictively endorsed, suspended, revoked or cancelled."

AMENDMENT OF SECTION 56A OF THE PRINCIPAL ACT

25. Section 56A of the principal Act is amended as follows:-

(a) in subsection (1) of that section (English text) in the last line of that subsection, by the substitution for the words "relieve from" of the words "relieve him from";

(b) in subsection (2) of that section-

(i) by the substitution for the words “recorded and endorsed with respect to" of the words "recorded with respect to”;

(ii) by the substitution for words “The recording and endorsement shall" of the words “The recording shall”.

AMENDMENT OF SECTION 56B OF THE PRINCIPAL ACT

26. Section 56B of the principal Act is a amended as follows:-

(a) by the deletion of the words “and endorsement” and “and endorsed” wherever they appear in subsection (1),(2),and (3) of that section;

(b) by the addition after subsection (3) of that section of the following subsection:-

“(4) A preferred mortgage referred to in subsection (2) or (3) of this section may additionally secure any loss up to a specified amount arising out of fluctuations between a specified unit of account and any alternate unit of account in which the obligation amount may be denominated from time to time, and such specified amount shall also be recorded."

AMENDMENT OF SECTION 57 OF THE PRINCIPAL ACT

27. Section 57 of the principal Act is amended in subsection(2) by the substitution for the words "record it and have proper endorsements made upon the document of the vessel, the mortgagor" of the words "record it, the mortgagor".

REPEAL OF SECTION 59 OF THE PRINCIPAL ACT

28. Section 59 of the principal Act is repealed.

AMENDMENT OF SECTION 63 OF THE PRINCIPAL ACT

29. Section 63 of the principal Act is amended by substitution for the words "the recording, and endorsement of the preferred mortgage” of the words “ the recording of the preferred mortgage”.

AMENDMENT OF SECTION 65A OF THE PRINCIPAL ACT

30. Section 65A of the principal Act is amended-

(a) in subsection (1) of that section, by the substitution for the words "in any other provisions of law, shall after the date of commencement of this Act require" of the words “in any other provisions of law, shall require”;

(b) in subsection (2) of that section-

(i) by the substitution for the words “prior to the date of commencement o£ this Act” of the words “prior to the effective date”;

(ii) by the substitution for the words “under this Act until such time" of the words "under this Act, at that date until such time";

(c) by the addition of the following paragraph immediately after subsection (2) -

"The effective date in this subsection means the date of the coming into effect of the Maritime (Amendment) Act, 1987."

AMENDMENT OF SECTION 66 OF THE PRINCIPAL ACT

31. Section 66 of the principal Act is amended,

(a) by the deletion of the definition of "foreign trade"; and

(b) by the insertion after the definition of “contract of carriage" of the following definition:-

""goods" includes goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried;

"ship" means any vessel used for the carriage of goods by sea."

AMENDMENT OF SECTION 68 OF THE PRINCIPAL ACT

32. Section 68 of the Principal Act, as amended, is further amended:-

(a) in subsection (3) of that section by the repeal of paragraph (c) and the substitution of the following paragraph and the proviso -

"(c) the apparent order and condition of the goods;

provided that no carrier or master or agent of the carrier shall be bound to state or show in the bill of lading any mark, number, quantity, or weight, which he has reasonable grounds for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.";

(b) in subsection (4) of that section, by the substitution of all the words from "Nothing in this Chapter” to the end of that subsection of the following:-

"However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith.";

(c) in subsection (6) of that section-

(i) by the deletion of the following sentence-

"Such notice of loss or damage may be endorsed upon the receipt for the goods given by the person taking delivery thereof.";

(ii) by the deletion of the penultimate paragraph of that section, and the insertion immediately before the final paragraph of the following paragraph:-

“Subject to subsection (6A) in any event, the carrier and the ship shall be discharged from all liability whatsoever in respect of the goods, unless action is brought within one year after delivery of the goods or the date when the good should have been delivered.”;

(d) by the insertion after subsection (6) of the following new subsection:-

“(6A) An action for indemnity against a third person may be brought even after the expiration of the time provided in subsection (6) if brought within the time allowed by the law of the court seized of the case; however the time allowed shall not be less than three months commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself whichever be the earlier.”

AMENDMENT OF SECTION 69 OF THE PRINCIPAL ACT

33. Section 69 of the principal Act is amended as follows:-

(a) in subsection (2) of that section,

(i) in paragraph (j) by the deletion of the proviso;

(ii) in paragraph (p) by the substitution for the word “and” of the word “or”,

(b) in subsection (4) of that section by the deletion of the proviso;

(c) by the repeal of subsection (5) and the substitution of the following subsection-

"(5)(a) Unless the nature and value of such goods have been declared by the shipper before shipment inserted in the bill of lading, neither the carrier nor the ship shall in any events be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or units or 2 units of account per kilogram of gross weight of the goods lost or damaged, whichever is the higher.

(b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract, or should have been so discharged.

The value of the goods shall be fixed according to the commodity exchange price, or if there be no such price, according to the current market price, or if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality.

(c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this subsection as far as these packages or units are concerned. Except as aforesaid, such article of transport shall be considered the package or unit.

(d) The unit of account mentioned in this section is the Special Drawing Right as defined by the International Monetary Fund. The dollar value in terms of the Special Drawing Right shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions.

(e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this subsection if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause damage or recklessly and with knowledge that damage would probably result.

(f) The declaration referred to in paragraph (a) of this subsection, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier.

(g) By agreement between the carrier, or master or agent of the carrier, and the shipper, other maximum amounts than those referred to in paragraph (a) of this subsection may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that paragraph (a).

(h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly misstated by the shipper in the bill of lacing."

AMENDMENT OF SECTION 69A OF THE PRINCIPAL ACT

34. Section 69A of the principal Act is amended by the repeal of subsection (5) of that section.

REPEAL OF SECTION 74 OF THE PRINCIPAL ACT

35. Section 74 of the principal Act is repealed.

AMENDMENT OF SECTION 85 OF THE PRINCIPAL ACT

36. Section 85 of the principal Act is amended by the substitution for the words "in the foregoing Regulation” of the words “in the Regulations referred to in section 84”

AMENDMENT OF SECTION 145 OF THE PRINCIPAL ACT

37. Section 145 of the principal Act (English text), as amended, is further amended in subsection (2) by the substitution for the word "paragraph" of the word "subsection".

AMENDMENT OF SECTION 146 OF THE PRINCIPAL ACT

38. Section 146 of the principal Act (English text) is amended in the first paragraph by the substitution for the words "labour organisation" of the words "labour organisations".

COMMENCEMENT

39. This Act shall come into force on the date of its publication in the Gazette.

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