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Shipping Act - Shipping (STCW Convention) Regulations 1998

TONGA

SHIPPING ACT (CAP 136)
(Section 206)

SHIPPING (STCW CONVENTION) REGULATIONS 1998

PART I - PRELIMINARY

1. Short Title
2. Interpretation
3. STCW Convention
4. Application

PART II - CONTROL

5. Control Procedures
6. Register of Seafarers and Certificates
7. Offences and Penalties

PART III - RESPONSIBILITIES OF OWNERS

8 Responsibilities of Owners
9. Responsibilities of Owners and Masters
10. Responsibilities of Master
11. Responsibilities of Seafarers
12. Offences and Penalties

PART IV - WATCHKEEPING

13. Watchkeeping Arrangements
14. Fitness for Duty

PART V - CREWING

15. Crewing
16. Offences and Penalties

PART VI - TRAINING AND CERTIFICATION

17. Training and Assessment
18. Training Institutions
19. Issue of Certificates
20. Recognition of Certificates
21. Endorsement of Certificates
22. Revalidation of Certificates
23. Dispensations
24. Transitional Provisions
25. Fees
26. Offences and Penalties

PART VII – MEDICAL STANDARDS

27. Medical Fitness Certificates
28. Standards
29. Medical Certificates
30. Duration
31. Re-examination
32. Review of a Medical Certificate
33. Appeal of a Reviewed Medical Certificate
34. Costs of Medical Examinations for Reviews and Appeals
35. Offences and Penalties

PART VIII - QUALITY STANDARDS

36. Application
37. Quality Standards
38. Evaluation
39. Reporting

PART IX - IMPARTIAL INVESTIGATIONS

40. Application
41. Impartial Investigation
42. Immunities
43. Offences and Penalties

PART X - MARINE RADIO

44. Radio Regulations
45. Certification of Radio Personnel
46. Radio Certificates
47. Offences and Penalties

PART XI - TRANSITIONAL PROVISIONS

48. Interpretation
49. Recognition of Certificates
50. Repeal

SCHEDULES

SCHEDULE I - Crewing Requirements and Classes of Certificates

SCHEDULE II - Number of Certificates of Proficiency -Passenger Vessels

SCHEDULE III - Safe Crewing Certificate

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SHIPPING ACT (CAP 236)
(Section 206)

SHIPPING (STCW CONVENTION) REGULATIONS 1998

In exercise of the powers conferred by Section 206 of the Shipping Act (Cap. 136), the Minister of Marine and Ports with the consent of Cabinet makes the following Regulations:

PART I - PRELIMINARY

1. Short Title

These Regulations may be cited as the Shipping (STCW Convention) Regulations 1998.

2. Interpretation

(1) In these Regulations, unless the context otherwise requires -

"Act" means the Shipping Act (Cap. 136) as amended;

"Administration" means the Ministry of Marine and Ports, which shall be responsible for the administration of the Convention;

"Agreement" shall have the same meaning as in the Act;

"Appropriate Certificate" means a certificate held by a seafarer appropriate for the size, type, trading area and horsepower of the vessel in accordance with the standards published in the Gazette by the Secretary.

"Certificate" means -

(a) certificate of competency issued to a seafarer under Section 59 of the Act and in accordance with Part VI of these Regulations; or

(b) a certificate of competency revalidated under Regulation 22; or

(c) a certificate of competency issued to a seafarer by the maritime administration of another Contracting Party and recognised by the Secretary under Regulation 20;

"Clear Grounds" in respect of the control procedures set forth in Regulation 5 include a collision, grounding or stranding; an illegal discharge; operations which would pose a danger to seafarers, property and the environment and any deficiencies in the vessel's equipment or documentation;

"Code" means the Seafarers' Training, Certification and Watchkeeping Code, attached as Resolution 2 to the Final Act of the 1995 STCW Conference;

"Convention" means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended in 1995 and any other amendments that are accepted by or binding on Tonga;

"Deficiencies" in respect of clear grounds include failure to hold an appropriate certificate; failure to comply with the provisions of the Safe Crewing Certificate; watch arrangements that do not conform with those specified by the Flag State Administration; absence in a watch of a qualified seafarer; inability to provide for watches seafarers who are sufficiently rested or otherwise fit for duty;

"Dispensation" means a dispensation from a requirement of these Regulations or the Convention or the STCW Regulations or the Code, granted either generally or in a particular case by the Secretary under Regulation 23;

"Duly Certificated", in relation to a seafarer, means holding a valid certificate showing that the holder is qualified to serve in the capacity concerned on the type, tonnage, power and means of propulsion, and class of vessel and voyage concerned and to perform the functions involved at the relevant level of responsibility specified in the certificate;

"Endorsement" means an endorsement to a certificate made by the Secretary under Regulation 21 or made by the Maritime Administration of another Party;

"Government" means the Government of Tonga;

"IMO" means the International Maritime Organisation;

"Maritime Training Institution" means a training institution approved by the Government for training of seafarers to the level stipulated under the Convention and for the issuance of STCW certificates by the Government;

"Owner" means an owner or operator or bareboat charterer and includes "company" as defined in STCW Regulation I/l;

"Party" means a Party to the Convention;

"Physician" means a person who holds a current license to practice medicine issued under the Health Practitioners Registration Act 1991, or by a licensing authority recognised by the Government;

"Designated Physician" means a physician who is knowledgeable about seafaring and is designated by the Minister or those physicians recognised by the Government for the purpose of conducting medical examinations for seafarers;

"Seafarer" means a person in any capacity on a vessel and includes a person who is employed, or who seeks employment, as Master, officer, or rating on a vessel;

"Seaman" has the same meaning as seafarer;

"Seagoing Service" means service on board a vessel relevant to the issue of a certificate or other qualifications;

"SOLAS" means the International Convention for the Safety of Life at Sea, 1974, as amended by the Protocols of 1978 and 1988 and any other Amendments from time to time adopted by IMO and accepted by the Government;

"STCW Regulations" means the Regulations contained in the Annex to the Convention;

"Tongan Seafarer" means a seafarer who is a Tongan subject within the meaning of the Nationality Act (Cap. 59);

"Tongan Vessel" means a vessel that is registered or licensed in Tonga.

(2) In compliance with STCW Regulation I/3, the following terms shall apply to these Regulations:-

"Near-coastal Voyage" means a voyage between a port or place in Tonga and another port or place in Tonga;

"Unlimited Voyage" means a voyage between a port or place outside the area bounded by

(a) the parallels of latitude 15° North and 47° South; and

(b) the meridians of longitude 130° East and 130° West; and

another port or place inside that area, or outside it.

(3) In respect of Part X, Marine Radio, the following terms apply:-

"Radio Regulations" means the Radio Regulations annexed to, or regarded as being annexed to, the most recent International Telecommunications Convention which may be in force at any time.

"GMDSS" means the global maritime distress and safety system as prescribed in SOLAS.

(4) Where a term is used in these Regulations that is defined in Article II of the Convention or in STCW Regulation I/1, the term shall have the same meaning as in the Convention or STCW Regulations, unless a different meaning is given to that term by these Regulations.

3. STCW Convention

(1) The STCW Regulations and the Code shall be incorporated into and shall have the force of law in Tonga to the extent practicable, and to the extent that they are consistent with these Regulations and the Act and any other written laws of Tonga.

(2) The carriage of the Convention, STCW Regulations, and the Code shall be mandatory on all vessels registered in Tonga to which the Convention applies.

(3) The carriage of these Regulations shall be mandatory on all vessels registered in Tonga to which the Convention applies.

(4) Those training, assessment and certification procedures not covered by the Convention, STCW Regulations and the Code shall be those set forth in the South Pacific Maritime Code 1986, published by the South Pacific Forum Secretariat and amended from time to time.

(5) The processes and procedures for the issue of certificates Under the South Pacific Maritime Code shall be, to the extent practicable, those set out in these Regulations.

4. Application

These Regulations shall apply to -

(a) all vessels registered or licensed in Tonga; and

(b) all seafarers who are employed on vessels referred to in paragraphs (a); and

(c) all owners and masters of vessels referred to in paragraphs (a); and

(d) all seafarers who are subjects of Tonga or holders of certificates recognised and endorsed by the Government; and

(e) all maritime training institutions located in Tonga; and

(f) all certificates issued and recognised by the Government.

(2) Notwithstanding Article III of the Convention, these Regulations shall apply to fishing vessels, but shall not come into force until 31st March 1999.

(3) For the purposes of control under Part II, the provisions of the Convention, STCW Regulations and the Code shall apply to -

(a) all foreign vessels in Tongan waters; and

(b) all owners and masters of foreign ships in Tongan waters; and

(c) all seafarers employed on foreign vessels in Tongan waters.

PART II - CONTROL

5. Control Procedures

(1) A Surveyor appointed under Section 123 of the Act and authorised to board any vessel under Section 126(2)(b) of the Act, may exercise control procedures described in Article X and STCW Regulation I/4 and Section 66 of the Act.

(2) In the absence of clear grounds for believing that the standards of the Convention and Code are not being maintained, control shall be limited to the verification that all certificates are in order and that the numbers and certificates of seafarers are in conformity with the Safe Crewing Certificate.

(3) In the event there are clear grounds for believing that the standards of the Convention and Code are not being maintained, the competence of seafarer may be assessed in accordance with the control procedures specified in Section A-I/4 of the Code.

6. Register of Seafarers and Certificates

(1) The Seamen's Employment Office, established under the Act, shall maintain a Register of seamen, and shall, in addition to the entries required by Section 67 of the Act, record for masters, officers and as appropriate ratings, relevant particulars of documents issued under these Regulations, including-

(a) all certificates issued;

(b) all endorsements made to certificates;

(c) all certificates suspended or cancelled;

(d) all certificates issued by another country recognised as valid on Tongan vessels;

(e) all dispensations and exemptions granted;

(f) all certificates issued or recognised that have been revalidated;

(g) all certificates issued to replace those lost or expired;

(h) all medical certificates issued to seafarers under Part VII.

(2) The Seamen's Employment Office shall make information from the Register available to the Secretary, the Secretary-General of IMO, any Party, or any owner seeking authenticity and validity of certificates and endorsements issued.

7. Offences and Penalties

(1) In respect of these Regulations, or the Convention, or the STCW Regulations, or the Code, a person who -

(a) does anything prohibited; or

(b) omits to do anything required;

commits an offence and, if no other penalty is prescribed, shall be liable upon conviction to a penalty as set forth in sub-regulation (2).

(2) Penalties shall be as follows:

(a) For owners, agents and operators - a fine not exceeding $20,000 or imprisonment for a term not exceeding 2 years, or both.

(b) For masters - a fine not exceeding $5,000 or imprisonment for a term not exceeding 6 months, or both.

(c) For officers or seafarers - a fine not exceeding $3,000 or imprisonment for a term not exceeding 3 months, or both.

PART III - RESPONSIBILITIES OF OWNERS AND OTHERS

8. Responsibilities of Owners

(1) The owner of a vessel to which these Regulations apply shall employ seafarers for service on the vessel in accordance with the Convention.

(2) The owner of a vessel shall provide written instruction to the master setting out the policies and procedures to be followed to ensure that all seafarers on board the vessel are given a reasonable opportunity to become familiar with -

(a) the shipboard equipment and operating procedures; and

(b) any other arrangements needed for the proper performance of their duties before being assigned to those duties.

(3) The policies and procedures referred to in sub-regulation (2) shall include-

(a) allocation of a reasonable period of time during which each seafarer will have an opportunity to become familiar with:

(i) the specific equipment the seafarer will be operating; and

(ii) vessel-specific watchkeeping, safety, environmental protection and emergency procedures and arrangements the seafarer needs to know to perform the assigned duties properly; and

(b) designation of a knowledgeable seafarer who will be responsible for ensuring that an opportunity will be provided for each seafarer to receive essential information in a language the seafarer understands; and

(c) ensuring that seafarers are free from fatigue, that rest periods are observed and that watch schedules are posted in accordance with the Watchkeeping arrangements in accordance with Part IV of these Regulations and that these schedules are readily available for inspection by Port State Control officers and seafarers.

(4) The owner of a vessel shall provide vessel-specific introductory programmes aimed at assisting newly employed seafarers to familiarise themselves with all procedures and equipment relating to their area of responsibility.

(5) Every owner shall enter into an employment contract with each seafarer for every voyage, contained in the Agreement to be signed by both the master and the seafarer.

(6) The Agreement shall contain the bio-data of the seafarer required by the Convention.

(7) The Agreement shall indicate the date on which the seafarer was engaged and in what capacity, the seafarer's certificate, the nature of the voyage, and the date of the seafarer's discharge.

9. Responsibilities of Owners and Masters

(1) Both the owners and the master to whom these Regulations applies shall ensure that -

(a) every seafarer employed on the vessel is duly certificated; and

(b) the vessel is crewed in compliance with the applicable safe crewing requirements prescribed in Part V; and

(c) documentation and data relevant to all seafarers employed on their vessels are maintained and readily accessible and shall include, without being limited to, documentation and data on their experience, training, medical fitness and competency in assigned duties; and

(d) every seafarer employed on the vessel is familiarised with that seafarer's specific duties and with all vessel arrangements, installations, equipment, procedures and vessel characteristics that are relevant to their routine or emergency duties; and

(e) the vessel's complement can effectively co-ordinate their activities in an emergency situation and in performing functions vital to safety or to the prevention or mitigation of pollution.

(2) Both the owner and the master of a vessel to whom these Regulations apply shall ensure that every seafarer can make a knowledgeable and informed contribution to the safe operation of the vessel.

(3) The date of engagement and discharge, and vessel's particulars shall be recorded by the owner or master in the Seaman's Record Book.

10. Responsibilities of Master

(1) The master shall take all steps necessary to implement any instructions issued in accordance with Regulation 8, which steps should include -

(a) identifying all seafarers who are newly employed on board the vessel before they are assigned to any duties; and

(b) providing the opportunity for all newly arrived seafarers to -

(i) visit the spaces, in which their primary duties are to be performed; and

(ii) get acquainted with the location, controls and display features of equipment they will be operating or using; and

(iii) activate the equipment when possible and perform functions using the controls on the equipment; and

(iv) observe and ask questions of someone who is already familiar with the equipment, procedures and other arrangements, and who can communicate information in a language which the seafarer understands; and

(c) providing for a suitable period of supervision when there is any doubt that a newly employed seafarer is familiar with the shipboard equipment, operating procedures and other arrangements needed for the proper performance of his duties.

(2) Every master shall maintain the Agreement evidencing the contract of employment between the owner and the seafarer for the duration of the voyage.

(3) The master shall sign the Agreement on behalf of the owner and ensure that the seafarer fully understands their meaning before appending his signature or mark.

11. Responsibilities of Seafarers

(1) Seafarers assigned to a vessel should take full advantage of every opportunity provided to become familiar with the shipboard equipment, operating procedures, and other arrangements needed for the proper performance of their duties, and immediately upon arriving on board for the first time, each seafarer has the responsibility to become acquainted with the vessel's working environment, particularly with respect to new or unfamiliar equipment, procedures, or arrangements.

(2) Seafarers who do not promptly obtain the level of familiarity required for performing their duties shall bring this fact to the attention of their supervisor.

12. Offences and Penalties

(1) Owners shall comply with all the obligations contained in Regulations 8 and 9.

(2) An owner who fails to comply with any of the provisions contained in Regulations 8 and 9 commits an offence and is liable upon conviction to a fine not exceeding $25,000 or a term of imprisonment not exceeding 2 years, or both.

(3) Masters shall comply with all of the obligations contained in Regulations 9 and 10.

(4) A master who fails to comply with any of the provisions contained in Regulations 9 and 10 commits an offence and is liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 1 year, or both.

(5) Every seafarer shall comply with all the obligations contained in Regulation 11.

(6) A seafarer who fails to comply with any of the provisions contained in Regulation 11 commits an offence and is liable upon conviction to a fine not exceeding $5,000 or a term of imprisonment not exceeding 6 months, or both.

PART IV - WATCHKEEPING

13. Watchkeeping Arrangements

(1) The owner, master, chief engineer officer and all watchkeeping personnel of a vessel to which these Regulations apply shall observe the requirements, principles and guidelines set out in the Convention and the Code to ensure that a safe watch is maintained at all times.

(2) The master of a vessel shall ensure that watchkeeping arrangements are adequate to maintain a safe watch while the vessel is at sea, taking into account the following principles:

(a) the officer in charge of a navigational watch is responsible for the safe navigation of the vessel and shall be physically present on the bridge or associated location during his period of duty;

(b) the radio operator is responsible for maintaining continuous radio watch on appropriate frequencies during his period of duty;

(c) the officer in charge of an engineering watch shall be immediately available and shall be physically present in the machinery spaces when required.

(3) Appropriate and effective watches shall be maintained for the purpose of safety at all times -

(a) when the vessel is at anchor or moored; and

(b) when the vessel is carrying hazardous cargo.

(4) Watchkeeping arrangements and principles to be observed shall be those contained in Section A - VIII/2 of the Code, and due regard shall be had to the guidance contained in Section B - VIII/2 of the Code.

(5) The owner, master, chief engineer officer and all watchkeeping personnel of a vessel to which these Regulations apply who fails to observe the requirements, principles and guidelines in respect of Watchkeeping set out in the Convention and the Code commits and offence and shall, upon conviction, be liable to the penalties set out in Regulation 12.

14. Fitness for Duty

(1) The system of watches aboard a vessel shall be so arranged and that duties are so organised that -

(a) the efficiency of all personnel with watchkeeping duties is not impaired by fatigue; and

(b) the first watch at the commencement of a voyage and subsequent relieving watches are sufficiently rested and otherwise fit for duty.

(2) Without limiting the general requirements of sub-regulation (1)-

(a) all seafarers who are assigned duty as officer in charge of a watch or as a rating forming part of a watch shall be provided a minimum of 10 hours rest in any 24-hour period; and

(b) the hours of rest may be divided into no more that two periods, one of which shall be at least six hours in length; and

(c) the requirements for the rest periods laid down above need not be maintained in the case of an emergency or drill, or in other over-riding operational conditions; and

(d) notwithstanding the provisions in paragraphs (a) and (b) above, the minimum period of 10 hours may be reduced to not less than 6 consecutive hours, provided that any such reduction shall not extend beyond 2 days and not less than 70 hours of rest are provided in each 7 day period; and

(e) watch schedules shall be posted on board where they are easily accessible.

PART V - CREWING

15. Crewing

(1) The number of seafarers and classes of certificates required for the safe crewing of each class of vessels shall be in accordance with Schedule 1 of these Regulations.

(2) In addition to the requirements of sub-regulation (1), every passenger vessel shall carry seafarers holding certificates of proficiency in survival craft and rescue boats as required by Schedule II of these Regulations.

(3) The minimum number of Tongan subjects employed on each vessel registered or licensed in Tonga shall be determined by the Minister.

(4) The number of seafarers and classes of certificates for the safe crewing of vessels laid up and securely moored shall be determined by the Minister.

(5) Where a vessel has been crewed in accordance with these Regulations, the Minister shall issue a Safe Crewing Certificate in the form set forth in Schedule III of these Regulations.

16. Offences and Penalties

(1) The owner of a Tongan vessel who engages, or causes or permits to be engaged, as a seafarer a person not duly certificated, commits an offence and is liable upon conviction to a fine not exceeding $25,000 or a term of imprisonment not exceeding 2 years, or both.

(2) The owner of a Tongan vessel, who causes or permits the vessel to go to sea when it is not safely crewed in accordance with this Part, commits an offence and is liable upon conviction to a fine not exceeding $25,000 or a term of imprisonment not exceeding 2 years, or both.

(3) The owner of a Tongan vessel, who causes or permits the vessel to go to sea when it is not crewed with the prescribed number of Tongan seafarers, commits an offence and is liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 1 year, or both.

(4) The master of a Tongan vessel, who engages, as a seafarer a person not duly certificated, commits an offence and is liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 1 year, or both.

(5) The master of a Tongan vessel, who takes the vessel to sea when it is not safely crewed in accordance with this Part, commits an offence and is liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 1 year, or both.

(6) The master of a Tongan vessel, who takes the vessel to sea when it is not crewed with the prescribed number of Tongan seafarers, commits an offence and is liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 1 year, or both.

(7) Where these Regulations require a function or service on a vessel to be performed by a seafarer holding an appropriate certificate, a master who requires or permits that function or service to be performed by a seafarer not holding the required certificate, a valid dispensation, or recognition endorsement, commits an offence and is liable upon conviction to a fine not exceeding $10,000 or a term of imprisonment not exceeding 1 year, or both.

PART VI - TRAINING AND CERTIFICATION

17. Training and Assessment

(1) The training and assessment of competence of seafarers in Tonga shall be administered, supervised, and monitored in accordance with the provisions of Section-I/6 of the Code.

(2) Every person responsible for the training and assessment of competence of seafarers shall be appropriately qualified in accordance with the provisions of Section A-I/6 of the Code for the type and level of training or assessment involved.

(3) Training programmes provided for seafarers in Tonga shall be those published in the Gazette by the Secretary and shall be conducted in accordance with the provisions of the Convention, STCW Regulations and to the standards required by the Code.

(4) The assessment of competence of seafarers in Tonga shall be in accordance with the provisions of the Convention and STCW Regulations and to the standards specified in relevant Sections of the Code.

(5) Curricula developed for training programmes offered in Tonga shall be based on the relevant IMO Model courses and shall incorporate the relevant requirements of the Code.

(6) The Secretary shall publish standards and procedures for:

(a) course outlines, detailed curricula and methods of assessment;

(b) the application for certificates, calculation of sea service and determination of prerequisites;

(c) conduct of examinations and determination of pass marks;

(d) the retaking of examinations;

(e) the format of certificates of discharge;

(f) training programmes offered in Tonga;

(g) the payment of examination fees.

18. Training Institutions

(1) The Tonga Maritime Polytechnical Institute shall be designated the primary institution for maritime training and assessment in Tonga.

(2) The Minister in consultation with the Minister of Education may approve, subject to compliance with the provisions of the Convention, STCW Regulations and the requirements of the Code, the training, assessment and issue of assessment certificates by the Tonga Maritime Polytechnical Institute.

(3) The Minister may appoint appropriately qualified Assessors for the particular type and level of training and assessment of competence of seafarers.

(4) The Tonga Maritime Polytechnical Institute may issue assessment criteria for each student who has satisfactorily completed the training programmes as published in the Gazette by the Secretary.

(5) The final assessment certificate issued by the Ministry of Marine and Ports shall be sufficient evidence of that seafarer's competence in the subjects mentioned in the certificate.

(6) The Principal or person in charge of the Tonga Maritime Polytechnical Institute shall maintain a record of the assessment of all seafarers to whom assessment certificates are issued.

19. Issue of Certificates

(1) The Secretary has the authority to approve and issue certificates, exemptions and dispensations; recognise and endorse certificates; and suspend, cancel or take such other administrative action as is reasonably necessary for the proper administration of the training and certification of seafarers in accordance with the provisions of the Convention and the STCW Regulations, and the requirements of the Code.

(2) The Secretary may, at any time, in writing, delegate to the proper officer any or all of the powers referred to in sub-regulation (1), including the authority to issue, endorse, revalidate, suspend or cancel certificates, or issue dispensations.

(3) The classes of certificates that may be issued and the pre-requisites that candidates must satisfy for their issue, shall be those as published in the Gazette by the Secretary.

(4) Candidates for certification shall provide satisfactory proof of-

(a) their identity and age; and

(b) their medical fitness, in accordance with Part VII of these Regulations; and

(c) completion of sea-going service, training or re-training; and

(d) any other requirement of the Administration.

(5) The certificates issued under sub-regulations (l) and (2) shall be in a format similar to that set forth in Section A-I/2 of the Code and shall be in the English language.

(6) No certificates shall be issued to any seafarer unless found duly qualified in accordance with the provisions of Article VI of the Convention and STCW Regulation I/2 and the standards required by the Code.

(7) Any need to wear visual aids to meet the required medical standards shall be recorded on each certificate or endorsement issued.

20. Recognition of Certificates

(l) Certificates issued by Parties to. the Convention and endorsed by the issuing State as meeting the provisions of the Convention and Code, as published in the Gazette by the Secretary, shall be recognised in Tonga, provided that such certificate is -

(a) issued by the Maritime Administration of another Party and meets the provisions of the Code; and

(b) appropriate to the duties performed by the holder on the vessel; and

(c) valid under the Convention for the vessel and the voyage on which the vessel is engaged.

(2) Seafarers, who present certificates for recognition shall have, in accordance with STCW Regulation I/10, an appropriate knowledge of the maritime legislation particular to the vessel and its area of operation and relevant to the functions they are permitted to perform.

(3) The Secretary may, under the provisions of STCW Regulation I/10 paragraph 5, if circumstances require, permit a seafarer to serve on a vessel registered in Tonga for a period not exceeding three months while holding an appropriate and valid certificate issued and endorsed by another Party, pending its endorsement for service on vessels registered in Tonga.

(4) The Secretary shall publish in the Gazette a Table of Concordance which lists the Convention equivalent of Certificates of Competency issued under the South Pacific Maritime Code and the Shipping and Navigation Regulations (Cap. 136).

21. Endorsements of Certificates

(1) Where a certificate is to be endorsement shall be made by the Secretary, in the English language, in a format similar to that illustrated in the Code, and may form part of the certificate.

(2) No such endorsement shall be made unless the Administration is satisfied that all the requirements of the Convention have been complied with.

22. Revalidation of Certificates

(1) Every seafarer holding a certificate issued or recognised under these Regulations shall, in order to qualify for seagoing service, be required at intervals not exceeding five years to -

(a) meet the standards of medical fitness proscribed in the Part VII of these Regulations; and

(b) establish continued professional competence in accordance with Section A-I/11 of the Code.

(2) Every seafarer holding a qualification issued in accordance with the requirements of STCW Regulations VI/1, VI/2, VI/3 and VI/4 shall be required to demonstrate competence in accordance, with the requirements of Sections A-VI/1, VI/2, VI/3 and VI/4 as may be relevant, at intervals of not exceeding 5 years.

(3) Where a seafarer seeking revalidation of, a certificate produces evidence to the Secretary that he has -

(a) satisfactorily completed a re-training course in emergency procedures, survival functions, occupational safety, and first aid within the last 5 years; or

(b) continued competence in those functions,

and has paid the fee as published in the Gazette by the Secretary, the Secretary may revalidate that seafarer's certificate for a period not exceeding 5 years.

(4) A certificate, which is not so revalidated in accordance with these Regulations, shall not be valid for seagoing service.

23. Dispensations

No dispensation will be issued by the Administration except in strict accordance with Article VII of the Convention.

24. Transitional Provisions

(1) The transitional provisions in respect of training and certification of seafarers shall be in accordance with Article VII of the Convention and STCW Regulation I/15.

(2) Holders of certificates issued in accordance with the provisions of the Convention which applied immediately prior to 1 February 1997 shall, for service after 1 February 2002, undergo appropriate refresher and updating training and/or assessment to meet the standards of competence for the appropriate certificates specified in Part A of the Code.

25. Fees

The fees payable for receiving applications, assessing competence and issuing certificates under this Part shall be those as published in the Gazette by the Secretary.

26. Offences and penalties

(1) A seafarer who makes a false declaration in order to obtain a certificate or endorsement issued under this Part commits an offence and is liable upon conviction to a fine not exceeding $1,000 or a term of imprisonment not exceeding 1 month, or both.

(2) Any seafarer who obtains or uses forged documents or obtains documents by fraud for the purpose of obtaining a certificate commits an offence and is liable upon conviction to a fine not exceeding $1,000 or a term of imprisonment not exceeding 1 month, or both.

(3) Any seafarer who issues a false document or forges a document to facilitate the issue of a certificate commits an offence and is liable upon conviction to a fine not exceeding $1,000 or a term of imprisonment not exceeding 1 month, or both.

PART VII - MEDICAL STANDARDS

27. Medical Fitness Certificates

Every seafarer employed on a vessel to which the Convention applies shall hold a valid medical fitness certificate if that seafarer -

(a) is required to be on board by virtue of the vessel's Safe Crewing Certificate; or

(b) has any responsibility on board relating to emergency procedures; or

(c) has any watchkeeping responsibilities; or

(d) has any duties relating to the normal operation of the vessel.

28. Standards

(1) The standards of medical fitness for seafarers as required by STCW Regulation I/9 are as published in the Gazette by the Secretary.

(2) Only designated physicians registered under the Health Practitioners Registration Act 1991 or those medical practitioners recognised by the Government for the purpose of conducting medical examinations for seafarers shall conduct medical examinations in accordance with the "Guide to Physicians" as published in the Gazette by the Secretary.

(3) A list of medical practitioners so designated or recognised shall be maintained by the Registrar and made available to other Parties and to owners.

29. Medical Certificates

(1) A physician shall, after completing the medical examination of a seafarer under these Regulations, issue a medical certificate to the seafarer in the form determined by the Minister.

(2) The physician shall set out in the medical certificate the physician's assessment of the seafarer's suitability as -

(a) unfit for service at sea; or

(b) fit for service at sea, with limitations; or

(c) fit for service at sea, without limitations.

(3) A physician who assesses a seafarer as fit for service at sea with limitations shall state those limitations on the seafarer's medical certificate.

30. Duration

(1) Except where a re-examination is required under Regulation 31, and subject to sub-regulations (2) and (3), a medical certificate shall be valid for a period of time beginning on the day of its issuance -

(a) in the case of a seafarer 40 years of age and over who holds a certificate, for 2 years; and

(b) in all other cases, for 3 years.

(2) Where appropriate, taking into account the state of health of the seafarer examined, a physician may issue a medical certificate that specifies a shorter period of validity than the period set out in sub-regulation (1).

(3) Where the period of validity of a medical certificate expires in the course of a voyage, the certificate remains in force until the end of the voyage, or until the end of an additional period of 3 months whichever occurs first.

31. Re-examination

The seafarer may at any time be re-examined -

(a) where the Minister has reason to believe that a re-examination is desirable in order to protect the safety of the vessel or of other seafarers on board the vessel; or

(b) at the request to the Minister of the seafarer's employer, where the employer has grounds to believe that the seafarer's state of health may constitute a risk to the safety of the vessel or of other seafarers on board the vessel; or

(c) at the request of the seafarer.

32. Review of a Medical Certificate

(1) A seafarer may apply to the Secretary for a review by a reviewing physician of a medical certificate issued under this Part that indicates the seafarer to be -

(a) unfit for service at sea; or

(b) fit for service at sea with limitations.

(2) The reviewing physician shall be a designated physician.

(3) After reviewing a medical certificate and the state of health of the seafarer to whom it was issued, the reviewing physician may direct that further medical examinations be carried out and may stipulate the examinations to the seafarers or organisations to ensure that they are carried out.

(4) The reviewing physician shall -

(a) confirm the medical certificate originally issued; or

(b) where appropriate, based on further examinations conducted pursuant to sub-regulation (3), issue a new medical certificate in the form issued by the Secretary.

33. Appeal of a Reviewed Medical Certificate

(1) A seafarer who requested a review of a medical certificate, may appeal to the Minister for a further review of the case by an appeal board if the medical certificate confirmed or issued by the reviewing physician indicates that the seafarer -

(a) unfit for service at sea; or

(b) fit for service at sea with limitations.

(2) An application for a review by an appeal board shall be accompanied by a review fee of $25.00.

(3) On appeal from a seafarer pursuant to sub-regulation (1), the Minister shall appoint an appeal board composed of at least a representative -

(a) of the Minister;

(b) proposed by the employer of the seafarer; and

(c) proposed by the seafarer.

(4) Every appeal board shall be assisted in its deliberations by a physician selected from the designated physicians list by the representatives referred to in sub-regulation (3).

(5) An appeal board has the same power as a reviewing physician and may -

(a) confirm the medical certificate issued or confirmed by the reviewing physician; or

(b) where appropriate, based on its deliberations, issue a new medical certificate in the form required by Regulation 29.

(6) An appeal board shall record its decision and the reasons for it in writing and send a copy of it to the Minister, to the seafarer and to the employer of the seafarer.

34. Costs of Medical Examinations for Reviews and Appeals

The costs of any medical examination conducted as a result of a review under Regulation 32 or an appeal under Regulation 33 shall be borne by the applicant seafarer.

35. Offences and Penalties

(1) No owner shall employ a person as a seafarer unless the seafarer produces a valid medical certificate issued under these Regulations, attesting to the seafarer's fitness -

(a) to perform the duties for which the seafarer is to be employed; and

(b) to make the voyage to be undertaken by the vessel.

(2) An owner who employs a seafarer, whose functions on the vessel requires a medical certificate without that seafarer having one, commits an offence and is liable upon conviction to a tine not exceeding $3,000 or a term of imprisonment not exceeding 3 months, or both.

(3) No person shall accept employment as a seafarer on board a vessel unless the seafarer holds a valid medical certificate issued under these Regulations.

(4) A seafarer who accepts employment on a vessel in a function, which requires a medical certificate without having one, commits an offence and is liable upon conviction to a fine not exceeding $1,000 or a term of imprisonment not exceeding 1 month, or both.

(5) A seafarer who fails to declare an existing medical pre-condition or illness that would otherwise have led to a determination of his unfitness for duty commits an offence and is liable upon conviction to a fine not exceeding $1,000 or a term of imprisonment not exceeding 1 month, or both.

PART VIII - QUALITY STANDARDS

36. Application

(1) The purpose of this Part is to ensure that all training, assessment of competence, certification, endorsement and revalidation activities are continuously monitored through a quality standards system to ensure achievement of the defined objectives, including those concerning the qualifications and the experience of instructors and assessors is in accordance with the provisions of the Code.

(2) This Part shall apply to activities carried out by governmental agencies or entities and non-governmental agencies and entities involved in the training, assessment of competence, certification, endorsement and revalidation required under the Convention.

37. Quality Standards

(1) Quality standards shall be established to cover the administration of the training, examination, and assessment carried out under the authority of the Government of Tonga in accordance with the guidelines set forth in Section B-I/8 of the Code.

(2) Education and training objectives and related standards of competence shall be clearly defined and the levels of understanding and the skills appropriate to the examinations and assessments required by the Convention shall be identified.

38. Evaluation

The Administration shall appoint qualified persons, who are not themselves involved in the activities concerned, to conduct an independent evaluation of the knowledge, understanding, skills and competence acquisition and assessment activities, and the administration of the certification system, at intervals of 5 years in order to verify that -

(a) all internal management control and monitoring measures and the follow-up actions comply with planned arrangements and documented procedures and are effective in ensuring achievement of the defined objectives; and

(b) the results of each independent evaluation are documented and brought to the attention of those responsible for the area evaluated; and

(c) timely action is taken to correct deficiencies.

39. Reporting

(1) The evaluation report required by Regulation 38 shall be submitted to the Minister as soon as it is completed.

(2) Information relating to the independent evaluation shall be communicated to the Secretary-General of IMO.

PART IX - IMPARTIAL INVESTIGATIONS

40. Application

(1) This Part makes provision for the conduct of proceedings in any impartial investigation carried out under STCW Regulation I/5.

(2) Any investigation conducted on any reported incompetency, act or omission of a seafarer, which may pose a threat to safety of life or property at sea or to the marine environment shall be impartial.

(3) This Part shall apply to-

(a) owners and agents of vessels registered or licensed in Tonga; and

(b) all seafarers employed on vessels registered or licensed in Tonga; and

(c) all seafarers holding a certificate issued or recognised by the Government of Tonga; and

(d) all foreign vessels in Tongan waters.

41. Impartial Investigation

(1) Where the Minister has caused an impartial investigation to be carried out under STCW Regulation I/5, the following processes and procedures shall be followed to the extent that they are applicable.

(2) The person conducting an impartial investigation, shall, if he thinks it is advisable, co-opt expert advisers to from a panel to assist in any impartial investigation.

(3) The person conducting an impartial investigation may regulate the processes and procedures in such a manner as is advisable or necessary in the circumstances subject to sub-regulations (4) and (5).

(4) Where it is likely during the course of any impartial investigation that the conduct of a seafarer will be called into question or it is likely that a seafarer will be adversely affected by a decision of the inquiry or investigation, the person conducting the inquiry or investigation shall -

(a) give that seafarer at least 72 hours notice of the place, day and hour of the inquiry; and

(b) furnish that seafarer -

(i) a copy of the report of any preliminary investigation in relation thereto; or

(ii) in any other case, a statement of the case on which the inquiry was so ordered.

(5) Every seafarer whose conduct is likely to be questioned during the course of an impartial investigation, or who is likely to be adversely affected by the decision of the impartial investigation is entitled to -

(a) attend the investigation and to be represented by counsel;

(b) be sworn and give evidence before the investigator or panel;

(c) subpoena and call witnesses;

(d) examine, cross-examine and re-examine all witnesses in accordance with the rules of procedure and evidence;

(e) take all proper exceptions to the admissibility of evidence; and

(f) address the investigator or panel, either at the conclusion or at any other proper time.

(6) A member of the investigation panel may dissent in writing from any report of the Board and an Order shall be made on the majority decision of the members.

(7) Any investigation may determine the costs incurred by that investigation which a seafarer, by Order, may be required to pay.

(8) Where it appears to the Minister to be necessary or desirable to do so, he may order the suspension of any certificate issued to any qualified seafarer under the Act or Regulations, pending the outcome of the investigation.

(9) Where, as the result of an investigation, it is determined that a seafarer whose certificate had been suspended was not unfit to discharge his duties because of incompetence, misconduct or for any other reason, or has not been seriously negligent in the discharge of his duties, the person conducting the investigation may recommend to the Minister that the suspension of the certificate be revoked as soon as practicable and the certificate be returned to the seafarer forthwith.

(10) Assessors appointed to an investigation panel should hold appropriate maritime qualifications and have the necessary experience to provide sound professional advice.

(11) Two or more assessors may be appointed when the investigation is of-

(a) significant magnitude, such as that involving serious damage to or loss of a vessel, or serious injury to or loss of life of a seafarer, or significant damage to the environment; or

(b) significant complexity involving several issues.

(12) The person conducting the investigation shall not recommend the cancellation or suspension of the certificate of any Master or qualified seafarer, unless a statement of the reasons for the decision has been furnished to the Master or seafarer holding the certificate, and where practicable, the Master or qualified seafarer has had an opportunity to respond.

(13) Where an impartial investigation is held, no person shall in relation to any person carrying out the inquiry or investigation -

(a) hinder or obstruct any such person; or

(b) fail to answer any question put by any person; or

(c) fail to produce any document or certificate in his possession or under his control when requested to do so by any such person.

42. Immunities

The person conducting the impartial investigation shall not be liable to any action or suit for any act, matter or thing done, or ordered to be done, by him in good faith in the execution of his duties.

43. Offences and Penalties

A person who contravenes or fails to comply with Regulation 41 commits an offence and is liable upon conviction to a fine not exceeding $3,000 or a term of imprisonment not exceeding 3 months, or both.

PART X - MARINE RADIO

44. Radio Regulations

The Radio Regulations are incorporated into and have the force of law in Tonga.

45. Certification of Radio Personnel

(1) Every seafarer in charge or performing radio duties on a vessel required to participate in the GMDSS shall hold an appropriate certificate related to the GMDSS, issued or recognised by the Minister under the provisions of the Radio Regulations.

(2) Every candidate for certification for service on a vessel under sub-regulation (1), which is required by SOLAS to have a radio installation, shall meet the provisions of STCW Regulation IV/2 and Section A-IV/2 of the Code.

(3) Until 1 February 1999, radio personnel on vessels complying with the provisions of SOLAS, in force immediately prior to 1 February 1992 shall comply with the provisions of the Convention, in force prior to 1 December 1992.

(4) Radio personnel on vessels not required to comply with the provisions of the GMDSS in Chapter IV of SOLAS are not required to meet the provisions of these Regulations. Radio personnel on these vessels are, nevertheless, required to comply with the Radio Regulations. The Minister shall ensure that the appropriate certificates as prescribed by the Radio Regulations are issued to or recognised in respect of such radio personnel.

46. Radio Certificates

(1) Every seafarer in charge of, or required to perform, radio duties operating with a GMDSS system shall hold:

(a) On vessels with a Cargo Vessel Safety Radio Certificate or a Passenger Vessel Safety Certificate valid for operation in area A1 only, at least a GMDSS restricted operators certificate issued in accordance with Subsection D of Section IIIA of Article 55 of the Radio Regulations and STCW Regulation IV/2;

(b) On Vessels with a Cargo Vessel Safety Radio Certificate or Passenger Vessel Safety Certificate valid for operations in areas AI + A2 + AI + A2 + A3 and AI + A2 + 3 + A4 at least a GMDSS general operators certificate issued in accordance with Subsection C of Section IIIA of Article 55 of the Radio Regulations and STCW Regulations IV/2;

(c) An endorsement to an appropriate certificate issued by a Party under this Part which states that the holder is qualified to perform the radio-communication function at the operation level.

(2) Notwithstanding the provisions of sub-regulation (1) of this Regulation, vessels of 300 gross tons or more which operate with a GMDSS radio system in sea areas A2, A3 or A4 shall carry either one first or second class radio electronics officer qualified in accordance with sub-paragraph 1(b), who shall not be the master or in lieu thereof two general operators, one of whom may be the master.

(3) Nothing in this Regulation shall preclude the Secretary or a person delegated by him from varying the requirements for the number of radio personnel required to be carried provided that those requirements comply with the provisions of the Radio Regulations and the Convention.

47. Offences and Penalties

(1) Owners shall comply with all the obligations contained in this Part, the Convention, the Regulations, the Code, and the Radio Regulations.

(2) An owner who fails to comply with any of the provisions contained in this Part, the Convention, the Regulations, the Code, and the Radio Regulations commits an offence and is liable upon conviction to a fine not exceeding $25,000, or a term of imprisonment not exceeding 2 years, or both.

(3) Masters shall comply with all of the obligations contained in this Part, the Convention, the Regulations, the Code and the Radio Regulations.

(4) A master who fails to comply with any of the provisions contained in this Part, the Convention, the Regulations, the Code, and the Radio Regulations commits an offence and is liable upon conviction to a fine not exceeding $10,000, or a term of imprisonment not exceeding 1 year, or both.

(5) Every seafarer shall comply with all the obligations contained in this Part, the Convention, the Regulations, the Code, and the Radio Regulations.

(6) A seafarer who fails to comply with any of the provisions contained in this Part, the Convention, the Regulations, the Code, and the Radio Regulations commits an offence and is liable upon conviction to a fine not exceeding $3,000 or a term of imprisonment not exceeding 3 months, or both.

PART XI - TRANSITIONAL PROVISIONS

48. Validity of the South Pacific Maritime Code

The certificate structure and the trading limits as found in the South Pacific Maritime Code shall continue to have validity until 1 February 2002.

49. Recognition of Certificates

Prior to the full implementation of the Convention, Regulations, and STCW Code, all certificates issued before 1 August 1998 described in Regulation 20(4) shall continue to be recognised until 1 February 2002.

50. Repeal

Regulations 7, 8, 11 to 16 and the First and Third Schedules of the Shipping and Navigation Regulations are hereby repealed.

Made this 9th day of July, 1998.

Minister of Marine & Ports

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SCHEDULE I
(Regulation 15(1))

CREWING REQUIREMENTS AND CLASSES OF CERTIFICATES

l. The number of persons holding the requisite certificates for service on vessels to which this Regulation applies shall be in accordance with the following Tables for each of the trade areas prescribed.

2. The Minister may, upon application, grant an exemption to the requirements prescribed in paragraph (1) above if he deems that to do so will be in the public interest and will not compromise the safety of the vessel, its crew, passengers or cargo.

3. Authorities may impose operating limits on a vessel operating a near-coastal voyage.

______

UNLIMITED VOYAGES
Minimum Grades of Competency

NEAR-COASTAL VOYAGES
Minimum Grades of Competency

Note: W/keeper - Watchkeeper.

FISHING VESSELS UNLIMITED VOYAGES
Minimum Grades of Competency

FISHING VESSELS NEAR-COASTAL VOYAGES
Minimum Grades of Competency

Note: PIQFD - Pacific Islands Qualified Fishing Deckhand.

UNLIMITED VOYAGES
Minimum Grades of Competency

NEAR-COASTAL VOYAGES
Minimum Grades of Competency Required

Note: The Maritime Administration may allow a reduction of these requirements in special circumstances.

_____

SCHEDULE II
(Regulation 15(2))

NUMBER OF CERTIFICATES OF PROFICIENCY - PASSENGER VESSELS

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SCHEDULE III
(Regulation 15(5))

SAFE CREWING CERTIFICATE

MINISTRY OF MARINE AND PORTS

Address: Telephone:
P O Box 144 Fax No:
Nuku'alofa
Tonga

Name
Call Sign
Port of Registry
Type
Gross Tonnage
Trading Area
Main Propulsion Engine
Electric Plant
Classification Society
Working Condition
IMO No.

Safe crewing for operation with periodically uncrewed engine room and for safety related duties to be in accordance with the Shipping Act (Cap. 136) and the Shipping (STCW Convention) Regulations.

Date ..............

Secretary for Marine and Ports ...............

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