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Vanuatu Consolidated Legislation - 2006 |
LAWS OF THE REPUBLIC OF VANUATU
CONSOLIDATED EDITION 2006
Commencement: 20 January 1999
CHAPTER 253
VANUATU MARITIME AUTHORITY
Act
29 of 1998ARRANGEMENT OF SECTIONS
PART 1 – PRELIMINARY PROVISIONS
1. Interpretation
2. Definition of accident
PART 2 – ESTABLISHMENT AND CONSTITUTION
3. Establishment of the Vanuatu Maritime Authority
4. Composition of the Authority
PART 3 – OBJECTIVES, FUNCTIONS AND POWERS
5. Principal objectives of the Authority
6. Functions of the Authority
7. Powers of the Authority
8. Authority to have regard to Government policy
9. Authority to consult
PART 4 – PERFORMANCE AGREEMENT
11. Variation of performance agreements
PART 5 – COMMISSIONER OF MARITIME AFFAIRS
15. Acting Commissioner
16. Delegation of Minister's functions or powers to Authority
17. Delegation of Authority's functions or powers to employees of Authority
18. Delegation of Commissioner's functions or powers to employees of Authority
19. Delegation of Authority's or Commissioner's functions or powers to persons outside Authority
20. Effect of delegation
21. Revenues of the Authority
22. Borrowing of money by the Authority
PART 8 – ADMINISTRATIVE MATTERS
Division 1 – Members
27. Fees and allowances
28. Chairperson and Deputy Chairperson
29. Acting appointments
30A. Secretary
31. Powers of Authority not affected by membership vacancy
Division 2 – Meetings
32. Meetings
33. Quorum and voting
34. Participating in meetings by telephone etc.
35. Resolutions without meetings
36. Authority may regulate its procedures
Division 3 – Disclosure of interests
37. Disclosure of interests
Division 4 – Staff and consultants
38. Appointment of staff
39. Consultants, specialists etc
40. Committees
41. Execution of documents
PART 9 – MARITIME APPEAL TRIBUNAL
42. Establishment and appointment
43. Termination and resignation
44. Costs
45. Applications
46. Evidence
47. Procedure of Tribunal
48. Decision is final
49. Remuneration
50. Powers of entry in respect of works
50A. Removal of wrecks
50B. Recovery of costs and expenses with respect to certain pollution
51. Vesting of certain rights etc
52. Exemption from taxes
53. Use of words "Maritime Authority" or "Maritime Appeal Tribunal"
55. General provisions relating to offences
SCHEDULE – Specified Acts
VANUATU MARITIME AUTHORITY
An Act to establish the Vanuatu Maritime Authority and to provide for the regulation, administration and promotion of the maritime transport industry.
PART 1 – PRELIMINARY PROVISIONS
1. Interpretation
In this Act unless the contrary intention appears:
"accident" has the meaning given by section 2;
"Authority" means the Vanuatu Maritime Authority established under section 3;
"Commissioner" means the Commissioner of Maritime Affairs appointed under section 12;
"incident" means any occurrence, other than an accident, that is associated with the operation of a vessel and affects or could affect the safety or operation of the vessel;
"maritime document" means:
(a) any licence, permit, certificate or other document relating to maritime transport provided for under any Act or regulation; or
(b) any foreign licence, permit, certificate or other document relating to maritime transport;
and includes any document relating to the protection of the marine environment;
"maritime product" means any thing that:
(g) fuel and other similar consumable items necessary for the operation of a vessel;
"member" means a member of the Authority and includes the Chairperson and Deputy Chairperson;
"Minister" means the Minister responsible for the maritime transport industry;
"Ministry" means the Ministry responsible for the maritime transport industry;
"mishap" means any occurrence, other than an accident, involving a vessel that causes or might cause an illness or injury to any person;
"navigational aid" includes the following:
"official seal" means the seal referred to in section 3 for the authentication of documents by the Authority;
"Register of Ships and Seafarers" means:
(a) the registers referred to in section 5 of the Maritime Act [Cap. 131]; or
(b) any register established and maintained under regulations made under that Act; or
(c) any register established and maintained under regulations made under the Shipping Act [Cap. 53];
"safety equipment" means any equipment carried on a vessel for the health or safety of any person:
and includes anchors and chain cables;
"seafarer" means any person who:
(a) is employed or engaged on any vessel in any capacity for hire or reward; or
(b) works on a vessel for gain or reward otherwise than under a contract of employment;
but does not include a pilot of a vessel or any person temporarily employed on a vessel while it is in port;
"serious harm" means
"State" means the Republic of Vanuatu;
"STCW" means the Standards of Training, Certification and Watch keeping for Seafarers issued by the International Maritime Organization of the United Nations, as amended from time to time;
"Tribunal" means the Maritime Appeal Tribunal established under section 42;
"vessel" means:
(a) any marine craft used in commercial trade, whether or not it has any means of propulsion; or
(b) any marine craft that is used for game fishing or transport of passengers for hire or reward outside the port areas of Port Vila or Luganville;
and includes:
(c) any fishing vessel, hovercraft, seaplane on the water, non-displacement vessel, mobile offshore drilling unit, submarine or other submersible, barge, lighter or other like vessels; and
(d) any pleasure craft of any size not engaged in any form of commercial trade whose owner voluntarily wishes to register the craft in Vanuatu;
but does not include:
(e) the life boats, rafts, work boats or launches which form part of the equipment of a larger vessel and are being used as such; or
(f) punts, barges or other boats whose sole means of propulsion is by manpower.
2. Definition of accident
An accident is an occurrence that involves a vessel and in which:
(a) a person (other than a stowaway hiding outside the areas normally available to passengers or crew of the vessel) suffers serious harm as a result of:
(i) being on the vessel; or
(ii) direct contact with any part of the vessel, including any part that has become detached from the vessel; or
(iii) direct exposure to the wash of the vessel or interaction (other than direct contact) between the vessel and any other vessel; or
(iv) being involved in the salvage of another vessel;
unless the injuries are self-inflicted or inflicted by another person; or
(b) the vessel sustains damage or structural failure that:
(i) adversely affects the structural strength, performance or seaworthiness of the vessel; or
(ii) would normally require major repair or replacement of the affected component of the vessel; or
(iii) poses a threat to the safety of people on board the vessel; or
(c) there is a complete or partial failure of machinery or equipment that affects the seaworthiness of the vessel; or
(d) there is a loss of, or damage to, or movement of, or change in the state of, the cargo of the vessel which poses a risk to the safety of people on board the vessel, the vessel or any other vessel; or
(e) there is a significant loss of, or significant damage to, property on board the vessel (not being the cargo carried by the vessel), whether or not the loss or damage arises from an interaction between the vessel and any other vessel; or
(f) there is a loss or escape of any substance or thing that:
(i) may result, or has resulted, in serious harm to any person; or
(ii) may pose a risk, or has resulted in damage, to any maritime product or any other property on board the vessel or any other vessel; or
(g) a person is lost at sea (whether or not subsequently found) or is missing; or
(h) the vessel is foundering, capsizing, being abandoned, stranding, missing, or has foundered, capsized, been abandoned, stranded, been in a collision, or has had a major fire on board.
PART 2 – ESTABLISHMENT AND CONSTITUTION
3. Establishment of the Vanuatu Maritime Authority
(1) The Vanuatu Maritime Authority is established.
(2) The Authority:
(a) is a body corporate with perpetual succession; and
(b) is to have an official seal; and
(c) may sue and be sued in its corporate name.
4. Composition of the Authority
(1) The Authority has 6 members who are to be appointed by the Minister in accordance with subsection (3).
(2) The following persons are to be the members:
(a) a person with experience in the shipping or related industry;
(b) a person with experience in international maritime law;
(c) a person with experience in environmental sector;
(d) a person with experience in general administration;
(e) a representative of the Ministry;
(f) a person with experience in the finance or accounting sector.
(3) The Minister must by order appoint:
(a) the members referred to in paragraphs (a) to (e) of subsection (2); and
(b) after consultation with the Minister responsible for finance, the member referred to in paragraph (f) of subsection (2).
(4) (Repealed)
(5) A person may hold office as a member concurrently with any other office.
(6) (Repealed)
(7) (Repealed)
(8) To avoid doubt, any person who on 31 December 2002 was a non-permanent or permanent member of the Authority is deemed to be disqualified from continuing as a non-permanent or permanent member of the Authority on and after 1 January 2003.
Part 3 – OBJECTIVES, FUNCTIONS AND POWERS
5. Principal objectives of the Authority
The principal objectives of the Authority are to:
(a) regulate, administer and promote the Vanuatu maritime transport industry; and
(b) promote the provision of an effective marine pollution prevention programme; and
(c) promote the provision of an effective marine pollution response system.
6. Functions of the Authority
In furtherance of its principal objectives, the Authority has the following functions:
(a) to be responsible for:
(i) the general administration of the Acts specified in the Schedule and any regulations and rules made under those Acts; and
(ii) the collection of fees, charges and other revenue payable under those Acts, regulations or rules;
in accordance with the provisions of those Acts, regulations and rules;
(b) to ensure compliance with the law in respect of the registration, licensing, operation and crewing of vessels;
(c) to ensure that the teaching and training of seafarers by the Vanuatu Maritime College meet the STCW requirements;
(d) to promote compliance with safety standards in the maritime transport industry;
(e) to promote regular reviews of, and improvements and developments in, the maritime transport industry;
(f) to promote compliance with marine pollution prevention standards in the maritime transport industry;
(g) to promote Vanuatu's preparedness for, and ability to respond to, occurrences resulting in the pollution of the marine environment;
(h) to ensure the provision of appropriate distress and safety radio communication systems and navigational aids for shipping;
(i) to ensure compliance with occupational health and safety standards for seafarers;
(j) to promote safety in the maritime transport industry by providing information and advice on maritime safety;
(k) to ensure the investigation of accidents, mishaps and incidents, and the reporting of those investigations as obliged under any convention, memorandum of understanding or other agreement to which Vanuatu is a party;
(l) to maintain and preserve records and documents relating to the Authority’s
functions;
(m) to produce, publish and distribute, whether for payment or otherwise, in paper, electronic or magnetic form such reports, papers or other information as may be conducive to the carrying out of the Authority’s functions;
(n) to provide training schemes, whether by itself or with the co-operation of such other persons or bodies as the Authority thinks fit, for its employees or for other persons concerned with maritime affairs;
(o) to advise the Minister on maritime transport policy;
(p) to undertake such research as is necessary to enable the Authority to perform any of its functions;
(q) to act internationally as the national authority, or representative, of Vanuatu in respect of matters relating to the supervision and regulation of the maritime transport industry;
(r) to provide advice and assistance to the government in relation to matters affecting the maritime transport industry, including:
(i) to prepare and submit reports to the government and other persons or bodies engaged in the marine transport industry in or from within Vanuatu; and
(ii) to make recommendations on the regulation of the maritime transport industry and on legislation relating to the industry;
(s) to assist and advise the government on matters relating to any Act or regulation directly or indirectly relevant to the maritime transport industry;
(t) such other functions as are conferred on it by this Act or any other Act;
(u) such other functions as the Minister may prescribe by notice in the Gazette;
(v) to do anything else that is incidental or conducive to the performance of any of the preceding functions.
7. Powers of the Authority
(1) In addition to any other powers conferred on it by this Act, the Authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2) Without limiting subsection (1), the powers include the following:
(a) to enter into contracts;
(b) to acquire, hold and dispose of real and personal property;
(c) to engage persons to perform services for the Authority;
(d) to do anything incidental to any of the powers specified in this subsection or otherwise conferred on the Authority.
8. Authority to have regard to Government policy
In the performance of its functions and in the exercise of its powers, the Authority must have regard to the policy of the government in relation to maritime transport.
9. Authority to consult
The Authority must, where appropriate, consult with government, commercial, industrial, consumer and other relevant bodies and organisations in performing its functions and exercising its powers.
PART 4 – PERFORMANCE AGREEMENT
10. Performance agreement
(1) Not later than 90 days before the start of a financial year, the Authority must give to the Minister and the Minister responsible for finance a draft performance agreement for the financial year.
(2) A draft performance agreement must set out the following:
(a) the Authority’s budget for the financial year;
(b) the Authority’s statement of objectives for that year;
(c) the methods, including financial and non-financial performance measures, by which the Authority intends to assess the extent to which it meets those objectives during that year;
(d) how the Authority intends to report on the extent to which it has met or is meeting those objectives for that year, and the dates by which interim reports, if any, will be given to the Minister;
(e) any new borrowings that the Authority intends to incur during that year.
(3) Within 60 days after receiving a draft performance agreement from the Authority under subsection (1), or an amended version of it under subsection (4) (whether or not for the first time), the Minister, after consultation with the Minister responsible for finance, must:
(a) approve it; or
(b) reject it and return it to the Authority with directions that it be amended.
(4) If a draft performance agreement is returned to the Authority by the Minister, the Authority must amend the draft agreement in accordance with the Minister’s directions and return it to the Minister for approval.
(5) Subject to subsections (6), (7) and (8), a draft performance agreement approved for a financial year by the Minister constitutes the performance agreement between the Minister and the Authority for that year.
(6) If the Authority fails to comply with subsection (1), the Minister must cause to be prepared a performance agreement.
(7) If the Minister fails to comply with subsection (3) within the required time, the draft performance agreement given to the Minister is taken to have been approved by the Minister as the performance agreement.
(8) If the Authority fails within 30 days to amend a draft performance agreement in accordance with the Minister’s directions under subsection (3) (b), the Minister must amend the draft agreement and the agreement as so amended constitutes the performance agreement.
11. Variation of performance agreements
(1) At any time during a financial year, the Minister and the Authority may in writing agree to amend the performance agreement for that year.
(2) At any time during a financial year, the Minister may direct the Authority to amend any provision of the performance agreement for that year, and the Authority must amend the performance agreement accordingly.
PART 5 – COMMISSIONER OF MARITIME AFFAIRS
12. Commissioner of Maritime Affairs
(1) Subject to the written consent of the Minister, whose consent must not be unreasonably withheld, the Authority must appoint a person as the Commissioner of Maritime Affairs.
(2) The person appointed as the Commissioner of Maritime Affairs must be able to demonstrate experience and competence in maritime affairs and:
- (a) must hold a qualification in engineering, law, accounting, management or maritime studies at undergraduate or postgraduate level from a recognised university; or
(b) have at least 15 years management experience in maritime transport operations.
(3) The Commissioner must be appointed for a period of at least 2 years but not more than 4 years, and may be reappointed.
(4) The Commissioner is responsible to the Authority for the proper administration of this Act and the day to day running of the affairs of the Authority.
(5) The Authority must cause to be published in the Gazette details of the appointment of a person as the Commissioner of Maritime Affairs.
13. Functions and powers of the Commissioner
(1) The Commissioner must perform the following functions and exercise the following powers:
(a) such functions and powers as may be conferred on the Commissioner by this Act or any other Act;
(b) such functions and powers as may be delegated to the Commissioner by the Authority under this Act.
(2) Without limiting subsection (1), the Commissioner must:
(a) ensure the proper operation of the maritime transport system by issuing, granting, recognising or accepting maritime documents; and
(b) take such action as may be appropriate in the public interest, including the carrying out or requiring of inspections and audits, to enforce the provisions of this Act, the Acts specified in the Schedule and any other Act, and the regulations and rules made under any of those Acts.
(3) The Commissioner, in performing any functions or exercising any powers under this or any other Act, is subject to the direct control of the Authority and the decisions of the Tribunal in relation to:
(a) the issuing, granting, suspension, revocation, recognition or acceptance of maritime documents; or
(b) the granting of exemptions in relation to maritime documents; or
(c) the enforcement of the provisions of this Act, the Acts specified in the Schedule, and the regulations and rules made under any of those Acts.
(4) The Commissioner may by instrument in writing and with the written approval of the Authority make temporary rules to deal with emergencies involving the safety of vessels or health or safety of crew members of the vessels.
(5) A rule made under subsection (4) expires after 7 days.
14. Terms and conditions
The Authority must determine the terms and conditions of employment of the Commissioner not provided for by this Act.
15. Acting Commissioner
(1) The Authority may, after consultation with the Minister, appoint a person to act as the Commissioner:
(a) during a vacancy in the office of the Commissioner whether or not an appointment has previously been made to that office; or
(b) during any period, or during all periods, when the Commissioner is absent from duty or from Vanuatu or is, for any reason, unable to perform the duties of that office.
(2) Anything done by or in relation to a person purporting to act pursuant to an appointment made under this section is not invalid merely because there was a defect or irregularity in connection with the appointment.
16. Delegation of Minister's functions or powers to Authority
(1) Subject to subsection (2), the Minister may delegate to the Authority all or any of
the Minister’s functions or powers under this Act.
(2) The Minister must not delegate his or her power to make regulations or rules.
(3) The Authority must not delegate any function or power that has been delegated to the Authority by the Minister without first obtaining the written consent of the Minister.
17. Delegation of Authority's functions or powers to employees of Authority
(1) The Authority may delegate to the Commissioner or any employee of the Authority all or any of its functions or powers under this Act.
(2) The Commissioner or an employee of the Authority to whom a function or power has been delegated must not delegate the function or power to another person without first obtaining the written consent of the Authority.
(3) A delegation may be made to:
- (a) a specified employee of the Authority; or
- (b) employees of a specified class; or
- (c) to the holder or holders for the time being of a specified office or specified class of offices of the Authority.
(4) The Commissioner or an employee of the Authority purporting to act under a delegation must, when reasonably requested to do so, produce evidence of his or her authority to act.
18. Delegation of Commissioner's functions or powers to employees of Authority
(1) The Commissioner may, with the written consent of the Authority, delegate to an employee of the Authority any or all of the Commissioner’s functions or powers under this Act.
(2) A delegation must not include the power to delegate.
(3) A delegation may be made to:
- (a) a specified employee of the Authority; or
- (b) employees of a specified class; or
- (c) to the holder or holders for the time being of a specified office or specified class of offices of the Authority.
(4) An employee of the Authority purporting to act under a delegation must, when reasonably requested to do so, produce evidence of his or her authority to act.
19. Delegation of Authority's or Commissioner's functions or powers to persons outside Authority
(1) The Authority may delegate to any person who is not an employee of the Authority any or all of the Authority's functions or powers under this Act, other than the power to borrow money under section 22.
(2) Subject to subsection (3), the Commissioner may delegate to any person who is not an employee of the Authority any or all of the Commissioner’s functions or powers under this Act.
(3) The Commissioner must not delegate a function or power without first obtaining the written consent of the Authority to the delegation.
(4) A person to whom a function or power has been delegated must not delegate the function or power to another person without first obtaining the written consent of the Authority.
(5) A delegation may be made to a specified person or persons of a specified class, or to the holder or holders for the time being of a specified office or specified class of office.
(6) A person purporting to act under a delegation must, when reasonably requested to do so, produce evidence of his or her authority to act.
(7) Any person who exercises any function or power under a delegation under this section may charge the person for whom the function or power is exercised a reasonable fee for the exercise of that function or power.
20. Effect of delegation
Where a section of this Act confers power on a person or the Authority (in this section called the "delegator") to delegate a function or power:
(a) the delegation must be made by instrument in writing; and
(b) the delegation may be made either generally or as otherwise provided by the instrument of delegation; and
(c) a function or power so delegated, when performed or exercised by the delegate, is for the purposes of this Act, taken to have been performed or exercised by the delegator; and
(d) a delegation of a function or power by the delegator does not prevent the performance or exercise of the function or power by the delegator; and
(e) subject to any general or special directions given or conditions imposed by the delegator, the delegate may exercise a function or power so delegated in the same manner and with the same effect as if it had been conferred on the delegate by this Act and not by delegation; and
(f) in the absence of proof to the contrary, the delegate is presumed to be acting in accordance with the terms of the delegation when the delegate purportedly acts pursuant to the delegation; and
(g) the delegation may be given for a specified period, but is revocable at will by the delegator.
PART 7 – FINANCES
21. Revenues of the Authority
(1) The revenues of the Authority consist of the following:
(a) such amounts as are appropriated by the Parliament; and
(b) such grants as may be provided to the Authority by the government or from other sources.
(2) The revenues of the Authority are limited to the amounts received under paragraphs (a) and (b) of subsection (1).
(3) The Authority must pay all fees, charges and any other amounts received by the Authority under this Act or any other Act administered by the Authority into the Public Fund within the meaning of the Public Finance and Economic Management Act [Cap. 244] within 7 days after receiving such fees, charges or other amounts.
22. Borrowing of money by the Authority
The Authority may borrow money subject to the written approval of the Minister responsible for finance.
23. Regulations for fees and charges
(1) On the advice of the Authority, the Minister may by Order make regulations prescribing or providing for the fixing of fees or charges, or both, for the following purposes:
(a) to provide funds for the establishment, maintenance and operation of facilities, services and works under this Act;
(b) to meet, or assist in meeting, the costs and expenses incurred by the Authority, the Maritime Appeal Tribunal or the State in the exercise of functions or powers, the performance of duties or the provision of services under this Act;
(c) to meet, or assist in meeting, the costs and expenses incurred by the Authority, the Commissioner or the State in providing facilities, services and works for maritime transport purposes.
(2) Different rates of fees or charges, or both, may be prescribed or fixed in respect of different classes of persons, vessels, offshore installations, pipelines, maritime products or any other thing.
(3) The regulations may:
(a) specify the persons by whom, and to whom, any fees or charges, or both, are payable; or
(b) prescribe, or provide for the fixing of, additional fees or charges, or both, for services or work carried out outside normal working hours, at weekends or on statutory holidays; or
(c) prescribe, or provide for the fixing of, charges for reimbursement of travel, accommodation and other expenses; or
(d) provide for the refund, waiver or rebate, or enabling the refund, waiver or rebate, of any fee or charge, or both; or
(e) prescribe, or provide for the fixing of, a date by which any fee or charge is to be paid; or
(f) prescribe, or provide for the fixing of, a discount for early payment of any fee or charge, or a penalty for late payment, or both; or
(g) prescribe any returns, and the conditions relating to such returns, to be made by persons by whom any fees or charges are payable.
24. Application of surplus
(1) All revenue of the Authority not applied for the purpose of the operation of the Authority, or the administration of the Acts listed in the Schedule and the regulations and rules made under those Acts, must be transferred to government general revenue at least once during a year.
(2) (Repealed)
25. Authority’s financial year
The financial year of the Authority begins on the 1st day of January of each year and ends on the 31st day of December of that year. However, the first financial year of the Authority begins on the date of commencement of this Act and ends on the 31st day of December in that year.
26. Accounts and audit
4. The auditor or Auditor-General, as the case requires, must in his or her report state:
(a) whether he or she has obtained all the information and explanations which to the best of his or her knowledge and belief were necessary for the purposes of that audit; and
(b) whether in his or her opinion the Authority has kept proper books of account, including records of all its assets;
(c) whether in his or her opinion the Authority’s balance sheet and profit and loss account have been properly prepared and whether in his or her opinion a true and fair view is given:
(i) in the case of the balance sheet – of the state of the Authority’s affairs as at the end of its financial year; and
(ii) in the case of the profit and loss account – of the Authority’s profit or loss for the financial year.
(2) Within 3 months after the completion of the audit of its accounts for any financial year, the Authority must prepare and submit to the Minister a written report of its operations for that year together with a copy of the audited accounts for that year.
(3) The Minister must lay a copy of such report and audited accounts before Parliament at the earliest possible opportunity.
PART 8 – ADMINISTRATIVE MATTERS
Division 1 – Members
27. Fees and allowances
(1) Members of the Authority are entitled to such fees and allowances as are prescribed by the regulations.
(2) Regulations made under subsection (1) are not to come into force unless they have been approved in writing by the Minister in consultation with the Minister responsible for finance.
28. Chairperson and Deputy Chairperson
(1) The Authority must nominate for the Minister’s approval one of its members to be the Chairperson and another member to be the Deputy Chairperson.
(2) If a nomination is not approved by the Minister, the Authority must make another nomination.
(3) The Chairperson and Deputy Chairperson each hold office until removed by the Minister.
29. Acting appointments
(1) The Deputy Chairperson must act as the Chairperson:
(a) during a vacancy in the office of Chairperson whether or not an appointment has previously been made to that office; or
(b) during any period, or during all periods, when the Chairperson is absent from duty or from Vanuatu or is, for any reason, unable to perform the duties of that office.
(2) The Minister may appoint a member to act as the Deputy Chairperson:
- (a) during a vacancy in the office of Deputy Chairperson whether or not an appointment has previously been made to that office; or
(b) during any period, or during all periods, when the Deputy Chairperson is absent from duty or from Vanuatu or is, for any reason,
unable to perform
the duties of that office.
(3) A person appointed to act under this section must not continue to act for more than 6 months.
(4) Anything done by or in relation to a person purporting to act pursuant to an appointment made under this section is not invalid merely because there was a defect or irregularity in connection with the appointment.
30. Resignation and removal of members
(1) A person may resign from the Authority by notice in writing to the Minister.
(2) The Minister may terminate the appointment of a member, after consultation with the other members of the Authority:
(a) for misbehaviour; or
(b) if the member is absent from 4 consecutive meetings of the Authority, unless the member is excused by the Minister for having been absent from those meetings; or
(c) if the member becomes bankrupt; or
(d) if the member has been convicted by a court for an offence involving dishonesty; or
(e) if the performance of the member has been unsatisfactory or ineffective for a significant period of time; or
(f) if the member is incapacitated by physical or mental illness.
(3) A person is disqualified from being appointed or continuing as a member of the Authority if the person:
(a) is or becomes a member of Parliament; or
(b) is or becomes a member of a local government council; or
(c) is or becomes a member of a municipal council.
(4) If the office of a member becomes vacant under subsection (1), (2) or (3), the Minister may, subject to subsection (5), appoint another person to act in that office for a period not exceeding 6 months.
(5) The power provided for by subsection (4) is exercisable only subject to any conditions to which the exercise of the original power was or would be subject.
(6) A member of the Authority referred to in section 4(2) ceases by force of this subsection to be a member of the Authority if:
(a) the Minister who appointed the member ceases to be the Minister; or
(b) in the case of a member who is a political adviser for the Minister, he or she ceases to be a political adviser for the Minister.
(7) To avoid doubt, a member of the Authority referred to in section 4(2) who was appointed before the commencement of this Act, ceases by force of this subsection to be a member of the Authority if the Minister who appointed the member ceases to be a Minister.
30A. Secretary
(1) The Authority must appoint a person to act as secretary.
(2) The Secretary is responsible for the proper recording of the business taking place at each meeting of the Authority as provided for in section 32.
(3) If the secretary is not in attendance at a meeting, the Authority must appoint a temporary secretary for that meeting to record the business taking place at that meeting.
31. Powers of Authority not affected by membership vacancy
The powers of the Authority are not affected by any vacancy in its membership.
Division 2 – Meetings
32. Meetings
(1) The Authority must hold such meetings as are necessary for the efficient performance of its functions.
(2) The Chairperson or the Deputy Chairperson:
- (a) may convene a meeting at any time; and
- (b) must convene a meeting if he or she receives a written request signed by at least 2 members.
(3) The Chairperson, if present, must preside at each meeting of the Authority. However, if the Chairperson is absent from any meeting, the Deputy Chairperson must preside at the meeting. If the Deputy Chairperson is also absent, the members present must appoint a member to preside at the meeting.
33. Quorum and voting
(1) At a meeting, a quorum consists of four members.
(2) Questions arising at a meeting are to be determined by a majority of the votes of the members present and voting.
(3) If the voting at a meeting is equal, the person presiding at the meeting has a casting vote.
(4) The Commissioner of Maritime Affairs cannot vote at a meeting.
34. Participating in meetings by telephone etc.
(1) The contemporaneous linking together by telephone or any other means of communication of a number of members, whether or not one or more of the members is out of Vanuatu, is taken to constitute a meeting of the Authority if:
(a) notice, in writing or by electronic means, of 72 hours, or such shorter period as 4 members determine, has been given of the proposed meeting; and
(b) the number of members taking part in the meeting by telephone or other means of communication is not less than the quorum; and
(c) each of the members taking part:
(i) is linked by telephone or such other means for the purposes of the meeting; and
(ii) at the start of the meeting, acknowledge the presence of each of the other members for the purpose of the meeting; and
(iii) is able throughout the meeting to hear each of the other members taking part; and
(iv) on any vote, individually express his or her vote to the meeting.
(2) A member is taken to be present, and to have formed part of the quorum, at all times during the meeting unless the member cannot hear or be heard by the other members.
35. Resolutions without meetings
(1) A resolution in writing signed, or assented to in writing, by not less than 4 members, is valid and effective as if it had been passed at a meeting of the Authority duly called and constituted.
(2) Any such resolution may consist of several documents in like form each signed, or purported to have been signed, by one or more members.
36. Authority may regulate its procedures
Subject to this Act, the Authority may regulate its procedures in such manner as it thinks fit.
Division 3 – Disclosure of interests
37. Disclosure of interests
(1) A member who has direct or indirect pecuniary interest in:
(a) the Authority's performance of any function or exercise of any power; or
(b) any arrangement, agreement or contract, made or entered into, or proposed to be made or entered into, by the Authority;
must, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of the interest in accordance with this section.
(2) A member must disclose the nature of his or her direct or indirect pecuniary interest in a matter to the Minister if the person is the Chairperson or the Deputy Chairperson. In any other case, the member must disclose the nature of his or her interest to the Chairperson or Deputy Chairperson.
(3) A member of the Authority who has a direct or indirect pecuniary interest in a matter being considered, or about to be considered, at a meeting of the Authority must disclose the nature of the interest at the meeting.
(4) A disclosure under subsection (3) is to be recorded in the minutes of the meeting of the Authority and the member concerned must not:
(a) be present during any deliberation of the Authority in relation to that matter; or
(b) take part in any decision of the Authority in relation to that matter.
(5) A member must be disregarded in determining whether or not there is a quorum present for any part of a meeting of the Authority during which a deliberation or decision of the Authority relating to the matter in which the member has an interest takes place or is made.
Division 4 – Staff and consultants
38. Appointment of staff
(1) The Commissioner may appoint such employees, including employees on secondment from other organisations, as he or she thinks necessary for the efficient performance of the Authority's functions.
(2) The Commissioner may terminate or suspend the employment of any of the Authority's employees.
(3) No member or employee of the Authority is personally liable for:
- (a) any liability of the Authority; or
- (b) any act done or omitted to be done in good faith by the Authority, the Commissioner or any employee of the Authority in the exercise or purported exercise of a function or power of the Authority or the Commissioner.
(4) The Authority must operate a personnel policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring:
- (a) good and safe working conditions; and
- (b) the impartial selection of suitably qualified people for appointment; and
- (c) recognition of the aims and aspirations of Ni-Vanuatu; and
- (d) opportunities for the enhancement of the abilities of individual employees; and
- (e) recognition of the aims and aspirations, and the cultural differences, of ethnic and minority groups; and
- (f) no discrimination on the basis of sex or religion; and
- (g) no discrimination against people with disabilities.
39. Consultants, specialists, etc.
(1) The Authority may appoint consultants, specialists or advisory committees to advise on the exercise of functions or powers of the Authority.
(2) The Authority may:
- (a) pay to any such persons or members of committees such remuneration by way of fees, salary or allowances, and such travelling allowances and expenses, as the Authority thinks fit; and
- (b) contribute towards the remuneration, travelling allowances and expenses of any such persons or members of committees, whose employers provide services for the Authority.
Division 5 – Miscellaneous
40. Committees
(1) The Authority may constitute, reconstitute and dissolve standing or special committees.
(2) The Authority may refer to a committee any matters for consideration, inquiry or action.
(3) The Authority must establish rules of procedure for committees.
(4) A committee may include among its membership persons who are not members of the Authority.
(5) In this section, "committee" includes a sub-committee.
41. Execution of documents
(1) The Authority may, in writing, authorise any one or more members, or employees, of the Authority to execute any deeds, instruments, contracts or other documents on behalf of the Authority, and may in the same manner revoke such authority.
(2) Without limiting subsection (1), an authority may be given to:
- (a) the Commissioner; or
- (b) any specified employee; or
- (c) any employee of a specified class; or
- (d) the holder for the time being of any specified office or of any office of a specified class.
(3) A person purporting to execute any document on behalf of the Authority under an authority is taken to be acting in accordance with the authority in the absence of proof to the contrary.
PART 9 – MARITIME APPEAL TRIBUNAL
42. Establishment and appointment
(1) The Maritime Appeal Tribunal is established.
(2) The Tribunal consists of three members who are to be appointed by the Chief Justice of the Supreme Court of Vanuatu.
(3) One member must be a judicial officer and, if possible, must have a knowledge of
maritime affairs. One of the other members must have relevant experience in maritime affairs, and the other member must have relevant
experience in commercial matters.
(4) The Chief Justice must appoint the member who is a judicial officer to be the
Chairperson of the Tribunal.
(5) Each member must be appointed for a term of not less than 2 years and not more than 4 years, and is eligible for reappointment.
43. Termination and resignation
(1) A member of the Tribunal ceases to hold office if he or she:
(a) becomes bankrupt; or
(b) is convicted of any offence punishable by imprisonment or a fine in excess of VT 300,000.
(2) The Chief Justice may remove a member of the Tribunal from office if the person because of physical or mental incapacity becomes incapable of performing the functions of the office.
(3) A member of the Tribunal may at any time resign by notice in writing to the Chief Justice.
44. Costs
The Tribunal may in its discretion award costs against any party.
45. Applications
(1) An application to the Tribunal:
(a) to determine an appeal from a decision of a licensing officer under the Shipping Act [Cap 53]; or
(b) to determine a matter under section 15 or 150 of the Maritime Act [Cap 131]; or
(c) to determine a matter under section 5 of the Maritime Regulations (Order 25 of 1990); or
(d) to determine any other matter which the Tribunal is authorised to determine by or under this or any other Act;
must be in writing and it must specify the grounds for the application. The application must be lodged with the Commissioner who must send it to the Tribunal.
(2) An application to the Tribunal must be considered at such place and at such time as the Tribunal considers convenient having regard to the nature of the matter to be decided, and may be adjourned from time to time and place to place.
(3) The applicant is entitled to appear before the Tribunal in support of the application or be represented by counsel, a solicitor or nominee.
46. Evidence
The Tribunal may receive as evidence any statement, document, information or matter that may, in the opinion of the Tribunal, assist the Tribunal to deal effectively with the application being considered, whether or not the evidence would be admissible in a court of law.
Except as otherwise provided by this Part, the Tribunal may determine its own procedure, however, it must follow the rules of natural justice.
An application heard by the Tribunal is to be determined by the decision in writing of the Tribunal. The decision of the Tribunal is final and conclusive and must not be questioned in any court or other proceedings.
49. Remuneration
(1) The Authority must fix and pay the remuneration of the members of the Tribunal.
(2) The Authority must pay reimbursement of expenses of members upon submission of claims which are supported by receipts.
PART 10 – MISCELLANEOUS
50. Powers of entry in respect of works
(1) An officer, employee or nominee of the Authority authorised by it in writing or a person under the immediate control of such an officer, employee or nominee may:
(a) enter upon any land for the purpose of gaining access to cables, wires, navigational aids or other equipment owned by the State, whether or not such equipment was installed before the commencement of this Act; and
(b) perform any act or operation necessary for the purpose of inspecting such equipment for compliance with the requirements of this or any other Act.
(2) The officer, employee or nominee:
- (a) must have with him or her, and must produce on initial entry and subsequently if required to do so, evidence of his or her identity and authority; and
- (b) must give reasonable notice to the occupier of the land of his or her intention to enter the land; and
- (c) can enter the land only at reasonable times during the day.
(3) Subsection (2) does not apply if the entry is necessary in circumstances of probable danger to life or property.
50A. Removal of wrecks
(1) If a vessel or part of a vessel is wrecked, stranded, sunk or abandoned on or near the coasts of any island of Vanuatu or in Vanuatu waters, the Authority may, by notice in writing, require the owner, operator or master of the vessel to do either or both of the following:
(a) to raise, remove or destroy the wreck, or a specified part of the wreck, within a time specified in the notice;
(b) to place a lighted buoy or another structure to indicate the position of the wreck or any part of the wreck until it is raised, removed or destroyed.
(2) If the owner, operator or master does not comply with a notice given under subsection (1), the Authority may do all or any of the following:
(a) raise, remove or destroy the wreck, or a part of the wreck, in any manner it sees fit;
(b) place a lighted buoy or another structure to indicate the position of the wreck or any part of the wreck until it is raised, removed or destroyed;
(c) sell the wreck or a part of the wreck.
(3) The Authority may out of the proceeds of any sale under subsection (2) (c) retain a sum to cover the expenses incurred:
(a) in taking any action under subsections (2) (a) and (2) (b); and
(b) in selling the wreck or a part of the wreck.
(4) If the proceeds of sale are insufficient to cover expenses incurred in taking any action under subsection (2)(a) or (2)(b), or in selling the wreck or a part of the wreck, the Authority may recover the balance of any such expenses incurred by the Authority from all or any of the following:
(a) the owner of the vessel;
(b) the operator of the vessel;
(c) the master of the vessel.
(5) If the wreck is destroyed and a sale is not possible, the Authority may recover the expenses incurred by the Authority in destroying the wreck from all or any of the following:
(a) the owner of the vessel;
(b) the operator of the vessel;
(c) the master of the vessel.
(6) The expenses incurred in taking any action under subsections (2)(a) and (2)(b) and in selling the wreck or a part of the wreck, must be paid out of the proceeds of the sale before all other claims by any other persons on the vessel are paid.
(7) This section applies not only to a vessel or part of a vessel that is wrecked, stranded, sunk or abandoned on or after the commencement of this section, but also to a vessel or part of a vessel that was wrecked, stranded, sunk or abandoned before the commencement of this section.
(8) If a vessel is being operated by a person (not being the person who owns the vessel), the person who has full possession and control of the vessel is the operator of the vessel.
(9) For the purposes of this section:
"master" of a vessel means the person having command or charge of the vessel at the time the vessel or a part of the vessel was wrecked, stranded, sunk or abandoned.
"operator" of a vessel means the operator of the vessel in accordance with subsection (8) at the time the vessel or a part of the vessel was wrecked, stranded, sunk or abandoned.
"owner" of a vessel means the owner of the vessel at the time the vessel or a part of the vessel was wrecked, stranded, sunk or abandoned.
"Vanuatu waters" means waters of the exclusive economic zone, territorial sea, archipelagic waters, and internal waters as defined in the Maritime Zones Act [Cap. 138] and any other waters over which Vanuatu claims fisheries jurisdiction.
50B. Recovery of costs and expenses with respect to certain pollution
(1) This section applies if:
(a) a discharge of oil or an oily mixture occurs into Vanuatu waters from a vessel; or
(b) a discharge of another liquid substance, or of a mixture containing a liquid substance, being a substance or mixture whether or not carried as cargo or part cargo in bulk on a vessel, occurs into Vanuatu waters from the vessel; or
(c) the Authority is of the opinion that there is a probability of such a discharge occurring.
(2) The Authority may take such action as it thinks fit:
(a) to prevent or limit the discharge; or
(b) to disperse or contain any oil or oily mixture, or other liquid substance or mixture containing a liquid substance, that has been discharged; or
(c) to remove any oil or oily mixture, or other liquid substance or mixture containing a liquid substance, from waters or land affected by any discharge; or
(d) to minimize the damage from pollution resulting from or likely to result from any discharge.
(3) The Authority may recover all expenses incurred by it in respect of action taken by it under subsection (2) from all or any of the following:
(a) the owner of the vessel from which the discharge occurred or there was a probability of a discharge occurring;
(b) the operator of the vessel from which the discharge occurred or there was a probability of a discharge occurring;
(c) the master of the vessel from which the discharge occurred or there was a probability of a discharge occurring;
(d) any other person whose act caused the discharge or the probability of a discharge.
(4) The Minister may, on the advice of the Authority, make orders to the effect that a specified liquid or mixture is, or a specified class of liquids or mixtures is, exempt from this section.
(5) If a vessel is being operated by a person (not being the person who owns the vessel), the person who has full possession and control of the vessel is the operator of the vessel.
(6) For the purposes of this section:
"master" of a vessel means the person having command or charge of the vessel at the time of a discharge or the probability of a discharge.
"operator" of a vessel means the operator of the vessel in accordance with subsection (5) at the time of a discharge or the probability of a discharge.
"owner" of a vessel means the owner of the vessel at the time of a discharge or the probability of a discharge.
"Vanuatu waters" means waters of the exclusive economic zone, territorial sea, archipelagic waters, and internal waters as defined in the Maritime Zones Act [Cap. 138] and any other waters over which Vanuatu claims fisheries jurisdiction.
51. Vesting of certain rights, etc.
On the commencement of this Act, all rights, powers, privileges and immunities (whether actual, contingent or prospective) enjoyed by the Marine Division of the Department of Ports and Harbour in carrying out its duties and responsibilities with regard to marine regulatory functions vest in the Authority.
52. Exemption from taxes
The Authority is exempt from:
(a) the payment of all taxes (other than value added tax under the Value Added Tax Act [Cap. 247]), levies and licence fees on its income and operations; and
(b) the payment of all taxes (other than value added tax under the Value Added Tax Act [Cap. 247]), duties and rates on its property and documents.
53. Use of words "Maritime Authority" or "Maritime Appeal Tribunal"
(1) A company or other body must not be incorporated or registered under a name that:
(a) contains the words "Maritime Authority" or "Maritime Appeal Tribunal"; or
(b) in the opinion of the Registrar of Companies is similar to those words and is likely to deceive.
(2) Subsection (1) does not apply to the Authority or any person who is authorised by the Authority for the purposes of this section.
54. Power to make regulations and rules
(1) On advice of the Authority, the Minister may by Order make regulations and rules not inconsistent with this Act for the better carrying out or to give effect to the provisions of this Act.
(2) In particular, regulations may be made prescribing penalties not exceeding VT 50,000 or a term of imprisonment not exceeding 3 months, or both, for offences against or a contravention of any of the regulations
55. General provisions relating to offences
(1) Any person who contravenes or fails to comply with any provision of this Act is guilty of an offence and is punishable on conviction:
(a) if the offender is an individual – to a fine of up to VT 100,000 or imprisonment for 6 months, or both; or
(b) if the offender is not an individual – to a fine of up to VT 300,000.
(2) If an offence against this Act committed by a body corporate is proved to have been committed with the consent, or to be attributable to any neglect on the part, of any director, manager, secretary or other similar officer of the body corporate, he or she is taken to be guilty of that offence.
(3) Subsection (2) does not affect the liability of the body corporate.
SCHEDULE
(Section 6)
Specified Acts
______________________________
*Editor’s note: Cap. 113 has since been repealed
Table of Amendments
1 Amended by Act 29 of 2002
4 Substituted by Act 29 of 2002
4(4), (6), (7) Repealed by Act 2 of 2004
10(1) Amended by Act 29 of 2002
10(3) Amended by Act 29 of 2002
12(4) Substituted by Act 29 of 2002
13(3) Amended by Act 29 of 2002
13(4) Substituted by Act 29 of 2002
21 Substituted by Act 29 of 2002
24(1) Amended by Act 29 of 2002
24(2) Repealed by Act 29 of 2002
26(3) Substituted by Act 29 of 2002
26(4) Amended by Act 29 of 2002
27 Substituted by Act 29 of 2002
28(1) Amended by Act 29 of 2002
30 Substituted by Act 29 of 2002
30(6) Inserted by Act 9 of 2003, amended
by Act 2 of 2004
30(7) Inserted by Act 2 of 2004
30A Inserted by Act 29 of 2002
32(2) (b) Amended by Act 29 of 2002
33(1) Amended by Act 29 of 2002
33(4) Amended by Act 29 of 2002
34(1) (a) Amended by Act 29 of 2002
35(1) Amended by Act 29 of 2002
39(1) Amended by Act 29 of 2002
39(2) Amended by Act 29 of 2002
50A Inserted by Act 9 of 2003
50A (9) Inserted definition from Cap. 158
50B Inserted by Act 9 of 2003
50B (6) Inserted definition from Cap. 158
52 Amended by Act 29 of 2002
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