UK Offence Report

1 If a cargo transfer or bunkering operation is carried out in contravention of these Regulations, the…

regulation 12(1) of The Merchant Shipping (Ship-to-Ship Transfers) Regulations 2020

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 If a cargo transfer or bunkering operation is carried out in contravention of these Regulations, the owner, the manager and the master of each ship carrying out the cargo transfer or bunkering operation is guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
an owner
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that an owner meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 12(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Merchant Shipping (Ship-to-Ship Transfers) Regulations 2020, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Either way — magistrates’ court or Crown Court
Maximum fine
Unlimited
Maximum prison (summary)
Not determined

stated as £25000, but uncapped in England and Wales by LASPO 2012 s.85(1) ("£5,000 or more, however expressed") for offences committed on or after 12 March 2015.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
31 January 2020
In force from
26 February 2020
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations govern transfers consisting wholly or mainly of oil between ships, known as ship-to-ship transfers. The two types of ship-to-ship transfer which are governed within the Regulations are cargo transfers and bunkering operations. The Regulations prohibit cargo transfers unless they are carried out within harbour authority waters or within the permit area (regulation 4). They also provide that cargo transfers must not be carried out within harbour authority waters unless they are authorised by the harbour authority or the cargo transfer is a lightening operation (to lighten the ship to enable it to move to shallower waters) or a consolidation operation (to consolidate cargo for bunkering operations) (regulation 5). The relevant harbour authority may provide authorisation under an oil transfer licence granted by the Secretary of State, having considered the programme’s likely impact on the environment by the procedure set out in Schedules 1 and 2. Where cargo transfers are likely to have a significant effect on a European site, the procedure implements Article 6 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (O.J. No. L 206, 22.07.1992, p. 7), which will continue to apply to the United Kingdom during the implementation period. A harbour authority may only authorise a cargo transfer which is within the scope permitted by the harbour authority’s oil transfer licence (regulation 7). If a harbour authority becomes aware of a material change in circumstances following the grant of their oil transfer licence, they are required to apply for an amendment to the existing licence within three months (regulation 8). There are transitional provisions in the Regulations (regulation 9) which provide that oil transfer licences granted under the Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010 (S.I. 2010/1228) are to be treated as though they have been granted under these Regulations. A harbour authority must apply for an amended oil transfer licence within three months, if they are aware of a change of circumstances when the Regulations come into force. Any authorisation that a harbour authority provided prior to the Regulations coming into force for a cargo transfer to be carried out after the Regulations come into force, will be treated as valid for the purposes of these Regulations provided that certain criteria are met. The purpose of these provisions is to ensure a smooth transition to the new regime. The Regulations prohibit ship-to-ship cargo transfers of oil to or from a ship of 150GT or more in controlled waters, unless prior notice has been given to the Secretary of State (regulation 4). A ship involved in a transfer to or from a ship of 150GT or more is also required to carry and comply with a ship-to-ship transfer operations plan approved by its flag State, if the transfer is carried out within United Kingdom waters or controlled waters (regulation 4). These provisions implement Chapter 8 of Annex I of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (“MARPOL”). Bunkering operations in United Kingdom waters are prohibited, unless the ships carrying out the operation are within harbour authority waters (regulation 10). The Secretary of State can grant exemptions in relation to prohibited cargo transfers and bunkering operations (regulation 11). The Regulations provide that carrying out a cargo transfer or bunkering operation in contravention of the Regulations is an offence by the owner, manager and master of each ship involved in the transfer or operation and the Regulations also set out the offences which apply to harbour authorities (regulation 12). A consequential amendment is made to the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) (regulation 13). The amendment simply substitutes a reference to the Merchant Shipping (Ship-to-Ship Transfers) Regulations 2010 (S.I. 2010/1228) with a reference to these Regulations. The Secretary of State must review the operation and effect of these Regulations and publish a report within five years after they come into force and within every five years thereafter (regulation 14). Following such a review, it will fall to the Secretary of State to consider whether the Regulations should remain as they are, or be revoked or amended. A further instrument would be needed to revoke the Regulations or to amend them. Merchant Shipping Notices are published by the Maritime and Coastguard Agency and copies may be obtained from M-Notices, Subscriptions, PO Box 362, Europa Park, Grays, Essex RM17 9AY (telephone number 01375 484 548; fax 01375 484 556; email orders mnotices@ecgroup.co.uk). Copies may also be downloaded from https://www.gov.uk/government/collections/merchant-shipping-notices-msns#contents – that website also has details of any amendments or replacements. MARPOL (including its Protocols, Annexes and amendments) and the International Convention on Tonnage Measurement of Ships, 1969, can be obtained from the International Maritime Organization (“the IMO”) at IMO Publishing, 4 Albert Embankment, London SE1 7SR, www.imo.org/publications; email: sales@imo.org; telephone: 0207 735 7611. The text of IMO Resolutions may be obtained in hard copy from the IMO Library, at the same address as IMO Publishing. Unless otherwise specified, copies of the Command Papers referred to in this instrument are not available electronically but are available for inspection free of charge but by appointment at the Parliamentary Archives, Houses of Parliament, London SW1A 0PW; email archives@parliament.uk; telephone 0207 219 3074. A hard copy of the United Nations Convention on the Law of the Sea for the protection and preservation of the marine environment is available for inspection free of charge but by appointment at the Parliamentary Archives, Houses of Parliament, London SW1A 0PW (catalogue number: HL/PO/JO/10/11/3186/287). An electronic copy of Cm. 4524 can be found at https://treaties.fco.gov.uk/awweb/pdfopener?md=1&did=69421. A full Impact Assessment has not been produced for this instrument as it is not expected to have a significant impact on the public or voluntary sectors and only minimal impact on the private sector is foreseen. A Regulatory Triage Assessment of the effect that this instrument will have on the costs of business and the voluntary sector is published with the Explanatory Memorandum alongside these Regulations at www.legislation.gov.uk.

Read the full note and every offence in this instrument

How this became law

This instrument became law without a debate or a vote. Under the negative procedure it took effect unless a motion to stop it succeeded, and none was tabled.

Neither House could have amended it. A statutory instrument is put to each House as a whole thing, to be approved or not; the Houses can reject an instrument or record their regret, but they cannot change a word of it. That is the constitutional position for every offence on this site.

The full procedural history →

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source