Shipping and Port Control (Amendment) Bill 1999

Amend the Shipping and Port Control Ordinance.

Enacted by the Legislative Council.

1. Short title

This Ordinance may be cited as the Shipping and Port Control (Amendment) Ordinance 1999.

2. Long title amended

The long title to the Shipping and Port Control Ordinance (Cap. 313) is amended by adding "and regulation for and control of construction or reclamation works in which vessels are used" before "and for other matters".

3. Interpretation

Section 2 is amended---

(a) in the definition of "cargo", by adding ", container, pallet, material and solid ballast" after "goods";

(b) in the definition of "use of signals of distress regulations", by repealing "(使用遇險信號規例)"
and substituting "(《遇險訊號規例》)";

""material" (物料) includes construction material, waste material and debris;".

4. Application of collision regulations and
use of signals of distress regulations

Section 10 is amended---

(a) in subsections (1) and (2), by repealing "使用遇險信號規例" and substituting
"《遇險訊號規例》";

(b) in subsection (5)---

(i) by repealing "使用遇險信號規例" and substituting "《遇險訊號規例》";

(ii) by repealing "信號" wherever it appears and substituting "訊號".

5. Power to detain vessels

Section 12(1) is amended by repealing "section 11" and substituting "section 11B".

6. Part heading substituted

The heading to Part V is repealed and substituted by "Works".

7. Interpretation

Section 36 is amended---

(a) in the definition of "lifting appliance"---

(i) by adding "excavator, pile driver, pile extractor," after "sheer legs,";

(ii) by repealing "cargo handling" and substituting "works";

(b) in the definition of "lifting gear", by repealing "cargo handling" and substituting "works";

(i) in paragraph (b), by repealing "and";

(ii) in paragraph (c), by adding "and" at the end;

(iii) by adding---

"(d) marine construction, means any machinery, equipment or appliance provided or used for that purpose;";

(d) in the definition of "person in charge of works"---

(i) in paragraph (a)---

(A) by repealing "on or to" and substituting "on, to or by means of";

(B) by repealing "or" at the end;

(ii) in paragraph (b), by adding "or" at the end;

(iii) by adding---

"(c) any other person having for the time being in command or charge of any works being carried out on, to or by means of a vessel;";

(e) in the definition of "works"---

(i) in paragraph (b), by repealing "or";

(ii) in paragraph (c), by repealing the full stop and substituting "; or";

(iii) by adding---

"(d) marine construction.";

(f) by adding---

""approved code" (《守則》) means a code of practice issued under section 44A;

"crane" (起重機) means any appliance equipped with mechanical means of hoisting and lowering a
load and for transporting the load while suspended; and also all chains, ropes, swivels, or other
tackle (down to and including the hook), used in the operation of the appliance; but does not
include---

(a) a hoist block running on a fixed rail or wire;

(b) a stacker or conveyer whereby a load is moved by means of a belt or platform; or

"marine construction" (海上建造工程) means any construction or reclamation works, including
dredging, drilling,

pipe laying, buoy laying, cable laying and caisson construction, in which vessels are used;".

8. Application

Section 37 is amended---

(a) in subsection (1), by repealing "Subject to subsection (2), this" and substituting "This";

(b) by repealing subsections (1)(a) and (2).

9. Powers of Director and inspectors

Section 39(3) is amended by repealing "of $10,000" and substituting "at level 4".

10. Restriction on carrying out repairs
or breaking up of vessels

Section 40 is amended---

(a) in subsection (1), by repealing "subsection (2)" and substituting "subsections (1A) and (2)";

(b) by adding---

"(1A) Subsection (1) does not apply to any vessels of 50 metres or less in length unless the Director gives written notification to the person in charge of works that subsection (1) applies to that vessel.";

11. Safe atmosphere

Section 41(2) is amended by repealing "of $20,000" and substituting "at level 5".

12. Directions regarding repairs or
breaking up of vessels

Section 42(2) is amended---

(a) by repealing "of $10,000" and substituting "at level 4";

(b) by repealing "$1,000" and substituting "$2,000".

13. Prohibition against use of dangerous
equipment, etc.

Section 43(3) is amended---

(a) in paragraph (a), by repealing "of $20,000" and substituting "at level 5";

(b) in paragraph (b)---

(i) by repealing "of $10,000" and substituting "at level 4";

(ii) by repealing "$1,000" and substituting "$2,000".

14. Prohibition against carrying out works
in dangerous conditions

Section 44(3) is amended---

(a) in paragraph (a), by repealing "of $20,000" and substituting "at level 5";

(b) in paragraph (b)---

(i) by repealing "of $10,000" and substituting "at level 4";

(ii) by repealing "$1,000" and substituting "$2,000".

15. Section added

The following is added---

"44A. Code of practice

(1) For the purpose of providing practical guidance in respect of any one or more of the requirements of this Part or of regulations made under this Ordinance, the Director may issue such codes of practice (whether prepared by the Director or not) as the Director considers appropriate.

(2) The Director may amend or revoke a code of practice issued by him under subsection (1).

(3) Where the Director exercises a power under subsection (1) or (2), he shall as soon as may be reasonably practicable publish notice thereof in the Gazette and the notice shall be in such form as the Director considers appropriate.

(4) A failure by any person to observe a provision of an approved code shall not of itself cause him to incur any criminal liability, but where---

(a) in any criminal proceedings the defendant is alleged to have committed an offence either---

(i) by reason of a contravention of or a failure to comply with, whether by act or omission, this Ordinance or regulations under this Ordinance; or

(ii) by reason of a failure to discharge or perform a duty imposed by this Ordinance or such regulations; and

(b) the matter to which the alleged contravention or failure relates is one to which, in the opinion of the court, an approved code relates, then subsection (5) shall apply as regards to the proceedings.

(5) In any criminal proceedings to which this subsection applies, the following, namely---

(a) compliance with a provision of an approved code found by the court to be relevant to a matter to which a contravention or failure alleged in the proceedings relates;

(b) a contravention of or failure to comply with, whether by act or omission, any such provision so found, may be relied on by any party to the proceedings as tending to establish or to negative any liability which is in question in the proceedings.

(6) In any criminal proceedings, any document which purports to be a copy of a particular approved code shall, in the absence of evidence to the contrary, be regarded by the court as being a true copy of that code.".

16. Regulations

Section 80(1) is amended by repealing paragraphs (i) and (j) and substituting---

"(i) the control of works, the control of salvaging of vessels, the control and use of lifting appliances and lifting gear, the safety and protection against accidents of persons employed in such works or operations, the provision of safe workplaces on vessels, the operation, use and maintenance of hatches and hatch coverings on vessels in connexion with works, and regulations made for the purpose of this paragraph may empower the Director---

(i) to make exemptions from the application of the regulations where he is satisfied that the regulations have been substantially complied with or where compliance therewith is unnecessary having regard to the circumstances;

(ii) to approve any person to provide a safety training course and issue certificates to any person who attends the course;".

Explanatory Memorandum

This Bill makes a number of miscellaneous amendments to the Shipping and Port Control Ordinance (Cap. 313) ("principal Ordinance") in the manner explained below.

2. Clause 2 amends the long title to the principal Ordinance so as to provide for the regulation and control of marine construction activities.

3. Clause 3 amends section 2 of the principal Ordinance as follows---

(a) to include "container, pallet, material and solid ballast" in the definition of "cargo" so that handling of these things (when read together with the definition of "cargo handling") is now covered under the provisions relating to cargo handling;

(b) to include a definition of "material" consequent upon the amended definition of "cargo"; and

(c) to amend the Chinese equivalent of "use of signals of distress regulations" in order to achieve consistency between the principal Ordinance and subsidiary legislation under the Merchant Shipping (Safety) Ordinance (Cap. 369).

4. Clause 4 amends section 10 of the principal Ordinance consequent upon the amendments made to the Chinese equivalent of "use of signals of distress regulations".

5. Clause 5 amends section 12(1) of the principal Ordinance by repealing the wrong cross reference to "section 11" and inserting the correct reference to "section 11B".

6. Clause 6 amends the heading to Part V of the principal Ordinance so as to accurately reflect the new scope of that Part.

7. Clause 7 amends section 36 of the principal Ordinance as follows---

(a) to include "excavator, pile driver, pile extractor" in the definition of "lifting appliance" and to replace "cargo handling" with "works" so that using of lifting appliances in all aspects of works is now under legislative control;

(b) to replace "cargo handling" with "works" in the definition of "lifting gear" so that using of lifting gear in all aspects of works is now under legislative control;

(d) to expand the definition of "person in charge of works" in order to include any person who is actually in command or charge of any works;

(e) to expand the definition of "works" to include "marine construction" so that "marine construction" is now under legislative control; and

(f) 3 new definitions are added---

(i) a definition of "approved code" is added as the result of adding a new section 44A to the principal Ordinance in respect of a code of practice;

(ii) a definition of "crane" is added in order to provide a basis for introducing a new provision in the regulations regarding training for crane operators;

(iii) a definition of "marine construction" is added to describe what type of activities are now regarded as marine construction and are under legislative control.

8. Clause 8 amends section 37 of the principal Ordinance by repealing subsections (1)(a) and (2) so that Part V of the principal Ordinance now applies in all cases to vessels which are 50 metres or less in length.

9. Clause 10 amends section 40 of the principal Ordinance by adding a new subsection (1A) so that vessels of 50 metres or less in length are exempted from section 40(1) subject to a contrary notice from the Director.

10. Clause 15 adds a new section 44A to the principal Ordinance which empowers the Director to issue codes of practice as practical guidances in respect of the requirements of Part V or of regulations.

11. Clause 16 amends section 80(1) of the principal Ordinance by restructuring paragraphs (i) and (j) as well as expanding their scope so that---

(a) regulations may be made for control of works (defined to include marine construction), safety and protection of persons employed in works;

(b) regulations may empower the Director to approve any person to provide a safety training course and issue certificates to persons attending the course.

12. Penalties for breach of requirements in Part V of the principal Ordinance are also increased as follows---

Sections Existing fines New fines

---------------- ------------------------ ------------------

(a) 42(2), 43(3)(b) $ 1,000 $2,000

& 44(3)(b)

(b) 39(3), 42(2), $10,000 level 4

43(3)(b) & (level 3) (max. $25,000)

44(3)(b)

& 44(3)(a) (level 4) (max. $50,000)

(d) 40(3) $50,000 level 6

(level 5) (max. $100,000)