S.L. 234.38 Art. 13Rectification and detention.

(1) Any deficiencies confirmed or revealed during an inspection shall be rectified in accordance with the Conventions to the satisfaction of the competent authority.

(2) (a) In the case of deficiencies which are clearly hazardous to safety, health or the environment, the competent authority shall order the ship to be detained, or shall order the operation in the course of which the deficiencies are revealed to be stopped.

(b) A detention order or an order for the stoppage of an operation may include a direction that a ship shall remain in a particular place, or shall move to a particular anchorage or berth, and may also specify circumstances when the master of a ship may move his ship from a specified place for reasons of safety or prevention of pollution.

(c) A detention order or an order for the stoppage of an operation shall not be lifted until the hazard is removed or until the competent authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

(d) Where deficiencies as referred to in this sub-regulation are found and cannot be rectified in the port of detention, the relevant provisions of regulation 16 shall apply.

(e) In the case of living and working conditions on board which are clearly hazardous to the safety, health or security of seafarers or deficiencies which constitute a serious or repeated breach of the Merchant Shipping (Maritime Labour Convention) Rules, requirements, the competent authority shall detain the ship or shall stop the operation in the course of which the deficiencies are revealed. The detention order or stoppage of an operation shall not be lifted until those deficiencies have been rectified or if the competent authority has accepted a plan of action to rectify those deficiencies and it is satisfied that the plan will be implemented in an expeditious manner. Prior to accepting a plan of action, the competent authority may consult the flag State.

(3) When exercising his professional judgement as to whether or not a ship is to be detained, the inspector shall apply the criteria set out in Annex X to the Directive.

(4) A ship shall be detained if not equipped with a functioning voyage data recorder, when use of such recorder is compulsory in accordance with Directive 2002/59/EC. If such deficiency cannot be readily rectified in the port of detention, the competent authority may either allow the ship to proceed to the nearest appropriate repair yard where it shall be readily rectified or require that the deficiency is rectified within a maximum period of thirty days. For these purposes, the procedures laid down in regulation 16 shall apply.

(5) In exceptional circumstances, where the overall condition of a ship is obviously substandard, the competent authority may suspend the inspection of that ship until the responsible parties have taken the steps necessary to ensure that it complies with the relevant requirements of the Conventions, and in the meantime the ship shall be considered to be detained.

(6) Without prejudice to any other requirement in the Convention enactments, in the event of detention, the competent authority shall immediately inform, in writing and including the report of inspection, the flag State administration or, when this is not possible, the Consul or, in his absence, the nearest diplomatic representative of that State, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognised organizations responsible for the issue of classification certificates or statutory certificates in accordance with Conventions shall also be notified where relevant.

Moreover, if a ship is prevented from sailing due to serious or repeated breach of the requirements of the Merchant Shipping

(Maritime Labour Convention) Rules or due to the living and working conditions on board being clearly hazardous to the safety, health or security of seafarers, the competent authority shall forthwith notify the flag State accordingly and invite a representative of the flag State to be present, if possible, requesting the flag State to reply within a prescribed deadline. The competent authority shall also inform forthwith the appropriate seafarers’ and shipowners’ organisations in Malta.

(7) When exercising port State control under these regulations, all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is unduly detained or delayed, the owner or operator shall be entitled to compensation for any loss or damage suffered. In any instance of alleged undue detention or delay the burden of proof shall lie with the owner or operator of the ship.