Proposed amendments to Merchant Shipping Act fail to deal with issues over past 48 years
The Merchant Shipping Act 52 of 1971 was enacted mainly to create the state-owned Ceylon Shipping Corporation. But from there onwards not a single ship’s regulation has ever been promulgated by any of the successive governments of this country. Almost from the same era, in the early 1970s, Sri Lanka has signed as many as 21 International Maritime Conventions of the International Maritime Organisation. None of which has been implemented by parliamentary legislative mechanism of the country to date although that exactly was the responsibilities and undertakings agreed at the accession to those conventions in IMO circuit.
In the last 48 years since the enactment of the Merchant Shipping Act, the shipping industry in Sri Lanka has transformed into a maritime industry with many facets of maritime activity within which three main components are significant. They are ports, shipping and maritime and logistic services. The industry has for many years urged the need to revamp the entire Act and promulgate proper ancillary regulations.
In the absence of any enthusiastic action for development of regulations for operating local ships and boats in the country, incidentally, an initiative has been taken by the Export Development Board (EDB) recently to develop a regulatory structure for the boat building industry as an export product an export service in the tourism sector, for which boat operational regulations were a pre-requisite. Learning that there are no such merchant shipping regulations in the country for boats or coastal vessels of any nature in the country, the EDB forum focused on developing boats and small vessel operational regulations for domestic vessels from building to operations. Such regulations were to be implemented under the Act with the Director General of Merchant Shipping (DGMS) as the Chief Executing officer.
However, quite unknown to the industry without any consultations with the stakeholders, the government gazette was published on July 1, 2019 to bring in some amendments to the Act to amend some 30 clauses between Section 138 and section 330 of the Act. But the irony is that this amendment has taken no notice of the impending changes needed to accommodate the EDB-initiated Boats and Small Vessels Regulations.
What seems to be the main purpose of the intended amendments of the Act? It clearly intends to change the following;
1. To merely change the names of IMO (International Maritime Organisation) Conventions mentioned in the Act as they are currently known as updated to be, without actually giving legal effect to adopting them legislatively as was the case ever since Sri Lanka acceded to them from the early 70’s; meaning they still have no effect in law of the land. The reason given hitherto for not adopting the IMO conventions was “the difficulties in translating the highly technical IMO conventional regulations into Sinhala and Tamil languages”. Now without adopting the provisions of the IMO conventions as suited to the country providing Sinhala and Tamil version, how can the Parliament allow the DGMS to adopt “IMO Regulations” as regulations of the country or circumvent the actual “Regulations needed” by this kind of amendment?
2. To empower the DGMS to circumvent at will “Regulations” by introducing hitherto unknown “Implementing Standards for compliance with the minimum Technical Standards of any Convention or Protocol provided in this Act ” as may be required for the implementation of the provisions of this Act or Regulations made thereunder” opening a large loophole giving rise only to corrupt practices otherwise restricted by laid down regulations gazetted only by the Minister as empowered by the Act.
3. Out of the 28 clauses intended to change 22 of them are to increase the penalties for violating regulations from a few hundreds of rupees (Rs. 500 to Rs. 3000) to a few millions of rupees (Rs. 1 million to Rs. 5 million) quite contradictory to the economy of the country, when, in the first place, there are no ships regulations to violate since the 1971 enactment of the Act except now it intends enforcing “implementing Standards” circumventing regulations. The Act alone does not provide ancillary regulations to implement the laws unless promulgated by the Minister by gazettes and parliamentary legislation.
The EDB-initiated exercise is all about bringing in new regulations that this country did not have for the last 48 years since the enactment of the Act.
The Ministry of Shipping having done nothing about it for 48 years; Three things need to be done: One is to give legal effect to the 21 IMO conventions this country has signed and to promulgate regulations for international trading vessels: Second is to develop local regulations independent of IMO conventions for domestic vessels solely operated in Sri Lankan waters: Thirdly and most importantly to revamp the entire Act to encompass the entire maritime activity in the country. It is the earnest hope that Minister in charge of the EDB and the Minister of Ports & Shipping take this opportunity to do justice by working towards a common goal.