MarIus

2.4.1 The overall structure of the regulation

The overall regulation in the SOLAS and MARPOL conventions has been incorporated(1) Falkanger, Bull, Overby; ibid., p. 78 f. into Danish law through the Maritime Safety Act(2) Law No. 72 of 17/01/2014 on Safety at Sea. and the Marine Environment Act,(3) Law No. 1616 of 10/12/2015 on Protection of the Marine Environment. whereas the more technical regulations of the conventions are incorporated at the announcement level through the so-called 'Notices from the Danish Maritime Authority'. The two main laws thus interact, with the Maritime Safety Act regulating the ship's construction and safety levels on board in general, specifically including the requirement that the ship must be built, equipped and operated so that "human life at sea is secured to the largest extent" and that "utmost consideration must be given to protection against pollution”, see § 2(1). The Marine Environment Act, on the other hand, regulates whether, or to what extent, potentially harmful substances can be discharged from the Danish territorial waters and adjacent areas. Generally speaking, the rule is that no discharge may take place in Danish territorial waters, see §§ 9-21.

Both the Danish Maritime Safety Act and the Marine Environment Act, with their associated regulations, apply to Danish registered vessels. In addition, they may also apply to varying degrees, inter alia to foreign registered vessels sailing within Danish territorial waters, within the Danish economic zone and the Danish continental shelf area. The administrative competence under the Maritime Safety Act does not, as one would expect, rest with the Danish Minister of Transport, but with the Minister for Business and Growth, cf. the Maritime Safety Act § 17(1), whereas the Act is administered in practice by the Danish Maritime Authority, under the Maritime Safety Act § 17(2). The Minister may, in accordance with § section 17 (5), delegate competence to the Danish Maritime Authority, as has in fact been the case. The Marine Environment Act is administered primarily by the Ministry of Nature, Environment and Food, whereas the physical performance of surveillance and pollution control lies with the Ministry of Defence, see the Marine Environment Act § 34.

Since the technical rules on pollution prevention under the MARPOL Convention are not incorporated into Danish law under the auspices of the Ministry of Nature, Environment and Food, but by regulations issued by the Danish Maritime Authority, the remainder of this article will focus on the Maritime Safety Act and the Danish Maritime Authority's competence thereunder.

2.4.2 The issuance of rules and regulations

The Danish Maritime Authority has the competence to draft rules and regulations in virtually all areas relevant to shipping, including general rules on construction, operation, navigation, security, anti-terrorism, working conditions, anti-collision rules, navigation systems etc., in accordance with the Maritime Safety Act, see §§ 3-6. As indicated above, the DMA’s main task is not to specifically lay down Danish rules in this area, but to ensure that the international and regional regulations are at all times implemented and adhered to. Thus, it is assumed in the Maritime Safety Act § 17(6) that a large part of the DMA's issuance of rules and regulations involves “incorporating international conventions within the scope of Danish law” and that these can be maintained in their original English language.

The provision continues:

“The Minister may furthermore decide that ships shall comply with regulations laid down by recognised classification societies, etc.”

In this way, roughly speaking, it is statutorily accepted that the DMA may incorporate privately defined safety standards and regulations, issued by private actors – in this context being recognised classification societies – into legislation.

A classification society’s rules are often included in the regulations issued by the DMA, as a supplement or an addition to the national technical regulations and to some extent, as a supplement to regulations of procedures etc.(4) Falkanger, Bull, Overby; ibid., p. 84 f. Take, for example, the ‘Notices from the Danish Maritime Authority E: Technical Regulations for the construction of and equipment on Fishing Vessels’.

Regulation No. 1459 of 14/12/2010, Rule 1a: Use of recognised organisations (classification societies) (1)

“In cases where the Administration has not established national standards for an area in this framework, new fishing vessels shall be designed, constructed and maintained in accordance with the rules of a recognised organisation with regard to hull design, structural strength, materials, anchors, anchor chains, windlasses, towing hooks, machinery plants, boilers, and all other technical installations or electrical installations". [My emphasis]

In addition, the classification societies' rules are quite often used instead of national regulation, so that no national regulation is issued at all. An example of this can be found in the technical regulations for towing/anchor handling winches and towing hooks, Regulation No. 10128, of 13/09/2006, § 7(2):

“Towing winches, anchor handling (tugger) winches and towing hooks must be provided with a certificate stating that these are designed, installed and tested in accordance with the rules of a classification society”. [My emphasis]

In this way, a full overview of the technical and safety standards that Danish ships must fulfill can only be achieved by combining the Danish Maritime Authority’s rules with those of the relevant classification society.

2.4.3 Enforcement

Unfortunately, issuing rules is not enough to achieve high quality shipping. Some form of control to ensure the compliance with the rules is necessary for those rules to thus be effective. In shipping, this occurs through a system based on certification and control. It follows from the nature of the Convention on the Law of the Sea Article 94, “Duties of the flag State”, paragraph 4(a), that controlling the compliance of the rules should not only be done during the ship's construction, but should be carried out continuously for as long as the ship is in operation, and that this should be done by “qualified surveyors”.

For this purpose, the DMA's employees are entitled to board and inspect any ship that is covered by the Danish Maritime Safety Act without a court order, see Maritime Safety Act §19 (1). However, aside from the inspection(s) carried out during the initial registration of the vessel into the Danish flag or during Port State Control, it is rare that the DMA itself carries out these periodic surveys. The competence for this, as can be seen in the Maritime Safety Act § 22, is instead delegated to the authorised classification societies.

Classification societies, etc.

§ 22. The Minister of Business and Growth may, on specified terms, authorise classification societies, other companies or individuals, on behalf of the Danish Maritime Authority, to carry out surveys of ships, including carrying out calculations, surveys and measurements of ships, as well as issuing certificates.

The rather absolute terminology used in the wording indicates that, although theoretically it is not a legal requirement that the ship has class it is clearly implied that it should have. It also follows directly from the Maritime Safety Act § 22 (5), that the DMA is not obliged to carry out surveys or make approvals that fall within the scope of the relevant classification society’s authorisation. In this way, if a ship is classified by a recognised classification society, it will, as a starting point, be the surveyors and inspectors of that classification society who carry out inspections and certification, and not the DMA. As an example, all surveys, certification and formalities in connection with registering a vessel under the Danish flag are delegated to the classification societies, except for the final inspection before officially awarding a Danish Certificate of Nationality and Trading Permit, which is always carried out by the DMA's own technical inspectors. In principle, therefore, it will be the ship's own classification society which carries out the bulk of the tasks on behalf of the DMA, with the DMA effectively ratifying such work during the final inspection, see Annex to the RO Agreement, clause 1.2.(5) The national Danish Recognised Organisation Agreement with its subsequent annex, see http://www.soefartsstyrelsen.dk/SynRegistrering/Syn/Klassifikationsselskaber/Documents/DanishROAgReement2015.pdf.

The recognised classification societies can be found in an updated list on the Danish Maritime Authority’s website,(6)http://www.dma.dk/SynRegistrering/Flagskifte/LastskibOver500/Sider/default.aspx. and include the American Bureau of Shipping, Bureau Veritas, Class NK, DNV GL, Lloyd's Register, the Polish Register of Shipping, RINA, the Korean Register and the China Classification Society.