Cap. 478 sub. leg. C

Merchant Shipping (Seafarers) (Health and Safety: General Duties) Regulation(Cap. 478, sections 96 and 134)(Enacting provision omitted—E.R. 2 of 2020) [2 September 1996] L.N. 342 of 1996(Format changes—E.R. 2 of 2020) 1. (Omitted as spent—E.R. 2 of 2020) 2. Interpretation In this Regulation, unless the context otherwise requires— company (公司), in relation to a ship, means— (a) the registered owner of the ship; or (b) a person who has assumed responsibility for the operation of the ship from the owner and who, on assuming the responsibility, has agreed to take over the obligations imposed on the owner of the ship under the Convention; (L.N. 141 of 2016) Convention (《公約》) means the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as from time to time revised or amended by any revision or amendment to any provision of such Convention that applies to Hong Kong; (L.N. 141 of 2016)substance (物質) means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour.(L.N. 71 of 2016) 3. Application (1) Subject to subsection (2)—(a) this Regulation, except section 12, shall apply to a Hong Kong ship; and(b) sections 2 and 12 shall apply to a ship—(i) which is not a Hong Kong ship;(ii) while it is within the waters of Hong Kong; and(iii) if it has entered those waters in the normal course of business or for operational reasons.(2) This Regulation shall not apply to— (L.N. 141 of 2016)(a) a ship owned or operated by a government and engaged only on governmental non-commercial service;(b) a fishing vessel;(c) a pleasure yacht not engaged in trade; or(d) a wooden ship of primitive build. (L.N. 141 of 2016) 4. General duties of companies (L.N. 141 of 2016)(1) The company of a ship has the duty to ensure, so far as is reasonably practicable, the health and safety of—(a) the seafarers on board the ship; and(b) other persons on board the ship who may be affected by the company’s acts or omissions. (L.N. 141 of 2016)(2) Without prejudice to the generality of the company’s duty under subsection (1), the matters to which that duty extends shall include— (L.N. 141 of 2016)(aa) the adoption, implementation and promotion of occupational safety and health policies and programmes; (L.N. 71 of 2016)(a) the provision and maintenance of plant, machinery and equipment and systems of work that are, so far as is reasonably practicable, safe and without risk to health;(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risk to health in connection with the use, handling, stowage and transport of articles and substances;(c) the provision to seafarers of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety of all persons on board the ship;(d) so far as is reasonably practicable, the maintenance of all places of work in the ship in a condition that is safe and without risk to health;(e) the provision and maintenance of an environment for all persons on board the ship that is, so far as is reasonably practicable, safe and without risk to health; (L.N. 71 of 2016)(ea) the adoption of precautions, so far as is reasonably practicable, to prevent occupational accidents, injuries and diseases on board the ship, including provision of measures and all necessary appropriately-sized personal protective equipment to reduce and prevent— (L.N. 20 of 2024)(i) the risk of exposure to harmful levels of ambient factors and chemicals; and(ii) the risk of injury and disease that may arise from the use of machinery and equipment on board the ship; and (L.N. 20 of 2024)(f) so far as is reasonably practicable, collaboration with others who employ persons who are at any time in the course of their employment on board the ship or engaged in loading or unloading activities in relation to the ship to protect the health and safety of all persons on board the ship.(3) The company of a ship has the duty to prepare and, as often as may be appropriate, revise a written statement of the company’s general policy with respect to health and safety of all persons on board the ship and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of the seafarers on board the ship: (L.N. 141 of 2016) Provided that this requirement shall not apply to a company who employs less than 5 seafarers in aggregate on board ships. (L.N. 141 of 2016) 5. General duties of seafarers It shall be the duty of every seafarer on board a ship—(a) to take reasonable care for the health and safety of himself and of other persons on board the ship who may be affected by his acts or omissions; and(b) as regards any duty or requirement imposed on the company of the ship or any other person by— (L.N. 141 of 2016)(i) this Regulation; or(ii) the Ordinance, the Merchant Shipping Ordinance (Cap. 281), the Shipping and Port Control Ordinance (Cap. 313), the Merchant Shipping (Safety) Ordinance (Cap. 369), or any regulations made thereunder,with regard to the health or safety of persons on board a ship, to co-operate with the company or that person, as the case may be, so far as is necessary to enable that duty or requirement to be performed or complied with. (L.N. 141 of 2016) 5A. Seafarers must not be under influence of alcohol or drugs (1) This section applies to every seafarer on board a ship who is performing any of the designated duties set out in subsection (2).(2) The designated duties are duties relating to—(a) the safety of the ship;(b) the security of the ship; or(c) the protection of the marine environment.(3) Without limiting section 5, a seafarer must ensure that—(a) he or she is not under the influence of alcohol or drugs to an extent that—(i) he or she behaves in a disorderly manner; or(ii) his or her ability to perform the designated duties is impaired; and(b) the proportion of alcohol in his or her breath or blood does not exceed the limit set out in subsection (4).(4) The limit is—(a) 25 micrograms of alcohol in 100 millilitres of breath; or(b) 50 milligrams of alcohol in 100 millilitres of blood.(5) The company and the master of a ship must ensure that every seafarer on board the ship to which this section applies complies with subsection (3).(L.N. 141 of 2016) 6. Prohibition on levy The company of a ship must not levy or permit to be levied on any seafarer on board the ship any charge in respect of anything done or provided pursuant to any requirement of this Regulation.(L.N. 141 of 2016) 7. Duty not to interfere with or misuse certain things No person shall intentionally or recklessly interfere with or misuse anything provided in the interests of health or safety of persons on board a ship pursuant to—(a) this Regulation; or(b) the Ordinance, the Merchant Shipping Ordinance (Cap. 281), the Shipping and Port Control Ordinance (Cap. 313), the Merchant Shipping (Safety) Ordinance (Cap. 369), the Merchant Shipping (Local Vessels) Ordinance (Cap. 548), or any regulations made thereunder. (43 of 1999 s. 91) 7A. Exemption (1) The Authority may grant exemptions from all or any of the provisions of this Regulation for classes of cases or individual cases on such conditions, if any, as the Authority thinks fit.(2) The Authority may, subject to giving reasonable notice, alter or cancel any exemption granted under subsection (1).(L.N. 141 of 2016) 8. Penalties (1) A company who contravenes section 4 or 6 commits an offence and is liable on conviction to a fine at level 3. (L.N. 141 of 2016)(2) Any seafarer who contravenes section 5 commits an offence and is liable on conviction to a fine at level 1.(2A) A master or officer who contravenes section 5A(3) commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 2 years. (L.N. 141 of 2016)(2B) A seafarer (other than a master or officer) who contravenes section 5A(3) commits an offence and is liable on conviction to a fine at level 1. (L.N. 141 of 2016)(2C) A company or master who contravenes section 5A(5) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 2 years. (L.N. 141 of 2016)(3) Any person who contravenes section 7 commits an offence and is liable on conviction to a fine at level 2.(4) It shall be a defence for a person charged under subsection (1), (2) or (2C) to show that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. (L.N. 141 of 2016) 9. Where offence due to act or default of another person Where the commission by any person of an offence under this Regulation is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person. 10. Onus of proving what is reasonably practicable In any proceedings for an offence under this Regulation consisting of a failure to perform or comply with a duty or requirement to do something so far as is reasonably practicable, it shall be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement. 11. Inspection and detention of Hong Kong ships (1) The Authority, or a person authorized by him for the purposes of this section, may inspect a ship for the purpose of ascertaining whether it complies with the requirements of this Regulation which apply to the ship.(2) Where the Authority or a person referred to in subsection (1) has carried out an inspection of a ship pursuant to that subsection and is not satisfied that the ship complies with the requirements of this Regulation which apply to the ship, then the Authority or that person, as the case may be, may, if that ship is within the waters of Hong Kong, detain that ship until the Authority or that person, as the case may be, is satisfied that the ship complies with those requirements.(3) The Authority and a person referred to in subsection (1) shall not in the exercise of his powers under this section unreasonably delay or detain a ship. 12. Inspection and detention of ships which are not Hong Kong ships (1) The Authority, or a person authorized by him for the purposes of this section, may inspect a ship for the purpose of ascertaining whether it complies with the requirements of this Regulation which would apply to it if it were a Hong Kong ship.(2) Where the Authority or a person referred to in subsection (1) has carried out an inspection of a ship pursuant to that subsection and is not satisfied that the ship complies with the requirements of this Regulation which would apply to it if it were a Hong Kong ship, then—(a) the Authority or that person, as the case may be, may send a report to that effect to the government of the country in which the ship is registered; and (L.N. 141 of 2016)(b) where, in the opinion of the Authority or that person, as the case may be, the ship does not comply with those requirements to such an extent that conditions on board the ship are clearly hazardous to the health or safety of persons on board the ship, the Authority or that person, as the case may be, may detain the ship until measures are taken to rectify those conditions, for which purpose the Authority or that person, as the case may be, may take those measures.(3) Where the Authority or a person referred to in subsection (1) exercises any of his powers under subsection (2) in respect of a ship, he shall notify that he has done so to the nearest maritime, consular or diplomatic representative of the country in which the ship is registered.(4) The Authority and a person referred to in subsection (1) shall not in the exercise of his powers under this section unreasonably delay or detain a ship.