I ASSENT Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
INSPECTION, SURVEY AND CERTIFICATION OF SHIPS)
REGULATIONS 2011

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-13
Subsidiary
2011/158

Subsidiary Legislation made under s. 118.


GIBRALTAR MERCHANT SHIPPING
(ORGANISATIONS FOR INSPECTION, SURVEY AND
CERTIFICATION OF SHIPS) REGULATIONS 2011

(LN. 2011/158)
Commencement 22.9.2011
Amending
enactments
Relevant current
provisions
Commencement
date
LN. 2015/223 r. 2 31.12.2015


EU Legislation/International Agreements involved:
Directive 2009/15/EC
Regulation (EC) No. 391/2009
_______________________

ARRANGEMENT OF REGULATIONS

Regulation

1. Title and commencement.
2 Interpretation.
3. Enforcement of international conventions.
4. Monitoring of organisations.
5. Refusal to authorise any organisation.
6. Reciprocal treatment for recognised organisation.
7. Working relationship between the Administration and organisations.
8. Suspension or withdrawal of authorisation.
9. Reporting and assessment of organisations.
10. Standards for ships construction and maintenance.
11. Repeal.
12. Saving and transitional provisions.

SCHEDULE

MINIMUM CRITERIA FOR ORGANISATIONS TO OBTAIN OR TO
CONTINUE TO ENJOY COMMUNITY RECOGNITION
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
INSPECTION, SURVEY AND CERTIFICATION OF SHIPS)
REGULATIONS 2011

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1995-13
Subsidiary
2011/158
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
INSPECTION, SURVEY AND CERTIFICATION OF SHIPS)
REGULATIONS 2011

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
1995-13
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2011/158
In exercise of the powers conferred on it by section 118 of the Gibraltar
Merchant Shipping (Safety, etc.) Act 1993, and all other enabling powers,
and for the purposes of transposing into the law of Gibraltar Directive
2009/15/EC of the European Parliament and of the Council of 23 April
2009 on common rules and standards for ship inspection and survey
organisations and for the relevant activities of maritime administrations
and of implementing Regulation (EC) No 391/2009 of the European
Parliament and of the Council of 23 April 2009 on common rules and
standards for ship inspection and survey organisations, the Government has
made the following Regulations–

Title and commencement.

1. These Regulations may be cited as the Gibraltar Merchant Shipping
(Organisations for Inspection, Survey and Certification of Ships)
Regulations 2011 and come into operation on the day of publication.

Interpretation.

2.(1) In these Regulations, unless the context otherwise requires–

“Administration” means, in the case of Gibraltar, the Maritime
Administrator and, in all other cases, where the context so requires,
the entity in the relevant flag State that is competent for the matters
set out in the Directive;

“authorisation” means an act whereby an Administration grants an
authorisation, or delegates powers, to a recognised organisation;

“cargo ship safety radio certificate” means the certificate introduced by
the 1988 Protocol amending SOLAS, adopted by the IMO;

“class certificate” means a document issued by a recognised organisation
certifying the structural and mechanical fitness of a ship for a
particular use or service in accordance with the rules and
procedures laid down and made public by that recognised
organisation;

“Commission” means the European Commission;

“Directive” means Directive 2009/15/EC of the European Parliament and
of the Council of 23 April 2009 on common rules and standards for
ship inspection and survey organisations and for the relevant
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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activities of maritime administration, as amended from time to
time;

“EU Regulation” means Regulation (EC) No 391/2009 of the European
Parliament and of the Council of 23 April 2009 on common rules
and standards for ship inspection and survey organisations, as
amended from time to time;

“inspections and surveys” means such inspections and surveys that are
mandatory under the international conventions;

“international conventions” means–

(a) the International Convention for the Safety of Life at Sea of 1
November 1974 (SOLAS 74) with the exception of chapter XI-
2 of the Annex thereto;

(b) the International Convention on Load Lines of 5 April 1966;
and

(c) the International Convention for the Prevention of Pollution
from Ships of 20.12.2014 L 366/86 Official Journal of the
European Union EN 2 November 1973 (MARPOL),
together with the protocols and amendments thereto, and the related
codes of mandatory status in all Member States, with the exception
of paragraphs 16.1, 18.1 and 19 of part 2 of the IMO Instruments
Implementation Code, and of sections 1.1, 1.3, 3.9.3.1, 3.9.3.2 and
3.9.3.3 of part 2 of the IMO Code for Recognized Organizations, in
their up-to-date version;

“location” or “located” refers to the place of the registered office, central
administration or principal place of business of an organisation;

“Member State” includes EEA States that have agreed to comply with the
Directive;

“organisation” means a classification society or other legal entity,
together with their subsidiaries and any other entities under their
control, which jointly or separately, carry out tasks falling under the
scope of the Directive, and for this purpose, control means such
rights, contracts or any other means, in law or in fact, which, either
separately or in combination confer the possibility of exercising
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decisive influence on a legal entity or enable that entity to carry out
tasks falling under the scope of the Directive;

“Paris Memorandum of Understanding” means an administrative
agreement (commonly known as the “Paris MoU”) concluded in
1982 to develop a harmonised system for the inspection of foreign
ships under which each maritime administration has to inspect at
least 25% of foreign ships visiting their ports;

“port State control administration” means an Administration that takes
the responsibility, while a foreign flag ship is in its port waters, for
the enforcement of international standards for ships’ safety,
pollution prevention and shipboard living and working conditions,
in pursuance of Directive 2009/16/EC on port State control as
amended from time to time and the Paris Memorandum of
Understanding (Paris MoU);

“recognised organisation” means an organisation recognised in
accordance with the EU Regulation;

“rules and procedures” means a recognised organisation’s requirements
for the design, construction, equipment, maintenance and survey of
ships;

“ship” means a ship falling within the scope of the international
conventions;

“ship flying the flag of a Member State” means a ship registered in and
flying the flag of a Member State in accordance with its legislation
and includes a ship flying the flag of Gibraltar; and a ship which
does not correspond to this definition is assimilated to a ship flying
the flag of a third country;

“statutory certificate” means a certificate issued by or on behalf of a flag
State in accordance with the international conventions.


(2) Terms and expressions used but not defined in these Regulations shall
have the same meaning as they have under the Directive and the EU
Regulation.

Enforcement of international conventions.

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3.(1) The Administration shall ensure the appropriate enforcement of the
provisions of the international conventions, in particular with regard to the
inspection and survey of ships and the issue of statutory certificates and
exemption certificates as provided for by the international conventions.

(2) The Administration may, for the purposes of subregulation (1), with
regard to the ships flying the flag of Gibraltar–

(a) authorise organisations to undertake fully or in part inspections
and surveys related to statutory certificates including those for
the assessment of compliance with regulation 10, and if
appropriate, to issue or renew the related certificates; or

(b) rely upon organisations to undertake fully or in part the
inspections and surveys referred to in paragraph (a).

(3) The Administration shall not entrust the duties mentioned in
subregulation (2) to any organisation unless that organisation is a recognised
organisation.

(4) Notwithstanding subregulation (3), the duties mentioned in
subregulation (2), may, for the cargo ship safety radio certificate, be
entrusted to a private body–

(a) recognised by an Administration of any Member State; and

(b) having sufficient expertise and qualified personnel to carry out
specified safety assessment work on radio-communication on
its behalf.

(5) For the purposes of this regulation, the Administration shall–

(a) act in accordance with the Schedule and the Appendix to IMO
Resolution A.847(20); and

(b) in all cases, approve the first issue of the exemption
certificates.

(6) This regulation does not apply to the certification of specific items of
marine equipment.

Monitoring of organisations.

Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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4. Every recognised organisation acting on behalf of the Administration
shall be closely monitored by the Administration and the outcome of such
monitoring shall be reflected in the biennial report referred to in regulation
9.

Refusal to authorise any organisation.

5.(1) Without prejudice to subregulation (2), and subject to regulations 6, 7
and 9, the Administration shall not, in principle, refuse to authorise any of
the recognised organisations to carry out duties referred to in regulation
3(2).

(2) The Administration may restrict the number of recognised
authorisations in accordance with its needs but shall only do so where its
decision is based on objective and transparent grounds.

Reciprocal treatment for recognised organisations.

6.(1) The Administration may, in order to accept that a recognised
organisation located in a State outside the European Economic Area (“ third
State”) is to carry out the duties referred to in regulation 3 or part of such
duties, request the third State in question to grant reciprocal treatment for
those recognised organisations which are located in the European Economic
Area.

(2) A request by the Administration under subregulation (1) need not be
made if the Commission itself requests the third State where a recognised
organisation is located to grant reciprocal treatment for those recognised
organisations which are located in the European Economic Area.

Working relationship between the Administration and organisations.

7.(1) The Administration shall, for the purpose of regulation 3(2), establish
a working relationship between itself and the organisations acting on its
behalf.

(2) The working relationship referred to in subregulation (1) shall be
regulated by a formalised written and non-discriminatory agreement or
equivalent legal arrangements setting out the specific duties and functions
assumed by the organisations and including at least–

(a) the provisions set out in Appendix II of IMO Resolution
A.739(18) on guidelines for the authorisation of organisations
acting on behalf of the Administration, while drawing
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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inspiration from the Annex, Appendixes and Attachment to
IMO MSC/Circular 710 and MEPC/Circular 307 on model
agreement for the authorisation of recognised organisations
acting on behalf of the Administration;

(b) the following provisions concerning financial liability–

(i) if liability arising out of any incident is finally and
definitely imposed on the Administration by a court of
law or as part of the settlement of a dispute through
arbitration procedures, together with a requirement to
compensate the injured parties for loss or damage to
property or personal injury or death, which is proved in
that court of law to have been caused by a willful act or
omission or gross negligence of the recognised
organisation, its bodies, employees, agents or others who
act on behalf of the recognised organisation, the
Administration shall be entitled to financial
compensation from the recognised organisation to the
extent that the said loss, damage, injury or death is, as
decided by that court, caused by the recognised
organisation;

(ii) if liability arising out of any incident is finally and
definitely imposed on the Administration by a court of
law or as part of the settlement of a dispute through
arbitration procedures, together with a requirement to
compensate the injured parties for personal injury or
death, which is proved in that court of law to have been
caused by any negligent or reckless act or omission of the
recognised organisation, its employees, agents or others
who act on behalf of the recognised organisation, the
Administration shall be entitled to financial
compensation from the recognised organisation to the
extent that the said personal injury or death is, as decided
by that court, caused by the recognised organisation; the
Member States may limit the maximum amount payable
by the recognised organisation, which must, however, be
at least equal to euro 4 million;

(iii) if liability arising out of any incident is finally and
definitely imposed on the Administration by a court of
law or as part of the settlement of a dispute through
arbitration procedures, together with a requirement to
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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compensate the injured parties for loss or damage to
property, which is proved in that court of law to have
been caused by any negligent or reckless act or omission
of the recognised organisation, its employees, agents or
others who act on behalf of the recognised organisation,
the Administration shall be entitled to financial
compensation from the recognised organisation, to the
extent that the said loss or damage is, as decided by that
court, caused by the recognised organisation; the
Member States may limit the maximum amount payable
by the recognised organisation, which must, however, be
at least equal to euro 2 million;

(c) provisions for a periodical audit by the Administration or by an
impartial external body appointed by the Administration into
the duties the organisations are undertaking on its behalf, as
referred to in regulation 9;

(d) the possibility for random and detailed inspections of ships;

(e) provisions for reporting essential information about their
classed fleet, changes, suspensions and withdrawals of class.

(3) The agreement or the equivalent legal arrangement may set the
requirement that the recognised organisation has a local representation in
Gibraltar which must be registered as a company under the Companies Act.

(4) The Minister shall ensure that precise information on the working
relationship established in accordance with this regulation is transmitted to
the Commission.

Suspension or withdrawal of authorisation.

8.(1) Notwithstanding the minimum criteria specified in the Schedule,
where the Administration considers that a recognised organisation can no
longer be authorised to carry out on its behalf the duties referred to in
regulation 3, it may suspend or withdraw such authorisation.

(2) Where the Administration takes a decision suspending or withdrawing
the authorisation of a recognised organisation under subregulation (1), it
shall immediately inform the Minister of its decision and the Minister shall
ensure that the decision, together with the grounds on which it is based, is
transmitted without delay to the Commission and for information purposes
to the Member States.
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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Reporting and assessment of organisations.

9.(1) The Administration shall assess, at least on a biennial basis, that the
recognised organisations which are authorised on its behalf to carry out
duties under regulation 3 have been carrying them out to its satisfaction and
shall immediately inform the Minister of its assessments.

(2) The Minister shall ensure that a report of the results of the assessments
referred to in subregulation (1) is transmitted to the Commission and to
other Member States by 31 March of each year following the year for which
compliance with the duties has been assessed.

(3) The Administration shall, in conjunction with the Commission, and in
accordance with the procedures set out in the EU Regulation, assess all the
recognised organisations authorised by the Administration on a regular basis
and at least every two years in order to verify that such organisations meet
the obligations under the EU Regulation and fulfil the minimum criteria
specified in the Schedule.

(4) Where the Administration discovers, during the exercise of its
inspection rights and obligations as a port State control administration–

(a) the issue of valid statutory certificates by a recognised
organisation acting on behalf of a flag State to a ship which
does not fulfil the relevant requirements of the international
conventions; or

(b) any failure of a ship carrying a valid class certificate and
relating to items covered by that certificate,

and the ship represents–

(i) a serious threat to safety and the environment; or

(ii) shows evidence of particularly negligent behaviour of the
recognised organisations,

the Administration shall produce a report and forward it to the Minister who
shall ensure that the report is transmitted to the Commission and sent for
information purposes to the Member States and the flag State concerned.

Standards for ship’s construction and maintenance.

Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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10.(1) The Administration shall ensure that ships flying the flag of Gibraltar
are designed, constructed, equipped and maintained in accordance with the
rules and procedures relating to hull, machinery and electrical installation
and control installation requirements of a recognised organisation.

(2) The Administration must–

(a) cooperate with the recognised organisation which it authorises
in the development of the rules and procedures of that
organisation; and

(b) confer with the recognised organisation with a view to
achieving consistent interpretation of the international
conventions.

Repeal.

11. The Gibraltar Merchant Shipping (Organisation for Inspections, Survey
and Certification of Ships) Regulations 2002 are repealed.

Saving and transitional provisions.

12.(1) In this regulation a reference to the “repealed Regulations” shall be
construed as a reference to the Regulations repealed by regulation 11.

(2) Any proceedings which have been instituted under the repealed
Regulations (including any appeal) which have not been concluded at the
time of the coming into operation of these Regulations shall be continued as
though the repealed Regulations had not been repealed.

(3) Where proceedings for an offence committed under the repealed
Regulations have not been commenced at the commencement of these
Regulations–

(a) if there is an equivalent offence under these Regulations,
proceedings must be brought under these Regulations;

(b) if there is no equivalent offence, proceedings cannot be
brought.

(4) Any order, instruction direction, exemption, notice, permit, complaint
or other non-legislative instrument made or issued by any person or body
under the repealed Regulations which could be made or issued by an
equivalent person or body under these Regulations continues to have effect
Gibraltar Merchant Shipping (Safety, etc.) GIBRALTAR MERCHANT SHIPPING (ORGANISATIONS FOR
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as if made or issued by that person or body under these Regulations until it
expires, it is varied or revoked under these Regulations.
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SCHEDULE

Regulations 3(5), 8(1) and 9(3)

MINIMUM CRITERIA FOR ORGANISATIONS TO OBTAIN OR
TO CONTINUE TO ENJOY COMMUNITY RECOGNITION

PART A
GENERAL MINIMUM CRITERIA

1. A recognised organisation must have legal personality in the State of its
location. Its accounts shall be certified by independent auditors.

2. The recognised organisation must be able to document extensive
experience in assessing the design and construction of merchant ships.

3. The recognised organisation must be equipped at all times with
significant managerial, technical, support and research staff commensurate
with the size of the fleet in its class, its composition and the organisation’s
involvement in the construction and conversion of ships. The recognised
organisation must be capable of assigning to every place of work, when and
as needed, means and staff commensurate with the tasks to be carried out in
accordance with general minimum criteria under paragraphs 6 and 7 and
with the specific minimum criteria under part B.

4. The recognised organisation must have and apply a set of own
comprehensive rules and procedures, or the demonstrated ability thereto, for
the design, construction and periodic survey of merchant ships, having the
quality of internationally recognised standards. They must be published and
continually upgraded and improved through research and development
programmes.

5. The recognised organisation must have its register of ships published on
an annual basis or maintained in an electronic database accessible to the
public.

6. The recognised organisation must not be controlled by shipowners or
shipbuilders, or by others engaged commercially in the manufacture,
equipping, repair or operation of ships. The recognised organisation is not
substantially dependent on a single commercial enterprise for its revenue.
The recognised organisation does not carry out class or statutory work if it is
identical to or has business, personal or family links to the shipowner or
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operator. This incompatibility shall also apply to surveyors employed by the
recognised organisation.

7. The recognised organisation must operate in accordance with the
provisions set out in the Annex to IMO Resolution A.789(19) on
specifications on the survey and certification functions of recognised
organisations acting on behalf of the administration, in so far as they cover
matters falling within the scope of the EU Regulation.

PART B
SPECIFIC MINIMUM CRITERIA

1. The recognised organisation must provide worldwide coverage by its
exclusive surveyors or, in exceptional and duly justified cases, through
exclusive surveyors of other recognised organisations.

2. The recognised organisation must be governed by a code of ethics.

3. The recognised organisation must be managed and administered in such a
way as to ensure the confidentiality of information required by the
administration.

4. The recognised organisation must provide relevant information to the
administration, to the Commission and to interested parties.

5. The recognised organisation, its surveyors and its technical staff shall
carry out their work without in any way harming the intellectual property
rights of shipyards, equipment suppliers, and shipowners, including patents,
licences, know-how, or any other kind of knowledge whose use is legally
protected at international, European Union or national level; under no
circumstances, and without prejudice to the assessment powers of Member
States and the Commission and in particular under Article 9 of the EU
Regulation, may either the recognised organisation or the surveyors and
technical staff, whom it employs, pass on or divulge commercially relevant
data obtained in the course of their work of inspecting, checking, and
monitoring ships under construction or repair.

6. The recognised organisation’s management must define and document its
policy and objectives for, and commitment to, quality and must ensure that
this policy is understood, implemented and maintained at all levels in the
recognised organisation. The recognised organisation’s policy must refer to
safety and pollution prevention performance targets and indicators.

7. The recognised organisation must ensure that–
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(a) its rules and procedures are established and maintained in a
systematic manner;

(b) its rules and procedures are complied with and an internal
system to measure the quality of service in relation to these
rules and procedures is put in place;

(c) the requirements of the statutory work for which the recognised
organisation is authorised are satisfied and an internal system
to measure the quality of service in relation to compliance with
the international conventions is put in place;

(d) the responsibilities, powers and interrelation of personnel
whose work affects the quality of the recognised organisation’s
services are defined and documented;

(e) all work is carried out under controlled conditions;

(f) a supervisory system is in place which monitors the actions and
work carried out by surveyors and technical and administrative
staff employed by the recognised organisation;

(g) surveyors have an extensive knowledge of the particular type of
ship on which they carry out their work as relevant to the
particular survey to be carried out and of the relevant
applicable requirements;

(h) a system for qualification of surveyors and continuous updating
of their knowledge is implemented;

(i) records are maintained, demonstrating achievement of the
required standards in the items covered by the services
performed, as well as the effective operation of the quality
system;

(j) a comprehensive system of planned and documented internal
audits of the quality related activities is maintained in all
locations;

(k) the statutory surveys and inspections required by the
harmonised system of survey and certification for which the
recognised organisation is authorised are carried out in
accordance with the provision set out in the Annex and
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Appendix to IMO Resolution A.948(23) on survey guidelines
under the harmonised system of survey and certification;

(l) clear and direct lines of responsibility and control are
established between the central and the regional offices of the
recognised organisation and between the recognised
organisations and their surveyors.

8. The recognised organisation must have developed, implemented and
must maintain an effective internal quality system based on appropriate parts
of internationally recognised quality standards and in compliance with EN
ISO/IEC 17020:2004 (inspection bodies) and with EN ISO 9001:2000
(quality management systems, requirements), as interpreted and certified by
the quality assessment and certification entity referred to in Article 11(1) of
the EU Regulation.

9. The rules and procedures of the recognised organisation must be
implemented in such a way that the organisation remains in a position to
derive from its own direct knowledge and judgment a reliable and objective
declaration on the safety of the ships concerned by means of class
certificates on the basis of which statutory certificates can be issued.

10. The recognised organisation must have the necessary means of
assessing, through the use of qualified professional staff and pursuant to the
provisions set out in the Annex to IMO Resolution A.913(22) on guidelines
on implementation of the International Safety Management (ISM) Code by
administrations, the application and maintenance of the safety management
system, both shore-based and on board ships, intended to be covered in the
certification.

11. The recognised organisation must allow participation in the
development of its rules and procedures by representatives of the
administration and other parties concerned.