Maritime Transport Amendment Act 2017

1: Title
This Act is the Maritime Transport Amendment Act 2017.
2: Commencement
1: Part 2
2: The rest of this Act comes into force on the day after the date on which this Act receives the Royal assent.
3: Principal Act
This Act amends the Maritime Transport Act 1994 principal Act 2017-12-16 Maritime Transport Act 1994 re: section 2(2): Except for Part 2, the rest of this Act comes into force day after Royal assent. 2018-06-15 Maritime Transport Act 1994 re: section 2(1): Part 2 comes into force on the day that is 6 months after the date of Royal assent.
1: Drug and alcohol testing amendments
4: Section 36 amended (Maritime rules relating to other matters)
After section 36(1)﻿(e)
ea: any matter that is contemplated by or necessary for giving full effect to Part 4B
i: the prescribing of safety-sensitive activities; and
ii: a scheme for carrying out drug and alcohol testing of safety-sensitive workers, including the prescribing of—
A: testable drugs; and
B: permissible levels of alcohol or testable drugs for testing purposes; and
C: testing processes and procedures; and
iii: the prescribing of matters to be stated in a document under section 40Z(5)﻿(a)﻿(iii)
iv: record keeping by operators and the Director:
5: New Part 4B inserted
After Part 4A
4B: Drug and alcohol testing by Director
40X: Health and Safety at Work Act 2015 not limited by this Part
This Part does not limit the Health and Safety at Work Act 2015.
40Y: Interpretation
In this Part, unless the context otherwise requires,— bodily sample
a: biological fluid:
b: biological tissue (whether living or not):
c: breath Director testing section 40Z drug or alcohol test
a: a test of a person’s bodily sample to determine the presence, but not the level, of alcohol or a testable drug (or both) in the sample; or
b: a test of a person’s bodily sample to determine the presence and the level of alcohol or a testable drug (or both) in the sample negative result
a: that alcohol or a testable drug (or both) is not present in the bodily sample; or
b: if the Director, in carrying out Director testing, applies the permissible level of alcohol or a testable drug prescribed by the maritime rules, that alcohol or a testable drug is not present in the body at that specified level; or
c: if the Director, in carrying out Director testing, applies the permissible level of alcohol or a testable drug specified in the operator’s safety system, that alcohol or a testable drug is not present in the body at that specified level operator
a: operates a ship other than a pleasure craft; and
b: holds a maritime document for operating that ship; and
c: is required by maritime rules to establish and follow a management system for the purposes of section 17(4)﻿(a) safety-sensitive activity
a: means an activity that could significantly affect the health or safety of any person on board a ship, including the person performing the activity; and
b: includes an activity prescribed by the maritime rules safety-sensitive worker
a: means an individual who carries out work in any capacity for an operator in a role that involves the worker performing a safety-sensitive activity; and
b: includes the operator, if the operator is an individual safety system testable drug
a: means a drug that could impair a safety-sensitive worker’s performance of a safety-sensitive activity; and
b: includes a drug prescribed by the maritime rules; and
c: may include, for the purposes of section 40Z(4)﻿(a)
40Z: Director testing
1: The Director may carry out drug or alcohol testing of 1 or more safety-sensitive workers of an operator.
2: Director testing—
a: must be carried out in relation to alcohol and testable drugs; and
b: may be carried out without giving advance notification to the operator or to the workers selected for testing; and
c: may be carried out at any reasonable time and in any reasonable circumstances the Director considers appropriate; and
d: may be carried out only if the worker consents to be tested; and
e: must be carried out by a person who is competent to carry out the testing, including by having any necessary experience or qualifications.
3: Subject to this section, Director testing must be carried out in accordance with the maritime rules.
4: If the operator’s safety system includes a scheme for carrying out drug and alcohol testing of safety-sensitive workers, Director testing may, at the Director’s discretion, be carried out in relation to the testable drugs and the permissible levels of alcohol and testable drugs—
a: specified in the safety system; or
b: prescribed by the maritime rules.
5: When carrying out Director testing, the Director must—
a: carry a document that states—
i: the name and contact details of the person carrying out the test; and
ii: an explanation of the statutory power to carry out the test; and
iii: any other matter prescribed by the maritime rules; and
b: show the document to the worker on first approaching the worker and at any later time on request; and
c: take reasonable steps to establish the identity of a worker who is to be tested; and
d: ask for the worker’s consent before testing the worker; and
e: give the worker a written statement that contains the information and other matters set out in subsection (6).
6: The statement required under subsection (5)﻿(e) must contain the following:
a: the matters set out in the document referred to in subsection (5)﻿(b):
b: the purpose of the test:
c: a general description of how the test will be carried out, including how the bodily sample will be taken and how it will be analysed:
d: an explanation of the consequences of refusing to consent or of the worker’s test returning a result other than a negative result:
e: advice that the worker will be informed of the result of the test (and approximately when this will happen):
f: advice about the worker’s right to appeal to the District Court under section 424 against the decision to test the worker:
g: advice about the worker’s right to request a second test under section 40ZA
7: As soon as practicable after the Director becomes aware of the result of a test, the Director must give the test result to the worker tested and the operator.
8: A safety-sensitive worker who has been tested or selected for testing under this section may appeal against the decision to test that worker to the District Court under section 424.
40ZA: Worker may request second Director test
1: A worker who has undergone Director testing may, immediately after the test is carried out, ask the Director to carry out a second test for the same substance by the same method.
2: The Director must carry out a second test requested under this section.
3: If a second test is carried out under subsection (2),—
a: that second test and its results replace the first test and its results for the purposes of this Part; but
b: subsections (1) and (2) do not apply so as to require a further test.
40ZB: What happens if worker refuses consent or test result is not negative
1: A safety-sensitive worker who has been selected for Director testing may refuse to consent to the testing.
2: If a worker refuses to consent to Director testing or is tested and returns a result other than a negative result, the Director must notify the operator for whom the worker carries out work of that fact as soon as practicable.
3: If the Director notifies the operator under subsection (2), the operator must prohibit the worker from performing safety-sensitive activities until the operator reasonably believes that the worker is able to safely perform those activities.
4: Subsection (3)—
a: applies regardless of any scheme for carrying out drug and alcohol testing of safety-sensitive workers in the operator’s safety system; but
b: does not in any other way limit the operation of that scheme.
40ZC: Use of test results in criminal proceedings
Test results obtained from Director testing are not admissible in any criminal proceedings other than the prosecution of an offence against any of the following:
a: this Act:
b: the Health and Safety at Work Act 2015:
c: the Hazardous Substances and New Organisms Act 1996.
2: Oil pollution compensation and LLMC Convention amendments
1: Amendments to Maritime Transport Act 1994
6: New section 2A inserted (Transitional, savings, and related provisions)
After section 2
2A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA
7: Section 86 amended (Claims subject to limitation of liability)
In section 86(3) also (as amended by the LLMC Protocol)
8: Section 87 amended (Calculation of limits of liability)
In section 87(5) LLMC Convention LLMC Convention (as amended by the LLMC Protocol)
9: Section 88 amended (Units of account)
In section 88(2) LLMC Convention LLMC Convention (as amended by the LLMC Protocol)
10: Section 342 amended (Interpretation)
1: In section 342 CLC ship CLC ship
2: In section 342
2: In the Civil Liability Convention, ship
11: Heading to Part 26 amended
In the heading to Part 26 International Oil Pollution Fund and Supplementary Fund
12: Section 370 amended (Interpretation)
1: In section 370
a: repeal the definition of Convention ship
b: the definition of International Oil Pollution Fund or the Fund
2: In section 370 owner owner
3: In section 370 fund International Oil Pollution Supplementary Fund Supplementary Fund Supplementary Fund Protocol
13: Cross-heading above section 371 amended
In the cross-heading above section 371 Fund and Supplementary Fund
14: Section 371 replaced (International Oil Pollution Fund to have legal personality)
Replace section 371
371: International Oil Pollution Fund and Supplementary Fund declared to be legal entities
The International Oil Pollution Fund and the Supplementary Fund are legal entities and each fund has all the rights, powers, duties, and liabilities of a legal person.
15: Section 372 amended (Compensation from International Oil Pollution Fund for certain pollution damage)
1: In the heading to section 372 Fund and Supplementary Fund
2: In section 372
a: replace shall pay must pay
b: replace 373 373(1)
c: replace convention ship CLC ship
3: In section 372
2: Subject to the provisions of this Part, the Supplementary Fund must pay compensation, up to a maximum amount determined under section 373(1A)
16: Section 373 amended (Maximum amount of liability of International Oil Pollution Fund)
1: In the heading to section 373 Fund and Supplementary Fund
2: In section 373(1) The maximum amount for which the International Oil Pollution Fund shall be liable for pollution damage under section 372 shall be fixed from time to time, by Order in Council, and, until such time as the maximum amount is so fixed, shall be,— The maximum amount for which the International Oil Pollution Fund is liable for pollution damage under section 372(1)
3: After section 373(1)
1A: The maximum amount for which the Supplementary Fund is liable for pollution damage under section 372(2) section 372(1)
4: In section 373(2)
a: replace The maximum A maximum
b: replace shall apply applies
c: replace shall so apply applies
17: Section 374 amended (International Oil Pollution Fund’s liability for compensation avoided or limited in certain cases)
1: In section 374(2) shall not be liable under section 372 is not liable under section 372(1)
2: In section 374(3) shall be reduced is reduced
3: In section 374(4) shall apply applies
18: Section 375 amended (Several claims for compensation from International Oil Pollution Fund)
1: In section 375(1)
a: replace section 372 section 372(1)
b: replace shall determine must determine
2: In section 375(2)
a: replace section 372 section 372(1)
b: replace section 373 section 373(1)
c: replace shall order must order
19: Cross-heading above section 378 amended
In the cross-heading above section 378 Fund or Supplementary Fund
20: Section 378 amended (Time for bringing proceedings against International Oil Pollution Fund)
1: In the heading to section 378 Fund or Supplementary Fund
2: In section 378(1)
a: after against the International Oil Pollution Fund or the Supplementary Fund
b: replace shall be brought may be brought
c: replace served on the International Oil Pollution Fund served on the fund
21: Section 379 amended (Jurisdiction of court in respect of claims against International Oil Pollution Fund)
1: In the heading to section 379 Fund or Supplementary Fund
2: In section 379(1) Fund or the Supplementary Fund
3: Replace section 379(2)
2: If an action to enforce a claim for compensation for pollution damage under the Civil Liability Convention has been brought before a court in a State that is a party to that convention but is not a party to the Fund Convention or the Supplementary Fund Protocol, an action by the claimant against the International Oil Pollution Fund for compensation under Article 4 of the Fund Convention (or against both that fund under Article 4 of the Fund Convention and the Supplementary Fund under Article 4 of the Supplementary Fund Protocol) may be brought before a court in New Zealand, and the provisions of this Part apply accordingly.
22: Section 380 replaced (Notice of proceedings against International Oil Pollution Fund)
Replace section 380
380: Notice of proceedings against International Oil Pollution Fund or Supplementary Fund
If proceedings are brought against the International Oil Pollution Fund or the Supplementary Fund under section 372, the Registrar of the court in which the documents commencing the proceedings are filed must send copies of those documents to the Director.
23: Section 381 replaced (Notice to and joining of International Oil Pollution Fund in certain proceedings)
Replace section 381
381: Notice to and joining of International Oil Pollution Fund and Supplementary Fund in certain proceedings
1: In proceedings brought in a court against the owner of a CLC ship, or the owner’s insurer, to enforce a claim in respect of any liability incurred under section 372,—
a: either party to the proceedings may serve a notice on the International Oil Pollution Fund or on the Supplementary Fund; and
b: either party may join the fund served in the action; and
c: the fund served may apply to the court to be joined in the action.
2: A notice served under subsection (1)﻿(a) must—
a: give sufficient details of the cause of action to allow the fund served to decide whether to apply to be joined in the action; and
b: specify a period of 30 days, or a lesser period ordered by the court, for the fund served to apply to be joined in the action.
3: If the fund served applies to be joined in the action, the court must join the fund in the proceedings.
4: If a fund has been served under subsection (1)﻿(a) but has not been joined in the proceedings, the judgment of the court is final and binding on the fund to the extent that the fund may not challenge the findings of the court in any proceedings relating to the same cause of action.
24: Section 382 amended (Reciprocal enforcement of judgments against International Oil Pollution Fund)
1: In the heading to section 382 Fund or Supplementary Fund
2: In section 382(1)
a: replace shall apply applies
b: replace the International Oil Pollution Fund in a country in respect of which the Fund Convention is in force the International Oil Pollution Fund or the Supplementary Fund in a country in respect of which the Fund Convention or the Supplementary Fund Protocol (as the case may be) is in force
3: In section 382(2) shall have no effect have no effect
4: In section 382(3)
a: after Fund Convention or the Supplementary Fund Protocol
b: replace that Convention that convention or paragraph 3 of Article 4 of that protocol (as the case may be)
c: replace shall be the judgment is the judgment
25: Section 383 amended (Rights of subrogation of International Oil Pollution Fund)
1: In the heading to section 383 Fund or Supplementary Fund
2: In section 383
a: after from the International Oil Pollution Fund or the Supplementary Fund
b: replace then the International Oil Pollution Fund shall (up to the amount of compensation paid) be subrogated the fund is (up to the amount of compensation paid) subrogated
3: In section 383(b)
a: replace the International Oil Pollution Fund the fund
b: replace shall be as favourable must be as favourable
26: Section 385 amended (Levies on oil imports)
1: In section 385(1)
a: delete 11,
b: delete from time to time
2: After section 385(1)
1A: For the purpose of complying with the requirements of Articles 10 to 15 of the Supplementary Fund Protocol, the Governor-General may, by Order in Council, impose a levy on oil carried by sea and landed from a ship in any port or oil transfer site in New Zealand (whether or not landed from a country outside New Zealand).
3: In section 385(2) subsection (1), any such Order in Council subsections (1) and (1A), an Order in Council under this section
27: New Schedule 1AA inserted
Insert the Schedule 1AA Schedule 1
2: Consequential amendments and revocation
28: Consequential amendment to Biosecurity Law Reform Act 2012
1: This section amends the Biosecurity Law Reform Act 2012
2: In section 86(10)
n: prescribing requirements and procedures relating to the control and management of ballast water for the purposes of the convention, including provision for the Director to issue guidelines in accordance with the convention. 2018-06-15 Biosecurity Law Reform Act 2012
29: Consequential amendments and revocation: Maritime Transport (Fund Convention) Levies Order 1996
1: Amend the Maritime Transport (Fund Convention) Levies Order 1996 Schedule 2
2: The Maritime Transport (Fund Convention) Levies Amendment Order 1999 2018-06-15 Maritime Transport (Fund Convention) Levies Order 1996 Maritime Transport (Fund Convention) Levies Amendment Order 1999
3: Miscellaneous amendments
30: Section 33M amended (Navigation bylaws)
1: After section 33M(1)
1A: In relation to the launch of a vehicle or an object that a person has a licence or permit under New Zealand law to launch into outer space, a regional council may, in consultation with the Director, make bylaws—
a: to prohibit or regulate the use of ships:
b: to regulate, or authorise a person to regulate, the admission of persons to specified areas.
1B: The agreement dated 16 September 2016 between Her Majesty the Queen in right of New Zealand acting by and through the Minister for Economic Development, Rocket Lab Limited (a company incorporated under the Companies Act 1993 under company number 1835428), and Rocket Lab USA (a corporation incorporated in the United States of America) is to be treated as a licence or permit under New Zealand law for the purposes of subsection (1A).
2: In section 33M(2) subsection (1) or (1A)
31: Section 33Q replaced (Entitlement to infringement fees)
Replace section 33Q
33Q: Entitlement to infringement fees
A regional council is entitled to retain any infringement fee it receives in respect of an infringement offence—
a: under section 33O if the infringement notice was issued by a harbourmaster or an enforcement officer of the council:
b: under section 422 if—
i: the infringement offence is a breach of a maritime rule or a navigation bylaw prescribed as an infringement offence by regulations made under section 201(1)﻿(b); and
ii: the infringement notice was issued under section 423 by a harbourmaster or an enforcement officer of the council.
32: Section 33X amended (Delegation or transfer of council’s responsibilities)
1: In section 33X(1) regional council or territorial authority
2: After section 33X(2)
2A: A territorial authority may transfer its responsibilities under section 33I to another public authority.
3: In section 33X(3) under subsection (2) to a port operator under subsection (2) or (2A) to a port operator or a council-controlled organisation
4: After section 33X(3)
3A: The transfer of a responsibility described in section 33I does not have the effect of transferring ownership of any works constructed under that section.
5: Replace section 33X(4)
4: A transfer of a responsibility under this section may only be made if—
a: the parties to the proposed transfer have agreed on the terms of the proposed transfer; and
b: the parties to the proposed transfer have notified the Minister of the proposed transfer.
4A: A local authority that is party to a proposed transfer must not agree to the transfer unless satisfied, after consultation in accordance with section 82 of the Local Government Act 2002, that the benefits of the proposed transfer to the authority’s district or region will outweigh any negative impacts of the proposal.
4B: From the time a transfer takes effect, the responsibilities and powers of the party receiving the transfer are extended as necessary to enable that party to undertake, exercise, and perform the transferred responsibilities.
4C: A party to a transfer may, in accordance with this section, initiate—
a: a variation of the terms of the transfer; or
b: the reversal of the transfer.
33: Section 36 amended (Maritime rules relating to other matters)
1: In section 36(1) rules for all or any of the following purposes rules that provide for all or any of the following
2: In section 36(1)﻿(c) to (h), (j), (l) to (ta), (tc), and (td) prescribing
3: Replace section 36(1)﻿(i)
i: defining operating limits and pilotage limits:
ia: requirements concerning pilotage, including when and where, and the classes of ships for which, pilotage is required or not required:
4: In section 36(1)﻿(k)
a: delete requiring
b: delete prescribing
5: In section 36(1)﻿(u) prescribing or providing for
34: Section 60B amended (Limitation of liability where pilot engaged)
Replace section 60B(3)
3: A pilot is not liable for neglect or want of skill when acting as a pilot,—
a: on board a ship being provided with pilotage; or
b: in accordance with the maritime rules, on land or on board another ship.
35: Section 201 amended (Regulations)
1: In section 201(1)﻿(d)﻿(i) shall be a fine not exceeding must not exceed
2: In section 201(1)﻿(d)﻿(ii) shall be a fine not exceeding must not exceed
36: Section 225 amended (Interpretation)
In section 225 marine protection product
a: before paragraph (a), insert:
aa: anything or any substance specified as a marine protection product for the purposes of this definition by the marine protection rules; and
b: in paragraph (b), replace sea;— sea
c: after paragraph (b), delete and includes anything that is specified as a marine protection product for the purposes of this definition by the marine protection rules
37: Section 388 amended (Marine protection rules in relation to harmful and other substances)
1: In section 388(a) to (d)
2: In section 388(e) to (h) and (j) to (m)
38: Section 452 amended (Incorporation by reference)
In section 452(5) offices head office