Proposed 2019 Amendments to Merchant Shipping Act serve no purpose

By Capt. Ranjith Weerasinghe

The Merchant Shipping Act 52 of 1971 was enacted mainly to cast off and set sail on the maiden voyage of the State-owned Ceylon Shipping Corporation. From there onwards not a single ship’s regulation has ever been promulgated by any of the successive governments of this country. But 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 have been implemented by the parliamentary legislative mechanism of the country to date, although that was exactly the responsibility and undertaking agreed at the accession to those conventions in the IMO circuit.

Within the last 48 years since the enactment of Merchant Shipping Act, the shipping industry in Sri Lanka has been transformed into a maritime industry with many facets, within which three main components are significant: Ports, Shipping and Maritime & Logistic Services. Now with only Shipping covered by the Act, as was the sole requirement then, how could such an archaic and weak Merchant Shipping Act facilitate the propelling of a thriving maritime industry? This is why the maritime industry has long been explaining to successive governments the need for revamping the entire Act and promulgating proper ancillary regulations for, to start with, a Maritime Development Project.

In the absence of any enthusiastic action for the development of regulations for operating local ships and boats, an initiative has been taken by the Export Development Board recently to develop a regulatory structure for the boat-building industry as an export product and an export service in the tourism sector, for which Boat Operational Regulations are a pre-requisite. Learning that there are no such Merchant Shipping Regulations in the country for boats or coastal vessels of any nature, 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 Merchant Shipping Act with the Director General of Merchant Shipping (DGMS) as the Chief Executing officer.  However, quite unknown to the maritime industry, without any consultations with stakeholders, there had been a Government gazette published on 1 July 2019 to bring in amendments to the Merchant Shipping Act – some 30 clauses between Section 138 and Section 330. The irony is, this amendment has taken no notice of the impending changes needed to accommodate the EDB-initiated Boats and Small Vessels Regulations. The main purpose of the intended amendments of the Merchant Shipping Act appears to be the following: 

1.To merely change the names of IMO (International Maritime Organisation) Conventions mentioned in the Act, as they are currently known, without actually giving legal effect to adopting them legislatively, as was the case ever since Sri Lanka acceded to them from early 1970s; meaning they still have no effect in the law of the land. The reason given hitherto for not adopting the IMO conventions were “the difficulties in translating the highly technical IMO conventional Regulations in to Sinhala and Tamil languages.” Without adopting the provisions of the IMO conventions as suited to the country by providing a Sinhala and Tamil version, how can the Parliament allow DGMS to adopt ‘IMO Regulations’ or circumvent the actual regulations needed by this kind of amendment?

2.To empower the DGMS to circumvent at will the existing 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 for corrupt practices otherwise restricted by regulations laid down and gazetted only by the Minister, as has been empowered by the Act. 

 3.Out of the 28 clauses intended for change, 22 of them are to increase the penalties for violating regulations, from few hundred rupees (Rs. 500 to Rs. 3000) to a few million rupees (Rs. 1 million  to Rs. 5 million), which are quite contradictory to economy of the country when there are no ships regulations to violate since 1971 enactment of the Act in the first place. Except now it intends to enforce “Implementing Standards” circumventing the Regulations; the Act alone does not provide ancillary regulations to implement laws unless promulgated by the Minister via gazettes and parliamentary legislations.

This EDB-initiated exercise is all about bringing in new regulations that this country did not have for last 48 years since the enactment of the Merchant Shipping Act.

 Three things could have been done even now by the Ministry of Shipping: One is to legislatively give 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; and thirdly and most importantly, to revamp the entire Merchant Shipping Act to encompass all maritime activity in the country, which is a far-fetched notion in the current MS Act. It is the earnest hope of the industry that the Minister in charge of the EDB and the Minister of Ports and Shipping take this opportunity to do it justice by working towards a common goal.