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PART I – PRELIMINARY
| 1. |
Short title
This Act may be cited as the Merchant Shipping Act, 2009.
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| 2. |
Interpretation
| (1) |
In this Act, unless the context otherwise requires—
“apprentice” means an apprentice to sea service;
“authorised officer” in relation to any provision of this Act, means a person designated as such by the Director-General under the Kenya Maritime Authority Act, 2006 ( No. 5 of 2006);
“Authority” means the Kenya Maritime Authority established under the Kenya Maritime Authority Act, 2006 ( No. 5 of 2006);
“bareboat charter registration” means a legal arrangement whereby the nationality of the bareboat charterer, as the owner of the ship pro hac vic, is allocated to the ship and evidenced by flying the flag of that nation during the life of the charter;
“bareboat charter terms” in relation to a ship, means the hiring of the ship for a stipulated period on terms which give the charterer possession and control of the ship, including the right to appoint the master and the crew;
“cargo ship” means a ship which is not a passenger ship;
“certificate of competence” means a certificate issued to a person under Part VII which entitles the person to be employed in the capacity stated in the certificate;
“certificate of registry” means a certificate by that name granted pursuant to section 34;
“charter period” means the period during which the ship is chartered on bareboat charter terms;
“child” means a person under eighteen years of age;
“Collision Regulations” means the Convention on the International Regulations for Preventing Collisions at Sea, 1972;
“consular officer” means a person discharging the duties of a consular officer on behalf of the Government of Kenya, and when used in relation to a State other than Kenya means the officer recognised by the Government of Kenya as a consular officer of that other State;
“contravention” includes failure or refusal to comply;
“country of original registry” unless the context provides otherwise shall be construed as the “country of underlying registry”;
“country of underlying registry” means the registry and flag to which the ship reverts upon termination of the bareboat charter;
“court” means the High Court of Kenya;
“damage to the environment” means a substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents;
“dangerous goods” or “goods of a dangerous nature” shall carry the same meaning as contained in the SOLAS Convention, as amended from time to time;
“declaration of transmission” means a declaration authenticating the transmission of property under section 83 of this Act;
“designated ship” means a ship for the time being under provisional registration;
“Director-General” means the Director-General of the Kenya Maritime Authority appointed under the Kenya Maritime Authority Act, 2006 ( No. 5 of 2006);
“distressed seafarer” includes any seafarer in distress in any place outside Kenya and any seafarer whether a citizen of Kenya or not, shipwrecked from a Kenyan ship or is otherwise in distress in any place;
“employer” in relation to a seafarer, means the person who has entered into a crew agreement with the seafarer for the employment of the seafarer on a ship;
“equipment” in relation to a ship, includes every thing or article belonging to or used in connection with, or necessary for the navigation and safety of the ship;
“existing ship” means any ship other than a new ship;
“fishing vessel” means a vessel for the time being used or, intended to be used, for or in connection with fishing other than a vessel used or intended to be used for fishing otherwise than for profit or a vessel for the time being used or intended to be used wholly for the purpose of conveying persons wishing to fish for pleasure;
“foreign country” means any country or place other than Kenya;
“foreign ship” means a ship not registered in Kenya;
“foreign going ship” means a ship employed in voyages beyond the limits of a local trade voyage;
“freeboard” means the distance measured vertically downwards amidships, from the upper edge of the deck line to the upper edge of the related loadline;
“freight” includes passage money and hire;
“Government” means the Government of the Republic of Kenya;
“Government ship” means any ship owned by the Government or held by any person on behalf of or for the benefit of the Government;
“grain” includes millet, wheat, maize (corn), oats, rye, barley, rice, pulses, sesame and seeds;
“harbour” includes estuaries, piers, jetties and other works in or at which ships can obtain shelter or ship and unship goods or passengers;
“inspector” means the person appointed as such under section 409 of this Act;
“international voyage” means a voyage from a port or place in Kenya to a port or place outside the territorial limits of Kenya, or conversely;
“islands” means all the islands comprised within the Republic of Kenya;
“internal waters”, in relation to Kenya, means Kenyan waters landward of the baselines for measuring the breadth of its territorial sea;
“Kenyan ship” means a ship registered in Kenya under this Act, and “Kenyan vessel” and “Kenyan fishing vessel” shall be construed accordingly;
“Kenyan waters” mean the sea or other waters within the seaward limits of the territorial sea of Kenya;
“Load Line Convention” means the International Convention on Load Lines, 1966 as may, from time to time, be amended;
“Load Line convention ship” means a ship that is—
| (a) |
of a kind to which the Load Line Convention applies; and
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| (b) |
registered in a country the Government of which has accepted or acceded to the Load Line Convention and has not denounced that Convention;
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“local load line certificate” means a certificate by that name issued under regulations made for the purpose of Part X;
“local safety certificate” means a certificate by that name issued under regulations made for the purpose of Part IX;
“local voyage” means a voyage between the mainland and any of the islands or between any of those islands;
“managing owner” means a person other than the registered owner who undertakes the day to day management of the ship on behalf of the owner;
“maritime casualty” means a collision of vessels, stranding or other incident of navigation or other occurrence on board a vessel or external to it, resulting in material damage or imminent threat of material damage to a vessel or cargo;
“maritime service provider” means any person providing in the maritime industry the service of crewing agencies, pilotage services, clearing and forwarding agents, port facility operator, shipping line, shipping agent, terminal operator, container freight station, quay side service provider, general ship contractor, ship broker, ship breaker, ship chandler, cargo consolidator, ship repairer, maritime training or such other service as the Minister may, by notice in the Gazette, appoint;
“master” includes every person, except a pilot, having command or charge of a ship and, in relation to a fishing vessel, means the skipper;
“mile” means an international nautical mile of 1,852 metres;
“Minister” means the Minister for the time being responsible for matters relating to shipping and seafarers;
“mortgage” means an instrument of security of the kind referred to in section 95;
“motor ship” includes a steamship and any other ship propelled by machinery, but not a sailing ship;
“national flag” means the national flag of Kenya;
“near coastal voyage” means—
| (a) |
a voyage made exclusively within waters under Kenyan jurisdiction; and
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| (b) |
the ship is for the entire voyage within fifty miles from a safe haven in the Kenya; or
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| (c) |
a voyage which, by agreement between Kenya and another state, is considered or treated as a near coastal voyage;
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“new ship” means a ship—
| (a) |
the keel of which was laid; or
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| (b) |
that has been substantially—
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after the commencement of this Act;
“nuclear ship” means a ship provided with a nuclear power plant;
“official log book” means the official log book required to be kept under section 198;
“Organization” means the International Maritime Organization and “IMO” shall be construed accordingly;
“owner” in relation to a ship, or “shipowner” means, in respect of a registered ship, the registered owner and includes a demise charterer and a managing owner or a managing agent;
“passenger” means any person carried on a ship except—
| (a) |
a person employed or engaged in any capacity on the business of the ship;
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| (b) |
a person on board the ship, either in pursuance of the obligation laid upon the master to carry shipwrecked, distressed or other persons, or by reason of any circumstance that neither the master nor the owner nor the charterer, if any, could have prevented or forestalled;
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“passenger ship” means a ship which is constructed for, or which is habitually or on any particular occasion used for carrying more than twelve passengers and includes a ship that is provided for the transport or entertainment of lodgers at any institution, hotel, boarding house, guest house or other establishment;
“pilot” in relation to the ship, means a person not belonging to the ship who has the lawful conduct of the ship;
“pleasure vessel” means any vessel including a dive boat which at the time it is being used is—
| (a) |
in the case of a vessel wholly owned by an individual or individuals, used only for the sport or pleasure of the owner or the immediate family of the owner;
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| (b) |
in the case of a vessel owned by a body corporate, one on which the persons are employees, officers or shareholders of the body corporate, or their immediate family;
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| (c) |
on a voyage or excursion which is one for which the owner does not receive money for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion;
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| (d) |
any vessel wholly owned by or on behalf of a club formed for the purpose of sport or pleasure which, at the time it is being used, is used only for the sport or pleasure of members of the club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club;
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| (e) |
in the case of any vessel referred to in paragraph (a) or (b), no other payments are made by or on behalf of the users of the vessel, other than by the owner; and in this definition—
| (i) |
“immediate family” means, in relation to an individual, the husband or wife of the individual, and a relative of the individual or the relative’s husband or wife;
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| (ii) |
“relative” means brother, sister, ancestor or lineal descendant, and “owner” includes charterer;
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“pollution” means the introduction, directly or indirectly, by human activity, of wastes into the sea which results or is likely to result in deleterious effects including harm to living resources and marine ecosystems, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities;
“port” means a place, whether proclaimed a harbour or not, and whether natural or artificial, to which ships may resort for shelter or to ship or unship goods or passengers;
“port authority” includes all persons entrusted with the function of managing, regulating and maintaining a harbour;
“port of registry” in relation to a ship, means the port at which she is registered or is provisionally registered;
“prescribed” means prescribed by regulations made under this Act;
“proceedings” in relation to Part XIX and XX, includes any suit, approval or application;
“proper officer” in relation to any function or activity under this Act, means a person authorised by the competent authority to perform that function or activity and includes a consular officer;
“proper return port” in relation to seafarer, means—
| (a) |
the port from which he was shipped;
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| (b) |
in the case of a seafarer, other than a seafarer shipped in Kenya, a port in the country to which he belongs; or
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| (c) |
in the case of a discharged seafarer, a port agreed by the seafarer at the time of his discharge;
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“property” means any property not permanently and intentionally attached to the shoreline and includes freight at risk, and wherever the context so requires also includes a vessel, cargo, equipment and effects;
“property of a seafarer” means any monies due to a seafarer, his personal effects, the proceeds of the sale of such effects and the balance of any wages due to a seafarer;
“receiver of wreck” means a person appointed as such under the Kenya Maritime Authority Act (Cap. 370);
“register” means the register of ships referred to in section 25;
“Registrar of Ships” means a person appointed as such under the Kenya Maritime Authority Act (Cap. 370);
“regulations” means the regulations made under this Act;
“Safety Convention” has the meaning assigned to it in section 229 of the Act;
“sailing vessel” means any description of a vessel provided with sufficient sail area for navigation under sails alone, whether or not fitted with mechanical means of propulsion; but does not include a pleasure vessel;
“salvage” includes, subject to the Salvage Convention, all expenses properly incurred by the salvor in the performance of the salvage services;
“Salvage Convention” means the International Convention on Salvage, 1989;
“salvage operation” means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters;
“salvage services” means services rendered in direct connection with salvage operations;
“salvor” means any person rendering salvage services;
“seafarer” includes every person (except a master, pilot or apprentice duly contracted or indentured and registered) employed or engaged in any capacity on board a ship;
“seagoing” in relation to a vessel, means a vessel proceeding to sea beyond internal waters;
“ship” includes every description of vessel used in navigation;
“ship registered under this Act” means a ship registered under Part IV;
“small ship” means a ship of less than 24 metres;
“STCW Convention” means the International Convention on Standards of Training, Certification and Watchkeeping, 1978, as affected by any amendment made under Article XII of that Convention;
“submersible craft” means a ship that can travel under water but which operates on a tether or umbilical to a tender such as submarines, surface vessel or platform but shall in any event, not include a submarine;
“surveyor of ships” means a person appointed under the Kenya Maritime Authority Act (Cap. 370);
“tonnage certificate” means a certificate granted pursuant to section 26;
“Tonnage Convention” means the International Convention on Tonnage Measurement of Ships, 1969;
“tonnage regulations” means regulations made under section 60 of this Act;
“vessel” includes any ship, boat, sailing vessel, or other description of vessel used in navigation;
“wages” includes emoluments;
“wreck” includes flotsam, jetsam, lagan and derelict found in or on the shores of the sea or of any tidal water, the whole or any portion of a ship lost, abandoned, stranded or in distress, any portion of the cargo, stores or equipment of such a ship, and any portion of the personal property on board such a ship when it was lost, stranded, abandoned or in distress, and includes the following when found in the seas or in tidal water or on the shores thereof—
| (a) |
goods which have been cast into the sea and then sink and remain under water;
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| (b) |
goods which have been cast or fall into the sea and remain floating on the surface;
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| (c) |
goods which are sunk into the sea, but are attached to a floating object in order that they may be found again;
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| (d) |
goods which are thrown away or abandoned; and
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| (e) |
a vessel abandoned without hope or intention of recovery.
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| 2. |
Interpretation
| (1) |
In this Act, unless the context otherwise requires—
“apprentice” means an apprentice to sea service;
“authorised officer” in relation to any provision of this Act, means a person designated as such by the Director-General under the Kenya Maritime Authority Act, 2006 ( No. 5 of 2006);
“Authority” means the Kenya Maritime Authority established under the Kenya Maritime Authority Act, 2006 (No. 5 of 2006);
“bareboat charter registration” means a legal arrangement whereby the nationality of the bareboat charterer, as the owner of the ship pro hac vic, is allocated to the ship and evidenced by flying the flag of that nation during the life of the charter;
“bareboat charter terms” in relation to a ship, means the hiring of the ship for a stipulated period on terms which give the charterer possession and control of the ship, including the right to appoint the master and the crew;
“Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters related to merchant shipping;
“cargo ship” means a ship which is not a passenger ship;
“certificate of competence” means a certificate issued to a person under Part VII which entitles the person to be employed in the capacity stated in the certificate;
“certificate of registry” means a certificate by that name granted pursuant to section 34;
“charter period” means the period during which the ship is chartered on bareboat charter terms;
“child” means a person under eighteen years of age;
“Collision Regulations” means the Convention on the International Regulations for Preventing Collisions at Sea, 1972;
“consular officer” means a person discharging the duties of a consular officer on behalf of the Government of Kenya, and when used in relation to a State other than Kenya means the officer recognised by the Government of Kenya as a consular officer of that other State;
“contravention” includes failure or refusal to comply;
“country of original registry” unless the context provides otherwise shall be construed as the “country of underlying registry”;
“country of underlying registry” means the registry and flag to which the ship reverts upon termination of the bareboat charter;
“court” means the High Court of Kenya;
“damage to the environment” means a substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents;
“dangerous goods” or “goods of a dangerous nature” shall carry the same meaning as contained in the SOLAS Convention, as amended from time to time;
“declaration of transmission” means a declaration authenticating the transmission of property under section 83 of this Act;
“designated ship” means a ship for the time being under provisional registration;
“Director-General” means the Director-General of the Kenya Maritime Authority appointed under the Kenya Maritime Authority Act, 2006 ( No. 5 of 2006);
“distressed seafarer” includes any seafarer in distress in any place outside Kenya and any seafarer whether a citizen of Kenya or not, shipwrecked from a Kenyan ship or is otherwise in distress in any place;
“employer” in relation to a seafarer, means the person who has entered into a crew agreement with the seafarer for the employment of the seafarer on a ship;
“equipment” in relation to a ship, includes every thing or article belonging to or used in connection with, or necessary for the navigation and safety of the ship;
“existing ship” means any ship other than a new ship;
“fishing vessel” means a vessel for the time being used or, intended to be used, for or in connection with fishing other than a vessel used or intended to be used for fishing otherwise than for profit or a vessel for the time being used or intended to be used wholly for the purpose of conveying persons wishing to fish for pleasure;
“foreign country” means any country or place other than Kenya;
“foreign ship” means a ship not registered in Kenya;
“foreign going ship” means a ship employed in voyages beyond the limits of a local trade voyage;
“freeboard” means the distance measured vertically downwards amidships, from the upper edge of the deck line to the upper edge of the related loadline;
“freight” includes passage money and hire;
“Government” means the Government of the Republic of Kenya;
“Government ship” means any ship owned by the Government or held by any person on behalf of or for the benefit of the Government;
“grain” includes millet, wheat, maize (corn), oats, rye, barley, rice, pulses, sesame and seeds;
“harbour” includes estuaries, piers, jetties and other works in or at which ships can obtain shelter or ship and unship goods or passengers;
“inspector” means the person appointed as such under section 14 of the Kenya Maritime Authority Act, 2006;
“international voyage” means a voyage from a port or place in Kenya to a port or place outside the territorial limits of Kenya, or conversely;
“islands” means all the islands comprised within the Republic of Kenya;
“internal waters”, in relation to Kenya, means Kenyan waters landward of the baselines for measuring the breadth of its territorial sea;
“Kenyan ship” means a ship registered in Kenya under this Act, and “Kenyan vessel” and “Kenyan fishing vessel” shall be construed accordingly;
“Kenyan waters” mean the sea or other waters within the seaward limits of the territorial sea of Kenya;
“Load Line Convention” means the International Convention on Load Lines, 1966 as may, from time to time, be amended;
“Load Line convention ship” means a ship that is—
| (a) |
of a kind to which the Load Line Convention applies; and
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| (b) |
registered in a country the Government of which has accepted or acceded to the Load Line Convention and has not denounced that Convention;
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“local load line certificate” means a certificate by that name issued under regulations made for the purpose of Part X;
“local safety certificate” means a certificate by that name issued under regulations made for the purpose of Part IX;
“local voyage” means a voyage between the mainland and the mainland and any of the islands or between any of those islands;
“managing owner” means a person other than the registered owner who undertakes the day to day management of the ship on behalf of the owner;
“maritime casualty” means a collision of vessels, stranding or other incident of navigation or other occurrence on board a vessel or external to it, resulting in material damage or imminent threat of material damage to a vessel or cargo;
“maritime service provider” means any person providing in the maritime industry the service of crewing agencies, pilotage services, clearing and forwarding agents, port facility operator, shipping line, shipping agent, terminal operator, container freight station, quay side service provider, general ship contractor, ship broker, ship breaker, ship chandler, cargo consolidator, ship repairer, maritime training or such other service as the Minister may, by notice in the Gazette, appoint;
“master” includes every person, except a pilot, having command or charge of a ship and, in relation to a fishing vessel, means the skipper;
“mile” means an international nautical mile of 1,852 metres;
“Minister” means the Cabinet Secretary;
“mortgage” means an instrument of security of the kind referred to in section 95;
“motor ship” includes a steamship and any other ship propelled by machinery, but not a sailing ship;
“national flag” means the national flag of Kenya;
“near coastal voyage” means—
| (a) |
a voyage made exclusively within waters under Kenyan jurisdiction; and
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| (b) |
the ship is for the entire voyage within fifty miles from a safe haven in the Kenya; or
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| (c) |
a voyage which, by agreement between Kenya and another state, is considered or treated as a near coastal voyage;
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“new ship” means a ship—
| (a) |
the keel of which was laid; or
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| (b) |
that has been substantially—
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after the commencement of this Act;
“nuclear ship” means a ship provided with a nuclear power plant;
“official log book” means the official log book required to be kept under section 198;
“Organization” means the International Maritime Organization and “IMO” shall be construed accordingly;
“owner” in relation to a ship, or “shipowner” means, in respect of a registered ship, the registered owner and includes a demise charterer and a managing owner or a managing agent;
“passenger” means any person carried on a ship except—
| (a) |
a person employed or engaged in any capacity on the business of the ship;
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| (b) |
a person on board the ship, either in pursuance of the obligation laid upon the master to carry shipwrecked, distressed or other persons, or by reason of any circumstance that neither the master nor the owner nor the charterer, if any, could have prevented or forestalled;
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“passenger ship” means a ship which is constructed for, or which is habitually or on any particular occasion used for carrying more than twelve passengers and includes a ship that is provided for the transport or entertainment of lodgers at any institution, hotel, boarding house, guest house or other establishment;
“pilot” in relation to the ship, means a person not belonging to the ship who has the lawful conduct of the ship;
“pleasure vessel” means any vessel including a dive boat which at the time it is being used is—
| (a) |
in the case of a vessel wholly owned by an individual or individuals, used only for the sport or pleasure of the owner or the immediate family of the owner;
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| (b) |
in the case of a vessel owned by a body corporate, one on which the persons are employees, officers or shareholders of the body corporate, or their immediate family;
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| (c) |
on a voyage or excursion which is one for which the owner does not receive money for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion;
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| (d) |
any vessel wholly owned by or on behalf of a club formed for the purpose of sport or pleasure which, at the time it is being used, is used only for the sport or pleasure of members of the club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club;
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| (e) |
in the case of any vessel referred to in paragraph (a) or (b), no other payments are made by or on behalf of the users of the vessel, other than by the owner; and in this definition—
| (i) |
“immediate family” means, in relation to an individual, the husband or wife of the individual, and a relative of the individual or the relative’s husband or wife;
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| (ii) |
“relative” means brother, sister, ancestor or lineal descendant, and “owner” includes charterer;
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“pollution” means the introduction, directly or indirectly, by human activity, of wastes into the sea which results or is likely to result in deleterious effects including harm to living resources and marine ecosystems, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities;
“port” means a place, whether proclaimed a harbour or not, and whether natural or artificial, to which ships may resort for shelter or to ship or unship goods or passengers;
“port authority” includes all persons entrusted with the function of managing, regulating and maintaining a harbour;
“port of registry” in relation to a ship, means the port at which she is registered or is provisionally registered;
“prescribed” means prescribed by regulations made under this Act;
“proceedings” in relation to Part XIX and XX, includes any suit, approval or application;
“proper officer” in relation to any function or activity under this Act, means a person authorised by the competent authority to perform that function or activity and includes a consular officer;
“proper return port” in relation to seafarer, means—
| (a) |
the port from which he was shipped;
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| (b) |
in the case of a seafarer, other than a seafarer shipped in Kenya, a port in the country to which he belongs; or
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| (c) |
in the case of a discharged seafarer, a port agreed by the seafarer at the time of his discharge;
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“property” means any property not permanently and intentionally attached to the shoreline and includes freight at risk, and wherever the context so requires also includes a vessel, cargo, equipment and effects;
“property of a seafarer” means any monies due to a seafarer, his personal effects, the proceeds of the sale of such effects and the balance of any wages due to a seafarer;
“receiver of wreck” means a person appointed as such under the Kenya Maritime Authority Act (Cap. 370);
“register” means the register of ships referred to in section 25;
“Registrar of Ships” means a person appointed as such under the Kenya Maritime Authority Act (Cap. 370);
“regulations” means the regulations made under this Act;
“Safety Convention” has the meaning assigned to it in section 229 of the Act;
“sailing vessel” means any description of a vessel provided with sufficient sail area for navigation under sails alone, whether or not fitted with mechanical means of propulsion; but does not include a pleasure vessel;
“salvage” includes, subject to the Salvage Convention, all expenses properly incurred by the salvor in the performance of the salvage services;
“Salvage Convention” means the International Convention on Salvage, 1989;
“salvage operation” means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters;
“salvage services” means services rendered in direct connection with salvage operations;
“salvor” means any person rendering salvage services;
“seafarer” includes every person (except a master, pilot or apprentice duly contracted or indentured and registered) employed or engaged in any capacity on board a ship;
“seagoing” in relation to a vessel, means a vessel proceeding to sea beyond internal waters;
“ship” includes every description of vessel used in navigation;
“ship registered under this Act” means a ship registered under Part IV;
“small ship” means a ship of less than 24 metres;
“STCW Convention” means the International Convention on Standards of Training, Certification and Watchkeeping, 1978, as affected by any amendment made under Article XII of that Convention;
“submersible craft” means a ship that can travel under water but which operates on a tether or umbilical to a tender such as submarines, surface vessel or platform but shall in any event, not include a submarine;
“surveyor of ships” means a person appointed under the Kenya Maritime Authority Act (Cap. 370);
“tonnage certificate” means a certificate granted pursuant to section 26;
“Tonnage Convention” means the International Convention on Tonnage Measurement of Ships, 1969;
“tonnage regulations” means regulations made under section 60 of this Act;
“vessel” includes any ship, boat, sailing vessel, or other description of vessel used in navigation;
“wages” includes emoluments;
“wreck” includes flotsam, jetsam, lagan and derelict found in or on the shores of the sea or of any tidal water, the whole or any portion of a ship lost, abandoned, stranded or in distress, any portion of the cargo, stores or equipment of such a ship, and any portion of the personal property on board such a ship when it was lost, stranded, abandoned or in distress, and includes the following when found in the seas or in tidal water or on the shores thereof—
| (a) |
goods which have been cast into the sea and then sink and remain under water;
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| (b) |
goods which have been cast or fall into the sea and remain floating on the surface;
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| (c) |
goods which are sunk into the sea, but are attached to a floating object in order that they may be found again;
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| (d) |
goods which are thrown away or abandoned; and
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| (e) |
a vessel abandoned without hope or intention of recovery.
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| 3. |
Application of the Act
| (1) |
Unless otherwise expressly provided, this Act shall apply to—
| (a) |
Kenyan ships wherever they may be; and
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| (b) |
all other ships while in a port or place in, or within the territorial and other waters under the jurisdiction of Kenya.
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| (2) |
Except as otherwise provided in this Act nothing in this Act shall apply to—
| (a) |
vessels of the Kenya Police;
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| (b) |
vessels of the Kenya Navy or foreign navy;
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| (c) |
aircraft of the defence forces, any other ships belonging to or under the control of the Government while employed otherwise than for profit or reward in the service of the Government.
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| (3) |
The Minister may make regulations prescribing the manner and extent to which the provisions of this Act shall apply to Government ships operated for non-commercial purposes.
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| (4) |
This Act applies to regulation of ships in inland waters.
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PART II – ADMINISTRATION
| 4. |
Power of Minister to administer Act
The Minister shall, in addition to any other power conferred on him by any other provisions of this Act, be responsible for the administration and implementation of this Act.
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| 5. |
Delegation by Minister
| (1) |
The Minister may, by notice in the Gazette, delegate to the Director-General or any other officer appointed under this Act and specified in such notification, the exercise of any powers (other than the power to make regulations) or the performance of any duties conferred or imposed on him by or under this Act, subject to such conditions and restrictions as may be specified in such notification.
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| (2) |
A delegation in the terms of subsection (1) shall not affect the exercise of such powers of the performance of such duties by the Minister.
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| (3) |
Every officer purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of such delegation.
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| 6. |
Relief from prosecution
No action shall lie against the Government or any public officer or other person appointed or authorised to perform any function under this Act in respect of anything done or omitted to be done by him in good faith in the exercise or performance of any power, authority or duty conferred or imposed on him under this Act.
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| 7. |
Power of Minister to give directions
The Minister may from time to time give the Director-General such general directions, not inconsistent with the provisions of this Act or any regulations made thereunder, on the policy to be pursued in the administration of this Act, as he may consider necessary, and the Director-General shall forthwith take such steps as are necessary or expedient to give effect thereto.
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| 8. |
Regulations
| (1) |
The Minister may make regulations generally for the better carrying out into effect the provisions of this Act.
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| (2) |
Without prejudice to the generality of the foregoing, the Minister may make regulations for the following purposes—
| (a) |
the extent to which this Act may be applicable to Government ships which are engaged in government non-commercial service;
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| (b) |
the facilitation of the enforcement of any international convention or instrument relating to this Act;
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| (c) |
prescribing anything that may be prescribed under this Act;
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| (d) |
prescribing fees, stamp duties and all other payments required under this Act;
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| (e) |
the holding of enquiries and investigations;
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| (f) |
port state control of ships while in Kenyan ports;
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| (g) |
the granting and withdrawal of licenses for maritime service providers;
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| (h) |
oversight and monitoring of service delivery in the maritime sector, having regard to availability, quality, standards of service, cost, efficiency of production and distribution of such services.
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|
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| 8. |
Regulations
| (1) |
The Minister may make regulations generally for the better carrying out into effect the provisions of this Act.
|
| (2) |
Without prejudice to the generality of the foregoing, the Minister may make regulations for the following purposes—
| (a) |
the extent to which this Act may be applicable to Government ships which are engaged in government non-commercial service;
|
| (b) |
the facilitation of the enforcement of any international convention or instrument relating to this Act;
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| (c) |
prescribing anything that may be prescribed under this Act;
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| (d) |
prescribing fees, stamp duties and all other payments required under this Act;
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| (e) |
the holding of enquiries and investigations;
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| (f) |
port state control of ships while in Kenyan ports;
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| (g) |
the granting and withdrawal of licenses for maritime service providers;
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| (gg) |
prescribing the requirements for licencing as a maritime services provider, the conditions subject to which a maritime services provider should operate and the standards to be maintained in the provision of services;
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| (h) |
oversight and monitoring of service delivery in the maritime sector, having regard to availability, quality, standards of service, cost, efficiency of production and distribution of such services.
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| 9. |
Director-General to maintain documents
The Director-General shall maintain in his office or some other designated public library or repository, a copy of—
| (a) |
(a) all conventions and international instruments referred to in this Act that have application in Kenya;
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| (b) |
all regulations and notices made pursuant to this Act,
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and, upon payment of a prescribed fee, copies shall be made available for inspection and for the taking of copies thereof by members of the public, seafarers or persons interested in shipping or protection of the marine environment, or other matters provided for in this Act.
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| 10. |
Surveys, inspections and monitoring
| (1) |
The Director-General or a person authorised by him for the purpose, may board, inspect and survey any ship to which this Act applies, enter port facilities in Kenya, demand the production of documents, records and other evidence; and take testimony of witnesses under oath, for the purposes of conducting inspection and survey and for undertaking other activities authorised or required under this Act.
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| (2) |
In carrying out the duties under subsection (1), the Director-General or a person authorised by him shall follow a laid down code of conduct.
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| 11. |
Communication, co-operation and consultation
The Director-General may communicate, co-operate and consult as necessary and appropriate with—
| (a) |
departments and agencies of the Government;
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| (b) |
Governments of other States who are parties to the international conventions to which Kenya is a party;
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| (c) |
Governments of other states in the Indian Ocean region;
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| (d) |
international, inter-governmental and non-governmental organisations;
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| (e) |
shipowners, seafarers associations, ship agents and other organisations involved or interested in shipping or in protection of the marine environment,
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for purposes of furthering the objects of this Act.
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| 12. |
Registrar of Kenyan Ships and Registrar of Seafarers
| (1) |
The Director-General shall be the Registrar of Kenyan Ships and the Registrar of Seafarers.
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| (2) |
In exercise of his powers under subsection (1) the Director-General may designate any other officer to perform the duties of a registrar of Kenyan ships and a registrar of seafarers.
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| 13. |
General power to dispense with requirements of the Act
| (1) |
The Director-General may, upon such conditions, if any, as he thinks fit to impose, exempt any ship from any specified requirement of, or prescribed under, this Act, or dispense with the observance of any such requirement in the case of any ship, if he is satisfied, as respects that requirement, of the matters specified in subsection (2).
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| (2) |
The matters required for purposes of subsection (1) are—
| (a) |
(a) that the requirement has been substantially complied with in the case of that ship or that compliance with it is unnecessary in the circumstances;
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| (b) |
that the action taken or provision made as respects the subject-matter of the requirement in the case of the ship is as effective as, or more effective than, actual compliance with the requirement.
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|
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PART III – RESTRICTION ON TRADING
| 14. |
Restriction on trading in Kenyan waters
| (1) |
A ship shall not trade in or from the waters of Kenya unless the ship—
| (b) |
has a certificate of foreign registry.
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|
| (2) |
Subject to the provisions of any regulation or any treaty or agreement with any foreign Government, only Kenyan ships may be engaged in any local trade in Kenyan waters.
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| (3) |
The Minister may make regulations to provide for the circumstances under which foreign ships may engage in local trade in Kenyan waters.
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| (4) |
Every owner, agent and master of a ship that contravenes subsection (1) or (2) commits an offence and each shall be liable, upon conviction, to a fine not exceeding one million shillings and the ship shall be liable to be detained until such time as the owner, agent or master shall each have paid their respective fines.
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| 15. |
Requirement for insurance cover
| (1) |
Every Kenyan ship shall carry an insurance cover against risks of loss or damage to third parties, and in particular—
| (a) |
in respect of the shipowners liabilities to a crew member under any provision of Part VII; and
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| (b) |
claims in respect of loss or damage caused by any cargo carried on board the ship.
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|
| (2) |
Every foreign ship anchoring in or trading in or from Kenyan waters or entering a port in Kenya shall carry insurance cover against risks of loss or damage to third parties.
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| (3) |
Where a ship is in contravention of this section, the owner shall be deemed to have committed an offence and shall be liable, upon conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment.
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| 16. |
Restriction on ship owner
| (1) |
No owner of a ship or person providing the service of a shipping line shall, either directly or indirectly, provide in the maritime industry the service of crewing agencies, pilotage, clearing and forwarding agent, port facility operator, shipping agent, terminal operator, container freight station, quay side service provider, general ship contractor, haulage, ship broker, ship breaker, ship chandler, cargo consolidator, ship repairer, maritime training or such other service as the Minister may appoint under section 2.
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| (2) |
Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
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| 16. |
Restriction on ship owner
| (1) |
No owner of a ship or person providing the service of a shipping line shall, either directly or indirectly, provide in the maritime industry the service of crewing agencies, pilotage, clearing and forwarding agent, port facility operator, shipping agent, terminal operator, container freight station, quay side service provider, general ship contractor, haulage, empty container depots, ship chandler or such other service as the Minister may appoint under section 2.
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| (2) |
Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
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| 16. |
Restriction on ship owner
| (1) |
No owner of a ship or person providing the service of a shipping line shall, either directly or indirectly, provide in the maritime industry the service of crewing agencies, pilotage, clearing and forwarding agent, port facility operator, shipping agent, terminal operator, container freight station, quay side service provider, general ship contractor, haulage, empty container depots, ship chandler or such other service as the Minister may appoint under section 2.
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| (1A) |
The provisions of subsection (1) shall not apply to a shipping line wholly owned by the government.
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| (2) |
Any person who contravenes the provisions of subsection (1) commits an offence and shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
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|
PART IV – REGISTRATION AND LICENSING OF SHIPS
| 17. |
Kenyan ship
| (1) |
A ship shall be regarded as a Kenyan ship for the purposes of this Act if the ship is registered in Kenya under this Part.
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| (2) |
A ship shall be registered as a Kenyan ship if it is—
| (b) |
owned by persons qualified to own a Kenyan ship; and
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| (c) |
not exempted from registration.
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|
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| 18. |
Qualifications for owning Kenyan ship
| (1) |
Subject to section 50, a ship shall not be registered in Kenya under this Act unless the ship is owned wholly by persons qualified to own a Kenyan ship, namely—
| (c) |
corporation registered in Kenya;
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| (d) |
individuals or corporations owning ships hired out on bareboat charter to nationals of Kenya;
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| (e) |
individuals or corporations in bona fide joint venture shipping enterprise relationships with nationals of Kenya as may be prescribed;
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| (f) |
such other persons as the Minister may by order determine.
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|
| (2) |
The Minister shall make regulations prescribing the manner and conditions under which any other persons or classes of persons may own Kenyan ships.
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|
| 19. |
Obligations to register Kenyan ship
| (1) |
Whenever a ship is owned wholly by persons qualified to own a ship in Kenya, that ship shall, unless it is registered in some other State, be registered in Kenya in the manner provided in this Part.
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| (2) |
Every Kenyan ship, and every Kenyan Government ship shall be registered in one of the register books kept pursuant to section 25.
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| (3) |
Where the master of any ship which is owned wholly by persons qualified to own a registered Kenyan ship fails, on demand, to produce the Certificate of Registry of the ship or such other evidence as satisfies the Director-General that the ship complies with the requirements of subsection (1), that ship may be detained until that evidence is produced.
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| (4) |
Any ship which is wholly owned by persons qualified to own a Kenyan ship, and which immediately before the commencement of this Part, is registered in Kenya in accordance with the Merchant Shipping Act (Cap. 389) (now repealed) is entitled to be registered under this Act, but subject to such conditions as may be prescribed.
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| (5) |
A ship required to be registered under this Act shall not be recognised as a Kenyan ship and shall not be entitled to the rights and privileges accorded to Kenyan ships under this Act unless it is so registered.
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|
| 20. |
Refusal of registration
| (1) |
Notwithstanding that any ship in respect of which an application for registration has been made is entitled to be registered, the Registrar of Ships may refuse to register such ship where he is satisfied that having regard to—
| (a) |
the condition of the ship so far as is relevant to safety, security or to any risk of pollution;
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| (b) |
the safety, health and welfare of persons employed or engaged in any capacity on board the ship; or
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| (c) |
the possibility that the ship is being used for criminal purposes,
|
|
it would be detrimental to the interests of Kenya or of international shipping for the ship to be registered.
| (2) |
Where it appears to the Registrar of Ships that a ship in respect of which an application for registration has been made is not entitled to be registered, having regard to the matters mentioned in subsection (1)(a), (b) or (c), he shall inform the applicant, or any representative person for the time being appointed in relation to the ship, and the ship shall not be registered.
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| (3) |
Any person aggrieved by the decision of the Registrar may appeal to the Director-General whose decision shall be final.
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| 21. |
Termination of registration
| (1) |
The Registrar of Ships may, subject to subsection (5), terminate a ship’s registration in the following circumstances—
| (a) |
where the Director-General is satisfied that—
| (i) |
having regard to the matters mentioned in section 19(1)(a), (b) or (c), it would be detrimental to the interests of Kenya or of international shipping for a registered ship to continue to be registered; |
| (ii) |
any penalty imposed on the owner of a registered ship in respect of a contravention of this Act, or of any instrument in force under this Act, has remained unpaid for a period of more than three months and no appeal against the penalty is pending; or |
| (iii) |
any summons for any such contravention has been duly served on the owner of a registered ship and the owner has failed to appear at the time and place appointed for the trial of the information or complaint in question and a period of not less than three months has elapsed since that time, |
and the Director-General so informs the Registrar of Ships;
|
| (b) |
the annual registration fee has not been paid;
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| (c) |
the tonnage fees of a registered ship has remained unpaid for a period of two years or more;
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| (d) |
a registered ship is no longer entitled to remain registered;
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| (e) |
on application by the registered owner stating that he wishes to terminate the registration of the ship; or
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| (f) |
upon a registered ship becoming a total loss or being otherwise destroyed by, inter alia, shipwreck, demolition, fire or sinking.
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| (2) |
In the event of a registered ship being in any condition referred to in subsection (1), every registered owner of the ship or any share therein shall, immediately upon obtaining knowledge of the event, inform the Registrar of Ships who shall make an entry thereof in the register.
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| (3) |
| (a) |
the registration of a ship is terminated under subsection (1), the Registrar of Ships shall notify all registered mortgagees of the termination of the ship’s registration.
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| (b) |
registration is terminated under subsection (1)(d) or (e), the Registrar of Ships shall forthwith issue a closure transcript to the owner of the ship.
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| (4) |
On receipt of the closure transcript referred to in subsection (3)(b), the owner shall immediately surrender the ship’s certificate of registry to the Registrar of Ships for cancellation.
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| (5) |
| (a) |
the circumstances referred to in subsection (1)(a) applies, and it appears to the Registrar of Ships that subsection (1)(b), (c) or (e) applies, the Registrar of Ships may serve notice on the owner or on any representative person for the time being appointed in relation to that ship to produce, within twenty-one days, evidence sufficient to satisfy the Director-General or the Registrar of Ships, as the case may be, that the ship is eligible to remain on the register, and if at the expiry of that period the Director-General or the Registrar of Ships, as the case may be, is not so satisfied, the Registrar of Ships may—
| (i) |
extend the notice and ask for further information or evidence; or |
| (ii) |
serve a final notice informing the owner or the representative person of the termination of the ship’s registry, and such termination shall take effect seven days from the date of service of that notice; |
|
| (b) |
the Registrar of Ships serves a notice under this subsection on the owner of a ship in respect of which a mortgage is registered, the Registrar of Ships shall send a copy of that notice to the mortgagee at the address recorded for him in the register;
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| (c) |
a ship’s registration is terminated under this subsection, the Registrar of Ships shall issue a closure transcript and the owner of the ship shall forthwith surrender its certificate of registry for cancellation.
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|
| (6) |
| (a) |
in connection with the making of any representations in pursuance of subsection (5)(a), knowingly or recklessly furnishes information which is false in a material particular commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years imprisonment, or to both such fine and imprisonment;
|
| (b) |
fails, without reasonable cause to surrender a certificate of registry when required to do so under subsection (5)(c), commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
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| 21. |
Termination of registration
| (1) |
The Registrar of Ships may, subject to subsection (5), terminate a ship’s registration in the following circumstances—
| (a) |
where the Director-General is satisfied that—
| (i) |
having regard to the matters mentioned in section 20(1)(a), (b) or (c), it would be detrimental to the interests of Kenya or of international shipping for a registered ship to continue to be registered; |
| (ii) |
any penalty imposed on the owner of a registered ship in respect of a contravention of this Act, or of any instrument in force under this Act, has remained unpaid for a period of more than three months and no appeal against the penalty is pending; or |
| (iii) |
any summons for any such contravention has been duly served on the owner of a registered ship and the owner has failed to appear at the time and place appointed for the trial of the information or complaint in question and a period of not less than three months has elapsed since that time, |
and the Director-General so informs the Registrar of Ships;
|
| (b) |
the annual registration fee has not been paid;
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| (c) |
the tonnage fees of a registered ship has remained unpaid for a period of two years or more;
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| (d) |
a registered ship is no longer entitled to remain registered;
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| (e) |
on application by the registered owner stating that he wishes to terminate the registration of the ship; or
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| (f) |
upon a registered ship becoming a total loss or being otherwise destroyed by, inter alia, shipwreck, demolition, fire or sinking.
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|
| (2) |
In the event of a registered ship being in any condition referred to in subsection (1), every registered owner of the ship or any share therein shall, immediately upon obtaining knowledge of the event, inform the Registrar of Ships who shall make an entry thereof in the register.
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| (3) |
| (a) |
the registration of a ship is terminated under subsection (1), the Registrar of Ships shall notify all registered mortgagees of the termination of the ship’s registration.
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| (b) |
registration is terminated under subsection (1)(d) or (e), the Registrar of Ships shall forthwith issue a closure transcript to the owner of the ship.
|
|
| (4) |
On receipt of the closure transcript referred to in subsection (3)(b), the owner shall immediately surrender the ship’s certificate of registry to the Registrar of Ships for cancellation.
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| (5) |
| (a) |
the circumstances referred to in subsection (1)(a) applies, and it appears to the Registrar of Ships that subsection (1)(b), (c) or (e) applies, the Registrar of Ships may serve notice on the owner or on any representative person for the time being appointed in relation to that ship to produce, within twenty-one days, evidence sufficient to satisfy the Director-General or the Registrar of Ships, as the case may be, that the ship is eligible to remain on the register, and if at the expiry of that period the Director-General or the Registrar of Ships, as the case may be, is not so satisfied, the Registrar of Ships may—
| (i) |
extend the notice and ask for further information or evidence; or |
| (ii) |
serve a final notice informing the owner or the representative person of the termination of the ship’s registry, and such termination shall take effect seven days from the date of service of that notice; |
|
| (b) |
the Registrar of Ships serves a notice under this subsection on the owner of a ship in respect of which a mortgage is registered, the Registrar of Ships shall send a copy of that notice to the mortgagee at the address recorded for him in the register;
|
| (c) |
a ship’s registration is terminated under this subsection, the Registrar of Ships shall issue a closure transcript and the owner of the ship shall forthwith surrender its certificate of registry for cancellation.
|
|
| (6) |
| (a) |
in connection with the making of any representations in pursuance of subsection (5)(a), knowingly or recklessly furnishes information which is false in a material particular commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years imprisonment, or to both such fine and imprisonment;
|
| (b) |
fails, without reasonable cause to surrender a certificate of registry when required to do so under subsection (5)(c), commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
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| 22. |
Restriction on de-registration of ships
Subject to section 95(6), the Registrar of Ships shall not permit the de-registration of a ship, except upon giving prior notice in writing to all registered holders of mortgages on such ship which are registered under this Act.
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| 23. |
Certificate of de-registration
| (1) |
Upon the de-registration of a ship the Registrar of Ships shall issue to the owner of such ship a certificate of de-registration in the prescribed form.
|
| (2) |
On receipt of the certificate of de-registration referred to in subsection (1), the owner shall immediately surrender the ship’s certificate of registry to the Registrar of Ships for cancellation.
|
| (3) |
A person who fails, without reasonable cause, to surrender a certificate of registry when required to do so under this Part, commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.
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|
Procedure for Registration
| 24. |
Non-liability of the Registrar of Ships
No action shall lie against the Registrar of Ships or any officer acting in that capacity or discharging any of his functions under this Act in respect of anything done or omitted to be done by him or her in good faith in the exercise or performance of any power, authority or duty conferred or imposed on him or her under the Act.
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| 25. |
Register of ships
| (1) |
There shall be a register of Kenyan ships for all ships registered in Kenya.
|
| (2) |
The register shall be maintained by the Registrar of Ships.
|
| (3) |
The Director-General may give directions of a general nature with regard to the discharge of any of the functions of the Registrar of Ships.
|
| (4) |
The register may consist of separate register books and shall be so constituted as to distinguish registrations of small ships, pleasure vessels and submersible craft and may otherwise distinguish between classes or descriptions of ships.
|
| (5) |
The register shall be maintained in accordance with the registration regulations and any directions given by the Director-General under subsection (3).
|
| (6) |
The register shall be available for public inspection upon payment of the prescribed fees.
|
| (7) |
Except as provided in regulations made under section 79, entries in the register in relation to property in a ship shall be made in accordance with the following provisions—
| (a) |
the property in a ship shall be divided into sixty-four shares;
|
| (b) |
subject to the provisions of this Act with respect to joint owners or owners by transmission, not more than sixty-four individuals shall be entitled to be registered at the same time as owners of any one ship; but this rule shall not affect the beneficial title of any number of persons or of any company represented by or claiming under or through any registered owner or joint owner;
|
| (c) |
a person shall not be entitled to be registered as owner of a fractional part of a share in a ship, but any number of persons not exceeding five may be registered as joint owners of a ship or of any share or shares therein;
|
| (d) |
joint owners shall be considered as constituting one person only as regards the persons entitled to be registered, and shall not be entitled to dispose in severalty of any interest in a ship, or in any share therein in respect of which they are registered;
|
| (e) |
a body corporate shall be registered as owner by its corporate name.
|
|
|
| 26. |
Surveying and tonnage of ships
| (1) |
Before registration every ship shall be surveyed by a surveyor of ships and her tonnage ascertained in accordance with the tonnage regulations made under this Act, and the surveyor shall grant a certificate specifying the ship’s tonnage and build, and such other particulars descriptive of the identity of the ship as may for the time being be required by the Director. General and such certificate shall be delivered to the Registrar of Ships before registration.
|
| (2) |
When the tonnage of any ship has been ascertained and registered in accordance with the tonnage regulations that tonnage shall be treated as the tonnage of the ship except so far as those regulations provide, in specified circumstances, for the ship to be re-measured and the register amended accordingly.
|
|
| 27. |
Marking of ships
| (1) |
Every ship other than small ships shall, before registration, be marked permanently and conspicuously to the satisfaction of the Director-General as follows—
| (a) |
her name shall be marked on each of her bows, and her name and the name of her port of registry shall be marked on her stern, in letters of a contrasting colour so as to be clearly visible, such letters to be of a length not less than one decimetre, and of proportionate breadth;
|
| (b) |
her official number and net tonnage shall be permanently marked on a main part of the ship’s permanent structure that is readily visible and accessible in such manner as may be specified by a surveyor of ships;
|
| (c) |
in the case of every such ship built after the date of metric conversion, a scale of decimetres, or of metres and decimetres, denoting a draught of water shall be marked on each side of her stem and her stern post in figures at two-decimetre intervals and at intervening two decimetre intervals, if the scale is in metres and decimetres, the capital letter “M” being placed after each metre figure; the top figure of the scale showing both the metre and (except where it marks a full metre interval) the decimetre figure; the lower line of the figures, or figures and letters (as the case may be), coinciding with the draught line denoted thereby; the figures and letters being not less than one decimetre in length and being marked by being cut in and painted in a contrasting colour so as to be clearly visible, or in such other way as the Director-General may approve.
|
|
| (2) |
Where the scale showing the ship’s draught of water is in any respect inaccurate, so as to be likely to mislead, the owner of the ship commits an offence and shall be liable, upon conviction, to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.
|
| (3) |
The marks required by this section shall be permanently continued, and no alteration shall be made therein, except in the event of any of the particulars thereby denoted being altered in the manner provided by this Act.
|
| (4) |
Where an owner or master of a registered ship neglects to keep his ship marked as required by this section, or if any person conceals, removes, alters, defaces, or obliterates or suffers any person under his control to conceal, remove, alter, deface, or obliterate any of the said marks, except in the event referred to in subsection (3), that owner, master, or person commits an offence, and for each such offence, shall be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment and, on a certificate from a surveyor of ships that a ship is insufficiently or inaccurately marked, the ship may be detained until the insufficiency or inaccuracy has been remedied.
|
| (5) |
It shall be a defence for an owner, master or person referred to in subsection (4) to prove—
| (a) |
that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or
|
| (b) |
that the commission of the offence was for the purpose of escaping capture by an enemy.
|
|
| (6) |
Where a ship proceeds to sea without being marked in accordance with this section, the owner commits an offence and shall be liable, upon conviction, to a fine not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding two years or to both such fine and imprisonment.
|
| (7) |
The Director-General may exempt any ship or class of ships from all or any of the requirements of this section.
|
|
| 28. |
Application for registration
An application for registration of a ship shall be made, in the case of individuals, by the person requiring to be registered as owner, or by some one or more of the persons so requiring if more than one, or by his or their agent, and, in the case of bodies corporate, by their agent, and the authority of the agent shall be testified in writing, if appointed by individuals, under the hands of the appointers, and, if appointed by a body corporate, under the common seal of that body corporate or by deed or instrument under seal in accordance with the Companies Act (Cap. 486).
|
| 29. |
Declaration of eligibility
A person shall not be entitled to be registered as owner of a ship or of a share therein until he, or, in the case of a body corporate, the person authorised by this Act to make declarations on behalf of the body corporate, has made and signed a declaration of eligibility, referring to the ship as described in the certificate of the surveyor, and containing the following particulars—
| (a) |
a statement of his qualifications to own a Kenyan ship, and in the case of a body corporate, of such circumstances of the constitution and business thereof as prove it to be qualified to own a Kenyan ship;
|
| (b) |
in the case of a foreign ship, a statement of her foreign name; and
|
| (c) |
a statement of the number of shares in the ship the legal title to which is vested in him or, as the case may be, the body corporate, whether alone or jointly with any other person or persons.
|
|
| 30. |
Evidence of title on first registry
On the first registration of a ship such evidence of title shall be produced as may be specified in the registration regulations.
|
| 31. |
Entry of particulars in register
When the requirements for registration have been complied with, the Registrar of Ships shall register a ship by entering in the register particulars respecting the ship.
|
| 32. |
Documents to be retained by Registrar of Ships
On the registration of a ship, the Registrar of Ships shall retain in his possession the survey certificate, the builders certificate, if any, and all declarations of ownership.
|
| 33. |
Port of Registry
| (1) |
Subject to subsection (2), the port of Mombasa shall be the port of registry of a ship registered under this Act and the port to which the ship belongs.
|
| (2) |
The Minister may, by order, declare any other port of Kenya as a port of registry.
|
|
| 34. |
Certificate of Registry
| (1) |
On completion of the registration of a ship, the Registrar of Ships shall issue a certificate of registry comprising such particulars respecting the ship as may be specified in the registration regulations.
|
| (2) |
A certificate of registry shall be valid for a period of twelve months from the date of issue, and shall be renewed annually on payment of the prescribed fee, and if the ship complies with all other conditions prescribed under this Act and is seaworthy and properly found and equipped and has not been altered in any significant manner since the certificate was issued.
|
|
| 35. |
Custody of certificate
| (1) |
The certificate of registry shall be used only for the lawful navigation of the ship, and shall not be subject to detention by reason of any title, lien, charge, or interest whatever had or claimed by any owner, mortgagee, or other person to, on, or in the ship.
|
| (2) |
Where any person, whether interested in the ship or not, refuses on request to deliver up the certificate of registry when in his possession or under his control to the person entitled to the custody thereof for the purposes of the lawful navigation of the ship, or to the Registrar of Ships, any officer of customs, or other person entitled by law to require such delivery, any court capable of taking cognisance of the matter may summon the person so refusing to appear before such court, and to be examined touching such refusal, and unless it is proved to the satisfaction of such court that there was reasonable cause for such refusal, that person commits an offence and shall be liable, upon conviction, to a fine not exceeding seventy thousand shillings, or to imprisonment for a term not exceeding five months, or to both such fine and imprisonment.
|
| (3) |
Where the person so refusing is proved to have absconded so that the warrant of, or process of a court cannot be served on him, or if he persists in not delivering up the certificate, the court shall certify the fact, and the same proceedings may then be taken as in the case of a certificate mislaid, lost, or destroyed, or as near thereto as circumstances permit.
|
|
| 36. |
Use of improper certificate
Where a master or owner of a ship uses or attempts to use for her navigation a certificate of registry not legally granted in respect of the ship, he commits an offence, and in respect of each such offence, shall be liable, upon conviction, to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding six years, or to both such fine and imprisonment, and the ship shall be liable to forfeiture under this Act.
|
| 37. |
Grant of new certificate and endorsement of change
| (1) |
The Registrar of Ships may, with the approval of the Director-General, and upon the surrender to him of the certificate of registry of a ship, issue a new certificate in lieu thereof.
|
| (2) |
Whenever a change occurs in the registered ownership of a ship, the Registrar of Ships may endorse the change on the certificate of registry or issue a new certificate of registry.
|
| (3) |
The master shall, for purposes of endorsement by the Registrar of Ships referred to in subsection 2, deliver the certificate of registry to the Registrar of Ships forthwith after the change.
|
| (4) |
Where the master fails to deliver to the Registrar of Ships the certificate of registry as required by subsection (2), he commits an offence and shall be liable upon conviction to a fine not exceeding fifty thousand shillings, or to imprisonment to a term not exceeding four months, or to both such fine and imprisonment.
|
|
| 38. |
Duplicate certificates
| (1) |
Where it is shown to the satisfaction of the Registrar of Ships that the certificate of registry has been lost, stolen or destroyed or has become defaced or illegible (“the event”), he may issue to the owner a duplicate of that certificate, which shall be marked as such, and shall be of the same effect as the original.
|
| (2) |
Where a duplicate certificate of registry is issued the original, if then available or if subsequently found or recovered, shall be forthwith surrendered to the Registrar.
|
| (3) |
| (a) |
the port where the ship is at the time of the event or, as the case may be, where it first arrives after the event, is not in Kenya; and
|
| (b) |
the master of the ship, or some other person having knowledge of the facts of the case, makes a declaration before the proper officer as to the event,
|
the proper officer shall notify the Registrar.
|
| (4) |
On being notified of the event and being satisfied that the ship is entitled to be issued with a duplicate certificate, the Registrar shall—
| (a) |
send by facsimile or any other form of electronic transmission to the proper officer a copy of the duplicate certificate which the proper officer shall endorse with a statement of the circumstances under which it is granted; or
|
| (b) |
where there are no facsimile or other electronic transmission facilities, the proper officer shall issue a temporary certificate so endorsed.
|
|
| (5) |
The facsimile or other electronically transmitted version of the duplicate certificate, or the temporary certificate, as the case may be, shall be surrendered to the Registrar of Ships, as soon as an original duplicate certificate referred to in subsection (1) is received by the owner.
|
| (6) |
Any person who fails, without reasonable cause, to surrender a certificate of registry when required to do so under subsection (2) commits an offence and shall be liable, upon conviction, to a fine not exceeding fifty thousand shillings, or to imprisonment to a term not exceeding four months, or to both such fine and imprisonment.
|
|
| 39. |
Endorsement of change of master on certificate
Whenever the master of a Kenyan ship is changed, a memorandum of the change shall be endorsed on the certificate of registration—
| (a) |
if the change is made in consequence of a ruling of a court or marine inquiry; by the presiding officer of that court; or
|
| (b) |
if the change occurs from any other cause, by the Registrar of Ships, or by the proper officer at the port where the change takes place.
|
|
| 40. |
Provisional certificate of registry
| (1) |
Where a ship becomes entitled to be registered while at port in a country outside Kenya, then subject to subsection (3), the proper officer may, on the application of the master of the ship, issue to him a provisional certificate stating—
| (b) |
the time and place of its purchase and the names of its purchasers;
|
| (d) |
the best particulars respecting its tonnage, the time and place of its construction and other particulars which he is able to obtain,
|
and shall forward a copy of the certificate at the first convenient opportunity to the Registrar of Ships.
|
| (2) |
The statutory declaration referred to in subsection (1) shall include—
| (a) |
a declaration as to ownership; and
|
| (b) |
declaration that the foreign registry, if any, of the ship has been closed.
|
|
| (3) |
No provisional certificate shall be granted by any person under this section unless he is satisfied that an application under registration regulations for registry of the ship has been made or is intended.
|
| (4) |
A provisional certificate under this section shall have the effect of a certificate of registry until the expiration of three months after its date of issue or until the arrival of the ship at a port in Kenya, whichever happens earlier, and on either of those events happening shall cease to have effect.
|
| (5) |
The master of every ship in respect of which a provisional certificate is issued under this section shall, within ten days of the ship’s first arrival at a port in Kenya deliver the certificate to the Registrar of Ships, and where any master fails to comply with this subsection, he commits an offence and shall be liable, upon conviction, to a fine not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment.
|
|
| 41. |
Temporary pass in lieu of Certificate of Registry
Where it appears to the Director-General that by reason of special circumstances it is desirable that permission be granted to a ship to pass, without being previously registered, from any port in Kenya to any other port within or outside Kenya, the Director-General may, in any case in which the ship belongs to a country whose law provides for the issuance of temporary passes, direct the Registrar of Ships to grant a pass and that pass for the time and within the geographical limits therein mentioned shall have the same effect as a Certificate of Registry, and the Registrar of Ships when so directed shall grant the pass accordingly.
|
Interim Registration in the Course of Transfer of Ownership
| 42. |
Registration of transfer of ownership
| (1) |
This section applies where—
| (a) |
there is in existence a written contract for the transfer of a ship or a share in a ship; and
|
| (b) |
pursuant to the terms of that contract, the owner has agreed—
| (i) |
to transfer the ship or any share in the ship to a person qualified to own Kenyan ships and who intends to register the ship in Kenya; and |
| (ii) |
to provide the transferee with a bill of sale of the ship and a certificate stating that the ship is free from registered mortgages; and |
|
| (c) |
upon the execution of the bill of sale the ship will be entitled to be registered in Kenya.
|
|
| (2) |
Where this section applies, the Registrar of Ships may, if satisfied that it is proper for him to do so—
| (a) |
enter in the register the particulars as may be set out in registration regulations subject to the modifications set out in subsection (3); and
|
| (b) |
grant to the transferee a certificate of registry which shall be valid for a period of twenty-one days from its date of issue.
|
|
| (3) |
The modifications referred to in subsection (2)(a) are that—
| (a) |
the name and description required to be entered shall be the name and description of the transferee of the ship or of the share therein; and
|
| (b) |
(b) there shall also be entered a note that the registration is conditional upon a bill of sale transferring the ship or the share therein to the person or persons named in the register being produced to the Registrar of Ships within twenty-one days.
|
|
| (4) |
The Registrar of Ships shall only be satisfied that it is proper for him to make the entry in the register and grant a certificate of registry pursuant to subsection (3) if—
| (a) |
sections 26, 27, 28, and 29 and the registration regulations as modified by subsection (3) have been complied with; and
|
| (b) |
the transferee, or in the case of a body corporate the person authorised by this Act to make declarations on behalf of the body corporate, has made and signed a declaration, referring to the ship as described in the surveyor’s certificate issued pursuant to section 26, and containing the following particulars—
| (i) |
if he is a person qualified to own a Kenyan ship, a statement of his qualifications to own a Kenyan ship, or in the case of a body corporate, of such circumstances of the constitution and the business thereof as proof of it to be qualified to own a Kenyan ship; |
| (ii) |
if the ship is a foreign ship, a statement of the ship’s foreign name; |
| (iii) |
a statement that there is in existence a written contract for the transfer of the ship or a share in the ship and that the ship is not registered in Kenya; and |
|
| (c) |
there is produced to the Registrar of Ships a certified copy of the contract referred to in the declaration made pursuant to paragraph (b).
|
|
| (5) |
Where a ship is registered under subsection (2), the transferee shall within twenty-one days after the date of issue of the certificate of registry under subsection (2)(b), deliver to the Registrar of Ships—
| (a) |
a declaration made in accordance with section 29; and
|
| (b) |
a bill of sale executed in accordance with a contract the certified copy of which has been produced to the Registrar of Ships in accordance with subsection (4)(c),
|
and thereupon the Registrar of Ships shall make the entries in the register required by section 31 and issue a certificate of registry in accordance with section 34.
|
| (6) |
Where the transferee does not comply with the requirements of subsection (5) the registration of the ship shall automatically terminate at the expiration of the certificate of registry granted under subsection (2)(b) and the certificate of registry and any certificate issued in respect of the ship under this Act shall be delivered to the Registrar of Ships.
|
|
| 43. |
Consequences of registration
| (1) |
Where a ship is registered under section 42, it shall be deemed to be a Kenyan ship for the purposes of this Act.
|
| (2) |
Where a ship is registered under section 42 it shall not hoist any colours other than Kenyan national colours specified in section 91.
|
|
| 44. |
Application of Part to registered ship
Where a certificate of registry has been issued in respect of a ship under section 42(2)—
| (a) |
the provisions of this Part shall apply to the ship and its registration; and
|
| (b) |
any act or thing required to be done or not done under this Act by the owner of a ship shall be deemed to be required to be done or not done by the transferee, and—
| (i) |
the transferee shall be liable for doing or omitting to do such act or thing as if he were the owner of the ship; and |
| (ii) |
a reference to “owner” in this Act shall, in the case of such a ship as is mentioned in this subsection, be deemed to be a reference to “transferee” and the words “registered owner” and “registered ownership” shall be construed accordingly. |
|
|
| 45. |
Definition of transferee
In sections 42 and 44, “transferee” means a person to whom the ownership of a ship or a share in a ship is to be transferred in the circumstances set out in section 42(1).
|
| 46. |
Name of ship
| (1) |
Every ship registered in the register shall have a name, and two or more ships shall not bear the same name.
|
| (2) |
A Kenyan ship shall not be described by any name other than that by which it is for the time being registered.
|
| (3) |
The Registrar of Ships may, in accordance with the provisions of any regulations made under this Act, refuse the registration of any ship by the name by which it is proposed to register that ship if it is already the name of a registered Kenyan ship or a name so similar as is calculated or likely to deceive or to offend the public interest.
|
| (4) |
If the Registrar refuses to register a ship by the name that is proposed or if the requirements of the regulations referred to in subsection (3) are not complied with, that ship shall not be registered under the name proposed, or until the regulations are complied with, as the case may be.
|
| (5) |
If any person acts or suffers any other person under his control to act in contravention of this section or omits to do or suffers any other person under his control to omit to do anything required by this section, he commits an offence and shall be liable, upon conviction, to a fine not exceeding two hundred thousand shillings, or to imprisonment to a term not exceeding twelve months, or to both such fine and imprisonment, and the ship may be detained until the provisions of this section are complied with.
|
|
| 47. |
Change of name of ship
| (1) |
A change shall not be made in the name of a ship without the prior written permission of the Registrar of Ships.
|
| (2) |
An application to effect a change of ship’s name shall be in writing and, if the Registrar of Ships is of the opinion that the application is reasonable, he may grant permission, and thereupon require notice thereof to be published in such form and manner as he thinks fit.
|
| (3) |
On being granted permission to change the name of the ship, the owner shall forthwith ensure that the change is in the register and in the ship’s certificate of registry, and on her bows and stern.
|
| (4) |
Where it is shown to the satisfaction of the Registrar of Ships that the name of any ship has been changed without his permission he shall direct that her name be altered to that which she bore before the change, and the name shall be altered on her bows and stern accordingly.
|
|
| 48. |
Identity marks for fishing vessels
| (1) |
On the registration of a fishing vessel the registrar shall allocate to it a combination and sequence of letters and numerals (hereinafter called the “identity mark”) which he shall cause to be entered in the register book.
|
| (2) |
Same letters and identity mark of a registered fishing vessel shall not be allocated to any other fishing vessel.
|
| (3) |
Every registered fishing vessel shall display the identity mark allocated to it under this section on each side of its bow and shall show its Port of Registry on the stern.
|
|
| 49. |
Offences
Where any person acts, or suffers any person under his control to act, in contravention of section 48, or omits to do, or suffers any person under his control to omit to do, anything required by that section, commits an offence, and for each such offence shall be liable, upon conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment and, except in the case of an application being made under that section with respect to a foreign ship which not having at any previous time been registered as a Kenyan ship has become a Kenyan ship, the ship may be detained until there is compliance with that section.
|
| 50. |
Register books for ships under construction
| (1) |
The Registrar shall keep a register book for ships under construction which shall contain the names of the ships under construction.
|
| (2) |
A ship under construction may be entered in the register book for ships under construction from the date of the signing of the contract for construction until it is placed on another register after completion.
|
|
Registration of Alterations and Registration Anew
| 51. |
Registration of alterations
| (1) |
When a Kenyan ship, other than a small ship is so altered as not to correspond with the particulars relating to its tonnage or description in the register, notification of the alteration shall be given within thirty days after the completion of the alteration to the Registrar of Ships, and the notice shall be accompanied by a Certificate of Survey stating the particulars of the alteration.
|
| (2) |
Upon receipt of a notice of alteration of a Kenyan ship under subsection (1), the Registrar of Ships shall either cause the alteration to be registered or direct that the ship be registered anew.
|
| (3) |
Where there is a failure to comply with the requirements of subsection (1) or with a direction under subsection (2), the Registrar of Ships may suspend the Certificate of Registry of the ship in respect of which the failure occurs.
|
| (4) |
If default is made in registering a ship anew after it has been altered or in registering the alteration, the owner of the ship commits an offence and upon, conviction shall be liable to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment and, in addition, to a fine of ten thousand shillings for every day during which the offence continues after conviction and the ship shall be liable to forfeiture in case of default to comply within one month.
|
|
| 52. |
Rules for registration of alterations
| (1) |
For purposes of registration of an alteration in a ship, the ship’s Certificate of Registry shall be produced to the Registrar of Ships within sixty days after the alteration, and he shall either—
| (a) |
retain the Certificate and grant a new Certificate of Registry containing a description of the ship as altered; or
|
| (b) |
endorse and sign on the existing certificate a memorandum of the alteration.
|
|
| (2) |
The particulars of the alteration and the fact of the new certificate having been issued or an endorsement having been made shall be entered by the Registrar in the register book.
|
| (3) |
The particulars of the alteration so made, and the fact of the new certificate having been issued, or an endorsement having been made, shall be entered by the Registrar of Ships in the register.
|
|
| 53. |
Registration anew on change of ownership
Where the ownership of a ship has changed, the Registrar of Ships may, on the application of the new owners of the ship, register the ship anew.
|
| 54. |
Provisional Certificate where ship registered anew
| (1) |
Where a Kenyan ship is outside of Kenya and consequent upon notification is to be registered anew, a proper officer or other appropriate authority designated to act on behalf of the Government shall issue to the master on his application, either a provisional certificate, describing the ship as altered, or provisionally endorse the particulars of the alteration on the existing certificate.
|
| (2) |
Where the proper officer or other appropriate authority issues a provisional certificate or provisionally endorses a certificate under this section, he shall add to the certificate or endorsement a statement that the same is made provisionally.
|
| (3) |
The master of every ship in respect of which a provisional certificate is issued or a certificate is endorsed under this section shall, within ten days of the ship’s arrival thereafter at a port in Kenya or within six months of the date of issue or endorsement of the certificate, whichever is earlier, deliver that certificate to the Registrar of Ships and, if any master fails to comply with this subsection, commits an offence and shall be liable, upon conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment.
|
| (4) |
Where any ship in respect of which a provisional certificate is issued or a certificate is endorsed under this section first arrives thereafter at a port in Kenya, application for registration of that ship anew shall be made to the Registrar of Ships and the other requirements requisite for registration shall be complied with; and, if, in respect of any such ship, there is failure to comply with this subsection, the owner of the ship commits an offence and shall be liable, upon conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment and, in addition, to a fine of ten thousand shillings for every day during which the offence continues after conviction and, in the event of failure to comply within a period of one month, the ship shall be liable to be expelled from Kenyan waters.
|
|
| 55. |
Procedure for registration anew
| (1) |
Where a ship is to be registered anew, the Registrar of Ships shall proceed as in the case of first registry, and on the surrender to him of the existing certificate of registry, and on compliance with the other requirements for registration, or in the case of a change of ownership, compliance with such of them as the Registrar of Ships thinks fit, shall register the ship anew, and grant a new certificate.
|
| (2) |
When a ship is registered anew, her former register shall be considered as closed, except so far as relates to any unsatisfied mortgage or existing certificates of sale or mortgage entered thereon, but the names of all persons appearing on the former register to be interested in the ship, as owners or mortgagees shall be entered on the new register, and the registration anew shall not in any way affect the rights of any of those persons.
|
|
| 56. |
Restriction on re-registration of abandoned ships
Where a ship has ceased to be registered as a ship by reason of having been wrecked or abandoned or for any reason other than capture by the enemy or transfer to a person not qualified to own a
Kenyan ship, the ship shall not be re-registered until such ship has,
at the expense of the applicant for registration, been surveyed by
a surveyor and certified by him to be seaworthy.
|
| 57. |
Ships to be licensed
| (1) |
Subject to subsections (2) and (3), every ship of 24 metres and below and every vessel of whatever length trading or operating solely within the territorial and inland waters of Kenya shall be licensed under this Act.
|
| (2) |
Ships registered under this Act shall be exempted from being licensed under this section.
|
| (3) |
The Director-General may in writing exempt, either generally or specifically, ships from compliance with subsection (1), subject to such conditions as he may stipulate.
|
|
| 58. |
Qualifications for owning a licensed Kenyan ship
| (1) |
A ship shall not be licensed in Kenya unless it is owned wholly by persons referred to in section 18.
|
| (2) |
No more than eight persons may be registered as joint owners of a licensed Kenyan ship.
|
| (3) |
Within seven days, or such further time as may be allowed by the Director-General after a change of ownership of a licensed Kenyan ship, the owner shall notify the Registrar of Ships of such change in writing.
|
| (4) |
Where the owner of a licensed Kenyan ship fails to comply with subsection (3), the licence of the ship shall be deemed to have been cancelled.
|
| (5) |
The Director-General may in writing exempt any ship from the provisions of subsection (1).
|
|
| 59. |
Regulations on licensing
The Minister may make regulations regarding licensing of ships and licensed Kenyan ships, in particular for the following matters—
| (a) |
the manning of and the life-saving, safety and fire-fighting equipment to be carried on such ships;
|
| (b) |
the examination and certification of officers, skippers, mechanics and deckhands;
|
| (d) |
the appointment of surveyors;
|
| (i) |
exemption of ships from licensing.
|
|
| 60. |
Tonnage regulations
| (1) |
(1) The tonnage of any ship to be registered under this Part shall be ascertained in accordance with regulations made by the Minister, referred to in this Act as tonnage regulations, and whenever the tonnage of any ship has been ascertained and registered in accordance with the tonnage regulations, the same shall be repeated in every subsequent registration thereof, unless any alteration is made in the form or capacity of the ship, or unless it is discovered that the tonnage of the ship has been erroneously computed; and in either of those cases shall be re-measured, and her tonnage determined and registered according to the tonnage regulations.
|
| (2) |
| (a) |
make different provisions for different descriptions of ships or for the same description of ships in different circumstances;
|
| (b) |
make any compliance dependent on any conditions set in such regulations, to be evidenced in such manner, as may be specified;
|
| (c) |
prohibit or restrict the carriage of goods or stores in spaces not included in the net tonnage and may provide for making the master and the owner each liable for an offence and upon conviction liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding six months where such a prohibition or restriction is contravened.
|
|
| (3) |
Tonnage regulations may make provision—
| (a) |
for assigning to a ship, either instead of or as an alternative to the tonnage ascertained in accordance with the other provisions of the regulations, a lower tonnage applicable where the ship is not loaded to the full depth to which it can safely be loaded;
|
| (b) |
for indicating on the ship, by such mark as may be specified in the regulations, that such a lower tonnage has been assigned to it;
|
| (c) |
where the lower tonnage has been assigned to it as an alternative, for indicating on the ship the depth to which the ship may be loaded for the lower tonnage to be applicable.
|
|
| (4) |
Tonnage regulations may provide for the measurement and survey of ships to be undertaken, in such circumstances as may be specified in the regulations by persons appointed by such organisations as may be authorised for the purpose by the Director-General.
|
| (5) |
Tonnage regulations may provide for the issue, by the Director-General or by persons appointed by such organisations as may be authorised for the purpose by the Director-General, of certificates of the tonnage of any ship or of the tonnage which is to be taken for any purpose specified in the regulations as the tonnage of a ship not registered in Kenya, and for the cancellation and surrender of such certificates in such circumstances as may be prescribed by the regulations.
|
| (6) |
Regulations requiring the surrender of any certificate may make a failure to comply with the requirement an offence punishable upon conviction with a fine not exceeding fifty thousand shillings or to imprisonment for a term not exceeding four months.
|
| (7) |
In making the tonnage regulations, the Minister shall pay due regard to the provisions of the Tonnage Convention.
|
|
| 61. |
Tonnage of ships of foreign countries adopting tonnage regulations
| (1) |
Where it appears to him that the Tonnage Convention has been adopted by a foreign Country and is in force in that country, the Director-General may apply the provisions of that convention to the ships of such country as provided in this section.
|
| (2) |
The Director-General may order that ships of the foreign country shall, without being re-measured in Kenya, be treated as being of the tonnage denoted by their certificates of registry or other national papers, to the same extent, and for the same purposes as the tonnage denoted in the certificate of registry of a Kenyan ship is treated as being the tonnage of that ship.
|
| (3) |
An order by the Director-General under subsection (2) may—
| (a) |
operate for a limited time; and
|
| (b) |
be subject to such conditions and qualifications, if any, as the Director-General may consider expedient.
|
|
| (4) |
Where it appears to the Director-General that the tonnage of any foreign ship, as measured by the rules of the country to which the ship belongs, materially differs from what it would be under the tonnage regulations, he may order further that any of the ships of that country may, for all or any of the purposes of this law, be re-measured in accordance with the tonnage regulations.
|
|
| 62. |
Provisions relating to infancy or other incapacity
| (1) |
Where by reason of the infancy, unsoundness of mind or any other cause, any person interested in any ship or any share therein is incapable of making any declaration or doing anything required or permitted by this Act to be made or done in connection with the registration of the ship or share, the guardian or trustee, if any, of that person, or, if there is none, any person appointed on application made on behalf of any such person, or of any other person interested, to a court of competent jurisdiction, may make such declaration or a declaration as nearly corresponding thereto as circumstances permit, and do such act or thing in the name, and on behalf, of the incapacitated person.
|
| (2) |
All acts done by any such person in the name, and on behalf, of the incapacitated person shall be as effectual as if done by the infant, person of unsound mind or incapacitated person.
|
|
| 63. |
Entry of trusts in register book
No notice of any trust, express, implied or constructive, shall be entered in the register book or be receivable by the Registrar of Ships, and, subject to any rights and powers appearing in the register book, to be vested in any other person, and the registered owner of a ship or of a share therein shall have power absolutely to dispose of the ship or share in the manner in this Act provided and to give effectual receipts for any money paid or advanced by way of consideration.
|
| 64. |
Definition of “beneficial interest”
The expression “beneficial interest”, where used in this Part, includes interests arising under contract and other equitable interests, and accordingly without prejudice to—
| (a) |
the provisions of this Act for preventing notice of trusts from being entered in the register book or received by the Registrar of Ships;
|
| (b) |
the powers of disposition and of giving receipts conferred by this Act on registered owners and mortgages; and
|
| (c) |
the provisions of this Act relating to the exclusion of unqualified persons from the ownership of Kenyan ships, interests arising under contract or other equitable interests may be enforced by or against owners and mortgagees of ships in respect of their interests therein in the same manner as in respect of any other personal property.
|
|
| 65. |
Liability of beneficial owner
Where any person has a beneficial interest, otherwise than by way of mortgage, in any ship or share in a ship registered in the name of some other person as owner, the person so interested shall, as well, as the registered owner, be subject to all pecuniary penalties imposed by this or any other enactment on the owners of ships or shares therein, so however that proceedings may be taken for the enforcement of any such penalties against both or either of the aforesaid parties, with or without joining the other of them.
|
| 66. |
Registration of ship’s owner
| (1) |
The name and address of the managing owner for the time being of every ship registered at a port in Kenya shall be registered with the Registrar of Ships.
|
| (2) |
Where there is no managing owner there shall be registered the name of such other person to whom the management of the ship is entrusted by or on behalf of the owner; and any person whose name is so registered shall, for the purposes of this Act, be under the same obligations, and subject to the same liabilities, as if he were the managing owner.
|
| (3) |
If default is made in complying with this section, the owner commits an offence and shall be liable, upon conviction, or, if there are more owners than one, each owner shall be liable in proportion to his interest in the ship, to a fine not exceeding in the aggregate three hundred thousand shillings, or imprisonment for a term not exceeding two years, or to both such fine and imprisonment each time the ship leaves any port in Kenya.
|
|
| 67. |
Dispensing with declaration
Where, under this Part any person is required to make a declaration on behalf of himself or of any body corporate, or any evidence is required to be produced to the Registrar of Ships, and it is shown to the satisfaction of the Registrar of Ships that from any reasonable cause that person is unable to make the declaration, or that the evidence cannot be produced, the Registrar of Ships may, with the approval of the Director-General and on the production of such other evidence, and subject to such terms as he may think fit, dispense with the declaration or evidence.
|
| 68. |
Modes of declaration
| (1) |
Declarations required to be made under this Part shall be made before a Registrar of Ships, a proper officer or any other person authorised by law to administer oaths.
|
| (2) |
Declarations required to be made under this Part may be made on behalf of a body corporate by the Managing Director or any other officer of the body corporate authorised by it for the purpose.
|
|
| 69. |
Application of fees
All fees authorised to be taken under this Part shall, except where otherwise provided in this Act be applied in payment of the general expenses of carrying into effect the provisions of this Part.
|
| 70. |
Returns by Registrar of Ships
The Registrar of Ships shall transmit to the Authority returns in such form and at such times as the Director-General may direct, of all registrations, transfers, transmissions, mortgages and other dealings with ships which have been registered by or communicated to him in his capacity as Registrar of Ships and of the names of the persons concerned in the same, and such other particulars as may be directed by the Director-General.
|
| 71. |
Inspection and evidence of register book, etc.
| (1) |
Any person may, on application to the Registrar of Ships during the hours of his official attendance and on payment of such fee as shall be from time to time determined by the Director-General inspect any register book.
|
| (2) |
The following documents shall be admissible in evidence in the manner provided by this Act—
| (a) |
any register book under this Part on its production from the custody of the Registrar of Ships or other person having the lawful custody thereof;
|
| (b) |
certificate of registry under this Act purporting to be signed by the Registrar of Ships or other proper officer;
|
| (c) |
an endorsement on a certificate of registry purporting to be signed by the Registrar of Ships or other proper officer;
|
| (d) |
declaration made under this Part in respect of a Kenyan ship.
|
|
| (3) |
A copy or transcript of the register of Kenyan ships kept by the Authority shall be admissible in evidence and have the same effect to all intents as the original register of which it is a copy or transcript.
|
|
| 72. |
Documents and instruments as to registration
| (1) |
The following instruments and documents shall be in such form as the Minister may prescribe—
| (b) |
declaration of ownership by an individual owner;
|
| (c) |
declaration of ownership on behalf of a body corporate as owner;
|
| (e) |
certificate of de-registration;
|
| (g) |
declaration of ownership by an individual transferee;
|
| (h) |
declaration of ownership on behalf of a body corporate as transferee;
|
| (i) |
declaration of ownership by transmission;
|
| (k) |
declaration of mortgagee taking by transmission.
|
|
| (2) |
The Minister may make such alterations in the forms so prescribed as he may deem requisite, and shall by notice in the Gazette give due notice of his intention to alter any such form.
|
| (3) |
A Registrar of Ships shall not be required, without the special direction of the Director-General, to receive and enter in the register book any bill of sale, mortgage or other instrument for the disposal or transfer of any ship or share therein, or any interest therein, which is made in any form other than that for the time being required under this Part, or which contains any particulars other than those contained in such form.
|
| (4) |
The Director-General may, for carrying into effect this Part give such instructions to his officers regarding—
| (a) |
the manner of making entries in the register book;
|
| (b) |
the execution and attestation of powers of attorney;
|
| (c) |
any evidence required for identifying any person;
|
| (d) |
the referral to the Director-General of any matter involving doubt or difficulty;
|
| (e) |
any act or thing to be done in pursuance of this Part as he thinks fit.
|
|
|
| 73. |
Forgery of documents
Any person who forges, fraudulently alters or assists in forging or fraudulently altering, or procures to be forged or fraudulently altered, any register book, builder’s certificate, certificate of survey, certificate of registry, declaration, bill of sale or instrument of mortgage, under this Part, or any entry or endorsement required by this Part to be made in or on any of those documents, commits an offence and shall be liable, upon conviction, to imprisonment for a term not exceeding three years or a fine not exceeding five hundred thousand shillings, or both.
|
| 74. |
False declaration
| (1) |
Any person who, in the case of any declaration made in the presence of, or produced to a registrar under this Part or in any document or other evidence produced to such registrar—
| (a) |
wilfully makes, or assists in making, or procures to be made any false statement concerning the title to or ownership of, or the interest existing in any ship, or any share in a ship; or
|
| (b) |
utters, produces or makes use of any declaration or document containing any such false statement knowing the same to be false, commits an offence and shall be liable, upon conviction, to imprisonment for a term not exceeding three years, or a fine not exceeding five hundred thousand shillings, or both.
|
|
| (2) |
Without prejudice to the provisions of subsection (1), any person who wilfully makes a false declaration concerning the qualification of himself or of any other person or of any body corporate to own a Kenyan ship or any share therein, commits an offence and shall be liable, upon conviction, to imprisonment for a term not exceeding three years or a fine not exceeding five hundred thousand shillings, or both, and that ship or share shall be subject to forfeiture under this Act, to the extent of the interest of the declarant, and also, unless it is proved that the declaration was made without authority, of any person or body corporate on behalf of whom the declaration was made.
|
|
| 75. |
Liability of ships not registered
| (1) |
Where a Kenyan ship is by this Act required to be registered, then such a ship, if not so registered, shall not be entitled to any benefits, privileges or advantages usually enjoyed by Kenyan ships.
|
| (2) |
The payment of dues, the liability to fines and forfeitures and the punishment of offences committed on board a ship required to be registered, but which has not been registered, or by any person belonging to such ship shall be dealt with in the same manner in all respects as if she were a registered Kenyan ship.
|
|
| 76. |
Fees
The Minister may prescribe the fees payable for the registration, transfer including transmission, new registration, mortgage and transfer of mortgage.
|
Registration of Small Ships
| 77. |
Registration of small ships
| (1) |
Subject to subsections (2) and (3) and other provisions of this Act, a small ship that trades outside the limits of Kenyan territorial waters is required to be registered under this Act.
|
| (2) |
Ships registered under section 19 are exempted from being registered under this section.
|
| (3) |
This section shall apply to ships in Lake Victoria which plies beyond waters under the jurisdiction of Kenya.
|
| (4) |
The Director-General may in writing exempt, either generally or specifically, small ships from compliance with subsection (1), subject to such conditions as he may stipulate.
|
|
| 78. |
Qualifications for owning a small ship
| (1) |
A small ship shall not be registered in Kenya unless it is owned wholly by individuals or corporations ordinarily resident in Kenya.
|
| (2) |
No more than eight persons may be recorded as joint owners of a registered small ship.
|
| (3) |
Within seven days, or such further time as may be allowed by the Director-General, after a change of ownership of a small ship, the owner shall notify the Registrar of Ships in writing of such change.
|
| (4) |
Where the owner of a registered small ship ceases to be resident in Kenya, or where he fails to comply with subsection (3), the certificate of registration of the ship shall be deemed to have been cancelled.
|
| (5) |
The Director-General may in writing exempt any small ship from the provisions of subsection (1).
|
|
| 79. |
Regulations for registration of small ships
The Minister may make regulations regarding small ships, and, without prejudice to the generality of the foregoing, the regulations may provide for the following matters—
| (a) |
forms and procedures for registration;
|
| (b) |
registration of change of ownership;
|
|
Transfers and Transmissions
| 80. |
Transfers
| (1) |
A registered ship or a share therein, when disposed of to a person qualified to own a Kenyan ship, shall be transferred by a bill of sale.
|
| (2) |
The bill of sale shall contain such description of the ship as is contained in the surveyor’s certificate, or some other description sufficient to identify the ship to the satisfaction of the Registrar of Ships, and shall be executed by the transferor in the presence of, and be attested by, a witness or witnesses.
|
|
| 81. |
Declaration of transfer
Where a registered ship or a share therein is transferred in accordance with section 80(1), the transferee shall not be entitled to be registered as owner thereof until he, or, in the case of a body corporate, the person authorised by this Act to make declarations on behalf of the body corporate, has made and signed a declaration (in this Act called “declaration of transfer”) referring to the ship, and containing—
| (a) |
a statement of the qualification of the transferee to own a Kenyan ship, or if the transferee is a body corporate, of such circumstances of the constitution and business thereof as prove it to be qualified to own a Kenyan ship; and
|
| (b) |
declaration that, to the best of his knowledge and belief, a majority interest in the ship is owned by persons qualified to be owners of Kenyan ships, and the ship is otherwise entitled to be registered.
|
|
| 82. |
Registration of transfer
| (1) |
Every bill of sale for the transfer within the Kenyan registry of a registered ship or of a share therein, when duly executed, shall be produced to the Registrar of Ships, with the declaration of transfer, and upon being satisfied that the ship remains entitled to be registered in Kenya, the Registrar of Ships shall thereupon enter in the register the name of the transferee as owner of the ship or share, and shall endorse on the bill of sale the fact of that entry having been made, with the date and time thereof.
|
| (2) |
Bills of sale of a ship or of shares therein shall be entered in the register in the order of their production to the Registrar of Ships.
|
| (3) |
Upon the transfer being registered in the manner provided in subsection (1), the Registrar of Ships shall issue a new certificate of registry.
|
|
| 83. |
Transmission of property in ship on death, bankruptcy, marriage, etc.
| (1) |
Where the property in a registered ship or share therein is transmitted to any person by any lawful means other than a transfer under section 80, and a majority interest remains in the ownership of a person qualified to be an owner of a Kenyan ship—
| (a) |
that person shall authenticate the transmission by making and signing a declaration (in this Act called “declaration of transmission”) identifying the ship and containing the several statements hereinbefore required to be contained in a declaration of transfer, or as near thereto as circumstances admit, and also provide a statement of the manner in which the property has been transmitted;
|
| (b) |
where the transmission is consequent upon bankruptcy, the declaration of transmission shall be accompanied by such evidence as is acceptable by the court as proof of the title of persons claiming under a bankruptcy;
|
| (c) |
the transmission is consequent upon death, the declaration of transmission shall be accompanied by the instrument of representation, or an official extract therefrom;
|
| (d) |
the transmission was consequent upon an order of a court, a copy of the order or judgement of that court.
|
|
| (2) |
The Registrar of Ships, on receipt of the declaration of transmission so accompanied, and upon being satisfied that the ship remains entitled to be registered in Kenya, shall enter in the register the name of the person entitled under the transmission as owner of the ship or share the property in which has been transmitted, and, where there is more than one such person, shall enter the names of all those persons in the register, but those persons, however numerous, shall, for the purpose of the provisions of this Act with respect to the number of persons entitled to be registered as owners, be considered as one person.
|
|
| 84. |
Order for sale on transmission to unqualified person
| (1) |
Where the property in a registered ship or share therein is transmitted to any person by any lawful means other than a transfer under section 80, but as a result of the transmission the ship no longer remains in the ownership of persons qualified to be owners of a Kenyan ship, then the court may, on an application by or on behalf of that person, order a sale of the property so transmitted and direct that the proceeds of sale, after deducting the expenses of the sale, shall be paid to that person or otherwise as the court directs.
|
| (2) |
The court may require any evidence in support of the application it may think requisite, and may make the order on any terms and conditions it may think just, or may refuse to make the order, and generally may act in the case as the justice of the case requires.
|
| (3) |
Every such application for sale shall be made within four weeks after the occurrence of the event on which the transmission has taken place, or within such further time (not exceeding one year from the date of the occurrence) as the court may allow.
|
| (4) |
Where such an application is not made within the time aforesaid, or if the court refuses an order for sale, the ship or share transmitted shall thereupon be subject to forfeiture under this Act.
|
|
| 85. |
Transfer of ship or sale by order of Court
Where the court, whether under this Act or otherwise, orders the sale of any ship or share therein, the order of the court shall contain a declaration vesting in some person named by the court the right to transfer that ship or share, and that person shall be entitled to transfer the ship or share in the same manner and to the same extent as if he were the registered owner, and the Registrar of Ships shall deal with any application relating to the transfer of the ship or share made by the person so named as if that person were the registered owner.
|
| 86. |
Power of Court to prohibit transfer
The court may, if it thinks fit without prejudice to the exercise of any other power of the court, on the application of any interested person, make an order prohibiting for a time specified, any dealing with a ship or any share therein, and the court may make the order on any terms or conditions it thinks just, or may refuse to make the order, or may discharge the order when made, with or without costs, and generally may act in the case as the justice of the case requires and the Registrar of Ships without being made a party to the proceedings, shall on being served with the order or an official copy obey the same.
|
PART V – NATIONAL CHARACTER AND FLAG
| 87. |
Declaration of national character of ship
| (1) |
An officer of the port authority shall not grant clearance for any ship until the master of such ship has declared to that officer the name of the nation to which he claims that she belongs, and that officer shall thereupon inscribe that name on the clearance certificate.
|
| (2) |
Where a ship attempts to proceed to sea without such clearance, she may be detained until the declaration is made.
|
|
| 88. |
Offences relating to Kenyan character of ship
| (1) |
Where the master or owner of a ship which is not a Kenyan ship does anything, or permits anything to be done, for the purpose of causing the ship to appear to be a Kenyan ship then, except as provided by subsections (2) and (3), the ship shall be liable to forfeiture and each of the master, owner and charterer, if any, commits an offence and, upon conviction, shall be liable as provided in section 89.
|
| (2) |
No liability shall arise under subsection (1) where the assumption of Kenyan national character has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right.
|
| (3) |
Where the registration of any ship has terminated by virtue of any provision of this Act or the registration regulations, any marks prescribed by such regulations displayed on the ship within the period of fourteen days beginning with the date of termination of that registration shall be disregarded for the purposes of subsection (1).
|
| (4) |
Where the master or owner of a Kenyan ship does anything, or permits anything to be done, for the purpose of concealing the nationality of the ship, the ship shall be liable to forfeiture and each of the master, owner and charterer, if any, commits an offence and liable as provided in section 89.
|
| (5) |
Where a person uses the Kenyan flag and assumes the Kenyan character on board a ship owned in whole or in part by any person not qualified to own a Kenyan ship for the purpose of making it appear to be a Kenyan ship, the ship shall be liable to forfeiture under this Act, unless the assumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right.
|
| (6) |
In any proceeding for enforcing any such forfeiture in accordance with subsection (2), the burden of proving the right to use the Kenyan flag and to assume the Kenyan national character shall be upon the person using and assuming the same.
|
|
| 89. |
Penalty
| (1) |
A person who commits an offence under section 88 shall be liable, upon conviction, to imprisonment for a term not exceeding six months or a fine not exceeding thirty thousand shillings, or both.
|
| (2) |
Section 92 applies to offences committed within Kenya as well as outside Kenya.
|
|
| 90. |
Right to fly flag of Kenya
| (1) |
A ship registered or licenced in accordance with this Act shall be entitled to fly the national flag of Kenya.
|
| (2) |
Nothing in this section shall be construed to prohibit Kenyan ships which are exempt from registration under this Act from using on the waters of Kenya the national colours of Kenya.
|
|
| 91. |
Nationality and colours
| (1) |
A Kenyan ship shall hoist the proper national colours—
| (a) |
on a signal being made to her from any ship or aircraft belonging to the Armed Forces;
|
| (b) |
on entering or leaving any Kenyan or foreign port;
|
| (c) |
when passing a warship of any navy;
|
| (d) |
(d) while in a Kenyan port, from sunrise to sunset.
|
|
| (2) |
If default is made in complying with subsection (1), the master of the ship commits an offence and, upon conviction, shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding two months, or to both such fine and imprisonment.
|
| (3) |
Where there are hoisted on board any Kenyan ship, any colours or pendant usually worn by ships of the Kenyan Navy, or the national colours of any other country, the master of the ship or the owner thereof, if he is on board the ship, and every other person hoisting the pendant or colours, commits an offence and upon conviction shall be liable to a fine not exceeding two hundred thousand Kenya shillings, or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment and to seizure of the colours or pendant.
|
| (4) |
Where there are hoisted on board any Kenyan ship, any colours or pendant usually worn by ships of the Defence Force of Kenya or the national colours of any other State, the master of the ship, or the owner thereof if he is on board the ship, and every other person hoisting the pendant or colours, commits an offence and shall be liable upon conviction to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment and to seizure of the colours or pendant by the State.
|
|
| 91. |
Nationality and colours
| (1) |
A Kenyan ship shall hoist the proper national colours—
| (a) |
on a signal being made to her from any ship or aircraft belonging to the Kenya Defence Forces;
|
| (b) |
on entering or leaving any Kenyan or foreign port;
|
| (c) |
when passing a warship of any navy;
|
| (d) |
(d) while in a Kenyan port, from sunrise to sunset.
|
|
| (2) |
If default is made in complying with subsection (1), the master of the ship commits an offence and, upon conviction, shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding two months, or to both such fine and imprisonment.
|
| (3) |
Where there are hoisted on board any Kenyan ship, any colours or pendant usually worn by ships of the Kenyan Navy, or the national colours of any other country, the master of the ship or the owner thereof, if he is on board the ship, and every other person hoisting the pendant or colours, commits an offence and upon conviction shall be liable to a fine not exceeding two hundred thousand Kenya shillings, or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment and to seizure of the colours or pendant.
|
| (4) |
Where there are hoisted on board any Kenyan ship, any colours or pendant usually worn by ships of the Kenya Defence Forces or the national colours of any other State, the master of the ship, or the owner thereof if he is on board the ship, and every other person hoisting the pendant or colours, commits an offence and shall be liable upon conviction to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding twelve months, or to both such fine and imprisonment and to seizure of the colours or pendant by the State.
|
|
| 92. |
National flag on foreign ship
| (1) |
A person who uses or permits any person to use the Kenyan flag on board a foreign ship for the purpose of making that ship appear to be a Kenyan ship commits an offence and shall be liable, upon conviction, to imprisonment for a term not exceeding one year or a fine not exceeding two hundred and fifty thousand shillings, or both.
|
| (2) |
In any proceedings under this section, the burden of proving the right to use the flag and to assume the appearance of a Kenyan ship is upon the person using the flag of Kenya.
|
|
| 93. |
Proceedings on forfeiture of a ship
| (1) |
Where any ship has become liable to forfeiture under this Act—
| (a) |
any commissioned naval or military officer; or
|
| (b) |
any person appointed by the Minister for the purposes of this section,
|
may seize and detain the ship and bring the ship for adjudication before the Court.
|
| (2) |
Where a ship is subject to adjudication under this section the Court may—
| (a) |
adjudge the ship and her equipment to be forfeited to the State; and
|
| (b) |
make such order in the case as seems just.
|
|
| (3) |
No officer or person bringing proceedings under this section shall be liable in damages in respect of the seizure or detention of the ship, notwithstanding that the ship has not been proceeded against or, if proceeded against, adjudicated not liable to forfeiture, if the Court is satisfied that there were reasonable grounds for the seizure or detention.
|
| (4) |
Where the Court is not so satisfied the Court may award costs and damages to the party aggrieved and make such other order as the Court thinks just.
|
|
PART VI – PROPRIETARY INTERESTS IN SHIPS
| 94. |
Rights of owners and mortgagees
| (1) |
Subject to any rights and powers appearing from the register to be vested in any other person, the registered owner of a ship or of a share in a ship shall have power absolutely to dispose of it provided the disposal is made in accordance with this Act.
|
| (2) |
Subsection (1) does not imply that interests arising under contract or other equitable interests cannot subsist in relation to a ship or a share in a ship, and such interests may be enforced by or against owners and mortgagees of ships in respect of their interest in the ship or share in the same manner as in respect of any other personal property.
|
| (3) |
The registered owner of a ship or of a share in a ship shall have power to give effectual receipts for any money paid or advanced by way of consideration on any disposal of the ship or share.
|
|
| 95. |
Mortgage of ship or share
| (1) |
A registered ship, or a share in any such ship, may be made a security for a loan or the discharge of any other obligation.
|
| (2) |
The instrument creating any such security (referred to in this Part as a “mortgage”) shall be in the prescribed form.
|
| (3) |
Where a mortgage executed in accordance with subsection (2) is produced to the Registrar of Ships, he shall register the mortgage in the prescribed manner.
|
| (4) |
Mortgages shall be recorded by the Registrar of Ships in the order in which they are produced for the purposes of registration and the registrar shall enter and sign on each mortgage a statement to the effect that it has been registered by him, stating the date and time of the registration.
|
| (5) |
Where it is stated in the mortgage instrument that it is prohibited to create further mortgages over a vessel without the prior written consent of the mortgagee, the Registrar of Ships shall make a note in the register to such effect, and the Registrar of Ships shall not register any further mortgage unless the consent in writing of the holder of a prior mortgage is produced to him, and any mortgage registered in violation of this provision shall be null and void.
|
| (6) |
Where it is stated in the mortgage instrument that it is prohibited to transfer the ownership of a ship or terminate the registration of the ship in the manner provided in section 21(1)(d), without the prior written consent of the mortgagee, the Registrar of Ships shall make a note in the register to such effect, and the Registrar of Ships shall not record a transfer of ownership of the ship or terminate the ship’s registration, as the case may be, unless the appropriate consent in writing of the holder of the mortgage is produced to him, and any recording in the register of a transfer of ownership or a termination of the ship’s registration in the circumstances referred to in this subsection shall be null and void.
|
| (7) |
A mortgage may be registered in the register referred to in section 25(1) in respect of a provisionally registered ship, and where a mortgage is so registered, it shall be subject to all relevant provisions relating to mortgages under this Act and the registration regulations.
|
| (8) |
A mortgage registered pursuant to subsection (7) shall continue to be a registered mortgage until it is discharged, even if the provisional registration of the ship in respect of which the mortgage was registered, ceases to be effective.
|
| (9) |
For the purposes of subsection (1), “ship” includes a ship under construction.
|
| (10) |
A mortgage in respect of a ship under construction shall be entered in the register referred to in section 25(1), however, upon the registration of such ship under construction being transferred to another appropriate part of the register as provided in section 25(4), the entries relating to the mortgage, unless the mortgage is discharged, shall in like manner be transferred to the same appropriate part of the register.
|
| (11) |
A mortgage in respect of a ship under construction shall, for the purposes of determining priority under this or any other law, and in all other respects, be treated as a registered ship mortgage and shall continue to be treated as such until it is discharged, even if the ship under construction ceases to be registered under this Act; and a ship under construction shall, for the purposes of a mortgage thereon under this or any other law, be treated as maritime property.
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| 96. |
Priority of mortgages
Where two or more mortgages are registered in respect of the same ship or share, the priority of the mortgagees between themselves shall be determined by the order in which the mortgages were registered and not by reference to any other matter.
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| 97. |
Priority notices
Registration regulations may provide for the giving to the Registrar of Ships by intending mortgagees of “priority notices” in a form prescribed by or approved under the regulations which, when recorded in the register, shall determine the priority of the interest to which the notice relates.
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| 98. |
Authority to sell or mortgage out of Kenya
| (1) |
Where a registered owner of a Kenyan ship or a share therein, is desirous of disposing by way of sale or mortgage of that ship or share at any place out of Kenya, he may make application, by declaration in writing, to the Registrar of Ships.
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| (2) |
In an application under subsection (1), there shall be set forth the following particulars—
| (a) |
the name and address of the person by whom the power mentioned in the certificate is to be exercised, together with—
| (i) |
in the case of a sale, the minimum price at which a sale is to be made if it is intended to fix any such minimum; or |
| (ii) |
in the case of a mortgage, the maximum amount thereof, if it is intended to fix any such maximum; |
|
| (b) |
the place where the power is to be exercised, or, if no place is specified, a declaration that the power may be exercised anywhere, subject to this Act;
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| (c) |
the limit of time within which the power may be exercised.
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|
| (3) |
Subject to section 99(1), in the case of an application to dispose of a ship by way of sale, the Registrar of Ships shall enable any such applicant to dispose of the ship or share in the manner desired in accordance with subsection (4).
|
| (4) |
On receiving an application made under this section, the Registrar of Ships shall enter in the register book a statement of the particulars set forth in the application, and shall grant to the applicant a Certificate of Sale or a Certificate of Mortgage, as the case may require.
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| (5) |
A Certificate of Sale and a Certificate of Mortgage shall—
| (a) |
each be in the prescribed form;
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| (b) |
not authorise any sale or mortgage to be made in Kenya or by any person not named in the certificate; and
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| (c) |
contain a statement of the particulars set forth in the application, and also a statement of any registered mortgages and certificates of any registered mortgages and certificates of sale or mortgage affecting the ship or share in respect of which the certificate is given.
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|
|
| 99. |
General rules for Certificate of Sale
| (1) |
A Certificate of Sale shall not be granted except for sale of an entire ship.
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| (2) |
The power conferred by any such certificate shall be exercised in conformity with the directions contained therein.
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| (3) |
An agreement for sale entered in good faith in exercise of the power conferred by any such certificate to a purchaser for valuable consideration shall not be impeached by reason of the person by whom the power was given dying at any time between the giving of the power and the completion of the sale.
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| (4) |
Whenever any such certificate contains a specification of the place at which, and a limit of time not exceeding twelve months within which the power is to be exercised, a sale made in good faith to a purchaser for valuable consideration without notice shall not be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given.
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| 100. |
Sale and registration of ship under Certificate of Sale
| (1) |
Where a Kenyan ship is sold, in exercise of a power conferred by a Certificate of Sale granted under this Part, to persons qualified to own a Kenyan ship—
| (a) |
a transfer of the ship shall be made by Bill of Sale in the manner provided in this Part, and the Bill of Sale, when duly executed, and the Certificate of Sale shall be produced to a proper officer at the place at which the ship is sold, and that officer shall thereupon endorse and sign on the certificate of sale a statement of the fact of that ship having been sold, and shall forthwith notify the Registrar of Ships;
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| (b) |
the ship may be registered anew in the manner provided by this Act; and
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| (c) |
the Registrar of Ships, upon receipt of the Certificate of Sale and the ship’s Certificate of Registry from a proper officer, each of those certificates having endorsed thereon an entry of the fact of the sale having taken place, shall thereupon enter the sale of the ship in the register book.
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|
| (2) |
Where a Kenyan ship is sold in exercise of a power conferred by a Certificate of Sale, issued under this Part, to persons not qualified to own a Kenyan ship—
| (a) |
the Certificate of Sale and the Certificate of Registry shall be produced to the proper officer at the place at which the ship is sold, and the proper officer shall endorse and sign on each of them a statement of the fact of that ship having been sold to persons not qualified to own a Kenyan ship;
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| (b) |
the proper officer making the endorsements required by paragraph (a) shall forward the Certificates of Sale and Registry, each being duly endorsed, to the Registrar of Ships;
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| (c) |
the Registrar of Ships, upon receipt of the Certificates of Sale and Registry, each being endorsed in accordance with paragraphs (a) and (b), shall make an entry of the sale in his register book, and the registration of the ship shall be considered as closed, except as far as relates to any unsatisfied mortgages or existing certificates of mortgage entered therein; and
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| (d) |
where default is made in the production of the certificates mentioned in this subsection, the persons to whom the ship is sold shall be considered to have acquired no title to or interest in, the ship, and the person on whose application the Certificate of Sale was granted, and the person exercising the powers conferred thereby, each commits an offence.
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|
| (3) |
Where no agreement for sale is entered into in exercise of the powers conferred by a Certificate of Sale granted under this Part, that certificate shall be delivered to the Registrar of Ships, and the Registrar shall thereupon cancel the certificate, and shall enter the fact of the cancellation in the register book; and every certificate so cancelled shall be void.
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|
| 101. |
Registration in Kenya of foreign-registered ship
| (1) |
Where any ship registered in a foreign country is sold in exercise of a power conferred by a Certificate of Sale granted under the law of that country, to persons qualified to own a Kenyan ship, that ship may be registered in Kenya in accordance with this section.
|
| (2) |
Application for registration anew shall be made to the Registrar of Ships and there shall be produced to the Registrar of Ships the Bill of Sale by which the ship is transferred, the Certificate of Sale and the Certificate of Registry of the ship.
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| (3) |
The Registrar of Ships, on registering the ship anew, shall—
| (a) |
retain the Certificates of Sale and Registry, and shall endorse on each of those certificates an entry of the fact of a sale having taken place, and shall forward those certificates, so endorsed, to the Registrar of Ships at the ship’s former Port of Registry; and
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| (b) |
enter in the register book such particulars as are, by this Act required to be entered therein in the case of the first registration of a ship in Kenya, and also a statement of any registered mortgages or certificates of mortgage enumerated on the Certificate of Sale.
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|
| (4) |
On such registration anew—
| (a) |
the description of the ship contained in her former Certificate of Registry may be transferred to the new register book, without her being resurveyed, and the declaration to be made by the purchaser shall be the same as would be required to be made by an ordinary transferee; and
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| (b) |
all persons appearing on the register to be interested in that ship as owners or mortgagees shall be deemed to have the same rights, and their rights shall be determined in the same manner, as if that ship had been first registered in Kenya in the manner provided in this Act and as if any unsatisfied mortgages or existing certificates of mortgage had been entered in the register book at that port.
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|
| 102. |
Certificates of mortgage
The following provisions shall apply regarding certificates of mortgage—
| (a) |
the power conferred shall be exercised in conformity with the directions contained in the certificates;
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| (b) |
every mortgage executed thereunder shall be registered by the endorsement of a record thereof on the certificate by the proper officer at the place at which the mortgage is executed;
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| (c) |
a mortgage executed in good faith thereunder shall not be impeached by reason of the person by whom the power was given dying at any time between the giving of the power and the execution of the mortgage;
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| (d) |
whenever the certificate contains a specification of the place at which, and a limit at time not exceeding twelve months within which, the power is to be exercised, a mortgage executed in good faith to a mortgagee without notice shall not be impeached by reason of the bankruptcy or insolvency of the person by whom the power was given;
|
| (e) |
every mortgage which is so registered as aforesaid on the certificate shall have priority over all mortgages of the same ship or share created subsequently to the date of the entry of the certificate in the register book; and where there are more mortgages than one so registered, the respective mortgagees claiming thereunder shall, notwithstanding any express, implied or constructive notice, be entitled to priority one before the other according to the date and time that each mortgage is registered on the certificate, and not according to the date of the mortgage;
|
| (f) |
subject to the foregoing rules, every mortgagee whose mortgage is registered on the certificate shall have the same rights and powers, and be subject to the same liabilities, as he would have had and been subject to, if his mortgage had been registered in the register book instead of on the certificate;
|
| (g) |
the discharge of any mortgage so registered on the certificate may be endorsed on the certificate by the Registrar of Ships or proper officer on the production of such evidence as is, by this Act required to be produced to the Registrar of Ships for the entry of the discharge of a mortgage in the register book; and, on that endorsement being made the interest, if any, which passed to the mortgagee shall vest in the same person or persons in whom it would, having regard to the intervening acts and circumstances, if any, have vested if the mortgage had not been made.
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|
| 103. |
Loss of certificate of sale or mortgage
On proof at any time to the satisfaction of the Registrar of Ships that a Certificate of Sale or Mortgage is lost or destroyed, or so damaged as to be useless, and that the powers thereby given have never been exercised, or, if they have been exercised, then, on proof of the several matters and things that have been done thereunder, the Registrar of Ships may as circumstances require, either issue a new certificate or direct such entries to be made in the register book, or such other things to be done, as might have been made or done if the loss, destruction or damage had not taken place.
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| 104. |
Revocation of certificate of sale or mortgage
| (1) |
The owner of a Kenyan ship, or a share therein in respect of which a Certificate of Sale or mortgage has been granted specifying the places where the power thereby given is to be exercised, may, by an instrument under his hand, authorise the Registrar of Ships by whom the certificate was granted to give notice to the proper officer at every such place that the certificate is revoked.
|
| (2) |
Notice shall thereupon be given accordingly and be recorded by the proper officer receiving it, and after it is recorded, the certificate shall be deemed to be revoked in respect of any sale or mortgage to be thereafter made at that place.
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| (3) |
After it has been recorded, the notice shall be exhibited to every person applying for the purpose of effecting or obtaining a transfer or mortgage under the certificate.
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| (4) |
A proper officer, on recording any such notice, shall inform the Registrar of Ships by whom the Certificate was granted whether any previous exercise of the power to which the certificate refers has taken place.
|
|
| 105. |
Maritime liens
| (1) |
Subject to the provisions of this Act, the following claims may be secured by maritime liens—
| (a) |
wages and other sums due to the master, officer and other members of the ship’s complement, in respect of their employment on the ship;
|
| (b) |
port and other waterway dues and pilotage dues;
|
| (c) |
claims against the owner in respect of loss of life or personal injury occuring, whether on land or water, in direct connection with the operation of the ship;
|
| (d) |
claims against the owner, based on a wrongful act and not on contract, in respect of loss of or damage to property occuring whether on land or on water, in direct connection with the operation of the ship;
|
| (e) |
claims for salvage, wreck removal and contribution in general average.
|
|
| (2) |
In subsection (1), “owner” includes, in relation to a ship, the charterer, manager or operator of such ship.
|
|
| 106. |
Priority of liens
The maritime liens set out in section 105 shall take priority over mortgages and preferential rights registered under this Part, or arising under the law relating to bankruptcy, and except as provided in section 107 no other claim shall take priority over them.
|
| 106. |
Priority of liens
The maritime liens set out in section 105 shall take priority over mortgages and preferential rights registered under this Part, or arising under the law relating to insolvency, and except as provided in section 107 no other claim shall take priority over them.
|
| 107. |
Order of priority of liens
| (a) |
rank in the order in which they are set out in that section, so however, that maritime liens securing claims for salvage, wreck removal and contribution in general average shall take priority over all other maritime liens which have attached to the ship prior to the time when the operations giving rise to such liens were performed;
|
| (b) |
in the case of claims arising under section 105(1) (a), (b), (c) or (d), rank pari passu among themselves;
|
| (c) |
in the case of claims arising under section 105(1)(e), rank in the inverse order of the time when the claim secured thereby accrued; and for this purpose claims for salvage shall be deemed to have accrued on the date on which the salvage operation was terminated, and claims for general average shall be deemed to have accrued on the day on which the general average act was performed.
|
|
| 108. |
Rights of ship builders and repairers
Where a preferential right arises, pursuant to the provisions of the law relating to bankruptcy, or insolvency, in respect of a ship in the possession of—
| (a) |
a ship builder, in order to secure claims for the building of the ship; or
|
| (b) |
a ship repairer, in order to secure claims for the repair of the ship, effected during such possession,
|
such rights shall be postponed to all the maritime liens set out in section 105 but may take precedence over any mortgage or other preferential right registered under this Part so long as the ship is in the possession of the ship builder or ship repairer, as the case may be.
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