A licence granted to a clearing and forwarding agent under section 145 of the East African Customs Community Management Act, 2004, shall, in so far as it provides services in respect of maritime cargo, be deemed to be a licence under these Regulations and the provisions of regulations 5, 6, 8, 9 and 10 shall not apply to clearing and forwarding agents.

A person shall be eligible to be licensed as a maritime service provider if such person is a citizen of Kenya, or is a company incorporated under the Companies Act Cap. 486) in which not less than fifty-one per cent of the share capital is held directly by a citizen of Kenya.

Notwithstanding paragraph (1) any company which holds a licence to operate as a maritime service provider shall within eighteen months from the date of commencement of these Regulations, comply with the provisions of that paragraph.

The maritime service provider referred to in paragraph (2) may, at any time within eighteen months from the date of commencement of these Regulations, apply for, and upon satisfying the requirements of regulation 11, be entitled to the grant of a licence under these Regulations.

A ship’s agent or cargo consolidator shall be eligible to be licensed under these Regulations if such agent or consolidator, is of good standing and its reputation as evidenced by a letter of recommendation from the principal.

A container handling facility shall be eligible for licensing if it is located in an area where it does not inhibit accessibility to other users.

The Authority shall specify by notice in the Gazette, the minimum paid-up share capital to be maintained by a maritime service provider that is a body corporate.

A maritime service provider shall, whenever requested to do so by the Authority, demonstrate that it has complied with paragraph (1).

Paragraphs (1), (5), (6), (7) and (8) shall not apply to shipping lines.

An application for a licence as a maritime service provider shall be made to the Authority in the form set out in the Second Schedule.

The Authority may approve or reject an application and shall notify the applicant of its decision together with reasons within sixty days from the date of receipt of the application.

Where the Authority approves an application for a licence or the renewal of a licence, the Authority shall, upon payment of such standard fee as it may determine, issue to the applicant the appropriate licence or renewal of the licence.

Any person who carries on the business of a maritime service provider without a valid licence commits an offence and shall be liable on conviction to a fine not exceeding ten million shillings or imprisonment for a term not exceeding three years, or both such fine and imprisonment.

A maritime service provider, other than a shipping line, who is licensed under Regulation 6 shall within sixty days of the issuance of the licence apply to join an association.

An Association shall have the primary responsibility of providing and monitoring a code of conduct and standards of competence for the particular category of maritime service providers through service level agreements and the Authority may revoke its recognition if in it’s opinion the Association is not carrying out its primary responsibility.

This regulation shall come into operation after the expiration of twelve months after the commencement of these Regulations.

Any person who holds a licence may apply for its renewal subject to the requirements set out under this regulation.

The Authority may approve or reject the application for the renewal of a license and shall notify the licensee of its decision before the expiry of sixty days from the date of lodging the application.

If despite the fine imposed under paragraph (1), a maritime service provider continues committing the offences mentioned in paragraph (1), the Authority may, subject to these Regulations, suspend or revoke the licence.

Where the Authority suspends or revokes a licence issued under these Regulations, the Director-General shall notify the licensee of the decision of the Authority within fourteen days of the date of the decision.

Any person whose application for a licence or renewal has been denied or whose licence has been suspended or revoked may, within twenty one days of receipt of the notice of such refusal, suspension or revocation, appeal to the Minister.

Any person aggrieved by the Minister’s decision may within fourteen days of such decision, make a further appeal to the High Court.

A maritime service provider other than a shipping line shall have among its staff professionals qualified in accordance with paragraph (2).

A maritime service provider shall, within five years from the date of its first licensing under these Regulations, ensure that at least sixty per cent of its management staff have successfully sat and passed the professional examinations referred to in paragraph (2).

The Authority may, where it deems appropriate, suspend the licence of any person charged with a criminal offence pending the outcome of the proceedings.

Whenever a company holding a licence undergoes any change in its directors, company name, location or its shareholding, such a change shall be communicated by the company to the Authority within fourteen days of such change:

Provided that any change in shareholding shall be subject to regulation 5(1).

The provisions of this regulation shall not apply to a shipping line.

A person who contravenes the provisions of this regulation commits an offence and shall be liable, on conviction, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years, or both.

A person who contravenes the provisions of this regulation commits an offence and shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years, or both.

Upon receipt of the written response, or where no such a response has been received, within the time limit set out under paragraph (2)(b), the Authority shall inquire into the grounds set out in its notice under paragraph (1) or such of the grounds not admitted, as the case may be.

The Authority may, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry, and may put any questions to any person tendering evidence for or against the maritime service provider.

The maritime service provider shall be entitled to cross examine any person on the grounds forming the basis of the proceedings but where the Authority declines to examine any person on the ground that his or her evidence is irrelevant or immaterial, it shall record its reasons in writing.

At the conclusion of the inquiry, the Authority shall prepare a report of its findings with appropriate orders.

The Authority shall subject to paragraph (9) furnish the maritime service provider with a copy of its report and the maritime service provider shall within a period of not more than thirty days from the date of receipt of the report, submit, in writing, any representations which it may have against the findings.

Where the maritime service provider is a clearing and forwarding agent, the Authority shall make such recommendations as may be appropriate to the Commissioner.

The Authority may make any such order as to payment by any party of any costs or witness expenses and of the expenses of the Authority or the members thereof in connection with the hearing of any complaint as it may think fit.

Any maritime service provider aggrieved by any decision or order of the Authority, may appeal to the Minister, with a further appeal to the High Court.

The Authority may require a maritime service provider to file with the Authority its tariffs showing the actual rates, charges and surcharges applied in providing all services rendered and the maritime service provider shall comply with such requirement within seven days of such requirement being made.

A maritime service provider shall not amend the tariff as provided under paragraph (1) without notifying the Authority.

No maritime service provider shall pad customs or other statutory fees charged to customers.

Charges for services delivered locally shall be raised and paid for in Kenyan currency.

Any person who contravenes the provisions of this regulation commits an offence and shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years, or both.

The Authority may require or order any maritime service provider to file with it any report, cargo manifest, freight manifest, answers to questions, documentary material or other information that the Authority finds appropriate; and may require the response to such order to be made in such form and within such time as may be specified by the Authority.

A maritime service provider shall submit copies of annual returns to the Authority within one month after the deadline for the filling of the annual reports.

A maritime service provider who fails to file a report or document when required to do so by the Authority under paragraph (1) or who contravenes paragraph (2) commits an offence and shall be liable on conviction to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years, or both.

The Authority may inspect the premises of a maritime service provider for the purposes of promoting commitment to the advancement of excellence, professionalism as well as ethical standards of trade in all aspects of the business of the maritime service provider.

Such visits shall focus on standards of customer care, complaints handling, supervision and management of the maritime service provider’s facility.

The maritime service provider shall allow free entry and exit to the premises of the maritime service provider and access to all records pertinent to the handling of cargo, ledgers, details of complaints received, copies of the maritime service provider’s complaints procedure, terms of business, details of any risk management measures, contract documents and any other details which may be relevant for the visit.

At the end of every visit, the Authority shall meet with the maritime service provider and summarize its findings.

The Authority shall keep records of each visit undertaken under this regulation, which shall include the particulars, description and recommendations made after each visit.

Where any recommendations are made under this regulation, the Authority may within such time and in such manner as it shall specify, require the maritime service provider concerned to implement or cause to be implemented the recommendations contained in the record of visit.

The Authority may suspend a maritime service provider’s licence for any failure to implement a requirement as contained in paragraph (6) above.

The movement of cargo into any container freight station shall, subject to paragraph (2), be in accordance with the instructions of the shipper as contained in the bill of lading.

The relevant port authority shall nominate the container freight station for movement of cargo where the bill of lading does not contain the instructions of the shipper.

The nomination under paragraph (2) shall have due regard to an equitable, transparent and fair distribution of cargo, and the port authority shall, before making the nomination, take steps to ensure that the receiving container freight station has the capacity to receive the cargo having regard to space, personnel and equipment.

Any person who contravenes this regulation commits an offence and is liable, on conviction, to a fine not exceeding five million shillings and shall in addition be liable to the affected cargo owners for all losses, fines, penalties, demurrage, storage charges or any other charges arising from such failure to comply.

Any action or thing done in respect of licensing of a maritime service provider immediately before the coming into force of these Regulations, shall be deemed to have been done under the corresponding provisions of these Regulations.

Every person who immediately before the commencement of these Regulations, was a holder of a licence authorizing him to carry on the business of a maritime service provider shall, upon payment of the prescribed licence fees, continue carrying on such business for a period of six months from the date of commencement of these Regulations.

The maritime service provider referred to in paragraph (2) may, any time within six months from the date of commencement of these Regulations, apply for, and upon satisfying the requirements of regulation 5 be entitled to the grant of a licence under these Regulations.

Any person carrying on the business of a maritime service provider pursuant to paragraph (1) who elects not to apply for a licence or having applied for a licence has not satisfied the requirements of regulation 5 shall cease to carry on the business of a maritime service provider on the expiration of the period referred to in paragraph (2).

In the case of a ship below 500 gross tonnage, to the extent to which a Convention does not apply, an inspector shall, without prejudice to any other powers under any Convention enactment, take such action as may be necessary to ensure that the ship is not clearly hazardous to safety, health or the environment, and shall in applying of this subregulation be guided by 1B to the Memorandum of Understanding.

When inspecting a ship pursuant to regulation 5 to 8 no favourable treatment shall be given to a ship flying the flag of a State which is not a party to a Convention or to the crew of such a ship than that given to a ship flying the flag of a State which is a party to that Convention or to the crew of such a ship.

In this Regulation “Kenyan waters” has the meaning given by section 2 of the Act.

The Kenya Maritime Authority is designated the competent authority for Kenya for the purposes of this Part.

In relation to a member state “competent authority” means the national maritime administration maintained by that State for the inspection of ships.

In relation to a State other than a member State “competent authority” means any authority designated as such by that State.

The Authority shall carry out an annual total number of inspections corresponding to at least 25% of the number of individual ships to which this Part applies and which entered its ports during a representative calendar year.

In selecting ships for inspection the Authority shall give priority to the ships referred to in the Second Schedule.

The provisions of subregulation (3) shall not apply to any of the operational controls specifically provided for in the Convention enactments.

The inspector may examine all relevant certificates and documents, other than those listed in the Third Schedule, which are required to be carried on board in accordance with the Convention enactments.

Whenever there are clear grounds for believing, after the inspection referred to in subregulations (1) and (2), that the condition of a ship or of its equipment or crew does not substantially meet the relevant requirements of a Convention enactment, a more detailed inspection shall be carried out, including further checking of compliance with on board operational requirements.

The inspector shall observe the relevant procedures and guidelines for the control of ships specified in the Fourth Schedule.

Where there are clear grounds for a more detailed inspection of a ship belonging to the categories listed in Section A of the Fifth Schedule an expanded inspection shall be carried out taking into account the guidelines in section B of the Fifth schedule.

A ship referred to in subregulation (1) shall be subject to an expanded inspection by any of the competent authorities of the member States only once during a period of 12 months, but the ship may be subject to the inspection provided for in regulation 6(1) and (2).

Subject to subregulation (2), in the case of a passenger ship operating on a regular schedule in or out of a port in Kenya an expanded inspection of the ship shall be carried out before the ship starts operating, and every 12 months thereafter by the Authority subject to consultation with the competent authority of a member State, where the ship operates to ports in that member State.

On completion of an inspection, a more detailed inspection, or an expanded inspection, the master of the ship shall be provided by the inspector with a document in the form specified in Annex 3 to the Memorandum of Understanding, giving the results of the inspection and details of any decisions taken by the inspector, and of corrective action to be taken by the master, owner or operator.

In the case of deficiencies warranting the detention of a ship, the document to be given to the master in accordance with subregulation (1) shall include information about the future publication of information concerning the detention in accordance with regulation 16.

The owner shall satisfy the Authority that any deficiencies confirmed or revealed by an inspection referred to in regulation 6 or 7 are or will be rectified in accordance with the Conventions.

The detention notice or stoppage of an operation shall not be lifted until the Authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the operation be resumed without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat to or harm to the marine environment.

Without prejudice to any other requirement in the Convention enactments, when exercising his professional judgement as to whether or not a ship should be detained the inspector shall apply the criteria set out in the Sixth Schedule.

In exceptional circumstances, where the overall condition of a ship is obviously substandard, the inspector may, in addition to detaining the ship, suspend the inspection of the ship until the responsible parties have taken the steps necessary to ensure that it complies with the relevant requirements of the Conventions.

Without prejudice to any other requirement in the Convention enactments, in the event that an inspection referred to in regulation 7 or 8 gives rise to detention, the Authority shall immediately inform, in writing, the flag administration or the Consul or, in his absence, the nearest diplomatic representative of the State of the flag administration, of all the circumstances in which intervention was deemed necessary. In addition, nominated surveyors or recognized organizations responsible for the issue of the ship’s certificates shall also be notified where relevant.

The provisions of these Regulations shall be without prejudice to the additional requirements of the Conventions concerning notification and reporting procedures related to port State control.

When carrying out inspections under these Regulations, the inspector shall make all possible efforts to avoid undue detention or delay of a ship.

Where an inspection reveals that a copy of the document of compliance or the safety management certificate required by the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code) are not on board a vessel to which the ISM Code is applicable at the date of inspection, the inspector shall detain the ship.

A ship which proceeds to sea from any port in any member State following release in order to avoid port congestion under subregulation (2) shall not enter any port in Kenya until the owner provides evidence to the satisfaction of the competent authority of the member State where the ship was detained that the ship fully complies with the requirements of the ISM Code.

Notwithstanding the provisions of subregulation (3), access to a specific port may be permitted in situations referred to in regulation 14(8).

Any question as to whether any of the matters specified in relation to a ship in a detention notice in pursuance of a power of detention to which this Regulation applies in connection with any opinion formed by the inspector constituted a valid basis for that opinion shall, where the master or owner of the ship so requires by a notice given to the inspector within 21 days from the service of the detention notice, be referred to a single arbitrator appointed by agreement between the parties for that question to be decided by him.

Where a notice is given by the master or owner of the ship in accordance with subregulation (1), the giving of the notice shall not have the effect of suspending the operation of the detention notice.

The arbitrator shall have regard, in coming to his decision, to any other matters not specified in the detention notice which appears to him to be relevant as to whether the ship was or was not liable to be detained.

Where on a reference under this Regulation the arbitrator decides as respects any matter to which the reference relates, that in all the circumstances the matter did not constitute a valid basis for the inspector’s opinion the arbitrator shall either cancel the detention notice or affirm it with such modifications as he may in the circumstances think fit; and in any other case the arbitrator shall affirm the notice in its original form.

The arbitrator shall include in his decision a finding as to whether or there was not a valid basis for the detention of the ship.

In connection with his functions under this Regulation an arbitrator shall have the powers conferred on a surveyor by the Act.

Any compensation awarded under this Regulation shall be payable by the Authority.

Where deficiencies referred to in regulation 9(2) cannot be rectified in the port of inspection, the Authority may allow the ship to proceed to the nearest appropriate repair yard available as chosen by the master and the responsible parties, provided that the conditions determined by the competent authority of the flag state and agreed by the Authority are complied with, to ensure that the ship proceeds without risk to the safety and health of passengers or crew, or risk to other ships, or without there being an unreasonable threat of harm to the marine environment.

In the circumstances referred to in subregulation (1), the Authority shall notify the competent Authority of the State where the repair yard is situated, the parties referred to in regulation 9(5) and any other authority as appropriate, of all the conditions for the voyage.

The notification of the parties referred to in subregulation (2) shall be in accordance with Annex 2 to the Memorandum of Understanding.

Where the Authority receives notification from the competent authority of another member State (“the notifying authority”) in respect of a ship which the Authority allows to proceed to a repair yard in Kenya the Authority shall inform the notifying authority of the action it has taken.

The subregulation (5) applies to a ship, detained in a port in a member State after inspection, which reveals deficiencies which are clearly hazardous to safety, health or the environment, and which has been allowed by the competent authority to proceed to the nearest appropriate repair yard.

Where a ship proceeds to sea from a port in Kenya without complying with the conditions determined by the Authority in accordance with subregulation (1), the Authority shall immediately alert the competent authorities of all the other member states.

Where a ship to which subregulation (5) applies is to proceed to a repair yard in Kenya but fails to call into the repair yard indicated, the Authority shall immediately alert the competent authorities of all the other member States.

Notwithstanding the provisions of subregulation (5), access to a specific port may be permitted by the Authority in the event of force majeure or overriding safety considerations, or to reduce or minimize the risk of pollution or to have deficiencies rectified, provided adequate measures to the satisfaction of the Authority are implemented by the owner or the master of the ship to ensure safe entry.

Inspections under these Regulations shall be carried out only by inspectors who fulfil the criteria specified in the Seventh Schedule.

Where an inspector does not possess the required professional expertise he shall be assisted by any person with the required professional expertise.

An inspector and any person assisting him shall have no commercial interest either in the port of inspection or in the ships inspected, nor shall an inspector be employed by or undertake work on behalf of non-governmental organisations which issue statutory and classification certificates or which carry out the surveys necessary for the issuance of those certificates to ships.

A Kenyan pilot, engaged in the berthing or unberthing of a ship to which this Part applies in Kenya or engaged on such a ship bound for a port within a member state, shall immediately inform the port authority or the Authority, whenever they learn in the course of their normal duties that there are deficiencies which may prejudice the safe navigation of the ship, or which may pose a threat of harm to the marine environment.

In subregulation (1),“Kenyan pilot” means a pilot authorised by a port authority.

Where a port authority, when exercising its normal duties, learns that such a ship within its port has deficiencies which may prejudice the safety of the ship or poses an unreasonable threat of harm to the marine environment, that port authority shall immediately inform the Authority.

The Authority shall, as a minimum, publish on a quarterly basis information concerning ships to which this Part applies detained during the previous 3-month period and which have been detained more than once during the past 24 months.

The costs of any inspection which results in the detention of a ship to which Part I applies, and any subsequent inspection relating to the deficiencies which led to the detention and all costs relating to any inspection carried out by the Authority for the purposes of, or in connection with regulation 14(5) shall be charged to the owner or his representative in Kenya.

Any detention made pursuant to these Regulations shall not be lifted until any fees payable in respect of any inspection leading to it or arising from it have been paid, or the Authority has been provided with sufficient security for the fees.

Where there is any contravention of a direction made pursuant to regulation 9(2) in respect of a ship, the owner and master of the ship commits an offence, and upon conviction, is liable to a fine not exceeding one hundred thousand shillings or to imprisonment of a period not exceeding twelve months, or to both such fine and imprisonment.

Where a person obstructs an inspector or any person assisting the inspector he commits an offence and upon conviction, is liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a period not exceeding twelve months, or to both such fine and imprisonment.

Any pilot who contravenes regulation 16(1) commits an offence and upon conviction, is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a period not exceeding twelve months, or to both such fine and imprisonment.

Any port authority official who contravenes regulation 16(1) or 16(3) commits an offence and upon conviction, is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a period not exceeding twelve months or to both such fine and imprisonment.

It shall be a defence for a person charged under this Regulation to prove that the person charged took all reasonable steps to avoid committing the offence.

There shall be the right of appeal to the Cabinet Secretary from a determination or order by the Authority under subregulation (1) whereby a penalty exceeding five hundred thousand shillings is imposed, provided that such right is exercised within a period of three months from the date of such determination or order.

The imposition of a penalty under subregulation (1) shall not be deemed to be a conviction of a criminal offence, but no prosecution for the same offence shall thereafter be competent.

Nothing in this Regulation shall in any way affect liability to forfeiture of ships, shares therein or goods.

Ships when in ports in Kenya and also in the case of Kenyan ships when elsewhere shall be subject to inspection for the purpose of checking that the master and crew are familiar with essential procedures and operations relating to the safety of the ship.

Section 230 of the Act shall apply in relation to a ship in a port in Kenya as if, in subsection (1), after “articles on board” there were inserted “the familiarity of the crew with essential procedures and operations relating to the safety of their ship”.