NEGARA BRUNEI DARUSSALAM

TAMBAHAN KEPADA

WARTA KERAJAAN

BAHAGIAN

Disiarkan dengan  Kebenaran

SUPPLEMENT TO

GOVERNMENT GAZETTE

PART

Published  by Authority

HARI  9th. APRIL, 2005                             12

CONTENT

Notification

Number                                             Subject                                           Page

S 18            Constitution of  Brunei Darussalam - Prevention of Pollution of the Sea Order, 2005 ... ... ... ... ... ... ...                                                                                     227

The following Notification is published for general information by Command of His Majesty the Sultan and Yang Di-Pertuan of Brunei Darussalam.

9th. APRIL, 2005

No. S 18

CONSTITUTION OF  BRUNEI DARUSSALAM

(Order under Article  

PREVENTION OF POLLUTION OF THE SEA ORDER, 2005

ARRANGEMENT  OF SECTIONS

Section

Citation and long title. Interpretation.

PART I PRELIMINARY

PART

PREVENTION  OF  POLLUTION  FROM APPARATUS 

Prohibition of discharge of oil or oily mixture from apparatus. Special  defences.

PART III

PREVENTION  OF  POLLUTION FROM SHIPS

Prohibition of discharge of refuse, garbage, waste, effluents, plastics and dangerous  pollutants  from ships.

Prohibition of discharge of oil or  oily  mixture from ships. Oil  residues.

Notification of proposal to carry noxious liquid substances. Prohibition  of   discharge  of   noxious liquid  substances  from ships.

PART IV

PREVENTIVE MEASURES AGAINST POLLUTION OF THE  SEA

Reception facilities.

Regulations requiring keeping of  oil record books.

Regulations requiring keeping of  cargo record books.

Failure to carry record books and  evidence.

Duty to report discharges of  harmful substances from   ships.

Duty to report discharges of  oil, oily  mixture and  substances from  terminal or apparatus.

PART V RECOVERY OF COSTS

Recovery of costs for removing refuse, garbage, waste, plastics, effluents and dangerous  pollutants discharged from ships.

Recovery of costs for removing oil, oily mixture and substances discharged from ships.

Recovery of costs for removing oil, oily mixture and substances discharged from  terminal or apparatus.

Costs recoverable as debt to  Government.

PART VI MISCELLANEOUS PROVISIONS

Powers of  inspectors.

Power to deny entry and to detain  ship.

Detained  ship proceeding to sea.

Sale of  ship.

Exemptions.  

"Convention" means the Convention of 1973 as modified and added to by the Protocol of  1978;

"Convention of 1973" means the International Convention for the Prevention of Pollution from Ships, including its protocols, annexes and appendices, which constitutes attachment 1 to the final act of the International Conference on Marine Pollution signed in  London  on  2nd. November, 1973;

''country'' includes a territory;

"Director" means the Director of Marine appointed  under section  4 of the Merchant Shipping Order, 2002 (S 27/02),and includes the Deputy Director of  Marine;

"discharge", in relation to harmful substances or effluents  containing such substances, means any release howsoever caused from a ship, and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying but does not include  -

(a)      dumping within the meaning of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and  Other Matter, done at London on 13th. November, 1972;

(b)     release of harmful substances directly arising from the exploration, exploitation and associated offshore processing of seabed mineral  resources; or

(c)     release of harmful substances for purposes of legitimate scientific research into pollution  abatement or control;

"garbage" means all kinds of victual, domestic and operational waste excluding fresh fish and parts thereof, generated during the normal operation of the ship and liable to be disposed of continuously or periodically except sewage originating from ships;

"harmful substance" means any substance which, if introduced into the sea, is liable to create hazards to human health, to harm  living resources and marine life, to damage amenities or  to  interfere  with other legitimate uses of the sea, and-includes any substance subject to control under this Order;

"in packaged form" means in an individual package or receptacle, including a freight container or a portable tank or  tank container  or tank vehicle or shipborne barge or other cargo unit containing harmful substances for shipment;

"inspector" means a person who -

(a)               is a surveyor of  ships; or

(b)              is appointed as an inspector under section 117 of the Merchant Shipping Order,           (S27/02);

"marine pollutant" means a substance which is identified as a marine pollutant in the International Maritime Dangerous Goods Code  published by the International  Maritime  Organisation,  as  amended from time to time;

refers to the Convention;

surveyor" means a surveyor appointed or registered by the Director or by or on behalf of the Government of a State Party to the Convention;

includes every person, except a pilot, having command or charge of  any ship;

"Minister" means the Minister of  Communications;

"noxious liquid substance" means any substance which is prescribed by regulations as being a noxious liquid substance and which is subject to the provisions of  Annex     of  the Convention;

"oil" means petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined products, other than petrochemicals which are prescribed by regulations as being subject to the provisions of     Annex of the Convention, and, without limiting the generality of the foregoing, includes the substances prescribed by regulations as being listed in Appendix I of  Annex I of  the Convention;

"oil residues" means any waste material consisting of, or arising from,  oil or oily mixture;

"oil terminal" means any place having permanent means of loading or discharging oil, whether in bulk or package into or from any  ship;

"oily mixture" means a mixture with an oil content of 15 parts or more  in 1,000,000 parts of  the mixture;

"owner", in relation to a ship, means the person registered as the owner of the ship or, in the absence of registration, the person owning the ship or  the charterer  of  the ship; and, in the case of  a ship   owned by a State and operated by a company which in  that State is registered  as the ship's operator, "owner" shall include such  State;

"plastics" includes, but is not limited to, synthetic ropes, synthetic  fishing nets and plastic garbage  bags;

"port" means any area in Brunei Darussalam declared to  be  a  port  under section 3 of  the Ports Act   (Chapter 144);

"prescribed" means prescribed by regulations made under this Order by the Minister with the approval of His Majesty the Sultan and Yang Di-Pertuan;

"Protocol of 1978" means the Protocol relating to the  Convention  of  1973 which constitutes attachment 2 to the final act of the International Conference on Tanker Safety and Pollution Prevention signed in London on 17th. February, 1978;

"reception facilities" means facilities which enable ships to discharge or deposit residues and mixtures, which residues and mixtures contain oil  or noxious liquid substances;

"ship" means a vessel of any type operating in the marine environment and includes hydrofoil boats, air cushion  vehicles,  submersibles, floating craft and fixed or floating platforms;

"surveyor1' means a person appointed to be a surveyor of ships or  a radio surveyor under section 5 of the Merchant Shipping Order, 2002 27/02);

"tank" means an enclosed space which is formed by the permanent structure of a ship and which is designed for the carriage of liquid in  bulk;

"terminal" means any terminal, including an oil or gas terminal,  jetty, pier  or  mono-buoy,  and  a  yard  or    including the precincts thereof, in which vessels are constructed, reconstructed, repaired,  refitted, finished or broken  up;

"terminal operator" means a person or body of persons having the management  of  a terminal in Brunei Darussalam;

"trade effluent" means the solid or liquid waste of any trade, business or manufacture.

(2)     For the purpose of  any provision of  this Order  relating to the discharge  of   oil,  oily  mixture,  refuse,  garbage, waste  matter, plastics,  marine  pollutant in packaged form, noxious liquid substance or trade effluent from a ship, any  floating craft other than a ship which is attached to a ship shall be treated as part of  the ship.

(3)     Any reference to this Order to the discharge of any oil, oily mixture or noxious liquid substance from a ship shall, unless the context otherwise requires, be construed as a  reference to the discharge  of  the oil, oily mixture or   substance from the ship at any place in or outside the area of Brunei Darussalam and the reference to the area of Brunei Darussalam shall include the territorial waters of Brunei Darussalam.

(4)     Any reference in this Order -

(a)      to the Convention or any other international agreement shall be construed as including a reference to its protocols, annexes, appendices and other attachments;

(b)      to a failure to do any act or thing includes a reference to a refusal   or neglect to do that act or thing;  and

(c)     to this Order includes a reference to regulations made under this Order.

PART

PREVENTION OF POLLUTION FROM APPARATUS

Prohibition of  discharge of  oil or oily mixture from apparatus.

1. If any oil or oily mixture is discharged into Brunei Darussalam waters from any apparatus used for transferring oil from or to a ship, whether to or from a terminal or to or from another ship, the terminal operator or the person in charge of the apparatus shall be guilty of an offence and liable on conviction to a fine of not less than $1,000 and not more than $1,000,000,imprisonment for a term not exceeding 2 years or both.

Special defences.

4. (1) Where a person is charged with an offence under section  3 as  the  terminal operator or as the person in charge of any apparatus, from which the oil or oily mixture is alleged to have been discharged, it shall be a defence to prove that the discharge of the oil or oily mixture was not due to any want of reasonable care, and that as soon as practicable after the discharge was discovered all reasonable steps were taken for stopping or reducing  it

(2)     Without  prejudice   to   subsection     it shall be a defence for the terminal operator  who is charged with  an offence under  section 3 to prove  that the discharge was caused by the act of a person who was in that place without the permission, either express or implied, of  the terminal  operator.

(3)     Where a person is charged with an offence under section 3 in respect of the discharge of an oily mixture from a terminal, it shall, without prejudice to any other defence under this section, be a defence to prove that -

(a)      the oil was contained in an effluent produced by operations for the refining of oil;

(b)     it was not reasonably practicable to dispose of the  effluent otherwise than by discharging it into Brunei Darussalam waters;   and

(c) all reasonably practicable steps had been taken for eliminating oil from the effluent.

(4) Where it is proved that, at the time to which the charge relates, the surface of the waters into which the oily mixture was discharged or the land adjacent to those waters was fouled by oil, the defence under subsection (3)shall not  apply   unless  the  court  is  satisfied  that  the  fouling  was  not  caused, or contributed to, by oil contained in any effluent discharged at or before that time from that place.

(5) Where any oil or oily mixture is discharged in consequence of  the  removal of sunk, stranded or abandoned ships by a person employed by or acting on behalf of the Director in exercise of any power conferred  by any written law,  and apart from this subsection, the person employed by or acting on behalf  of the Director would be guilty of an offence under section 3 in  respect  of  that  discharge, the person shall not be convicted of that offence unless it is shown that the person failed to take such steps, if any, as were  reasonable  in  the circumstances  for preventing, stopping or reducing the  discharge.

PART

PREVENTION OF  POLLUTION  FROM  SHIPS

Prohibition of discharge of refuse, garbage, waste, effluents, plastics and dangerous pollutants from ships.

5.   (1)  Subject to subsection  (2)and any regulation made  under subsection   if any disposal or discharge of refuse, garbage, waste matter, trade  effluent,  plastics or marine pollutant in packaged form occurs from any ship into Brunei Darussalam waters, the master, the owner and the agent of the ship shall each be guilty of an offence and liable on conviction to a fine not exceeding $10,000, imprisonment for a term not exceeding 2 years or   both.

(2)     Subsection (1) shall not apply to the disposal or discharge of refuse, garbage, waste matter, trade effluent, plastics or marine pollutant in packaged form from a ship -

(a)           which is necessary for the purpose of securing the safety of  a ship  or saving life at sea; or

(b)            if the refuse, garbage, waste matter, trade effluent, plastics  or  marine pollutant in packaged form, as the case  may  be, escaped  from  the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were taken  after  the  occurrence of the damage or  the discovery of  the  discharge for the  purpose of preventing or minimising the escape of the refuse, garbage, waste matter, trade effluent, plastics or marine pollutant in packaged form, as the case may be.

(3)     Subsection (1)shall not apply where a synthetic fishing net, or synthetic material used in the repair of such a net, on a ship is lost at sea, and all reasonable precautions were taken to prevent  the loss.

(4)      For the purposes of subsection damage to a ship or to its equipment shall be taken to be intentional damage if the damage arose in circumstances in which the master, the owner or the agent of the ship -

(a)            acted with intent to cause the damage;  or

(b)            acted recklessly and with knowledge that damage would probably result.

(5)    The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations to exempt any ship from the operation of subsection  either absolutely or subject to any prescribed conditions, and either generally  or as respects particular classes of  ships, or in relation to particular descriptions  of refuse, garbage, waste matter, trade effluent, plastics or marine pollutant in packaged form or to the disposal or discharge thereof  in  prescribed circumstances, or in relation to particular areas of  the   sea.

Prohibition of discharge of oil or oily mixture from ships.

6,  (1)  Subject to subsection  (2)and any regulation made   under subsection   if any discharge of oil or oily mixture occurs from a Brunei Darussalam ship into any part of  the sea or from any ship  into  Brunei Darussalam waters, the    master, the owner and the agent of  the ship shall each be guilty of  an offence and liable on conviction to a fine of not less than $1,000 and not more than $1,000,000, imprisonment for a term not exceeding 2 years or  both.

(2)    Subsection (1)shall not apply to the discharge of oil or oily mixture from a ship -

(a)            which is necessary for the purpose of securing the safety of a ship  or saving life at sea;

(b)          if the oil or oily mixture, as the case may be, escaped from the ship in consequence of damage, other than intentional damage, to the ship or its equipment, and all reasonable precautions were  taken after  the occurrence  of the damage or the discovery of the discharge for the purpose of preventing or minimising the escape of  the oil or oily mixture, as the case may be;  or

(c)              in the case of an oily mixture, if  the discharge was for the purpose  of combating specific pollution incidents in order to minimise the damage from pollution and was approved by the Director and, where the discharge occurred in the jurisdiction of the government of a  country  other  than Brunei Darussalam, by that government.

(3)     For the purposes of subsection damage to a ship or to its equipment shall be taken to be intentional damage if the damage arose in circumstances in which the master, the owner or the agent of the ship -

(a)           acted with intent to cause the damage;  or

(b)            acted recklessly and with knowledge that damage would probably result.

(4)     The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations to exempt any ship from the operation of subsection either absolutely or subject  to any prescribed conditions, and either generally  or as respects particular classes of ships, or in relation to particular descriptions of oil or oily mixture or to the discharge of oil or oily mixture in prescribed circumstances, or in relation to particular areas of  the  sea.

Oilresidues.

1. (1)  Subject  to  subsection   if any oil residue that cannot be discharged from a Brunei Darussalam ship into the sea without contravening section  6 are  not retained on board the ship, the master and the owner of  the ship shall each  be guilty of  an offence and liable on conviction to a fine not exceeding $1,000,000.

(2) Oil residues may be discharged from a ship to a reception facility  provided in accordance with section 10.

Notification of proposal to carry noxious liquid substances.

1. (1) Where a person who proposes to export or import a noxious liquid substance proposes to do so by having that liquid substance carried in bulk in a ship, that person or the master of  the ship shall, in such manner  and  within   such time as may be prescribed, notify the Authority of  the  proposal.

(2) If the Authority is not so notified of  the  proposal  referred  to  in subsection (1)and the liquid substance is carried as proposed, that person and the master of the ship shall each be guilty of an offence and liable on conviction to a fine  not exceeding $5,000.

Prohibition of discharge of noxious liquid substances from ships.

9.          Subject to subsection   and any regulation  made  under subsection    if any discharge of a noxious liquid substance, or of a  mixture  containing  a noxious liquid substance, being a substance or mixture carried as cargo or part cargo in bulk, occurs from a Brunei Darussalam ship into the sea or from any ship into Brunei Darussalam waters, the master, the owner and the agent of the  ship shall each be guilty of  an offence and    liable on conviction to a fine not exceeding $10,000,imprisonment for a term not exceeding 2 years or   both.

(2)     Subsection (1) shall not apply to the discharge of a noxious liquid substance or a mixture containing such substance from a ship -

(a)      which is necessary for the purpose of securing the safety of  a ship  or saving life at sea;

(b)             if the substance or the mixture, as the case may be, escaped from  the ship in consequence of damage, other  than intentional damage, to the  ship or its equipment, and all reasonable precautions were taken after the occurrence  of  the damage or the discovery of  the discharge for the purpose  of preventing  or minimising the escape of  the substance or the  mixture, as  the case may be; or

(c)             if the discharge was for the purpose of combating specific pollution incidents in order to minimise the damage from pollution and was approved by the Director and where the discharge occurred in the jurisdiction of the government of  a country other than Brunei Darussalam, by that  government.

(3)     For the purposes of subsection  damage to a ship or to its equipment shall be taken to be intentional damage if the damage arose in circumstances in which the master, the owner or the agent of the ship -

(a)     acted with intent to cause the damage;  or

(b) acted recklessly and with knowledge that damage would probably result.

(4) The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations to exempt any ship from the operation of subsection either  absolutely or subject to any prescribed conditions, and  either  generally or as respects particular classes of ships, or in relation to particular descriptions of noxious liquid substances or mixtures containing such substances or to the discharge of such substances or mixtures in prescribed circumstances, or  in  relation to particular areas of  the  sea.

PART IV

PREVENTIVE  MEASURES AGAINST POLLUTION OF THE SEA

Receptionfacilities.

1. (1) The powers exercisable by the Authority in respect of the  port  shall include power to provide reception facilities for ships using the port or any terminal in Brunei  Darussalam.

(2)     Any power of the Authority to provide reception facilities shall include -

(a)      power to join with any other person in providing them, and reference in this section to the provision of reception facilities by the Authority shall  be construed accordingly;

(b)     power to arrange for the provision of such facilities by any other person;

(c)      power to require every ship to  use the facilities;  and

(d)     power to provide reception facilities within the limits of  the   port.

(3)     Subject to any direction given by the Minister under subsection  the Authority in respect of the port and a terminal operator in respect of his terminal shall ensure that -

(a)      if the port or terminal has reception facilities, those facilities are adequate; or

(b)     if the port or terminal has no reception facilities, such facilities are provided,

(8)     The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations in respect of every matter relating to the provision of reception facilities and other facilities for ships to deposit refuse, garbage, plastics or sewage and, in particular, those regulations may provide -

(a)     for fees to be levied for the use of  the facilities;

(b)              for the conditions upon which ships may make use of  the  facilities;

and

(c)               that a contravention thereof shall be punishable by a fine not exceeding $10,000, imprisonment for a term not exceeding 2 years or  both.

Regulations requiring keeping of oil record books.

1. (1) The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations requiring oil record books to be carried in all Brunei Darussalam ships and in all ships in Brunei Darussalam waters and requiring the master of any such ship to record in the oil record book carried by it -

(a)      the carrying out, on board or in connection with the ship, of such of the following operations as may be prescribed -

(i)     the loading of  oil cargo;

(ii)     the internal transfer of  oil cargo during a voyage;

(iii)     the unloading of  oil cargo;

(iv)     the ballasting of oil tanks, whether cargo or bunker fuel tanks, and dedicated clean ballast  tanks;

(v)     the cleaning of oil tanks, whether cargo or bunker  fuel tanks, including crude oil washing;

(vi] the discharge of ballast except from segregated  ballast  tanks;

(vii)     the discharge of  water from slop tanks;

(viii)     the closing of all applicable valves or similar devices after slop tanks discharge operations;

(ix)     the closing of valves necessary for isolation of dedicated clean ballast tanks from cargo and stripping lines after slop tank discharge operations;

[x) the discharge of dirty ballast or cleaning water from oil fuel tanks;

(xi) the discharge overboard or disposal  otherwise  of  bilge  water, which has accumulated  in machinery  spaces;

[xii)   the disposal of  any oily residues (sludge);or

(xiii)   the disposal of  residues;

(b)              any event of  such discharge of  oil or oily mixture  as is referred to  in subsection (2)of section 6 or any regulation made under subsection (4)of section 6; and

(c)             in the event of accidental or other exceptional discharge of oil or  oily mixture which is not referred to in subsection  of  section   6.

(2) The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations requiring the keeping of records relating to the transfer of  oil to and from ships while they are in Brunei Darussalam   waters.

(3)  The requirements of  any regulation made under subsection  (2)shall be   in addition  to the requirements of  any regulation  made under  subsection  (1).

(4) Any record required to be kept  by any  regulation  made  under subsection (2)shall, unless the ship is a barge, be kept by the master of  the ship  and shall, if  the ship is a barge, be  kept, in so far as they relate  to the transfer of     oil to the barge, by the person supplying the oil and, in so far as they relate to the transfer  of  oil from the barge, by the person to whom the oil is  delivered.

(5)     Regulations made under this section requiring the carrying of oil record books or the keeping of records may -

(a)      prescribe the form of the oil record books or records  and  the  nature of  the entries to be made in  them;

(b)              require the person providing or keeping the oil record books or records to retain them for a prescribed   period;

(c)              require that person, at the end of the prescribed period, to transmit the oil record books or records to a place or person determined by the regulations; and

(d) provide for the custody or disposal of the oil  record  books  or  records after their transmission  to such a place or  person.

Regulations requiring keeping of cargo record books.

1. The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations requiring cargo record books to be carried in all Brunei Darussalam ships and in all ships in Brunei Darussalam  waters,  being ships which carry noxious liquid substances in bulk, and requiring the master of any such ship to record in the cargo record book carried by it   -

(a)               the carrying out, on board or in connection with the ship, of such of the following operations with respect to a noxious liquid substance as may be prescribed -

(i)     the loading of cargo;

(ii)     the internal transfer of  cargo;

(iii)     the unloading of cargo;

(iv)     the cleaning of  cargo tanks; 

(v)     the ballasting of  cargo tanks;

(vi)     the discharge of  ballast from cargo tanks;

(vii)     the disposal of  residues to reception facilities; or

(viii)     the discharge into the sea or removal by ventilation of residues in accordance with any regulation made under this Order;

(b)             in the event of any such discharge of any noxious liquid substance  or a mixture containing such substance as is referred to in subsection (2)of section 9 or in any regulation made under subsection (4)of  section   9; and

(c) any occasion on which the noxious liquid substance or a mixture containing such substance is discharged, whether intentionally or accidentally.

(2)     The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations requiring the keeping of records relating to the transfer of noxious liquid substances to and from ships while they are in Brunei Darussalam waters.

(3)     The requirements of any regulation  made under subsection (2)shall be  in addition to the requirements of  any  regulation  made  under subsection  (1).

(4)     Any record required to be kept by any regulation  made  under  subsection (2)shall be kept by the master of  the   ship.

(5)     Regulations made under this section requiring the carrying of cargo record books or the keeping of records may -

(a)      prescribe the form of the cargo record books or records and the nature of  the entries to be made in  them;

(b)              require the person providing or keeping the cargo record books or records to retain them for a prescribed  period;

(c)              require that person, at the end of the prescribed period, to transmit the cargo record books or records to a place or person determined by the regulations; and   provide for the custody or disposal of the cargo record books or records after their transmission to such a place or   person.

Failure to carry record books and evidence.

13. (1) If any ship fails to carry an oil record book or cargo record book as is required under section 11 or 12, the owner, the agent or the master of that ship shall  be  guilty of  an offence and liable  on  conviction  to a  fine not      exceeding $5,000.

(2) Any person who fails to comply with any of the requirements imposed  by section 11 or 12 or any regulation made thereunder shall be guilty of  an  offence and liable on conviction to a fine not exceeding  $5,000.

(3) Any person who makes an entry in any oil record book or cargo record book carried or any record kept under section 11 or 12 which is to his knowledge false or misleading in any material particular shall be guilty of an offence and liable on conviction to a fine not exceeding imprisonment for a term not exceeding months or both.

(4)     In any proceedings under this Order -

(a)      any oil record book or cargo record book carried or any record kept in pursuance of any regulation made under section 11 or 12 shall be admissible as evidence of  the facts stated in  it;

(b)            any copy of an entry in such oil record book or cargo record book  or record which is certified by the master of the ship in which the book is carried or by the person  by whom the record  is required  to be kept to    be a true copy of the entry shall be admissible as evidence of the facts stated  in  the entry; and

(c)              any document purporting to be an oil record book or cargo record book carried or a record kept under section 11 or  12, or  purporting  to be such a certified copy as is mentioned in paragraph (b) shall, unless the contrary is proved, be presumed to be such a book, record or copy, as the case may be.

Duty to report discharges of harmful substances from ships.

14.           If  any actual or probable discharge  of  any  harmful substance   occurs in prescribed circumstances from a Brunei Darussalam ship into any part of  the sea  or from any ship into Brunei Darussalam waters, the master of the ship shall without delay report the occurrence in such manner and to such officer as may be prescribed.

(2)     It is a defence if a person charged with an offence against subsection (1) proves that he was unable to comply with that subsection in relation  to  the relevant occurrence.

Where a discharge referred to in subsection (1)occurs and -

(a)              the master of the ship is unable to comply with that subsection in relation to the occurrence;  or

(b)              the discharge occurs in circumstances in which the ship is abandoned, the owner, charterer, manager and operator of the ship or an agent of the owner, charterer, manager or operator of the ship shall without delay report  the occurrence in such manner and to such officer as may be   prescribed.

(4)     Any person who contravenes subsection (1)or (3)shall be guilty of an offence and liable on conviction to a fine not exceeding  $5,000.

(5)     On the prosecution of a person for an offence under subsection  it is a defence if that person proves -

(a)              that he was not aware of  the relevant occurrence;  or

(b)             in the case of an offence to which paragraph (a) of subsection (3) applies, that he neither knew nor suspected that the master of the ship concerned was unable to comply with subsection (1) in relation to  the  relevant occurrence.

Duty to report discharges of oil, oily mixture and substances from terminal or apparatus.

15. If any actual or probable discharge into Brunei Darussalam waters of oil, oily mixture, noxious liquid substance or a mixture containing such substance occurs from a terminal or an apparatus used for transferring oil or that substance from or to a ship, the terminal operator or the person in charge of the apparatus, as the  case may be, shall forthwith report the occurrence to the Director in  the prescribed manner and, if he fails to do so, shall be guilty of an offence and liable on conviction to a fine not exceeding $5,000.

PART V

RECOVERY  OFCOSTS

Recovery of costs for removing refuse, garbage, waste, plastics, effluents and dangerous pollutants discharged from ships.

16.        If any refuse, garbage, waste matter, plastics, marine pollutant in packaged form or trade effluent is discharged from any ship into Brunei Darussalam waters or into any part of the sea or  waters  outside  Brunei Darussalam waters and the refuse, garbage, waste matter,  plastics,  marine pollutant or trade effluent subsequently drifts or flows into Brunei Darussalam waters, the owner of the ship shall be liable to pay for the costs of any measure reasonably taken by the Director or the appointed authority  after  the discharge  for the purpose of removing it and for preventing or reducing any damage caused  in Brunei Darussalam by contamination resulting from the   discharge.

(2)     Where the refuse, garbage, waste matter, plastics, marine pollutant in packaged form or trade effluent is discharged from 2 or more ships -

(a)      a liability is incurred under this section by the owner of each of them; but

(b)     the damage or cost of which each of the owners would be liable cannot reasonably be separated from that for which the other  or  others would be liable, each of the owners shall be liable, jointly and severally with the other or others,  for the whole of the damage or cost for which the owners together would be liable under  this section.

Recovery of costs for removing oil, oily mixture and substances discharged from ships.

17. (1) If  any oil, oily mixture or  noxious liquid  substance  is discharged  from any ship into Brunei Darussalam waters or into any part of the sea or waters out- side Brunei Darussalam waters and the oil, mixture or substance subsequently flows or drifts into Brunei Darussalam waters, the owner of the ship shall  be  liable to pay for the costs of any measure reasonably taken by the Director or the appointed authority after the discharge for the purpose of removing it and for preventing or reducing any damage caused in Brunei Darussalam by contamina- tion resulting from the discharge.

(2)     Where the oil, oily mixture or noxious liquid substance is discharged from 2 or more ships -

(a)      a liability is incurred under this section by the owner of each of them; but

(b)      the damage or cost of which each of the owners would be liable cannot reasonably be separated from that for which the other  or  others would be liable, each of the owners shall be liable, jointly and severally with the other or others, for the whole of the damage or cost for which the owners together would be liable under this section.

(3)     The reference in this section to the measures reasonably taken after the discharge  of  oil, oily  mixture  or  a  noxious liquid  substance  for  the purpose of preventing or reducing any damage caused by contamination resulting from the discharge shall include actions taken to remove the oil, mixture or substance from the water and foreshores or the taking of such other actions as may be necessary  to minimise or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, foreshores and beaches.

Recovery of costs for removing oil, oily mixture and substances discharged from terminal or apparatus.

1. If any oil, oily mixture or noxious liquid substance is discharged from a terminal or from any apparatus used for transferring the oil, mixture or substance from or to any ship, whether to or from a terminal or to or from another ship, or for any other operation, the person in charge of that apparatus or the terminal operator, as the case may be, shall be liable to pay for the costs of any measure reasonably taken by the Director or the appointed authority after the discharge in removing or eliminating the oil, mixture or  substance.

Costs recoverable as debt to Government.

1. Any costs due from and payable by any person by virtue of section 16, 17, or 18 may be recoverable by the Government    as a debt due to the Government.

PART VI MISCELLANEOUSPROVISIONS

Powers of  inspectors.

1. (1) An inspector may exercise the powers referred to in subsection  only for the purpose of ascertaining -

(a)      whether a provision of this Order that is applicable in relation to a Brunei Darussalam ship has been complied with in respect of  that   ship;

(b) whether there has been a discharge from a ship in contravention of this Order;

(c)     whether a provision of the Convention that is applicable in relation to a ship other than a Brunei Darussalam ship has been complied with in respect of  that ship; or

(d)      whether a provision of a law of a country other than Brunei Darussalam giving effect to the Convention, being a provision that is applicable in relation to a ship other than a Brunei  Darussalam  ship, has been complied with in respect of  that   ship.

(2)     An inspector may for any of  the purposes referred to in subsection (1)-

(a)      go on board a ship with such assistants and equipment as he considers necessary;

(b) require the master of a ship to take such  steps  as the inspector  directs to facilitate the  boarding;

(c)     inspect and test any machinery or equipment of  a   ship;

(d)      require the master of a ship to take such steps as the  inspector directs to facilitate the inspection or testing of  any machinery or equipment  of  the ship;

   open, or require the master of a ship to cause to  be  opened, any hold,  bunker,  tank, compartment  or  receptacle  in  or on board the ship and inspect the contents of any hold, bunker, tank, compartment or receptacle in or on board the ship;

   require the master of a ship to produce  a record  book  required by any regulation made under this Order to be carried in the ship or any other books, documents or records relating to the ship or its cargo that are carried  in the ship;

(g) make copies of, or  take extracts from, any such  books, documents  or records;

(h)  require the master  of  a ship to certify that a true copy of  an entry in a record book required by any regulation made under this Order to be carried in the ship is a true copy of  such an  entry;

(i)    examine, and take samples of, any substances on board a ship;  and require a person to answer  questions.

   Any person who -

(a)           without reasonable excuse, refuses or fails to comply with a requirement made of him by an inspector in the exercise of his powers under subsection (2);or

(b)           in answer to a question that he is required to answer under subsection   makes a statement that is false or misleading in a material particular, shall  be guilty of  an  offence and  liable  on  conviction  to a fine  not     exceeding $5,000,imprisonment for a term not exceeding 6 months or    both.

Power to deny entry and to detain ship.

1. (1) Where the Director has reasonable cause to believe that a ship which proposes to enter a port does not comply with the requirements of this Order, he may deny the entry of  such ship to that   port.

(2)     Where the Director has reasonable cause to believe that a ship -

(a)            has incurred a liability under section 16 or   17; or

(b)            has contravened any of the requirements of this Order and, in the opinion of the Director, the ship presents an unreasonable threat of  harm to the marine  environment or  has caused harm to such  environment, the Director or any officer authorised in writing by the Director may detain that ship.

(3) The Director may release a ship detained under subsection (2) if  the owner of the ship deposits with the Government  a sum of  money  or  furnishes such security which would, in the opinion of  the  Director,  be adequate to meet the owner's liability under this Order.

Detained ship proceeding to sea.

1. (1)  If  any ship  is detained  under subsection   of section 21 and the ship proceeds to sea before it is released by the Director, the master of the ship, the owner thereof and any person who sends the ship to sea, if that master, owner or person is party or privy to the act of  sending the ship to sea, shall be    guilty of  an offence and liable on conviction to a fine not exceeding $10,000,imprisonment for a term not exceeding 2 years or both.

(2) The Director or any officer authorised by the Director to detain a ship may, if  he thinks it necessary, place a police officer on board as a guard, referred  to in this section as a police guard.

(3) Where a ship proceeding to sea takes to sea when any officer authorised to detain  the ship, police guard  or  inspector is  on  board  in  the execution  of his

duty, the owner and the master of the ship shall each be liable to pay all expenses of and incidental to the officer, police guard  or inspector  being so taken to sea,  and shall also be liable to pay a sum not exceeding $2,000,or a sum not exceeding

$200 for every day until the officer, police guard or inspector returns or until such time as would enable him after leaving the ship to return to the port from which  he was taken, and the expenses ordered to be paid may be recoverable as a debt due to the Government.

(4)     Any police guard so placed on board a ship may take such steps as are necessary to prevent the ship from leaving the  port.

(5)     Any person who opposes or in any way obstructs any officer authorised to detain the ship, a police guard or an inspector shall be guilty of an offence and liable on conviction to a fine not exceeding  $1,000.

Sale of ship.

1. Where the owner, master or agent of a ship has been convicted of an offence under this Order and any fine imposed  in  respect of  the conviction  is not paid   at the time ordered by the court, the court shall, in addition to any power for enforcing payment, have the power to direct the amount remaining unpaid to be levied by distress and sale of  the ship, its tackle, furniture and  apparel.

Exemptions.

24. (1) This Order shall not apply to any warship, naval auxiliary or other ship owned or operated by a State, including the Government, and used for the time being, only on government non-commercial service.

(2) The Minister may, in his discretion, exempt any ship or person or description of  ships or persons from all or any of  the provisions of  this  Order.

Any exemption granted by the Minister under subsection (2) may be granted subject to such conditions as the Minister thinks fit and the exemption shall not have effect unless those conditions are complied  with.

Power to enter on land.

(1)     The Government may, by its officers, employees, or agents or contractors, enter upon any  land adjoining the  sea or  foreshore  for  the  purpose of removing or eliminating any oil, oily mixture, refuse, garbage, waste matter, plastics, marine pollutant in packaged form, noxious liquid substance or trade effluent from Brunei Darussalam waters.

(2)     The Government shall pay compensation to the  owner of  the land for  any permanent damage caused to the land arising out of the  exercise  of  the  powers conferred  by subsection (1).

(3)     Except as provided in subsection   the Government shall not be liable to pay any compensation in respect of any damage caused arising out  of  the exercise of  the powers conferred by subsection   (1).

Powers of arrest.

26. (1) The Director, the Authority, a police officer or any person authorised in writing by the Director or Authority, may arrest without warrant any person who has committed or whom he reasonably believes to have committed an offence under this Order and take him before a court    to be dealt with according to law.

(2) Any article concerning, by or for which an offence has been committed may be seized and taken to a police station, unless given up sooner by order of a court until the charge is decided in due course of    law.

Delegation of powers.

27. The  Director  may appoint  such officers as he  may think fit  for the purpose of exercising the powers conferred and performing the duties imposed on the Director under this  Order.

Protection from personal liability.

28. No act or omission by the Minister, the Director, the Authority, any officer employed in the administration of this Order or any other person acting under the direction of the Minister, the Director or the Authority shall, if the act or omission was bona for the purpose of executing this Order, subject them or any of them personally to any action, liability, claim or  demand.

Evidence of analyst.

29. (1) The Director may, by instrument in writing under  his  hand, appoint persons who in his opinion are qualified to be analysts for the purposes of this Order.

(2)  Subject  to  subsection   a certificate of an analyst appointed under subsection (1)stating that he  has analysed  or examined a substance and stating  the   result   of    his  analysis  or  examination  is  admissible  in  evidence  in    any

proceedings for an offence under this Order as prima facie evidence of the facts stated in the certificate and of the correctness of the result of the analysis or examination.

(3) For the purposes of this section, a document purporting to  be  a  certificate referred to in subsection (2)on its production by the prosecution shall, unless the contrary is proved, be deemed to be such a   certificate.

(4) A certificate referred to in subsection (2) shall not be received in  evidence in pursuance of that subsection unless the  person  charged  has  been given a copy of the certificate together with reasonable notice of  the intention  of the prosecution  to produce the certificate as evidence in the  proceedings.

(5) Where a certificate of an analyst appointed under subsection (1) is admitted  in  evidence  under  subsection   the person charged may require the analyst to be called as a witness for the prosecution and the analyst may be cross- examined as if  he had given evidence of  the matters stated in the   certificate.

Composition of offences.

30. (1) The Director, the Authority or any person authorised in writing by the Director or the Authority may compound any offence under this Order which is prescribed as a compoundable offence, by collecting from any person reasonably suspected of  having committed  that offence a sum not exceeding $2,000.

(2)     All sums collected under subsection (1) shall be paid to the  Government.

Regulations for survey of ships and issue of certificates.

1. (1) The Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, make regulations for the purposes of authorising any organisation for the     or inspection  of  Brunei  Darussalam ships and issue of  any  certificate under this Order.

Without prejudice to the generality of subsection  the Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, in the regulations -

(a)           specify the surveys or inspections and the issue of certificates or endorsement;

(b)           provide for the registration of any person belonging to or acting on behalf of any organisation as a surveyor for the purposes of surveying or inspecting Brunei Darussalam ships; and

(c) prescribe the conditions for the registration of any person under paragraph (b)and the cancellation of  the registration of  any person.

(3)     Any certificate issued or endorsement made by any authorised organisation in accordance with any regulation made under this section shall be deemed to be issued or made by the Director for the purposes of  this   Order.

Documents to be in approved form.

1. Every certificate, register, licence, book, record, instrument or other document prescribed by this Order shall be made in such form, if any, as may be approved by the Director or as near thereto as circumstances   permit.

Regulations.

1. (1) The Minister may, with the approval of  His  Majesty  the  Sultan  and Yang  Di-Pertuan, make  such  regulations as appear  to  the  Minister  necessary or

expedient for the purposes of carrying out  the  provisions  of  this Order  and for prescribing anything which may be prescribed under this Order and, in particular, for the purpose of -

(a)            giving effect to any provision of the Convention which has  not been given effect to in this Order;

(b)            giving effect to any provision of the International  Convention  on Oil Pollution Preparedness, Response and Co-operation 1990, including the Final Act of the Conference and the attached  resolutions, signed in  London on 30th. November 1990;

(c)             giving effect to any provision of any international agreement not mentioned in paragraph (a) or (b) which relates  to the prevention, reduction  or control of  pollution of  the sea or pollution from  ships;

(d)              giving effect to any international agreement which modifies any of the international agreements mentioned in paragraph (a), (b) or (c);   and

(e)             prescribing any measure which the Minister considers necessary  for the prevention, control or reduction of pollution of the sea or pollution from ships.

Without prejudice to the generality of subsection  the Minister may, with the approval of His Majesty the Sultan and Yang Di-Pertuan, by such regulations -

(a)      require persons carrying on any trade, business or manufacture to install such equipment as may be prescribed for the purpose of eliminating any oil in any trade effluent and for preventing or reducing the discharge of any trade effluent into Brunei Darussalam  waters;

(b)      require the owners or operators of cargo terminals, shipyards, oil refineries and oil terminals in Brunei Darussalam, and such other facilities in Brunei Darussalam as the Authority may determine, to store such detergents dispersants and equipment as may  be prescribed to deal with any pollution  of  Brunei Darussalam waters;

(c)     provide for the conduct of investigations of casualties in respect of any discharge from a ship or any contravention of the provisions of this  Order;

(d)      provide for the appointment, registration, duties and powers of  surveyors and the approval of the organisation employing such surveyors for the purposes of  giving effect of  Annex     to the Convention;

   prescribe fees to be paid in respect of the issue or recording of any certificate, license or other instrument or the doing of any other thing in pursuance of  this Order;

   provide for the approval of documents and the carrying out  of surveys and inspections for the purpose of giving effect to any of the international agreements referred to in paragraphs (a) to (d) of subsection   or to a measure referred to in paragraph (e) of  subsection   and the issue, duration and recognition of  any certificate for that  purpose;

(g)  provide for the denial of  entry or prohibition  of  proceeding to sea   of any ship which does not have in force a certificate issued pursuant to any regulation made under this paragraph;  and

   provide for the extra-territorial  application  of  any of  the regulations to Brunei  Darussalam  ships and to persons on board  such   ships.

(3)     Any regulations made under this section may -

(a)      make  different  provisions  for  different circumstances;

(b)      empower any specified  person  to grant exemption  from all or  any of  the provisions of   the  regulations;

(c)      provide for the delegation of functions exercisable by virtue of the regulations;

(d)     include such incidental,  supplemental  and  transitional  provisions as appear to the Minister, with the approval of His Majesty  the Sultan  and  Yang  Di-Pertuan,  to  be expedient  for  the purposes of  the  regulations; and

(e) provide that a contravention thereof  shall be  punishable  by a fine  not exceeding $20,000, imprisonment for a term not exceeding  2  years  or  both.

Repeal of  section 25 of  Chapter 144.

1. Section  25 of  the Ports Act  is repealed.

Application to  Government.

1. This  Order shall  bind  the Government.

Made  this  17th.  day  of   Safar, 1426   corresponding to  the  28th.  day of March, 2005 at Our Istana Nurul Iman,  Bandar  Seri  Begawan,  Brunei Darussalam.

HIS MAJESTY

THE SULTAN AND YANG DI-PERTUAN BRUNEI  DARUSSALAM