Federal Law on Medical Examination of Seafarers Federal Law on Medical Examination of Seafarers

Federal Law on Medical Examination of Seafarers

Ata Atun, Clelia Theodolou, Other Committee Members

 

 

 

Foundation Agreement

Annex Iii, Attachment 11, Law 8

 

 

 

 

 

 

 

 

 

 

Federal Law on Merchant Shipping (Medical Examination of Seafarers, and the Issue of Medical Fitness Certificates)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For the purposes of harmonisation with the Community Act referred to as -

 

«Directive 2001/25/EC of the European Parliament and of the Council of 4 April 2001 on the Minimum Level of Training of Seafarers», (OJ L 136 of 18.5.2001, p. 17-41), adapting the International Convention on Standards of Training, Certification and Watchkeeping  for Seafarers of 1978 as revised in 1995,

 

It is hereby provided as follows:

 

Short title

 

1. This Law may be cited as the federal Law on Merchant Shipping (Medical Examination of Seafarers and Issue of Medical Fitness Certificates).

 

Part I  Preliminary Provisions

 

Interpretation

 

2. In this Law, unless the context otherwise requires-

 

«registered» means registered by the Competent Authority;

 

«Company» means the owner of the ship or any other organization or person such as the manager or the bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who on assuming the responsibility has agreed to take over all duties and responsibilities under this Law, the Convention and the Regulations made for their implementation;

 

«Competent Authority» means the Competent Authority for the implementation of the provisions of this Law and of the Regulations made thereunder shall be the Member;

 

«Cyprus» means the United Cyprus Republic;

 

«Court » means a court of competent jurisdiction;

 

«Department)» means the Department having the responsibility for maritime affairs;

 

«fishing vessel» means  a vessel used for catching fish, whales, seals, walrus or other living resources of the sea;

 

«Gazette» means the federal Official Gazette;

 

«ILO 73/1946 Convention» means the International Labour Organisation Convention on the Medical Examination of Seafarers, No. 73 of 1946;

 

«ILO 147/1976 Convention» means the International Labour Organisation Convention on the Merchant Shipping (Minimum Standards), No. 147 of 1976, as in force at any time in Cyprus;

 

«medical fitness certificate» or «certificate» means a certificate issued under the provisions of section 10 or a certificate deemed to be equivalent thereto under the provisions of section 18 of this Law;

 

«Member means the member of the Presidential Council heading the Department

 

«Notice» means a notice issued by the Member and published in the Gazette;

 

«seafarer»  includes the master;

 

«sea-going ship» means every ship other than those which navigate exclusively in inland waters or in waters within, or closely adjacent to, sheltered waters, in an area not greater than three nautical miles from the nearest coast of Cyprus, or areas where port regulations apply;

 

«specified» means specified by the Competent Authority;

 

«STCW Code» means the Seafarers' Training, Certification and Watchkeeping (STCW) Code, as adopted by the 1995 Conference of Parties to the International Convention on the Standards of Training, Certification and Watchkeeping for Seafarers, with Resolution 2, as in force at any time in Cyprus;

 

«STCW Convention» means the International Convention on the Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended in 1995 as in force at any time in Cyprus.

 

Application

 

3.-(1) The provisions of this Law apply to -

a)           Cyprus sea-going ships of 500 gross tonnage or more including tug-boats except-

(i)           warships, naval auxiliaries or other ships owned or operated by Cyprus and engaged only on governmental non-commercial service,

(ii)         fishing vessels,

(iii)        recreational craft, not engaged in trade,

(iv)        wooden ships of primitive build,

(v)         platforms used as oil rigs and drilling platforms, when not engaged in navigation;

b)           non-sea-going Cyprus professional tourist vessels, which have the right to carry passengers and perform leisure voyages in waters within, or closely adjacent to, sheltered waters or areas where port regulations apply.

 

(2) The provisions of this Law apply to non-Cyprus sea-going ships of 500 gross tonnage or more, when they are in a port of Cyprus or within the territorial waters thereof. The exemptions of paragraph (a) of subsection (1) of this section apply for non-Cyprus ships as well.

 

(3) The term «Cyprus ship» within the context of this Law, has the meaning assigned to it by section 5 of the Federal Law on Merchant Shipping (Registration of Ships, Sales and Mortgages).

 

Competent Authority

 

4. The Competent Authority for the implementation of the provisions of this Law and the Regulations made there under is the Member.

 

 

Part II  Prohibition of employment of seamen without a valid medical FITNESS certificate and Company responsibility

 

Prohibition of employment without valid certificate

 

5. Subject to the provisions of section 9 of this Law, no person shall employ a seafarer in a ship to which this Law applies unless such seafarer is the holder of a valid medical fitness certificate.

 

Company’s responsibilities

 

6.-(1) Every Company shall take all necessary measures so as to ensure that all persons employed on its ship, to which this Law applies, hold valid and genuine medical fitness certificates.

 

(2) Every Company shall take all necessary measures to ensure that no seafarer shall be employed on its ship, to which the provisions of this Law apply, in a capacity, at a level, or in a geographical area, precluded by a restriction which may have been imposed by that seafarer’s medical fitness certificate, pursuant to subsection (4) of section 10 of this Law.

 

Exemptions

 

7. Notwithstanding the provisions of sections 5 and 6, if the period of validity of a medical fitness certificate expires at a place where the medical examination of the seafarer in accordance with the provisions of this Law is practically impossible, he may continue his sea service for a period of three months, from the date of expiration of the certificate he holds.

 

Circumstances of exceptional necessity

 

8.-(1) In circumstances of exceptional necessity, the Competent Authority may allow the employment of a seafarer on board a specific ship for a specific voyage without a medical fitness certificate. In this case, a relevant entry shall be made in the journal and the official Logbook of the ship, and the relevant entry shall be signed by the master and the seafarer concerned.

 

(2) The terms of employment of a seafarer pursuant to subsection (1) of this section shall be the same as the terms of employment for seafarers employed in the same capacity who are holders of a medical fitness certificate.

 

Exemptions from the provisions of Part II

 

9. The following persons are exempted from the application of the provisions of the previous sections 5, 6, 7 and 8 of this Part:

a)           Pilots (who are not members of the crew).

b)           Persons employed in a ship solely in relation to the construction, alteration, repair or testing of the ship, its machinery or equipment, and who are not engaged in the navigation of the ship.

c)           Persons solely employed in work which is directly related to-

(i)           the exploration of the seabed and sub-soil of the sea as well as the exploitation of its natural resources;

(ii)         the storage of gas in or under the seabed of the sea and the  recovery of gas so stored;

(iii)        the laying, inspection, testing, repair, alteration, renewal or removal of any submarine telegraph cable;

(iv)        the construction, under the sea-water, of oil pipe line works:

Provided that these persons are employed on the ship by an employer other than the Company and are not engaged in the navigation of the ship.

d)           Persons solely employed for the loading and unloading of the vessel, who are not members of the crew.

 

 

Part III  Issue and Recognition of Medical Fitness Certificates

 

Issue of medical fitness certificates

 

10.-(1) Medical fitness certificates of seafarers shall be issued in Cyprus by registered physicians, either of the public or private sector, registered pursuant to any law of either  constituent state regulating the registration of physicians.

 

(2) The conditions for the approval of physicians, for the purposes of this Law, shall be specified by a Notice, following consultations of the Minister with the Ministries of Health of the constituent states.

 

(3) Every applicant for a medical fitness certificate shall be examined by a registered physician and, if the physician considers that the applicant is fit for sea service, having regard to the medical standards specified by the Competent Authority, he shall issue the applicant with a medical fitness certificate in a registered form.

 

(4) Restrictions may be imposed by medical fitness certificates relating to the seafarer´s functional duties, capacity of sea service and specialization level on the ship, or the geographical areas, in which he is allowed to serve.

 

(5) The registered physician, who issues a medical fitness certificate in accordance with the provisions of this section, shall take all necessary measures to forward a copy of this certificate to the Competent Authority for information.

 

(6) Any physician who contravenes the provisions of the above subsection shall be liable to a fine not exceeding one thousand pounds.

 

Applicable medical standards

 

11.-(1) The medical standards to be applied by registered physicians in issuing  medical fitness certificates, shall be specified by a Notice following consultations of the Minister with the Ministries of Health of the constituent states.

 

(2) For the specification of these medical standards the relevant provisions of the STCW Convention, the STCW Code and the ILO No. 73 Convention shall be taken into consideration.

 

Composition and publication of approved list of physicians

 

12. The Competent Authority shall make a list with all the registered physicians names, according to the provisions of this Law, sorted by specialisation and alphabetically, and shall publish it by a Notice every year.

 

Period of validity of certificate

 

13.-(1) Subject to the provisions of subsection (2) of this section, the registered physician, who issues a medical fitness certificate, shall specify with effect from the date of the medical examination, the period for which the certificate is to be in force.

 

(2) A medical fitness certificate, as from the date of its issue, is subject to the following maximum periods of validity:

a)           with respect to seafarers under eighteen years of age, one year; and

b)           with respect to seafarers over eighteen years of age, two years.

 

(3) Notwithstanding the above, if the period of validity of the said certificate expires in the course of a voyage, its period of validity shall continue to be in force until the end of that voyage.

 

Suspension or revocation of a certificate

 

14.-(1) If a registered physician has reasonable grounds for believing that during the period of validity of his medical fitness certificate there has been a significant change in the seafarer’s physical or mental ability, he shall notify this to the seafarer concerned and the Competent Authority.

 

(2) In the above case, the Competent Authority, following a suggestion made by the registered physician who has issued the certificate, may proceed to one of the following:

a)           suspend the validity of that certificate until the seafarer undergoes a further medical examination; or

b)           suspend the validity of that certificate for such period as it considers that the seafarer will remain physically or mentally unfit for sea service; or

c)           revoke the validity of the certificate .

 

Application for a review

 

15.-(1) Subject to the provisions of the following subsection, in any case where the seafarer’s interests are prejudiced by-

a)           the refusal of a registered physician to issue a medical fitness certificate; or

b)           a restriction imposed on such a certificate; or

c)           the suspension of the validity of the certificate for a period exceeding  three months or revocation of the validity of such certificate pursuant to the provisions of the previous section

 

he may apply to the Competent Authority for his case to be reviewed, in accordance with the provisions of subsection (2).

 

(2) An application for review, in accordance with the provisions of this section, may be made only by a seafarer who has held a valid medical fitness certificate at any time during the two years immediately preceding the refusal to grant the certificate, the imposition of a restriction on the certificate or its suspension or revocation of the validity of the certificate, on which the application for review is based upon.

 

(3) The application for review shall be submitted to the Competent Authority within one month of the date on which the relevant decision concerning the application was issued, or within such longer period as the Competent Authority may determine reasonable in cases where delay in applying is caused by the seafarer’s employment on board a ship which is situated outside Cyprus.

 

(4) The application shall specify the name and address of the registered physician, who has issued the decision relating to the application for review and shall include the consent of the seaman concerned to the submission by the registered physician of a report to the medical referee who is appointed in accordance with the provisions of the following subsections.

 

(5) The application shall be accompanied by the prescribed fee.

 

(6) The review is conducted by a physician, who is appointed by the Competent Authority as a medical referee and who is independent from the Companies or ship owner’s organisations or seafarer’s organisations.

 

(7) The referee shall examine the medical condition of the applicant and shall decide on the matter before him, taking all evidence into account and guided by the appropriate medical standards applicable pursuant to section 11 of this Law.

 

(8) The referee shall decide on the matter at the latest within two months from the date on which the application for review is submitted to the Competent Authority, and it shall be forwarded to the seafarer concerned and the Competent Authority.

 

Loss of certificate

 

16.  In case of loss, damage or wear of a certificate, the Competent Authority may accept, instead of a certificate, a written confirmation of issue of a certificate made by the registered physician who issued the relevant medical fitness certificate.

 

Registry of certificates

 

17.-(1) Every registered physician who conducts a medical examination on seafarers, and issues certificates in accordance with the provisions of this Law, shall maintain a registry, in the prescribed form, concerning all the certificates which he has issued.

 

(2) In the aforesaid registry, which is to be maintained for a period of at least six years from the day of issue of the certificates, there shall be contained all the documents or evidence concerned with the issue of such medical certificates.

 

(3) The Competent Authority may, when it considers necessary, request submission of evidence of the issue of such certificates, provided that such evidence does not include medical information, which may be traced as referring to a specific person.

 

(4) Any physician who contravenes the provisions of subsections (1) or  (2) of this section shall be liable to a fine not exceeding two thousand pounds.

 

Recognition of medical fitness certificates issued by third countries

 

18.-(1) Any medical fitness certificate issued by the competent authority of another State, in accordance with the provisions of the STCW Convention, the STCW Code, the ILO 73/1946 Convention or ILO 147/1976 Convention shall be deemed, for the purposes of this Law, to be equivalent to a medical fitness certificate issued in accordance with the provisions of sections 10 to 13 of this Law, provided that it has been issued by a State, the certificates of competency of which are recognised in accordance with the provisions of section 45 of the Federal Law on Merchant Shipping (Issue and Recognition of Certificates and Marine Training).

 

(2) Any medical fitness certificate deemed as equivalent to a medical fitness certificate, in accordance with subsection (1), issued under this Law, shall remain in force only until the expiry of the period of validity specified in the certificate, provided that the period of validity of the certificate does not exceed the period specified in paragraph (a) or (b) of subsection (2) of section 13 of this Law, in which latter case the medical fitness certificate shall be deemed to be valid for the period specified in the provisions of section 13 of this Law.

 

Part IV  Inspection and Prohibition of sailing - Administrative and Criminal Sanctions

 

Inspection and prohibition of sailing

 

19-(1) As from the entry into force of this Law, the sailing of Cyprus or non-Cyprus ships, which are subject to the provisions of subsections (1) and (2) of section 3 of this Law, shall be prohibited so long as they do not comply with the provisions of this Law and of the Regulations made thereunder, as provided for in sections 20 and 21 of this Law.

 

(2) If during the inspection of a ship, the Competent Authority ascertains any contravention as stated above, it shall confirm the contravention, make a report to that effect, call upon the master to explain and prohibit the sailing of the ship until the contravention has been removed and any administrative fine which may have been imposed pursuant to section 22 of this Law has been paid.

 

(3) The cost of any inspection incurred in order to ensure that the contravention has been rectified shall be borne by the ship and shall be paid prior to the lifting of the prohibition of sailing.

 

Power of the Competent Authority to detain Cyprus

 

20-(1) The Competent Authority has power to detain any Cyprus ship, which comes within the provisions of subsection (1) of section 3 of this Law, as well to the prohibit the sailing, in every case where it has been ascertained, following an inspection of the ship, that, in contravention of

ships and prohibit the sail the provisions of section 5 of this Law, any seafarer serving on the ship, is unable to produce a valid medical fitness certificate, which meets the requirements of this Law, and that the state of his health is such that the ship could not sail without serious risk to the safety and health of those on board.

 

(2) A prohibition on sailing shall not be lifted unless the deficiencies are rectified on terms which satisfy the Competent Authority.

 

Power of the Competent Authority to inspect and detain non-Cyprus ships

 

21.-(1) The Competent Authority has power to inspect non-Cyprus ships that fall under the provisions of subsection (2) of section 3 of this Law, when the said ship is situated in Cyprus waters, in order to verify that the members of the crew are furnished with valid medical fitness certificates.

 

(2) If any seafarer is found without a valid medical fitness certificate, the Competent Authority shall-

a)           write and send a report of the event to the Government of the country where the ship is registered, and a copy thereof to the Director General of the International Labour Office; and

b)           where the conditions on board of the ship are evidently hazardous to safety or health of those on board-

(i)           take all necessary measures for rectification of those conditions; and

(ii)         order the detention of the ship and prohibition of sail.

 

(3) The measures specified in sub-paragraphs (i) and (ii) of paragraph (b) above may be taken only when the ship has called at a Cyprus port in the normal course of its business or for operational reasons.

 

(4) If the Competent Authority takes the measures specified in paragraph (b) of subsection (2) of this section, the nearest maritime, consular or diplomatic representative of the flag state of the ship shall, at the earliest opportunity, be notified.

(5) The Competent Authority shall not, in the exercise of its powers under this section, unreasonably detain or delay a ship.

 

Contraventions and sanctions

 

22.-(1) Contravention of the provisions of this Law and Regulations made thereunder, shall be punished irrespective of whether there exists criminal or disciplinary liability pursuant to any other provision, with an administrative fine not exceeding five thousand pounds depending on the seriousness of the contravention.

 

(2) A fine shall be imposed on the Company or the shipowner or master upon a reasoned decision issued by the Competent Authority, confirming the contravention. The amount of the administrative fine, imposed on a case by case basis, shall be indicated in directions given by the Minister, in which there shall be contained the basic contraventions with the corresponding fines without such directions restricting the discretionary power of the Competent Authority, which confirms any specific contravention, from deciding freely on the basis of the real facts of each case.

 

(3) The Competent Authority shall notify the master of its decision to impose a fine and shall not allow the lifting of the prohibition on sailing until the fine is paid or a bank guarantee by a recognised bank on terms which satisfy the Competent Authority, has been deposited.

 

(4) Exceptionally, in respect of ships which frequently call at Cyprus ports, sailing shall, with approval of the Minister, be permitted without a fine imposed as provided above, being paid or the bank guarantee being deposited, for one single voyage course, if imperative transportation or other exceptional reasons justify this, and the presentation of a bank guarantee is de facto unattainable. In such cases a personal guarantee of an equal amount shall be deposited by the Company, its representative or master.

 

(5) The shipowner or the operator or the master shall have the right to a hierarchical recourse against the decision imposing a fine. Such recourse to the Member shall, in case of a contravention confirmed in a port of Cyprus, be filed within thirty days of notification of the decision, or, in the case of a contravention confirmed in a foreign port, sixty days.

 

(6) The recourse provided in subsection (4) shall not suspend the execution of the decision.

 

(7) The amount of the fine or the bank guarantee shall be deemed to be payable if no action has been taken within the period of seventy five days to file a recourse to the Supreme Court such period commencing either from the date of notification of the decision to impose the fine, or, in case of a hierarchical recourse to the Member pursuant to subsection (4), from the date of notification of the Member’s decision.

 

Criminal offence

 

23.-(1) The master shall be guilty of an offence and, in case of a conviction, shall be liable  to imprisonment not exceeding two years or to a fine not exceeding five thousand pounds or to both such sentences, if-

a)           the ship leaves or attempts to leave the port when this has been prohibited in terms of the provisions of section 19 or 20 of this Law; or

b)    employs or knowingly allows the employment of a seafarer on board the ship in contravention of the provisions of section 5 of this Law.

 

(2) The same offence as that provided for in subsection (1) shall be committed by a Company or any other person, who knowingly aids or abets the employment of a seafarer in contravention of the provisions of subsection (1) of this Law.

 

Judicial measures taken for the collection of the fine under section 21

 

24. In case of a failure to pay a fine imposed under section 21 of this Law, the Competent Authority may take judicial measures and collects the amount due, as a civil debt.

 

Fine and expenses to be charged on the ship

 

25. Notwithstanding the provisions of any other law, the fine imposed under sections 22 and 23 shall be a charge on the ship in respect of which the offence has been committed or the contravention has been ascertained, as the case may be, which charge shall be satisfied in preference to charges in favour of other lenders, following however after the last mortgage.

 

Part V  Final Provisions

 

Regulations

 

26.-(1) The Presidential Council may make Regulations for the better carrying into effect of the provisions of this Law.

 

(2) The Regulations made for the implementation of this Law, may provide for the imposition of a sentence of imprisonment not exceeding two years or a fine not exceeding five thousand pounds or for both, in case of contravention of such Regulations.

 

Savings

 

27.(1) Any certificate granted by any authority in Cyprus prior to the entry into force of this Law provided that the said certificate is recognised as valid under Article 12 of the Foundation Agreement continues to be valid under this Law until the expiry date specified in such certificate, subject to the provisions of section 13 of this Law.