MERCHANT SHIPPING (PORT STATE CONTROL) _g S.L.234.38 1
SUBSIDIARY LEGISLATION 234.38
MERCHANT SHIPPING (PORT STATE CONTROL) 
REGULATIONS
1st May, 2004
LEGAL NOTICE 12 of 2004.
Citation, 
commencement 
and scope.
1. (1) The title of these regulations is the Merchant Shipping
(Port State Control) Regulations.
(2) These regulations shall come into force on the 1st May,
2004.
(3) These regulations adopt the measures contained in Council
Directive 95/21/EC of 19 June, 1995 in its up-to-date version,
hereinafter referred to in these regulations as Council Directive 95/
21/EC.
Interpretation.
requires:
Cap. 234.
Cap. 194.
''continental shelf'' shall have the same meaning as is assigned to
it in article 2 of the Continental Shelf Act;
''Council Directive'' or ''Council Regulation'' means a directive or
regulation of the Council of the European Union published in the
Official Journal of the European Union, as the case may be;
''flag State'' means the State whose flag the ship is entitled to fly;
''inspector'' means a person duly authorised by the competent
authority to carry out port State control inspections, and
responsible to that authority;
''ISM Code'' means the International Management Code for the
Safe Operation of Ships and for Pollution Prevention as defined in
the 1974 SOLAS Convention;
''member State'' means a member State of the European Union;
''off-shore installation'' means a fixed or floating platform
operating on or over the continental shelf of Malta;
Cap. 352.
''port'' shall have the same meaning as is assigned to it under
article 2 of the Malta Maritime Authority Act and shall include off-
shore installations unless the text otherwise clearly excludes them;
''recognised State'' means a State the maritime administration of
which either is a signatory to the MOU or enjoys a cooperating
status in terms of the MOU;
''ship'' shall mean any seagoing vessel to which one or more of
the Conventions apply, flying a flag other than that of Malta;
Cap. 352.
''the competent authority'' in relation to Malta means the
Executive Director responsible for merchant shipping of the Malta
Maritime Authority established by the Malta Maritime Authority
2 _g S.L.234.38 MERCHANT SHIPPING (PORT STATE CONTROL)
Act, hereinafter referred to as the Executive Director and, in
relation to any other State means the national maritime
administration maintained by that State for the inspection of ships.
(2) Unless otherwise defined in these regulations or unless the
context otherwise requires, words and expressions used in these
regulations shall have the same meaning assigned to them in
Council Directive 95/21/EC.
Application. 3. (1) These regulations apply to any ship and her crew:
( a ) calling at a port in Malta or at an off-shore installation,
or
( b ) anchored off such a port or such an installation:
Provided that nothing in these regulations shall affect the
rights of intervention available to any authority under any of the
relevant international Conventions or under any other convention.
(2) These regulations shall not apply to -
( a ) fishing vessels,
( b ) government ships used for non-commercial purposes,
( c ) naval auxiliaries,
( d ) pleasure yachts not engaged in trade,
( e ) ships of war,
( f ) ships registered in Malta, or
( g ) wooden ships of a primitive build.
(3) In case of ships of a gross tonnage below 500, the inspector
shall apply those requirements of a relevant Convention which are
applicable and shall, to the extent that a Convention does not apply
and without prejudice to any other powers under these regulations,
take such action as may be necessary to ensure that the ships
concerned are not clearly hazardous to safety, health or the
environment. In the application of this subregulation the inspector
shall be guided by Annex 1 to the MOU.
(4) When inspecting a ship flying the flag of a State which is
not a party to a Convention, the treatment given to such ship and its
crew shall be no more favourable 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.
Inspection 
commitments.
4. (1) The competent authority shall, annually, carry out a
total number of inspections of the ships referred in subregulation
(2) and in regulation 6, corresponding to at least twenty-five per
cent of the average annual number of ships to which these
regulations apply, calculated on the basis of the three most recent
calendar years for which statistics are available.
(2) The competent authority shall, subject to the provisions of
regulation 7, ensure that an inspection in accordance with
regulation 5 is carried out on any ship, not subject to an expanded
inspection, with a target factor greater than 50 in the Sirenac
information system, provided that a period of at least one month
MERCHANT SHIPPING (PORT STATE CONTROL) _g S.L.234.38 3
has elapsed since the last inspection carried out in a port in a
recognised State.
(3) In selecting other ships for inspection, the competent
authority shall determine the order of priority as follows:
( a ) the first ships to be selected for inspection shall be
those listed in Part I  Overriding factors  of Annex I
Ships to be considered for Priority Inspection  to
Council Directive 95/21/EC, irrespective of their
target factor,
( b ) the ships listed in Part II  Overall targeting factor  of
Annex I  Ships to be considered for Priority Inspection
to Council Directive 95/21/EC shall be selected in
descending order, depending on the order of priority
resulting from the value of their target factor ranges as
referred to in the Sirenac information system.
(4) The competent authority shall refrain from inspecting ships
which have been inspected by any recognised State within the
previous six months, provided that:
( a ) the ship is not listed in Annex I  Ships To be considered
for Priority Inspection  to Council Directive 95/21/EC;
( b ) no deficiencies have been reported following a
previous inspection;
( c ) no clear grounds exist for carrying out an inspection;
( d ) the ship is not covered by subregulation (2).
Inspection 
procedure.
5. (1) When carrying out an inspection in accordance with
these regulations, the inspector shall as a minimum:
( a ) check the certificates and documents listed in Annex II
List of Certificates and Documents  to Council
Directive 95/21/EC, to the extent applicable;
( b ) satisfy himself of the overall condition of the ship,
including the engine room and accommodation and
including hygienic conditions.
(2) The inspector may also examine all relevant certificates and
documents, other than those listed in Annex II  List of Certificates
and Documents  to Council Directive 95/21/EC, required to be
carried on board in accordance with the Conventions.
(3) 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, a
more detailed inspection shall be carried out, including further
checking of compliance with on-board operational requirements.
(4) For the purposes of subregulation (3), ''clear grounds'' exist
when the inspector finds evidence which in his professional
judgement warrants a more detailed inspection of the ship, its
equipment or its crew. Without prejudice to its generality the term
''clear grounds'' includes, the circumstances set out in Annex III
Examples of ‘Clear Grounds’ for a More Detailed Inspection  to
4 _g S.L.234.38 MERCHANT SHIPPING (PORT STATE CONTROL)
Council Directive 95/21/EC.
(5) The inspector shall also observe the relevant procedures
and guidelines for the control of ships specified in Annex IV
Procedures for the Control of Ships  to Council Directive 95/21/EC.
Mandatory 
expanded 
inspection of 
certain ships.
6. (1) A ship in one of the categories in section A  Categories
of Ships subject to Expanded Inspection  of Annex V to Council
Directive 95/21/EC, is liable to an expanded inspection after a
period of twelve months since the last expanded inspection carried
out in a port of a recognised State.
(2) If such a ship is selected for inspection in accordance with
regulation 4(3), an expanded inspection shall be carried out.
However, an inspection in accordance with regulation 5 may be
carried out in the period between two expanded inspections.
(3) Following the lapse of a period of twelve months since the
last expanded inspection, the operator or master of a ship to which
subregulation (1) applies shall communicate to the competent
authority in Malta all the information listed in section B
Information to be notified to the Competent Authority  of Annex V
to Council Directive 95/21/EC before each call at a port in Malta.
This information shall be provided at least three days before the
expected time of arrival in the port or before leaving the previous
port if the voyage is expected to take fewer than three days.
(4) Any ship not complying with the provisions of
subregulation (3) shall be subject to an expanded inspection at the
port of destination.
(5) Subject to regulation 7, the competent authority shall
ensure that an expanded inspection is carried out in respect of a
ship to which subregulation (3) applies and which has a target
factor of 7 or more at its first visit to a port in Malta following the
lapse of a period of twelve months since the last expanded
inspection:
Provided that if the competent authority is unable to
increase its capacity in time to carry out all the additional
inspections required, particularly because of problems connected
with the recruitment and training of inspectors, the competent
authority is allowed until 1 February 2005 to build its inspection
service gradually.
(6) An expanded inspection shall be carried out in accordance
with the procedures in section C  Procedures relating to Expanded
Inspection of Certain Categories of Ships  of Annex V to Council
Directive 95/21/EC.
Procedure in case 
certain ships 
cannot be 
inspected.
7. (1) In cases where, for operational reasons, the competent
authority is unable to carry out an inspection of a ship with a target
factor of more than 50 as referred to in regulation 4(2) or a
mandatory expanded inspection as referred to in regulation 6(5), it
shall, without delay, inform the Sirenac information system that
such inspection did not take place.
(2) The competent authority shall, at intervals of six months,
notify the case mentioned in subregulation (1) to the European
MERCHANT SHIPPING (PORT STATE CONTROL) _g S.L.234.38 5
Commission together with the reasons for not inspecting the ships
concerned.
(3) During any calendar year, such cases of non-inspection
shall not exceed 5% of the average annual number of individual
ships eligible for the inspections referred to in subregulation (1)
calling at ports in Malta, calculated on the basis of the three most
recent calendar years for which statistics are available.
(4) Where a ship, which for operational reasons was not subject
to an inspection of the type referred to in regulation 4(2) hereof or a
mandatory expanded inspection of the type referred to in regulation
6(5), as appropriate, at its previous call at a port in a member State,
including Malta, visits a port in Malta, it shall be inspected, as
appropriate by the competent authority.
Refusal of access 
to certain ships.
8. (1) Save in the cases provided for in regulation 13(9), no
access to any port in Malta shall be granted to a ship falling within
one of the categories of Section A  Categories of Ships subject to
Refusal of Access to Community Ports  of Annex XI to Council
Directive 95/21/EC, if the ship,
( a ) either flies the flag of a State appearing in the black
list as published in the annual report of the MOU, and
has been detained more than twice in the course of the
preceding twenty four months in a port of a recognised
State;
( b ) or flies the flag of a State described as ‘very high risk’
or ‘high risk’ in the black list as published in the
annual report of the MOU, and has been detained more
than once in the course of the preceding thirty six
months in a port of a recognised State.
(2) The refusal of access in accordance with subregulation (1)
shall become applicable immediately the ship has been authorised
to leave the port where it has been the subject of a second or third
detention as appropriate.
(3) In the case of refusal of access in accordance with
subregulation (1), the procedures relating to refusal of access laid
down in Section B  Procedures relating to Refusal of Access to
Community Ports  of Annex XI to Council Directive 95/21/EC shall
apply.
Report of 
inspection to the 
master.
9. On completion of an inspection, a more detailed inspection
or an expanded inspection, the inspector shall draw up a report in
accordance with Annex IX  Inspection Report drawn up in
accordance with Article 8  to Council Directive 95/21/EC and a
copy of the inspection report shall be provided to the ship’s master.
Rectification and 
detention.
10. (1) Any deficiencies confirmed or revealed by the
inspection referred to in regulations 4 and 6 shall be rectified in
accordance with the Conventions to the satisfaction of the
competent authority.
(2) ( a ) In the case of deficiencies which are clearly hazardous
to safety, health or the environment, the competent
authority shall order the ship to be detained, or shall
6 _g S.L.234.38 MERCHANT SHIPPING (PORT STATE CONTROL)
order the operation in the course of which the
deficiencies have been revealed to be stopped.
( b ) A detention order or an order for the stoppage of an
operation may include a direction that a ship shall
remain in a particular place, or shall move to a
particular anchorage or berth, and may also specify
circumstances when the master of a ship may move his
ship from a specified place for reasons of safety or
prevention of pollution.
( c ) The detention order or the order for the stoppage of an
operation shall not be lifted until the hazard is removed
or until the competent 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 of
harm to the marine environment.
( d ) Where deficiencies as referred to in this subregulation
are found and cannot be rectified in the port of
detention, the relevant provisions of regulation 13 shall
apply.
(3) When exercising his professional judgment as to whether or
not a ship should be detained, the inspector shall apply the criteria
set out in Annex VI  Criteria for Detention of a Ship  to Council
Directive 95/21/EC.
(4) A ship shall be detained if not equipped with a functioning
voyage data recorder system, when its use is compulsory in
accordance with Annex XII  International and Community
Requirements concerning Voyage Data Recorder Systems  to
Council Directive 95/21/EC. If this deficiency cannot be readily
rectified in the port of detention, the competent authority may
allow the ship to proceed to the nearest appropriate port where it
shall be readily rectified or require that the deficiency is rectified
within a maximum period of thirty days. For these purposes, the
procedures laid down in regulation 13 shall apply.
(5) In exceptional circumstances, where the overall condition
of a ship is obviously substandard, the inspector may suspend the
inspection of that ship until the responsible parties have taken the
steps necessary to ensure that it complies with the relevant
requirements of the Conventions, and in the meantime the ship
shall be considered to be detained.
(6) Without prejudice to any other requirement in the
Convention enactments, in the event that an inspection referred to
in regulation 4(2) or regulation 6 gives rise to detention, the
competent authority shall immediately inform, in writing and
including the report of inspection, the flag administration, or when
this is not possible, 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 recognised organisations
responsible for the issue of class, radio or other certificates issued
MERCHANT SHIPPING (PORT STATE CONTROL) _g S.L.234.38 7
on behalf of the State of the flag administration in accordance with
international Conventions shall also be notified where relevant.
(7) 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.
(8) When exercising port State control under these regulations,
all possible efforts shall be made to avoid a ship being unduly
detained or delayed.
(9) If a ship is unduly detained or delayed, the owner or
operator shall be entitled to compensation for any actual loss or
damage suffered. In any instance of alleged undue detention or
delay the burden of proof shall lie with the owner or operator of the
ship.
Procedure 
applicable in the 
absence of ISM 
Certificates.
11. (1) Where the inspection reveals that the copy of the
document of compliance or the safety management certificate
issued in accordance with the ISM Code are missing on board a
ship to which, within the European Community the ISM Code is
applicable at the date of the inspection, the competent authority
shall order that the ship in question be detained.
(2) Notwithstanding the absence of the documentation referred
to in subregulation (1), if the inspection finds no other deficiencies
warranting detention, the competent authority may, in order to
avoid port congestion, lift the detention order. Whenever such a
decision is taken, the competent authority shall immediately inform
the competent authorities of the other recognised States thereof.
(3) A ship which has been authorised to leave a port in a
recognised State under circumstances analogous to those referred
to in subregulation (2), shall be refused access to all ports in Malta,
except in the situations referred to in regulation 13(9), until the
owner or operator of the vessel has demonstrated, to the
satisfaction of the competent authority of that recognised State in
which detention was ordered, that the ship has valid certificates
issued in accordance with the ISM Code.
(4) Where deficiencies as referred to in regulation 10(2)( a ) are
found and cannot be rectified in Malta the relevant provisions of
regulation 13 shall also apply.
Right of appeal.
owner or the operator of a ship or his representative in Malta shall
have a right of appeal against a decision for detention or stoppage
of operation or refusal of access taken by the competent authority.
(2) The competent authority shall properly inform the master of
a ship referred to in subregulation (1), of the right of appeal.
(3) An appeal shall not cause the detention or stoppage of
operation or refusal of access to be suspended.
(4) An appeal against a decision for detention or stoppage of
operation or refusal of access may be made by means of an
application before the Court of Appeal (Inferior Jurisdiction).
8 _g S.L.234.38 MERCHANT SHIPPING (PORT STATE CONTROL)
(5) An appeal for the purpose of subregulation (4) shall be filed
within twenty days of the service of the order of detention or
stoppage of operation or the day of refusal of access, as the case
may be, and shall be served on the Executive Director who shall
reply thereto within ten days of notification.
(6) If the owner or the operator of a ship or his representative
in Malta shows to the satisfaction of the Court that -
( a ) the matter did not constitute a valid basis for the
relevant inspector’s opinion, and
( b ) there were no reasonable grounds for the inspector to
form that opinion,
the Court may award the owner such compensation in respect of
any actual loss suffered by him in consequence of the detention or
stoppage of operation or refusal of access as it deems fit.
(7) The burden of satisfying the Court as to the matters
specified in subregulation (6) shall lie with the owner or the
operator of a ship or his representative in Malta, as the case may be.
(8) The Court shall also have regard, in coming to its decision,
to any matters not specified in the order of detention or stoppage of
operation or in the refusal of access order that appears to it to be
relevant as to whether the ship was or was not liable to be detained
or refused access.
(9) Where the Court decides that the matter did not constitute a
valid basis for the inspector’s opinion, it shall either cancel the
order of detention or refusal of access or shall affirm the order with
such modifications as it may in the circumstances deem fit.
(10) The Court shall include in its findings whether there was or
not a valid basis for the order of detention or refusal of access.
Follow up to 
inspections and 
detention.
13. (1) Where deficiencies as referred to in regulation
10(2)( a ) cannot be rectified in Malta, the competent authority may
allow the ship concerned to proceed to the nearest appropriate
repair yard available, as chosen by the master and the authorities
concerned, provided that the conditions determined by the
competent authority of the flag State and agreed to by the
competent authority are complied with. Such conditions shall
ensure that the ship can proceed 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.
(2) In the circumstances referred to in subregulation (1), the
competent authority shall notify the competent authority of the
State where the repair yard is situated, the parties mentioned in
regulation 10(6) and any other authority as appropriate of all the
conditions for the voyage.
(3) The notification of the parties referred to in subregulation
(2) shall be in accordance with Annex 2 to the MOU.
(4) When the competent authority receives a notification
analogous to the one referred to in subregulation (1) from the
competent authority of another recognised State it shall inform the
MERCHANT SHIPPING (PORT STATE CONTROL) _g S.L.234.38 9
notifying authority of the action taken.
(5) The competent authority shall take measures to ensure that
ships that proceed to sea from a port in any recognised State in
circumstances analogous to those referred to in subregulation (1) -
( a ) without complying with the conditions determined by
the competent authority in the port of inspection; or
( b ) which refuse to comply with the applicable
requirements of the Conventions by not calling into
the indicated repair yard,
are refused access to any port in Malta, until the owner or operator
has provided evidence to the satisfaction of the competent authority
of the port of inspection where the ship was found to be deficient
that the ship fully complies with all applicable requirements of the
Conventions.
(6) If a ship proceeds to sea from a port in Malta without
complying with the conditions determined by the competent
authority in accordance with subregulation (5)( a ), the competent
authority shall immediately alert the competent authorities of all
the other recognised States.
(7) If a ship to which subregulation (5)( b ) applies is to proceed
to a repair yard in Malta, but fails to call into the indicated repair
yard, the competent authority shall immediately alert the competent
authorities of all the other recognised States.
(8) Before denying entry pursuant to circumstances analogous
to those referred to in subregulations (6) and (7), the competent
authority may request consultations with the flag administration of
the ship concerned.
(9) Notwithstanding the provisions of subregulation (5), access
to a port in Malta may be permitted by the competent 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
competent authority have been implemented by the owner, the
operator or the master of the ship to ensure safe entry.
Professional 
profile of 
inspectors.
14. (1) Inspections under these regulations shall be carried out
only by inspectors who fulfil the qualification criteria specified in
Annex VII  Minimum Criteria for Inspectors  to Council Directive
95/21/EC:
Provided that, inspectors not fulfilling these criteria are
also accepted if on the date of the coming into force of these
regulations they were authorised for statutory surveys or port State
control inspections by the competent authority.
(2) When the required professional expertise cannot be
provided by the competent authority, the inspector may be assisted
by any person with the required expertise.
(3) The inspectors carrying out port State control and the
persons assisting them shall have no commercial interest either in
the port of inspection or in the ships inspected, nor shall the
10 _g S.L.234.38 MERCHANT SHIPPING (PORT STATE CONTROL)
inspectors 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 issue of
those certificates to ships.
(4) Each inspector shall carry a personal document in the form
of an identity card issued by the Executive Director indicating that
the inspector is authorised to carry out inspections.
Reports from pilots 
and port 
authorities.
15. (1) Pilots of Malta, engaged in berthing or unberthing
ships or engaged on ships bound for or out of a port in Malta shall
immediately inform the competent 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.
(2) If port authorities, when exercising their normal duties,
learn that a ship within their port has deficiencies which may
prejudice the safety of the ship or poses an unreasonable threat of
harm to the marine environment, such authority shall immediately
inform the competent authority about such deficiencies.
Cooperation and 
exchange of 
information.
16. (1) The port authorities, other relevant authorities and
commercial organisations shall cooperate with the competent
authority in order that the competent authority obtains all relevant
information on ships calling at and leaving Malta.
(2) The competent authority shall set up the necessary structure
for the exchange of information and cooperation with the
competent authorities of other recognised States and shall maintain
the established operational link with the European Commission and
the Sirenac information system set up by the MOU.
(3) The information referred to in subregulation (1) is that
specified in Annex 4 to the MOU and that required to comply with
the provisions of regulation 17.
(4) For the purposes of carrying out the inspections referred to
in regulation 4(2) and regulation 6, inspectors shall consult the
public and private databases relating to ship inspection accessible
through the Equasis information system.
Release of 
information.
17. (1) The competent authority shall take necessary measures
in order to ensure that the information listed in Annex VIII
Publication of Information related to Detentions and Inspections in
Ports of Member States  Part I to Council Directive 95/21/EC
concerning ships which have been detained in, or which are subject
to refusal of access to a port in Malta during the previous month, is
published at least on a monthly basis.
(2) The provisions of this regulation shall be without prejudice
to any provision concerning liability under the laws of Malta.
Data to monitor 
implementation.
18. The competent authority shall provide the European
Commission with the information listed in Annex X  Data provided
in the context of Monitoring Implementation in application of
Article 17  of Council Directive 95/21/EC at the intervals stated
therein.
MERCHANT SHIPPING (PORT STATE CONTROL) _g S.L.234.38 11
Reimbursement of 
costs.
19. (1) In the event that the inspections referred to in
regulations 5 and 6 confirm or reveal deficiencies in relation to the
requirements of a Convention warranting the detention of a ship, all
costs relating to the inspections in any normal accounting period
shall be borne by the owner or the operator of a ship or by his
representative in Malta.
(2) All costs relating to inspections carried out by the
competent authority under the provisions of regulation 13(5) shall
be charged to the owner or operator of the ship.
(3) In the case of detention of a vessel for deficiencies or lack
of valid certificates as laid down in regulation 10 and in Annex VI
Criteria for Detention of a Ship  to Council Directive 95/21/EC, all
costs relating to the detention in port shall be borne by the owner or
operator of the ship.
(4) The detention or stoppage of operation shall not be lifted
until full payment has been made or a sufficient guarantee has been
given for the reimbursement and payment of the costs.
Offences and 
penalties.
20. (1) Where any order for the detention of a ship or for
stoppage of operation of a ship is breached, the owner or operator
of a ship and her master shall each be guilty of an offence and shall
for each offence be liable to a fine ( multa ) not exceeding one
thousand units.
(2) Where a ship -
( a ) fails to proceed to a repair yard as specified in
accordance with regulation 13(1) or breaches any of
the conditions which may have been imposed
thereunder, or
( b ) enters a port in breach of a refusal of access to enter
port,
the owner or operator of the ship and her master shall each be
guilty of an offence and shall for each offence be liable to a fine
( multa ) not exceeding one thousand units.
(3) Any person who obstructs an inspector or any person
assisting the inspector shall be guilty of an offence and shall for
each offence be liable to a fine ( multa ) not exceeding five hundred
units.
