IMSML Website Article 24/2024: AMENDMENT TO REQUIREMENT OF MARINE RISK ASSESSMENT (MRA) FOR SHIPS ACTIVITIES IN MALAYSIAN WATERS

Today’s article is about ‘Marine Risk Assessment’ for ships operating in Malaysian Waters. MSN 03/2024 requires such risk assessment to be carried out when any of the activities listed under the Merchant Shipping Ordinance 1952, Section 491B(1) are carried out.

Part A - Background: The Merchant Shipping Ordinance 1952, Section 491B(1) Listed Statutory Activities

Anyone intending to carry out marine activities have to give notice to the Director of Marine under Section 491B(1). Listed in Sub-Section (1) activities that includes matters such as:

[1] Dredging, see Section 491B(1)(a);

[2] Mining (including exploration and exploitation), see Section 491B(1)(b);

[3] cable and pipe laying, see Section 491B(1)(c);

[4] marine construction (including the construction of jetties and wharves), see Section 491B(1)(d);

[5] dumping of any material, see Section 491B(1)(e);

[6] sports, leisure or recreational activity, see Section 491B(1)(f);

[7] survey, see Section 491B(1)(g);

[8] cleaning (including cleaning of cargo tanks), see Section 491B(1(h);

[9] transportation, discharging or loading of wastes, see Section 491B(1)(i);

[10] pilotage, see Section 491B(1)(j);

[11] ship-to-ship activity, see Section 491B(1)(k); or

[12] any other activity as determined by the Director of Marine, see Section 491B(1)(l).

Section 491B(2) does provide exceptions provides two exceptions where notification to the Director of Marine is not required for the following:

[1] Any boat licensed under Section 475, see Section 491B(2)(a);

Note, Anyone who desires a boat licence can apply at the nearest port's Port Officer under Section 475. The boat will be examined to determine whether it is seaworthy and proper for the purposes of for which the licence is sought, see Section 475(1). The Port Officer will determine the number of passengers that could be carried and the amount of cargo it can carry, see Section 475(2). The following are required by Section 475(3) to be entered on the register of licences:

[a] Name and residence of the owner as well as master, see Section 475(3)(a);

[b] Dimensions of the boat (length, breadth, depth and gross tonnage), see Section 475(3)(b);

[c] Number of crew employed, see Section 475(3)(c);

[4] For a passenger boat, in addition to the crew, the numbers of passengers which can be carried, see Section 475(3)(d);

[5] For a cargo boat, when empty of cargo, the number of persons that could be carried in addition to crew, see Section 475(3)(e);

[6] The number of the boat by which it is identified in the register, see Section 475(3)(f).

[2] Any ship that is registered under this Ordinance and is solely engaged or intended to be engaged in sports, leisure or recreational activity, see Section 491B(2)(b);

Note, Section 491B(2)(b) has to be distinguished from Section 491B(1)(f). The former refers to ships that are used only for the purposes of sports, leisure or recreational activity. This stems from usage of the word 'solely' in Section 491B(2)(b).

When the Director of Marine receives a Section 491B(1) notification, he/she may impose such conditions as he/she thinks fit, see Section 491B(3). That activity can be subject to prescribed fees for anything that the Director of Marine permits to be done, see Section 491B(3). Should any person contravene the provisions of Section 491B, it shall amount to a criminal offence. Upon conviction that person is liable to a maximum fine of RM100,000, or maximum imprisonment of 2 years, or both, see Section 491B(4).

Part B - The Details of MSN 03/2024

MSN 03/2024 takes effect from 8 January 2024, see Para [6]. In doing so, it revokes MSN 02/2019, see Para [5]. Under MSN 03/2024, the Director of Marine will impose an obligation to carry out a ‘marine risk assessment’ of activities listed in the Merchant Shipping Ordinance 1952, Section 491B(1), see Para [1]. ‘Complete documentation’ has to accompany the ‘Application for Notification of Marine Activities’ submitted to the Director of Marine, see Para [2].

At least one MSN 03/2024 activity is identical to the activities found in Section 491B(1). For example, ‘cable and pipe laying’, see Para [3][b]. However, other MSN 03/2024 activities do not correspond exactly to the way provisions are expressly drafted in Section 491B(1). For example, according to Para [3][a], ‘Marine risk Assessment’ are limited to ‘mining, including exploration and exploitation of oil and gas resources’, see Para [3][a]. It is somewhat similar to Section 491B(1)(b), but not the same. There is no reference to ‘oil and gas resources’ in Section 491(1)(b).

Another example of a slight difference is Para [3][c] which lists down ‘construction of new port, wharf and jetty within the main navigational channel’. Section 491B(1)(d) does mention construction of wharves and jetties, but makes no reference to the construction of a ‘new port’. Further, Section 491B(1)(d) is not qualified by the phrase ‘within the main navigation channel’.

So what was the intention of the drafters of MSN 03/2024. If I was being generous, I would say that perhaps these additions could be covered under ‘Any other activity as determined by the Director of Marine’, see Para [3][e]. But I am a stickler for good drafting and I would have invoked this power upfront and make it known to any reader of the notices that these are additions are extensions of the ‘omnibus’ power of the Director of Marine. At least, Para [3][e] makes it clear that 2 activities fall under this ‘omnibus’ power:

[i] Lay-up area beyond port limits, see Para [3][e][i];

Note, this activity is not listed expressly in Section 491B(1).

[ii] De-Commissioning of submarine cable and pipelines, see Para [3][e][ii].

Note, that Section 491B(1)(c) merely refers to cable and pipe laying. It does not refer to the process of ‘de-commissioning’. But as ‘de-commissioning’ was invoked under the ‘omnibus’ power, this would be fine.

Part C - Details of Appendix [1]

This part of the article aims to provide highlights of Appendix 1, and is not intended to be a deep dive into the procedures. For the latest procedures on making this ‘Marine Risk Assessment’, please refer to Appendix 1 of MSN 03/2024 at https://www.marine.gov.my/jlm/wp-content/uploads/2024/01/NPM032024-TATACARA-PERMOHONAN-AKTIVITI-MARIN-YANG-MELIBATKAN-PENILAIAN-RISIKO-MARIN-DAN-KEBENARAN-OPERASI.pdf

Any approval given for the marine risk assessment by MARDEP, will be for a maximum period of 3 years, see Para [7.1].

Appendix 1 highlights certain activities in these areas which raise concerns and should be looked into, see Para [2.2][v]:

[1] ammunition disposal areas and dumping grounds;

[2] traditional fishing grounds and ‘caged fish’, ie aquaculture;

[3] navigational equipment, eg light houses, buoys etc;

[4] shipwrecks;

[5] underwater cables and pipelines;

[6] protected areas and areas designated for tourism, as well as coral reefs.

Any applicant will have to ensure that the maritime activity is in compliance with national laws, international conventions and regulatory administration, see Para [5.1]. The requisite statutory certificates and insurance documents for the ship would have to be submitted with the application to MARDEP, see Para [5.1]. The evaluation will be conducted using the Memorandum of Understanding on Port State Control in the Asia-Pacific Region (APCIS), see Para [5.1].

If companies operating in the maritime sector do not have the requisite expertise to conduct the marine risk assessment, there is always the option of hiring a consultant who is recognised by MARDEP to conduct the evaluation, see Para [9.1]. Any report which is written, must be done in the format listed in Para [10.0].

An interesting observation is Para [11.0] on the documents that have to accompany the marine risk assessment. This shows that MARDEP has one foot in the digital world, but the other foot still very much remains in the non-digital world. For example, two hard copies of the marine risk assessment has to be submitted, see Para [11.1][ii]. Even when a soft copy of a document is required, eg 1 copy of the marine risk assessment in PDF, it is to be submitted in a pendrive / flashdrive, see Para Para [11.1][iii]. A soft copy of the working paper in PDF format also has to be submitted in a pendrive / flashdrive, see Para [11.1][iv]. In an era of network connectivity, this is so ‘old school’ and belongs to yesterday’s digital world.

The saga of operating in a hard copy world continues with Para [13.0]. Proof of delivery of the marine risk assessment documents is the date and acknowledgement of receipt stamped by the Post Office, see Para [13.1]. Alternatively, if the documents are delivered ‘By Hand’, the ‘received date’ stamp on the document if the official date of the receipt of the document by MARDEP, see Para [13.2].

A meeting to discuss technical aspects of the projects subject to the marine risk assessment, will be conducted by the MRA Technical Evaluation Committee, see Para [14.1]. The Committee is headed by the Director of Marine, MARDEP’s Deputy Director, and the heads of various departments, see Para [14.2]. Three invited members of the Committee. Will be recruited from relevant ministries, agencies and port authorities, see Para [14.3]. These additional members will only be invited if the relevant bodies they represent have an interest in the marine risk assessment under evaluation, see Para [14.4]. The quorum for this Committee to function is five persons, ie the Chairman and at least four committee members, see Para [15.1].

It is mandatory for the applicant for the project subject to the maritime risk assessment and its consultant have to be present at the evaluation meeting, see Para [15.1]. The decision of the Committee is final (ie muktamad), see Para [16.1]. The applicant will be notified via an official letter within 3 working days of the date of the Committee meeting, see Para [16.1].

Appendix 1 concludes with General Guidance for Marine Risk Assessment. The areas include:

[1] Baseline study areas;

[2] Safety of navigation;

[3] Protection of the marine environment;

[4] Maritime security;

[5] Hazard Identification (HAZID);

[6] Risk Management Tools;

Note, these include:

[a] Quantitative Risk Analysis;

[b] Qualitative Risk Management;

[c] Simplified IALA Risk Assessment Tools.

[7] Risk Control and Mitigation Measures;

[8] Summary of findings and Recommendations.

Thank you for reading IMSML Website Article 24/2024

Signing-off for today,

Dr Irwin Ooi Ui Joo, LL.B(Hons.)(Glamorgan); LL.M (Cardiff); Ph.D (Cardiff); CMILT

Professor of Maritime and Transport Law

Head of the Centre for Advocacy and Dispute Resolution

Faculty of Law

Universiti Teknologi MARA Shah Alam

Selangor, Malaysia

Thursday,  21 March 2024

Note that I am the corresponding author for the IMSML Website Articles. My official email address is: uijoo310@uitm.edu.my