Port Notice 3/2022

On the 25^th March 2022, the Ports and Yachting Directorate within Transport Malta issued Port Notice 3/2022 entitled ‘Sanctions and Restrictive Measures’, reminding Ship Agents, Bunker Operators, Maritime Service Providers and Terminal Operators of the applicable sanctions and restrictive measures in force and sought to bring to their attention the latest measures adopted by the Council of the European Union in response to the actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.

The port notice seeks to remind the relevant persons to undertake the necessary due diligence to ensure that any vessels intending to call at Maltese ports and/or territorial waters and anchorages are not subject, whether directly or indirectly to any sanctions. Due diligence is also expected to be carried out in relation to the importation, directly or indirectly of cargo that may fall foul of existing sanctions. Due diligence is expected to be carried out even in relation to vessels receiving services outside Maltese territorial waters.

The Port Notice informs relevant persons to ensure that they have declared that they carried out due diligence on any vessel expected to enter Malta, prior to the submission of a pre-arrival notification, through the national single window system, tmSW, in the ‘General Remarks’ section. As to services provided outside territorial waters, service providers are expected to send a similar declaration to Transport Malta to inform them that due diligence has carried out.

The Port Notice also strongly advises all concerned to regularly consult the Sanctions Monitoring Boards website for updates, to comply at all times with their obligations and to extend full cooperation to ensure the effective implementation and enforcement of the sanctions.

Sanctions Monitoring Board’s FAQ

On the 14^th April 2022, the Maltese Sanctions Monitoring Board, published a set of guidelines answering Frequently Asked Questions (the ‘FAQs’) regarding the ban on Russian-Flagged vessels from entering European Ports. On the 17^th April and again on the 27^th April, these were updated further.

The guidance discusses Council Regulation (EU) 2022/576 (the ‘Regulation’) which came into effect on 8 April 2022 and amongst other things, imposes a prohibition of access to ports of vessels registered under the flag of Russia.

In accordance with the said Regulation, it shall be prohibited to provide access after the 16 April 2022 into ports in the territory of the European Union to any vessel registered under the flag of Russia. Furthermore, vessels that have reflagged from under the Russian flag or have changed their registration to the flag or register of another State after 24 February 2022, will also be subject to these restrictions.

Under the Regulation, a vessel means:

1. a ship falling within the scope of the relevant international conventions;
2. a yacht, of 15 metres in length or more, which does not carry cargo and carrying no more than 12 passengers; or
3. recreational craft or personal watercraft as defined in Directive 2013/53/EU of the European Parliament and of the Council.

Exceptions to the Prohibition: Necessary Supplies for the Union and Humanitarian Purposes

The restrictions allow for derogations to be issued on a case-by-case basis, prior to the vessel being allowed entry into a port. The derogation will allow for vessels that would otherwise be prohibited, to be authorised entry into Union Ports if they are carrying certain cargo considered vital or necessary for the Union or require entry into ports for humanitarian purposes.

Interestingly, a derogation to the prohibitions can also be applied by competent authorities, to authorise a vessel’s access to a port for the purchase, import or transport into the Union of natural gas and oil, including refined petroleum products, titanium, aluminium, copper, nickel, palladium and iron ore, as well as certain chemicals and products listed in Annex XXIV of the regulation.

A derogation also applies to the purchase, import or transport of pharmaceutical, medical, agricultural and food products, including wheat and fertilisers; for humanitarian purposes; for the transport of nuclear fuel and other good strictly necessary of the functioning of civil nuclear capabilities or the purchase, import or transport of coal and other solid fossil fuels listed in Annex XXII until 10 August 2022.

Nonetheless, the FAQs make it clear that there will not be a blanket derogation on the type of vessel or cargo carried, and each derogation will be assessed on a case-by-case basis, per vessel and prior to the vessel being allowed entry into a port. Derogations will be issued at the discretion of the Sanctions Monitoring Board.

Furthermore, under the Regulations, the restrictions do not apply to vessels in need of assistance that are seeking a place of refuge, an emergency port call for reasons related to maritime safety or require entry into port for reasons related to saving life at sea. The guidelines clarified that an emergency would include “…incidents or accidents creating a risk to human life, threats to the safety of navigation, serious harm or threat to the marine environment through pollution by hazardous substance”.

The FAQs make clear that should a case for an exemption from the prohibition on port entry arise, and should the vessel be permitted entry into Maltese Ports, the port authority i.e. Transport Malta must notify the Sanctions Monitoring Board that the exemption has been granted. Any derogation authorised by a member state must subsequently be reported to the other Member States and the Commission within two weeks of the authorisation.

The application of the prohibition in practice

The prohibition relates to the above-mentioned sanctioned vessels and are applicable to such vessels’ entry into port. In accordance with the guidelines issued by the Sanctions Monitoring Board, it was clarified that sanctioned vessels would still be permitted to traverse through Maltese territorial waters. The right of innocent passage under the United Nations Convention on the Law of the Sea will remain untouched.

Furthermore, it was clarified that such vessels could still receive provisioning and bunkers inside territorial waters provided this is done at anchorage and the vessel does not enter into any port.

Crewing

Crew members on board sanctioned vessels could take shore leave as provided for under the 2006 Maritime Labour Convention and other international treaties, however, an alternative conveyance to shore must be carried out. The FAQs clarify that Russian crew do not automatically fall within the scope of the Regulations and it is only if they are Designated Persons under the Sanctions that the application of the Regulations will extend to them.

Should a crew member onboard a vessel subject to sanction wish to leave the vessel or no longer wishes to work on board that vessel, alternative conveyance to shore must thus be arranged, as the vessel will not be allowed entry into port except in cases of emergency.

Power to Detain

The Regulation gives authorities the power to detain Russian flagged vessels already in Maltese Ports and direct them out of Maltese Ports. This will be done on a case-by-case basis, following discussions with the port authorities, Customs, Immigration Police and the Sanctions Monitoring Board. Should a decision be taken to detain a vessel, this will be held at its berth, or moved to an alternative berth/anchorage in order not to disrupt port operations. Seafarers detained onboard Russian-flagged vessels will continue to be permitted access to shore leave or be repatriated. Seafarers will also be permitted to join the vessel if replacing crew to ensure compliance with manning requirements.

How can we help?

Should you require any further information or assistance on the matter, please do not hesitate to reach out to us personally on martina.farrugia@fenechlaw.com

©Fenech & Fenech Advocates 2022