Anchoring at Malaysian Waters
Based on our experience, it is quite a common occurrence for vessels to erroneously drop anchor in areas where the Masters believe to be international waters when they are, in actual fact, in Malaysian territorial waters
A case in point would come in the form of vessels anchoring outside the port limits (OPL) in the area around Singapore. Vessels usually anchor at OPL Singapore for purposes of bunkering, ship to ship transfer operations, tank cleaning exercises and so on. It must therefore be highlighted that as soon as the vessel leaves Singapore port limits, she is entering either Malaysian territorial waters or Indonesian territorial waters.
Owners should be cautious when dropping anchor at OPL Singapore and at Malaysian territorial waters, given that the Malaysian authorities have specific requirements / regulations in that regard. We elaborate as follows.
Malaysia Shipping Notice 5/2014: If a vessel is anchoring in a non-anchorage area in Malaysian waters or intends to carry out any activities in the said Shipping Notice, notification should be given to the Malaysia Director of Marine at the nearest port office using the prescribed form and such notification shall be made during normal working hours via email, facsimile or in person not later than 24 hours before the activity is scheduled to commence. If notification is not given to the Malaysia Director of Marine in accordance with the Malaysia Shipping Notice 5/2014, the owner or master or agent of the ship shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding 2 years or to both.
In addition, the Malaysia Marine Department (together with the Maritime Enforcement Agency of Malaysia) has the power to detain any vessel that fails to give notification under the Malaysia Shipping Notice 5/2014.
Out of prudence, and as a matter of good practice, once a vessel is within Malaysian territorial waters and if the Master is not sure whether the location which he intends to drop anchor is a designated anchorage area, he should, as a matter of priority, liaise with the local shipping agent to contact the Malaysia Marine Department to ascertain this point.
Vessel Engaging in Certain Activities in Malaysian Waters
In addition to Malaysia Shipping Notice 5/2014, Section 491B(1) of the Merchant Shipping Ordinance 1952 (“MSO”) prescribes that when a vessel undertakes certain activities in Malaysian waters, the vessel shall be required to give notification to the Malaysia Director of Marine.
The activities listed are as follows:
b. mining, including exploration and exploitation;
c. cable and pipe laying;
d. marine construction, including the construction of jetties and wharves;
e. dumping of any material;
f. sports, leisure or recreational activity;
h. cleaning, including cleaning of cargo tanks;
i. transportation, discharging or loading of wastes;
k. ship-to-ship activity; or
l. any other activity as determined by the Director of Marine.
By Malaysia Shipping Notice 5/2014, the following activities were also listed:
m. laying up;
n. welding or other hot works;
o. anchoring in non-anchorage areas; and
p. any form of unwater operations
If a vessel intends to undertake any of the activities mentioned above and fails to give notification to the Malaysia Director of Marine, this will constitute an infringement of Section 491B(1) of the MSO and the Malaysia Marine Department (together with the Maritime Enforcement Agency of Malaysia) has the power to detain such vessel.
Failure to comply with Section 491B(1) of the MSO shall cause the owner, master or agent of the ship to be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding 2 years or to both.
In our experience, once a vessel has been detained for infringement of Section 491B(1) of the MSO, security is requested by way of a local bank guarantee of up to MYR100,000.00. Once security is furnished, the vessel will be released. However, the prosecution will continue for the offence committed. It is likely that either a compound fine will be offered or a fine imposed.
The above content is for general information purposes only. It is not and does not constitute nor is it intended to provide or replace legal advice, a legal opinion or any information intended to address specific matters relevant to you or concerning individual situations. Should you require specific legal advice, please do not hesitate to contact the Partner listed above or your regular contact at the Firm. Copyright of TS Oon & Partners.