With a pending constitutional challenge threatening to delegitimise many of the territory’s maritime laws, the House of Assembly took a step towards ensuring their continued existence this week.
On Monday, legislators introduced and read the 2016 Validation (Merchant Shipping (Adoption of United Kingdom Enactments) Order 2005) Act, which, if passed at a subsequent session, presumablywould put the HOA’s stamp of approval on a host of marine regulations currently at risk.
| Editor’s note: This article originally appeared in the Dec. 22, 2017 edition. |
Then-Governor Tom Macan passed the original 2005 Merchant Shipping Order, which adopted more than 100 United Kingdom maritime laws with the stroke of a pen.
The legislation, which helped the territory gain the international status needed to register larger ships, has come under fire in court recently because it didn’t receive direct approval from HOA at the time.
Background
The reason for government’s worry likelytraces back to January 2013, when the 178-foot superyacht Parsifal III slammed into Carrot Shoal, allegedly spilling some 30 tonnes of lead shot over the reef.
Six months after the incident, Parsifal III’s owners’ lawyers filed a claim to limit their liability under section 396 of the VI Merchant Shipping Act, 2001.
For a ship of Parsifal III’s size, the act sets the liability limit for an incident not involving loss of life or personal injury at 167,000 Special Drawing Rights — roughly $225,000 by current conversion rates.
Mr. Macan was able to pass such a significant adjustment to the VI Merchant Shipping Act due to its 464th section, which allows the governor, in conjunction with the UK secretary of state for transport, to enact any related UK legislation, even if it modifies parts of the act.
In 2014, to combat that increase in liability, Parsifal III’s lawyers challenged the constitutionality of section 464. At a trial earlier this month, they argued that the section undermined the territory’s separation of powers, vesting government’s executive branch with the power to write legislation, something they said should reside solely with the legislature.
Attorney General Baba Aziz countered that it was legislators who originally passed the Shipping Act, which included section 464, and that they could repeal it at any time.
Because they had not done so, he argued, they have given approval to all subsequent legislation passed under the auspices of section 464, like the 2005 order.
Consequences
What makes the case potentially dicey for government is that should Parsifal III’s lawyers win, the ruling would set a strong precedent that none of the 100-plus pieces of UK legislation passed with the Merchant Shipping Order need to be followed because their passage was unconstitutional in the first place.
This could have serious consequences, according to officials in the industry.
“The Marine Shipping Order, 2005 is the backbone of legislation from which we do all our enforcement,” said Captain Raman Bala, acting director of the VI Shipping Registry, adding, “We need those laws.”
High Court Justice Vicki-Ann Ellis said she expects to come to a judgment in the Parsifal III case by early January.
However, lawmakers could theoretically give second and third readings to the 2016 validation legislation by then, ensuring all of those maritime regulations need to be followed going forward, regardless of the case’s outcome.
Child maintenance
In addition to the maritime legislation, lawmakers introduced several other bills at Monday’s sitting, addressing a variety of topics.
Health and Social Development Minister Ronnie Skelton (R-at large) introduced the 2016 Child Maintenance and Access Act.
While the bill has not been made public yet, child maintenance was mentioned in the 2013 and 2016 speeches from the Throne.
“The new law will allow the courts to order that funds for the maintenance of a child be taken directly from the earnings of a person, in accordance with the terms of a maintenance order,” Governor John Duncan said in this year’s speech.
Other laws
Mr. Skelton also introduced the 2016 Maintenance Orders (Facilities for Enforcement) Act and the 2016 Magistrate’s Code of Procedure (Amendment) Act. Neither has been Gazetted.
Premier Dr. Orlando Smith (R-at large) introduced the 2016 Financial Services Commission (Amendment) Act; the 2016 Legal Profession (Amendment) (No. 3) Act; and the 2016 International Tax Authority Act. They have not been Gazetted yet.
{fcomment}