ADVOKS GLOBAL · KENYA
Merchant Shipping Act
179. Conduct endangering ships, persons, etc.
Edition: 2023-12-11 · In force
179. Conduct endangering ships, persons, etc.
(1)This section applies to—(a)the master of, or any seafarer employed in, a Kenyan ship; and(b)the master of, or any seafarer employed in, a ship which—(i)is a foreign ship; and(ii)is in a port in Kenya or within Kenyan waters while proceeding to or from any such port.(2)Where a person, to whom this section applies, while on board a ship or in its immediate vicinity—(a)does any act which causes or is likely to cause—(i)the loss or destruction of or serious damage to the ship or its machinery, navigational equipment or safety equipment;(ii)the loss or destruction of or serious damage to any other ship or any structure; or(iii)the death of or serious injury to any person;(b)omits to do anything required—(i)to preserve the ship or its machinery, navigational equipment or safety equipment from being lost, destroyed or seriously damaged;(ii)to preserve any person on board the ship from death or serious injury; or(iii)to prevent the ship from causing the loss or destruction of, or serious damage to, any other ship or any structure, or the death of or serious injury to any person not on board his ship,and either of the conditions specified in subsection (3) is satisfied with respect to that act or omission, he, subject to subsections (6) and (7), commits an offence.(3)The conditions referred to in subsection (2) are—(a)that the act or omission was deliberate or amounted to a breach or neglect of duty; or(b)that the master or seafarer in question was under the influence of drink or a drug at the time of the act or omission.(4)Where a person to whom this section applies—(a)discharges any of his duties, or performs any other function in relation to the operation of a ship or its machinery or equipment, in such a manner as to cause, or to be likely to cause, any such loss, destruction, death or injury as is mentioned in subsection (2)(a); or(b)fails to discharge my of his duties, or to perform any such function, properly to such an extent as to cause, or to be likely to cause, any of those things,he, subject to subsections (6) and (7), commits an offence.(5)A person who commits an offence under this section shall be, liable upon conviction, to imprisonment for a term not exceeding two years, or to a fine not exceeding one hundred and fifty thousand shillings, or both.(6)In proceedings for an offence under this section, it shall be a defence to prove—(a)in the case of an offence under subsection (2) where the act or omission alleged against the accused constituted a breach or neglect of duty, that the accused took all reasonable steps to discharge that duty;(b)in the case of an offence under subsection (2) that at the time of the act or omission alleged against the accused, he was under the influence of a drug taken by him for medical purposes and either that he took it on medical advice and complied with any directions given as part of that advice or that he had no reason to believe that the drug might have the influence it had;(c)in the case of an offence under subsection (4), that the accused took all reasonable precautions and exercised all due diligence to avoid committing the offence;(d)in the case of an offence under either of subsection (2) or (4)—(i)that he could have avoided committing the offence only by disobeying a lawful command; or(ii)that in all the circumstances the loss, destruction, damage, death or injury in question, or, as the case may be, the likelihood of its being caused, either could not reasonably have been foreseen by the accused or could not reasonably have been avoided by him.(7)In the application of this section to any person falling within subsection (1)(b), subsections (2) and (4) shall have effect as if subsection (2)(a)(i) and (b)(i) were omitted.(8)In this section—“breach or neglect of duty”, except in relation to a master, includes any disobedience to a lawful command;“duty” —(a)in relation to a master or seafarer, means any duty falling to be discharged by him in his capacity as such;(b)in relation to a master, includes his duty with respect to the good management of his ship and his duty with respect to the safety of operation of his ship, its machinery and equipment; and“structure” means any fixed or movable structure, of whatever description, other than a ship.