By Peter Kasanda, Tenda Msinjili, Michaela Maranda and Jasper Dymoke, Clyde & Co LLP –
In this update, we review the amendments to the Tanzania Shipping Agencies Act 2017 (the Act), as implemented by the Written Laws (Miscellaneous Amendments) (No.3) Act 2019.
This updater should be read in conjunction with our updater of 11 January 2019 (the Previous Updater) in which we reviewed the Tanzania Shipping Agencies Regulations of 2018. Our Previous Updater can be found here.
Highlights of Amendments to the Act
- The application of the Act has been widened. It will apply to all matters of maritime administration, maritime environment, safety and security and maritime transport services, not just those “at sea ports and inland waterways ports”.
- A number of additional definitions have been added to the Act, extending the mandate of the Tanzania Shipping Agencies Corporation (TASAC). Its command is now more far reaching, covering airports, ports and pipelines.
- The objectives of TASAC have been restricted. For example, TASAC will no longer aim to enter into contractual obligations for the provision of shipping agencies services in order to delegate its own functions. Further, the objective of promoting competition within the shipping agency business has also been removed and substituted with the objective of promoting competition in the maritime transport services. Whether this marks a shift towards state monopolisation of shipping agencies services remains to be seen.
- The exclusivity of TASAC’s mandate to implement clearing and forwarding functions has been extended to cover the import and export of fertilizers, industrial sugar, domestic sugar, edible cooking oil, wheat, oil products, gas, liquidified gas and chemicals or any other liquid related products. By encapsulating “any other liquid related products”, the amendment has certainly broadened the functions of TASAC in this realm, handing it clearing and forwarding control over a number of key industrial goods.
- Further, exclusivity will extend to cover an array of shipping agency functions in relation to a broad collective of goods, including tanker ships and pure car carriers vessels; and minerals, mineral concentrates and any equipment related to minerals and petroleum. The Act also reserves the right for the Minister of Maritime Transport to add further goods to this list.
- Minor amendments regarding the regulation of the maritime sector have seen TASAC’s regulatory control extend to cover prevention of pollution from ships and maritime activities. This appears to be environmentally incentivised.
- Restrictions on the award of shipping agency licences have been tightened to encompass the shareholders of restricted applicants, rather than just the applicants themselves. The restricted applicants are ship owners, ship operators, ship charterers, dry port operators and clearing and forwarding agents.
- The Act has expanded the powers of entry and inspection to include any regulated service, not just the businesses of shipping agencies, as was previously laid down in the Act. This is for the purpose of ensuring compliance with the Act. It is not clear whether notice would be required before such an inspection could be carried out. Based on current drafting, it would appear that notice is not necessary. The Act permits inspection of any records relating to the regulated service.
The amendments to the Act will inevitably see TASAC in greater competition with the private sector but how TASAC’s broadened mandate will be managed in practice is difficult to assess at this stage.
It is vital to note the reforms discussed herein relate to the marine and maritime transport sector only.