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Session 2002 - 03
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Marine Safety Bill


 

These notes refer to the Marine Safety Bill
as brought from the House of Commons on 19th May 2003 [HL Bill 67]

MARINE SAFETY BILL

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EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes relate to the Marine Safety Bill as brought from the House of Commons on 19th May 2003. They have been provided by the Department for Transport, with the consent of the Lord Donaldson of Lymington, the Peer in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it.

2.     The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

3.     In addition to making new provision the Bill consolidates and replaces certain sections of the Merchant Shipping Act 1995 ("the 1995 Act").

SUMMARY

4.     The purpose of this Bill is:

    First, to confer powers on the Secretary of State to give a direction to a person in charge of land next to, or accessible from, United Kingdom waters or to a person in charge of facilities used by ships such as berths, wharves and jetties. The direction can require the person in charge to allow persons to land and/or to make facilities under their control available, with the object of reducing or preventing risks to safety and risks of pollution; and Secondly, to allow fire authorities to make a charge for fire-fighting services at sea outside the area of every fire authority.

THE BILL

Commentary on clauses

Clause 1: Safety directions

5.     The clause inserts a new section 108A of, and Schedule 3A to, the 1995 Act. Schedule 3A is set out in Schedule 1 to the Bill. The clause also provides that a direction given under Schedule 3A takes precedence over any other provision of the 1995 Act.Clause 2: Fire authorities: power to charge

6.     The clause amends section 3 of the Fire Services Act 1947 which is concerned with supplementary powers of fire authorities. Subsection (2) of the clause amends section 3(1)(e) of the 1947 Act to put beyond doubt that a fire authority may use their brigade for purposes other than fire-fighting in their area, in the area of another fire authority area or at sea. Subsection (3) amends that section to include a provision which gives fire authorities in England and Wales and the Isles of Scilly power to recover costs they incur in fighting fires at sea outside the area of any fire authority. The fire could be beyond the limits of the territorial sea and might be on a ship or an offshore installation (such as an oil rig) or on other structures, such as a pontoon.

Clause 3: amendments and repeals

7.     Clause 3 introduces Schedules 2 (minor and consequential amendments) and 3 (repeals).

Schedule 1: Safety directions

8.     Schedule 1 inserts Schedule 3A (safety directions) into the 1995 Act.

Paragraph 1

9.     The existing power in section 137 of the 1995 Act to make directions for purposes relating to oil pollution is replaced by paragraph 1 and extended to allow directions to be given in cases in which there is a risk to safety (defined in paragraph 22(1) of Schedule 1 to mean a risk to the safety of persons, property or anything navigating in or using United Kingdom waters). While in almost all cases where the Secretary of State may want to exercise his powers of direction there is at least some pollution risk (e.g. from the fuel oil used to run the ship's engines - known as "bunker oil" or "bunkers"), the Secretary of State may wish to exercise his powers primarily for safety purposes, or to exercise them (particularly as respects the compulsory use of land and facilities) in ways which might not be necessary or appropriate solely for pollution prevention purposes.

Paragraph 2

10.     This paragraph confers a power on the Secretary of State to give directions to landowners to make land or certain facilities used by ships (e.g. berths, wharves, jetties etc.) available in order to reduce or prevent risks of pollution and risks to safety. The power is where an accident to or in a ship has created a risk to the safety of persons, property or anything navigating in or using United Kingdom waters, or a risk of pollution by a hazardous substance.

11.     Although the powers under sections 100C and 137 of the 1995 (which are to be replaced) enable the Secretary of State to direct the action to be taken by a ship where there is danger of pollution, or of harm to people and property, at present he has no power to require land or facilities such as berths, wharves and jetties to be made available in cases where there is a safety or pollution risk. It may, for instance, be necessary or appropriate for a ship in danger to make use of facilities for berthing and repair, or for the landing of passengers or discharge of potentially polluting cargoes. At present, any such use is dependent on the agreement of the harbour authority or landowner, and in at least one case where such facilities were urgently required that agreement has not been forthcoming.

12.     In his report on the Sea Empress disaster at Milford Haven, ("Review of Salvage and Intervention and their Command and Control", published in 1999) Lord Donaldson recommended that the Secretary of State be given power to give directions to riparian owners and managers of facilities such as berths, wharves and jetties. In so far as these provisions relate to the prevention or reduction of pollution, the proposals set out below will implement that recommendation.

Paragraph 3

13.     This paragraph enables the Secretary of State to give directions requiring that a ship is moved or not moved from or to a specified place, or over a specified route, or that it is removed from United Kingdom waters.

Paragraph 4

14.     This paragraph confers a power on the Secretary of State to take such action as he thinks necessary or expedient instead of giving a direction (for example, authorising entry onto land or the use of facilities).

Paragraphs 5-9

15.     These paragraphs deal with enforcement of directions. Failure to comply with a direction is a criminal offence. Proceedings cannot be brought without the consent of the Attorney General or Secretary of State.

Paragraph 10

16.     The Secretary of State can vary or cancel (revoke) a direction and is obliged to do so, as soon as reasonably practicable, once a direction or part of a direction is no longer necessary for the purpose for which it was given. The person to whom the direction is given has the opportunity to make representations about varying or revoking the direction, which the Secretary of State will then consider.

Paragraphs 11 and 12

17.     Where provisions in the Companies Act 1985 about service of documents on companies do not apply a direction can be served on a company by the Secretary of State in the manner he thinks most suitable. For that purpose, a person acting on behalf of the Secretary of State can board a ship or enter land or premises.

Paragraph 13

18.     In cases in which it is reasonably practicable the Secretary of State is required to give a person in control of land, to whom he proposes to give a direction under paragraph 2, the opportunity to make representations. The Secretary of State will consider the representations before deciding whether or not to give the direction.

Paragraph 14

19.     This paragraph provides for the payment of compensation by the Secretary of State to any person who has suffered unreasonable loss or damage as a result of any remedial action taken in accordance with a direction.

Paragraph 15

20.     The purpose behind this provision on cost recovery is to ensure that the person in charge of land and premises to which directions under paragraph 2 relate, or in relation to which action is taken by the Secretary of State under paragraph 4, will be properly compensated. It is necessary to provide compensation in order to comply with the requirements of Article 1 of Protocol 1 of the European Convention on Human Rights. Where there is a direction under paragraph 2 the owner of the ship is liable to the person to whom the direction is given in respect of the costs of complying with the direction and to the person in charge of the land or premises in a case in which action is taken under paragraph 4.

21.     The Secretary of State is given power to make payments on account of sums recoverable from the owner of the ship to persons who have been given directions or where action has been taken under paragraph 4.

22.     The opportunity is also being taken to ensure that the Secretary of State is in a better position than at present to recover costs as respects any action he takes in relation to a direction (sub-paragraphs (5) and (6)).

Paragraph 16

23.     This paragraph deals with the jurisdiction of the courts to hear and determine claims for unreasonable loss or damage and the recovery of expenses.

Paragraphs 17-21

24.     These paragraphs specify the ships in respect of which directions may be given in relation to a risk of pollution or a risk to safety.

Paragraph 22

25.     This paragraph sets out the definitions of various terms used in the Schedule.Schedule 2: Minor and consequential amendments

Paragraph 1

26.     The paragraph amends the Dangerous Vessels Act 1985 to provide that directions under Schedule 3A of the 1995 Act as inserted by this Bill will take precedence over a direction given by a harbour master to a dangerous vessel under section 1 of that Act.

Paragraph 2

27.     The paragraph repeals provisions in the 1995 Act which are re-enacted in this Bill.

SUMMARY OF THE REGULATORY APPRAISAL

28.     In the rare instances in which the power is used there will be some costs from interruption of business if a facility is put out of commercial use for a period of time, because it is occupied by a ship directed to it under these powers. The scale of the costs is likely to vary greatly depending on the size of the facility and the extent to which it is affected. Appropriate arrangements are made for payment of compensation where the powers are used.

29.     Therefore, there should be no additional burdens falling on the owners of these facilities as a result of these proposals. These proposals have no particular bearing on small businesses and costs, if any, on them are not expected to be disproportionate.

30.     The owner of a ship that is the subject of directions requiring land or facilities to be made available is to be liable to the owner of the land or facilities for the costs reasonably incurred by the owner in making them available while the directions are in force. The Secretary of State is to have the power to pay to the owner of the land or facilities all or part of any sum liable to be paid to him by the ship owner in accordance with his liability, and in respect of any sum so paid the Secretary of State is to acquire by subrogation any rights which the owner of the facility has against the ship owner. Jurisdiction to hear and determine any claim arising is to lie with the Admiralty jurisdiction of the High Court and the Court of Session.

EUROPEAN CONVENTION ON HUMAN RIGHTS

31.     As referred to above, the Bill raises questions of compatibility with Article 1 of Protocol 1 of the European Convention on Human Rights (protection of property). The ability of the Secretary of State to direct owners of "possessions" is not necessarily consistent with the right to peaceful enjoyment of possessions. On the other hand, the right will be exercised in the general interest (see the derogation in Article 1 of Protocol 1) and the Bill contains procedures for the recovery of costs incurred in complying with safety directions or in situations in which the Secretary of State has taken action in lieu of a direction. On balance, it is considered that the Bill is compatible with the European Convention on Human Rights.

 
 
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Prepared: 20 May 2003