Memorandum from UK Harbour Masters' Association
(DMNB 13)
BACKGROUND
The UK Harbour Masters' Association (UKHMA)
is the accepted abbreviation of The Harbour Masters' Association
of the United Kingdom, the Channel Islands and the Isle of Man.
Formed in May 1993, the UKHMA is a professional
association that now consists of almost 200 Full Members from
ports throughout the United Kingdom. Membership consists of harbour
masters from ports large and small, publicly and privately owned,
and represents a unique source of up-to-date, hands-on experience
in a range of port and maritime operations.
The principal harbour master—or any person
who in the normal course of their duties is expected to deputise
for the principal harbour master—of any statutory harbour
in the UK, Channel Islands and the Isle of Man is eligible to
become a Full Member of the UKHMA.
The objectives of the Association are to:
— encourage the safe and efficient
conduct of marine operations in ports;
— promote the interests and professional
competence of harbour masters; and
— represent by way of professional
advice and support the views of harbour masters to governmental
bodies, to organisations representative of port authorities and
other persons within the United Kingdom and abroad concerned with
marine operations, both within and near port waters
The rules of the Association prohibit it from
acting as a trade union.
OVERALL COMMENT
In principle, the UK Harbour Masters' Association
(UKHMA) supports the principles set out in the draft Bill and
in particular any legislation that seeks to reinforce the Port
Marine Safety Code and to improve the safety of marine navigation.
However, there is detail contained in the individual
proposals which warrant comment, as set out below.
DETAILED COMMENT
(with reference to Questions posed in Section
6 of the Draft document)
(REF 6.1)
Is the proposal for harbour directions properly
targeted, with proportionate enforcement provisions?
The UKHMA supports this proposal in principle.
However, it believes that the following needs consideration:
— The definition of "ship"
in the 1964 Act and the attendant uncertainties stemming from
R v Goodwin in the Court of Appeal (2005) raises doubts
about whether the section on Harbour Directions would be
applicable to all types of craft for which General Direction might
by be required.
The UKHMA is of the strong belief that it is
essential that the power of General Direction may be applied to
all craft, irrespective of size or type. (See Annex I)
— s40A(1): Since (1)(a) already
confers power to give directions to vessels "within the harbour",
it is assumed that the power in (1)(b) for vessels "Entering
or leaving the harbour" relates to vessels outside the harbour
but in the act of entering or leaving. Is it legitimate to issue
directions for "movement" that apply to vessels outside
the harbour authority's statutory jurisdiction in these circumstances?
Do you agree that there should be a power to confer
the ability to make General Directions on Harbour Authorities?
The UKHMA agrees with this proposal. As a statutory
harbour authority, it is a far more flexible and efficient way
to exercise regulatory controls than byelaws. The existing mechanism
for the revision of byelaws is cumbersome and time consuming.
Do you agree that it is preferable to confer the
ability upon application, rather than providing that the power
is conferred on all Harbour Authorities automatically?
The UKHMA is not minded to object in either
way, provided that any such blanket automatic powers should not
conflict with those Harbour Authorities which successfully operate
with existing powers of General Direction.
For example, the proposed consultation process
may differ significantly from the consultation process laid down
for existing powers. (see powers of Milford Haven Harbour Authority
as set out in Annexe II)
Do you agree with the scope and procedures for
the General Directions power which harbour authorities would have?
In general terms, the UKHMA agrees with this
proposal.
However, it is not clear whether, with regard
to 40B(2), users would have any right of appeal against a direction
that they considered had not been properly consulted upon.
Also, with regard to publishing a notice in
a newspaper specialising in shipping news (s40B(6)), the UKHMA
believes that this is too prescriptive and other media may offer
more appropriate latitude in the promulgation of the announcement,
eg local newspapers or Local Notices to Mariners.
Are you content with the proposed level of fine?
The UKHMA does not find this proposal satisfactory.
There is little consistency throughout the draft
Bill on levels of fines for breaches of the Regulations.
eg Pilotage Notification:- it seems anomalous
that the fine proposed under s15(5) should be "not exceeding
level 2" (as in the existing 1987 Act) while the fine for
breaching a "harbour direction" (s40C(3)) is set at
"not exceeding level 4". Both offences relate to a breach
of Direction and they should logically both be Level 4 offences,
whether the breach involves personal or corporate liability
The UKHMA believes that the "ability to
pay" is the Court's decision and should be assessed on a
case-by-case basis.
(REF 6.2)
Are further safeguards necessary for the provision
for removal of unwanted pilotage powers?
The UKHMA believes that the provisions, as proposed,
are adequate.
Do you agree that there should be power to remove
CHA status by order as proposed?
The UKHMA agrees with this proposal to remove
CHA status by order, on the basis that the Secretary of State
would consult with interested parties before reaching a decision.
Do you agree with the procedure proposed for making
such an order?
The UKHMA believes that the procedure is adequate.
(REF 6.3)
Do the pilotage exemption proposals provide sufficient
checks and balances to permit efficient and safe navigation of
vessels in harbours whilst protecting the rights of individuals?
With regard to:
(a) a master must either request an authorised
pilot or notify the CHA that the ship will be piloted by a specified
person on accordance with a PEC;
The UKHMA agrees with this proposal.
(b) a measure permitting the CHA to suspend
and/or revoke the PEC where it has been wrongfully relied upon;
In principle, the UKHMA has no objection to
this measure. However, in practice, several of our members have
concerns that a door may be opened to abuse of the PEC system.
With regard to the demise of the term "First
Mate", it is our experience that this term remains in widespread
usage. The officer holding the position of First Mate is normally
the person to take command of the vessel if the master is incapacitated
or otherwise unavailable for any reason to take conduct of the
vessel.
There are natural assumptions of appropriate
knowledge, experience and responsibility (ie competence and leadership)
expected of a Master or First Mate when they present themselves
for PEC examination. Lower ranks may not have an acceptable level
of ship-handling expertise or local knowledge that would be required
of a PEC holder.
The UKHMA would hope that its Members would
retain the ability (as CHAs) to restrict the PEC to Master or
First Mate if the CHA believed that rank or qualification criteria
were justified.
The UKHMA would also expect that the PEC holder
was a bona fide member of the ship's company.
(c) A power for CHAs to suspend immediately
the certificate pending the investigation of an incident, or where
there has been incompetence or misconduct which does not fall
within the existing category of affecting the holder's ability
to pilot the ship;
The UKHMA supports this proposal.
It is our view that the 28 day suspension period
is too prescriptive and that it should be left to the CHA to decide
the appropriate period of suspension and that such period should
be indicated prior to the award of the PEC.
(d) The creation of a duty to consider the
payment of compensation to the shipowner in the event that it
is found that the CHA has wrongly suspended the certificate;
The UKHMA has concerns that the creation of
a duty to consider compensation may in some cases, act as a deterrent
to a CHA suspending a PEC.
In any case, such compensation should pass the
test of `reasonableness' and should be limited to direct costs
and not consequential loss.
(e) Removal of the restriction requiring
PEC holders to be either Masters or First Mates;
The UKHMA has reservations with regard to this
proposal as laid out in the answer to Ref.6.3(b) above.
ADDED COMMENT
The UKHMA believes that the Bill should attempt
to address the anomaly created by the Pilotage Act 1987, Section
7 (iii) "A pilotage direction shall not apply to ships of
less than 20 metres in length or to fishing boats of which the
registered length is less than 47.5 metres." See Annexe III.
(REF 6.4)
Do you agree with the power to direct harbour
authorities being taken, and the approach described as to the
circumstances in which it would be exercised? Is the proposed
penalty adequate?
The UKHMA supports this proposal as it believes
that the vast majority of harbour authorities act responsibly.
In the event of a harbour authority acting irresponsibly, the
UKHMA believes that they should be brought to account.
In any event, the UKHMA would welcome reassurance
that there is no conflict between this power and the proposed
power to remove CHA status.
In determining the level of penalty, it should
be noted that many ports are small, and that a penalty should
not be so large as to adversely affect their ability to mount
a defence.
(REF 6.5)
On the understanding that this power to prescribe
National Occupational Standards for Harbour Masters and pilots
would only be exercised in the absence of agreement by the industry
to adopt non-legislative standards, is the power properly targeted
in relation to its aims?
Notwithstanding the Government's concern about
"insufficient adoption of [National Occupational] standards
and qualifications by the industry", the UKHMA Members widely
agree that national standards will be necessary in the future
to provide a career path in the industry and to provide assurance
about the knowledge and experience of Harbour Masters and Pilots—especially
with regard to the discharge of safety functions.
Harbour Masters (and pilots) operate in a very
wide range of ports and with vessels of all sizes. The Harbour
Authority is in the best position to judge the requirements necessary
to be effective in the role of Harbour Master in its jurisdiction.
While it is true that certain statutory functions of the HM are
universal, the diversity of ports in terms of size and use renders
a "one size fits all" approach to qualification undesirable—and
probably unsustainable.
Do you agree that it is necessary to take powers
for a mandatory occupational standards system?
The UKHMA does not believe that a mandatory
approach to occupational standards is necessary at this time and
that the current voluntary approach is the right approach. However,
the UKHMA is not minded to object in principle to reserve powers
being taken although it believes such powers will not need to
be exercised.
Do you agree that it is appropriate to give harbour
authorities a further opportunity to adopt the non-statutory standards
before introducing a mandatory system?
The UKHMA agrees as we believe that high standards
have been achieved through the voluntary system.
Do you agree with the offence and the level of
fine proposed?
The UKHMA has no objection to the offence and
fine proposed in S3B(7).
(REF 6.6)
Does the power to close harbours address the problem
adequately? Are there any further safeguards required?
The UKHMA agrees with this proposal as long
as there would be no unallocated environmental or safety risks
created as a consequence of such closure.
Do you agree that there is a need for a power
to close harbours by order?
The UKHMA agrees with this proposal.
Do you agree that the scope of this power is appropriately
narrow?
The UKHMA offers no comment.
Are you content with proposals to apply a modified
version of the procedure applicable for Harbour Revision Orders
to closure orders? Are any further modifications appropriate?
The UKHMA offers no comment.
(REF 6.7)
Comments on the breadth of the provision clarifying
the ability of the GLAs to undertake commercial work and its implications
for the General Lighthouse Fund would be welcome.
The UKHMA would seek reassurance that the core
functions of the GLA are not prejudiced by any commercial undertaking.
We would also hope that there would be an improvement in GLA service
as a consequence of the change.
(REF 6.8)
We welcome views on whether the proposals for
GLA staff pensions provide adequate protection for existing payments
made in relation to pensions, and for future payments, whilst
providing flexibility to make changes to such pensions in the
future.
The UKHMA offers no comment.
(REF 6.9)
Are the proposals for enforcing GLA inspections
proportionate to the issue being addressed, with appropriate penalties
for non-compliance?
It is often difficult and time consuming for
LLAs to engage third party owners of navigational aids within
the LLAs jurisdiction (utility companies, local Councils, private
owners etc) for the purpose of maintaining/repairing defective
marks. Additionally, even where a LLA successfully communicates
defects to third party owners it is often not possible for the
required repair/maintenance to be undertaken without delay.
Therefore, the UKHMA believes that a LLA should
not be penalised by the GLA if it can be demonstrated that the
LLA has made reasonable efforts to require compliance of third
party AtoN owners.
Do you consider that daily fines for non-compliance
would be appropriate as an additional penalty?
The UKHMA does not consider that daily fines
are appropriate for the reasons given above. We would suggest
that the GLA may wish to undertake the corrective work itself,
at a suitably punitive rate, which should be passed on to the
owner of the AtoN.
In any event the UKHMA is of the opinion that
daily fines are not appropriate as often corrective action may
not be possible for a number of operational reasons, eg tides,
weather, unavailability of suitable craft, etc)
(REF 6.10)
Does the measure relating to marking wrecks with
beacons meet all present and foreseeable requirements?
As far as may be envisaged, the UKHMA agrees
with this proposal.
June 2008
Annexe I
APPLICABILITY OF
HARBOUR DIRECTIONS
AND DEFINITION
OF "SHIP"
The terms "ship" and "vessel"
are used loosely throughout Section 3 (The Proposals in Detail,
pp 3 to 21) to undermine confidence in the accuracy of the document.
For example:
CLAUSE 6: GENERAL
DIRECTIONS BY
HARBOUR AUTHORITIES
(P 4)
Text: "Special Directions—Power to
issue directions in relation to individual ships in the harbour
area for a specified purpose"
Comment: There is no mention of "ships"
in s52 of the 1847 Act (Powers of the Harbour Master). This section
of the Act refers to "vessels".
CLAUSE 3, 4 &
5: PILOTAGE EXEMPTION
(P 7)
Text: "Under s7 of the Pilotage Act 1987
a competent harbour authority (CHA) can direct that, in the interests
of safety, pilotage shall be compulsory for vessels navigating
into and out of the harbour"
Comment: There is no mention of "vessels"
in s7 of the 1987 Act. S7 refers only to "ships" as
defined in the 1964 Act.
*****
In the context of the draft Bill, the following
definitions are relevant:
HARBOURS ACT,
1964
"Ship", where used as a noun, includes
every description of vessel used in navigation, seaplanes on the
surface of the water and hovercraft within the meaning of the
Hovercraft Act 1968.
PILOTAGE ACT,
1987
"Ship" has the same meaning as in
the 1964 Act [above].
HARBOURS, DOCKS
& PIERS CLAUSES
ACT 1847
"Vessel", the word "vessel"
shall include ship, boat, lighter, and craft of every kind, and
whether navigated by steam or otherwise"
If powers of General Direction are to be effective
for all harbour authorities then they must apply equally to all
activities afloat that require, or are likely to require, regulation.
Like byelaws, General Directions may be the principal risk control
measures underpinning safety management in a harbour area. Indeed,
it is to enhance the Harbour Authority's capability to respond
to risk that this power of General Direction is being conferred.
Therefore it will be important that no sector of the harbour community
is exempted (intentionally or otherwise).
Most ports, and almost all smaller ports, host
recreational activities that may introduce unacceptable risks
to the harbour area. In this regard it will be important to ensure
that the term used to describe the applicability of "Harbour
Directions" (Clause 6 in draft Bill) is sufficient to include
all types of craft for which regulation by General Direction might
be necessary. The term "ship" is used throughout Clause
6 of the draft Bill with the meaning stated in the 1964 Act. However,
the conclusion of the Court of Appeal in R v Goodwin has led to
difficulties regarding "...every description of vessel..."
and "...used in navigation", which may in turn prejudice
the regulation by General Direction of such things as personal
watercraft, jet skis, small sailing vessels, wind surfboards,
kite boards, motorised surfboards etc.
Annexe II
Extract from Milford Haven Port Authority Act
2002:, CHAPTER v—not printed.
Annex III
Letter dated 24 November 2004 from Captain M
C Andrews, Harbourmaster, to Elgan Lloyd, Regional Operations
Manager, Maritime and Coastguard Agency, Cardiff:
FISHING VESSEL
LEGISLATION
As you are aware, I have for some time been
somewhat perplexed as to the logic behind the fact that certain
maritime legislation is not applied equally to fishing vessels
and other vessels.
I give two examples:
1. PILOTAGE ACT
1987
Section 7 (iii) "A pilotage direction shall
not apply to ships of less than 20 metres in length or to fishing
boats of which the registered length is less than 47.5 metres."
The implications are that any CHA can require
a vessel of more than 20 metres in length to take a pilot. However,
that same CHA may only make fishing vessels of 47.5 metres or
more take a pilot. What would happen if the owner of a fishing
vessel of say, 45 metres length decides to provide services as
a supply or survey vessel? Would that make such a vessel less
or more safe than it was as a fishing vessel? Does the fact that
it was a fishing vessel allow it to continue to be so and avoid
compulsory pilotage?
At Milford Haven our Pilotage Directions apply
to vessels of 50 metres or more. When they were last formally
reviewed in 2001, part of our compliance of the Port Marine Safety
Code, our risk assessment demonstrated that one of our highest
navigation risks involved offshore fishing vessels under the 47.5
metre limit. Their navigation could be best described as "unpredictable".
Despite a significant effort by all concerned
the situation did not improve until the "Bro Axel"/"Noordhinder"
incident in late 2002, after which this Authority introduced a
fishing vessel permit system which continues in place and works
reasonably well. The permit system is essentially introduced under
General Directions the consultation on which I have not yet undertaken!
I fail to see the logic behind what is meant
to be an issue of safety and what makes the matter even more galling
is that in my experience I would rather have the preference for
a fishing vessel of over 20 metres to be subject to compulsory
pilotage and any other vessel over 47.5 metres!
In my view, it should be one limit and that
limit should be 20 metres.
2. THE MERCHANT
SHIPPING AND
FISHING VESSEL
(PORT WASTE
RECEPTION FACILITIES)
REGULATIONS 2003 (SI 1809)
Regulation 3 (iv) "Regulations 11 and 13
do not apply to a ship which is:
(b) A recreational craft authorised or designed
to carry no more than 12 passengers.
Regulation 11 concerns prior notification to
buy the vessel to a terminal or harbour and Regulation 13 disapplies
charging for waste disposal.
Again, I fail to see the logic in requiring
commercial vessels to pre-notify ports and charge them for using
waste facilities and allowing commercial fishing vessels not to.
It has been said to me that this is to encourage fishing vessels
to use the facilities provided in a port rather than dispose of
their garbage at sea. Whilst this is a worthy goal I actually
believe that the culture within the fishing industry means that
they have yet to modify their behaviour. Indeed, I think we are
all aware of occasions when persons in authority, including the
MCA, have had to order fishing vessels to dispose of their garbage
properly having observed it stacked apparently ready to dispose
of once at sea.
In my view, if fishing vessels are obliged to
report then this problem could be tackled more systematically.I
would request you take to the National Marine Safety Committee
on the 2nd December.
I hope this clarifies the position but should
you require any further information, please do not hesitate to
contact me.
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