| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Clinton-Davis: I am grateful to the noble Viscount for his response once again. I am not quite so convinced about it in this instance but I would certainly like to ponder the arguments and perhaps return to them at a later stage in the Bill. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Increased penalty for causing pollution, etc.]:
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Clinton-Davis: This is an issue which relates to the raising of a fine on summary conviction for discharge of oil from £50,000 to £250,000. I raised the point on Second Reading that this would apply the fine to the owner or the master. Of course, the present law does that already. There is no distinction drawn between accidental and deliberate discharge. The question of
severity is not addressed and my impression of the contributions that were made on Second Reading was that essentially this fine should apply to the owner because in practical terms there would be no way in which a master would be able to address fines which reached the very high limits of £250,000. After all, it is the owner who is responsible for manning the ship. He is responsible for its operations and the master is simply the representative of the owner. He is an employee. In those circumstances, I believe that, even where the master has committed the act of omission, the owner should be responsible in criminal law for what has occurred.To that, I would simply add these observations. First, it is highly unlikely in practical terms that it would be the master who would be responsible for physically discharging the oil. Certainly, I do not think he could do it himself. It is much more likely to be the case that such discharge would arise through accident, perhaps through the folly of a more junior crew member, perhaps even a senior officer. But is it equitable that the master should be dealt with in exactly the same category as the owner? It would be totally unfair in the circumstances to which I have already referred that the master should be put into bankruptcy for the omissions of others when it is the owner who has the overall responsibility for those members of the crew who are acting, perhaps even under his orders, but certainly where he has the responsibility for ensuring that properly certificated people of adequate expertise are employed on a vessel.
The only other thing I would say about it is that the master does not, as I understand it, have any responsibility for the employment of the crew unless circumstances arise where he feels that he is obliged to send home those who prove themselves incompetent--by which time, of course, it may be too late.
From that I want to go on to deal with another question. I ask the Minister whether he can give us any commitment that fines payable under Clause 7 for an illegal discharge of oily waste will not be permitted to be paid by a shipowner's insurer, such as a protection and indemnity clerk. I was going to raise this issue in a later debate but it is appropriate that I should do so here. It seems to me that insurance relating to shipping somehow is treated in a totally different way from other insurance. There is no way in the ordinary civil law where you can, as far as I know, obtain an indemnity against fines for criminal prosecution. Why should there be a distinction here?
I gave notice to the Minister's office that I would raise this point. If he would prefer I will come back to it later because I gave him notice only today, but it seems to be a matter which gives rise to a serious issue of legal principle. If insurance for such fines is permitted, surely it would negate the impact of the fine on the miscreant, and that is the exact opposite of what we should be seeking to achieve.
In the dying days when I was a Minister, I remember raising this issue with the shipping insurance industry, which was very unhappy about drawing the distinction that I have now drawn. But I feel impelled to raise the issue again because I am not convinced that the
arguments that were adduced then were credible or that the arguments that are adduced now are credible in this regard. Perhaps the Minister can cast some light on what seems to be an unusual situation. There is no way in which the insurers can provide an indemnity against a sentence of imprisonment. Why then should they be able to provide an indemnity against a fine which is imposed by a criminal court?I thought it right to raise those points in the clause stand part debate, but I am perfectly happy if the Minister would prefer it if I were to allude to those arguments later on in the discussions that we will be having.
5.30 p.m.
Viscount Goschen: I welcome the opportunity that the noble Lord has given us in the discussion on Clause 7 stand part to look at the issue of fines with the associated issue of insurance. As we know, Clause 7 increases the maximum fine which a magistrate may impose for an oil pollution offence from £50,000 to £250,000, and for other ships' wastes from £5,000 to £25,000. There was considerable agreement across the House at Second Reading that these were important measures.
The noble Lord raised a number of points about the liability of the owner as well as that of the master. I can tell him that the owner would be liable, and the provisions in Section 144(6) enable even foreign owners to be prosecuted. On the point about the master and his own means, if it was decided to prosecute him, magistrates would have to take account of the defendant master's means.
Another point which has been raised is with regard to insurance against fines. The first thing to note is that shipping being an international business, most ships around our coast are indeed foreign flagged, and we cannot enforce what foreign owners and foreign insurers in foreign countries can do. There is that point of sovereignty in terms of enforcement.
We have heard reports that certain civil penalties have been paid by marine insurers. These reports have mainly related to penalties in the US. We have no direct knowledge of criminal fines being covered by insurers in the UK. This is an interesting area, and I would certainly want to take the opportunity offered by the noble Lord to consider it further and perhaps have discussions with the insurance industry in the United Kingdom to see where the state of play stands at the moment. Nonetheless, Clause 7 is a good one and I commend it to the Committee.
Lord Clinton-Davis: I have listened to what the Minister said, but when we are talking about the astronomical maxima--and I do not dispute the need for it as far as the owners of vessels are concerned--there ought to be a distinction drawn over what is practicable. It is not practicable in any case for a master to be put in a situation where he can be exposed in a court of summary jurisdiction to a fine of £250,000. It would make more sense, more logic, if in fact there were to be a distinction drawn between the master and owner as far as this is concerned.
When we are talking about a matter where a master has been utterly reckless, it would be appropriate in the circumstances for the magistrates--although one cannot direct them--to consider transferring the case and the question of penalty to a higher court. There therefore needs to be a distinction drawn between the master and the owner in those circumstances.
When it comes to insurance against crimes, it may well be that the situation applies in practical terms to the United States up to the present time. Certainly theoretically it could apply here. I am very uncomfortable about the current regime. I note what the Minister says--that it may be difficult sometimes to enforce these penalties--but there are ways and means of doing it. One can detain a ship. I would like the Minister to indicate, although I am not sure whether he can now, whether there are powers to detain a ship pending the recovery of a substantial fine that is paid. I believe that such power exists and the practical qualifications which the Minister sought to introduce may not therefore be quite so substantial.
I note with interest that the Minister said he would like to be able to undertake discussions with the insurance industry. I will not withdraw at the moment. It would be very helpful if he could do that, and perhaps we will come forward with another amendment at a later stage in respect of which he could give us some help as to how far he has progressed with any such discussions. This is a matter of such importance in principle that it requires us to come back to it.
Viscount Goschen: I do not seek to prolong the discussion much further, but there are some important points to make. First, the master is in a very responsible position indeed in terms of the vessel. He is the man on the spot with ultimate control over the operation. He is in a position of considerable power. I am sure that the court would take into account the nature of the offence. If, for instance, it was a deliberate discharge or, for some particular reason, at the instigation of the master, that would obviously be particularly serious.
The point I was trying to make about enforcement was not about recovering the fines. I understand that vessels can be detained pending the payment of a fine. If one were trying to enforce that aspect of insurance against fines, it might well be that it is a foreign owner of a foreign ship in a foreign country making an insurance contract with a foreign insurance company, in which case the United Kingdom would have problems with jurisdiction in trying to get people overseas to conduct their insurance contracts in a manner which Her Majesty's Government might approve. Nonetheless, that does not detract from the fact that this is an area which I would like to consider and obtain more information about from the insurance industry, certainly in this country.
Next Section
Back to Table of Contents
Lords Hansard Home Page