New provisions for releasing detained vessels
A number of recent vessel detentions have meant that new provisions under the UK’s Marine and Coastal Access Act 2009 relating to the lodging of bonds to secure the release of vessels have been put into practice.
Previously whilst the Marine and Fisheries Agency (MFA) had powers to detain vessels for the purpose of investigation there was no formal procedure for those vessels to be released as against the lodging of security.
Procedures varied but in general the MFA were often prepared to consider the release of a vessel providing an undertaking was given in terms satisfactory to them that any fines and costs would be paid if an investigation resulted in a prosecution.
The situation has been formalised under Section 282 of the 2009 Act. This states that where a vessel is detained under Section 279 of the Act for the purposes of furthering an investigation, the Marine Management Organisation (MMO) may enter into an agreement with the owner or charterer of the vessel for security for the vessel to be given by way of a bond in return for the withdrawal of the notice of detention.
The Act states that the bond must be in such sum as is agreed or in the event of a failure to agree an amount the matter can be determined by a Magistrates Court.
A number of recent detentions have led a number of teething issues. In particular it was established at an early stage that the MMO did not have a dedicated account set up into which to receive bonds although this difficulty was quickly overcome by the use of the MMO's fixed administrative penalty account.
It is believed a dedicated account for bonds will be set up in the near future. Furthermore all bonds to date have been in agreed sums.
The procedure for the Magistrates Court to determine the amount of the bond remains untested but it would seem that whilst the Act says that the magistrates have the jurisdiction to make a decision on this no formal procedure exists in the Magistrates Court rules.
In terms of more practical issues then, whereby the previous practice of providing undertakings did not involve the physical transfer of funds, the placing a bond does now require funds to be paid to the MMO.
As a result of delays in the banking system, especially where funds are being sent from out of the jurisdiction, vessels have been delayed in being released simply due to the time taken transmitting funds.
The writer's experience has been that the MMO has bent over backwards to be flexible and helpful in getting vessels released but clearly it must also work under the letter of the law and until the bond is received into its account the vessel cannot be released. No doubt as all parties gain more experience of the procedure things will become more streamlined.
Large fines following crew fatality
A shipowner has been fined £100,000 (€118,288/$157,407) plus costs of over £40,000 (€47,309/$62,962) for a breach of health and safety laws following the death of a crew member at Newhaven in 2005.
The port authority was also fined £85,000 (€100,545/$133,795) plus costs of over £30,000 (€35,482/$47,246).
The prosecution arose following the death of a crew member who apparently fell into the dock whilst carrying a hose along the quayside in order to bring fresh water onto the ship.
Prosecuting the case, the Health and Safety Executive deemed that contributory factors included the poor state of the quayside both in terms of lighting and general maintenance as well as a lack of planning of the task in hand with no proper risk assessment and insufficient personal protective equipment for the crew members concerned.
Both the shipowner and the port authority were prosecuted under the Health and Safety at Work Act 1974, which imposes general duties on both employers and "occupiers" to ensure the health and safety of persons that could reasonably be expected to be affected by activities in the area concerned.
The case highlights the fact that access to a ship in and around a dock remains a responsibility for all. A shipowner/operator has a duty to ensure as far as possible that access arrangements at a particular berth are safe even if this is perceived to be the responsibility of the local port authority.
Similarly in situations where it is likely that crew members may be moving around the quayside the port operator cannot just assume that reasonable care will be taken if there are known to be potential issues with the state of the area concerned.
It should be noted that this legislation and the obligations regarding safe access apply equally to both UK and foreign flagged vessels visiting the UK.
Andrew Jackson's Shipping and Transport Department recently received a number of accolades from the "Legal 500", the legal industries guide to the profession.
The firm's experience of the fishing industry is noted with one entry reading: "Both Andrew Oliver and associate Andrew Coish at Andrew Jackson are very practical and have a hands-on approach coupled with in-depth knowledge of maritime legislation. Oliver is particularly noted for his expertise in fisheries and the marine environment law.”
Its regulatory team is also mentioned: "Andrew Jackson's expertise includes corporate manslaughter cases. It advises clients in HSE and local authority investigations and prosecutions. Jeff Swales and Andrew Oliver are the practice's leading individuals".
The author, Andrew Oliver, is a partner with Hull solicitors Andrew Jackson and is a specialist in sea fisheries, marine environment and regulatory law. Follow him on Twitter @ThePlaice4Law
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